IN RE: Chad Andolino Charles Alaln Mix and Lorena May Mix v. Robert Barton - Concurring

• Court: Court of Appeals of Tennessee
• Decided: December 2, 1997
• Docket: 02A01-9510-CH-00224
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON FILED IN RE: CHAD ALAN ANDOLINO ) ) December 2, 1997 CHARLES ALAN MIX and LORENA ) MAY MIX, ) Cecil Crowson, Jr. ) Appellate C ourt Clerk Petitioners/Appellants, ) Decatur Chancery No. 2305 ) VS. ) Appeal No. 02A01-9510-CH-00224 ) ROBERT BARTON, ) ) Intervening Petitioner/ ) Appellee. )

APPEAL FROM THE CHANCERY COURT OF DECATUR COUNTY AT DECATURVILLE, TENNESSEE THE HONORABLE WALTON WEST, CHANCELLOR

THOMAS F. BLOOM Nashville, Tennessee Attorney for Appellants

LEW CONNER LARRY H. HAYES, JR. BOULT, CUMMINGS, CONNERS & BERRY, PLC Nashville, Tennessee Attorney for Appellee

AFFIRMED AND REMANDED

ALAN E. HIGHERS, J.

CONCUR:

DAVID R. FARMER, J.

DAVID G. HAYES, J. This case presents for review the decision of the Chancery Court of Decatur County finding that the Defendant, Robert Barton (“Father”) did not abandon his son, Chad

Andolino (“Son”) and, therefore, dismissing Plaintiffs’, Charles and Lorena Mix (“Mixes”),

petition for adoption. The Mixes appealed. For reasons stated hereinafter, we affirm the

judgment of the trial court.

Facts

Barton first met the natural mother of Son, Debra Andolino (“Mother”), on Easter

Sunday, April, 1991. Mother discovered she was pregnant in September, 1992. Son was

born May 12, 1993. Father and Mother began living together in January, 1993, and

continued to do so until March, 1993, when they separated. Mother has three daughters

from previous relationships.

The parties’ assertions of facts conflict in nearly every respect. The Mixes contend

that Father wanted Mother to get an abortion, that Father added virtually nothing to

Mother’s support while they lived together, that Father never evinced any real interest in

Son before or after his birth, and that Father only desires custody of Son now in order to

gain a promised financial windfall from Father’s mother. Father repudiates these claims

and argues that his apparent lack of care for Son is solely the result of attempts by the

Mixes to keep him from having any contact with Son.

Specifically, there is some dispute over Father’s contributions to Mother and Son

before and after Son’s birth. Father contends that Mother and he compiled their money

and split the bills. Mother asserts that Father made virtually no contributions to the

household. Several witnesses on behalf of Mother testified that Mother paid the bills,

bought food, and borrowed money from others in order to buy groceries and gas. Father

supplied several receipts to prove his contributions. Father contends that these are

representative of the financial contributions made by him to the household. Mother

testified that many of these receipts belonged to her and not Father.

Father admits to using illegal drugs and drinking alcohol in the past, but contends

that he has never drunk beer or taken any illegal drugs in front of the children and has

2 never encouraged the children to do so. Additionally, Father claims that, at the present

time, he does not partake of drugs, and only occasionally drinks beer.

Father admits that he did not aid with Mother’s medical costs during her pregnancy,

but asserts that Mother’s pregnancy was covered by Medicaid. Additionally, Father

contends that he escorted Mother to the doctor several times while she was pregnant with

Son. Mother contends that Father went to the doctor on one occasion for the “selfish

purpose” of verifying that Mother was pregnant and, on another occasion, to drop off

Mother at the emergency room.

Father and Mother separated in March, 1993. As Father and Mother’s relationship

was nearing an end, Mother contends that Father beat her daughter, Shantel, to the point

that bruises were left by the beating. Father admits only to “spanking” Shantel and denies

that he left any marks on her. As a result, Mother received a restraining order against

Father, restraining him from the house.

After separating, Father made no contact with Mother and Son. Father

acknowledged this lack of contact with Mother and Son after his separation with Mother.

