Gmc v. Avi

• Decision Date: 23 August 2000
• Docket Number: 00-00134
• Parties: G. M. C., ET AL. v. A. V. I.IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 2000 Session FILED
• Court: Tennessee Court of Appeals

G. M. C., ET AL. v A. V. I.

No. E2000-00134-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

June 2000 Session

FILED AUGUST 23, 2000

Appeal from the Chancery Court for Washington County No. 6927

Jean Anne Stanley, Judge

The natural mother and stepfather of a three-year-old child petitioned the Chancery Court of Washington County for an order terminating the parental rights of the child's natural father, and allowing the adoption of the child by the stepfather. The Chancery Court granted the petition pursuant to Tenn. Code Ann. 36-1-113, finding that the father exhibited a wanton disregard for the child such that it constituted abandonment as defined by Tenn. Code Ann. 36-1-102(1)(A)(iv). On appeal, the father raises two issues: (1) whether the Chancery Court erred in finding by clear and convincing evidence that the father engaged in conduct that constituted a wanton disregard for the welfare of the subject child where there was contradictory testimony regarding the father's conduct; and (2) even assuming that the allegations regarding the father's conduct are true, whether his conduct amounts to a wanton disregard for the welfare of the child. We affirm.

Tenn. R. App. P. 3; Judgment of the Chancery Court Affirmed; case Remanded.

Clifton Corker, Johnson City, Tennessee, for the appellant, AVI.

Stephen L. Gilley, Kingsport, Tennessee, for the appellees, GMC and TDC.

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J. and HERSCHEL P. FRANKS, J. joined.

OPINION

Background

This matter arises from a petition for termination of the parental rights of the natural father ("AVI" or "Father") of a three year old child ("Child"), and for adoption of the Child by his stepfather. AVI and the natural mother ("TDC" or "Mother"), were married in June, 1995 and had one child born in October, 1996. Thereafter, the parents divorced in November, 1997 at which time TDC was awarded custody of the Child. At the time of the parents' divorce, AVI was in jail in Sullivan County on pending charges. The judgment entered by default on November 12, 1997, also provided that due to AVI's incarceration, his visitation privileges with the Child would be suspended until he became gainfully employed and began supporting the Child. The trial court further ordered TDC to provide AVI with correspondence and photographs regarding the Child.

Sometime in January, 1998, TDC posted bond for AVI who subsequently fled Tennessee for South Carolina sometime before April, 1998. AVI returned to Tennessee and was arrested and re-incarcerated in April, 1998. AVI has remained incarcerated since that date. The parents' testimony regarding the extent of contact between AVI and Child and TDC during the brief period of time that he was not imprisoned, January through April, 1998, is contradictory. AVI testified that the three people basically lived together and that he attempted to support his son during this period of time. TDC testified that AVI lived with his parents and that he only occasionally visited her and the Child, but paid no support.

At some time during the approximate three month period that AVI was out of jail, TDC left the Child with AVI's brother and his girlfriend to babysit. AVI visited the couple during this time, and the three adults drank alcohol and smoked marijuana. TDC testified that when she returned, the Child's bottle contained beer.

AVI has an extensive criminal history. He is currently serving time in prison for a number of convictions. Although the record is not clear, AVI's effective sentence appears to be twelve years in a Tennessee Department of Corrections facility, plus four years in a community-based alternative facility.¹ The proof at trial showed that AVI, who was 25 years old at the time of trial, has been out of jail for approximately 2 years since he was 16 years old. In September, 1997, AVI was sentenced to serve eight years for facilitation of aggravated burglary for an offense which occurred in February, 1996. In December, 1997, AVI was sentenced to a fourteen year prison term for seven counts of forgery, at two years for each offense which ran concurrent to each other. These offenses occurred during an approximate two week period in May, 1997. Simultaneously, AVI received concurrent sentences for two counts for failure to appear in court on April 17, 1997. Also, in May, 1998, AVI received concurrent sentences to a community- based alternative facility which totaled 11 months, 29 days for convictions for offenses which occurred on May 26, 1997, which included evading arrest; theft under $500; possession of marijuana; and possession of cocaine.

