In Re Adoption of Copeland

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED
March 30, 2000

Cecil Crowson, Jr.
Appellate Court Clerk
IN RE: ) E1999-01514-COA-R3-CV
)
ADOPTION OF BRIAN DUSTIN )
COPELAND and SAVANNAH )
COPELAND. )
)
)
)
MARIE GRAHAM and JOHN GRAHAM, ) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CHANCERY COURT
Petitioners-Appellees,)
)
v. )
)
)
)
TIMOTHY COPELAND, )
) HONORABLE W. FRANK BROWN, III,
Respondent-Appellant. ) CHANCELLOR

For Appellant For Appellees
BARRY L. ABBOTT JOHN ALLEN BROOKS
Cavett & Abbott, PLLC Chattanooga, Tennessee
Chattanooga, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

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 The trial court terminated the parental rights of

Timothy Copeland (“Father”) to his children, Brian Dustin
Copeland (DOB: December 1, 1987) and Savannah Copeland (DOB:
October 10, 1990). Father appeals, raising the following issues:

1. Did the trial court err in exercising
jurisdiction over Father in order to
terminate his parental rights?

2. Did the trial court err in finding
sufficient statutory grounds for the
termination of Father’s parental rights?
3. Did the trial court err in finding that
the evidence presented at trial satisfies the
clear and convincing standard of proof
required to terminate Father’s parental
rights?

I. Facts

Father has always lived in Alabama. The children,
Brian Dustin and Savannah, were born to Father and his wife, Gina
Marie Copeland, while they were married and living in Scottsboro,

Alabama. They lived in Alabama during the entire period of their

marriage. Father’s only contact with Tennessee prior to the
filing of the petition in the instant case was the time he spent

visiting with relatives here.

Father killed his wife in the State of Alabama when

Brian Dustin was six and Savannah was three. Shortly after the

murder, Father pled guilty to killing Mrs. Copeland and was

sentenced to 29 years in prison. Father’s first parole

eligibility date is in the month of January, 2002.

The petitioners, who are residents of Hamilton County,

are the maternal grandparents of the children. Shortly after

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their daughter’s death, they were awarded temporary custody of

the children by the Jackson County, Alabama, Juvenile Court.
Following the award by the Alabama court, the children’s case was
transferred to the Hamilton County Juvenile Court, and the

petitioners were eventually granted full legal guardianship of
the children by that court.

The children had lived with the petitioners for more
than three years prior to the filing of their October, 1997,
petition to adopt the children and to terminate Father’s parental

rights. The petition alleges two grounds for termination of
Father’s parental rights: (1) abandonment pursuant to T.C.A. §
36-1-113(g)(1) (Supp. 1999); and (2) Father’s conviction of a

crime resulting in a sentence of more than 10 years, at a time
when his children were under the age of eight, pursuant to the

provisions of T.C.A. § 36-1-113(g)(6) (Supp. 1999).

Prior to the murder of his wife, Father played an

active role in the parenting of his children. He has become a

model prisoner while incarcerated, successfully completing a
rehabilitation program that only 12% of participants complete.

He is actively involved in several organizations designed to

promote accountability and responsible decision-making. Until
the trial court issued what is in effect a no-contact order,

Father made several attempts to maintain a relationship with his

children.

Rhonda Jacks, the children’s mental health counselor,
testified at trial that the children suffer from post-traumatic

stress disorder. Jacks testified that the children have

nightmares, recurrent memories of losing their mother,

3
flashbacks, mood swings, and a variety of other symptoms, all

triggered by the murder of their mother, an event heard -- but
apparently not seen -- by both children. Jacks opined that the
children need a sense of permanency and that further contacts

with Father would be harmful to them.

