In re P. G.
| Decision Date | 17 August 2018 |
| Docket Number | No. M2017-02291-COA-R3-PT,M2017-02291-COA-R3-PT |
| Parties | IN RE P. G. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Robertson County
Laurence M. McMillan, Jr., Chancellor
Both parties appeal from the trial court's order finding two grounds to terminate Mother's parental rights, but ultimately concluding that termination was not in the child's best interests. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
Russell E. Edwards, Hendersonville, Tennessee, for the appellant, Jennifer G. and Eric G.
John E. Evans, Springfield, Tennessee, for the appellee, Kelci G.
OPINIONThe child at issue was born in February 2009 to unmarried parents Petitioner/Appellant Eric G. ("Father") and Respondent/Appellee Kelci G. ("Mother").1 Father filed a petition to establish paternity in Sumner County Juvenile Court in 2011. Mother was initially named primary residential parent. Later, however, Mother became involved in drugs. As such, Father returned to court in 2012 to modify the custody award. At a November 27, 2012 hearing, Father was named temporary primary residential parent of the child. Mother was awarded daytime supervised visitation to be scheduled between the parties. Mother's visits were to be supervised by Father, Mother's father, Mother'sstep-mother, Father's mother, or Mother's grandmother. A final order naming Father primary residential parent, maintaining the current visitation plan, and ordering Mother to pay $100.00 per month in child support was entered on November 9, 2015.2 There is no dispute that for much of 2012 and until the filing of the termination petition, the child resided 100% of the time with Father.
In the meantime, both Mother and Father married. Father married Petitioner/Appellant Jennifer G. ("Step-Mother") in 2015, although they began living together in 2013. By the time of trial, they had one child together. Mother meanwhile married her husband in 2013 and they had two children together by the time of trial. While Father and the child reside in Springfield, Tennessee, Mother, her husband, and their two children reside in Sevierville, Tennessee, a little less than four hours' drive away.
On February 6, 2017, Father and Step-Mother (together, "Appellants") filed a petition to terminate Mother's parental rights in the Robertson County Chancery Court ("the trial court"). The petition alleged that Mother had abandoned the child by willfully failing to visit or support him four months prior to filing of the petition and that termination was in the child's best interests. Mother responded by filing a motion to dismiss the petition on the grounds that it failed to contain the notice required by Rule 9A of the Tennessee Rules of the Supreme Court, failed to contain necessary statistical information, failed to note that the proceedings would forever terminate Mother's parental rights, failed to state that Appellants consulted the putative father registry prior to filing the petition, failed to provide sufficient service of process, and failed to state a claim. Appellants responded in opposition to the motion.
On March 17, 2017, Appellants filed an amended petition in an attempt to correct the procedural deficiencies noted in Mother's motion to dismiss. The trial court held a hearing on Mother's motion to dismiss on April 10, 2017. On May 1, 2017, the trial court entered an order denying the motion, crediting Appellants' arguments that the amended petition was timely and corrected the deficiencies in the original petition. The trial court also ruled that the amended petition would relate back to the time of the filing of the initial petition. Mother thereafter filed an answer to the amended petition, denying the material allegations contained therein.
In July 2017, Appellants filed a subpoena to the Sevier County Juvenile Court asking that the clerk permit Appellants to inspect all juvenile records pertaining to litigation in which Mother was involved in the last four years. The clerk of the Sevier County Juvenile Court eventually released the records, under seal, to the trial court. Appellants thereafter filed a motion in the trial court for release of the records. At thecommencement of trial, the trial court denied the motion and the records were not released.
A trial occurred on August 23, 2017. Father, Step-Mother, Mother, and Maternal Grandmother testified. Father and Step-Mother generally testified that Mother had essentially abandoned the child to their care from 2015 until the filing of the termination petition. There was no dispute that Father and Step-Mother offered the child a loving and stable home and that all of his physical and emotional needs were being met by them.
According to Father and Step-Mother, during the four months preceding the filing of the initial termination petition, Mother had a single weekend of unplanned visitation with the child in December 2016. Father testified that in the year prior to that visitation, Mother's only effort to contact the child was a birthday phone call in February 2016. Mother did participate in a February 2015 visit with the child and had engaged in some supervised visitation prior to that date. According to Father, Mother also paid no child support during this time. Father admitted that Mother had called to ask what the child wanted for Christmas in December 2016 and to determine whether the child would be attending Christmas at Maternal Grandmother's home. Father informed Mother that there was no plan for the child to attend. With regard to the Christmas gift, Father replied that the child would like an Easter basket that had been promised the previous spring and never delivered. There was no dispute, however, that following the filing of the initial termination petition, Mother and the child had four visits, Mother made twice-weekly phone calls to the child, and Mother paid $700.00 in child support.3
Mother admitted that she had previously been involved in illegal activity and drug use in the years following the child's birth. In 2011, Mother pleaded guilty to two drug-related crimes, for which she received a sentence of four years' probation. Mother later attended drug rehabilitation in 2012 for opiate use. Mother admitted, however, that she used heroin as late as 2015 when she agreed to place her middle child in the care of her paternal grandparents. During this time, Mother's husband was arrested, his probation violated, and he served some time in jail;4 Mother testified that she had "no clue" as to the charges against her husband that led to this jail sentence. The placement of Mother's second child continued well into 2016, when Mother testified that she attended a second program of drug rehabilitation. By the time of trial, however, the child had been returned to Mother's care for over a year, as Mother testified that both she and her husband were free from drugs and criminal activity for the year and a half prior to trial.5 At the time of trial, there was no dispute that Mother's husband was still serving a sentence of probation.
Mother agreed that other than the December 2016 wedding, she had no visitation with the child in the four months prior to the filing of the initial petition. Mother blamed the lack of visits variously on the restrictions placed on her visitation, the distance between her current home and the town where the child resides, her lack of reliable transportation during this time, and her high risk pregnancy. Mother admitted, however, that she was able to attend the December 2016 wedding and that she made other trips to the town where the child resides without making an effort to reach out to Father to schedule visitation.6 Mother also admitted that Father did not deny any specific requests made by her for visitation either during this period or in the years prior. According to Mother, her failure to visit with the child was the result of an effort to maintain her sobriety for a period of time before she attempted to renew visitation with the child.
According to both Mother and Maternal Grandmother, however, Mother and the child's relationship did not suffer due to Mother's absence. Instead, they testified that during the December 2016 wedding visit, the child acted loving toward Mother and his sibling.7 In the visits that followed the filing of the initial termination petition, Mother testified that the child exhibited a particularly close bond with Mother's younger children.
Following the conclusion of trial, the parties submitted proposed findings of fact and conclusions of law. The trial court entered a written memorandum opinion and order on November 2, 2017.The trial court ruled that Mother abandoned the child by willfully failing to visit and support the child in the four months prior to the filing of the initial termination petition, i.e., prior to February 6, 2017. The trial court ruled, however, that Appellants failed to present sufficient evidence that termination was in the child's best interests. As such, the trial court denied the petition to terminate Mother's parental rights.
The parties each raise several issues in this case, which we will address in the following order:
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