IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON February 18, 2003 Session IN THE MATTER OF: D.A.H., DOB: 12/11/00, A Child Under 18 Years Of Age, ET AL. A Direct Appeal from the Juvenile Court for Shelby County No. M7027 The Honorable Harold Horne, Judge, No. W2002-00733-COA-R3-JV - Filed July 28, 2003 This termination of parental rights case is before this Court upon the Court’s granting of Appellant father’s Petition for Rehearing. Our first opinion in this matter was predicated upon the fact that father’s Petition to Establish Parentage and the subsequent Consent Order Establishing Parentage were omitted from the record on appeal. Upon rehearing, the record has been supplemented to include these two documents. The father appeals from the final order of the juvenile court terminating parental rights to his child. Specifically, the father asserts that the grounds for termination cited by the trial court are no longer applicable based on the Supreme Court’s recent holding in Jones v. Garrett, 92 S.W.3d 385 (Tenn. 2002). Because we find that father has been adjudicated to be the legal parent of this child, we find that Jones v. Garrett is applicable. We reverse the Order of the trial court and remand for any further proceedings as may be necessary. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed and Remanded W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and DAVID R. FARMER , J., joined. Claiborne H. Ferguson, Memphis, For Appellant, Timothy Wayne Cope Kevin W. Weaver, Cordova, For Appellee, Mid-South Christian Services, Inc. OPINION This is a termination of parental rights case. Timothy Wayne Cope (“Mr. Cope,” “Appellant,” or “Father”) and Cynthia Ann Honeycutt (“Ms. Honeycutt,” or “Mother”) began dating in January 2000 and lived together in Memphis, Tennessee until June 2000 when Mr. Cope moved to Pensacola, Florida. At that time, Ms. Honeycutt was pregnant. Mr. Cope was informed of the pregnancy during the first trimester. On December 11, 2000, Ms. Honeycutt gave birth to D.A.H, the child at issue in this case. Although Mr. Cope was not present for the birth, Ms. Honeycutt called him in Florida to inform him of D.A.H.’s birth. Due to medical reasons, D.A.H. remained in the hospital until December 18, 2000. Mr. Cope did not visit the child in the hospital. On December 19, 2000, Ms. Honeycutt contacted Mid-South Christian Services (“Mid-South,” or “Appellee”) and discussed the process for surrendering her parental rights and giving the child up for adoption to Ms. Honeycutt’s second cousin and her spouse, Wendell and Julie Lewis, who live in Kentucky. On December 19, 2000, Ms. Honeycutt entered into an interim foster care agreement with Mid-South to provide care for the child until the adoptive couple could obtain interstate compact approval to take D.A.H. to Kentucky. D.A.H. was placed in a foster care home provided by Mid-South. Mr. Cope was not informed about the interim foster care agreement or the child’s being placed in the foster home. On January 3, 2001, Ms. Honeycutt and Mr. Cope telephoned Mid-South to express their desire to parent D.A.H. The phone call was made from Ms. Honeycutt’s apartment in Memphis. Mid-South made plans with Ms. Honeycutt and Mr. Cope to meet at Mid-South’s office to pick up the child. Neither Mr. Cope nor Ms. Honeycutt came to the Mid-South office, nor did they call to make other arrangements to pick up the child. On January 10, 2001, Ms. Honeycutt called Mid-South from Florida. During that phone call, Ms. Honeycutt stated that she could not parent the child, that Mr. Cope did not support the adoption plan but that he was taking no steps to prepare to parent the child. At that time, Ms. Honeycutt stated that she would like her parental rights to be terminated. On February 5, 2001, Ms. Honeycutt came to Mid-South’s office and stated that she desired to surrender her parental rights. Mr. Cope was in Memphis with Ms. Honeycutt but did not accompany Ms. Honeycutt to Mid-South. While at Mid-South on February 5, 2002, Ms. Honeycutt signed a voluntary surrender before the Juvenile Court of Memphis/Shelby County, wherein she surrendered her parental rights to Mid-South. On February 20, 2001, Ms. Honeycutt spoke with Mid-South personnel by phone to obtain an update on the interstate placement of the baby. On March 12, 2001, Ms. Honeycutt visited with D.A.H. at Mid-South. Although Mid-South personnel asked for Mr. Cope’s address, Ms. Honeycutt would not give them the information. On March 29, 2001, Ms. Honeycutt again visited with D.A.H. at Mid-South. Also on March 29, 2001, Mr. Cope called