# FILED
December 2, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
IN RE: CHAD A LAN A NDOLINO ) ) CHARLES A LAN MIX and LORENA ) MA Y MIX, ) ) Petitioners/Appellants, ) Decatur Chancery

No. 2305 ) VS. ) A ppeal No. 02A 01-9510-CH- 00224 ) ROBERT BART ON, ) ) Intervening Petitioner/ ) Appellee. )
APPEAL FROM THE CH ANCERY COU RT OF D ECATUR COUN TY AT DECATURVILLE, TENNESSEE THE HONORABLE WALTON W EST, CHANCELLO R

THOMAS F. BLOOM Nashvil le, Tennessee Attorney for Appellants

LEW CONNER LARRY H. HAY ES, JR. BOULT, CUMMINGS, CONNERS & BERRY, PLC Nashvil le, Tennessee Attorney for Appellee

AF FIRMED A ND REMA NDED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. DAVID G. HA

YES, J. This case presents

for review

the decision of

the Chancery

Court of Decatur

County2

finding that the Defendant, R obert Barton ( “Father”) did not ab andon hi s son, Chad Andolino (“S on”) and, therefore, dismissing Plaintiffs’, Charles and Lo rena Mix (“Mixes”), petition for adoption. The Mixes appealed. For r easons stated hereinafter , we affirm the judgment of the tr ial court.

Facts Barton first met the natur al mother of Son, Deb ra Andolino ( “Mother”) , on Easter Sund ay, April, 1991. Mother discovered she was p regnant in S eptember, 1992. Son was born May 12, 1993. Father and Mother began living together i n Janu ary, 1993, an d continued to doso until M arch, 1993, when they separated. Mother has three dau ghters from previous relationships.
The parties’ as sertions of facts conflict in near ly eve ry respe ct. The Mixes contend that Father w anted Mother to get an aborti on, that Father added virtu ally nothi ng to Mother’s support w hile they lived tog ether, that Fath er never evinced any real interest in Son before or after hi s birth, and that Father only desires custody of Son now in order to gain a promised financi al windfall from Father’s mot her. Father repudiates these clai ms and argues that his apparent lack of care for S on is solely t he result of attempts by the Mixes t o keep him from hav ing any contact wi th Son.
Spec ific ally, there is some dispute over Father’s contributions to Mo ther and Son before and after Son’s birth. Father contends that Mother and he compiled their money and spli t the bills . Mother ass erts that Fath er made vir tually no contributions to the household. Several witnesses on behalf of Mother testified thatMother paid the bills, boughtfood, and borrowed money from others in order tobuy groceries and gas. Father supp lied several receipts to p rove his contributions . Father cont ends that the se ar e repr esen tati ve of the fi nancia l cont ribut ions ma de by him to the household. M other testified that many

of these receipts

belonged to her

and not Father. Father admits t o using il legal drugs and drinking alcohol in t he past, but contend s that he has never

drunk beer or

taken any i llegal drugs i n front of the childr en and has3

never encouraged thechildren to do so. Additi onally, Fa ther claims that, at the pres ent time, he does not par

take of drugs, and only occasionally drinks beer

.

Father admits that he di d not aid wi th Moth er’s m edic al co sts d urin g her p regna ncy, but asserts that

Mother’s pr

egnancy w

as covered by Medica id. Additional ly, Fathe r contends that he escort ed Mother to the doctor

several times whi le she was pregnant w ith Son. Mother conte nds that Father wentto the d octor on one occasion fo r the “selfish purpose” of verifyi ng that Mother was preg nant and , on a noth er o ccas ion, to dr op off Mother at the emer

gency r oom.

Father and Mother sepa rated in March, 1993. As Father and Mother’s relationship
was nearing an end, Mother contends th at Father beat her daughter, Shantel, to the po int that bruises were left

by the beati ng. Father admits only to “spanking ” Shantel and deni es that he le ft a ny ma rks on her. As a re sult , Mot her re ceive d a re straining order against Father, rest raining hi m from the house.

After separating , Father made no contact wit h Mother and Son. Father acknowledg ed this lack of contact with Mother and Son after his separation with Mother. However, Father alle ged thatthis was because he did not

understand that hewas free to contact her under the r estraining order. Father and Mother did not see each other again until April, 1993, when th e two met at P izza H ut, along w ith Lorena Mi x, Mother ’s friend, Jennifer Roman, and Lorena M ix’s br other, Eddie. M othe r was attempting to procure Fat her’s consent for adoptio n. Father contends that he did not know why Mo ther calle d the meeting, but

he thought the meet ing was probably t o “talk peace. ” Father asserts that he had no idea that th e meeting was to di scuss adoption and the surrender of his parental rights. Father did not agree to the ad option nor to thesurrender hi s parental r ights.

