In re Braelyn S.

Decision Date22 July 2020
Docket NumberNo. E2020-00043-COA-R3-PT,E2020-00043-COA-R3-PT
PartiesIN RE: BRAELYN S.
CourtTennessee Court of Appeals

Appeal from the Chancery Court for Sullivan County

No. 19-CK-41754M

John S. McLellan, III, Judge

Father appeals the termination of his parental rights. The trial court found grounds for termination by abandonment by failure to visit, abandonment by failure to support, and failure to manifest an ability and willingness to assume legal and physical custody of the child. The trial court also found termination was in the best interests of the child. We affirm in part and reverse in part, but affirm the termination of the father's parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R. FRIERSON, II, J., joined, RICHARD H. DINKINS, J., filing a separate concurring and dissenting opinion.

Kenneth E. Hill, Kingsport, Tennessee, for the appellant, Michel S.

Lindsay Katheryn Earhart, Kingsport, Tennessee, for the appellee, Kayla B. and Nick B.

OPINION
BACKGROUND

In 2013, Braelyn S. ("Braelyn") was born to Petitioner/Appellee Kayla B. ("Mother") and Respondent/Appellant Michel S. ("Father") in Norton, Virginia.1 Father submitted a voluntary acknowledgment of paternity at the time of birth. On the day following Braelyn's birth, Father moved to Atlanta, Georgia to live with his fiancée and aseparate child they conceived together. Mother and her son lived in Virginia, where Father would occasionally travel to visit in the months following Braelyn's birth. Father's visits continued until May or June 2014, when he took Braelyn to Atlanta to visit with his family without Mother's consent or awareness. After Father returned Braelyn to Virginia, Mother required that all future visitation occur only after the terms of visitation were put into writing. Following this incident, Father stopped providing occasional support to Mother for Braelyn's care. Mother also began blocking Father's cell phone number intermittently following the incident.

On June 21, 2014, Father filed a petition for custody pro se in the Scott County (Virginia) Juvenile Court in an effort to obtain visitation with Braelyn. Father was ordered to obtain a home study by the juvenile court during a hearing on January 7, 2015.2 Efforts to mediate the dispute ended after Father hung up when Mother suggested that she have primary custody of Braelyn. Father was unable to afford the $1,500.00 fee for a home study, and the juvenile court dismissed Father's petition for custody on August 15, 2015. Father did not pursue visitation in any court following this dismissal. However, Father continued his efforts to call Mother and seek informal visitation. Mother and Father talked at least four or five times in the years after Father took Braelyn to Atlanta. On the rare occasions where Mother and Father talked, conversations ended quickly after Mother demanded that any visitation terms be placed in writing. Both parties recognized that Mother was essentially requiring that Father obtain a court order to visit Braelyn.

Mother moved to Kingsport, Tennessee in March 2015 with her now-husband, Nick B. ("Step-Father"). Mother and Step-Father were married in June 2016 and live with Braelyn and two children born of their marriage. In March 2018, Mother called Father to ask him to surrender his parental rights to Braelyn. Father quickly rejected the request and later sent messages that led Mother to block his cell phone number again. Mother and Father did not speak again until the present legal matter commenced. At the time that the petition was filed, Father lived with his fiancée and two children in Sandy Springs, Georgia and earned approximately $35,000.00 as a financial underwriter.

Mother and Step-Father filed a petition in Sullivan County Chancery Court ("the trial court") to terminate Father's parental rights and allow Step-Father to adopt the child on January 30, 2019. Mother and Step-Father sought termination on the grounds of abandonment by failure to visit, abandonment by failure to support, and failure to manifest an ability and willingness to personally assume physical and legal custody or financial responsibility of Braelyn. An attorney was appointed to represent Father, and that attorney accepted service on Father's behalf. Mother and Step-Father filed a motion for default judgment after receiving no answer from Father. An amended petition was later filed which restated the three existing grounds for termination in the trial court on June 4, 2019. In aresponse filed on July 22, 2019, Father denied that the grounds for termination existed and that termination was in the best interests of Braelyn. Father made a similar denial in a filing in response to the amended petition.

