### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Februar y 18, 2 003 Session IN THE MATTER OF : D.A.H., DOB: 12/11/00, A Child Under 18 Years Of Age, ET AL 

### . A Direct Appeal from the Juvenile Court for Shelby County No. M7027 The Honorable Harold Horne, Judge,

No. W2002-00733-COA-R3-JV - Filed July 28, 2003

This termination of parental rights case is be fore this Court upon the Court’s granting of Appellant father’s Petition for Rehearing. Our first opinion in this matter was predicated upon

the fact that father’s Petition to Establish Parentage and the subsequent Consent Order Establishing Paren tage were omitted f rom the record on appeal. Upon rehear ing, the record has been supplementedto include

these two

document s. The fa

ther app eals fro m the fina l order of the juvenile court te rminating parenta l rights t o his child. Specifically, the f ather asserts that

the grounds for termination cited by the trial c ourt are no longer applicable based on the Supreme Court’s r ecent holding in Jones v. G

arrett , 92 S.W.3d 385 (Tenn. 2002). Because we find that fat her has been adjudicated

to be the l e gal parent of thi s child, we find that Jones v. G

arrett is app lica

ble. We re ve rs e t he Or de r o f t he tr ia l c ou rt an d r em an d for an y fu rt he r p ro ce ed in gs as ma y be ne ce ss ar y. Tenn. R. App.P. 3; Ap peal as of Rig ht; Judgment of the J

uvenile Court Reversed and Remanded
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. Claiborne H. Ferguson, Memphis, For Appellant, Timothy Wayne Cope Kevin W. Weaver, Cordova, For Appellee, Mid-South Christian Services, I nc. OPINION
This is a termination of parenta l rights c ase. Timothy

Wayne Co pe (“Mr. C ope,” “Appellant,” or “Fa

ther”) and Cy

nthia Ann Honeyc

utt (“Ms. Honeycutt,” or

“Mother”) began dating in January

2000 and lived tog ether in Memphis, Tennessee until June 2000 when Mr. Cope moved to Pens acola, Florida. At that time, Ms. Honey cutt was pregnant. Mr. Cope was informed of th e pregnancy

during the first trimester. On December 11, 2000, Ms. Honeycutt g ave birth to D.A.H,-2-

the child at

issue in this case. Although Mr. Cope was not present for the birth, Ms. Honey cutt called him in Florida to inform him of D.A.H.’s birth.
Due to medical reasons, D.A.H. remained in the hospital until December 18, 2000. Mr. Cope didnot visit the child in the hospital. On Dece mber 19, 2 000, Ms. Ho ney cutt contact ed Mid-Sou

th Chri stian Services (“Mid-South,” or “Appellee”) and disc ussed the process for surrendering her parental rights and giving the child up for adopt i on to Ms. Honeycutt’s second c ousin and her spouse, Wendell and Julie L e wis, who li ve in Ken tucky . On Dec ember 19 , 2000, Ms. Honey cutt entered into an inte

rim foste r care agree ment with M id-South

to provide

care f or the ch ilduntil the adoptive couple c ould

obtain inte

rstate compact approval to take D.A.H. to Kentucky . D.A.H. was placed in a foster care home provided by Mid-South. Mr. Cope was not informed about the interim foster care agreement or the child’s being placed in the foster home

. On January 3, 2001, Ms. Honey cutt and Mr. Cope telephone d Mid -South to e xpress the

ir desire to parent D.A.H. The phone call was mad e from Ms. Honey cutt’s ap artment in Memphis. Mid-South

made plans with Ms. Honeyc utt and Mr. Cope to meet at Mid-South’s office to pick up the child. Neither Mr. Cope nor Ms. Honeycutt came to the Mid-South office, nor did they call to make other arrangements to pick up the c hild.
On January 10, 2001, Ms. Honeycutt ca lled Mid-South from Florida . During that phone

call, Ms. Honeycutt stated that she could not parent the child, that Mr. Cope did not support the adoption plan but thathe was ta

king no s teps to pr

epare t o parent the child. At that time, Ms. Honey cutt stated that she would like her parental rights to be terminated.
On February

5, 2001, Ms. Honeycutt ca me to Mid-South’s office and stated that she desired to surrender her parental rig hts. Mr. Cope was in Memphis wi th Ms. Ho neycutt but did not accompany

Ms. Honey

cutt to Mid- South. While at Mid-Sou

th on Febr uary 5, 2002, Ms . Honey

cutt signed a voluntary surr

ender before the Juvenile Court of Memphi s/Shelb y County , wherein she surrendered her parental rig hts to Mid-South.
On February