However, Father alleged that this was because he did not understand that he was free to

contact her under the restraining order. Father and Mother did not see each other again

until April, 1993, when the two met at Pizza Hut, along with Lorena Mix, Mother’s friend,

Jennifer Roman, and Lorena Mix’s brother, Eddie. Mother was attempting to procure

Father’s consent for adoption. Father contends that he did not know why Mother called

the meeting, but he thought the meeting was probably to “talk peace.” Father asserts that

he had no idea that the meeting was to discuss adoption and the surrender of his parental

rights. Father did not agree to the adoption nor to the surrender his parental rights.

In April, 1993, Mother returned with Lorena Mix to Nashville, Tennessee. Lorena

Mix stayed with Mother in a Nashville hotel and was present when Mother went into labor.

The Mixes were married on May 1, 1993. Son was born on May 12, 1993, and has lived

3 with the Mixes since May 14 of that same year. Mother legally surrendered Son to the

Mixes. Mother did not tell Father that she had gone to Nashville, Tennessee. Father

called several hospitals to find the whereabouts of Mother. Unsuccessful in his attempts

to locate Mother, Father hired an attorney and a private investigator to find Mother and

possibly their newborn child. The private investigator located Mother and Son and informed

Father of their whereabouts.

After Son’s birth, Mother saw Father in June, 1993. Father asked Mother about

Son’s sex, name, and health. Mother alleges that Father made no further inquiry about

Son, and did not offer payment of support, nor payment of any hospital bills as a result of

the birth of Son. That same month, Mother started dating Father again. Mother asserts

that, in this time, Father never asked about Son. The relationship ended when Mother

discovered that the Mixes had been served with court papers on behalf of Father.

On June 3, 1993, the Mixes filed a petition for the adoption of Son. Father filed a

petition to intervene and a motion to dismiss petition for adoption on November 23, 1993.

On January 3, 1994, Father’s petition to intervene was allowed. An order was entered in

the state of Florida adjudicating Father to be the natural father of Son on June 6, 1994.

On June 7, 1994, the Mixes filed an amended petition for adoption in part to change Son’s

name to Charles Alan Mix from the present name of Chad Alan Andolino. On September

15, 1994, Father’s motion to dismiss the adoption was denied. Thereafter, on October 18,

1994, the Mixes filed a petition for a home study of Father on the claims that he did not

earn enough money or have a proper home in which to raise Son. On February 20, 1995,

the Mixes filed a petition for custody. Subsequently, on March 13, 1995, the trial court

issued its order denying the Mixes petition for adoption. The trial court found that

The evidence in this case does not rise to the level of clear and convincing proof of the father’s intent to abandon his child, especially considering that all legitimately controverted facts are to be resolved in favor of the father.

In determining that the evidence of abandonment was not clear and convincing proof, the

court stated:

Up until two months prior to the birth of the child, the father

4 resided with the mother and contributed support to the household. A protective order prohibited the father from contacting the mother between the dates of the parent’s separation in March and the birth of the child in May. . .[u]pon learning of the approximate date of the child’s birth, the father made efforts to locate the mother and child. After discovering the child had been placed for adoption, the father proceeded to file custody proceedings in Florida seeking custody of his child. In conclusion, the Court finds that the legal standard for abandonment in adoption cases has not been met.

A petition for transfer of custody and for a temporary restraining order were filed by

Father on May 26, 1995. Thereafter, Lorena Mix absconded with Son. On June 20, 1995,

the trial court ordered that Son be turned over to the Department of Human Services. On

July 3, 1995, Father filed an answer to the petition for custody. A motion for stay of

temporary custody order pending final custody determination was filed by the Mixes on

August 17, 1995. The trial court granted an additional fifteen days from October 5, 1995,

to perfect an interlocutory appeal of the dismissal of the Mixes’ petition for adoption. The

Mixes filed their notice of appeal on October 12, 1995.

By an order dated October 24, 1995, this Court remanded the case to the trial court

for a hearing to determine Father’s fitness and ability to take care of Son. The hearing was

conducted on December 1, 1995. By an order entered January 19, 1996, the trial court

found that Father had married, that Father and his wife had a stable home environment,

and that Father and his wife resided in appropriate physical facilities within which to rear

Son. However, the trial court further found that Father stayed away from home after his

regular work hours and spent that time involved in illegal drugs or frequenting places where

drugs were easily obtainable. The trial court concluded that Father could not provide a

stable home environment for Son and would not be an appropriate person to have custody

of Son. As it stands now, the Mixes have custody of Son, but have been denied the right

to adopt him. Father’s parental rights are still intact. This appeal ensued.

