### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 30, 2002 PENNY LOFTIS TAYLOR, ET AL 

### . v. CHRISTY SOWELL, ET AL 

### .

Appeal from the Juvenile Court for Davidson County No. 9719-35306 Betty K. Adams, Judge

No. M2002-00535-COA-R3-JV - Filed F ebruary 18, 2003

Christy Sowell appea ls an Order terminating her pare ntal rights as to her child, S.P.S. The trial court, finding abandonment by willful failure to support

and willf ul failur e to visit the minor child, entered an Order terminating he r parental rights. We affirm the action of the tria l court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and P ATRIC IA J. C OTT RELL , J., joined.

John C. Ford , Nashvill e, Tenne ssee, fo r the app ellant, Ch

risty Sowell.
J. Stephen Mills, Nashville, Tennessee, for the appellees, Penny and Charles Taylor.
Merrily n Feirma n, Nashville, Tennessee, f or the Gu ardian a

d Lite m for the m

inor child , S.P.S.

OPINION

S.P.S. was born

to William Sha

ne Sowell and Christ

y Sowell on May 5, 1997. On Marc h 26 , 1999, Penny L . Taylor filed a Petition for Temporary Custody of S.P.S. asserting that he w a s dependent

and neg lecte d. On Apri l 12, 1999, a hearing was held before Honorable J. Michael O’Neil, referee in the

Juvenile Court of Davidson County, Tennessee. Present for the hearing was Petitioner Penny Tay

lor and the mother

of the ch ild, Christy

Sowell. As a result of that hearing on June 1, 1999, the referee entered a n Order changing

custody from Christy

Sowell to Penny

Taylor, finding that s uch ch ange of custod y w as in the b est inter

est of S.P.S . On August

8, 2 001 , P enn y L. Taylor and her husband, Charles K. Taylor, filed a Petition seeking to termina te the pa rental r ights of William Shane Sowell and Christy Sowell on groun ds of aba

ndonment a

nd seekin g comple

te
cu st od y, control and guardianship of S.P.S. On September 17, 2001, Honorable John Ford, attorney at law, was appointed counsel to represent Christy Ann Sowell. On that same dat e, Honorabl e Merrily n Feirma n was app ointed g

uardian ad litem f

or S.B.S.1 The Order of Termina ti on rec it es that the ter minat ion h eari ng was hel d Janua ry 3, 2002; how ever, the transcr ipt of the hearin g indic ates that it o ccurr ed o n Jan uary 1 7, 20 02. T his discr epa ncy is no t deem ed m aterial.
-2- An Order terminat ing par ental rig hts of Chri sty

Sowell was entered on January

17, 2002. 1 The Order of Termination provided:

1. Christy

Sowell, mother of [S.P.S.], has abandoned [S.P.S.] pursuant to T.C.A. 36-1-102

(1)(A) (i) in tha

t she willf ully failed to visit said child in the four months immediately preceding the filing of this petition. The Court finds tha t Ms. Sowell’s testimony

lacks credibility whe

n she testified that her failure to visit was not willful. Specifically, Ms. Sowell testified that Charles a nd Penny Tay

lor kept her son’s location secret from her and she did not know where her son was during the four months pre ceding

the filing

of this pe

tition. How ever, Ms

. Sowell failed to utili ze a number of me ans available to her to locate her son. Ms. Sowell’s other child, Ms. Sowell’s father, Ms. Sowell’s mother- i n-law and Ms. Sowell’s husband all knew how to locate Mr. and Mrs. Tay lor and Ms. Sowell did not contact any of them for [S. P.S.]’s addr

ess. Ms. Sow ell admitted in her testimony that she exerted little effort to locate her child. Additionally, Ms. Sowell never soug htthe assistance of

the judicial system to help her establish visitation with her son. 2. Christy

Sowell has willfully abandoned the a bove r efer enced child pursuant to T.C.A. 36-1-102(1)(A)(iv), in that she willfully failed to support [S.P.S.] in the four months immediatel y prec eding th e filing of this pe

tition. Ms. So well admitted that she had not paid any suppor t for her ch il d since her child was placed in the custody of the Ta

ylors on April 12, 1999 and had only provided gifts for the child on one occasio n. Ms. Sowell admitted that she worked for at least two months of the four months preceding the filing of t his petitio n and paid

no suppor

t. Ms. Sowell presented no evidence that she was unable to work during that time and even testifie d that h er unemployment during this time was voluntary. Furthe rmore, the Courtfinds that Ms. S o well willfully failed to provide support for her son even though she had the capacity to work and pay the

support. 3. The Court finds that William Shane Sowell, the father of [S.P.S.] has stated that he will join with the Taylors in allowing the c h ild t o be adopted by the Taylors. 4. The Court fi nds t hat the termination of Christy Sowell’s pare ntal rights isin the bes t interes t of [S.P.S.] upo n the follo wing re asons: a. Charles and Penny Tay lor have been the legal custodians of [S.P.S.] since April 12, 1999 when the child was only 2 years old. b. [S.P.S .] recognizes Charles and Penny Taylor as his par

ents and knows Christy Sowell only as “Christy” but does not know that she is his biological mother.
c. Charles an d P en ny Ta ylor have been the primary caretakers of the child for over two ye ars.-3- d. Christy

