In Re Betty P.

Citation: Not availableDocket: E2010-00318-COA-R3-PT

Court: Court of Appeals of Tennessee; September 28, 2010; Tennessee; State Appellate Court

Original Court Document: View Document

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Macaria L. Mother appeals the termination of her parental rights to her five children, following a bench trial where the court determined she abandoned them by willfully failing to pay child support. The court found clear and convincing evidence supporting this termination and awarded full guardianship to the State of Tennessee. The children, ages ranging from 6 to 15 years, first came to the attention of the Department of Children’s Services (DCS) due to truancy issues and were later adjudicated as dependent and neglected due to inadequate care and living conditions. After living with relatives in overcrowded conditions and failing to meet basic needs, the children were placed in protective custody. Although the parents initially showed progress, they later failed to maintain a safe environment, resulting in the revocation of a trial home visit. DCS subsequently created multiple permanency plans requiring the mother to address various responsibilities including meeting the children's medical and educational needs, securing stable housing, and obtaining a legal source of income. The court affirmed the termination of parental rights, and the case was remanded.

Mother was ordered to pay $100 monthly in child support for all five children, starting retroactively from February 5, 2008, as part of a plan that aimed for both reunification and adoption. Additionally, she was mandated to undergo a psychological evaluation and complete a parenting assessment. The permanency goal was later shifted solely to adoption. On November 5, 2008, the Department of Children’s Services (DCS) filed a petition to terminate parental rights, citing four grounds against Mother: abandonment by non-support, severe child abuse, substantial non-compliance with permanency plans, and persistent conditions preventing the children’s return. 

Evidentiary hearings were conducted over six days between July and December 2009, during which the children had been in foster care for over two years, with a brief unsuccessful home visit. Mother had remarried by December 29, 2008, after leaving Father. The court ultimately terminated both parents' rights, finding that while Mother had substantially complied with the plans and maintained a home for six months, her two-bedroom apartment was insufficient for her family of seven. The court concluded that Mother had not made significant improvements in her life to ensure the children's safety and best interests. 

Termination of rights was confirmed based solely on the ground of abandonment due to her willful failure to pay child support, established by clear and convincing evidence, particularly for the four months preceding the petition. The court noted Mother was aware of her child support obligations and had previously held jobs, though challenges such as language barriers affected her employment stability. Following the ruling, Mother filed a notice of appeal, questioning the trial court's finding of abandonment for failure to support. The appellate review will assess whether the trial court's findings met the clear and convincing evidence standard, with a presumption of correctness unless proven otherwise.

In determining the preponderance of the evidence, considerable deference is given to the trial court's assessments of witness credibility, which can only be overturned with compelling evidence to the contrary. Legal questions are reviewed without any presumption of correctness. Parents possess a fundamental right to the care and custody of their children, a right protected under the Due Process Clauses of both federal and state constitutions. Termination of parental rights is a serious action that irrevocably alters the relationship between parent and child, severing all legal rights and obligations. While parental rights are prioritized over external claims, they are not absolute and may be terminated on valid statutory grounds. Due process necessitates clear and convincing evidence supporting both the existence of grounds for termination and that such termination serves the best interests of the child. The law stipulates that both elements must be demonstrated with clear and convincing evidence to reduce the risk of wrongful decisions. This standard requires a high probability that the asserted facts are true, instilling a firm belief in the fact-finder regarding these facts. The mother contests the trial court's conclusion that her non-support constituted abandonment, arguing that her failure to pay child support was not willful and therefore insufficient for terminating her parental rights. The trial court's decision to terminate her rights was based on statutory grounds of abandonment as defined under relevant Tennessee law.