In an order entered November 6, 1998, the trial court

found that it had jurisdiction of this matter under the authority
of the Uniform Child Custody Jurisdictional Act (“UCCJA”), T.C.A.
§ 36-6-201 et seq. A hearing on the substantive grounds of the

petition was held on May 28, 1999. On June 4, 1999, the trial
court filed its memorandum opinion and order holding that the
evidence clearly and convincingly supported two grounds for

termination of Father’s parental rights: (1) abandonment under
T.C.A. § 36-1-113(g)(1), because, under the definition then in

effect, Father willfully failed to support his children; and (2)
pursuant to T.C.A. § 36-1-113(g)(6), confinement to a
correctional facility under a sentence of ten or more years at a

time when his children were both under the age of eight. The

trial court also found that the petitioners had demonstrated that
termination of Father’s parental rights was in the children’s

best interests. Father’s appeal followed.

4
 II. Standard of Review

In this non-jury case, our review is de novo upon the
record, with a presumption of correctness as to the trial court’s

factual determinations, unless the evidence preponderates
otherwise. Rule 13(d), T.R.A.P.; Wright v. City of Knoxville,

898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s

conclusions of law, however, are accorded no such presumption.

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);

Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

III. Jurisdiction

The trial court held that it had jurisdiction over this

matter under the authority of the Uniform Child Custody

Jurisdiction Act (“UCCJA”), which was in effect at the time the
trial court rendered its decision.1 The UCCJA, which must “be

construed to promote [its] general purposes,” T.C.A. § 36-6-

201(b) (1996), is designed in part to

[a]ssure that litigation concerning the
custody of a child take place ordinarily in
the state with which the child and the
child’s family have the closest connection
and where significant evidence concerning the
child’s care, protection, training, and
personal relationships is most readily
available, and that courts of this state
decline the exercise of jurisdiction when the
child and the child’s family have a closer
connection with another state.

1
The UCCJA was subsequently replaced by the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”), effective June 14, 1999. See
Chapter 389, Public Act of 1999.

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T.C.A. § 36-6-201(a)(3) (1996). Under the UCCJA, a court has

jurisdiction to make a “custody determination” if Tennessee is
the “home state” of the child at the time of commencement of the
proceeding.2 T.C.A. § 36-6-203(a)(1)(A) (1996). A child’s

“home state” is “the state in which the child immediately
preceding the time involved lived with such child’s parents, a
parent or a person acting as parent, for at least six (6)

consecutive months....” T.C.A. § 36-6-202(5) (1996).

The term “custody determination” refers to “a court

decision and court orders and instructions providing for the
custody of a child, including visitation rights.” T.C.A. § 36-6-
202(2) (1996). A “custody proceeding” is defined to include

“proceedings in which a custody determination is one (1) of
several issues....” T.C.A. § 36-6-202(3) (1996). Under T.C.A. §

36-1-116(h) (Supp. 1999), the filing of an adoption petition is
deemed the commencement of a custody proceeding for purposes of
the UCCJA.

Father argues that the trial court erred in asserting
jurisdiction over this matter because Father does not have the

necessary minimum contacts with Tennessee.

Generally, a state may not exercise personal

jurisdiction over a non-resident party unless that party has

minimum contacts with the state. International Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95

(1945). The Supreme Court has not mandated, however, that every

jurisdictional analysis include this minimum contacts

2
There are other bases of jurisdiction contained in subsection (a) that do
not require discussion under the facts of the instant case.

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requirement. In Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569,

53 L.Ed.2d 683 (1977), the Court stated that the rationale of

International Shoe Co. was not meant to “suggest that

jurisdictional doctrines other than those discussed in text, such

as the particularized rules governing adjudication of status, are

inconsistent with the standard of fairness.” Id., 433 U.S. at

208 n. 30, 97 S.Ct. at 2582 n. 30.

We have held that “[c]ases involving the custody of

children are precisely the type of ‘status’ cases...alluded to in

Shaffer v. Heitner.” Fernandez v. Fernandez, 1986 WL 7935, *2

(Tenn.Ct.App. M.S., filed July 15, 1986). See also Warwick v.

Gluck, 751 P.2d 1042, 1045 (Kan.Ct.App. 1988) (“custody is in

effect an adjudication of a child’s status, which falls under the

status exception of Shaffer v. Heitner”). Accordingly, we are

persuaded that Tennessee courts may adjudicate child custody
issues under the UCCJA even if one of the parents does not have
minimum contacts with Tennessee.3 See Fernandez, 1986 WL 7935,

at * 1.