In April, 1993, Mother retur ned with Lor ena Mix t o Nashvil le, T en nessee. Lorena Mix stayed w ith Mother

in a Nashv ille hotel a nd was present when Mother went into labor. The Mixes were marr ied on May 1, 1993. Son was bor n on May 12, 1993, and has liv ed4

with the Mixes sin ce May 14 of that same year. Mother leg ally sur rendered Son to t he Mixes. Mother did not tell Father

that she had go ne to Nashvi lle, Tennessee. Fathe r called several hospitals to fin d the whereabouts of Mother. Unsucce ssful in his attempts to locate Mother , Father hired an attorney and a private i nvestig ator to find Mothe r and possiblytheir new born child. The privateinvesti gator locat ed Mother and Son and informed Father of their whereabouts.

After Son’s birth , Mothe r saw F ather in June, 1993. Father as ked Mother about Son’s sex, name, and health. Mother alleges t hat Father made no fur ther inqui ry about Son, and did not offer pay ment of support, nor payment ofany hospita l bills as a result of the birth of Son. That

same month, Mother

started datingFather agai n. Mother ass erts that , in this ti me, Father never asked about Son . The relations hip ended when Moth e r discovered that the Mixes had been served with co urt papers on be half of Father.
On June 3, 1993, the Mixes fil ed a petition for the adoption of Son. Father fil ed a petition to intervene and a motion to dismiss p etition for adopti on on November 23, 1993. On January 3, 1994, Father’s pet ition to inter vene was

allowed. An order was entered in the state of Florida adjudicating Fathe r to be the natur al father of Son on June 6 , 1994. On June 7, 1994, the Mixes filed an am ended petition f or adoption in part to change Son ’s
name to Charles Alan Mixfrom theprese nt nameof Chad Alan Andoli no. On September 15, 1994, Father’s motion to dismi ss the adoption w as denied. Thereafter , on October 18, 1994, the Mixe s filed a petiti on for a home study of Father on the cl ai ms that he di d not
earn enough money or have a proper home in which to raise Son. On February 20, 1995, the Mi xes filed a petition for custod y. Subsequently, on March 13, 1995, the trial co ur t issued its o rder denyi ng the Mixes petition for a doption. The tri al court found that

The evidence i n this case does not rise to the level of clear and convinci ng proof of the father’s int ent to abandon his c hild, especiallyconsideringthat all leg itimately controver

ted fac t s are to be resol ved in favor of the father. In determining that the evidenc e of abandonment was not clear and convincingproof, the court stated: Up until two m onths p rior to the birth of the chil d, the father5 res ided with the moth er and contri buted support to t he household. A protectiv e order prohi bited the father from contacting the mother between the da tes of the parent’s separation in March an d the birth of the child in M ay. . .[u]pon learning of the approxi mate date of the child’s bi rth, the father made efforts to locate th e mother and child. After discovering the child had been pl aced for adoption, th e father proceeded to file custod y p roceedings in Florida seeking custody of his child. In conclusi on, the Court finds that the legal sta ndard for abandonment in adoption cases has not been met.
A petition for transfer of cust ody and for a tempor ary rest raining or

der were filed by Father on May 26, 1995. Thereafter, Lorena Mix abs conded with Son. On June 20, 199 5, the trial cour

t ordered that S on be turned over to the Department

of Human Service s. On July3, 1995, Father filed an answer to the petition for cust ody. A motion for stay of temporary custody or

der pend ing fi nal custody

determination w

as filed by t he Mixes on August 17, 1995. The tri al court g ranted an additi onal fifteen days fro m October 5, 1995, to perfect an inter locutory appeal of the dismis sal of the Mixes’ petition for adoption. The Mixes fil ed their notice of appeal on October 12, 1995.
By an order dated October 24, 1995, this Court remanded the case to the trial court fora hearing t o determine Father’s fitness and abi lity totake care of Son. The hear ing was conducted on December 1, 1995. By an order ente red January 19, 1996, the trial court found that Father had marr ied, that Father and his w ife had a stable home env ironment, and that Father and his wife resided in appropriate phy sical facili ties within which to r ear Son. However, the trial court further found that Fath er stayed away from home after his regular work hour

s and spent thattime involved in illegal drugs or frequenting places where drugs were easily obtainable. The tr ial court concluded that Fat her could not pr ovide a stable home environment forSon and would not be an appropr iate person to have custody of Son. As it stands now , the Mixes have cust ody of Son, but have bee n denied the ri ght to adopt him. Fat her’s parental rights a re still intact. This a ppeal ensued.

