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holding that the father's "pursuit of a judicial remedy is inconsistent with a finding that he willfully failed to . . . visit [the child]"
Summary of this case from In re S.P.Opinion
No. M2006-01889-COA-R3-PT.
April 11, 2007 Session.
Filed April 27, 2007.
Appeal from the Chancery Court for Bedford County No. 299 J.B. Cox, Chancellor.
Judgment of the Chancery Court Reversed.
Charles G. Wright, Jr., Chattanooga, Tennessee, for the appellant, Kenneth F.
Trisha L. Henegar, Shelbyville, Tennessee, for the appellees, Anita G. and Gary G.
WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.
OPINION
This appeal involves the termination of the parental rights of the biological father of a nine-year-old girl. The child's parents never married and eventually went their separate ways. The mother and her family wanted little to do with the father, and for approximately seven years the father neither visited nor financially supported the child. The father eventually filed a petition in the Chancery Court for Hamilton County seeking to establish visitation and support. This proceeding was preempted when the mother and her husband filed a petition in the Chancery Court for Bedford County to terminate the father's parental rights and to enable the mother's husband to adopt the child. Following a bench trial, the trial court in Bedford County found that the father had abandoned his daughter by willfully failing to support or visit her and that terminating the father's parental rights was in the child's best interests. The father has appealed. We have determined that the mother and the stepfather have failed to present clear and convincing evidence that the father has abandoned the child in light of the fact that he was actively pursuing a judicial resolution of visitation and support issues during the four months immediately preceding the filing of the termination petition.
I.
Anita G. and Kenneth F. lived together in Hamilton County for three to four years. In October 1997, Anita G. gave birth to their daughter, Chelbie F. Their relationship was unstable due to Kenneth F.'s gambling and abuse of drugs, and Anita G.'s abuse of alcohol. As a result, the parties broke up and reconciled several times. On June 1, 1998, during one of the occasions when Anita G. had returned to Bedford County to live with her parents, Kenneth F. filed a petition in the Chancery Court for Hamilton County seeking to establish his parentage and to establish his visitation rights and support obligations. The petition alleged that Anita G. would not allow him to visit his daughter and had refused to accept support for the child.
Anita G. and Kenneth F. reconciled, and Anita G. moved back to Hamilton County before the court acted on Kenneth F.'s petition. Accordingly, because the parties had agreed to resume their shared parenting, the court did not establish a parenting plan or set support. The Chancery Court for Hamilton County did however enter a consent order declaring Kenneth F. to be Chelbie F.'s biological father.
The parties soon broke up again after Anita G. became convinced that Kenneth F. was still gambling. Anita G. and Chelbie F. moved back to Bedford County to live with Anita G.'s parents. When Kenneth F. attempted to visit Anita G. in Bedford County, Anita G.'s father forced him to leave after the conversation became "abusive." The parties' final effort to reconcile occurred during an October 1999 visit in Chattanooga for Chelbie F.'s second birthday. Anita G. decided to "move on" after Kenneth F. appeared to be more interested in his relationship with her than his relationship with his daughter. Anita G. decided that she wanted Kenneth F. to stay out of Chelbie F.'s life. Accordingly, after the October 1999 visit, Anita G. neither sought nor desired financial support from Kenneth F. and did not promote visitation between Kenneth F. and Chelbie F.
On March 15, 2000, Kenneth F. filed another petition in the Chancery Court for Hamilton County seeking to modify the earlier decree establishing his parentage. He alleged that the circumstances had changed and requested the court in Hamilton County to establish his visitation rights and to prescribe his support obligations. Apparently efforts to serve Anita G. were unsuccessful, and this petition was dismissed for failure to prosecute on August 28, 2001.
In the meantime, Anita G. and Chelbie F. continued to live with Anita G.'s parents until December 2002 when Anita G. purchased a house of her own in Shelbyville. On May 8, 2004, Anita G. married Gary G. Anita G. and her husband continued to live in the house that she had purchased in December 2002.