Code section 36-1-102 (Supp. 2009) outlines the criteria for terminating parental rights based on abandonment, defined as a willful failure to support or visit a child for four consecutive months preceding the termination petition. In this case, the relevant period was from July 5 to November 5, 2008. The trial court found that the mother had willfully failed to meet her child support obligations during this timeframe, supported by clear and convincing evidence. Despite being ordered to pay child support beginning March 2008, the mother only made payments in March and April of that year and did not make any payments during the specified four-month period. The court noted that while the mother had been employed until May 2008 and maintained employment from June to August 2008, she made substantial expenditures (over $1,000) on a vehicle instead of fulfilling her child support obligations. The court concluded that her failure to pay was willful, dismissing her claims of unemployment as a justification, and emphasized that willfulness in these cases hinges on the parent’s awareness of their support duty and ability to pay. The concept of willfulness is fact-specific and determined by the totality of circumstances, with the trial court in the best position to assess intent based on the evidence presented.

Mother was employed from November 2007 until May 2008 but was terminated due to her illegal alien status. She worked at a laundromat and McDonald’s from June to August 2008, leaving the laundromat due to an allergic reaction and subsequently being fired from McDonald’s for absences without a doctor’s excuse. By late 2007, she had separated from Father and began living with her 22-year-old boyfriend, Mr. Cesar A., whom she married in December 2008. At the time of the termination hearing, the children were unaware of this marriage.

In June 2008, Mother and Mr. A. purchased a car for over $3,000, with a down payment of $400. From June to November 2008, Mother made cash payments totaling over $1,000 toward the car, while failing to pay any child support during that time. During questioning at trial, Mother acknowledged the payments but claimed they were made jointly with Mr. A., despite the receipts being in her name. 

Evidence presented at trial indicated that while Mother worked for two months during the relevant period, she had access to other funds but did not provide proof for her claimed illness that prevented her from working. Her in-home services provider testified that Mother did not report being too ill to work and attended all scheduled visits. Although she claimed to be looking for work, she did not attend a job interview arranged by her provider and provided no details on job searches from August 2008 until May 2009, when she began employment at a hotel. The court acknowledged the challenges posed by her illegal status, language barriers, and intellectual functioning but noted that Mother had consistently found work. The court found her argument regarding the car payments unconvincing and irrelevant.

While her Children were in foster care, Mother repeatedly chose to use cash for personal expenses, specifically for a car, rather than supporting her Children, demonstrating a willful failure to fulfill her parental responsibilities. The trial court found clear and convincing evidence of abandonment based on this behavior. 

The court evaluated whether terminating Mother's rights was in the best interest of the Children, referencing factors outlined in Tenn. Code Ann. 36-1-113(i). These factors include the parent's ability to provide a safe environment, the efforts made toward lasting adjustments, the maintenance of contact with the Children, the existence of a meaningful relationship, the potential emotional impact of a change in caretakers, any history of abuse or neglect, the safety and health of the home environment, the parent's mental and emotional status, and compliance with child support obligations.

The trial court concluded that termination was in the best interest of the Children because Mother had not made sufficient improvements to safely care for them. Despite claiming recent positive changes due to church and support group involvement, the court noted her living conditions were unsuitable, her interactions with the Children were inadequate after over two years of foster care, and communication barriers existed due to language differences. Additionally, the parenting assessment indicated her inability to effectively parent five children. The court highlighted her lack of child support payments, despite being employed since May 2009, as a significant factor in its decision.

Mother provided no substantial justification for her failure to pay child support after securing steady employment, merely stating her inability to pay due to the cancellation of court hearings. The trial court's findings supporting the best interest of the Children were upheld, particularly given testimony from the foster parent, Ms. Julia P., who had cared for the Children for two months and was considering adoption. Ms. P. was trained in therapeutic foster care, understood the Children’s educational needs, and had been actively involved in their schooling. The Children thrived in her care, displaying affection and improvement in their academic performance. The court concluded that there was clear and convincing evidence that terminating Mother’s parental rights was in the best interest of the Children. Furthermore, the State's arguments regarding other grounds for termination were deemed unnecessary to address since the ground of abandonment due to non-support was sufficiently established. The ruling affirmed the trial court’s decision to terminate parental rights, with costs of the appeal assessed to the appellant, Macaria L., and the case remanded for enforcement of the judgment and collection of costs.