In re Jacobe M.J.

• Decision Date: 05 December 2013
• Docket Number: No. M2013–01246–COA–R3–PT.,M2013–01246–COA–R3–PT.
• Citation: 434 S.W.3d 565
• Parties: In re JACOBE M.J.
• Court: Tennessee Court of Appeals

434 S.W.3d 565

In re JACOBE M.J.

No. M2013–01246–COA–R3–PT.

Court of Appeals of Tennessee, Middle Section, at Nashville.

Assigned on Briefs Nov. 19, 2013.

Dec. 5, 2013.

Application for Permission to Appeal

Denied by Supreme Court

March 5, 2014.

Jason F. Hicks, Cookeville, Tennessee, for the appellant, Jerry P.J.

Martelia T. Crawford, Cookeville, Tennessee, for the appellee, Yvette F.D.

OPINION

J. STEVEN STAFFORD J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

J. STEVEN STAFFORD J.

This is a termination of parental rights case. Father appeals the trial court's termination of his parental rights on the ground of abandonment by willful failure to visit and willful failure to support pursuant to Tennessee Code Annotated Sections 36–1–113(g)(1) and 36–1–102(1)(A)(i). We conclude that the ground of abandonment by willful failure to visit and willful failure to support is met by clear and convincing evidence in the record, and that there is also clear and convincing evidence that termination of Father's parental rights is in the child's best interest. Affirmed and remanded.

I. Background

The child at issue, Jacobe M.J., was born on January 7, 2009 to Jessica M.D. (“Mother”) and Jerry P.J. (“Father,” “Respondent,” or “Appellant”).¹ Mother and Father were never married.² Yvette F.D. (“Petitioner,” “Grandmother,” or “Appellee”) is the child's maternal grandmother.

On April 17, 2012, Grandmother filed a petition in the trial court, seeking to terminate both Mother and Father's parental rights to the minor child. Grandmother also sought to adopt the child. As the ground for termination of their parental rights, Grandmother alleged that Mother and Father had abandoned the child by willful failure to visit and willful failure to support. Tenn.Code Ann. § 36–1–113(g)(1); Tenn.Code Ann. § 36–1–102(1)(A)(i). According to her petition, Grandmother obtained physical custody of the child on or about May 13, 2011, when she was granted temporary legal custody under a temporary restraining order. This temporary restraining order, which was entered by the juvenile court on May 13, 2011, enjoins Mother and Father from “removing the minor child from the [Grandmother's] physical custody.” ³ Although Grandmother obtained physical custody through the May 13, 2011 temporary restraining order, the testimony at trial revealed that the child had been living with Grandmother continuously since November of 2010, when Mother moved into Grandmother's house with the child. Grandmother testified that Mother stayed with her “on and off” for several months, but that Mother often left the child in Grandmother's care for days without indicating her whereabouts. When Mother moved out of Grandmother's house, she left the child in Grandmother's care.

Father filed an answer to Grandmother's petition on May 10, 2012. While he admitted that the child had lived with Grandmother since at least 2011, Father denied that he had abandoned the child and averred that he had “attempted to provide support to the child.”

By order of July 2, 2012, a guardian ad litem was appointed to represent the child. On October 2, 2012, Father's attorney filed a motion to withdraw, which motion was granted by order of November 14, 2012. The case was set for hearing and, on December 27, 2012, Grandmother's attorney filed an affidavit of service, indicating that Father was served with notice of the hearing by certified mail. Thereafter, Father requested that he be appointed counsel. By order of January 24, 2013, Father was found to be indigent and an attorney was appointed to represent him. By order of January 30, 2013, the case was continued to April 11, 2013 so that Father's new attorney could prepare for the hearing; the same order also changed the child's guardian ad litem.

Following the April 11, 2013 hearing, on May 14, 2013, the trial court entered a final judgment, terminating Father's parental rights on the ground of abandonment. We will discuss the trial court's specific findings below.

II. Issues

Father appeals the trial court's termination of his parental rights. He raises two issues for review as stated in his brief:

1. Whether the trial court erred in finding, by clear and convincing evidence, that the Father abandoned the child by willfully failing to support him and failing to visit him.

2. Whether the trial court erred in finding, by clear and convincing evidence, that it was in the best interest of the child to terminate Father's parental rights.⁴

III. Standard of Review

Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Nash–Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.1996). Thus, the state may interfere with parental rights only if there is a compelling state interest. Nash–Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Our termination statutes identify “those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought.” In re W.B., Nos. M2004–00999–COA–R3–PT, M2004–01572–COA–R3–PT, 2005 WL 1021618, at *7 (Tenn.Ct.App. Apr. 29, 2005) (citing Tenn.Code Ann. § 36–1–113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn.Code Ann. § 36–1–113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002).

Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. Consequently, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn.Code Ann. § 36–3–113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth of the facts asserted is highly probable ... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn.Ct.App.2004). Such evidence “produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established.” Id. at 653.

In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review as set forth in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002).

We note that in its May 14, 2013 order, the trial court specifically found that “after hearing the testimony of all the witnesses ... the Grandmother, and her witnesses were very credible.” It is well settled that when the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge who has had the opportunity to observe the witnesses and their manner and demeanor while testifying is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.Ct.App.1997). The weight, faith, and credit to be given to any witness' testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997).

IV. Ground for Termination of Father's Parental Rights

As set out in its May 14, 2013 order, the trial court terminated Father's parental rights on the ground of abandonment pursuant to Tennessee Code Annotated Section 36–1–113(g)(1). In relevant part, the order states:

2. The Court hereby finds that the allegations by the Petitioner Grandmother are abandonment by the Father, as to willful failure to visit and willful failure to pay child support, and that based on the testimony in open court, the court finds that the ground[ ] ha[s] been proven by clear and convincing evidence that the Father has willfully abandoned the child and that the Grandmother met her burden of proof.

The Court further finds that there has been absolutely no child support paid by the father since the minor child went to reside with the Grandmother in November 2010, that the father was not and is not disabled, that he has maintained employment during this period of time, and he had the ability to pay child support. The court further finds that the Father did not pay for any daycare costs, did not provide any food, clothing or other necessaries for the minor child since November 2010. The court finds that the grandmother did nothing to prevent the father from paying any form of child support and providing any necessities for the minor child.

The court further finds that the father's excuse that there was no court order or request for child support, is insufficient to offset his duty of support.

Therefore, the court specifically finds that the father has willfully failed to support his minor child since November 2010.

The court further finds that there were no visits between the Father and the minor child between November 2010 until February 2013, and the father's excuse to this court was that his former attorney told him not to contact the Grandmother....