                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 15, 2011 Session

                                    IN RE A’MARI B.

                 Appeal from the Juvenile Court for Hawkins County
                    No. HJ-09-0529      James F. Taylor, Judge




              No. E2010-01789-COA-R3-PT-FILED-AUGUST 31, 2011


This is termination of parental rights case involving A’Mari B. (“the Child”), the minor
daughter of Troy B. (“Father”) and Rebecca S. (“Mother”). The Department of Children’s
Services (“DCS”) took the Child as an infant into state custody after both Father and Mother
were arrested and jailed. The Child was promptly placed with Christopher N. and Dean N.
(collectively, “the Custodians”), the prospective adoptive parents, where she has remained.
Five months after obtaining legal custody, the Custodians filed a petition to terminate the
parental rights of Father and Mother in order to facilitate their adoption of the Child.
Following a bench trial, at which Mother appeared, the court terminated both natural parents’
rights to the Child based on the court’s finding of multiple forms of abandonment. Over
Father’s objection, his case was tried without his presence or participation. Father and
Mother, by separate notices of appeal, challenge the termination order. As to Father, the
judgment is vacated and the case remanded for a new trial – our action being based on the
fact that Father was denied due process in the termination proceeding. As to Mother, the
evidence does not preponderate against the trial court’s finding that there is clear and
convincing evidence that she abandoned the Child and that termination of her rights is in the
Child’s best interest. Accordingly, as to Mother, the judgment is affirmed

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
              Affirmed in Part and Vacated in Part; Case Remanded

C HARLES D. S USANO , J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

William E. Phillips II, Rogersville, Tennessee, for the appellant, Troy B.

John S. Anderson, Rogersville, Tennessee (appeal), and Gerald T. Eidson, Rogersville,
Tennessee (trial), for the appellant, Rebecca S.
Douglas T. Jenkins, Rogersville, Tennessee, for the appellees, Christopher N. and Dean N.


                                                OPINION

                                                      I.

        This matter was heard by the trial court on July 15, 2010. The evidence reflects the
following. The Child was born in Virginia on July 31, 2007. Father and Mother were never
married to each other. Both are married to others. When the Child was born, the parents
lived in different states – Father in Tennessee, and Mother in Virginia.1 In early September
2007, Mother traveled to Tennessee with the Child – who was then four weeks old – to visit
Father and a niece of Mother’s. While the record provides few details, Mother’s testimony
indicates that during her visit, she and the Child were present when Father and others were
arrested for breaking into a store that sold guns; there were other related charges as well.
Both Father and Mother apparently were convicted of felony offenses related to their roles
in the incident; both were incarcerated.2 DCS took custody of the Child and, in September
2007, placed her physical custody with the Custodians, with whom she continued to live at
the time of trial.

       The Guardians are the natural parents of two grown children; they also serve as foster
parents. At the time of trial, they were raising the Child and two foster children in their
Rogersville home. Christopher is employed; Dean is a stay-at-home mother. Dean testified
that the Child was a member of the family and the Custodians desired to make the
arrangement permanent by adopting her.

       Mother served nine and a half months of her sentence before she was released in May
2008. Upon her release, Mother returned to Virginia to live with a friend. She was soon
reunited with her five other children and moved several more times, staying with different
friends or in homeless shelters, until she was able to secure an apartment – and finally a home
– to accommodate her family. At the time of trial, she asserted she had recently been
employed to clean houses, but had not yet started. She and her children relied for support on

        1
         Mother testified that she remains married to her husband of 17 years, but they have been separated
for the past five years.
        2
         No criminal court judgments are in the record. In a handwritten letter to the trial court clerk dated
March 2010, Father asserted that he would complete service of his sentence in the state of Virginia in April
2010 and would then begin serving a 51-month sentence in federal prison. In her testimony, Mother stated
she received a suspended sentence of 14 years and was released on 2 years’ probation.

