In re Braylee B., E2020-01408-COA-R3-PT

• Decision Date: 18 May 2021
• Docket Number: No. E2020-01408-COA-R3-PT,E2020-01408-COA-R3-PT
• Parties: IN RE BRAYLEE B.
• Court: Court of Appeals of Tennessee

IN RE BRAYLEE B.

No. E2020-01408-COA-R3-PT

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

April 20, 2021 Session

May 18, 2021

Appeal from the Chancery Court for Scott County

No. 11106

Elizabeth C. Asbury, Chancellor

John B. ("Father") appeals the termination of his parental rights to the minor child, Braylee B. ("the Child"). In September 2019, Brook W. ("Mother") and Charles W. ("Stepfather") filed a petition to terminate Father's parental rights in the Scott County Chancery Court ("Trial Court"). Father filed a motion to compel discovery and continue the trial, which was denied by the Trial Court. Following a trial, the Trial Court terminated Father's parental rights on two grounds of abandonment due to Father's failure to support the Child and his wanton disregard for the Child's welfare. The Trial Court further found by clear and convincing evidence that termination of Father's parental rights was in the Child's best interest. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R. FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.

Timothy P. Webb, Duff, Tennessee, for the appellant, John B.

Charles W. and Brook W., Oneida, Tennessee, Pro Se.

OPINION

Background

Mother and Father were married in 2014. The Child was born in December 2015.¹ The Trial Court found that Mother and Father had resided together intermittently until his most recent incarceration in May 2018. Mother and Father were divorced in January 2019 by order of the Scott County General Sessions Court. Father was incarcerated during the entirety of the divorce proceedings. Mother was designated the primary residential parent of the Child with Father having no contact with the Child "until such time as the father makes the appropriate application to the Court; and Court approval of parenting rights are established." Father remained incarcerated at the time of trial in the termination of parental rights proceeding.

Mother married Stepfather in June 2019. At the time of trial, the Child had resided with Mother and Stepfather for two or three years. In September 2019, Mother and Stepfather (collectively, "Petitioners") filed a petition in the Trial Court, seeking to terminate Father's parental rights to the Child and to allow Stepfather to adopt the Child. Petitioners subsequently filed a motion for default judgment, alleging that Father was served with process but that he had failed to file a responsive pleading or otherwise defend against the petition. Petitioners requested that their motion for default judgment be granted and that a final hearing be scheduled. In February 2020, Father filed a motion to dismiss, alleging that Petitioners failed to include a statement in the petition that "there is a parent/child relationship between any child and [Father] and for that reason [the petition] is fatally defective." An amended petition was filed in March 2020 with the same grounds for termination, adding the additional language at issue. Father filed a response to the petition denying that grounds existed to terminate his parental rights and that termination of his parental rights was in the Child's best interest. Discovery commenced between the parties.

In July 2020, Father filed a "Request for Production of Documents & Things," which requested Petitioners to "[p]roduce copies of all social media, including, but not limited to, Facebook, Facebook Messenger, Twitter, Instagram, and/or Snapchat posts, pictures and messages from January, 2016 to present." In his request, Father provided directions for obtaining the requested information from Facebook. In their response, Petitioners objected to the request as being overly broad and "not reasonably calculated to lead to the discovery of admissible evidence." According to Petitioners, "this is a fish finding expedition with no basis and [Father's] instructions do not work."

In August 2020, Father filed a "Motion to Compel Compliance with Discovery and/or Motion to Continue," in which he argued that Petitioners had "refused to participate in discovery." The Trial Court addressed the motion during a telephone conference during the week prior to trial and again during trial.² At trial, Father argued that he had requested visitation from Mother through Facebook but that he no longer had access to his account. He was, therefore, seeking the messages/posts through discovery. The Trial Court denied the motion for continuance but allowed ten days following trial for Petitioners to attempt to access and provide the "Facebook communication between [Father] and [Petitioners] where he's making inquiry about visiting his child during that relevant time period" from January 2018 through May 2018.

