IN RE SYDNEY B.
Court of Appeals of Tennessee, AT NASHVILLE.
Filed 05/12/2017
March 21, 2017 Session
Application for Permission to Appeal Denied by Supreme Court August 1, 2017
The appropriate remedy for this double jeopardy violation is the merger of the lesser offense into the greater offense. See, e.g., State v. Davidson, 509 S.W.3d 156, 217 (Tenn. 2016) (stating that “[m]erger is required when a jury returns guilty verdicts on two offenses, one of which is a lesser-included offense of the other“) (citation omitted). Therefore, we hold that the Court of Criminal Appeals did not err by ordering the merger of these two convictions, although we affirm the order of merger for reasons different than those relied upon by the intermediate appellate court.
Conclusion
Although we have utilized a different analysis, we affirm the judgment of the Court of Criminal Appeals that the Defendant‘s conviction of attempt to commit aggravated sexual battery, entered on Count One of the indictment, must be merged into the Defendant‘s conviction of rape of a child, enterеd on Count Three of the indictment. We remand this matter to the trial court for the entry of the appropriate judgment documents reflecting this merger.11
In addition to remanding this matter to the trial court for the entry of corrected judgment orders reflecting the Defendant‘s modified sentences, the Court of Criminal Appeals remanded this matter to the trial court for the correction of clerical errors relative to the judgment order entered on Count Six. We affirm these orders of remand.
In sum, we affirm the judgment of the Court of Criminal Appeals.
Jeremy W. Parham, Manchester, Tennessee, for the appellee, Chance B.
Opinion
J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Brandon O. Gibson and Kenny Armstrong, JJ., joined.
In this termination of parental rights case, prospective adoptive parents appeal the trial court‘s dismissal of their petition after finding that father did not willfully fail to pay support for the child. We reverse and remand for further proceedings.
Background
Sydney B. (“the child“)1 was born in October 2009 to Jessica W. (“Mothеr“) and Chance B. (“Father“). Although the child‘s parents were never married, they lived together for a short period of time following the child‘s birth. On May 9, 2011, Petitioners/Appellants Joseph S. and Emery S. (“Appellants“), the child‘s maternal great uncle and great aunt, obtained physical custody of the child. Appellants thereafter filed a petition for legal guardianship of the child. Mother consented to the order of guardianship. Father was incarcerated at the time of the guardianship proceedings.2 Father did not participate in the guardianship prоceeding and a default judgment was entered against him. An order was entered awarding Appellants legal guardianship of the child on August 30, 2012.
On December 11, 2014, Father filed a parentage petition in the Coffee County Juvenile Court (“juvenile court“) asking to be named the child‘s legal father, to be awarded parenting time with the child, and for “other relief.”3 This petition did not specifically make any mention of child support. On January 7, 2015, the parties entered into an agreed temporary order allowing Father supervised parenting time with the child in December 2014 and January 2015 so long as Father “submitted to
The temporary agreed order further provided that the parties would participate in mediation and attend a court-approved parenting class. The parties attended mediation in February 2015, and a hand-written agreement was signed by the parties. The mediated agreement provided for a parenting time schedule and stated that “child support will be established including retroactive support.” However, Father refused to sign the formalized agreement, alleging that Appellants attempted to change some of the previously agreed upon terms.4 It is undisputed that no child support order was ever entered.
On June 9, 2015, Appellants filed a petition to terminate the parental rights of Father and Mother and for adoption in the Coffee County Chancery Court (“trial court“). The petition alleged the following grounds against Father: (1) willful failure to support; and (2) willful failure to visit.5 Thereafter, Father filed a motion in the trial court to resume parenting time with the child. Again, the motion did not mention child support.
A trial occurred on January 8, 2016. At the beginning of trial, Father moved for bifurcation of the proceeding and, with no objection, the trial court heard proof as to grounds for termination only. There was no dispute that Father paid no support for the child in the four months prior to the filing of the termination petition. Father also acknowledged that he had a duty to support the child. Father testified he was working at Quality Coverings during the relevant period and that he could have paid support; however, because Appellants never asked him to pay and he was waiting for a child support order to be entered, he never paid child support prior to the termination petition. Father agreed that one reason he did not pay support was because Appellants “weren‘t letting [him] see [the child].” When Father attempted to pay child support in October through December of 2015, Appellants refused to accept payment.6
On March 15, 2016, the trial cоurt issued its opinion, and the final order was filed on May 25, 2016. Therein, the trial court found that, because Father was in active litigation to establish a visitation schedule and had filed two separate motions to establish visitation, Father‘s conduct was not willful with respect to both failure to visit and failure to support. As a result, the trial court concluded that Appellants’ petition “fail[ed] in that the Father‘s conduct was not willful in failing to visit or support due to the impending litigation to establish paternity, visitation[,] and support.” Appellants thereafter appealed to this Court.7
Appellants raise one issue in this appeal: Whether the trial court erred in failing to find clear and convincing evidence of abandonment by willful failure to support under
Analysis
According to the Tennessee Supreme Court:
A parent‘s right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. “[T]he [S]tate as parens patriae has a special duty to рrotect minors....” Tennessee law, thus, upholds the [S]tate‘s authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child. Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted).
