COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
March 25, 1998
Cecil Crowson, Jr.
IN THE MATTER OF )THHEA MAIDLOTPOTNI OCNOUNTY
Appellate Court Clerk
OF SUMMER SIERRA )MA0S3SAE0N1G-A9L7E08-CV-00373
)
CRAIG MARCEL BULL) and
DEBRA FAYE BULL )
)
Petitioners-App)ellants
)
KAREN DENISE MASS)ENHGOANLS.EAMUEL H. PAYNE,
) J U D G E
Co-Petitioner)
)
v. )
)
CHRISTOPHER WAYNE) R A N D O L P H
)
Respondent-Appe)lAlFeFeIRMED AND REMANDED
MICHAEL S. PINEDA OF CHATTANOOGA FOR APPELLANTS
CHARLES G. WRIGHT, JR., OF CHATTANOOGA FOR APPELLEE
O P I N I O N
Goddard, P.J.
In this adoption proceeding, Craig Marcel Bull and his
wife, Debra Faye Bull, appeal a determination of the Circuit
Court for Hamilton County that they had not shown by clear and
convincing evidence that Christopher Wayne Randolph, father of
Summer Sierra Massengale, was guilty of any acts which would
entitle them to have his parental rights terminated. This
determination, of course, precluded the Bulls from adopting the
child.
The Bulls contend that the Trial Court failed to use
the proper standard in determining whether an abandonment had
occurred, and that the record supports a finding of abandonment
under the proper standard. They also insist that Mr. Randolph's
parental rights should be terminated under certain provisions of
T.C.A. 36-1-113(g), hereinafter set out.
The Trial Judge entered the following memorandum
opinion which embraced his findings of fact and conclusions of
law:
This cause came on to be heard on April 8, 1997,
upon a petition to terminate the parental rights of
Christopher Randolph. The petition was filed by Craig
and Debra Faye Bull, who have present custody of this
minor child by virtue of an order from the Juvenile
Court. This Court heard testimony from Craig Bull,
Debra Faye Bull, Christopher Randolph, Shirley
Massengale, paternal grandmother, Tammy Lane, and Scott
Giles and the deposition for proof of the natural
mother, Karen Massengale. This petition was filed and
accompanied with an adoption petition. The natural
mother, Karen Massengale, consented to the adoption and
Mr. Christopher Randolph, the natural father of the
child, has filed an answer seeking to deny the adoption
and gain custody of his minor child. This matter was
filed pursuant to T.C.A. 36-1-102 and 36-1-113. Mr. &
Mrs. Bull obtained the child, who was born in May 1996,
approximately six weeks after her birth. The Bulls
picked the child up from the natural mother's
grandmother, Shirley Massengale, and have resided since
that time at 610 Bivins Road. Mr. & Mrs. Bull have
three other children. The Bulls obtained custody of
this minor child from the Juvenile Court by virtue of
filing a petition along with an affidavit from the
natural mother, Karen Massengale, who is presently
incarcerated in the penitentiary. In their petition
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they alleged in Juvenile Court they did not know the
address or whereabouts of the natural father,
Christopher Randolph. Christopher Randolph avers he
was never notified, was never served, and had no idea
where the child was so that he could pay support, or so
he could visit. This Court finds that the natural
mother, Karen Massengale, knew how to get in touch with
Christopher Randolph and they intentionally did not
notify him to be at the hearing in Juvenile Court. The
testimony revealed that neither Mr. or Mrs. Bull or
Karen Massengale even made any attempt to contact or
serve the natural father, Christopher Randolph. It is
in evidence that Christopher Randolph filed a petition
to legitimate this child and even visited the child
while it was in the hospital after its birth. He
alleges that he paid $50 on several occasions to the
mother before the birth and even after the birth. The
natural mother denies this and says he only paid $25.
The evidence shows that Christopher Randolph has
visited with the child at the hospital, has had the
child on overnight visitation on two other occasions.
Christopher Randolph says he then lost awareness of
where the child was and since the natural mother was in
the penitentiary he could not find the child until he
was served with the Petition for Adoption. Mr.
Randolph called the grandmother, Shirley Massengale,
and the natural mother, Karen Massengale, and they
would not reveal the child's location. Christopher
Randolph, the natural father of this child, has served
seven years in the penitentiary for rape and the
natural mother is now in the penitentiary. When this
child was born, the mother was on cocaine and the child
even had a cocaine habit, according to their testimony.
