In Re SM
No. 2219-67013 Betty Adams Green, Judge
This appeal involves the termination of the parental rights of a biological father whose daughter was surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the biological father that it had custody of the
WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., joined. WILLIAM B. CAIN, J., filed a concurring opinion.
Joanie L. Abernathy, Franklin, Tennessee, for the appellant.
Lisa L. Collins, Nashville, Tennessee, for the appellee, The Association for Guidance, Aid, Placement and Empathy.
Susie Piper McGowan, Nunnelly, Tennessee, Guardian Ad Litem.
OPINION
I.
R.G.L. was born in Guadalajara, Mexico and migrated to Middle Tennessee in the late 1990s to join several members of his family who were already residing in Nashville.1 He is twenty-three years old and works as a house painter. He also has a wife and a daughter who are now residing in Mexico. R.G.L. attended school in Mexico until he was fourteen, and he is not fluent in English.
Sometime in 2000, R.G.L. became romantically involved with C.M., a teenage Mexican emigre who was living in Nashville with another man. After R.G.L. discovered that C.M. was pregnant, he provided her approximately $1,000 for medical expenses and clothing, and eventually paid for her to travel to Chicago to be with her mother during the later stages of her pregnancy. However, R.G.L.‘s relationship with C.M. was strained because she apparently declined to end her relationship with the other man with whom she had been living.
In September 2001, during her eighth month of pregnancy, C.M., without R.G.L.‘s knowledge, made an arrangement with The Association for Guidance, Aid, Placement and Empathy (“A.G.A.P.E.“),2 a licensed child-placing agency in Nashville, to surrender her child for adoption. Christy Akers, a social worker employed by A.G.A.P.E., informed C.M. that the child could not be placed for adoption without the biological father‘s consent. For some reason, C.M. informed Ms. Akers that O.M.O. was the child‘s biological father and, at Ms. Akers‘s direction, obtained O.M.O.‘s written waiver of his interest in the child. As far as the record shows, A.G.A.P.E. never undertook to independently verify that O.M.O. was the child‘s biological father.
C.M. gave birth to S.M. on September 28, 2001 in Nashville. The child‘s birth certificate did not list a father‘s name, and two days following the birth, A.G.A.P.E. took custody of the child and placed her with her pre-adoptive family.3 For its efforts, A.G.A.P.E. received a $1,000 fee for inspecting the adoptive parents’ home, as
On February 12, 2002, C.M. returned to A.G.A.P.E.‘s office and told Ms. Akers that O.M.O. was not S.M.‘s biological father. She revealed that R.G.L. was actually the child‘s father and provided Ms. Akers with his telephone number. Ms. Akers later characterized the news as “disconcerting” because she understood immediately that it would cause problems with the adoption. Ms. Akers, who does not speak Spanish, decided to call R.G.L. immediately. When she reached him by telephone on February 13, 2002, she told him that A.G.A.P.E. had custody of his daughter and that she wanted to talk with him as soon as possible. R.G.L. told her that he could not understand her and that she should talk with his brother who was more fluent in English. In a later telephone conversation with R.G.L.‘s brother, Ms. Akers arranged for a meeting with R.G.L. on February 20, 2002.
R.G.L. and Ms. Akers met on February 20, 2002 at A.G.A.P.E.‘s office. He was accompanied by John Faccadio, his employer.4 Ms. Akers readily observed that R.G.L.‘s English was “limited,” and so Mr. Faccadio translated for both of them as best he could. R.G.L. explained to Ms. Akers that C.M. had told him that S.M. had died and that he had not attempted to verify that information. He also provided details regarding his personal background and relationship with C.M. He told her about his migration from Mexico, his immigration status, and his employment and salary. R.G.L. also told Ms. Akers that his wife had discovered his relationship with C.M. and that she and their daughter had returned to Mexico in January 2002.
Ms. Akers informed R.G.L. that his daughter had not died and that she was, in fact, healthy and in A.G.A.P.E.‘s custody.5 When R.G.L. asked to see his child, Ms. Akers told him that she could do nothing to assist him and that she could not provide him with any additional information. She told him that he needed to take steps if he desired to have a relationship with his daughter and that he should hire a lawyer and file a petition to establish parentage within thirty days. Ms. Akers did not inform R.G.L. of his parental rights or describe how R.G.L. could arrange for visitation or begin paying child support.