Kenneth F. eventually discovered where Anita G. was living, and on March 22, 2005, he filed a third petition in the Chancery Court for Hamilton County requesting the court to define his visitation rights and to prescribe his child support obligation. On this occasion, Anita G. was served with process. At some point during the proceedings in Hamilton County, the trial court observed that its consideration of Kenneth F.'s petition could be preempted if Anita G. and Gary G. filed a petition to terminate Kenneth F.'s parental rights and to enable Gary G. to adopt Chelbie F. This observation was not lost on Anita G., and on October 7, 2005, while the parties were appearing in court in Hamilton County, Anita G. and Gary G. filed a petition in the Chancery Court for Bedford County to terminate Kenneth F.'s parental rights and to enable Gary G. to adopt Chelbie F. The Chancery Court for Hamilton County stayed its consideration of Kenneth F.'s petition pending the completion of the proceedings in the Chancery Court for Bedford County.
The litigation then shifted to Bedford County. Anita G. and Gary G. sought to terminate Kenneth F.'s parental rights on the ground that he had abandoned Chelbie F. by willfully failing to support or visit her during the four months immediately preceding the filing of their petition in Bedford County. The trial court in Bedford County conduced a bench trial on July 7, 2006. Anita G. and Gary G. presented evidence proving that Kenneth F. had not actually visited Chelbie F. since October 1999 and that he had provided no financial support during that period of time. Kenneth F. provided only minimal opposition to the evidence regarding his failure to visit or to support Chelbie F. However, he asserted that Anita G. had rebuffed his efforts to visit Chelbie F. and had spurned his efforts to provide financial support. He also asserted that Anita G.'s family had actively tried to conceal her whereabouts from him.
The trial court filed a final order terminating Kenneth F.'s parental rights on August 4, 2006. The court stated that Anita G. and Gary G. had proved by clear and convincing evidence that Kenneth F. had willfully failed to visit or provide support for Chelbie F. during the four months immediately preceding the filing of the petition for stepparent adoption. The court also concluded that Anita G. and Gary G. had proved by clear and convincing evidence that terminating Kenneth F.'s parental rights would be in Chelbie F.'s best interests. Kenneth F. has appealed from the August 4, 2006 order.
The trial court explicitly stated in its order that it did not believe Kenneth F.'s testimony that he had done everything he could to be a part of Chelbie F.'s life. While the order did not address the credibility of Kenneth F.'s testimony regarding his efforts to provide financial support for Chelbie F., the court stated during its ruling from the bench that it found that testimony incredible as well.
II. T HE STANDARD OF REVIEW
A biological parent's 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. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2059-60 (2000); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); In re Giorgianna H., 205 S.W.3d 508, 515 (Tenn.Ct.App. 2006). While this right is fundamental and superior to the claims of other persons, it is not absolute. State Dep't of Children's Servs. v. C.H.K., 154 S.W.3d 586, 589 (Tenn.Ct.App. 2004). 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); In re M.J.B., 140 S.W.3d 643, 652-53 (Tenn.Ct.App. 2004); In re S.M., 149 S.W.3d 632, 638-39 (Tenn.Ct.App. 2004).
U.S. Const. amend. XIV, § 1; Tenn. Const. art. I, § 8.
Termination proceedings in Tennessee are governed by statute. Parties who have standing to seek the termination of 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. Tenn. Code Ann. § 36-1-113(c)(1) (Supp. 2006); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003). Second, they must prove that terminating the parent's parental rights is in the child's best interests. Tenn. Code Ann. § 36-1-113(c)(2); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re H.E.J., 124 S .W.3d 110, 113 (Tenn.Ct.App. 2003); In re A.W., 114 S.W.3d 541, 545 (Tenn.Ct.App. 2003).
The statutory grounds for terminating parental rights are found in Tenn. Code Ann. § 36-1-113(g) (Supp. 2006).
The factors to be considered in a "best interests" analysis are found in Tenn. Code Ann. § 36-1-113(i).
