FILED

March 25, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

IN THE MATTER OF THE ADOPTION ) HAMILTON COUNTY

OF SUMMER SIERRA MASSENGALE ) 03A01-9708-CV-00373

)

CRAIG MARCEL BULL and )

DEBRA FAYE BULL )

 )

Petitioners-Appellants )

)

KAREN DENISE MASSENGALE ) HON. SAMUEL H. PAYNE,

 ) JUDGE

Co-Petitioner ) 

)

v . )

)

CHRISTOPHER WAYNE RANDOLPH ) 

 )

Respondent-Appellee ) AFFIRMED AND REMANDED

MICHAEL S. PINEDA OF CHATTANOOGA FOR APPELLANTS

CHARLES G. WRIGHT, JR., OF CHATTANOOGA FOR APPELLEE

 O P I N I O N

 Goddard, P.J. 

In this adoption proceeding, Craig Marcel Bull and his

wife, Debra Faye Bull, appeal a determination of the Circuit 

Court for Hamilton County that they had not shown by clear and

convincing evidence that Christopher Wayne Randolph, father of

Summer Sierra Massengale, was guilty of any acts which would

entitle them to have his parental rights terminated. This
2

determination, of course, precluded the Bulls from adopting the

child.

The Bulls contend that the Trial Court failed to use

the proper standard in determining whether an abandonment had

occurred, and that the record supports a finding of abandonment

under the proper standard. They also insist that Mr. Randolph's

parental rights should be terminated under certain provisions of 

T.C.A. 36-1-113(g), hereinafter set out.

The Trial Judge entered the following memorandum

opinion which embraced his findings of fact and conclusions of

law:

This cause came on to be heard on April 8, 1997,

upon a petition to terminate the parental rights of

Christopher Randolph. The petition was filed by Craig

and Debra Faye Bull, who have present custody of this

minor child by virtue of an order from the Juvenile

Court. This Court heard testimony from Craig Bull,

Debra Faye Bull, Christopher Randolph, Shirley

Massengale, paternal grandmother, Tammy Lane, and Scott

Giles and the deposition for proof of the natural

mother, Karen Massengale. This petition was filed and

accompanied with an adoption petition. The natural

mother, Karen Massengale, consented to the adoption and

Mr. Christopher Randolph, the natural father of the

child, has filed an answer seeking to deny the adoption

and gain custody of his minor child. This matter was

filed pursuant to T.C.A. 36-1-102 and 36-1-113. Mr. &

Mrs. Bull obtained the child, who was born in May 1996,

approximately six weeks after her birth. The Bulls

picked the child up from the natural mother's

grandmother, Shirley Massengale, and have resided since

that time at 610 Bivins Road. Mr. & Mrs. Bull have

three other children. The Bulls obtained custody of

this minor child from the Juvenile Court by virtue of

filing a petition along with an affidavit from the

natural mother, Karen Massengale, who is presently

incarcerated in the penitentiary. In their petition
3

they alleged in Juvenile Court they did not know the

address or whereabouts of the natural father, 

Christopher Randolph. Christopher Randolph avers he

was never notified, was never served, and had no idea

where the child was so that he could pay support, or so

he could visit. This Court finds that the natural

mother, Karen Massengale, knew how to get in touch with

Christopher Randolph and they intentionally did not

notify him to be at the hearing in Juvenile Court. The

testimony revealed that neither Mr. or Mrs. Bull or

Karen Massengale even made any attempt to contact or

serve the natural father, Christopher Randolph. It is

in evidence that Christopher Randolph filed a petition

to legitimate this child and even visited the child

while it was in the hospital after its birth. He

alleges that he paid $50 on several occasions to the

mother before the birth and even after the birth. The

natural mother denies this and says he only paid $25. 

The evidence shows that Christopher Randolph has

visited with the child at the hospital, has had the

child on overnight visitation on two other occasions. 

Christopher Randolph says he then lost awareness of

where the child was and since the natural mother was in

the penitentiary he could not find the child until he

was served with the Petition for Adoption. Mr.

Randolph called the grandmother, Shirley Massengale,

and the natural mother, Karen Massengale, and they

would not reveal the child's location. Christopher

Randolph, the natural father of this child, has served

seven years in the penitentiary for rape and the

natural mother is now in the penitentiary. When this

child was born, the mother was on cocaine and the child

even had a cocaine habit, according to their testimony. 

