In re Mattie L.

• Decision Date: 05 February 2021
• Docket Number: No. W2018-02287-SC-R11-PT,W2018-02287-SC-R11-PT
• Citation: 618 S.W.3d 335
• Parties: IN RE MATTIE L.
• Court: Tennessee Supreme Court

618 S.W.3d 335

IN RE MATTIE L.

No. W2018-02287-SC-R11-PT

Supreme Court of Tennessee.

November 5, 2020 Session¹

FILED February 5, 2021

Mitzi C. Johnson and Brent A. Rose, Collierville, Tennessee, for the appellants, Michael G. and Rebecca G.

Abigail D. Hall and Elizabeth W. Fyke, Memphis, Tennessee, for the appellee, Christian L.

Lisa Zacharias, Memphis, Tennessee, Guardian Ad Litem for Mattie L. (at trial).

Sharon G. Lee, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Holly Kirby, and Roger A. Page, JJ., joined.

Sharon G. Lee, J.

In this parental termination case, we review the trial court's application of the missing witness rule to a party in a non-jury trial, the trial court's reliance on the doctrine of unclean hands, and whether the trial court erred in terminating parental rights on the grounds of abandonment. A mother and stepfather petitioned the trial court to terminate a father's parental rights and allow the stepfather to adopt the child. The trial court terminated the father's parental rights based on a finding of abandonment by willful failure to support, willful failure to make reasonable or consistent support payments, and willful failure to visit. The trial court also found termination was in the child's best interest. In reaching these conclusions, the trial court presumed that because the father—a missing witness—did not appear for trial, his testimony would have been unfavorable to him. In addition, the trial court ruled that under the doctrine of unclean hands, the father should be "repelled at the courthouse steps" because he made false statements in his interrogatory answers. The Court of Appeals reversed, finding the trial court erred by applying the missing witness rule in a non-jury trial and by applying the doctrine of unclean hands. The Court of Appeals also held the mother and stepfather's evidence of abandonment was less than clear and convincing. We hold: (1) the missing witness rule may apply in a non-jury trial, although here the trial court misapplied the rule; (2) the trial court erred in applying the doctrine of unclean hands to the father because he was defending against a petition for statutory relief while seeking no equitable relief, and his alleged misconduct was collateral to the issue of abandonment; and (3) the evidence of abandonment was not clear and convincing. Thus, we hold the trial court erred in terminating the father's parental rights. We reverse the judgment of the trial court and dismiss the petition to terminate the father's parental rights.

I.

Mattie L., the daughter of Rebecca G. ("Mother") and Christian L. ("Father"), was born in January 2012. Three years after Mattie's birth, Mother and Father's eight-year marriage ended in a divorce granted by a Florida trial court. Under Mother and Father's agreed parenting plan and time-share schedule, Mattie would spend the majority of her time with Mother. Father would have time-sharing with Mattie on alternate weekends near Mother's home, alternate designated holidays, and during most of Mattie's summer vacation. Father's time would be temporarily supervised by his mother until Mother and Father could agree that supervision was no longer necessary. Father was to pay Mother child support in the amount of $503.91 per month, half of Mattie's noncovered medical bills, and half of her private school tuition and expenses. Father was also to provide health and dental insurance coverage for Mattie as long as the coverage was reasonably available to him.

In March 2015, soon after the divorce was granted, Mother and Mattie moved to Memphis. They lived with Mother's family for a few months before moving in with Mother's boyfriend, and now-husband, Michael G. ("Stepfather"). About four months after Mother and Stepfather married in August 2015, they began discussing Stepfather adopting Mattie.

Father fell behind on his support obligations, and in November 2015, Mother registered the Florida divorce judgment in the Shelby County Circuit Court and petitioned the court to modify the parenting plan and time-share schedule. Mother also petitioned the court to hold Father in civil contempt for failure to pay child support and other obligations. In February 2016, the court issued an order, holding Father in civil contempt and awarding Mother a judgment of $8,874.92 for child support, school expenses, and insurance arrearages. The court also issued a wage assignment and ordered Father to pay Mother $715.91 each month for child support, arrearages, and health insurance. In addition, the court changed Father's supervised parenting time from alternate weekends to the first and third weekends of each month and made no change to Father's holiday and summer visitation times.

