In re West
| Decision Date | 24 March 2015 |
| Docket Number | No. W2014-00850-COA-R3-PT,W2014-00850-COA-R3-PT |
| Parties | IN RE BROOKELYN W. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Shelby County
Walter L. Evans, Chancellor
In this termination of parental rights case, mother and step-father appeal the trial court's decision to set aside a decree of adoption entered by default, as well as the trial court's subsequent finding that they failed to prove grounds for the termination of biological father's parental rights. We affirm the trial court's decision to set aside the adoption decree, but reverse the trial court's determination that mother and step-father failed to prove grounds for termination. Instead, we conclude that clear and convincing evidence exists to show that biological father abandoned the child by willfully failing to visit and support the child. As such, we remand to the trial court for a determination of whether termination is in the child's best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part; and Remanded
Bradley C. Ball, Memphis, Tennessee, for the appellants, Joseph C.C. and Shanna R.C.
No brief filed by the appellee, Evan R.W.
OPINIONPetitioner/Appellant Shanna R.C. ("Mother") and Respondent Evan R.W.(Father") had one child together, Brookelyn ("the child"), born in 2007.1 The parties, who were never married, separated in 2009, and Mother took physical custody of the child. At that time, the parties did not seek court intervention to determine any visitation or custody matters. Mother, however, allowed Father to visit the child at the home of the child's paternal grandmother until June 2010, when Mother grew concerned for the child's safety due to a lack of stability in grandparents' home.2 From June 2010 until the filing of the underlying petition in this case, Father had no visitation with the child and generally paid no support.3
On March 26, 2012, Mother and Father appeared in the Tipton County Chancery Court at the request of the Tipton County District Attorney General's office. At this hearing, the Tipton County Juvenile Court entered an agreed order requiring Father to place the child on his health insurance policy. The Tipton County Chancery Court order indicated that it provided only for the medical insurance of the child, and that any further support requirements would be determined by the parties outside of court. On July 10, 2012, Father filed a Petition to Establish Parentage and Visitation with the child in the Tipton County Juvenile Court. The petition asked the court to establish a visitation schedule and set child support.
Mother subsequently married Petitioner/Appellant Joseph C.C. ("Step-Father" and together with Mother, "Petitioners") on August 26, 2012, and the Petitioners filed a Petition to Terminate Father's Parental Rights on August 27, 2012, on the grounds of abandonment by willful failure to visit and/or willful failure to support.4 The petition asked that Step-Father be permitted to adopt the child. Father was undisputedly served and appeared before the trial court, where he was informed that he had thirty days to obtain an attorney. Father, however, failed to respond to the petition, and a default judgment was entered against Father. Father subsequently filed an answer to the petition on December 31, 2012, and a voluntary acknowledgment of paternity on January 7, 2013. The trial court nevertheless entered an order granting Petitioners' request for termination and adoption on January 7, 2013.
On January 11, 2013, Father, represented by different counsel, filed a motion to set aside the final decree. Father asserted that his delay in responding to the termination petition was due to confusion with his previous attorney. Father also submitted an affidavit denying that he had willfully failed to visit and/or support the child. The trial court eventually granted Father's request to set aside the termination and adoption decree on September 10, 2013. The child was appointed a Guardian Ad Litem, and the parties proceeded to discovery. Thereafter, Father also filed a motion to be allowed some visitation with the child.
Prior to trial, Father filed a Statement of Admissions in the trial court, in which he generally admitted to his lack of visitation, his failure to even attempt visitation, his criminal record, and the fact that he was aware of Mother's address. The trial court held a trial on Petitioners' termination petition on February 27, 2014. Petitioners and their witnesses generally testified that Father made no attempt to visit or support the child during the four months before the filing of the petition, or at any time after June 2010. In addition, the witnesses testified that the child does not know Father and that she is in a happy and stable home with Petitioners.
As can be expected, much of the testimony concerned the circumstances surrounding Father's alleged failure to visit and support the child. Mother testified that she left Father because of his violence and alcoholism, which caused her to question both her own and the child's safety when around Father. Mother testified, however, that despite her concerns, Father still had regular visitation with the child in the months after the parties' separation. Indeed, after the parties' separation, it was undisputed that Mother regularly drove the child from Shelby County to paternal grandmother's home in Tipton County, where Father was permitted to visit with the child. Once Mother grew concerned about the lack of stability in paternal grandmother's home, however, Mother stopped taking the child to the home of paternal grandmother. Mother testified that she never denied any request by Father to visit the child after the child's visits to paternal grandmother were terminated;5 instead, Father simply never requested visitation with the child or inquired about the child in any way until the filing of his visitation petition in July 2012. Mother submitted phone records to show that Father had not called Mother during the months preceding the filing of the termination petition.
Mother admitted, however, that an incident occurred in January 2011, which caused Mother to obtain an ex parte order of protection against Father on January 5,2011. Specifically, Mother testified that while she was driving around the area of her home in Shelby County in January 2011, Father saw Mother in her car on his way to stop by Mother's home unannounced. When Father saw Mother driving, he followed her and honked his horn to get Mother's attention. Mother then drove to the nearby police station and Father did not continue to follow her. Mother testified that she was frightened by the incident due to Father's history of domestic violence. Father did not deny that this incident occurred, but characterized it as a friendly visit in an attempt to see the child while he was in Memphis on other, unrelated, business. Father did not deny that he gave Mother no notice regarding his intent to come by Mother's home. The order of protection was dissolved three months after its issuance, and no other orders were ever entered preventing Father from having contact with Mother or the child.
Mother further testified Father paid no monetary support for the child since the parties' separation. In addition, since at least June 2010, the child received no gifts or in-kind support of any kind from Father. Mother admitted at trial that she and the child had moved on from Father, and as such, she did not want support from Father. However, Mother testified that she never refused to accept any support from Father; instead, none was ever offered. Mother also testified that Father eventually placed the child on his health insurance in November 2012, but that she did not receive the child's insurance card from Father until January 2013.
At the time of trial, Father was married with two children and had been employed with Cooper Moving since Fall 2010. Father admitted that in addition to the domestic violence calls during the parties' relationship, the police had also been called to his current home for domestic violence issues. Father further admitted that after the parties' separation, he continued to call Mother, often drunk and angry. Father stated, however, that Mother had "instigated" these episodes.
Father admitted that he had no visitation with the child in the four months preceding the filing of the Petition, although he had a job, a cell phone, and transportation. While Father placed the blame for the lack of visits on Mother's refusal to cooperate with him, Father admitted that he did not contact Mother to arrange visitation at any time after June 2010, other than his ill-advised trip to Mother's home. Father testified that other than his petition for visitation, he did nothing to request visitation in the months leading up to the filing of the termination petition. Indeed, Father's own Statement of Admissions states that he "has not made any attempts to visit with the child since early 2010." Father indicated that some of this failure was due to Mother's move from Tipton County to Shelby County; however, Father admitted in his Statement of Admissions to the trial court that he was aware of Mother's address "[s]ince the parties' divorce."6Father also admitted that he never tried to request visitation by sending a letter to Mother's home.
Father characterized Mother's refusal to allow the child to visit with paternal grandmother as due to Father's new romantic relationship; however, Father did not deny Mother's allegations regarding the instability in paternal grandmother's home. Father finally admitted that during the four months preceding the termination Petition, Mother did not "do anything to keep [him] from having visitation" with the child.
Father...
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