IN THE COURT OF APPEALS OF TENNESSEE FILED
AT KNOXVILLE May 19, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
BETHANY CH RISTIAN SERVICES,) C/A NO. 03A01-9810-JV-00345 INC., )
) HAMILTON JUVENILE Appellee, )
) HON. SUZANNE BAILEY, v. ) JUDGE )
JONATHAN NATHANIEL JACKSON, )
)
Appellan t. )
)
IN THE MATTER O F: ) AFFIRMED ) AND
JACOB ELIJAH MELTON. ) REMANDED
MIC HAE L S. JE NNIN GS, S AM PLES , JENN INGS & PIN EDA , P.L.L.C ., Chattanooga, for Appellee.
BAR BAR A L. BR OER SMA , Chattano oga, for A ppellant.
O P I N IO N
Franks, J.
In this termination of parental rights case, plaintiff Bethany Christian Services, Inc., sued the putative father, Jonathan Nathaniel Jackson, and the Trial Judge terminated Jackson’s parental rights.
On December 1, 1997, Jacob Elijah Melton, was born to Jessica Renee Melton. Jessica identified the father as Jackson, and on December 2, 1997, Jessica entered into an agreem ent with pla intiff to surren der her par ental rights to th e child and to have the child placed for adoption. This action against Jackson was filed on December 10, 1997, alleging abandonment, and seeking custody for adoptive placement. Plaintiff later amended the Petition adding alternative grounds for
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termination of parental rights un der Tenn. Cod e Ann. § 36-1-1 13(g)(8)(A)(I), (ii), (iii), (iv), and (vi). (R. 1 8).
On February 18, 1998, Jackson filed an Answer and Counter-Petition, denying that he had abandoned his child , requesting blood tests to determine paternity, visitation w ith the child pe nding the re sults of the tes ting, and req uesting, if paternity be established, that custody be placed with him or his parents.
In ordering termination after the evidentiary hearing, the Trial Court made findings of fact and stated she found by clear and convincing evidence:
That the p etition filed by B ethany Christia n Services , Inc., is well taken and should be sustained and relief granted on the grounds of abandonment and other causes therein stated and as amended in that the respondent has willfully failed to visit and 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; that the responde nt has failed , without go od cause or excuse , to pay a reason able share of prenatal, natal, and postnatal expenses involving the birth of the child in accordance with his financial means promptly upon his receipt of notice of the child’s impending birth; that the respondent has failed, without good cause or excuse, to make reasonable and consistent payments fo r the suppo rt of the child in accorda nce with th e child support guidelines promulgated by the department pursuant to 36-5-101;
that the respondent has failed to seek reasonable visitation with the child; that the respondent has failed to manifest an ability and willingness to assume legal and physical custody of the child; that the responde nt has failed to file a petition to establish pa ternity of the child within thirty (30) days after notice of alleged paternity by the child’s mother.
The test results finding Jonathan to be the father were released on March 18, 1998 . At the trial Jon athan testified that after the b aby was bo rn Jessica w ould see him at school and give him derogatory looks. She later started saying “hello” when he saw her. Sometime in February of 1998, Jessica approached him and said, “ple ase d on’t go to the c ourt, don ’t go, I wa nt the bab y to go to an adoption agency, whatever.” He said that he told one of her friends that he wanted to see pictures, and that Jessica told the friend that she would not let him see any. He also said that he was not em ployed, b ut that he could g et a sum mer job at the po st offic e or a gr ocery stor e.
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When asked if he is willing to accept custody and if he would like to have custody, he said, “Correct.”
Except for filing the counter-action to get custody of Jacob, he made no effort to see the child. He admitted that Jessica told him she was pregnant and that he was the father. He also said that she called him sometimes, but that he was not allowed to speak to her. He knew that the baby was born in December because he saw Jessica at school. Though he knew the baby was born, he never attempted to check on the bab y, and nev er offe red Jess ica any m oney to su pport th e child.
The standard of review of this case is de novo upon the record of the Trial Court with the presumption of correctness of the Trial Court’s findings, unless the evidence preponderates otherwise. T.R.A.P. Rule 13(d). We conclude the evidence does not preponderate against the finding by the Trial Court, by clear and convincing eviden ce, that Jackson aband oned his child and that the o ther factors justifying termination were present. It does not preponderate against the finding that termination and adoption are in the best interests of the child.1 Tennessee Code Annotated provides that “[t]ermination of parental or guardianship rights must be based upon: (1) A finding by the court by clear and convincin g evidenc e that the gro unds for te rmination o f parental o r guardians hip rights have been established ; and (2) That termination o f the parent’s or guardian’s rights is in the best interests of the child.” Tenn. Code Ann. § 36-1-113(c) (Supp. 1998). The relevant grounds for termination of parental rights in this case are:
(1) Aban donmen t by the parent o r guardian, a s defined in §36-6 -102, h as occu rred; . . .
