                                                                                                      06/26/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    October 17, 2017 Session

                                    IN RE KIRA D., ET AL.1

                  Appeal from the Chancery Court for Hawkins County
                   No. 2015-AD-41    Douglas T. Jenkins, Chancellor


                                 No. E2017-00545-COA-R3-PT


This appeal involves the filing of a termination petition by the mother and stepfather
against the father of two minor children. The court denied the termination petition but
appointed the stepfather as the permanent guardian of the children. The father appeals.
We vacate the order of permanent guardianship.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Vacated; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J. and THOMAS R. FRIERSON, II, J., joined.

Amy Kathleen Skelton and Whitney Bailey, Rogersville, Tennessee, for the appellant,
Jerry W. D.

Daniel G. Boyd, Rogersville, Tennessee, for the appellee, Jeremy A. J.

                                             OPINION

                                     I.      BACKGROUND

       Kira and Keatan D. (collectively “the Children”) were born of the marriage
between Amanda J. (“Mother”) and Jerry D. (“Father”) in November 2003 and May
2008, respectively. Mother and Father were divorced by order of the court, entered on
July 6, 2013, pursuant to a marital dissolution agreement with an agreed upon parenting
plan. Pursuant to the agreement, Mother was identified as the primary residential parent,


1
  This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
while Father was awarded reasonable visitation and tasked with remitting child support in
the amount of $457 per month.

        Mother married Jeremy J. (“Stepfather”) on February 7, 2014. The Children have
resided with Mother and Stepfather since that time. Mother was diagnosed with terminal
cancer, namely Stage 4 Adenocarcinoma, months later. Thereafter, Mother and
Stepfather filed a petition to terminate Father’s parental rights on November 30, 2015,
alleging abandonment for failure to visit and to support. Father denied the allegations,
claiming that he did not pursue visitation in an effort to maximize the Children’s time
with Mother before her passing. He stated that he remained in contact with them and was
available, if needed. He conceded that he failed to remit support during the relevant time
period but claimed that he believed the support payments had been deducted from his
paycheck. He asserted that he remedied the issue. He sought custody of the Children in
light of the severity of Mother’s illness.

       The case proceeded to a hearing on December 19, 2016, at which several
witnesses testified. Mother confirmed her illness and explained that her remaining time
was uncertain. She claimed that Father had not visited the Children or provided child
support in the four months preceding the filing of the termination petition, namely July
30 through November 29, 2015. Relative to visitation, she testified that he was entitled to
co-parenting time pursuant to the parenting plan. She noted that he agreed to a co-
parenting schedule consisting of every other weekend during the school year and every
other week during the summer. She asserted that Father never called or attempted to
schedule visitation during the relevant time period. She acknowledged that Father may
have been present at a wedding on September 5 that the Children attended but claimed
that any interaction was not scheduled by him or arranged in advance. She agreed that he
also spoke with Kira through text messages. She explained that his communications were
vague expressions of love and concern and that he did not even celebrate Kira’s birthday
with her on November 7. She further claimed that he also had not attended the
Children’s extracurricular activities or school functions since the time of the divorce. She
denied that Father ever advised her that he was not pursuing visitation with the Children
in an effort to maximize her time with them before her passing.

      Relative to child support, Mother testified that she did not receive any support
payments pursuant to the parenting plan during the relevant time period, whether token or
otherwise. She identified his summary of payments through the Child Support
Enforcement Services that confirmed her claim. She agreed that he had remitted support
in the total amount of approximately $14,642 from September 30, 2013, through
December 5, 2016.



                                            -2-
       Mother described a loving relationship between the Children and Stepfather and
claimed that he became the father that they needed. He provided for them financially and
emotionally, participated in their activities, and took them to and from school. She
questioned Father’s ability to care for the Children financially and provided that he was
simply unable to provide them with the stability they would need once she was no longer
living. She agreed that Father was present in the Children’s lives since their birth and in
the years prior to their divorce. She explained that he served as a father figure prior to
the divorce but claimed that he no longer has a relationship with them. She
acknowledged that the Children maintained a relationship with Father’s stepmother, who
visited with the Children approximately once every six months.

       Stepfather testified that he spoke with Father on one occasion during the relevant
time period. He explained that he saw him in a parking lot and asked, “Where in the
world have you been?” Father told him that he had been working. He stated that Father
retrieved the Children the next day and exercised co-parenting time for approximately
four hours. He agreed that Father was also present at a wedding the Children attended.
He confirmed that Father did not remit child support during the relevant time period.