It is also in evidence that the natural father,
Christopher Randolph, supplied clothes and diapers for
the child when he knew where she was. The testimony of
all the parties in this case was highly conflicting and
this Court could not say that the burden of proof to
terminate the natural father's rights has been carried.
This Court finds that there is not clear and convincing
evidence for the grounds of termination of the father's
rights as set forth in T.C.A. 36-1-113(c)(1), which
requires a finding by the Court of clear and convincing
evidence that the grounds for termination of parental
rights have been established---or T.C.A. 36-1-113(5)(g)
or any of the grounds that are stated in this section.
The Court further finds that there is no clear and
convincing evidence that the parent has abandoned the
child or violated any of the provisions set forth in
T.C.A. 36-1-113(7)(B) or (8)(A).
This Court finds that the father is now presently
working at Aladdin Industries in Dalton, Georgia and
makes approximately $518.40 per week. Although the
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natural father, Christopher Randolph, has admitted to
having alcohol and drug problems, he says he is now
presently clean and has been through a recovery program
with AA. At the trial he was clean, well dressed and
had complete control of himself and has maintained his
job for some period of time. It is in evidence here
that the natural father grasped at every opportunity to
develop some relationship with his child, and he
constantly called the mother, even when she was in the
penitentiary, and the grandmother trying to locate the
child. Neither natural parent in the case before the
Court qualifies as what this Court would call totally
responsible parents. Therefore, this child should be
left in the custody of Mr. & Mrs. Bull and child
support be fixed at $85.00 per week by the natural
father, Christopher Randolph, and the case returned to
Juvenile Court for the fixing of visitation rights
and/or further determination of their temporary custody
decree. This Court recommends counseling for all
parties and, if necessary, the help of the Department
of Human Services in establishing a reasonable
visitation schedule. The Tennessee Supreme Court in
1994 stated that a father whose child has been
legitimated can defeat adoption by withholding consent
to adoptionN al-e -v.- R obSeretseo n, 871 S.W.2d 674
(1994). The Court also O'hDaenileld v .in the case of
Messier, 905 S.W.2d 182 (1995), that a party seeking
declaration of abandonment in adoption case must prove
his or her case by heightened "clear and convincing
evidence" standard to safeguard against wrongful
determination of biological parent's parental rights.
The Court also heldKo iivun v . tIrhwien, c7a2s1e of
S.W.2d 803 (1986) that a finding of possible
abandonment in adoption proceeding, or the lack of such
finding, on the part of one parent is not to be
interpreted as conclusive to the other parent or the
ultimate issue.
In considering whether there has been abandonment
in this case, the Court has considered such factors as
the parent's ability to support the child, the amount
of support the parent has provided to the child - or
tried to provide, extent and nature of contact between
the parent and the child - or his attempts to visit,
frequency of gifts on any special occasions - such as
gifts of clothes and diapers, and whether the parent
voluntarily relinquished custody of the child. This
Court finds the natural father did not voluntarily
relinquish custody. The length of time the child has
been separated from the parent is approximately one
year. The home environment and conduct of the parents
prior to removal of the child are suspect. The natural
father or natural mother, Karen Massengale, had no home
environment with this child after its birth, but only
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periodic visitation as other people cared for the
child. This Court, although not approving of the
natural father's or natural mother's conduct in any
manner, cannot say that the father under this proof has
evidenced any conduct which evidences a settled purpose
to forego all parental duties and relinquish all
parental rights to this child by clear and convincing
evidence.
T.C.A. 36-1-113, which addresses abandonment as a
ground for termination of parental rights, provides as pertinent
to this appeal the following:
36-1-113. Termination of parental rights.
. . . .
(g) Termination of parental or guardianship rights
may be based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as
defined in § 36-1-102, has occurred.
T.C.A. 36-1-102 defines abandonment as follows:
36-1-102. Definitions.-- As used in this part,
unless the context otherwise requires:
(1)(A) "Abandonment" means, for purposes of
terminating the parental or guardian rights of
parent(s) or guardian(s) of a child to that child in
order to make that child available for adoption, that:
(I) 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 make reasonable payments toward
the support of the child;
. . . .