20, 2001, Ms. Honeycutt spoke with Mid-South personnel by phone to obtain an update on the interstate placement of the ba by. On March 12, 2001, Ms. Honey cutt visite d with D.A.H. at Mid-Sou

th. Althoug

h Mid-South

personne l asked f or Mr. Cop e’s addr

ess, Ms. H oneycutt would not give them the information. On March 29, 2001, Ms. Honeycutt ag ain visited with D.A.H. at Mid-South. Also on March 29, 2001, Mr. Cope called Mid-So uth and asked Ms. Chunn, the director, what he needed to do to ga in custody

of his chi ld. Alth ough M s. Chunn discussed the options with Mr. Cope, the Petition for Termination was filed on March 29, 2001. The Petition for Termina tion alleg es, in per

tinent pa rt, that:
9. Purs uant to T.C.A. § 36-1-113(g)(1), Petitioner asserts that Responde nt, Timothy Way

ne Cope, h as, for a period of four (4)1 Paragraph 9 of the Peti ti on for Termina ti on was sub sequ ent ly amen ded t o rea d as fol low s: “Pur sua nt to T. C.A. § 36-1-113(g)(1), Petitioner assert s that Respondent, Timothy W ayne Cope, has abando ned the child, as abandonm ent is define d in T.C.A. § 36-1-102 , in t hat Respondent, for a period of four (4) consecutive months immediately preceding the fil ing of

thi s peti tion abandoned the chi ld, i n that he has wi llf

ull y fai led to vi sit

the chi ld, and Res pondent has e ith er willfully fai led to vi sit

or wil lfu lly fai led to make reasonabl e payments toward t he support of the chil d’s mothe r during the four (4) mon ths immedi atel y pre cedin g th e bir th of the chi ld. -3- consecutive months imme diately preceding the filing of

this petition, abandoned

the child , in that he has willfully failed to visit the child. 1
10. Petitioner

further asserts t hat pursu ant to T.C.A . §§ 36-1- 113(g)(9)(A)(i), (ii), (iii), (iv) and (vi), Res pondent, Timothy Way ne Co pe , h as fa il ed , w it ho ut ca us e o r e xc us e, to pa y a reasonable share of pre natal, natal, and postnatal expenses involving the birth of [D.A. H.], in accordance

with his financial means, pr omptly upon his receipt of notice of the child’s impending birth. Further, Responde nt, TimothyWa yn e C ope, hasfailed, without g ood caus e or excus e, to make reasonable and consistent pay ments for the s upport of

the child in accordance with the c hild sup port guidelines promulgated by the Stateof Tennessee Department of Children’s Service s, pursua n t to T.C.A. § 3 6-5-101. Responde nt, Timothy

Wayne Cope, h as also failedto manife st an ability and willingness to assume physica l custody or to seek r easonab le visitation

with the child since

the birth of the minor

child, [D.A.H.]. Further, Respondent, Timothy Wayne Cope, has failed

to file a p etition to l egitima te the ch ild within th

irty (30) days a

fter notice of alleged pater nity by the child’s mother.
On April 4, 20 01, inter state ap proval w as gra

nted to allow the pr

ospectiv e adoptiv e couple to take the

child to the

ir home in K

entucky . On April

10, 2001, M

r . Cope w as personally se rved with a copy of

the petiti on seeking termin ation of h is paren tal righ ts.
On May 9, 2001, a

t the initia l hearin g in

this matte

r, Mr. Cop e and Ms. Honeycutt appe ared before the trial court and

Mr. Cope r

equeste d DNA tes ting. DN A was collected f

rom Ms. Hon

ey cutt and Mr. Cope o n May

11, 2001 a

nd from D. A.H. on Au gust 2, 2001. Te st

results dated August 14, 2001 were conclusive as to Mr. Cope’s paternity

. On July 18, 2001, at the

n ext hearing before the trial court, the cour t appointed a guardian ad litem for D.A.H. and separate lega l counsel for Mr. Cope and Ms. Honeyc utt. Mr. Cope filed an An swe r to the Petition to Terminate Parental Rights on August 13, 2001, which asserted the following affirma tive def enses: 1. Any and all alleg ations regarding Respondent’s failure to support should be stricken and not taken into consideration in this matter as his alleged omissions were notwillful and the statu

te does not create-4- an irrefut able presumption that failure to support a child constitutes abandon ment. In Re Brittany Swanson , 2 S.W.3d 180 (Tenn. 1999). The Respondent has i nsurance to pay the Child’s medical expenses and there was no court

order to requireRespondent to make support payments to Petitioner.
2. Any and all alleg ations regarding respondent’ s failure to visit with his child for

a period of time sho

uld not be c onsidered willful b ecause the child is in the custody of

the Petitio ner, the

responde nt reside s in Florida, and a v ery sho rt time has transpired in this matter (approxima

tely 3 months). Furthermore, the Mother and M aternal Grandmother

falsely re ported the condition and locationof the Child to the Res pond ent, thus making reasonable visitation difficult for Responde nt.
On August 13, 2001, Mr. Cope also filed a Motion for Dismissal, whichwas subsequently deniedby O

rder da te d September 19, 2001. O n Septembe r 5, 2001, Mr. Cope f

iled a Pet ition to Establish Parentage. A Consent Order Establishing Mr

. Cope Parentage was signed on December 4, 2001. The matter proceeded to trial on December 17, 2 001. Ms. Ho ney cutt did no t appear to contest the valid ity o f her vol

untary surrend er or to testify at the hea

ring. On February

14, 2002, the trial court entered an Order of De fault Judg ment and Te rmination of Parental Rights (the “Final Order” ). The F

inal Orde r reads , in pertin

ent part , as follo ws: FINDI NGS OF FACT
* * *
2

. Mr. Cope admits that he is the father of [D.A.H.], and the DN A test results support Mr. Cope’s admission.
* * *
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this proceeding pursuant to TCA36-1-113(a) and 37-1-104. 2. The Respondent, Timothy Way ne Cope, has failed to seek reas onab le vis itati on wit

h the infa nt [D. A.H. ]. 3. The Respo ndent, Timothy Way ne Cope, has failed to manifest an abil ity and willingness to assume legal and phy sical custody of th e infa nt [D. A.H. ].2 Th e Ap pellan t initially raised tw o issue s in his br ief. At oral argument, all issues were wai ved except the one

here sta ted.

