1 The record indi cates that to ke ep M.J. f

rom taking the childre n, J.B . drov e them away in h is truck, wh ich did not have any child rest

raint devi ces. J.B. had been drin kin g and t akin g drug s on the day of thi s incident. M.J. brought charg es aga inst him, an d J.B . ultimately se rved 45 d ays in jail for child e nda ngerm ent.



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE May 7, 2003 Session IN THE MATTER

OF: H. E.J. A ND H.E .J. Appeal from the Juvenile Court for Williamson County No. 24804 Alfred L. Nations, Judge

No. M2002-00539-COA-R3-JV - Filed June 19, 2003

The trial court term i nated the parental rights of a fathe r of twins on multiple grounds, including abandonment

and the commission of severe child abuse aga inst the twin’s mother

while she was a minor child residing in his home. The court also ordered him to pay $14,400 in child support arrearages. We af

firm the termination, but we reverse the child support award. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court

Affirmed in Part; Reversed in Part ; and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R
. and P ATRIC IA J. C OTT RELL , joined. Rebecca E. Byrd, Franklin , Tennessee, f or the appell ant, J.L.B. Jade A. Rogers, Gallatin, Tennessee, for the a ppellee, The Association for Guidance, Aid, Placement and Empathy, I

nc. OPINION
I. This case involves twin girls born in late 1996 to twenty -one-ye ar-old M.J., a n unmar ried woman who was living with her mother, D.B., and her stepfather, J.B. M.J. and the twins remained withM.J.’s mother and stepfather until October 3 1, 1999, when an incid ent of alcoh ol and drugrelated abuse by the stepf ather le d M.J. to lea

ve their home. Alt

hou gh J .B. att

emp ted to p rev ent

M.J. from taking the children w ith her, M .J. was ultima tely able to ob tain phy sical cu stody of them. 1-2-

Shortly after this incident, M.J. contacted AGAPE, a private n on-pro fi t a do pt io n a ge nc y. AGAPE obtained legal custody

of the children from M.J. by agreed order on January

5, 2000. The order recited that M.J. would retain visitation rights, and that the father of the children wa s unknown. The twins were then placed in foster care . M.J. revealed to AGAPE’s caseworker that although she wasn’t c ertain, she thoug

ht J.B. mig

ht be the f

ather of the twins.
On March 30 , 2000, AG APE sent a

certifi ed lette

r to J.B., informing him that M.J. had decided to place the twins for adoption, and that she had named J.B. and oneother ma n as possib le fat hers of the girls. The letter further informed J.B. as to the judicial pr ocedures for establ ishin g pa te rn it y, and the st

eps he would have t

o take before be

ing gr anted cu stody . It f

urther in formed h im that another option would be to sign a Waiver of In terest, a document

by w hich he c ould conse

nt to adoptive placement without admitting paternity . J.B. did not respond in any way to the letter.
On May 15, 2000, AGA

PE filed a

petition in

the Juvenile

Court of D avidson County to terminat e the parental rights of J.B . “and /or unknown father of the ch ildren.”M.J. subsequ ently surrendered

her par ental rig hts to AGAPE. She testified that she did not want her girls growing up in a home environment any thing like the one she had experienced. The first hearing on AGAPE’s petition was conducted on September 15, 2000. J.B appeared, and adamantly denied that he was the father of the twins. He was ordered to take a DNA te st, w hich conc lu sively proved him to be the father.
J.B. finally acted on D ecember 6, 2000 by filing a petition to establish paternity, f ollowed by a Motion for Visitation. The motion was denied. On the advice of his attorney, J.B. made two pay ments of child support of $500 each in May and June of 2001. Another side of the legal system came into play on September 10, 2001, whe n J.B. pled guilty to incest, and wa s sentenced to fi v e years imprisonment as a

standard offender.
On February

6, 2002, after sev eral false starts and the filing of an Amended Petition for Termination in the Juvenile Court of Williamson County, that court began its final hearing on the termination of J.B.’s r

ights. J.B . was tra

nsported from pris on in orde

r to attend. The inte

rests of the children were represented by the Guardia

n Ad Litem. The hearing was conducted over a period of two days. Eleven witnesses testified, including M.J. and J.B.
At the conclusion of the proof, the trial court ruled from the bench that the petitioner had proven three different

