In Re: Sierra Cheyenne Satterwhite

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 12, 2001, Session

IN RE: SIERRA CHEYENNE SATTERWHITE

Appeal from the Chancery Court for Hamilton County

No. 99 A 023 W. Frank Brown, III, Chancellor

FILED APRIL 17, 2001

No. E2000-02107-COA-R3-CV

The Maternal Grandparents of the Minor Child filed a petition to terminate the biological

father's and Mother's parental rights to Minor Child and to adopt her. The Minor Child, who was

born out of wedlock, had lived with her Maternal Grandparents all of her life. She viewed her

grandparents as her parents. Default judgment was granted against Mother. Father never supported

the child and had limited visitation with her. The Trial Court terminated both the biological Father's

and Mother's parental right’s. Father appealed. We affirm the decision of the Trial Court.

Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Chancery Court Affirmed and

Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

D. MICHAEL SWINEY, JJ., joined.

Alan R. Beard, Chattanooga, Tennessee, for the Appellant, Timothy Pelfrey

Glenna M. Ramer, Chattanooga, Tennessee, for the Appellees, James and Margaret Satterwhite

OPINION

This is a termination of parental rights case filed by the Maternal Grandparents of Minor

Child, who seek to adopt the child. Default judgment was entered against Mother. The Trial Court

ordered parental rights of the Father to be terminated and this appeal ensued.

I. FACTS

Mother was still living at home when she became pregnant with Father's child in late 1993.1

Maternal Grandmother forbade Mother from having any further contact with Father. Minor Child

was born out of wedlock on February 16, 1994. She always lived with her Maternal Grandparents.

Maternal Grandmother was Minor Child's full time care giver. Mother has limited mental acuity,

other psychological problems, an explosive temper and handled the Minor Child roughly. Maternal

Grandmother would only let Mother leave the home with Minor Child, if Mother was with trusted

relatives or friends.

The relationship between the Father and Paternal Grandparents and the Maternal

Grandparents has been very acrimonious. Shortly after the child was born, Paternal Grandmother

came to visit Minor Child and brought gifts. Maternal Grandmother told the Paternal Grandmother

to leave.

Father paid no support, tendered no support, put no support into a savings account or

otherwise, and took no court action to establish child support. He did not pay any of Mother’s

medical expenses or the birth expenses of Minor Child. Father and Paternal Grandparents testified

that they had offered support to Mother, but she refused to accept it, as she was still living at home

with her parents.

Father's giving presents to Minor Child on her birthday and at Christmas has been very

sporadic. Father neither legitimated child nor filed any action to establish paternity of Minor Child.

After Father was released from jail, Mother and Father decided to marry in October 1996.

The Minor Child was approximately two and one-half years old then. Represented by legal counsel,

Father and Mother attempted to obtain custody of Minor Child by filing a petition in Circuit Court.

Circuit Court issued a temporary restraining order granting them exclusive possession of the child.

Aware of the custody order, but not yet served, Maternal Grandmother petitioned for custody

of the child in juvenile court. All parties, including Father, Mother, Paternal Grandparents and

Maternal Grandparents were represented by legal counsel in the lengthy proceedings. Juvenile court

determined that Minor Child was dependent and neglected and awarded Maternal Grandparents legal

care and custody of Minor Child. Juvenile court ordered that Father would have two hours per week

of supervised visitation with the child at McDonald's restaurant and playground. Juvenile court did

not order Father to pay any child support.

Father and Mother had a second child and thereafter divorced. Father was awarded custody

of the second child. Mother was given eight hours per week of supervised visitation with second

child. Mother is paying child support to Father for child.

1

During this period of time and for the next several years, Father had continuing criminal problems. In 1994,

Father was charged and pled guilty to an attempted rape of a 12 year old girl. He served nine months of a 11 months,

29 days sentence. He was placed on probation for eight years. He had additional criminal charges continuing through

1998.

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Father married and divorced a second time. His Second Wife has custody of their child.

While Father claims that he has no records of any child support payments for this child, he gives

money to Second Wife when he sees her.

Testimony presented at trial indicated Father has a fourth child, also born out of wedlock.2

Father pays no support for that child.