3 At the t ime of

the Jon es v. G arrett hearin g, T.C.A. § 36- 1-113(g)(8)( A) was the corre ct c it ati on to t he se cti on of the statu te referrin g to no tice. H owe ver, p resen tly that citation is T.C .A. § 3 6-1-1 13( g)(9) (A). -5- 4. The Respondent, Timothy Way ne Cope, has failed to file a petition to legitimate with in thirty (30) day s after notice of

paternity by the child’s mother. 5. In accorda

nce with TCA-36-113© [sic] (1 ) and (2), there is clear and convincing evid

ence to s upport the

terminat i on of Timothy Wayne Cope’s parental rights rega rding the child, and the termination of Timothy Way

ne Cope’s pare ntal ri ghts is in the best interest of [D.A. H].
Mr. Cope appeals from the Final Order of the tria l court and raises one issue for our review: Whether there is clear

and convincing evidence to terminate Mr. Cope’ s parental rights in light of the Supreme Court’s recent holding in Jones v. G arrett , 92 S.W.3d 835 (Tenn. 2002). 2
The application of Jones v. G arrett to this case is a question of law. As such, our review of the trial cou

rt’s orde r is de novo upon the record with no presumption of correctness ac companying the tr ial court’s conclusions of law. See Tenn. R. A pp. P. 13(d

); Waldron v. Delffs , 98 8 S.W.2 d 182, 184 (Tenn. Ct. App. 1998); Sims v. Stewart , 973 S.W.2d 5 97, 599-6 00 (Tenn . Ct. App. 1998).
The Supreme Cou rt’s holding in Jones v. G arrett is clear: “Tennessee Code Annotated section 36-1-113(g)(8 ) (A)(vi) 3 applies only to cases in which no le gal relationship between the parent and child has been e stablished.” Id. at 840 (parenthetical omitted). T.C.A. § 36-1- 102(28)( D) (Supp. 2002) defines “L egal pa rent” a s follows:
A man who has beenadjudicated to be the legal father of the child by any court or administrative body of this state or any other state or territory or for eign co untry or who has sig ned, pursuant to §§ 24-7- 113, 68-3-20 3(g), 68-3-302 and 68-3- 305(b), an unrevoked and sworn acknowledgment

of paternity under

the provisions of Tennessee law, or who has signed

such a swornacknowledgment pursuant to the law of any other

state, territory, or

foreign country

... Becau se Mr. Cope h as been a djudicat ed to be th

e le gal father o f D.A.H., under Jones v. Garrett , his pare

ntal rig hts cannot b e termin ated on any of the grounds found in T.C.A. § 36-1- 113(g)(9)(A). The trial court’s final Order, cited supra , lists only those termination grounds found in T.C.A. § 36-1-113(g)(9)(A), to wit: (1)the Responde nt, Timothy Way

ne Cope, has failed to seek4 See T.C.A. § 36 -1-113(g)(9)(A)(iii)

. 5 See T.C.A. § 36 -1-113(g)(9)(A)(iv).
6 See T.C.A. § 36 -1-113(g)(9)(A)(vi). -6- reasona ble visitation with the infant[D.A. H.]; 4 (2) the Respondent, Timothy Way ne Cope, has failed to manif est a n abi lity and w illin gne ss to a ssume leg al an d phy sica

l cust ody of the infa nt [D. A.H. ]; 5 and (3) the Re spondent, Timothy Wayne Cope, h as faile d to file a petition to legitimate with

in thirty (30) days afte

r notice of paternity

by the child’s mother. 6 Under the precedent established by our Supreme Court in Jones v. G arrett , we must r

everse the Orde r of the tr ial cour t.
Ac co rd in gl y, the order of the trialcourt terminating the parental rights of A ppellant, Timothy Wayne Cope, is vacated. The case is remanded to the trial c ourt for further proceedings to conside r the other grounds for termination allege d in the petition for termination. It is the responsibility of the Appellan

t to prese nt to this Cou

rt a full a nd comple

te record on appea l. The Appellant’s failure to include the Petition to

Establish Parentage and/or the Consent Order Establishing Parentage has required a second review b y th

is Court. Co sts of this appeal are, therefore, a ssessed to the App ellant, Ti mo th y Wa yne Co pe , a nd hi s s ur et y.

__________________________________________ W. F RANK CRAWFORD, PRE SIDI NG JUDGE, W.S

.