grounds for termination by clear and convincing evidence: failure to petition the court to establish paternity within thirty days of being

notified o f the alle ged pa ternity pursuant to Tenn. Code Ann. § 36-1-113 (g)(9 )(vi), a bandonme

nt by reason o f willfull

y f ailing to support the children, and the commission of severechild abuse against a child residing in the def endant’s home. The court al so found it to be in the best interest of the twins that J.B.’s parental rights be terminated. Ad di ti on al ly, the court declared tha t while a termination of parental rights severed the relation ship between parent and child, thereby relieving the parent of any obligation of future support, the parent could still be held liable for child support arrearagesor other financial obligations-3-

incurred for the c are of t

he child p

rior to the

entry of the or der ter minating parenta l rights

. The court’s Final Order was fi led on March 7, 2002. It included a r uling that J.B. was responsible for child support arrearages in the a mount of $14,4 04. J.B. filed a Motion to Alter or Amend the judgment, which was denied. This appeal followed. II. G ROUNDS F OR T ERMINATI ON A. T HE S TAND ARD O F P ROOF It is a well-established constitutional principle that "[a] parent has a fundamental rig ht to the care, custody and control of his or her ch ild." Stanley v. Illinoi s , 405 U.S. 645 (1972). However, that right is not absolute. Parental rights can be terminated upon a pprop riate st atutory

ground s if those grounds ar e proven

by c le ar and convincing evidence. See In re Drinnon, 776 S.W.2d 96 (Tenn. Ct . App. 198 8); Santosky v. Kramer , 455 U.S. 745 (1982).
Tenn. Code Ann. § 36-1 -1 13 sets out a comprehensive scheme for termination of par ental rights in appropriate cases. The constitutionally -required burden o f proof i s expresse d in section (c) of the sta tute, whic h states: Termination of parental or guardianship rig hts must be based upon: (1) A finding by the court by clear and convincing evidence that the grounds for termination or parental or guardia nship rights have been established; and (2) That termination of the parent' s or gua rdian' s rights is in the bes t interes ts of the child. Alth ough the statute sets out multiple possible grounds fo r terminat ion of par ental rig hts, onl y one of those grounds need be proven f or a valid termination to be ordered, so long as tha t ground is proven by c lear an d convinc ing evid ence, a nd it is also proven that termination is in the best interest of the child or children. The appellant has set out counter -argu ments to ch alleng e all the grounds found by

the trial court to justify the termination of J.B.’s par ental rights.
B. T ENN . C ODE A NN . § 36-1-113( G )(9)( VI )
We believ e that the grounds of abandonment and sever e child abuse have been proven by clear and convincing evidenc e. As for the gro und of fa ilure to comply with the require

ment of Tenn. Code Ann. § 36-1-113(g)(9)(vi) that a de fendant petition th

e court t o establis h patern

ity withinthirty da ys of being notified of the alleged paternity, that g

round has been foreclosed by a rec ent opinion of the Te nnessee Supreme C ourt.
In Jones v. Garrett , 92 S.W.3d 83 5 (Tenn. 2002), ou r Supreme

Court held tha t by its own terms, the statut

e at issue

only applies w

here the defenda nt’s pate rnity had not be en lega

lly established by the time of the termination hearing. Since J.B. acknowledged that he was the fa ther-4-

of the twins aft

e r the DNA

test was r

eturned , and the t

rial cou rt gra nted his Pe

tition to Est

ablish Paternity prior to th

e termina tion hear ing, the statute do es not app ly to

him. C. C HILD A BUSE As we stated above, we believe the r ecor d shows by clear

and convincing evidence two different grounds for termination of J.B.’s parental rig hts, a band onment and child abuse. In the interest of judicial economy , we will only address the que stion of abuse. Tenn. Cod

e Ann. § 36 -1-113( g)(4) describ es the g round of a

buse as f ollows: The parent or guardian has bee n found to ha ve committ e d severe child abuse as definedin § 37-1-102, under any prior order of a court or is found by the cour

t hearing the petition to terminate parental rig hts or the petition for adoption to have committed severe child abuse against the child who is the subject of the petition or agains tan y siblingor half-sibling of such child, or any other child residing temporarily or pe