        Stepfather described a loving relationship between himself and the Children and
identified several pictures of him with the girls doing various activities. He claimed that
he was willing to provide for them financially and emotionally and to serve as their
father. He provided that the Children enjoyed a healthy relationship with his family and
considered his family as part of their family.

        Stepfather testified that Father’s involvement with the Children has been
“sporadic” and never by any set schedule. He noted that Father also did not attend
extracurricular activities. He stated that Father’s participation with the Children declined
prior to Mother’s diagnosis. However, he agreed that Father assisted with the Children
on at least one occasion when Mother was in the hospital at the time of her diagnosis.

       Kira, who was 13 years old at the time of the hearing, testified outside of the
presence of her parents and Stepfather. She described a loving relationship with
Stepfather and expressed a desire to remain with him. She also stated that she would like
to maintain a relationship with Father, if possible.

        Father testified that he exercised his co-parenting time prior to Mother’s diagnosis
but that after her diagnosis, he advised the Children and Mother that he would forego
visitation in an attempt to allow them to maximize their time with her before her passing.
He identified text messages between himself and Kira in which he expressed his love and
concern for her and Keatan and even asked if they would like to visit with him in August
2015. He noted that Kira rejected his offer, claiming that she had plans to attend a
                                            -3-
sleepover. He stated that his attempts to schedule visitation were repeatedly rebuffed
because they had events planned each time he attempted to visit. He claimed that despite
this fact, he visited them at school and saw them at a wedding in September 2015.

       Father agreed that Stepfather had been an appropriate role model for the Children
and stated that he approved of his relationship with them. He claimed that he provided
cash for the Children on occasion during the relevant time period.2 He stated that he was
unaware that his child support payments were not deducted from his paycheck during the
relevant time period and that he did not learn of his arrearage until his license was
revoked for failure to remit payment. He claimed that his license had since been
reinstated; however, his claim was proved false by a record check performed by court
personnel during the hearing. He admitted that he was terminated from his employment
with the Sheriff’s office in 2012 for misbehavior and that he also pled guilty to
misdemeanor perjury in 2014.3

        Jerry D. (“Grandfather”), the paternal grandfather, and Linda D., the paternal great
aunt, testified that their interaction with the Children had decreased in recent years. They
expressed a desire to spend more time with them as a family.

       Following the hearing, the court denied the termination petition, by order entered
on February 14, 2017, finding that Father had not willfully abandoned the Children by his
failure to visit or to remit support, despite the current support arrearage. The court
specifically found Father’s testimony credible that he did not pursue visitation in an effort
to maximize the Children’s time with Mother before her passing. However, the court
found that it was in the best interest of the Children to award Stepfather permanent
guardianship and physical custody of the Children. The court stated as follows:

           [T]his matter presents a delicate issue involving possible last wishes of
           [Mother] for [the Children] to remain with [Stepfather] so he may raise
           them. While the Court acknowledges that [Stepfather] and [the Children]
           have an excellent and loving step parent/child relationship, the Court must
           look at what is in the best interest of [the Children]. Termination of
           [Father’s] parental rights is not in their best interest, as it would sever
           lasting bonds that they have with their father – who may soon be their only
           surviving biological parent. However, in keeping with [Mother’s] wishes,
           the Court alternatively believes that it has the jurisdiction and the ability to

2
    Kira denied this fact.
3
  Jeffrey Feathers testified that he worked with Father approximately ten years ago while employed by
Fluor Daniel as a contractor in a supervisory capacity. He confirmed that Father never received a
disciplinary report to his knowledge.
                                                  -4-
        order that permanent guardianship be set up between [Stepfather] and [the
        Children] such that [Stepfather] can remain involved in their care and
        custody should [Mother] not recover from her present illness.

Mother died on March 3, 2017. Father then filed this timely appeal, disputing the
creation of a permanent guardianship.

                                                 II.     ISSUE

      The sole issue on appeal is whether the court erred in its creation of a permanent
guardianship following the denial of the termination petition.

                                   III.    STANDARD OF REVIEW

       This case presents an issue of law, which we review de novo with no presumption
of correctness. Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                           IV.         DISCUSSION

       Father claims that the court was without authority to enter an order of
guardianship after denying the termination petition. He alternatively claims that even if
the court held the requisite authority, the court failed to follow the necessary steps in
making such a designation. Stepfather, who does not appeal the denial of the termination
petition, claims that the court erred in crediting Father’s testimony after having been
presented with specific instances of Father’s untruthfulness. Stepfather further claims
that the court did not err in designating him as the permanent guardian and that the
designation of guardianship supersedes any prior order of custody, including any rights
provided for in the permanent parenting plan. Father issues a reply brief in which he
responds that the court did not err in crediting his testimony when the cited instances of
untruthfulness had no bearing on the grounds for termination.