Father next asserts that this case is distinguishable
from Fernandez in that Ferndandez was a custody case and this

case concerns the termination of his parental rights. He argues
that, while an exception may apply for custody cases, there is no
such exception for proceedings concerning the termination of
one’s parental rights. We disagree.

3
It is important to emphasize the difference between the jurisdictional
standards under the UCCJA and those under International Shoe. “Rather than
directing courts to determine whether the defendant parent has minimum
contacts with the forum state, the [UCCJA] directs courts to determine which
state has the maximum contacts with the child and his family.” Ferndandez,
1986 WL 7935, at *2.

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 Parents have the right to the care, custody and control

of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92

S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). This right is not

absolute, however; it may be terminated if there is clear and

convincing evidence justifying such termination under the

applicable statute. Santosky v. Kramer, 455 U.S. 745, 769, 102

S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982). An order terminating a

parent’s rights severs these rights, as well as all parental

duties, forever. T.C.A. § 36-1-113(l)(1) (Supp. 1999).

Therefore, a termination-of-parental rights proceeding determines

whether a parent will retain custodial rights of his or her

child. We accordingly find and hold that, when construing the

UCCJA in light of the general purposes stated in T.C.A. § 36-6-

201, a termination of parental rights proceeding constitutes a

“custody proceeding” within the meaning of T.C.A. § 36-6-202(3).

Moreover, with respect to whether the minimum contacts
test must be satisfied, we find no reason to view a termination

of parental rights proceeding differently from that of a pure
custody proceeding. In both types of cases, the court’s
principal determination is where and with whom a child should or

should not live. This is necessarily a determination of “status”
and, as such, it comes within Shaffer’s “status exception” to the

minimum contacts rule of International Shoe. See In re Interest

of M.L.K., 768 P.2d 316, 319 (Kan.Ct.App. 1989).

For the foregoing reasons, we find and hold that, in a

termination of parental rights action, Tennessee courts may

exercise jurisdiction under the UCCJA over a non-resident parent

notwithstanding that parent’s lack of minimum contacts with

Tennessee. Furthermore, because the children in this case have

8
lived in Tennessee with the petitioners for at least six

consecutive months prior to the filing of the petition, the trial
court did not err in finding that it had jurisdiction to
determine whether Father’s parental rights should be terminated.

IV. Grounds for Termination

The next issue raised on appeal is whether the trial
court erred in finding a sufficient statutory ground for the
termination of Father’s parental rights. As previously

indicated, the petition alleges two grounds for termination: (1)
abandonment pursuant to T.C.A. § 36-1-113(g)(1); and (2) long-
term incarceration pursuant to T.C.A. § 36-1-113(g)(6). While we

find that the trial court’s determination as to the first ground
was erroneous, we affirm its holding as to the second.

Under the provisions of T.C.A. § 36-1-113(g)(1),
termination of parental rights may be based upon a parent’s

abandonment of his or her child. “Abandonment” is defined in

T.C.A. § 36-1-102(1)(A)(i) (Supp. 1999) as follows:

[f]or 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.

Id. “Willfully failed to visit” is defined in the Code as “the

willful failure, for a period of four (4) consecutive months, to
visit or engage in more than token visitation.” T.C.A. § 36-1-

9
102(1)(E) (Supp. 1999). Most importantly, the most recent

version of the statute provides that “[w]illfully failed to
support” or “[w]illfully failed to make reasonable payments
toward such child’s support” means “that, for a period of four

(4) consecutive months, no monetary support was paid or that the
amount of support paid is token support.” T.C.A. § 36-1-
102(1)(D) (Supp. 1999). It is important to point out that the

failure-to-support definitions, as they exist in the most recent
version of the statute, do not include an element of intent.

The trial court found that, based on the above
definitions, the Father had abandoned his children because he had
“not supported his children in the four months preceding the

filing of the Petition.”