On the day after her meeting with R.G.L., Ms. Akers met with A.G.A.P.E.‘s lawyer to decide what should be done about S.M. Terminating R.G.L.‘s parental rights was one of the options discussed. Soon thereafter, A.G.A.P.E. decided to pursue terminating R.G.L.‘s parental rights. After making the decision to file suit, A.G.A.P.E. opposed permitting R.G.L. to establish any sort of parental relationship with S.M. On March 12, 2002, less than thirty days following Ms. Akers‘s meeting with R.G.L., A.G.A.P.E. filed a petition in the Davidson County Juvenile Court to terminate R.G.L.‘s parental rights on the ground of abandonment.
Within days after meeting with Ms. Akers, R.G.L. retained a lawyer to begin the proceedings to establish his parentage of S.M. as Ms. Akers suggested. On April 9, 2002, his lawyer filed a petition to establish parentage. Three days later, he filed an answer to A.G.A.P.E.‘s petition denying that R.G.L. had abandoned the child. Following
The results of the genetic tests were released in early June 2002 and demonstrated conclusively that R.G.L. was S.M.‘s biological father. The trial was continued twice and was eventually rescheduled for December 16, 2002. In the meantime, A.G.A.P.E. filed two amended termination petitions because R.G.L. had neither visited nor supported S.M. since his February 2002 meeting with Ms. Akers. In late October or early December, R.G.L. became concerned that he had heard nothing from his lawyer about the status of his case and asked Mr. Faccadio and his brother to call Ms. Akers about his daughter. Ms. Akers informed Mr. Faccadio that no contact should be made directly and that all future communications regarding the child should be through the lawyers. Shortly thereafter, R.G.L. hired another lawyer who filed a petition requesting the juvenile court to set visitation and child support. The juvenile court denied the motion pending the hearing on A.G.A.P.E.‘s termination petition.
At the December 16, 2002 hearing, R.G.L. presented evidence regarding his desire to gain custody of his daughter, his parenting skills, and the plans he had made to care for his daughter should the court grant him custody.6 A.G.A.P.E. asserted that R.G.L. had abandoned S.M. by (1) failing to reimburse C.M. for her birth expenses, (2) failing to pay financial support, and (3) failing to visit. It also asserted that placing S.M. with R.G.L. would not be in her best interests because she had been living with her pre-adoptive parents for one year and because R.G.L. was an undocumented worker subject to being deported. The transcript of the hearing reflects R.G.L.‘s lack of command of English. An interpreter was used during the hearing, and on several occasions, R.G.L. stated that he did not understand the questions or the proceeding. On January 21, 2003, the juvenile court entered an order terminating R.G.L.‘s parental rights with regard to S.M.
II.
A biological parent‘s7 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.8 Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); Ray v. Ray, 83 S.W.3d at 731. While this right is fundamental and superior to the claims of other persons and the government, it is not absolute. It continues without interruption
Termination proceedings in Tennessee are governed by statute. Parties seeking to terminate 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.9
Because a decree terminating a biological parent‘s parental rights obliterates the parent-child relationship and, in the eyes of the law, relegates a biological parent to the role of a complete stranger to his or her child,11 both the federal and state constitutions require an individualized determination of the existence of the required statutory grounds before the courts may terminate a biological parent‘s parental rights. Stanley v. Illinois, 405 U.S. 645, 658-59, 92 S. Ct. 1208, 1216 (1972); In re Swanson, 2 S.W.3d at 188; In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002). Accordingly,
In light of the constitutional dimension of parental rights, persons seeking to terminate these rights must prove all the elements of their case by clear and convincing evidence.
Because of the heightened burden of proof required by
III.
The juvenile court determined that the record contains clear and convincing evidence warranting the termination of R.G.L.‘s parental rights on two statutory grounds --
A.
There are two reasons why
B.
For the purpose of A.G.A.P.E.‘s abandonment claim, current state law defines “abandonment” as follows:
For a period of four (4) consecutive months immediately preceding the filing of a... pleading to terminate the parental rights of the parent(s)... of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(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 concept of “willfulness” is at the core of the statutory definition of abandonment. For the purpose of
“Willfulness” does not require the same standard of culpability required by the penal code. G.T. v. Adoption of A.E.T., 725 So. 2d 404, 409 (Fla. Dist. Ct. App. 1999). Nor does it require malevolence or ill will. In re Adoption of a Minor, 178 N.E.2d 264, 267 (Mass. 1961). Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. In re Mazzeo, 131 F.3d 295, 299 (2d Cir. 1997); United States v. Phillips, 19 F.3d 1565, 1576 (11th Cir. 1994); In re Adoption of Earhart, 190 N.E.2d 468, 470 (Ohio Ct. App. 1961); Meyer v. Skyline Mobile Homes, 589 P.2d 89, 97 (Idaho 1979). Conduct is “willful” if it is the product of free will rather than coercion. Thus, a person acts “willfully” if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing.