       The court’s credibility determination has no bearing on the issue before this court,
namely whether the trial court held the requisite authority to designate Stepfather as the
Children’s permanent guardian after denying the termination petition. Tennessee Code
Annotated section 36-1-113(a)4 gives the chancery and circuit courts concurrent
jurisdiction with the juvenile court to consider a termination petition. The court

4
 “The chancery and circuit courts shall have concurrent jurisdiction with the juvenile court to terminate
parental or guardianship rights to a child in a separate proceeding, or as a part of the adoption proceeding
by utilizing any grounds for termination of parental or guardianship rights permitted in this part or in title
37, chapter 1, part 1 and title 37, chapter 2, part 4.”
                                                       -5-
considering the petition also possesses the authority to enter an order of guardianship
pursuant to Section 36-1-113(m), which provides, in pertinent part, as follows:

       Upon termination of parental or guardian rights, the court may award
       guardianship or partial guardianship to any prospective adoptive parent or
       parents with the right to adopt the child, or to any permanent guardian who
       has been appointed pursuant to title 37, chapter 1, part 8. In any of these
       cases, such guardianship is subject to the remaining rights, if any, of any
       other parent or guardian of the child.

(Emphasis added.). “There is no provision giving the court authority [to designate a
permanent guardian] if the termination petition is denied.” See generally State v. R.S.,
No. M2002-00919-COA-R3-CV, 2003 WL 22098035, at *19 (Tenn. Ct. App. Sep. 11,
2003) (holding that jurisdiction reverted back to the juvenile court once the circuit court
denied the termination petition).

       While the court in this case retains jurisdiction over custody matters, only the
juvenile court possess the requisite authority to appoint a permanent guardian if the
termination petition is denied. Tenn. Code Ann. § 37-1-801 (“The juvenile courts of
Tennessee are empowered to appoint an individual a permanent guardian; provided, that
the individual qualifies under the provisions of this part.”). Such appointments are
subject to the following provisions of Section 37-1-802:

       (b) The court may issue a permanent guardianship order only if the court
       finds that:
              (1) The child has been previously adjudicated dependent and
              neglected, unruly or delinquent;
              (2) The child has been living with the proposed permanent
              guardian for at least six (6) months;
              (3) The permanent guardianship is in the child’s best
              interests;
              (4) Reunification of the parent and child is not in the child’s
              best interests; and
              (5) The proposed permanent guardian:
                     (A) Is emotionally, mentally, physically and
                     financially suitable to become the permanent
                     guardian;
                     (B) Is suitable and able to provide a safe and
                     permanent home for the child;



                                           -6-
                         (C) Has expressly committed to remain the
                         permanent guardian for the duration of the
                         child’s minority;
                         (D) Has expressly demonstrated a clear
                         understanding of the financial implications of
                         becoming a permanent guardian, including an
                         understanding of any potential resulting loss of
                         state or federal benefits or other assistance; and
                         (E) Will comply with all terms of any court
                         order to provide the child’s parent with
                         visitation, contact or information.5

Even if the court in this case held the authority to designate Stepfather as the permanent
guardian, it did not issue the requisite findings in support of its order of guardianship.
Accordingly, we vacate the order of guardianship and remand for a determination of
custody in light of Mother’s passing pursuant to Section 36-1-106(a)(1).6

                                           V.      CONCLUSION

       The trial court’s order of guardianship is vacated, and the case is remanded for
further proceedings in accordance with this opinion. Costs of the appeal are taxed to the
appellee, Jeremy A. J.


                                                            _________________________________
                                                            JOHN W. McCLARTY, JUDGE




5
 A parent may also voluntarily consent to an order of permanent guardianship. Tenn. Code Ann. § 37-1-
802(f) (“The parent may voluntarily consent to the permanent guardianship, and shall demonstrate an
understanding of the implications and obligations of such consent prior to the court entering an order
establishing a permanent guardianship in accordance with the provisions of this part.”).
6
  “In a suit for annulment, divorce or separate maintenance, where the custody of a minor child or minor
children is a question, the court may . . . award the care, custody and control of such child or children to
either of the parties to the suit or to both parties in the instance of joint custody or shared parenting, or to
some suitable person, as the welfare and interest of the child or children may demand, and the court may
decree that suitable support be made by the natural parents or those who stand in the place of the natural
parents by adoption. Such decree shall remain within the control of the court and be subject to such
changes or modification as the exigencies of the case may require.” (Emphasis added.).
                                                       -7-