There was little contact between Minor Child and Father. From the birth of Minor Child on

February 16, 1994, to the marriage of the parents on October 15, 1996, there was minimal contact

between Father and Minor Child. During the pendency of the juvenile court proceedings, Father was

granted minimal visitation in the home of the Paternal Grandparents.3 Since the juvenile court

proceedings, there has been some contact between Father and Minor Child, primarily on Saturday

night at McDonald’s. Over 50% of the visits at McDonald's were missed by Father. The quality of

the visits was not good, especially after Mother was no longer part of the visitation process. When

the trial judge talked with Minor Child in chambers, Minor Child indicated that she did not like

seeing Father at McDonald’s. She said that Father only played with her at McDonald’s one time and

that her Mother, Father’s second wife, and her sister, Ashley, and her cousin, Tamara, played with

her some at McDonald’s. Minor Child said that Father just sits there and eats and drinks at

McDonald’s.

The frequency of gifts by Father to Minor Child was sporadic. The Minor Child was given

no gifts by Father at Christmas or on her birthday immediately before the filing of the petition to

adopt on March 30, 1999.

When Father was deposed he did not know the date of Minor Child’s birthday.

II. ACTION OF THE TRIAL COURT

The Trial Court entered a default judgment against Mother and thereafter held that the

evidence established by clear and convincing evidence that both Father's and Mother’s parental rights

should be terminated.

The Court further found that clear and convincing evidence established that it was in the best

interests of Minor Child to terminate the parental rights of Father and Mother. Minor Child viewed

her Maternal Grandparents as her psychological parents and they were the only parents she really

ever knew on a full-time basis. The Court found that removing Minor Child from the custody of

Maternal Grandparents and placing her with Father would pose a substantial risk of harm to her.

Minor Child does not relate well to Father and seems to have some fear or at least distrust of him.

2

The child's mother testified that two children were born (twins), but one died shortly after birth.

3

Minor Child told the Chancellor that when she was visiting with Mother and Father at the trailer, Father placed

her in a closet in the dark and she heard Father beat Mother. Mother had bruises on her and Minor Child was scared.

Father also spanked her.

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Father took a timely appeal to this Court.

III. ISSUES

We restate Father's issues to be whether Father willfully abandoned the child, within the

meaning of T.C.A. 36-1-113 and current law, and whether the Trial Court utilized the correct legal

standard for abandonment.

IV. LAW AND DISCUSSION

Our standard of review is as follows: "Unless otherwise required by statute, review of

findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court,

accompanied by a presumption of the correctness of the finding, unless the preponderance of the

evidence is otherwise." Rule 13(d), Tennessee Rules of Appellate Procedure. In a de novo review,

the parties are entitled to a reexamination of the whole matter of law and fact and this court should

render the judgment warranted by the law and evidence. Thornburg v. Chase, 606 S.W.2d 672

(Tenn. Ct. App.1980); American Buildings Co. v. White, 640 S.W.2d 569 (Tenn. Ct. App.1982);

Rule 36 of the Tennessee Rules of Appellate Procedure. No such presumption, however, attaches

to conclusions of law. Adams v. Dean Roofing Co., 715 S.W.2d 341 (Tenn. Ct. App.1986).

The essence of Father's argument excusing him from paying child support and paying for

Mother’s medical expenses associated with the birth of Minor Child is:

1. Maternal Grandmother did not ask for child support for the Minor Child;

2. Maternal Grandmother told Father she did not want any child support.

He excuses his failure to visit and interact with Minor Child because Maternal Grandmother

told Minor Child that she could not sit on his lap or hug him or her Paternal Grandparents.

Father relies heavily upon In Re: Swanson, 2 S.W.3d 180 (Tenn. 1999), to support his

position. In Swanson, the Supreme Court held that the definitions in the statute of "willfully failed

to support," and "willfully failed to make reasonable payments toward such child support" would 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." The Supreme Court further held

that the definition of abandonment under the prior law should be applied until the legislature made

some other provision.

Under the law prior to Swanson, an abandoned child was defined as:

Abandonment, as it pertains to an adoption proceeding, is defined in this state

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. Evidence of an

abandonment must be clear and convincing. The evidence must clearly show a

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conscious disregard or indifference to the parental obligations for a court to forfeit

the parental rights and obligations. To determine an abandonment the court is not to

look at the protestations of affections and intentions expressed by the natural parents,

but look at the past course of conduct. [Footnote and citations omitted.]

Koivu v. Irwin, 721 S.W.2d 803 at 807 (Tenn. Ct. App. 1986).