The Mixesappealed, challengi ng the order of the trial court finding t hat Father had not abandoned Son and, ther eby, dismis sing their

petition for adopt ion.6 Discussion Inasmuch as th is cas e was t ried by the cour t bel ow sitt ing with out a jury, this court’s review on appeal is g overned by Tenne ssee Rule of Appellate Procedu re 13(d), which directsus to rev iew the ca se de n ovo . Robe rts 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 conductinga de no vo review of the record below, however, this court must presume that the trial court’s findings o f 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 res ult or un less the evidence preponderatesagainst the trial cour t’s findings

. Roberts , 692 S.W.2d at 8 65. In this regard, when a confli ct in te sti mony requi res the tri al court to make a determination regardingthe credibil ity of a witness or witnesses, such a determin ation is bindi ng on the appellate court unless

othe r real evi dence compels a contrary conclusion. Huds on v. Capps , 651 S.W.2d 243, 246 (Tenn. Ct. App. 1983 ).

Pa rents, inc ludi ng p aren ts o f chi ldren bo rn o ut of wed loc k, h avea fu ndamenta l liberty interest i n the care and cu stody of their chil dren under both th e United States and Tennessee Constitutio ns. Stanley v. Illinois , 405 U.S. 645 ( 1982); Nale v. R obertson , 871 S.W.2d 674, 678 (Tenn. 1994) . These parental right s are prim ary an d sup erio r abo ve all others and conti nue unless the par ent consents, rel inquishesthem, abandons his or her child, or for

feits h is or

her pa rental rig hts by

some conduct that is not in the best inte rest of the child asprovided in T.C.A. § 37-1-147(b)(c)(d)(1) - (6). Indeed, we recog nize that adoption proceedings prof oundly affect not on ly the rights of the natural parents but also the rights of the child and the adop tive parents. W hen an adoption is granted, the natural parents are r educed to t he role of complete stran gers and have no rights, parental, visitati on or other

insofar as the c hild is concerned. Grider v . Grider , 187 S.W.2d 613, 614 (Tenn. Ct. App. 1945). At this time, thegranting of a petition for adopt ion establis hes from that date a relati onship of parent and child between the adoptive parents and the adopted child as if the adopted child had been bo rn to the adoptiv e parents in l awful wedl ock. In Re Adoption of Dear ing , 572 S.W.2d 929, 932 (Tenn. Ct. App. 1978 ).1 A spe cial legis lative co m m ittee stu died Te nne sse e’s ad option laws

. See S.J. Res. 17, 98th Gen

.

As se m bly, 1st S ess ., 199 3 T enn . Pub . Acts 105 0. T he c om m ittee introd uce d legis lation in the Nine ty-Ninth General Assembly t hat repla ced the e xisting stan dard s with a sing le stan dard

. See S. 653/ H. 406, 99th Gen. As se m bly, 1st Sess. , § [ 1], 36-1-10 2(1), at 3- 6 (199 5). T his ad op tion sta nd ar d w as co dif ied at T .C .A. T itle 36 Chapter 1 Parts 1 and 2 and became effect ive January 1, 1996. The def ini ti on of “a bandoned chi ld” app licable w hen this ca se c am e to trial w as a s follow s:

“Abandoned child” m ean s: A child w hos e pa rents ha ve willf ully fa iled to v isit or have willf ully fa iled to s up po rt o r m ak e re as on ab le payments t oward such ch ild’s supportfor f our (4) consecuti ve months immediatel y pr eceding the inst it uti on of a n a ctio n o r pr oc ee din g to de cla re the ch il d 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 t he time of this case there was a di sti ncti on in the l aw between cases where an aband onment is asked t o be decl ared and t hose cas es where not onl y i s ther e an abandonment request, but also an adop tion of the abandoned child. I n 1995, the form e r si tua ti on was contr oll ed by a st atu tor y d efi ni ti on of “aba ndoned chi ld ” i n T.C. A. § 36-1- 102(1)( A) (1991 Supp. ). In t he latter sit uati on, case l aw sets t he precedentconcerni ng the defi nit ion of“abandoned ch il d.” The new versi on of t he adopti on stat ute, codif ied at T.C.A. Titl e 36, Chapt er 1, Parts 1 and 2, encom passe s both situations. However, the ev ents ofthi s case took pl ace befor e thi s stat ute was enact ed on January 1, 1996. 7 At t he time this ca se came to tri al, Tennessee lac ked a uniform standar d for determinin g whether