                                                     -2-
help from her estranged husband – the father of three of her children – as well as her oldest
son’s social security disability benefits, and state assistance. Mother had no car and her
driver’s license was suspended as a result of unpaid court costs related to her criminal case.
As a result, she relied mainly on the local bus system for transportation.

        Mother acknowledged that the Custodians were “the only family that [the Child]
knows” and asserted that she was not out to hurt anyone, but only wanted some parental
rights. She observed, “she’s my child, too.” Mother testified that, following her release from
confinement in May 2008, she visited the Child four or five times, but conceded that she had
no visits in the four-month period immediately preceding the filing of the petition to
terminate her rights. Mother contended that she was either not allowed or unable to visit
once the Custodians obtained legal custody of the Child in December 2008.                Dean
acknowledged that Mother had called to arrange visits – five times in the relevant four
months – but stated that no visits took place because Mother failed to show up for the
scheduled visits. Dean denied that she or her husband ever refused to accept or failed to
return Mother’s calls. Both Mother and Dean stated that Mother had never paid any child
support. At trial, Mother’s testimony was equivocal as to whether she was aware of a
December 2008 juvenile court order setting her child support obligation at $116 a month.3

       At the conclusion of the trial, Mother insisted that she knew what she needed to do
with respect to the Child: “I know I gotta get myself together. I gotta make sure I’m trying
to get my daughter back.”

        The court terminated both parents’ rights based upon its finding of multiple forms of
statutory abandonment. See Tenn. Code Ann. § 36-1-102(1)(2010). Specifically, the court
found, by clear and convincing evidence, that Father had engaged in criminal conduct
evincing a wanton disregard for the Child’s welfare and that both Father and Mother had
failed to visit or support the Child during the four-month period immediately preceding the
filing of the termination petition. The trial court also found that there is clear and convincing
evidence that termination is in the Child’s best interest.

       Father and Mother, represented by separate counsel, each timely filed a notice of
appeal. They have filed separate briefs.

                                                      II.

       Mother raises one issue for our review:



       3
           No order for child support is included in the record before us.

                                                      -3-
              1. The evidence at trial does not clearly and convincingly
              establish that Mother abandoned the Child.

Father raises additional issues that we restate as follows:

              1. Did the trial court err in denying Father’s motion to continue
              and proceeding to trial in his absence?

              2. Did the evidence at trial clearly and convincingly support the
              trial court’s conclusion that Father willfully abandoned the
              Child?

                                              III.

       We employ the following standard of review in cases involving the termination of
parental rights:

              [T]his Court’s duty. . . is to determine whether the trial court’s
              findings, made under a clear and convincing standard, are
              supported by a preponderance of the evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court’s findings of fact are
reviewed de novo upon the record accompanied by a presumption of correctness that we must
honor unless the preponderance of the evidence is against those findings. Id.; Tenn. R. App.
P. 13(d). In weighing the preponderance of the evidence, great weight is given to the trial
court’s determinations of witness credibility, which shall not be reversed absent clear and
convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Questions of law are reviewed de novo with no presumption of correctness. Langschmidt
v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

         Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Drinnon, 776
S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are superior to the claims of
other persons and the government, they are not absolute, and they may be terminated upon
a finding of at least one statutory ground. See Blair v. Badenhope, 77 S.W.3d 137, 141
(Tenn. 2002). A parent’s rights may be terminated only upon “(1) [a] finding by the court by
clear and convincing evidence that the grounds for termination of parental or guardianship
rights have been established; and (2) [t]hat termination of the parent’s or guardian’s rights
is in the best interests of the child.” T.C.A. § 36-1-113(c)(Supp. 2007); In re F.R.R., III, 193
S.W.3d at 530. Both of these elements must be established by clear and convincing evidence.

                                              -4-
See T.C.A. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Evidence
satisfying the clear and convincing evidence standard establishes that the truth of the facts
asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL
21946726, at *9 (Tenn. Ct. App. M.S., filed Aug. 13, 2003); it 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 S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004).

                                            IV.

                                             A.