Following the decision in this case, the Supreme Court,
on October 4, 1999, found the above definitions of “willfully
failed to support” and “willfully failed to make reasonable

payments toward such child’s support” to be unconstitutional

because they “in effect create an irrebuttable presumption that
the failure to provide monetary support for the four months

preceding the petition to terminate parental rights constitutes

abandonment, irrespective of whether that failure was
intentional....” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

The Supreme Court then stated that the definition that was in
effect under prior law should be applied until the legislature

amends the statute. Id. at 189.

Under the law as it existed prior to In re Swanson, an

“abandoned child” was defined as

10
 [a] child whose parents have willfully failed
to visit or have willfully failed to support
or make reasonable payments toward such
child’s support for four (4) consecutive
months immediately preceding institution of
an action or proceeding to declare the child
to be an abandoned child.

T.C.A. § 36-1-102(1)(A)(i) (Supp. 1994). “Willfully failed to
visit” is defined as “the willful failure, over four (4)

consecutive months, to visit or to engage in more than token
visitation.” T.C.A. § 36-1-102(1)(B)(ii) (Supp. 1994). There is
no separate definition of “willfully failed to support or make

reasonable payments toward such child’s support”. Thus, under
the 1994 law, which is to be applied in light of the Supreme
Court’s decision in In re Swanson, both the failure-to-visit and

the failure-to-support definitions contain an element of intent.

Father argues that he has never intended to abandon his
children. He contends that he is unable, due to his

incarceration, to either generate income to support his children
or to visit them despite his desire to do both. On the other
hand, the petitioners argue that, because murder is a willful

act, the Father’s failure to support or visit his children is
willful in that it is a direct consequence of his willful killing
of the children’s mother.

We do not find clear and convincing evidence to support
termination of Father’s parental rights on the ground of

abandonment. Though Father’s murder of the children’s mother was
a willful act, we do not believe that his intent to commit murder
translates into an intent not to visit or support. Father has

attempted, as far as his limited liberty would allow him, to
maintain a relationship with his children. A court order has

11
prevented him from even sending letters to his children or

talking with them on the phone. There is no evidence that he is
earning income in prison, and thus no evidence that he has the
means to support his children. Absent some intent, we cannot

terminate his parental rights on the ground that he has willfully
failed to visit or support them. We therefore find that the
trial court’s determination that the Father’s parental rights

should be terminated on the ground of abandonment is erroneous.

The second ground upon which the petition for

termination of parental rights is based is found in T.C.A. § 36-
1-113(g)(6). Under this provision, parental rights may be
terminated where

[t]he parent has been confined in a
correctional or detention facility of any
type, by order of the court as a result of a
criminal act, under a sentence of ten (10) or
more years, and the child is under eight (8)
years of age at the time the sentence is
entered by the court.

T.C.A. § 36-1-113(g)(6) (Supp. 1999).

Father argues that the statute is intended to provide a

basis for terminating parental rights where there is no
reasonable probability that a parent will be able to maintain any

form of parental relationship with a child for ten or more years

during the child’s minority. He contends that the trial court’s

failure to take into account the possibility of his parole in

January, 2002, contravenes the intent of the statute. The
petitioners emphasize the fact that the statute says nothing

about parole, and argue that to account for the mere possibility

of parole at some time in the future contravenes the statute’s

12
purpose of providing a more certain future for the children.

We agree with the petitioners that the trial court did
not err in its application of T.C.A. § 36-1-113(g)(6). The

elements of the statute are clearly satisfied. Father has been
confined to a correctional facility by order of a court for the
murder of his wife. When he was sentenced to 29 years in prison,

his children were both under the age of eight. The statute is
silent as to the possibility of parole, and we decline to read
any intent on the part of the legislature to account for a mere

possibility of early discharge from prison. The evidence does
not preponderate against the trial court’s finding that, upon
clear and convincing evidence, the requirements of the statute

have been met. We therefore find and hold that the trial court
was correct in finding a basis for terminating Father’s parental

rights under the provisions of T.C.A. § 36-1-113(g)(6) (Supp.
1999).

V. Standard of Proof

Finally, Father argues that the evidence presented at

trial failed to satisfy the standard of proof required to

terminate his parental rights. We disagree.