a parent has abandon ed his or her child. 1 We should note that, according to its ex press prov isions, the de finition of “abandoned c hild, ” in th e version of T.C.A. § 36-1-102(1) (A) applicable at the time of thi s case, rel ates to cases where there is an “action or

proceeding to declare the child to be an a bandoned child.”At thetime of this case, this ha d not been extende d by amendment or construction to apply w hen the issue of abandonm ent is under co nsiderati on in an adoption pr oceeding in the circuit

or chancerycourt. See In Re Adoption of Par sons , 766 S.W.2d 196 , 200 (Tenn. Ct. App. 1988). Thus, the trial court is not limi ted by the defini tion 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 Cou rt has arti culated the s tand ards for determi ning abandonmen t in adoption proceedings as f ollows:

Abandonment, a s it perta ins to an adopti on proce eding, 2 imports any conduct on the part of the parent which evinces a settled purposeto forego all parental duties and relinquish all parental clai ms to the child

. . . In re Adoption of Bow ling , 631 S. W .2d 386 , 389 (T enn. 19 82)(quot ing Ex parte Wolfenden , 34 9 S.W.2d 713, 714 (Tenn. Ct. App. 1959)) ; See also In re Adoption of Female Chil d ( Bond v. McKenzie ), 896 S.W.2d 546, 547 (Tenn. 1995). Thi s Court has h eld that:

The evid ence of abandonment must show a “conscious8 disregard or indifference” f or parental obligations and must demonstrate that there has b een an ac tual desertio n, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relationsh ip and throw off all obligations

growi ng out of the same. Francher v. Mann , 432 S.W.2d 63, 65 (Tenn. Ct. App. 1968). According ly, we concluded that the conduct must amount to “an abs olute, complete and int ent ional reli nquishment of all parental contr

ol and interest . . . [in] t he child” i n order to constitute abandonment

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

As mentioned above, a natural parents right s are giv en a po sition of prior ity and superiorit

y over all others. The heightened bur den of proofcharged upon those seeking a declaration of abandonment in an adoption proceeding is anothe r safeguard against a wrongful termination of these parental r ights. U nlike most other civil cases requiri ng proof bya preponderance of the evidence, adoption cases mandat e the party asserting that a parenthas abandoned his or her child prove their case by clear and convinci ng evidence. In re Adoption of a Fem ale Child , 896 S.W.2d at 547; Koivu v. Irwin , 721 S.W.2d at 807.

The “clear

and convinc ing evi dence” standard defies pr ecise definiti on. Majo rs v. Smith , 77 6 S.W.2d 538, 540 (Tenn. Ct. App. 1989) . While it is more preci se tha n th e preponderance of the evidence standard, Rentenbach Engi neering Co. V. General R ealty Ltd. , 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985) , it does not require such certaint

y as the “beyond a reasonable doubt” standard. Brandon v. Wright , 838 S.W.2d 532, 536 (Tenn. Ct. App. 1992). Cl ear

and convinc ing evi dence eliminates any seri ous or substant ial doubt concerning the correct ness or the conclusion s to be draw n from the evidence. See Hodges v. S.C . Too f & Co. , 833 S.W.2d 896, 901 (Tenn. 1992). It should produce in the fact-finder’s mind a firm beli ef or convic tion wit h regard to t he truth of the allegati ons sou ght to be esta blished. 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 i n this recor d does not qual ify by theforegoing standard.3 Pier ce v. Bechtold, 448 S.W .2d 425 (Te nn. Ct. App. 1968); In re A do ptio n o f F em ale Ch ild ( Bond v.

M cK en zie ), 896 S.W .2d a t 547 (Te nn. 1 995 ); In r e Adopti on of Parson s , 766 S .W .2d 196 (T enn. Ct . App. 1988); In r e A do ptio n o f S elf , 836 S.W . 581 (Tenn . Ct. App. 1992); In r e Rigsby , App . No. 01-A- 01-93 04-CV00171, sl ip op. at 10. 9 Courts have consi stently us ed the standards set for th in Ex parte Wolfenden and Francher v. Mann to determine w hether a parent ha s abandoned his or her child. 3 These decisionsillustrate that the courts consider t he fol lowing matters w hen ascertaini ng whether an ab andonment has occurr ed or not: (1) The parent’s ability

to support the c hild; (2) the amountof support the parenthas provi ded to the child ; (3) the ex tent and nature of the contact between the parent and the child; ( 4) the frequency of gifts on speci al occasions ; (5) w hether the parent voluntari lyrelin quished cust ody of the chil d; (6) the l ength of time the child has