       The nature of Mother’s challenge to the trial court’s finding that she abandoned the
Child is not entirely clear. As previously noted, the trial court expressly found that Mother
“abandoned the [C]hild by willfully failing to support or visit during those four months
immediately [preceding] filing [of] the petition.” In response, Mother inexplicably refers to
that portion of Section 36-1-102 which applies to incarcerated parents and devotes much of
her argument to her contention that her conduct did not exhibit a wanton disregard for the
Child’s welfare.

       As relevant to Mother’s argument, this Court has explained:

              The “wanton disregard” language actually appears in Tenn.
              Code Ann. § 36-1-102(1)(A)(iv) as one of the alternative
              definitions of abandonment as a ground for termination of
              parental rights. See Tenn. Code Ann. § 36-1-113(g)(1)
              (incorporating the definitions of abandonment found in Tenn.
              Code Ann. § 36-1-102 as a ground for termination). The
              statutory provision applies to a parent who was incarcerated
              during all or part of the four months immediately preceding the
              filing of the petition to terminate that parent’s rights and who
              “has engaged in conduct prior to incarceration that exhibits
              wanton disregard for the welfare of the child.”

       As we noted earlier in this opinion, the trial court found this species of abandonment
existed with respect to Father, but not Mother. While Mother was incarcerated at one point,
she was released in May 2008, a full year before the termination was pursued. As can be
seen, that portion of the statute defining abandonment based on the “wanton disregard”
language is inapplicable to Mother.




                                             -5-
                                              B.

       Mother briefly addresses the trial court’s finding that she abandoned the Child by
failing to visit her in the four months immediately preceding the filing of the petition.
Mother baldly asserts that, by their “willful and intentional acts,” the Custodians prevented
her from visiting the Child. Significantly, Mother does not contest, or even address, the
court’s additional finding that she also abandoned the Child by failing to provide child
support.

       At trial, Mother was questioned by her counsel regarding her efforts at visitation:

              Q: [P]articularly from January of 2009 to May of 2009, do you
              recall how many times you’ve called the [Custodians’] home
              and no one answered?

              A: Quite a few. I can’t remember. I said I do have some
              documents I’ve been keeping – but I did forget my paperwork
              – but quite a few times I’ve called. I’ve even called and spoke
              to [Dean’s] husband when she wasn’t there.

                                          *    *    *

              Q: Would you leave messages when you called and there would
              be no answer, . . .

              A: Yes.

                                          *    *    *

              Q: Prior to that [February 2010] [visit], how . . . long did you go
              without visiting [the Child]?

              A: It had been a while.

              Q: Okay. Would you consider that to be your fault?

              A: No. Because every time I would call, . . . she told me I
              couldn’t because I didn’t never have – I needed to get a hair
              sample done. I have been calling since December [2008], when
              she got custody of [the Child], asking when can I come visit,

                                              -6-
               and she tells me I cannot come and visit until I get a hair sample
               – that it was Court ordered. I never seen (sic) that Court Order.

                                            *   *     *

               Q: [Dean] testified that in January of 2009 you called her and set
               up a visit for January 30th of 2009. Do you recall that?

               A: No.

               Q: Okay. Do you . . . recall any visits that were set up from
               January 2009 until May of 2009?

               A: No.

        Dean testified at trial that Mother failed to exercise any visitation in the relevant four
months from January to May of 2009. Referring to a log Dean had maintained, she noted
that Mother contacted her in January 2009 and requested to visit the Child on January 30th,
to which Dean agreed. Mother did not show up and Dean “never heard from her again for
three months.” Dean stated Mother contacted her again in April 2009, they agreed to a visit
that month, and, again, Mother was “a no-show” and did not contact Dean again for another
month. Mother next arranged to visit in February 2010, after the petition was long-pending,
and she later cancelled that visit. Dean testified that Mother had called her, in all, five times
in the four months immediately before the petition was filed; Dean spoke to Mother each
time and visits were planned, but none took place. In 2010, which, as previously noted, was
long after the petition was filed, Mother began to visit the Child again.

