In re Arianna B.
| Decision Date | 09 November 2020 |
| Docket Number | No. E2020-00487-COA-R3-PT,E2020-00487-COA-R3-PT |
| Citation | 618 S.W.3d 47 |
| Court | Tennessee Court of Appeals |
| Parties | IN RE ARIANNA B. |
Ben H. Houston, II, Knoxville, Tennessee, for the appellant, Amy B.1
David A. Montgomery, Knoxville, Tennessee, for the appellee, Kayla A.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and, Jordan K. Crews, Assistant Attorney General, for the appellee, the State of Tennessee.
D. Michael Swiney, C.J., delivered the opinion of the court, in which Kenny W. Armstrong and Kristi M. Davis, JJ., joined.
This appeal concerns the termination of a mother's parental rights. Amy B. ("Mother") is the mother of the minor child Arianna B. ("the Child"). At Mother's request, Kayla A. ("Petitioner"), the Child's paternal aunt, assumed temporary custody of the Child. Petitioner later filed a petition in the Chancery Court for Knox County ("the Trial Court") seeking to terminate Mother's parental rights. After trial, the Trial Court entered an order finding that Petitioner had proven the ground of failure to support and that termination of Mother's parental rights is in the Child's best interest. Mother appeals, arguing among other things that Tenn. Code Ann. § 36-1-102(1), as amended in 2018, is unconstitutional for shifting the burden of proof on willfulness to parents. As Mother failed to raise this issue below and the statute is not obviously unconstitutional on its face, we decline to consider Mother's tardy constitutional challenge. We find the ground of failure to support was proven by clear and convincing evidence, and, by the same standard, that termination of Mother's parental rights is in the Child's best interest. We affirm.
The Child, born in 2012, initially lived with her biological father and Mother in Mountain City, Tennessee. In 2013, the Child's father died. Afterward, Mother and the Child lived with Mother's family in West Virginia and Pennsylvania. The Child also spent some time in Delaware with Mother and Mother's boyfriend, Houston S. Mother has a child, Carter S., by Houston S. Mother encountered difficulties in raising the Child. In September 2018, Mother granted Petitioner, the Child's paternal aunt, physical custody of the Child, signing an Authorization Form and Limited Power of Attorney for Care of Minor Child. Presently, the Child lives with Petitioner and her son in Knox County, Tennessee.
In July 2019, after Mother informed Petitioner via text that she was revoking the latter's custody of the Child, Petitioner filed her Petition for Adoption by a Relative and for Termination of Parental Rights in the Trial Court. Petitioner alleged three purportedly distinct grounds: (1) failure to visit, (2) failure to support; and (3) failure to make reasonable payments toward support.2 Petitioner also filed a motion for appointment of emergency guardian, which was granted. The termination petition was tried over the course of three days—December 16 and 18, 2019, and January 27, 2020. We proceed to summarize the pertinent trial testimony.
Charlene W., Mother's great aunt, testified that she saw Mother smoke marijuana several years earlier. As to where this took place in relation to the Child, Charlene W. stated: Charlene W. testified that, for a time, Mother left the Child at her brother Mark F.’s house, which was dirty and lacked running water. Charlene W. stated further that the Child was not well-dressed or well-groomed when she saw her. However, Charlene W. stated that the Child had enough clothes packed when she picked her up for a visit in March 2018, although what she was wearing was dirty.
Stanley W., Charlene W.’s husband, testified as well. He stated that in 2017 he witnessed Mother smoke methamphetamine while she was in West Virginia. Stanley W. testified also that he saw Mother smoke marijuana in the Child's presence. Stanley W. acknowledged his own history of drug abuse, as well as convictions for robbery, burglary and illegal drugs. Stanley W. testified that he has since been sober.
Houston S., Mother's former boyfriend and father of their son Carter S., testified that he and Mother lived together in Delaware for a time beginning in 2015. Houston S. testified that he witnessed Mother take illegal drugs. He stated further that Mother would lie in bed for days at a time.
Houston S. asserted that Mother would feed the children things like cupcakes and Reese's cups for meals. The Child had to have her teeth removed when she was three years old. Houston S. had sought, and obtained, temporary full custody of Carter S. On cross-examination, Houston S. was pressed on his account of Mother's parenting, as well as his motivations for testifying, as follows:
Continuing his testimony, Houston S. was asked about Mother's ability to parent the Child, as well as Mother's struggles with drug abuse:
Lois D., Houston S.’s mother, testified that Mother and the Child stayed with her for periods of time in 2017. Lois D. stated that, during her first stay, Mother spent much of the time sleeping. Lois D. testified that once, when Mother brought Carter S. by the house for a visit with his father, Carter S. appeared dirty and had no diaper on.
Petitioner testified on both of the last two days of trial. Before Petitioner assumed custody of the Child on September 1, 2018, Petitioner had only seen the Child on special occasions like Christmas. Petitioner stated that she assumed custody of the Child at Mother's request because Mother was unable to care for the Child. Petitioner testified that Mother never sent her any child support at all:
Petitioner works at the University of Tennessee as a financial specialist. She lives in Knox County with her nine-year-old son and the Child. Petitioner testified that she takes the Child to her doctor and dentist...
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In re Anna H.
...our General Assembly amended [section] 36-1-102(1) to make the absence of willfulness an affirmative defense." In re Arianna B., 618 S.W.3d 47, 62 (Tenn. Ct. App. 2020). 5. Mother does not argue that a four-month period prior to the date of the amended petition, February 22, 2019, should ap......