Before the passage of Tennessee's amended adoption statute, “abandonment” was based upon

seven factors.

To determine whether the parent's conduct had evinced "a settled purpose to

forego all parental duties and to relinquish all parental claims to the child," the courts

developed several factors: (1) the parent's ability to support the child; (2) the amount

of support provided; (3) the extent and nature of the contact between the parent and

the child; (4) the frequency of gifts; (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 removal.

See O'Daniel v. Messier, 905 S.W.2d 182, 187 (Tenn. Ct. App. 1995).

Swanson, at 184.

Swanson can be distinguished from this case in as much as the father in Swanson had no

knowledge of the whereabouts of child and mother and no way to proffer support on behalf of the

Minor Child. Once father learned of the child’s whereabouts he actively appealed the court’s

decision that he willfully abandoned his child.

Abandonment inquires are heavily fact oriented and the courts may consider any fact that

assists them in deciding whether the parent’s conduct demonstrates a conscious or willful disregard

of all of his parental duties. See O'Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995).

Moreover, it is a well-established principle that the Chancellor is in the best position to assess the

credibility of the witnesses. The weight, faith, and credit to be given to any witness’s testimony lies

in the first instance with the trier of fact. Therefore, such determinations are entitled to great weight

on appeal. See Massengale v. Massengale, 915 S.W.2d 818 (Tenn. Ct. App. 1995); Bowman v.

Bowman, 836 S.W.2d 563 (Tenn. Ct. App. 1991); Weaver v. Nelms, 750 S.W.2d 158 (Tenn. Ct.

App. 1987); Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844 (Tenn. Ct. App. 1982). The Chancellor

in this matter determined the credibility issues in favor of Maternal Grandparents and their witnesses.

Furthermore, the Chancellor correctly used the seven factors set out in O'Daniel v. Messier,

to determine if Minor Child had been “abandoned.” We shall reiterate each of these factors as the

Trial Court did.

The first two factors are the parent’s ability to support the child in the four month period

immediately before the petition to terminate parental rights was filed. The four month period began

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in November 1998 and ended in March 1999. Father’s 1999 W-2 revealed an income of $6,530; he

earned somewhat less than $550 per month during the year 1999. Father testified that he made “a

bunch of money” that was evidence by 1099s, however, the 1099s were not introduced into evidence.

Father’s 1998 W-2 revealed an income of $14,704.00; he earned approximately $1,225 per month.

Testimony was in the record that Father was drawing unemployment compensation. Additionally,

at his deposition Father testified:

Q. Right. So how many weeks do you think you worked during 1998?

A. I don’t know. I just. . .I worked what I could. I mean, when I didn’t

have other things that I had to do or something like that.

Father did have the ability to work and to pay some child support. However, the proof

showed that no support was provided by Father for the benefit of the Minor Child during the four

month time period immediately proceeding the filing of the petition [as well as for any time period].

The Chancellor correctly found that Father paid no support, tendered no support, put no support into

a savings account or otherwise. Father neither took court action to establish child support nor did

he pay any of the Mother’s medical expenses associated with the birth of the Minor Child.

The third factor is the extent and nature of the contact between the parent and the child. The

evidence revealed that Father had only token visitation with the Minor Child.4 While Father may

have been physically present during the two hour supervised visitation that was ordered by the

juvenile court on Saturday nights from 6 p.m. to 8 p.m. at McDonald’s, Father was not interacting

with Minor Child. Maternal Grandfather, who supervised the visits, testified that Father would get

himself “something to eat and just sit around there and pay no more attention [as]5 if [Minor Child]

wasn’t even there.” Maternal Grandfather would purchase the food for the Minor Child and would

help the Minor Child eat. Father did not even purchase the Minor Child’s meal at the visits to which

he came.

Q When he first got there would he try to hug [Minor Child]?

A No, ma’am.

Q Did he bend over to pat her on the head, the shoulder, any attempt to establish

a physical contact with her?

A No, ma’am. It was just like Sierra wasn’t even there. He more or less just sat

there and looked around and stared out the – watched the traffic going up and

down the road and everything.

...

Q And then what would happen?

A Well, sometimes he’d leave early. Sometimes he’d stay the whole time.