been separated from th e parent; and (7) the home environment and conduct of the parent prior to or in lieu of any actual removal of the chi ld to another. Koivu v. Irwin , 721 S.W.2d 803, 807 (Tenn. Ct. App. 1986). No single f actor is co ntrollin g. O’Daniel v. Mess ier , 905 S.W.2d 182, 187 (Tenn. Ct. App . 1995). Abandonment i nquiries
are heavily fact-oriented, so the courts may consider an y fact that ass ists in deci ding whether the p aren t’scond uct demon stratesa co nsci ous d isrega rd o f all of hi s or her parental responsibil ities. Id. We feel that it is important t o note thataba ndonment by natural parent s may be f ound o nly when, be ing gi ve n benefit of every controver

ted fact, such inference follows from the evi den ce as a m atter 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 Fath ernever

abandoned Son. Reg arding factor (1), Father

has remarri ed, has regul ar employment w ith a radio station and as a mus ician, and hasa stab le homeenvironment with his present wife. Fact or (2) is a controve rted fact, and as s uch, Father sh ould be given the benefit of this fact. Father testi fied that Mother and he “sp lit the bil ls.” Addi tion ally, Father testified that he attempted to send clo thes and toys to S on, but the Mixes w ould notallow hi m to do so. The Mi xes admit to denying Father any right to see Son or assert h is righ ts as a parent. Concerningfactors (3), (4), and (6) , as men tioned above, the Mixe s have denied Father any right to see Son or toassert any of his rig hts as
a parent; therefore, any efforts of Father were futile. Fat her requested v isitation, b ut has10

not been granted such by the Mixes. Father’s offers to se nd cl othe s and toys were emphatical lydeni ed by the Mi xes. Fact or (5) is illustrated in that Fathe r has refused to surrender

his rig hts after repeated r equest to do s o by Mother. U pon learning of the approximatedate of Son’s bir th, Father made efforts to locate Mothe r and Son. After discover ing that Son had been pla ced for adoption, Fat her filed custody proceedings in Florida. Concerningfactor (7), t h e co nduct and home envi ronment of Father i n 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 part ake o f drugs and only occasionally drank beer. In fact, the tria l court found that Father and his new wi fe presented a stabl e home environ ment for a child.

We reco gnize that the evi dence concernin g many of these factors was disputed at trial. The trial court, however, was in a position to evaluate the credibil ity of the w itnesses at the hearing, and the court apparently res olved this dispute in favor

of Father. We agree.

We feel that it is necessary to note the gravity and difficulty in this matter. Undo ubte dly, certain children would be better off wi thout the presence of one pa rent or the other in their l ives, but that is not, an d has never been a basis to g rant a petiti on for adop tion. This is an adop tion proceedingnot a custody determination. As thi s court quoted in Ex parte Wolfenden , “The righ ts of the parties and auth ority of the court in an adoption proceeding differs greatly from those in a cha ncer y actio n invo lving m ere c usto dy, foradoption affects thecourse of inher itance, severing forev er and conclusiv

ely the le gal rightsand intere sts of th e natural parents, whil e custody i s only a c hange into another relationship on a tempora ry basis.” Ex parte Wolfenden , 348 S.W.2d at 757.

We agre e that it is one thing to s ay that a parent’s actions have been of such a nature as to remove a c hild from the paren t’s home, but it is q uite another thi ng to say that a parent’s act ions have g one so far as to dec ree that “the c hild is no l onger you r child.”

Based on the evidence i n this recor d, givi ng Father the benefit of every controverte d4 In li ght ofour aff ir mance of the judg m ent o f the trial c ourt, w e de cline to address t he issue of whet her

the appel lant s perpet rate d fraud by st ati ng in thei r pet it ion f or adopt ion an d in thei r ame nded peti ti on for adopti on thatthe f atherof t he chil d in questi on was unknown. Alt hough appel lee pr operl y r aised t his i ssue, it has b eco m e m oot. 11 fa ct, there is no c lear and conv incing ev idence that Fathe r abandoned Son and th e evidence does no t prepo nderat e against the fin dings of the trial court. W e hereby affirm the judgment of the t rial court dismissingthe Mixe s petition for ad option. 4

Conclusion Base d on t he f orego ing an alysis , we affirm the trial court’s findi ng that Father had not abandoned Son, and that it would not be in Son’s best i ntereststo terminate Father’s parental rights. W e further aff irm the dismissal of the Mixes’ petition fo r adoption. This

case is remanded to t he trial cour t for such othe r and f urther procee dings as may be necessaryand consistent with this opinion. Co sts are taxed to the appellants, f or which
execu tion may is sue i f ne cess ary.

HIGHERS, J.

CONCUR:

FARMER, J.12

HAYES, J.