The Mixes appealed, challenging the order of the trial court finding that Father had

not abandoned Son and, thereby, dismissing their petition for adoption.

5 Discussion

Inasmuch as this case was tried by the court below sitting without a jury, this court’s

review on appeal is governed by Tennessee Rule of Appellate Procedure 13(d), which

directs us to review the case de novo. Roberts v. Robertson County Bd. of Educ., 692

S.W.2d 863, 865 (Tenn. Ct. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d

297, 300 (Tenn. Ct. App. 1984); T.R.A.P. 13(d). In conducting a de novo review of the

record below, however, this court must presume that the trial court’s findings of fact are

correct. Under this standard of review, we must affirm the trial court’s decision unless the

trial court committed an error of law affecting the result or unless the evidence

preponderates against the trial court’s findings. Roberts, 692 S.W.2d at 865. In this

regard, when a conflict in testimony requires the trial court to make a determination

regarding the credibility of a witness or witnesses, such a determination is binding on the

appellate court unless other real evidence compels a contrary conclusion. Hudson v.

Capps, 651 S.W.2d 243, 246 (Tenn. Ct. App. 1983).

Parents, including parents of children born out of wedlock, have a fundamental

liberty interest in the care and custody of their children under both the United States and

Tennessee Constitutions. Stanley v. Illinois, 405 U.S. 645 (1982); Nale v. Robertson, 871

S.W.2d 674, 678 (Tenn. 1994). These parental rights are primary and superior above all

others and continue unless the parent consents, relinquishes them, abandons his or her

child, or forfeits his or her parental rights by some conduct that is not in the best interest

of the child as provided in T.C.A. § 37-1-147(b)(c)(d)(1) - (6). Indeed, we recognize that

adoption proceedings profoundly affect not only the rights of the natural parents but also

the rights of the child and the adoptive parents. When an adoption is granted, the natural

parents are reduced to the role of complete strangers and have no rights, parental,

visitation or other insofar as the child is concerned. Grider v. Grider, 187 S.W.2d 613, 614

(Tenn. Ct. App. 1945). At this time, the granting of a petition for adoption establishes from

that date a relationship of parent and child between the adoptive parents and the adopted

child as if the adopted child had been born to the adoptive parents in lawful wedlock. In

Re Adoption of Dearing, 572 S.W.2d 929, 932 (Tenn. Ct. App. 1978).

6 At the time this case came to trial, Tennessee lacked a uniform standard for

determining whether a parent has abandoned his or her child.1 We should note that,

according to its express provisions, the definition of “abandoned child,” in the version of

T.C.A. § 36-1-102(1)(A) applicable at the time of this case, relates to cases where there

is an “action or proceeding to declare the child to be an abandoned child.” At the time of

this case, this had not been extended by amendment or construction to apply when the

issue of abandonment is under consideration in an adoption proceeding in the circuit or

chancery court. See In Re Adoption of Parsons, 766 S.W.2d 196, 200 (Tenn. Ct. App.

1988). Thus, the trial court is not limited by the definition of an abandoned child found in

T.C.A. § 36-1-102(1)(A) (1991 Supp.). Ex Parte Wolfenden, 349 S.W.2d 713, 714 (Tenn.

Ct. App. 1959).

The Tennessee Supreme Court has articulated the standards for determining

abandonment in adoption proceedings as follows:

Abandonment, as it pertains to an adoption proceeding, 2 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. . .