Under T.C.A. § 36-1-113(c), termination of parental

rights must be based upon:

(1) A finding by the court by clear and
convincing evidence that the grounds for
termination or [sic] parental or guardianship
rights have been established; and

(2) That termination of the parent’s or
guardian’s rights is in the best interests of
the child.

13
T.C.A. § 36-1-113(c)(1)-(2) (Supp. 1999). Therefore, a finding
by clear and convincing evidence that grounds for termination
exist is only part of the analysis; the termination must also be

in the best interests of the children.

Father argues that the evidence is not clear and

convincing that grounds exist for termination or that termination
is in the best interests of the children. In furtherance of this
argument, Father relies on the following language in the case of

In re Adoption of Bowling, 631 S.W.2d 386 (Tenn. 1982):

The issue before us is whether the conduct of
[the father], as found by the Chancellor and
affirmed by the Court of Appeals, constitutes
an abandonment of his child under the
definition of that term which we have
hereinabove adopted. Upon this issue the
holding of the Court of Appeals was as
follows:
We hold that when one parent
murders his or her spouse and is
subsequently sentenced to prison
for a substantial period of time,
such conduct evinces a settled
purpose to forego all parental
duties and relinquish all parental
claims to the child. Therefore, in
the case at bar, [the father] has
abandoned his son by virtue of his
act of murdering the child’s mother
and his subsequent prison sentence
of 40 years.
If the Court of Appeals is holding that the
father’s murder of the child’s mother and his
subsequent imprisonment for 40 years
constitutes an abandonment as a matter of
law, we are not in complete agreement with
that conclusion. However, we do conclude
that the father’s murder of the child’s
mother and his subsequent sentence of
imprisonment of 40 years, coupled with the
father’s entire course of conduct of neglect,
failure to support his family and his
repeated acts of violence and criminal
conduct toward members of the family do
support the finding of abandonment made by
the lower courts.

14
Id. at 389-90. Father asserts that Bowling stands for the

proposition that a father’s murder of his children’s mother and

subsequent long-term incarceration does not necessarily

constitute abandonment as a matter of law. He contends that

something else is required, and that, because the act that led to

his incarceration was an isolated incident, termination of his

parental rights was not proper.

As we have previously noted, we agree with Father that

petitioners have not established by clear and convincing evidence

that Father willfully abandoned his children. We also agree that

the evidence tends to establish that he supported his children

prior to the murder and that he is now a model prisoner.

However, we find that the trial court did not err in determining

that there was clear and convincing evidence to support
termination on the ground that Father is currently confined to a

correctional or detention facility under a sentence of more than
ten years and, at the time of the sentence, his children were
both under the age of eight. Furthermore, it should be noted

that Bowling was decided prior to the introduction of the ground

of incarceration as a statutory basis for terminating parental
rights, a ground which was first introduced into the Code by
Chapter 532, Public Acts of 1995, effective January 1, 1996.

Bowling simply holds, under the law then in effect, that long-

term incarceration is not, per se, proof of abandonment.
Obviously, that case has no application to the issue of whether

long-term incarceration, under a subsequently-enacted statute, is

a basis for termination of the prisoner’s parental rights.

We further affirm the trial court’s determination that

15
termination is in the best interests of the children. Jacks, the

children’s mental health counselor, testified that the children,
who were at least within hearing distance of the murder, continue
to suffer from post-traumatic stress syndrome triggered by the

murder. They have recurring memories of the event, nightmares,
flashbacks and mood swings. Jacks testified that the children
need a sense of permanency and that it would be harmful to them

to visit or have any contact with their father. For these
reasons, we find that the trial court did not err in concluding
that the evidence was clear and convincing that grounds existed

for termination and that termination is in the best interests of
the children.

The judgment of the trial court is affirmed. This case
is remanded for further proceedings consistent with this opinion

and collection of costs assessed below, all pursuant to
applicable law. Costs on appeal are taxed to the appellant.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

________________________
Herschel P. Franks, J.

________________________
D. Michael Swiney, J.

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