No civil action carries with it graver consequences than a petition to sever family ties irretrievably and forever. Tenn. Code Ann. § 36-1-113(l)(l); M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S. Ct. 555, 565 (1996); In re Knott, 138 Tenn. 349, 354-55, 197 S.W. 1097, 1098 (1917); In re Giorgianna H., 205 S.W.3d at 515. Because the stakes are so profoundly high, Tenn. Code Ann. § 36-1-113(c)(1) requires persons seeking to terminate a biological parent's parental rights to prove the statutory grounds for termination by clear and convincing evidence. This heightened burden of proof minimizes the risk of erroneous decisions. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn.Ct.App. 2006); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, In re Marr, 194 S.W.3d 490, 496 (Tenn.Ct.App. 2005), and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re K.B.H., 206 S.W.3d 80, 84 (Tenn.Ct.App. 2006); In re S.M., 149 S.W.3d at 639. It produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn.Ct.App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App. 2001).
Because of the gravity of their consequences, proceedings to terminate parental rights require individualized decision making. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.O., 173 S.W.3d 13, 19 (Tenn.Ct.App. 2005). Accordingly, Tenn. Code Ann. § 36-1-113(k) explicitly requires courts terminating parental rights to "enter an order that makes specific findings of fact and conclusions of law" whether they have been requested to do so or not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn.Ct.App. 2005); In re S.M., 149 S.W.3d at 639; In re M.J.B., 140 S.W.3d at 653-54. These specific findings of fact and conclusions of law facilitate appellate review and promote just and speedy resolution of appeals. In re Marr, 194 S.W.3d 490, 496 (Tenn.Ct.App. 2005). When a lower court has failed to comply with Tenn. Code Ann. § 36-1-113(k), the appellate courts must remand the case with directions to prepare the required findings of fact and conclusions of law. In re D.L.B., 118 S.W.3d at 367; In re Giorgianna H., 205 S.W.3d at 516; State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d at 762.
The "clear and convincing evidence" burden of proof required by Tenn. Code Ann. § 36-1-113(c)(1) requires the reviewing courts to distinguish between the specific facts found by the trial court and the combined weight of those facts. In re Tiffany B., No. M2006-01569-COA-R3-PT, 2007 WL 595369, at *6 (Tenn.Ct.App. Feb. 26, 2007) perm. app. filed (Tenn. Mar. 19, 2007); In re R.M.S., No. M2005-01979-COA-R3-PT, 2006 WL 3827322, at *24 (Tenn.Ct.App. Dec. 28, 2006) perm. app. denied (Tenn. Mar. 5, 2007); In re Audrey S., 182 S.W.3d 838, 861 n. 26 (Tenn.Ct.App. 2005). Accordingly, using the standard of review in Tenn. R. App. P. 13(d), we must first determine whether the facts found by the trial court are supported by a preponderance of the evidence. In re F.R.R., 193 S.W.3d at 530; In re Tiffany B., 2007 WL 595369, at *6. Then we must determine whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, clearly and convincingly establish all the elements required to terminate a biological parent's parental rights. In re Giorgianna H., 205 S .W.3d at 516; State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d at 762; State Dep't of Children's Services v. T.M.B.K., 197 S .W.3d 282, 288 (Tenn.Ct.App. 2006). A trial court's specific findings of fact are entitled to a presumption of correctness under Tenn. R. App. P. 13(d) unless the preponderance of the evidence is otherwise; however, a trial court's conclusion that clear and convincing evidence has been presented warranting the termination of a parent's parental rights is not. In re Tiffany B., 2007 WL 595369, at *6.
III. T HE SUFFICIENCY OF THE EVIDENCE OF KENNETH F.'S ABANDONMENT
The pivotal issue in this case is whether a parent who, during the four months immediately preceding the filing of a petition to terminate his parental rights, is actively pursuing a court order to establish visitation rights and support obligations has willfully abandoned the child as proscribed in Tenn. Code Ann. § 36-1-113(g)(1). Kenneth F. asserts that such parents have not willfully abandoned the child because they have turned to the courts for assistance. Anita G. and Gary G. assert that abandonment should be determined based on actual support and visitation, not on other judicial proceedings. We have determined that Kenneth F. has the better argument.
The concept of abandonment for the purposes of Tenn. Code Ann. § 36-1-113(g)(1) is defined by statute, not by judicial fiat. The General Assembly has expressed its desire with unmistakable clarity that the courts should adhere strictly to its statutory definition of "abandonment." Tenn. Code Ann. § 36-1-102(1)(G). Thus, the State's public policy is reflected in these statutes, and, barring a constitutional infirmity, the courts must apply the statutes according to their plain meaning. Tenn. Waste Movers, Inc. v. Loudon, 160 S.W.3d 517, 519 (Tenn. 2005); Frazier v. East Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001).