Mid-South and asked Ms. Chunn, the director, what he needed to do to gain custody of his child. Although Ms. Chunn discussed the options with Mr. Cope, the Petition for Termination was filed on March 29, 2001. The Petition for Termination alleges, in pertinent part, that: 9. Pursuant to T.C.A. § 36-1-113(g)(1), Petitioner asserts that Respondent, Timothy Wayne Cope, has, for a period of four (4) -2- consecutive months immediately preceding the filing of this petition, abandoned the child, in that he has willfully failed to visit the child.1 10. Petitioner further asserts that pursuant to T.C.A. §§ 36-1- 113(g)(9)(A)(i), (ii), (iii), (iv) and (vi), Respondent, Timothy Wayne Cope, has failed, without cause or excuse, to pay a reasonable share of prenatal, natal, and postnatal expenses involving the birth of [D.A.H.], in accordance with his financial means, promptly upon his receipt of notice of the child’s impending birth. Further, Respondent, Timothy Wayne Cope, has failed, without good cause or excuse, to make reasonable and consistent payments for the support of the child in accordance with the child support guidelines promulgated by the State of Tennessee Department of Children’s Services, pursuant to T.C.A. § 36-5-101. Respondent, Timothy Wayne Cope, has also failed to manifest an ability and willingness to assume physical custody or to seek reasonable visitation with the child since the birth of the minor child, [D.A.H.]. Further, Respondent, Timothy Wayne Cope, has failed to file a petition to legitimate the child within thirty (30) days after notice of alleged paternity by the child’s mother. On April 4, 2001, interstate approval was granted to allow the prospective adoptive couple to take the child to their home in Kentucky. On April 10, 2001, Mr. Cope was personally served with a copy of the petition seeking termination of his parental rights. On May 9, 2001, at the initial hearing in this matter, Mr. Cope and Ms. Honeycutt appeared before the trial court and Mr. Cope requested DNA testing. DNA was collected from Ms. Honeycutt and Mr. Cope on May 11, 2001 and from D.A.H. on August 2, 2001. Test results dated August 14, 2001 were conclusive as to Mr. Cope’s paternity. On July 18, 2001, at the next hearing before the trial court, the court appointed a guardian ad litem for D.A.H. and separate legal counsel for Mr. Cope and Ms. Honeycutt. Mr. Cope filed an Answer to the Petition to Terminate Parental Rights on August 13, 2001, which asserted the following affirmative defenses: 1. Any and all allegations regarding Respondent’s failure to support should be stricken and not taken into consideration in this matter as his alleged omissions were not willful and the statute does not create 1 Paragraph 9 of the Petition for Termination was subsequently amended to read as follows: “Pursuant to T.C.A. § 36-1-113(g)(1), Petitioner asserts that Respondent, Timothy W ayne Cope, has abando ned the child, as abandonm ent is defined in T.C.A. § 36-1-102 , in that Respondent, for a period of four (4) consecutive months immediately preceding the filing of this petition abandoned the child, in that he has willfully failed to visit the child, and Respondent has either willfully failed to visit or willfully failed to make reasonable payments toward the support of the child’s mother during the four (4) months immediately preceding the birth of the child. -3- an irrefutable presumption that failure to support a child constitutes abandonment. In Re Brittany Swanson, 2 S.W.3d 180 (Tenn. 1999). The Respondent has insurance to pay the Child’s medical expenses and there was no court order to require Respondent to make support payments to Petitioner. 2. Any and all allegations regarding respondent’s failure to visit with his child for a period of time should not be considered willful because the child is in the custody of the Petitioner, the respondent resides in Florida, and a very short time has transpired in this matter (approximately 3 months). Furthermore, the Mother and Maternal Grandmother falsely reported the condition and location of the Child to the Respondent, thus making reasonable visitation difficult for Respondent. On August 13, 2001, Mr. Cope also filed a Motion for Dismissal, which was subsequently denied by Order dated September 19, 2001. On September 5, 2001, Mr. Cope filed a Petition to Establish Parentage. A Consent Order Establishing Mr. Cope Parentage was signed on December 4, 2001. The matter proceeded to trial on December 17, 2001. Ms. Honeycutt did not appear to contest the validity of her voluntary surrender or to testify at the hearing. On February 14, 2002, the trial court entered an Order of Default Judgment and Termination of Parental Rights (the “Final Order”). The Final Order reads, in pertinent part, as follows: FINDINGS OF FACT * * * 2. Mr. Cope admits that he is the father of [D.A.H.], and the DNA test results support Mr. Cope’s admission. * * * CONCLUSIONS OF LAW 1. This Court has jurisdiction over this proceeding pursuant to TCA- 36-1-113(a) and 37-1-104. 