        In summary, the evidence shows Mother visited the Child four or five times before
the Custodians obtained legal custody in December 2008. Thereafter, she made several
phone calls to the Custodians, but did not visit in the critical four-month period. Mother did
not again actively pursue visitation until February 2010. Mother’s own testimony
corroborates the Custodians’ assertion that she made no attempt to arrange visits in the
pertinent four-month period. Moreover, Dean denied that she ever failed to return Mother’s
calls or refused to allow Mother to visit. The trial court obviously credited Dean’s testimony
in this regard. Lastly, regarding visitation, Mother testified that, with the exception of a
friend who once drove her, she simply had no means of getting to Tennessee to be with the
Child; Mother had been unemployed, had no car, her driver’s license was suspended as a
result of unpaid court costs in her criminal case, and she was responsible for taking care of
her other children. Asked why, upon her release in 2008, she chose to return to Virginia,



                                                -7-
rather than Tennessee where the Child was living, Mother said that she did not know anyone
in Tennessee that could help her.

       We turn now to the ground of abandonment by non-support. At trial, Mother
conceded that she had “never paid one dime” of child support. According to Mother, she was
able-bodied and had been looking for a job since her release, but remained unemployed until
the time of trial. At the same time, Mother contended that all her children had what they
needed. She noted she had bought the Child some presents and sent her cards on her birthday
and at Christmas. Mother denied knowledge of an obligation to pay a set amount of child
support, but continued: “No. Other than a paper that I got through the Courts, and I had . . .
to order that myself to get it. I never signed any papers saying I owe . . .”

        In its bench ruling, the trial court noted that “[M]other readily admits that she has not
paid any type of child support.” Further, there was undisputed evidence that Mother had no
visits with the Child in the critical four-month period immediately preceding the filing of the
termination petition. At trial, Mother emphasized that she “knew what she needed to do” to
be reunited with the Child. It is clear, however, that she failed to take the appropriate steps
in a timely manner.

        The evidence does not preponderate against the trial court’s finding of clear and
convincing evidence showing that Mother abandoned the Child by intentionally failing to
visit and by intentionally failing to provide child support.

                                               C.

        A person seeking to terminate parental rights must prove both the existence of one of
the statutory grounds for termination and that termination is in the best interest of the child.
Tenn.Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003); In re
Valentine, 79 S.W.3d at 546. In the present case, the trial court stated its best-interest
analysis as follows:

              [T]his [C]hild knows [the Custodians’] family as [her] family,
              . . . and photographs . . . depict the [C]hild in just that exact
              family type setting. Relative to determination of the [C]hild’s
              best interest, the Court does conclude, then, that neither parent
              has maintained a regular visitation or contact with the [C]hild;
              that neither parent has established a meaningful relationship
              with the [C]hild . . . ; that being that this [C]hild knows the
              [Custodians] as [her] family – not just a family – that [she]
              could be bonded with or be a part of, but this is the [C]hild’s

                                               -8-
              family. [T]he Court then, therefore, concludes that it would be
              a negative impact on the [C]hild’s emotional and psychological
              well-being to have [a] . . . change of caretakers and physical
              environment at this time. The Court finds that neither parent has
              paid child support consistent with the Child Support Guidelines
              . . . , and therefore the Court does conclude, as a matter of law,
              that it is in the [C]hild’s best interest for the termination of the
              parental rights of both parents to occur to this [C]hild.

        Mother does not challenge the trial court’s best interest determination. In the interest
of justice, we have nevertheless reviewed the record and are satisfied that the evidence does
not preponderate against the trial court’s finding, by clear and convincing evidence, that
termination of Mother’s rights is in the best interest of the Child.

                                               V.

         We turn to Father’s assertion that the trial court erred in denying his motion to
continue the trial after he became unavailable to participate. We quote extensively from the
trial transcript to reflect the circumstances underlying this issue:

              The Court: [Father] is not present and is in custody of the United
              States government, but Mr. William Phillips – his Court
              Appointed Attorney – is here, and [he has] made arrangements
              – with the authorities to have him participate and to be available
              by telephone-conference, and I think our case was scheduled for
              1:00 and it’s 2:30 p.m. now, and they might have got tired of
              waiting. Is that the sum of it?