In re Adoption of Bowling, 631 S.W.2d 386, 389 (Tenn. 1982)(quoting Ex parte Wolfenden,

349 S.W.2d 713, 714 (Tenn. Ct. App. 1959)); See also In re Adoption of Female Child

(Bond v. McKenzie), 896 S.W.2d 546, 547 (Tenn. 1995). This Court has held that:

The evidence of abandonment must show a “conscious

1 A spe cial legislative co m m ittee studied Te nne sse e’s ad option laws. See S.J.Res. 17, 98th Gen. As sem bly, 1st S ess ., 1993 T enn . Pub . Acts 105 0. The com m ittee introd uce d legislation in the Nine ty-Ninth General Assembly that replaced the existing standard s with a sing le stan dard . See S. 653/H. 406, 99th Gen. As sem bly, 1st Sess., § [1], 36-1-102(1), at 3-6 (1995). This adoption sta ndard was codified at T .C.A. Title 36 Chapter 1 Parts 1 and 2 and became effective January 1, 1996. The definition of “abandoned child” app licable w hen this ca se c am e to trial was a s follow s: “Abandoned child” m ean s: A child whos e pa rents have willfully fa iled to visit or have willfully fa iled to support or m ak e re asonable payments toward such child’s support for four (4) consecutive months immediately preceding the institution of a n actio n or proceeding to declare the child to be an abando ned child. T.C.A. § 36-1-102 (1)(A) (1991Su pp.).

2 As a m atter of law, we note that at the time of this case there was a distinction in the law between cases where an abandonment is asked to be declared and those cases where not only is there an abandonment request, but also an adop tion of the abandoned child. In 1995, the form er situation was controlled by a statutory definition of “abandoned child” in T.C.A. § 36-1-102(1)(A) (1991 Supp.). In the latter situation, case law sets the precedent concerning the definition of “abandoned child.” The new version of the adoption statute, codified at T.C.A. Title 36, Chapter 1, Parts 1 and 2, encom passe s both situations. However, the events of this case took place before this statute was enacted on January 1, 1996.

7 disregard or indifference” for parental obligations and must demonstrate that there has been 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.

Francher v. Mann, 432 S.W.2d 63, 65 (Tenn. Ct. App. 1968). Accordingly, we concluded

that the conduct must amount to “an absolute, complete and intentional relinquishment

of all parental control and interest . . . [in] the child” in order to constitute abandonment.

Francher, 432 S.W.2d at 66.

As mentioned above, a natural parents rights are given a position of priority and

superiority over all others. The heightened burden of proof charged upon those seeking

a declaration of abandonment in an adoption proceeding is another safeguard against a

wrongful termination of these parental rights. Unlike most other civil cases requiring proof

by a preponderance of the evidence, adoption cases mandate the party asserting that a

parent has abandoned his or her child prove their case by clear and convincing evidence.

In re Adoption of a Female Child, 896 S.W.2d at 547; Koivu v. Irwin, 721 S.W.2d at 807.

The “clear and convincing evidence” standard defies precise definition. Majors v.

Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). While it is more precise than the

preponderance of the evidence standard, Rentenbach Engineering Co. V. General Realty

Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as the

“beyond a reasonable doubt” standard. Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn.

Ct. App. 1992). Clear and convincing evidence eliminates any serious or substantial doubt

concerning the correctness or the conclusions to be drawn from the evidence. See

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). It should produce in the

fact-finder’s mind a firm belief or conviction with regard to the truth of the allegations

sought to be established. Brandon v. Wright, 838 S.W.2d at 536; In re Estate of

Armstrong, 859 S.W.2d 323, 328 (Tenn. Ct. App. 1993).

The evidence in this record does not qualify by the foregoing standard.

8 Courts have consistently used the standards set forth in Ex parte Wolfenden and

Francher v. Mann to determine whether a parent has abandoned his or her child.3 These

decisions illustrate that the courts consider the following matters when ascertaining

whether an abandonment has occurred or not:

(1) The parent’s ability to support the child; (2) the amount of support the parent has provided to the child; (3) the extent and nature of the contact between the parent and the child; (4) the frequency of gifts on special occasions; (5) whether the parent voluntarily relinquished custody of the child; (6) the length of time the child has been separated from the parent; and (7) the home environment and conduct of the parent prior to or in lieu of any actual removal of the child to another.

Koivu v. Irwin, 721 S.W.2d 803, 807 (Tenn. Ct. App. 1986). No single factor is controlling.

O’Daniel v. Messier, 905 S.W.2d 182, 187 (Tenn. Ct. App. 1995). Abandonment inquiries

are heavily fact-oriented, so the courts may consider any fact that assists in deciding

whether the parent’s conduct demonstrates a conscious disregard of all of his or her

parental responsibilities. Id. We feel that it is important to note that abandonment by

natural parents may be found only when, being given benefit of every controverted fact,

such inference follows from the evidence as a matter of law. Ex parte Wolfenden, 348

S.W.2d at 756-757.

