Posted by: koherston | February 21, 2013

Termination of Parental Rights Not in Child’s Best Interest in Murfreesboro: In re Madilene G.R.

Facts: After a brief sexual relationship with Father ended, Mother discovered she was pregnant. When she informed Father of the pregnancy and her belief that he was the biological father, Father responded stating he was skeptical as to the paternity of Child. Mother requested no support from Father for any pregnancy-related expenses during her pregnancy and Father offered no support.

Knoxville divorce lawyerDuring the sixth or seventh month of her pregnancy, Mother contacted Mr. and Mrs. H. and presented the idea of them adopting Child. Mother informed them that Father was not interested in being a parent and would not oppose the adoption. Neither Mother nor Mr. and Mrs. H informed Father of their plan for a private adoption. Mr. and Mrs. H were present at the hospital and when Child was released they took Child home with them.

Shortly thereafter, Mother surrendered her parental rights to Child. At the surrender, Mother provided the name and phone number of Father and the address of Father’s parents. That same day, the trial court entered an order of partial guardianship granting custody to Mr. and Mrs. H (hereinafter referred to as “the Guardians”). Father received no notice of the hearing or the order of guardianship.

Father was contacted by the Guardians’ attorney. Father requested a paternity test to determine if he was Child’s biological father. By agreement, a DNA test was performed. The test results confirmed that Father was the biological parent.

Father filed a Rule 60 Motion to Set Aside the Order of Partial Guardianship seeking to be named the guardian and to obtain custody of Child. On the same day, the Guardians filed a Petition for Adoption and Termination of Parental Rights.

After a trial, the trial court denied Father’s Rule 60 motion and granted the petition filed by the Guardians to terminate Father’s parental rights and adopt Child. As grounds for terminating Father’s rights, the trial court found, inter alia, that for more than four consecutive months prior to the filing of the petition, Father willfully failed to support Child and only made minimal attempts to visit or have any relationship with Child. The trial court also found termination was in Child’s best interest. Thus, the trial court terminated Father’s parental rights. Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

Willful failure to support. Tennessee Code Annotated § 36-1-102(1)(A)(i) provides that, for purposes of terminating parental rights, “abandonment” means:

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 Court concluded:

The record reflects that Father was gainfully employed during the four months preceding the filing of the petition to terminate his parental rights, he knew the child was expected to be born [], he knew how to contact Mother at all times relevant to these proceedings, and he had the ability to financially support the child but failed to do so.

Based on the foregoing, the Court voted 2-1 to find that the Guardians had proven this ground for terminating Father’s parental rights. Judge Cottrell dissented from this finding, writing that “[t]he evidence set out in the majority opinion does not, in my opinion, meet the Constitutionally required standard [of clear and convincing evidence].”

Child’s best interests. Once a statutory basis for termination has been found, the trial court is to engage in a best interest analysis using the statutory factors set forth at Tennessee Code Annotated § 36-1-113(i)(1)-(9). The nine statutory factors are not exclusive or exhaustive, and other factors may be considered by the court. Moreover, not every statutory factor need apply and a finding of only a few significant factors may be sufficient to justify a finding that termination of the parent-child relationship is in the child’s best interest. Finally, the child’s best interest is to be determined from the perspective of the child rather than the parent.

While the trial court cited a variety of factors in support of its conclusion, they all revolved around the concept that Father had never visited Child and had no relationship with Child.

The Court was clearly troubled by the trial court’s reasoning, stating:

The trial court is correct that Father has never visited the child, but we find this adverse ruling perplexing for it was the Guardians and the trial court who refused to allow Father to have any visitation whatsoever at anytime. . . . [W]hen he called Mother about the child she only told him that she no longer had custody and refused to tell him who did or how to contact them. . . .

Father was not even permitted to have supervised visitation in spite of the fact there was no evidence that Father had a mental or emotional status that would be detrimental to the child, there was no evidence the physical environment of Father’s home was not healthy or safe, there was no evidence of criminal activity in his home, and there was no evidence of abuse of alcohol or use of controlled substances as may render Father unable to care for the child in a safe and stable manner. All of these factors are to be considered when parental visitation is at issue and yet, even though it was stipulated that Father was the child’s father, he was never permitted to have any contact of any kind at any time with his child. . . .

The record readily reveals that a cloak of secrecy was cast over the guardianship proceeding by Mother and the Guardians and yet this secret proceeding is being used by the Guardians to establish that it is in the child’s best interest to terminate Father’s parental rights because he did not visit the child prior to the creation of the guardianship.

Ever since the order of guardianship was entered, Father’s repeated attempts to visit the child were denied by the trial court upon the Guardians’ repeated objections and yet, the fact Father did not arrange visitation prior to the guardianship, when the child was only one month old, is the alpha and omega upon which the trial court’s best interests conclusion is based.

Based on the foregoing, a unanimous Court held the evidence did not clearly and convincingly establish that it was in Child’s best interest to terminate Father’s parental rights. The case was remanded to the trial court with instructions to dismiss the Guardians’ petition.

In re Madilene G.R. (Tennessee Court of Appeals, Middle Section, January 10, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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