rmanently in the home of suc h parent or guardian. The definition of severe child abuse found in Tenn. Code Ann. § 37-1-102 includes aggravated

rape or in ce st of a ch

ild. Tenn. Code Ann. § 39-15-3 02 states that a pe rson comm

its incest if h e knowingly

engages in sexual penetration with “[t]he person’s natural pa rent, child, grand parent, uncle, aunt, nephew, niece, stepparent, stepc hild, adoptive parent, adoptive child.” Appellant argues that

this ground is inap

plicable to him, because there is no evidence that he e ver abusedthe twins, and because M.J. was not a minor when he impregnated h er. In the alternative, he contends that M.J.’s testimony as to his abuse of her was not clear and convincing bec ause it was uncorroborated.
We agree that no allega

tions were made, and no evidence was presented, that J.B. abused the twin girls. But

M.J. testified as to a long history of sexual abuse that she suff ered at the hands of J.B. She stated that it began when she was nine y ears ol d, when J.B. s tripped her down on the pret ext of looking

for mark s on her bo dy t

hat he co uld reco rd on an id

entifica tio n card sent home by her scho ol as par

t of a pro gram to

protect childre n from kid

nappers . She stated that he looked at the body for a

long time, and that he fondled her genital a reas while doing so. M.J. also testified that at the age of thirteen she woke up one nig ht to find him performing oral sex on her. She claimed that fr om then on there were frequent incidents of J.B. fondling and touching her, including

squeezing

her vagina, and o f J.B. gr abbing her hand and puttin g it on his genita ls. M.J. testified that the first full sexual intercourse between her and her stepfather occurred when she was seventeen y ears old. Afterwards, such incidents beca me a regular feature

of life in the household, with J.B. usually demanding sexual intercour se when M.J.’s mother was at work, and J.B. had been drinking or ta king dru gs. This continue d even a fter the birth of th

e twins.-5-

Not surprisingly, J.B.’s testimony was at odds with that of M.J. He admitted to only one act of intercourse with his stepdaughter, which be cause of the DNA evidence, he could hardly deny. He also testified that he frequently became so drunk that he passed out, and that when he woke up, he didn’tknow wha

t he had do ne while

drunk. This circumstance makes his testimony of limited value in uncove ring the truth as to

his conduct, as the f

ollowing excerpt indicates

. Q. Is it y our testimony, Mr. [B] that that was the only and

only time y

ou ever had s exual

rela tions with [M ]? A. To my knowledg e, y es. Q. Could there have be en times other tha n the one incident w

here the girls were conceived, could there be o ther times tha t you had sex with her tha t you just don ’t r em em ber? A. I h ave said

that bef ore, y es. Q. There could have

been times when she was 19 or 18, that you could have had sex with

her and y ou just don’ t remembe

r it? A. Possibly , ye s. Q. There could have been times when she was 16 or 17 that you’ve had se

x with her a nd y ou just don’ t remembe r it? A. I don’t think so. The trial court

specifically f

ound “by clea

r and convincing evidence” that the te stimony of M.J. was “far more credible than the testimony of

[JB],” and th at J.B. ha

d committe d severe

child abuseagainst M.J. while she was a child residing in his home. A trial court’s deter m inations o f credibi lity

are entitled

to great deference

on review. Well

s v. Tenne ssee Boa rd

of Regen ts, 9 S.W.3d 779 (Tenn. 1999). Appellant argues tha

t b ecause there was no direct cor roboration of M.J.’s testimony, and be cause M.J.’s stepsister (J.B.’s daughter by a previous marriage) had de fended her father b y testifying that s he ha

d not b een a

buse d or a

ppro ache d by

him in a sexu al mann er during her childhood years, the

evidence should not have been characterized as clear and convinci ng. T here is no rule, however, that

requires the testimony of mor e than one witness for a finding of clea r and convincing evidence. Moreover, M.J.’s testimony is bolstered by the irrefutable evidence

of inces t, and by J.B.’s inability

to categorically

deny her a

llegations of prior abuse.
We also reject the appellant’s argument that even if J.B. was guilty of abusing M.J. while she was still a minor, this still does not meet the requirements of Tenn