The trial court held a hearing regarding the petition to terminate on September 25, 2019. Father conceded that he failed to visit and support Braelyn in the four months preceding the filing of the petition to terminate his rights; however, he contended that those failures were not willful. Father testified that his efforts to visit and support Braelyn were thwarted by Mother, who consistently blocked calls from him and refused to allow him to visit with his son. When Mother and Father did speak over the phone, Father asked to see his son and obtain visitation. Father also claimed to offer child support as a "bribe" to see his son and later defended his characterization of the offer to provide child support while testifying. While Father knew Mother and Braelyn had moved to Kingsport, he claimed that he did not know specifically where Mother and Braelyn lived and was unable to contact them by mail, send any support to Braelyn, or petition a state court to obtain visitation rights. While Father had previously sent a gift to Braelyn to Braelyn's maternal grandmother's address, he said he did not know whether the maternal grandmother still lived there and did not reach out to Braelyn's family through that address. In addition, Father testified that he continued to live with his fiancée and raise his two other children in Sandy Springs, Georgia, where he and his family have no alcohol or substance abuse issues. Father stated that he was willing and able to take custody and financially support Braelyn. While he conceded that a reintroduction could be hard for Braelyn, Father stated that "it's what needs to be done" and that he believed that Braelyn could adjust to the circumstances.

At trial, Mother testified that Father permanently left for Georgia the day after Braelyn was born. For more than a year, Mother claimed that Father occasionally visited and provided support for Braelyn until Father took Braelyn to Atlanta without Mother's consent. Until this time, Mother conceded that Father would not harm Braelyn or place him at risk during visitation. Following this incident, Mother stated that she would not allow Father to visit without what amounted to a written court order. Mother also stated that Father failed to provide support following Mother's cessation of visitation. Mother acknowledged that she did not inform Father of her move to Kingsport, even as Father's petition for visitation remained active in Scott County, Virginia. Following her request that Father surrender his parental rights, Mother blocked Father's cell phone number through the termination hearing, which included the four-month period before the filing of the petition. By the time she filed the petition to terminate, she testified that she would not allow Braelyn to see Father without an explicit court order. On cross-examination, she admitted that her blocking of Father's phone number was a substantial hindrance from Father's ability to visit but stated "that wasn't the only way to get in contact with [Braelyn]."

Step-Father also testified at the hearing, stating that he had lived with Braelyn since2015 and that Father had not interacted with Braelyn since then. Step-Father stated that Braelyn has called him "Daddy" since he was two years old. Father's fiancée also testified, stating that she and Father had a stable living situation with their two children and could take on the care of another child if needed.

Following the hearing, the trial court issued an order terminating Father's parental rights on January 3, 2020. The trial court found that Father had abandoned Braelyn through a failure to visit and a failure to support. Further, the trial court disregarded Father's claims of a lack of willfulness, stating that Father could have learned Mother's address or found alternative ways to contact Mother, request visitation, or send support for Braelyn. The trial court also found that Father failed to manifest a willingness and ability to assume legal and physical custody or financial responsibility by his failure to visit or support Braelyn. The trial court stated that Father's lack of a relationship or legal responsibility with Braelyn and the likelihood that placing Braelyn in Father's care could lead to physical and psychological harm to the child. In addition, the trial court found clear and convincing evidence that terminating Father's parental rights was in Braelyn's best interests. Namely, the trial court cited Father's failure to make contact, failure to support, lack of a meaningful relationship, and likelihood of harming the child's emotional, psychological, and medical conditions as factors that supported termination. After the order was entered, Father timely filed a notice of appeal.

ISSUES PRESENTED

In his appeal, Father raised four issues, which we slightly restate as follows:

1. Whether the trial court erred in terminating Father's parental rights on the ground of abandonment for failure to visit?
2. Whether the trial court erred in terminating Father's parental rights on the ground of abandonment for failure to provide support?
3. Whether the trial
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