2. The Respondent, Timothy Wayne Cope, has failed to seek reasonable visitation with the infant [D.A.H.]. 3. The Respondent, Timothy Wayne Cope, has failed to manifest an ability and willingness to assume legal and physical custody of the infant [D.A.H.]. -4- 4. The Respondent, Timothy Wayne Cope, has failed to file a petition to legitimate within thirty (30) days after notice of paternity by the child’s mother. 5. In accordance with TCA-36-113© [sic](1) and (2), there is clear and convincing evidence to support the termination of Timothy Wayne Cope’s parental rights regarding the child, and the termination of Timothy Wayne Cope’s parental rights is in the best interest of [D.A.H]. Mr. Cope appeals from the Final Order of the trial court and raises one issue for our review: Whether there is clear and convincing evidence to terminate Mr. Cope’s parental rights in light of the Supreme Court’s recent holding in Jones v. Garrett, 92 S.W.3d 835 (Tenn. 2002).2 The application of Jones v. Garrett to this case is a question of law. As such, our review of the trial court’s order is de novo upon the record with no presumption of correctness accompanying the trial court’s conclusions of law. See Tenn. R. App. P. 13(d); Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998); Sims v. Stewart, 973 S.W.2d 597, 599-600 (Tenn. Ct. App. 1998). The Supreme Court’s holding in Jones v. Garrett is clear: “Tennessee Code Annotated section 36-1-113(g)(8)(A)(vi)3 applies only to cases in which no legal relationship between the parent and child has been established.” Id. at 840 (parenthetical omitted). T.C.A. § 36-1- 102(28)(D) (Supp. 2002) defines “Legal parent” as follows: A man who has been adjudicated to be the legal father of the child by any court or administrative body of this state or any other state or territory or foreign country or who has signed, pursuant to §§ 24-7- 113, 68-3-203(g), 68-3-302 and 68-3-305(b), an unrevoked and sworn acknowledgment of paternity under the provisions of Tennessee law, or who has signed such a sworn acknowledgment pursuant to the law of any other state, territory, or foreign country... Because Mr. Cope has been adjudicated to be the legal father of D.A.H., under Jones v. Garrett, his parental rights cannot be terminated on any of the grounds found in T.C.A. § 36-1- 113(g)(9)(A). The trial court’s final Order, cited supra, lists only those termination grounds found in T.C.A. § 36-1-113(g)(9)(A), to wit: (1)the Respondent, Timothy Wayne Cope, has failed to seek 2 The Ap pellant initially raised two issues in his brief. At oral argument, all issues were waived except the one here stated. 3 At the time of the Jon es v. G arrett hearing, T.C.A. § 36-1-113(g)(8)(A) was the correct citation to the section of the statute referring to no tice. However, presently that citation is T.C .A. § 3 6-1-1 13(g)(9)(A). -5- reasonable visitation with the infant [D.A.H.];4 (2) the Respondent, Timothy Wayne Cope, has failed to manifest an ability and willingness to assume legal and physical custody of the infant [D.A.H.];5 and (3) the Respondent, Timothy Wayne Cope, has failed to file a petition to legitimate within thirty (30) days after notice of paternity by the child’s mother.6 Under the precedent established by our Supreme Court in Jones v. Garrett, we must reverse the Order of the trial court. Accordingly, the order of the trial court terminating the parental rights of Appellant, Timothy Wayne Cope, is vacated. The case is remanded to the trial court for further proceedings to consider the other grounds for termination alleged in the petition for termination. It is the responsibility of the Appellant to present to this Court a full and complete record on appeal. The Appellant’s failure to include the Petition to Establish Parentage and/or the Consent Order Establishing Parentage has required a second review by this Court. Costs of this appeal are, therefore, assessed to the Appellant, Timothy Wayne Cope, and his surety. __________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. 4 See T.C.A. § 36 -1-113(g)(9)(A)(iii). 5 See T.C.A. § 36 -1-113(g)(9)(A)(iv). 6 See T.C.A. § 36 -1-113(g)(9)(A)(vi). -6-