In re S.M.

• Decision Date: 15 January 2004
• Docket Number: No. M2003-00422-COA-R3-PT.,M2003-00422-COA-R3-PT.
• Parties: In re S.M.
• Court: Tennessee Court of Appeals

149 S.W.3d 632

In re S.M.

No. M2003-00422-COA-R3-PT.

Court of Appeals of Tennessee, at Nashville.

Assigned on Briefs January 7, 2004.

January 15, 2004.

Permission to Appeal Denied by Supreme Court October 4, 2004.

Joanie L. Abernathy, Franklin, Tennessee, for the appellant.

Lisa L. Collins, Nashville, Tennessee, for the appellee, The Association for Guidance, Aid, Placement and Empathy.

Susie Piper McGowan, Nunnelly, Tennessee, Guardian Ad Litem.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., joined. WILLIAM B. CAIN, J., filed a concurring opinion.

This appeal involves the termination of the parental rights of a biological father whose daughter was surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the biological father that it had custody of the child, the agency filed a petition in the Davidson County Juvenile Court seeking to terminate the father's parental rights. Following a bench trial, the juvenile court concluded that the biological father had abandoned his daughter and that the child's best interests required terminating her biological father's parental rights. We have determined that the agency has failed to present clear and convincing evidence that the biological father has abandoned his daughter.

I.

R.G.L. was born in Guadalajara, Mexico and migrated to Middle Tennessee in the late 1990s to join several members of his family who were already residing in Nashville.¹ He is twenty-three years old and works as a house painter. He also has a wife and a daughter who are now residing in Mexico. R.G.L. attended school in Mexico until he was fourteen, and he is not fluent in English.

Sometime in 2000, R.G.L. became romantically involved with C.M., a teenage Mexican emigre who was living in Nashville with another man. After R.G.L. discovered that C.M. was pregnant, he provided her approximately $1,000 for medical expenses and clothing, and eventually paid for her to travel to Chicago to be with her mother during the later stages of her pregnancy. However, R.G.L.'s relationship with C.M. was strained because she apparently declined to end her relationship with the other man with whom she had been living.

In September 2001, during her eighth month of pregnancy, C.M., without R.G.L.'s knowledge, made an arrangement with The Association for Guidance, Aid, Placement and Empathy ("A.G.A.P.E."),² a licensed child-placing agency in Nashville, to surrender her child for adoption. Christy Akers, a social worker employed by A.G.A.P.E., informed C.M. that the child could not be placed for adoption without the biological father's consent. For some reason, C.M. informed Ms. Akers that O.M.O. was the child's biological father and, at Ms. Akers's direction, obtained O.M.O.'s written waiver of his interest in the child. As far as the record shows, A.G.A.P.E. never undertook to independently verify that O.M.O. was the child's biological father.

C.M. gave birth to S.M. on September 28, 2001 in Nashville. The child's birth certificate did not list a father's name, and two days following the birth, A.G.A.P.E. took custody of the child and placed her with her pre-adoptive family.³ For its efforts, A.G.A.P.E. received a $1,000 fee for inspecting the adoptive parents' home, as well as a $9,500 placement fee. When R.G.L. inquired about the baby, C.M. and her mother told him that the child had died. R.G.L. did not pursue the matter.

On February 12, 2002, C.M. returned to A.G.A.P.E.'s office and told Ms. Akers that O.M.O. was not S.M.'s biological father. She revealed that R.G.L. was actually the child's father and provided Ms. Akers with his telephone number. Ms. Akers later characterized the news as "disconcerting" because she understood immediately that it would cause problems with the adoption. Ms. Akers, who does not speak Spanish, decided to call R.G.L. immediately. When she reached him by telephone on February 13, 2002, she told him that A.G.A.P.E. had custody of his daughter and that she wanted to talk with him as soon as possible. R.G.L. told her that he could not understand her and that she should talk with his brother who was more fluent in English. In a later telephone conversation with R.G.L.'s brother, Ms. Akers arranged for a meeting with R.G.L. on February 20, 2002.

R.G.L. and Ms. Akers met on February 20, 2002 at A.G.A.P.E.'s office. He was accompanied by John Faccadio, his employer.⁴ Ms. Akers readily observed that R.G.L.'s English was "limited," and so Mr. Faccadio translated for both of them as best he could. R.G.L. explained to Ms. Akers that C.M. had told him that S.M. had died and that he had not attempted to verify that information. He also provided details regarding his personal background and relationship with C.M. He told her about his migration from Mexico, his immigration status, and his employment and salary. R.G.L. also told Ms. Akers that his wife had discovered his relationship with C.M. and that she and their daughter had returned to Mexico in January 2002.