Turning to the factors articulated in Koivu, we agree with the trial court’s findings that

Father never abandoned Son. Regarding factor (1), Father has remarried, has regular

employment with a radio station and as a musician, and has a stable home environment

with his present wife. Factor (2) is a controverted fact, and as such, Father should be

given the benefit of this fact. Father testified that Mother and he “split the bills.”

Additionally, Father testified that he attempted to send clothes and toys to Son, but the

Mixes would not allow him to do so. The Mixes admit to denying Father any right to see

Son or assert his rights as a parent. Concerning factors (3), (4), and (6), as mentioned

above, the Mixes have denied Father any right to see Son or to assert any of his rights as

a parent; therefore, any efforts of Father were futile. Father requested visitation, but has

3 Pierce v. Bechtold, 448 S.W .2d 425 (Te nn. Ct. App. 1968); In re A doptio n of Fem ale Ch ild (Bond v. McK enzie), 896 S.W .2d at 547 (Te nn. 1995 ); In re Adoption of Parsons, 766 S.W .2d 196 (T enn. Ct. App. 1988); In re Adoptio n of Self, 836 S.W . 581 (Tenn . Ct. App. 1992); In re Rigsby, App. No. 01-A-01-9304-CV- 00171, slip op. at 10.

9 not been granted such by the Mixes. Father’s offers to send clothes and toys were

emphatically denied by the Mixes. Factor (5) is illustrated in that Father has refused to

surrender his rights after repeated request to do so by Mother. Upon learning of the

approximate date of Son’s birth, Father made efforts to locate Mother and Son. After

discovering that Son had been placed for adoption, Father filed custody proceedings in

Florida. Concerning factor (7), the conduct and home environment of Father in lieu of

actual removal of Son to the Mixes was stable in that Father had remarried, was employed

full time, and according to his testimony, did not presently partake of drugs and only

occasionally drank beer. In fact, the trial court found that Father and his new wife

presented a stable home environment for a child.

We recognize that the evidence concerning many of these factors was disputed at

trial. The trial court, however, was in a position to evaluate the credibility of the witnesses

at the hearing, and the court apparently resolved this dispute in favor of Father. We agree.

We feel that it is necessary to note the gravity and difficulty in this matter.

Undoubtedly, certain children would be better off without the presence of one parent or the

other in their lives, but that is not, and has never been a basis to grant a petition for

adoption. This is an adoption proceeding not a custody determination. As this court

quoted in Ex parte Wolfenden, “The rights of the parties and authority of the court in an

adoption proceeding differs greatly from those in a chancery action involving mere custody,

for adoption affects the course of inheritance, severing forever and conclusively the legal

rights and interests of the natural parents, while custody is only a change into another

relationship on a temporary basis.” Ex parte Wolfenden, 348 S.W.2d at 757.

We agree that it is one thing to say that a parent’s actions have been of such a

nature as to remove a child from the parent’s home, but it is quite another thing to say that

a parent’s actions have gone so far as to decree that “the child is no longer your child.”

Based on the evidence in this record, giving Father the benefit of every controverted

10 fact, there is no clear and convincing evidence that Father abandoned Son and the

evidence does not preponderate against the findings of the trial court. We hereby affirm

the judgment of the trial court dismissing the Mixes petition for adoption.4

Conclusion

Based on the foregoing analysis, we affirm the trial court’s finding that Father had

not abandoned Son, and that it would not be in Son’s best interests to terminate Father’s

parental rights. We further affirm the dismissal of the Mixes’ petition for adoption. This

case is remanded to the trial court for such other and further proceedings as may be

necessary and consistent with this opinion. Costs are taxed to the appellants, for which

execution may issue if necessary.

HIGHERS, J.

FARMER, J.

4 In light of our affirmance of the judgm ent of the trial court, w e de cline to address the issue of whether the appellants perpetrated fraud by stating in their petition for adoption and in their amended petition for adoption that the father of the child in question was unknown. Although appellee properly raised this issue, it has b eco m e m oot.

11 HAYES, J.