It is also in evidence that the natural father,

Christopher Randolph, supplied clothes and diapers for

the child when he knew where she was. The testimony of

all the parties in this case was highly conflicting and

this Court could not say that the burden of proof to

terminate the natural father's rights has been carried. 

This Court finds that there is not clear and convincing

evidence for the grounds of termination of the father's

rights as set forth in T.C.A. 36-1-113(c)(1), which

requires a finding by the Court of clear and convincing

evidence that the grounds for termination of parental

rights have been established---or T.C.A. 36-1-113(5)(g)

or any of the grounds that are stated in this section. 

The Court further finds that there is no clear and

convincing evidence that the parent has abandoned the

child or violated any of the provisions set forth in

T.C.A. 36-1-113(7)(B) or (8)(A).

This Court finds that the father is now presently

working at Aladdin Industries in Dalton, Georgia and

makes approximately $518.40 per week. Although the
4

natural father, Christopher Randolph, has admitted to

having alcohol and drug problems, he says he is now

presently clean and has been through a recovery program

with AA. At the trial he was clean, well dressed and

had complete control of himself and has maintained his

job for some period of time. It is in evidence here

that the natural father grasped at every opportunity to

develop some relationship with his child, and he

constantly called the mother, even when she was in the

penitentiary, and the grandmother trying to locate the

child. Neither natural parent in the case before the

Court qualifies as what this Court would call totally

responsible parents. Therefore, this child should be

left in the custody of Mr. & Mrs. Bull and child

support be fixed at $85.00 per week by the natural

father, Christopher Randolph, and the case returned to

Juvenile Court for the fixing of visitation rights

and/or further determination of their temporary custody

decree. This Court recommends counseling for all

parties and, if necessary, the help of the Department

of Human Services in establishing a reasonable

visitation schedule. The Tennessee Supreme Court in

1994 stated that a father whose child has been

legitimated can defeat adoption by withholding consent

to adoption --- See Nale v. Robertson , 871 S.W.2d 674

(1994). The Court also held in the case of O'Daniel v.

Messier , 905 S.W.2d 182 (1995), that a party seeking

declaration of abandonment in adoption case must prove

his or her case by heightened "clear and convincing

evidence" standard to safeguard against wrongful

determination of biological parent's parental rights. 

The Court also held in the case of Koivu v. Irwin , 721

S.W.2d 803 (1986) that a finding of possible

abandonment in adoption proceeding, or the lack of such

finding, on the part of one parent is not to be

interpreted as conclusive to the other parent or the

ultimate issue.

In considering whether there has been abandonment

in this case, the Court has considered such factors as

the parent's ability to support the child, the amount

of support the parent has provided to the child - or

tried to provide, extent and nature of contact between

the parent and the child - or his attempts to visit,

frequency of gifts on any special occasions - such as

gifts of clothes and diapers, and whether the parent

voluntarily relinquished custody of the child. This

Court finds the natural father did not voluntarily

relinquish custody. The length of time the child has

been separated from the parent is approximately one

year. The home environment and conduct of the parents

prior to removal of the child are suspect. The natural

father or natural mother, Karen Massengale, had no home

environment with this child after its birth, but only
5

periodic visitation as other people cared for the

child. This Court, although not approving of the

natural father's or natural mother's conduct in any

manner, cannot say that the father under this proof has

evidenced any conduct which evidences a settled purpose

to forego all parental duties and relinquish all

parental rights to this child by clear and convincing

evidence.

T.C.A. 36-1-113, which addresses abandonment as a

ground for termination of parental rights, provides as pertinent

to this appeal the following:

36-1-113. Termination of parental rights.

. . . .

(g) Termination of parental or guardianship rights

may be based upon any of the following grounds:

(1) Abandonment by the parent or guardian, as

defined in § 36-1-102, has occurred.

T.C.A. 36-1-102 defines abandonment as follows:

36-1-102. Definitions.-- As used in this part,

unless the context otherwise requires:

(1)(A) "Abandonment" means, for purposes of

terminating the parental or guardian rights of

parent(s) or guardian(s) of a child to that child in

order to make that child available for adoption, that:

(I) For a period of four (4) consecutive months

immediately preceding the filing of a proceeding or

pleading to terminate the parental rights of the

parent(s) or guardian(s) of the child who is the

subject of the petition for termination of parental

rights or adoption, that the parent(s) or guardian(s)

either have willfully failed to visit or have willfully

failed to support or make reasonable payments toward

the support of the child;

. . . .
6

(iii) A biological or legal father has either

willfully failed to visit or willfully failed to make

reasonable payments toward the support of the child's

mother during the four (4) months immediately preceding

the birth of the child; provided, that in no instance

shall a final order terminating the parental rights of

a parent as determined pursuant to subdivision

(1)(A)(iii) be entered until at least thirty (30) days

have elapsed since the date of the child's birth.