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(iii) A biological or legal father 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; provided, that in no instance
shall a final order terminating the parental rights of
a parent as determined pursuant to subdivision
(1)(A)(iii) be entered until at least thirty (30) days
have elapsed since the date of the child's birth.
Koivu v., E7r2w1i nS.W.2d 803 (Tenn.App.1986), was
relied upon by the Trial Court, which defined abandonment under
the statute then in effect, and quoted with approval from earlier
cases and American Jurisprudence, as follows (at page 808):
In addressing this question Mr. Justice Brock, speaking
for the CAoduoprtiton oif nBo wling v. Bowling, 631
S.W.2d 386 (Tenn.1982)W,ol feandnend, quoting from
which in turn quotes from American Jurisprudence, said
the following (at page 389):
"So, the issue of abandonment should be resolved by
the Circuit Court under the following statement of
law:
'Abandonment imports any conduct on the part of the
parent which evinces a settled purpose to forego
all parental duties and relinquish all parental
claims to the child. It does not follow that the
purpose may not be repented of, and, in proper
cases all parental rights again acquired.... But
when abandonment is shown to have existed, it
becomes a judicial question whether it really has
been terminated, or can be, consistently with the
welfare of the child.' 1 Am.Jur., Adoption of
Children, § 42." 349 S.W.2d at 714.
By a 1996 amendment to T.C.A. 36-1-102(1)(G), the
Legislature specifically overruled the definition of abandonment
containKeodi vibuny providing the following:
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(G) "Abandonment" does not have any other
definition except that which is set forth herein, it
being the intent of the general assembly to establish
the only grounds for abandonment by statutory
definition. Specifically, it shall not be required
that a parent be shown to have evinced a settled
purpose to forego all parental rights and
responsibilities in order for a determination of
abandonment to be made. Decisions of any court to the
contrary are hereby legislatively overruled.
While it is true the Trial Judge's opinion relied upon
case law repealed by the Legislature, it is clear that it he
accredited the testimony of Mr. Randolph and his witnesses rather
than those of the mother and her witnesses on the question of
whether his conduct was wilful.
As already noted, the Bulls also contend that they are
entitled to termination of Mr. Randolph's parental rights under
the following Sections of T.C.A. 36-1-113(g):
(8)(A) The parental rights of any person who is not the
legal parent or guardian of a child or who is described
in § 36-1-117(b) or (c) may also be terminated based
upon any one (1) or more of the following additional
grounds:
(i) The person has failed, without good cause or
excuse, to pay a reasonable share of prenatal, natal,
and postnatal expenses involving the birth of the child
in accordance with the person's financial means
promptly upon the person's receipt of notice of the
child's impending birth;
. . . .
(vi) The person has failed to file a petition to
establish paternity of the child within thirty (30)
days after notice of alleged paternity by the child's
mother.
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With regard to Sub-section (i), the record supports the
finding of the Trial Court that Mr. Randolph gave certain monies
to the mother and offered to pay medical bills, but this offer
was refused because these bills were being paid through TennCare.
As to Subsection (vi), there is nothing in the record
to show that the mother ever gave "notice of the alleged
paternity." Additionally, we note that Mr. Randolph, of his own
volition, legitimated the child, as shown by a recommendation of
the Referee of the Juvenile Court (which was presumably approved
by the Juvenile Judge) dated December 9, 1996, which was after
the petition was filed in this Court, but long before the hearing
in the Trial Court on April 8, 1997.
It should also be noted that these provisions only
apply to one who is not a legal parent, which is defined in
T.C.A. 36-1-102(26) to be:
(26) "Legal parent" means:
. . . .
(D) 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-
118, 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.
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Finally, we observe that Sub-section (8) uses the
precatory word "may," rather than the mandatory one "shall."
We accordingly conclude that--upon deferring to the
Trial Judge's judgment as to credibility and upon using the
correct standard--the evidence failed to show by clear and
convincing evidence that Mr. Randolph was guilty of any acts
justifying termination of his parental rights.
For the foregoing reasons the judgment of the Trial
Court is affirmed and the cause remanded for such further
proceedings as may be necessary and collection of costs below.
Costs of appeal are adjudged against the Bulls and their surety.
_______________________________
Houston M. Goddard, P.J.
CONCUR:
________________________________
Don T. McMurray, J.
________________________________
Charles D. Susano, Jr., J.
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