(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
1 At the time of trial, Ms. Melton was age 14 and Jackson was 16.
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the following additional grounds:
(I) The perso n has failed, w ithout go od cause or ex cuse , to pa y a reasonable share of prenatal, natal, and postnatal expenses involving the birth of the ch ild in accordance w ith the person’s financial means promptly upon the person’s receipt of notice of the child’s impending birth;
(ii) The person has failed, without good cause or excuse, to make reasonab le and con sistent paymen ts for the sup port of the c hild in accordance with the child support guidelines promulgated by the department pursuant to § 36-5-101;
(iii) The person has failed to seek reasonable visitation with the child, and if v isitation has be en granted , has failed to v isit altogether or has engaged in only token visitation, as defined in § 36-1-102(1)(C);
(iv) The person has failed to manifest an ability and willingness to assum e legal a nd physic al custo dy of the child; . . .
(vi) The pe rson has fa iled to file a pe tition to establish paternity of the child within thirty (30) days after notice of alleged paternity by the child’s mother, or as required in § 36-2-318(j), or after making a claim o f paternity pursuant to § 36-1-11 7(c)(3).
Tenn. Code Ann. § 36-1-11 3(g) (Supp. 1998 ).
In the past, abandonment had been defined by the courts as “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. . . .” Ex Parte Wolfenden, 48 Tenn. App. 433, 441, 348 S.W.2d 751, 755 (1961). To prove abandonment, the evidence had to show “an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relationship and throw off all obligations growing out of the same.” Fancher v. Mann, 58 Tenn. App. 471, 476, 432 S.W.2d 63, 65 (19 68).
In 1996, however, the General Assembly changed this definition of abandon ment, setting f orth in its place its own de finition. The General A ssembly explicitly stated:
“Abandonment” and “abandonment of an infant” do not have any other defin ition excep t that which is set forth in this section, it being the in tent of the g eneral assem bly to establish the only groun ds for a bando nmen t by statuto ry definitio n. 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 orde r for a d etermi nation of aban donm ent to be made .
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Decision s of any co urt to the con trary are he reby legislativ ely overruled.”
Tenn. Code Ann. § 36-1-10 2(1)(G) (1996) (em phasis added).
The definition of abandonment as contained in the Code is as follows:
(1)(A) “Abandonment” means, for purposes of terminating the parental or g uardian righ ts of paren t(s) or guardia n(s) of a ch ild to that child in order to make that child available for adoption, that:
(I) For a perio d of fou r (4) consec utive mon ths immed iately preceding the filing of a proceeding or pleading to terminate the parental righ ts of the pare nt(s) or guard ian(s) of the c hild who is the subject of the petition for termination of parental rights or adoption, th at the paren t(s) or guardia n(s) either ha ve 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 biologic al or legal fath er has either w illfully 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 un til at least thirty (30) days ha ve elapsed since the da te of the child ’s birth;
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(B) For purposes of this subdivision (1), “token support” means that the supp ort, under the circumstan ces of the in dividual ca se, is insignificant given the parent’s means;
(C) For purposes of this subdivision (1), “token visitation”
means that the visitation, under the circumstances of the individual case, constitutes nothing m ore than perfunctory visitation or visitation of such an infrequ ent nature of such sh ort duration as to merely establish minimal or insubstantial contact with the ch ild;
(D) For p urposes o f this subdiv ision (1), “w illfully failed to support” or “willfully failed to mak e reasonable paymen ts toward such child’s support” means that for a period of four (4)
consecutive months, no monetary support was paid or that the amount o f support p aid is token s upport;
(E) For pu rposes of th is subdivision (1), “willfully failed to visit”
means that willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation;
(F) Abandonment may not be repented of by resuming visitation or suppor t subseque nt to the filing o f any petition se eking to terminate parental or guardianship rights or seeking the adoption of a child;
Tenn. Code Ann. § 36-1-10 2 (Supp. 1998).
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Jackson argues that he did not abandon the child, but he relies solely on the definition of abandonment in the court cases that were legislatively overruled by the statutory definition of abandonment. Applying the statutory definition, as the statute requires, clear and convincing evidence establishes that Jackson did abandon his child .