Our termination statutes identify “those situations in which the state‘s interest in the welfare of a child justifies interference with a parent‘s constitutional rights by setting forth grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)). 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 child‘s best interest.
Because of the fundamental nature of the parent‘s rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence.
As our supreme court opined:
The trial court‘s ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. In re M.L.P., 281 S.W.3d 387, 393 (Tenn. Ct. App. 2009) (quoting In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
Carrington H., 483 S.W.3d at 523-24.
When the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had thе opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. Workers Comp. Panel 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any witness‘s testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
The sole issue on appeal is whether the trial court erred in dismissing Appellants’ petition for termination of Father‘s parental rights based on abandonment by willful failure to support.
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 сhild;
For purposes of this subdivision, “willfully failed to support” or “willfully failed to make reasonable payments toward such child‘s support” means 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.”
Here, there is no dispute that Father failed to pay any support for the child in the four months preceding the filing of the termination petition, i.e., between February 9, 2015, and June 8, 2015. The only question in this appeal is whether Father‘s failure wаs willful. This Court has explained:
In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations omitted).
Parents are presumed to know they have a legal obligation to support their children. Sеe
[B]iological parents must, as a general matter, support their children until they reach the age of majority.... The parent‘s obligation to support, as well as the child‘s right to support, exist regardless of whether a court order exists, and regardless of whether the parents were ever married.
State ex rel. Hayes v. Carter, No. W2005-02136-COA-R3-JV, 2006 WL 2002577, at *2 (Tenn. Ct. App. July 6, 2006) (citing
In determining that Father‘s failure to support the child was not willful, the trial court found that Father filed two separate motions to set parenting time with the child. The trial court cited the Tennessee Supreme Court‘s opinion in In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007) for the proposition that “a parent cannot be found to have abandoned a child when [he or she is] actively seeking to establish visitation.” In In re Adoption of A.M.H., the parents’ parental rights were terminated based on abandonment of thе child for willful failure to visit for four months preceding the filing of the termination petition and that termination of parental rights was in the best interest of the child. A.M.H., 215 S.W.3d at 806. Although it is undisputed that the parents failed to visit the child during the four-month period at issue, the parents were “actively pursu[ing] legal proceedings to regain custody of [the child]
The holding in In re Adoption of A.M.H. was applied in the context of child support by this Court in In re Chelbie F., No. M2006-01889-COA-R3-PT, 2007 WL 1241252 (Tenn. Ct. App. Apr. 27, 2007). In In re Chelbie, the father‘s parental rights were terminated based on abandonment for both willful failure to visit and support. The Court of Appeals reversed as to both grounds, holding instead that the Tennessee Supreme Court‘s decision in In re Adoption of A.M.H. “controls the outcome of this case” even with regard to the father‘s failure to pay child support. Id. at *6. Although the Court of Appeals acknowledged that In re Adoption of A.M.H. addressed specifically the issue of willful failure to visit, the Court of Appeals believed that it had “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 estаblish a child support payment.” Id. As a result, the Court of Appeals held that father‘s failure to support was not willful because he “was pursuing a petition to establish his visitation rights and support obligations before the petition to terminate his parental rights was filed.” Id.
Appellants argue, however, that more recent caselaw supports the opposite conclusion. See In re Makenzie L., No. M2014-01081-COA-R3-PT, 2015 WL 3793788 (Tenn. Ct. App. June 17, 2015), perm. app. denied (Oct. 15, 2015). In In re Makenzie, the parents testified at trial that they had expended over $100,000.00 in order to regain custody of their child. The parents also pointed out that they had never been ordered to pay support or asked by prospective adoptive parents to provide support for the child. Finally, the parents contended that they had “cooperated” with a petition filed by Child Support Division of the District Attorney to establish child support. Like the trial court in this case, the trial court declined to find the parent‘s failure to pay child support willful because they were actively engaged in child custody litigation during the four-month period at issue. Id. at *11.
The Court of Appeals rejected each argumеnt raised by parents. As an initial matter, the court noted that there was no dispute that the parents had not paid any support during the relevant period, despite the ability to do so. Id. at *18. The court disagreed with parents’ argument that they were “seeking to support” the child through their efforts to regain custody. Instead, the court held that effort to establish custody or visitation does not negate the fact that a parent has failed to pay support for his or her child. Id. at *19 (“Parents who are ‘actively seeking custody’ through the judicial process are not providing support for their children as contemplated by
[T]he law is clear that parents have a duty to support their children even absent a court order requiring them to do so. State v. Wilson, 132 S.W.3d 340, 343 (Tenn. 2004). Thus, even if the parents “were following the process of the Child
In re Makenzie L., 2015 WL 3793788, at *20.