Tenn. Code Ann. § 36-1-102((1)(G) states, in part, that "`[a]bandonment' and `abandonment of an infant' do not have any other definition except that which is set forth in this section, it being the intent of the general assembly to establish only grounds for abandonment by statutory definition."
Tenn. Code Ann. § 36-1-102(1)(A)(i) defines "abandonment" to include the following conduct:
For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child.
The Tennessee General Assembly has also defined "willfully failed to visit" as "the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation." Tenn. Code Ann. § 36-1-102(1)(E). Similarly, it has defined "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support" to mean "the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child." Tenn. Code Ann. § 36-1-102(1)(D). As expressly indicated in the statute, the pivotal time period for determining abandonment under Tenn. Code Ann. § 36-1-102(1)(A)(i) is the four-month period immediately preceding the filing of the termination petition. See e.g., In re Audrey S., 182 S.W.3d at 865; In re M.C.G., No. 01A01-9809-JV-00461, 1999 WL 332729, at *9 (Tenn.Ct.App. May 26, 1999) (No Tenn. R. App. P. 11 application filed).
Tenn. Code Ann. § 36-1-102(1)(C) defines "token visitation" as "visitation, under the circumstances of the individual case, [that] constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child."
Tenn. Code Ann. § 36-1-102(1)(B) provides that "`token support' means that the support, under the circumstances of the individual case, is insignificant given the parent's means."
Anita G. and Gary G. seek to terminate Kenneth F.'s parental rights on the ground of abandonment as proscribed by Tenn. Code Ann. § 36-1-113(g)(1). Consequently, the courts must focus on Kenneth F.'s conduct during the four months immediately preceding the October 7, 2005 petition to terminate his parental rights. The trial court concluded that Anita G.'s parents had not prevented Kenneth F. from visiting Chelbie F. during this period and that Kenneth F. had not attempted to visit Chelbie F. during this period. Likewise the trial court found that Kenneth F. had not provided any financial support for Chelbie F. during this period. We decline to second-guess the trial court's conclusions regarding Kenneth F.'s veracity, and we find that the record shows clearly and convincingly that Kenneth F. did not actually visit or provide financial support for Chelbie F. during the four months immediately preceding the filing of the petition to terminate his parental rights.
The trial court stated explicitly that it disbelieved Kenneth F.'s testimony that he had attempted to visit Chelbie F. during the four months immediately preceding the filing of the petition to terminate his parental rights.
T he trial court stated explicitly that it disbelieved K enneth F.'s testimony that he had attempted to send money to Anita G. for Chelbie F.'s support.
It is undisputed, however, that Kenneth F. filed a petition in the Chancery Court for Hamilton County on March 22, 2005 seeking the court's assistance in establishing his visitation and his support obligation. It is also undisputed that Anita G. had been served with process and that Kenneth F. was actively pursuing his petition when Anita G. and Gary G. filed the petition to terminate his parental rights. In fact, it is undisputed that the parties were in the middle of the hearing on Kenneth F.'s petition when word came that the petition to terminate his parental rights had been filed in Bedford County and that the proceedings in Hamilton County were immediately suspended as a result of the filing of the petition in Bedford County.
Based on these facts, we must determine whether Kenneth F. can be found to have willfully abandoned Chelbie F. when he was actively litigating a custody and support petition at the time the petition to terminate his parental rights was filed. The Tennessee Supreme Court has recently addressed this question in In re Adoption of A.M.H., 215 S.W. 3d 793 (Tenn. 2007). In that case, the court concluded that redirection of "efforts at maintaining a parent-child relationship to the courts" is inconsistent with a finding of "`willful failure to visit' as a ground for abandonment." In re Adoption of A.M.H., 215 S.W. 3d at 810. Based on our reading of the Tennessee Supreme Court's decision in In re Adoption of A.M.H., we have no reason to conclude that the same principle should not be applied to willful failure to support claims when a party is actively seeking to establish a child support payment.