. Code Ann. § 36-1-113(g)(4), because the alleged child abuse did not occur during the lifetime of the twins. This is an attempt to read int

o the statu

te a limita tion that isnot supported by its text, or by any ca se of whichwe are aware. We thus agree with the trial court that the appellee has met its burden of producing evidence of abuse sufficient to support the termination of J.B.’s parental rights.
III. B EST I NTEREST-6-

As to the question of best interest, we believe that the appellee proved by clear and convincing evidence that it was in the best interest of the minor children to terminate J.B.’s parental rights. The trial court found that J.B. is in prison, and is likely to remain there for at least another twenty months; that there is no longer any meaningful relationship between J.B. and thetwins; that J.B. has an extensive history of drug a nd alcohol abuse; that he also has a history of violence agains t oth ermember s of his family; that a chang e of caretakers is likely to have a negative effect on the children’s emotional, psychologic al and medical condition; and that the children have been with the same foster parents since January 8, 2000, with the possibility of adoption into that family

. These findi ngs are all supported by e vidence in the re cord, and appella nt does not

seriously dispute any of them, although J.B. claims that he completely stopped his u se of al cohol and dr ugs after October 31, 1999. A

ppellant ’s sole a

rgumen t is that the

court is n ot entitle d to consid er the be st interest of the children without a finding that a ground for termination has been proven by cle ar and convincing evidence, and of course he disputes the existence of such grounds. But since we have affirm ed th e trial c ourt’s de terminat ion of at le ast one of

those gr ounds, ap pellant’ s argum

ent is moot. IV. C HILD S UPPOR T The appellee notes that the authority of the trial court in te

rmination cases to award c hild support arrearages is set

out in Tenn. Code Ann. § 36-1-113 which reads in pertinent part as follows: (l)(1) An order terminating parental rig hts shall have the effect of severing forever all legal rights and obligations of the par ent or guardian

of the ch ildagains t whomthe order of termination is entered and of the child who is the subject of the petition to that parent or

guardian . . . . It shall terminate the responsibilities of that parent or guardian under this section for future c hild support or other future financial responsibilities even if the child is not ultimately adopted; provided, that the entry of an order terminating the parental rights shall not eliminate the responsibility of such parent or gua rdian fo r past ch ild su ppo rt arrearages or

other financial obligations incurred for the care of

such child prior to the entry of the order terminating parental rights.
It appears to us, however , that the trial cou rt can e xercise it s authority to

award p ast child support in termination cases only if the issue ha s been tried. Parties should include every claim for relief they wish to assert in thei r plead ings. However, even if a claim has been omitted from the pleading s, the court

can still rule on it if the issue has been tried by consent. See Rule 15.02, Tenn. R. Civ. P.; Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291 (Tenn. Ct . App. 2001) ; Varley v. Varley , 934 S.W.2d 659 (Tenn. Ct. App. 1996). Though the pleadings in the present case include aba ndonment by reason of

failure to support as a ground for termination, they do not include a claim for past child support. Th e only other langua ge in the pleadings that might remotely support such a

claim is the fina

l boilerpl ate req

uest-7-

“for such other, further and general re lief as may be

necessary .” The only question then is whether the issue of arrearage s was tried by conse nt. We note that there is no prior child support order in the record . We have also found no mention of child support arrearage s in the trial transcript, prior to the court’s ruling from the bench. There was some testimony as to J.B.’ s earnin gs as a r oofer, e licited f rom both hi mself

and from his employer, wh o i s a ls o h is br ot he r- in -l aw , b ut in so fa r a s a ny o f that e vidence was relevant to any issue before

the cour t, it appe ars to ha

ve been directe d to the question of abandonment by r eason of willful no n-suppor

t. While the trial court’s final order (which was pre pared by the appelle e) made

J.B. resp onsible for past child support in the amount to $14,404, the only rationale e xpressed for this award was the observation that J.B. had testified that he had earned $660 a week prior to his incarceration. There is no explanation as to how the connection was made between his weekly salary a nd a child support obligation. In light of the fact that the appellant has had no opportunity to address the propriety of a child support award, or challenge the c alculations relied upon b y the trial court, we believe that award should be reversed.
V. The terminat

ion of the appella nt’s par ental rig hts is affirmed. That portion of the trial court’s order which obligated him to pay past child support is reversed. Remand this caus e to the Juvenile Courtof Williamson County for further procee dings consistent with this opinion. Tax the costs on appeal to the appellant, J.B.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.