At trial, TDC testified that she provided monthly correspondence and occasionally sent photographs regarding the Child to AVI since April, 1998, but the Child received nothing from AVI in return. TDC also testified that during their relationship, AVI exhibited violent and abusive behavior, including punching her in the stomach and threatening to kill her. TDC testified further that AVI called her from prison, stating that when he got out of prison, he would kill her and take their Child.

However, AVI's testimony was directly counter to that of TDC's. AVI denied making threatening remarks to TDC. AVI testified that during the short time that he was out on bond between January and April, 1998, he cared for the Child and attempted to support TDC and Child. AVI testified that since his re-incarceration, he sent handmade items and correspondence to the Child and made regular telephone calls to the Child. Still, AVI admitted that he smoked marijuana on a regular basis while he was out of prison, and that he did so when he was around the Child.

TDC remarried and on October 13, 1998, TDC, along with her new husband ("GMC" or "Stepfather"), filed this petition for the termination of AVI's parental rights and for the adoption of the Child by GMC. TDC's and GMC's testimony established that GMC is employed and is able to support TDC and Child. Moreover, GMC takes good care of the Child and loves him.

AVI also remarried, and his wife provided testimony that AVI was a good person and very loving to her child. AVI's wife also testified that AVI loved the Child very much.

In its Memorandum Opinion and separate Order, the Trial Court granted the petition to terminate AVI's parental rights, finding that AVI engaged in "conduct prior to his incarceration which exhibit[ed] a wanton disregard for the welfare of the [c]hild." The Trial Court further found that the parties' testimony regarding the issues of AVI's contact with the child between January and April, 1998, and AVI's violent behavior toward TDC was conflicting. Nonetheless, the Trial Court found that TDC was more credible. The Trial Court stated in its Memorandum Opinion as follows:

Hopefully, [AVI] has changed during his incarceration and when released will start a new and very different life. However, the Court has no hesitation in finding that his conduct prior to incarceration and his conduct during such incarceration towards TDC exhibits a wanton disregard for the welfare of [the Child].

AVI appeals this ruling.²As this issue is not before us on appeal, we express no opinion concerning the Trial Court's holding on this issue.

Discussion

AVI appeals and asks the Court to address the following issues:

1. Whether the Chancery Court erred in finding by clear and convincing evidence that the Defendant engaged in conduct that constituted a wanton disregard for the welfare of the subject child where there was contradictory testimony regarding Defendant's conduct.

2. Even assuming the allegations regarding Defendant's conduct are true, his

conduct does not amount to a wanton disregard for the welfare of Defendant's minor child.

TDC and GMC state the issue on appeal as follows:

1. Whether the Chancery Court was correct in finding by clear and convincing evidence that the Defendant engaged in conduct that constituted a wanton disregard for the welfare of the parties' child, justifying termination of his parental rights.

Our review of the findings of fact by the Trial Court is de novo upon the record, accompanied by a presumption of the correctness of the findings of fact of the Trial Court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Alexander, et al. v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). The Trial Court's conclusions of law are subject to a de novo review with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997) (citing Union Carbide Corp. v. Huddleston, 854 S.W. 2d 87, 91 (Tenn. 1993)).

It is well-established that "parents have a fundamental right to the care, custody, and control of their children." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). "However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d at 97 (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). The statute, Tenn. Code Ann. 36-1-113, sets forth the proof needed to justify the termination of parental rights as follows:

Termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear and convincing evidence that the grounds for termination or parental or guardianship rights have been established; and

(2) That termination of the parent's or guardian's rights is in the best interests of the child.

Tenn. Code Ann. 36-1-113(c). The clear and convincing standard of proof required by the statute was examined by this Court in O'Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995) as follows:

The "clear and convincing evidence" standard defies precise definition. Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989)....