Koivu v. Erwin , 721 S.W.2d 803 (Tenn.App.1986), was

relied upon by the Trial Court, which defined abandonment under

the statute then in effect, and quoted with approval from earlier

cases and American Jurisprudence, as follows (at page 808):

In addressing this question Mr. Justice Brock, speaking

for the Court in Adoption of Bowling v . Bowling , 631

S.W.2d 386 (Tenn.1982), and quoting from Wolfenden ,

which in turn quotes from American Jurisprudence, said

the following (at page 389):

"So, the issue of abandonment should be resolved by

the Circuit Court under the following statement of

law:

'Abandonment 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. It does not follow that the

purpose may not be repented of, and, in proper

cases all parental rights again acquired.... But

when abandonment is shown to have existed, it

becomes a judicial question whether it really has

been terminated, or can be, consistently with the

welfare of the child.' 1 Am.Jur., Adoption of

Children, § 42." 349 S.W.2d at 714.

By a 1996 amendment to T.C.A. 36-1-102(1)(G), the

Legislature specifically overruled the definition of abandonment

contained in Koivu by providing the following:
7

(G) "Abandonment" does not have any other

definition except that which is set forth herein, it

being the intent of the general assembly to establish

the only grounds for abandonment by statutory

definition. Specifically, it shall not be required

that a parent be shown to have evinced a settled

purpose to forego all parental rights and

responsibilities in order for a determination of

abandonment to be made. Decisions of any court to the

contrary are hereby legislatively overruled.

While it is true the Trial Judge's opinion relied upon

case law repealed by the Legislature, it is clear that it he

accredited the testimony of Mr. Randolph and his witnesses rather

than those of the mother and her witnesses on the question of

whether his conduct was wilful.

As already noted, the Bulls also contend that they are

entitled to termination of Mr. Randolph's parental rights under

the following Sections of T.C.A. 36-1-113(g):

(8)(A) The parental rights of any person who is not the

legal parent or guardian of a child or who is described

in § 36-1-117(b) or (c) may also be terminated based

upon any one (1) or more of the following additional

grounds:

(i) The person has failed, without good cause or

excuse, to pay a reasonable share of prenatal, natal,

and postnatal expenses involving the birth of the child

in accordance with the person's financial means

promptly upon the person's receipt of notice of the

child's impending birth;

. . . .

(vi) The person has failed to file a petition to

establish paternity of the child within thirty (30)

days after notice of alleged paternity by the child's

mother.
8

With regard to Sub-section (i), the record supports the

finding of the Trial Court that Mr. Randolph gave certain monies

to the mother and offered to pay medical bills, but this offer

was refused because these bills were being paid through TennCare.

As to Subsection (vi), there is nothing in the record

to show that the mother ever gave "notice of the alleged

paternity." Additionally, we note that Mr. Randolph, of his own

volition, legitimated the child, as shown by a recommendation of

the Referee of the Juvenile Court (which was presumably approved

by the Juvenile Judge) dated December 9, 1996, which was after

the petition was filed in this Court, but long before the hearing

in the Trial Court on April 8, 1997.

It should also be noted that these provisions only

apply to one who is not a legal parent, which is defined in

T.C.A. 36-1-102(26) to be:

(26) "Legal parent" means:

. . . .

(D) A man who has been adjudicated to be the legal

father of the child by any court or administrative body

of this state or any other state or territory or

foreign country or who has signed, pursuant to §§ 24-7-

118, 68-3-203(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 sworn acknowledgment pursuant to the law of any other

state, territory, or foreign country.
9

Finally, we observe that Sub-section (8) uses the

precatory word "may," rather than the mandatory one "shall." 

We accordingly conclude that--upon deferring to the

Trial Judge's judgment as to credibility and upon using the

correct standard--the evidence failed to show by clear and

convincing evidence that Mr. Randolph was guilty of any acts

justifying termination of his parental rights. 

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for such further

proceedings as may be necessary and collection of costs below. 

Costs of appeal are adjudged against the Bulls and their surety.

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Don T. McMurray, J.

________________________________

Charles D. Susano, Jr., J.