              Mr. Phillips: Yes. They have . . . said that most emphatically.

                                           *    *    *

              The Court: All right.      Mr. Phillips, tell us about the
              arrangements that you made for [Father] to participate in the
              Hearing today and then the difficulties that you’ve experienced
              today in . . . that.

              Mr. Phillips: Yes, Your Honor. [W]ell, we had attempted to
              contact [Father’s] . . . Counselor – which is a Paul Dunston,
              Your Honor – and had repeatedly made phone calls to him – at

                                               -9-
              least five – and had never heard back from his Counselor, after
              leaving a message every time. Finally I sent a letter to . . . the
              Federal Correctional Institute in Virginia – and only . . . less
              than a week ago did I get a call from his Counselor stating that
              he would have him available to participate via teleconference
              today. [M]y letter makes them aware . . . of the nature of the
              proceedings. I called him . . . about 1:10 today – and he had
              [Father] in his office ready to participate, and he was rather
              caustic about that, however, . . . noting that we would be paying
              his overtime and that – I advised him, well, he could certainly
              take that up with the Judge, and he said to tell the Judge that,
              “He’s on my time now.” Anyway, I told them that we would get
              to them in twenty or thirty minutes. While Your Honor was
              conducting another Hearing. I got a phone call from my office
              that indicated that this Counselor was on the other line, and that
              he was leaving, and I told my secretary to inform him that this
              was a termination of [Father’s] parental rights – that his
              participation was absolutely necessary and approved by the
              Court, and he said that . . . he didn’t care – and that we should
              have had him transported here. Of course, Your Honor well
              knows . . . that Federal Courts have never . . . transported
              anyone for a Termination Hearing.

              The Court: We’re basically ignored. We’re not told, “No.”

                                          *    *     *

              Mr. Phillips: Exactly.

                                          *    *     *

       The record reflects that at this juncture, the trial court instructed Mr. Phillips to
contact Father’s prison counselor again regarding Father’s participation in the hearing. After
informing the operator at the federal prison of the nature of his call, and being placed on
“hold” for some 11 minutes, the operator returned to advise that “Counselor Dunston is not
available right now.” When Father’s attorney moved to continue the hearing, the following
dialogue occurred:

              Mr. Phillips: Obviously his Counselor at the Correctional
              Institute didn’t feel that [Father’s participation] was necessary,

                                              -10-
               and unilaterally terminated our scheduled conference call. That
               being the case, Your Honor, and [Father] not being present,
               we’d have no choice but to ask for a Continuance . . . .

               The Court: All right. The Motion for a Continuance is denied.
               Mr. Phillips, you’ve done everything that could have been
               reasonably expected of you and your zealous representation of
               [Father]. You went above and beyond the call of any obligation
               that an attorney would have in this circumstance. You’ve made
               numerous attempts to telephone the facility . . . . You were
               experiencing and recited problem in contacting this Counselor
               . . . you went ahead and advised him of the date of the Hearing
               and the time, and that . . . the person in their custody had the
               right to participate. [. . . .] We have afforded [F]ather his right
               to a meaningful participation in this Hearing as contemplated by
               Tennessee Law. To no fault of the [Custodians], this Court, or
               yourself, [Father] . . . has not been afforded that right, and it
               appears at this time – based upon the telephone call and the
               representations that you have made here today – that it is, in fact
               . . . the government that’s not affording him this right, and we
               have done everything we can to accommodate that. So the
               Hearing will proceed.

Father asserts that he has a fundamental due process right, as well as a statutory right, to
meaningful participation in a hearing to terminate his parental rights, and contends that the
denial of a continuance in light of his unavailability – through no fault of his own – was
error. We agree on both counts.