4

Token visitation is visitation, that u nder the circ umstances, c onstitutes nothin g more than perfunctor y visitation

or is of such a nature as to merely establish minimal or insubstantial contact with the child. T.C.A. 36-1-102(1)(C).

5

We ass ume the witne ss intended to say the word “as” or did say it and the court reporter failed to transcribe

it.

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Q Okay. After he finished eating did he attempt to interact with [Minor Child]?

A No, ma’am.

Q Okay. What would he do?

A Like I said, he’d just sit there just like nothing. He wouldn’t make no

emotion toward her or tell her bye or anything else. I’d tell him we’re fixing

to leave, you know, and there ain’t nothing never said.

...

Q Okay. Did he talk to her during the visitation?

A No, Ma’am.

Q Of the total, I guess, since the beginning of 1998 there would have been more

than 100 visitations. Of those 100 visitations. . .how many times would

[Father] show up?

A I’d say about half of them.

Father testified that while he was married to Mother, he and Mother interacted with child

and they would play in the tunnels. Then “everything went downhill. She couldn’t talk to us. She

couldn’t play with me. She couldn’t do anything. So the only thing I can do is watch all the kids

play with each other. . . .But as long as this has been going on she should have came around and not

went further away from me....” It is quite apparent from the testimony in this case, that any

visitation between Minor Child and Father was sporadic and purely token visitation. Father was

basically just present at McDonald’s. He did not bring games or toys to interact with Minor Child.

He left it up to Minor Child to “come around”.

As to the fourth criteria, the frequency of gifts has been occasional. Some times gifts were

given on birthdays and Christmas, and other times were not. The petition in this case was filed on

March 30, 1999. Father gave no gifts to Minor Child in the four month period before the petition

was filed, even though Christmas and the Minor Child’s birthday occurred during that time period.

He did give Minor Child gifts at Christmas and on her birthday subsequent to the petition being filed.

The fifth consideration is whether the parent voluntarily relinquished custody of the child.

In this instance, Father never had custody of child. He never attempted to legitimate Minor Child.

The sixth consideration is the length of time the child has been separated from the parent.

Minor Child has been separated from the Father all her life - six and one-half years.

The seventh and last consideration is the home environment and conduct of the parent prior

to removal. From the time the Minor Child was born until the petition to adopt was filed Father had

continuing criminal problems. Testimony was presented that during this period Father sired three

and possibly five children. He had custody of one child. He did not pay support for any of the

others. Father drank and did drugs. While at the time of trial, Father was exhibiting more

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responsible behaviors, that does not excuse what was done up to the time the petition was filed. See

T.C.A. 36-1-102 (1)(F).6

Moreover, T.C.A. 36-1-102 (1)(G)7 says specifically it shall not be required that a parent be

shown to have evidence a settled purpose to forgo all parental rights and responsibilities in order for

a determination of abandonment to be made.

The Chancellor determined by clear and convincing evidence that Father had abandoned

Minor Child.

The heightened burden of proof imposed on those seeking a declaration of

abandonment in an adoption case is another safeguard against a wrongful termination

of a biological parent's parental rights. Unlike most civil cases that require proof by

a preponderance of the evidence, adoption cases require the party asserting that a

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

evidence. [Citations omitted].

The use of a heightened standard reflects the importance of the public and

private interests affected by an adoption as well as the community's judgment

concerning the allocation of the risk of error between the litigants.. ..It instructs the

fact-finder concerning the degree of confidence the community believes that the

fact-finder should have in the correctness of its conclusions. [Citations omitted].

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

The testimony at trial established that it would be in the best interest of Minor Child to have

Father’s and Mother’s parental rights terminated.

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Trial Court. This matter is

remanded to the Trial Court for such further proceedings as may be necessary consistent with this

opinion and collection of costs below. Costs on appeal are adjudged against the Appellant, Timothy

Pelfrey, and his surety.

6

Abandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition

seeking to term inate paren tal or guardia nship rights or se eking the ad option of a child. . .

7

"Aban donme nt" and "abandonment of an infant" do not have any other definition except that which is set forth

in this section, it being the intent of the general assembly to establish the only grounds for abandonment by statutory

definitio n. Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all

parental righ ts and responsib ilities in order for a determinatio n of aband onment to be made . Decisions o f any court to

the contrary a re hereby leg islatively overrule d.. . .

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_________________________________________

HOUSTON M. GODDARD, PRESIDING JUDGE

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