Ms. Akers informed R.G.L. that his daughter had not died and that she was, in fact, healthy and in A.G.A.P.E.'s custody.⁵ When R.G.L. asked to see his child, Ms. Akers told him that she could do nothing to assist him and that she could not provide him with any additional information. She told him that he needed to take steps if he desired to have a relationship with his daughter and that he should hire a lawyer and file a petition to establish parentage within thirty days. Ms. Akers did not inform R.G.L. of his parental rights or describe how R.G.L. could arrange for visitation or begin paying child support.

On the day after her meeting with R.G.L., Ms. Akers met with A.G.A.P.E.'s lawyer to decide what should be done about S.M. Terminating R.G.L.'s parental rights was one of the options discussed. Soon thereafter, A.G.A.P.E. decided to pursue terminating R.G.L.'s parental rights. After making the decision to file suit, A.G.A.P.E. opposed permitting R.G.L. to establish any sort of parental relationship with S.M. On March 12, 2002, less than thirty days following Ms. Akers's meeting with R.G.L., A.G.A.P.E. filed a petition in the Davidson County Juvenile Court to terminate R.G.L.'s parental rights on the ground of abandonment.

Within days after meeting with Ms. Akers, R.G.L. retained a lawyer to begin the proceedings to establish his parentage of S.M. as Ms. Akers suggested. On April 9, 2002, his lawyer filed a petition to establish parentage. Three days later, he filed an answer to A.G.A.P.E.'s petition denying that R.G.L. had abandoned the child. Following a hearing on April 12, 2002, the juvenile court entered an order on April 30, 2002, (1) appointing a guardian ad litem for S.M., (2) directing the parties to undergo genetic testing to determine S.M.'s parentage, and (3) setting a hearing on A.G.A.P.E.'s petition for September 18, 2002.

The results of the genetic tests were released in early June 2002 and demonstrated conclusively that R.G.L. was S.M.'s biological father. The trial was continued twice and was eventually rescheduled for December 16, 2002. In the meantime, A.G.A.P.E. filed two amended termination petitions because R.G.L. had neither visited nor supported S.M. since his February 2002 meeting with Ms. Akers. In late October or early December, R.G.L. became concerned that he had heard nothing from his lawyer about the status of his case and asked Mr. Faccadio and his brother to call Ms. Akers about his daughter. Ms. Akers informed Mr. Faccadio that no contact should be made directly and that all future communications regarding the child should be through the lawyers. Shortly thereafter, R.G.L. hired another lawyer who filed a petition requesting the juvenile court to set visitation and child support. The juvenile court denied the motion pending the hearing on A.G.A.P.E.'s termination petition.

At the December 16, 2002 hearing, R.G.L. presented evidence regarding his desire to gain custody of his daughter, his parenting skills, and the plans he had made to care for his daughter should the court grant him custody.⁶ A.G.A.P.E. asserted that R.G.L. had abandoned S.M. by (1) failing to reimburse C.M. for her birth expenses, (2) failing to pay financial support, and (3) failing to visit. It also asserted that placing S.M. with R.G.L. would not be in her best interests because she had been living with her pre-adoptive parents for one year and because R.G.L. was an undocumented worker subject to being deported. The transcript of the hearing reflects R.G.L.'s lack of command of English. An interpreter was used during the hearing, and on several occasions, R.G.L. stated that he did not understand the questions or the proceeding. On January 21, 2003, the juvenile court entered an order terminating R.G.L.'s parental rights with regard to S.M.

II.

A biological parent's⁷ right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions.⁸ Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn.1993); Ray v. Ray, 83 S.W.3d at 731. While this right is fundamental and superior to the claims of other persons and the government, it is not absolute. It continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn.2002); Stokes v. Arnold, 27 S.W.3d 516, 520 (Tenn.Ct.App.2000); O'Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn.Ct.App.1995).

Termination proceedings in Tennessee are governed by statute. Parties seeking to terminate a biological parent's parental rights must prove two things. First, they must prove the existence of at least one of the statutory grounds for termination.⁹ Tenn.Code...