        There can be no question that a proceeding to terminate one’s parental rights
implicates the fundamental right of parents to the care, custody, and control of their children
so that due process protections apply. Thus, this Court has held that “where a fundamental
right such as . . . parental rights is at stake, due process requires the trial court to provide the
prisoner defendant with meaningful access to the court and an opportunity to be heard.” In
re Jo'Nise Yo'Vee Perry, No. W2000-00209-COA-R3-CV, 2001 WL 277988, at *5 (Tenn.
Ct. App. W.S., filed Mar. 12, 2001). To this end, Tennessee law provides an incarcerated
defendant with an opportunity to participate in a termination hearing. Specifically, pursuant
to Tenn. Code Ann. § 36-1-113(f)(3)(2010), “the incarcerated parent or guardian has the right
to participate in the hearing and contest the allegation that the rights of the incarcerated
parent or guardian should be terminated, and, at the discretion of the court, such participation



                                               -11-
may be achieved through personal appearance, teleconference, telecommunication or other
means deemed by the court to be appropriate under the circumstances. . . .”

       In the present case, Father does not contest the means of his intended participation.
Indeed, we have held that “[i]f a prisoner’s access to the court is meaningful – and telephonic
access has been deemed to be meaningful – the requirements of due process are satisfied. .
. .” Father argues that because, through no fault of his own or anyone present at the hearing,
he was not allowed the opportunity to participate in his own defense by any means, his due
process rights were not satisfied. Father is correct.

       We have held, under similar facts, that the trial court erred in proceeding with a
termination hearing in the absence of the incarcerated defendant father on the first day of the
proceeding after his counsel was unable to locate him in the prison system. See State Dep't
of Children’s Servs. v. Williams, No. W2008-02001-COA-R3-PT, 2009 WL 2226116, at *4
(Tenn. Ct. App. W.S., filed Jul. 28, 2009).

       The delayed start of the hearing aside, we are certainly sympathetic to the difficulties,
even outright opposition, that Father’s counsel apparently encountered in his persistent
efforts to arrange Father’s participation in the hearing. Similarly, it appears that the trial
court had earlier experienced similar problems in securing the participation of inmates in
termination hearings in its courtroom and felt it was left with no choice but to continue the
proceedings without Father. In the end, however, the trial court itself acknowledged that
Father was not, in fact, afforded his right of access and meaningful participation, but
nevertheless elected to proceed without him. This court reviews a trial court’s decision to
deny a motion for a continuance under the abuse of discretion standard of review. State
Dep’t of Children’s Servs. v. V.N., 279 S.W.3d 306, 317 (Tenn. Ct. App. 2008). In this case,
we conclude that Father’s right to due process was violated when the trial court denied his
motion to continue and when it proceeded with the trial in his absence. Accordingly, we
conclude that the trial court abused its discretion when it denied Father’s motion to continue.4

                                                        VI.

        Father further contends that the trial court erred in finding that he abandoned the Child
by failing to visit or support the Child in the four-month period immediately preceding the
filing of the termination petition, and by engaging in conduct that exhibited a wanton
disregard for her welfare. See Tenn. Code Ann. § 36-1-102(1)(A)(iv). As discussed above,


         4
           While the trial court certainly has the prerogative as to how it proceeds with the various cases set
for trial/hearing on a given day, it might be wise to set Father’s trial at a specific time, e.g., at the start of the
docket, so as to correspond to the time set with the federal authorities for Father’s availability.

                                                        -12-
we have concluded, that the trial court erred in proceeding to trial in Father’s case. In view
of our judgment remanding Father’s case for a new trial, we find it unnecessary and
inappropriate to address Father’s substantive challenges to the trial court’s termination order.

                                             VII.

       The judgment of the trial court is affirmed in part and vacated in part. As to the
appellant Rebecca S., the judgment is affirmed. As to the appellant Troy B., the trial court’s
judgment is vacated and this matter is remanded to the trial court for a new trial as to the
Custodians suit against Troy B. Costs on appeal are taxed 50% to Mother, Rebecca S. and
50% to the Custodians, Christopher N. and Dean N.




                                                     _________________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




                                              -13-