There are, to be sure, differences between the facts of this case and the facts of In re Adoption of A.M.H. The biological parents in In re Adoption of A.M.H. had attempted to visit their child just five days before the beginning of the pivotal four-month period and had been ordered by the police to leave and to never return again. There is no evidence in the case before us of recent efforts to visit or acrimonious confrontations shortly before or during the four-month period. However, it is undisputed that Anita G. did nothing to foster or encourage visitation by or support from Kenneth F. In fact, she conceded that ever since their final visitation in October 1999, she did not want Kenneth F. to visit Chelbie F. and that she did not want to accept any financial support from him. She had, in her own words, decided to "move on." Accordingly, the facts of this case and those of In re Adoption of A.M.H., are similar in that they involve circumstances in which the child's custodians did not favor and had not encouraged the development of a relationship between the biological parent and the child.
In re Adoption of A.M.H., 215 S.W.3d at 801-02, 810.
The Tennessee Supreme Court's decision in In re Adoption of A.M.H. controls the outcome of this case. Kenneth F. had filed and was pursuing a petition to establish his visitation rights and support obligations before the petition to terminate his parental rights was filed. His pursuit of a judicial remedy is inconsistent with a finding that he willfully failed to support or visit Chelbie F. during the four months immediately preceding the filing of the petition.
Reaching a contrary conclusion would devalue Tennessee's laws and judicial procedures. One of the principle purposes of the law is to provide a process for non-violent resolution of disputes. In fact, "[t]he most significant court function is dispute resolution; courts are designed to resolve disputes so that the litigants do not resort to private remedies, including violence, to vindicate their interests."
See e.g., Lynn v. Roberts, No. 01-3422-MLB, 2006 WL 2850273, at *7 (D. Kan. Oct. 4 2006) ("[O]ne of the principal purposes of our court systems . . . [is] to provide a safe, effective forum for resolving disputes. . . . The courts are supposed to be a place where litigants can avoid the sort of violent means of dispute resolution, such as feuds, duels, and bra w ls, th at ha ve p lag ue d [h um an ity] thro u ghou t re co rd e d histo ry."); B arb a ra C o se n s, Truth or C onse quences: Settling Water Disputes in the Face of Uncertainty, 42 Idaho L. Rev. 717, 762 (2006); Frank J. Garcia, Trade and Justice: Linking the Trade Linkage Debates, 19 U. Pa. J. Int'l Econ. L. 391, 394-95 (1998); Susan R. Martyn, Justice and Lawyers: Revising the Model Rules of Professional Conduct, 12 No. 4 Prof. Law. 20 (2000) (Westlaw).
Philip A. Talmadge, Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems, 22 Seattle U. L. Rev. 695, 697 (1999).
Children evoke strong emotions, and rightly so. Disputes and disagreements regarding their care and support are often sharp and bitter, and they are among the most sensitive matters that parents, lawyers, and courts must face. When these disputes arise and the parents are unable to resolve them on their own, the parents should be encouraged, rather than discouraged, to seek relief from the courts. In these circumstances, judicial proceedings are preferable to other strategic behavior or self-help that can lead to confrontation, further hard feelings, and other potentially volatile results that are not in the best interest of the children or the parents.
This record reflects that Anita G. had grounds to be aggrieved by Kenneth F.'s conduct during the time they lived together in Hamilton County and up until their final separation in October 1999. However, whatever Kenneth F.'s faults and deficits may be, it is unescapable that he turned to the courts several times between 2000 and 2005 for assistance in establishing his visitation rights with Chelbie F. and in establishing his financial support obligation. Kenneth F. filed his most recent petition more than six months before Anita G. and Gary G. filed their petition to terminate his parental rights. Because of the undisputed evidence that Kenneth F. was actively pursuing this litigation during the four months preceding the filing of the petition to terminate his parental rights, In re Adoption of A.M.H. requires us to hold that the record does not contain clear and convincing evidence that he has abandoned Chelbie F. under Tenn. Code Ann. § 36-1-113(g)(1).
IV.
The order of August 4, 2006, terminating Kenneth F.'s parental rights with regard to Chelbie F. is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal to Anita G. and Gary G. for which execution, if necessary, may issue.