It is undispute d that Jacks on made no suppo rt payments to J essica wh ile she was pregnant or after the baby was born. It is also undisputed that Jackson made no attem pt to visit J essica w hile she was p regnan t or visit th e child a fter he w as born . Instead, Jackson avoided contact with Jessica by refusing to take her phone calls and refusing to talk to her at school. Since there was no visitation or support of Jessica before the child was born, this is clearly a situation that falls within the definition of abandonment found in Tenn. Code Ann. § 36-1-102(1)(A)(iii), which merely requires a willful failure to visit or willful failure to make reasonable payments toward the support of the child’s mother for four months immediately preceding the birth of the child.
Willful failure to visit means minimal or insubstantial contact, and willful failure to support means that no monetary support, or only token support, was paid for a period of four consecutive months. Moreover, other grounds exist for terminating the parental rights of Jackson. The statute provides six additional grounds for termination of the rights of a person who is not the legal parent. These grounds apply to Ja ckson . See Tenn. Code Ann. § 36-1-113(g)(8)(A). Any of these grounds constitu tes a bas is to term inate pa rental rig hts, but f ive are a pplicab le to Jack son. Gro und (I) states that t he “p erso n has failed, w ithout go od cause or ex cuse , to pa y a reasonable share of the prenatal, natal, and postnatal expenses involving the birth of the child in accordance w ith the person’s financial mea ns promptly upon the pe rson’s receipt of notice of the child’s impending birth.” Jackson was notified of the
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pregnancy sometime in April, 1997, and the child was born December 1, 1997. Jackson knew that the child was born in December. Though he admitted that he was in good physical shape and could get a job, he made no attempt to pay any of the expense s of the birth o f the child. H e cannot re ly upon Jessica ’s failure to co ntact him or provide him with bills, because he had the responsibility to initiate contact and give suppo rt.
Ground (ii) states that “the person has failed, without good cause or excuse, to m ake reason able and c onsistent pa yments for the support of the child in accordance with the child support guidelines . . . .” Granted, Jackson was not employed, b ut he testified th at he was capable o f some type o f employm ent. The ch ild support gu idelines prov ide for imp uting incom e to person s who are voluntarily unemployed. Jackson thus has no good excuse for failing to make some type of support payments.
Ground (iii) provides tha t the “person has failed to seek reaso nable visitation with the child . . . .” Jackson has never made an attempt to see the child. As of the time of trial, when the child was almost five months old, Jackson had never seen the ch ild, and this fac tor is undispu tedly present.
Ground (iv) provide s that the “pe rson has fa iled to man ifest an ability and willingness to assume legal and physical custody of the child.” Jackson was informed of the impending birth of his child in April, 1997, and he knew the child was born in December, 1997. During the pregnancy and after the birth, he never initiated any cont act with Jessica.
Lastly, ground (vi) provides that the “person has failed to file a petition to establish paternity of the child within thirty (30) days after notice of alleged pate rnity b y the c hild’s mo ther.” Jac kson did n ot fil e a pe tition to establi sh pa ternity, and did not adm it the pate rnity until M arch, 19 98, wh en bloo d tests w ere retu rned.
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The statute, however, requires only notice of alleged paternit y, not certa in patern ity. Under the terms of the statue, this ground for termination of parental rights exists as well.
We af firm the judgm ent of th e Trial C ourt in a ll respec ts.
Jackson has raised the issue of the constitutionality of T.C.A. §36-1-113 as applied to unborn children of unwed parents. This issue was not raised in the Trial Court, and the Tenn essee Sup reme Co urt has stated, “ It has long b een the ge neral rule that question s not raised in the trial court w ill not be enterta ined on ap peal and th is rule applies to an attemp t to make a constitutiona l attack upo n the validity of a statute for the first time on appeal unless the statute involved is so obviously unconstitutional on its face as to obviate the necessity for any discussion.” Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). Nor was the Attorney General notified of any challenge, as required by Tenn. R. Civ. P. 24.04. Since the issue was not raised in the Trial Cou rt, and since th e statute is not so “uncons titutional on its fa ce as to obv iate the nec essity for a ny discus sion,” w e declin e to con sider this issue on appea l.
Accordingly, we remand the case to the Trial Court with cost of the appeal assessed to the appellan t.
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Herschel P. Franks, J.
CONCUR:
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Houston M. Godd ard, P.J.
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Charles D. Susano, Jr., J.