Here, we agree with Appellants thаt clear and convincing evidence was shown that Father willfully failed to support the child during the relevant period. First, unlike the typical case, there is no dispute in this case that Father had the ability to pay support for the child. Likewise, Father admitted that he was aware of his obligation to provide support. Father asserts, however, that his failure to provide support was justified because Father was involved in “active, pending custody and support litigation at the time the petition was filed.” Respectfully, we cannot agree.
We concede that at the time that Appellants’ termination petition was filed, Father‘s petition in the juvenile court to determine the child‘s parentage and set visitation was still pending.10 Father‘s efforts to establish parenting time with the child, however, did not include any effort to establish child support. Indeed, none of the pleadings seeking to establish visitation filed by Father in either the juvenile court or the trial court in any way mention child support. Accordingly, the facts of this case are simply not analogous to the facts in In re Chelbie, in which this Court repeatedly emphasizеd that the parent in that case was “actively seeking to establish” both visitation and support through judicial proceedings. In re Chelbie, 2007 WL 1241252, at *6.11
The situation in this case is therefore more closely akin to In re Makenzie than In re Chelbie. Here, Father knew of his obligation to support the child, but did nothing to meet that obligation. At trial, Father admitted that his failure to pay support was because: (1) no child support order was ever entered directing him to do so; and (2) Appellants “weren‘t letting [him] see [the child].” Neither excuse holds weight in this Court. See In re Brookelyn W., No. W2014-00850-COA-R3-PT, 2015 WL 1383755, at *12 (Tenn. Ct. App. Mar. 24, 2015) (holding that the father‘s inability to visit the child was nо excuse for his failure to pay child support) (citing In re Audrey, 182 S.W.3d at 864 (“The parental duty of visitation is separate and distinct from the parental duty of support.“)); State, Dep‘t of Children‘s Servs. v. Culbertson, 152 S.W.3d 513, 523-34 (Tenn. Ct. App. 2004) (holding that parents owe an obligation to pay child support regardless of a court order requiring them to do so).
Here, regardless of his efforts to establish visitation with the child, there can be no dispute that Father was not providing support to the child, despite the ability to do so. See In re Makenzie, 2015 WL 3793788, at *20 (holding that the fact that parents were actively engaged in litigation to regain custody did not excuse their failure to support the child). Moreover, the lack of a court order that Father partially blames for his failure to provide support is largely the result of his own conduct. As previously discussed, Father and Appellants agreed at mediation that Father would pay child support, both retroactive and ongoing. Thereafter, it was Father that refused to honor the parties’ agreement based upon a purported disparity regarding the child‘s extracurricular aсtivities. Although Father did not disagree with his previous agreement to pay child support, he made no effort to do so during the relevant four-month period. Clearly then, Father‘s decision to withhold support from his child was “the product of free will rather than coercion[.]” In re Audrey, 182 S.W.3d at 863. Consequently, like in In re Makenzie, we also conclude that Father‘s participation in judicial proceedings to establish visitation with the child does not excuse his failure to pay support.
Father asserts in his brief, however, that he did pay support “once it became clear that the mediation agreement was not going to be formalized.” We cannot agree with Father‘s characterization of his efforts. First, we note that Father admits that the hand-written mediation agreement was signed in February 2015. Father‘s first support payment occurred in October 2015, approximately seven months later. Accordingly, Father was aware for several months of his duty to support the child but only attempted to provide support four months after the termination petition was filed. Moreover, these payments were made even though no formal support order had yet beеn entered. Accordingly, it stretches credulity to believe that Father could not likewise have attempted to provide support for the child in the absence of a court order prior to the filing of the termination petition. Rather, Father‘s efforts in the fall of 2015 were “simply too little, too late.” In re Michael, No. M2015-02497-COA-R3-PT, 2016 WL 7486361, at *16 (Tenn. Ct. App. Oct. 6, 2016) (citing In re K.M.K., No. E20140-00471-COA-R3-PT, 2015 WL 866730, at *6 (Tenn. Ct. App. Feb. 27, 2015) (holding that father‘s efforts after the termination petition was filed were “too little, too late“); In re A.W., 114 S.W.3d 541, 546 (Tenn. Ct. App. 2003) (holding that mother‘s improvement only a few months prior to trial was “[t]oo little, too late“)). As such, Father‘s attemрts at sending child support payments to Appellants only after the termination petition had already been filed did not, in our opinion, alleviate the fact that he consciously chose to withhold child support when he concededly was aware of his legal obligation to do so. See
Here, the record contains clear and convincing evidence that Father willfully failed to pay support for the child in the four months preceding the filing of the termination petition. Accordingly, we reverse the trial court and, instead, conclude thаt a ground for termination exists under
Conclusion
The judgment of the Coffee County Chancery Court is reversed аnd this cause is remanded to the trial court for further proceedings consistent with this Opinion. Costs of this appeal are taxed to Appellee, Chance B., for which execution may issue if necessary.