Failure to support a child is “willful” when a person is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide the support, and has no justifiable excuse for not providing the support.17 Shorter v. Reeves, 32 S.W.3d 758, 760 (Ark. Ct. App. 2000); In re B.S.R., 965 S.W.2d 444, 449 (Mo. Ct. App. 1998); In re Estate of Teaschenko, 574 A.2d 649, 652 (Pa. Super. Ct. 1990); In re Adoption of C.C.T., 640 P.2d 73, 76 (Wyo. 1982). Failure to support is not excused by another person‘s conduct unless the conduct actually prevents the person with the obligation to perform his or her duty to support, In re Adoption of Lybrand, 946 S.W.2d 946, 950 (Ark. 1997), or amounts to a significant restraint or interference with the parent‘s efforts to support or develop a relationship with his or her child. In re Serre, 665 N.E.2d 1185, 1189 (Ohio Ct. C.P. 1996); Panter v. Ash, 33 P.3d 1028, 1031 (Or. Ct. App. 2001).18 Thus, attempts by others to frustrate or impede a parent‘s visitation do not provide justification for failing to financially support a child. Bateman v. Futch, 501 S.E.2d 615, 617 (Ga. Ct. App. 1998); In re Leitch, 732 So. 2d 632, 636 n.5 (La. Ct. App. 1999).
The willfulness of particular conduct depends upon the actor‘s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person‘s mind to assess intentions or motivations. American Cable Corp. v. ACI Mgmt., Inc., No. M1997-00280-COA-R3-CV, 2000 WL 1291265, at *4 (Tenn. Ct. App. Sept. 14, 2000) (No Tenn. R. App. P. 11 application filed). Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person‘s actions or conduct. See Johnson City v. Wolfe, 103 Tenn. 277, 282, 52 S.W. 991, 992 (1899); Absar v. Jones, 83 S.W.2d 86, 89-90 (Tenn. Ct. App. 1992); State v. Washington, 658 S.W.2d 144, 146 (Tenn. Crim. App. 1983); see also In re K.L.C., 9 S.W.3d 768, 773 (Mo. Ct. App. 2000).
A.G.A.P.E.‘s decisions to file three termination petitions somewhat complicate identifying the proper four-month period to be considered under
We turn first to the four-month period immediately preceding the filing of A.G.A.P.E.‘s original petition. R.G.L. did not willfully fail to support or visit S.M. during this entire period because he had a justifiable reason not to -- he believed that S.M. had died. This belief was reasonable because he received this information from C.M., the child‘s own mother, and other members of her family. While A.G.A.P.E. insinuates otherwise, R.G.L. did not have an obligation to launch an independent investigation to determine whether C.M. and her mother were telling him the truth. He was justified in believing the child‘s own mother.
We turn next to the period from February 20, 2002, when R.G.L. first met with Ms. Akers and December 16, 2002, the date of the termination hearing. It is undisputed that R.G.L. neither visited nor financially supported S.M. during this time. The reasons for this are plain and straightforward. First, A.G.A.P.E. was not promoting the development of a relationship between R.G.L. and S.M. because it knew that doing so would undermine the placement and the planned adoption. Rather than voluntarily cooperating or assisting R.G.L., A.G.A.P.E. essentially took the position to force R.G.L. to litigate if he desired to develop a relationship with his child. Accordingly, A.G.A.P.E.‘s advice to R.G.L. was to hire a lawyer and file suit. R.G.L. followed A.G.A.P.E.‘s directions. He hired a lawyer within days after his meeting with Ms. Akers, and his lawyer filed a petition to establish parentage less than one month later.
R.G.L. has a limited education and a limited command of English. It is unclear precisely how much of the process put in motion by A.G.A.P.E. he understood. The record contains no evidence that he has refused to comply with any court order or that he has not diligently pursued establishing a relationship with S.M. through the courts. He cannot be held responsible for the juvenile court‘s failure to dispose of his petition to establish parentage in a timely manner. Had the juvenile court done so and ordered R.G.L. to begin paying child support, there is no indication in the record that he would have refused to do so. Accordingly, we have determined that R.G.L. has a justifiable excuse for failing to support and visit S.M. between the filing of A.G.A.P.E.‘s original termination petition and the final hearing.
IV.
We vacate the portion of the January 21, 2003 order terminating R.G.L.‘s parental rights with regard to S.M. and remand the case to the juvenile court for further proceedings consistent with this opinion. Our action does not disturb the juvenile court‘s orders naming A.G.A.P.E. as S.M.‘s guardian. The costs of the appeal are taxed to The Association for Guidance, Aid, Placement and Empathy for which execution if necessary may issue. Pursuant to
WILLIAM C. KOCH, JR., P.J., M.S.