In December 2016, Mother and Stepfather petitioned the Shelby County Chancery Court to terminate Father's parental rights and allow Stepfather to adopt Mattie. The petition alleged that Father had abandoned Mattie by willfully failing to visit her, willfully failing to support her, and willfully failing to make reasonable or consistent payments toward her support during the four consecutive months before the filing of the petition. See Tenn. Code Ann. § 36-1-102(1)(A)(i) (2017) (amended 2018).² Father denied the allegations.

Ten days before trial, the trial court denied Father's request to delay the case because he was in the Shelby County jail. When the trial began on October 15, 2018, Father's attorney explained that Father was unable to appear in court because he had to also appear in Shelby County Criminal Court. Father's attorney did not request another continuance but moved the trial court to bifurcate the hearing into two phases: first, grounds for termination, and second, a best interest determination. The trial court denied the request, and the trial proceeded in Father's absence. On the second day of trial, the trial court asked Father's counsel if the trial could go forward without Father. Father's attorney agreed saying, "I'm here as his attorney of record, and I absolutely believe we can proceed without him."

The six-day trial proceeded in Father's absence. On the abandonment issue, Mother and Stepfather presented the testimony of Mother, Stepfather, Mother's mother and stepfather, the principal and two business office employees from Mattie's former school, a real estate agent, the records custodian of a facility where Father had received treatment for alcohol addiction

, and the records custodian for one of Father's employers. Father presented the testimony of his mother and his sister. Mother's calendars with notes about Father's visitation, Mattie's school registration forms, Mother's and Father's emails and text messages, and Father's military records, bank records, employment records, 2016 Internal Revenue Service Form W-2, and interrogatory answers were introduced into evidence. The parties’ discovery depositions were filed with the trial court.

At the close of proof, the trial court granted Mother and Stepfather's request to apply the missing witness rule and presume that Father's testimony, if he had appeared, would have been unfavorable to him. The trial court also granted Mother and Stepfather's request to apply the equitable doctrine of unclean hands and not allow Father to obtain any relief because he had been untruthful under oath during discovery about his 2005 military service and his 2016 treatment for alcohol addiction

.³ After applying the unclean hands doctrine, the trial court found Father "should be repelled at the courthouse steps from receiving any relief that he ha[d] requested in this cause."

On November 30, 2018, the trial court issued an order finding by clear and convincing evidence that Father's parental rights should be terminated "due to his willful abandonment of [Mattie] in his failure to visit and failure to pay child support." The trial court also held termination was in Mattie's best interest.⁴

The Court of Appeals reversed, finding the trial court erred by applying the missing witness rule in a non-jury trial and by relying on the doctrine of unclean hands. The Court of Appeals also held the evidence on the grounds of abandonment was less than clear and convincing.⁵ In re Mattie L. , No. W2018-02287-COA-R3-PT, 2020 WL 1867372 (Tenn. Ct. App. Apr. 14, 2020), perm. app. granted (Tenn. Aug. 11, 2020).

This Court granted Mother and Stepfather's application for permission to appeal. We review the trial court's decision to apply the missing witness rule, the trial court's reliance on the doctrine of unclean hands, and whether the trial court erred in terminating Father's parental rights on the grounds of abandonment.

II.Standard of Review

"A parent's right to the care and custody of [the parent's] child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re Gabriella D. , 531 S.W.3d 662, 680 (Tenn. 2017) (quoting In re Carrington H. , 483 S.W.3d 507, 521 (Tenn. 2016) ). This constitutional right may be taken away only through "fundamentally fair procedures," including "a heightened standard of proof—clear and convincing evidence." In re Carrington H. , 483 S.W.3d at 522 (citing Santosky v. Kramer , 455 U.S. 745, 754, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). Clear and convincing evidence is proof which "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 Keri C. , 384 S.W.3d 731, 744 (Tenn. Ct. App. 2010) (quoting In re Audrey S. , 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005) ). "It produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. (quoting In re Audrey S. , 182 S.W.3d at 861 ). This standard of proof "ensures that the facts are established as highly probable, rather than...