The Trial Court conducted a trial in August 2020, wherein the following witnesses testified: (1) Father, (2) Paula B. ("Paternal Aunt"), (3) Stepfather, (4) Mother, and (5) Judy B. ("Paternal Grandmother"). In September 2020, the Trial Court entered its "Findings of Fact, Conclusions of Law, and Opinion of the Court," which provided as follows:

2. Mother and Father were married to each other when the child was born on December 3, 2015. Father was incarcerated at that time. An ORDER was entered in Scott County General Sessions Court Case No: 2015-CR-770 and 2015-CR-1261 for him to have a 7 day furlough to attend the child's birth. Father was in and out of jail since that time. Mother and Father resided together off and on until his last incarceration in 2018.

3. Mother and Father were divorced per a FINAL DECREE which was entered on . . . January 18, 2019 in the General Sessions Court for Scott County, Tennessee.

4. Mother and Step-Father married on June 23, 2019. The child has resided with Mother and Step-Father since that time.

5. Father is 23 years old. He has a 7th grade education. He currently is incarcerated in the State of Tennessee Prison System. He is serving a five (5) year sentence for robbery and attempted arson. These convictions are in Case Nos: 11338 and 11438 in the Scott County Criminal Court.

6. Prior to receiving the conviction which landed him in prison, Father had other convictions which included the following: August, 2015-a plea to simple possession to a Schedule VI substance in the General Sessions Court for Scott County, Tennessee. October 28, 2015-a plea of Violation of Probation and Possession of Schedule IV Controlled Substance in Scott County, Tennessee. In February, 2016 in Fentress County, Tennessee Court-a guilty plea to failure to appear and a driver's license charge. In August, 2016 a Violation of Probation based on a failure to report, failure to pay and new charges. A drug screen that date showed he was positive for THC, BUP, AMP and Meth. He plead guilty to possession of Schedule III, possession of Schedule IV and violation of probation. In October, 2016 another Violation of Probation led to Father being assigned to recovery court. In April, 2017 another Violation of Probation was filed due to Father absconding from a recovery center without completion. He then absconded from a second recovery center. May 31, 2017, Father was ultimately terminated from Recovery Court due to failure to comply. He was ordered to remain in jail until November 22, 2017. As aforestated, in December, 2018 he plead guilty to Robbery, a C Felony with a five (5) year sentence to be served as a Range I-30% offender (Scott County Criminal Court Case No: 11338A). Additionally, in December, 2018 he entered a plea to attempted arson with a two (2) year concurrent sentence. Father has been incarcerated since May 5, 2018.

7. From Father's testimony, he has a pending DUI charge in Kentucky which will need to be addressed upon his release from prison.

8. Although Father denies being addicted to drugs, he did admit to being a "drug abuser".

9. Father acknowledged being given the opportunity to participate in Scott County General Sessions Recovery Court. He admitted to leaving Springs of Life Rehabilitation Program. Father blames Mother for leaving Springs of Life because she came and picked him up. He was offered a second opportunity through Recovery Court to participate in the New Beginnings Program from which he also absconded.

10. Father's last employment was with Southern Design Landscaping. Th[is] was the only significant job he had during the marriage to Mother. He worked there for less than one (1) year. He was fired from that job. He had to rely on another individual for transportation. He blamed his carpool buddy for not getting them to work on time. Father has never had a valid driver's license.

11. Father did use inherited money and Mother's income to buy drugs. Father testified that he had no impairment that would interfere with his ability to work.

12. Mother was the regularly employed parent. She provided steady income for the family. With assistance from his family members, Father did, at times, provide vehicles and homes.

13. Before his final incarceration, Mother and Father were on/off in their relationship. Mother described several instances of domestic violence due to Father's conduct. Examples included:

(a) He threatened to wrap the car around a tree;

(b) with the child in her arms, he tried to drag her;

(c) smacked her across the face; and

(d) while using meth, grabbed her by her neck.

14. Both parties acknowledge that they had sexual relations during the four (4) month period immediately preceding Father's incarceration. A child, [E.B.], was born on August 6, 2018. The parents' divorce decree states that [Father] is not the biological father.

15. Father admits non-payment of child support during the relevant four (4) month period of time prior to his incarceration. However, the parties cohabited periodically during that period of time and he did spend periods of time with the child.

16. Father's sister, [Paternal Aunt], offered credible testimony regarding physical violence during period

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