Sowell has seen [S.P.S.] on only one occasion in the past two years a nd that contact was only a n accidental contact at a public place.
e. Christy

Sowell ha s not paid a

ny s upport fo

r [S.P.S.] in ove

r two y ears. f. Charles and Penny Tay lor have expresse d the desi

re to adopt [S.P.S.] immediate

ly follow ing the outcome of this proceeding providing the child with a permanent stable home. g. William Shane

Sowe ll hasindic ated

that h e is [i n] a greem

ent that Charles and Penny

Tay lor adopt th e child

and will join with the Taylors in an adopt ion p roceed ing. h. Alth ough Christy Sowell testified that she had a long- term go al to regain custody of

[S.P.S.], she was unable to offer any definite plan tha

t would allow her to regain custody

of said child in the near future. 5. It is in the best interest of

[S.P.S.] that legal and physical custody of [S.P.S.] remain in

Charles a

nd Penny Tay lor and th a t they

be av aila ble to beg [i]n adoption p

roceed ings. Therefore, IT I S HEREBY ORDERED, ADJUDGED, and DECREED that
a ll of Christy

Sowell’s p arenta

l rights t o the chil d, [S.P.S.], be

and the sa

me ar e her eby terminated forever, and the complete custody , control and guardianship of said child is he reby aw arded to Penny L oftis Taylor and [] her husband, Charles Kenneth Taylor.

On Febr uary 15, 2002, C hristy

Sowell fil ed timely

appeal.

Before addressing the merits of

this appeal, we must express concern about the testimonial record in this case. This transcript of the testimonial record is 86 page s in length. The wo r d “inaudible” appears 261 times in this transcript. These “inaudibles” appear in the examination of witnes ses as follow s: Mrs. Pen ny T ay lor - direct examina tion-16 tim

es, cros s-examina

tion-29 tim

es; Mr. Charles T ay lor - direct examina tion-16 tim

es, cros s-examina

tion-24 tim

es; Christy

Sowell - direct examination-88 times, cross-examination-2 7 tim es, re- direct e xamination- 30, re-c

ross examination- 8 times; and Will iam Shane Sowell - direct examination-20 times, cross-examination-3 times.

This Court has been compelled to spend an inordinate amount of time reading and re- reading this transcr

ipt in orde

r to determine whether or not the testimony is sufficient to establish, by clear and convincing evidenc e, a basis for terminating the parental rig hts of Christy Sowell. Appellant is entitled to an adequate record on appeal, a nd, when the court reporter cannot dec ipher the tape recording of the he aring, somethin g is amiss . The Certificate of the court reporter sta tes, “I, . . . hereby certify tha

t I reported the fore going audio taped hearing was transcribed by

machine shorthand to the best of my skills and a

bilities, a nd there after th

e same wa s reduced to typewritten form by me.” The Ce

rtificate of

the trial judge approvingthe tran script sta ted: “On t

he trial o f this case, the foregoing was all the evide nce submitted to the Court; and no written objections as to the accuracy or authenticity of

th e T ra ns cr ip t o f t he Pr oc ee di ng s h av in g b ee n f il ed wi th in fi ft ee n d ays of lodging of the sa id Transc ript of Pro ceeding s w ith th e clerk of the trial court, I hereby c ertify-4-

approval of said Transcript of the Proceedings and authentication of the attached exhibits pursuant to Tennessee Code Annotated.” Serious consideration has been giving to reversing and r

emanding this cause due to the inadequacy of the testimonial transcript. After careful review and r e-review of this transcript, we conclude that it is sufficient to allow appellate review.

The transcr

ipt of evid ence at the termination he aring r

eveals the testimony of four witnesse s, Penny Loftis Tay

lor, Charles K

enneth T ay lor, Chris ty So well and Wi lliam Shane Sowell. Th

e facts of the case are essentially

undisputed. Penny L

oftis Taylor and he

r husba nd, Charles Kenneth Taylor, were first awarded custody of the child by orde

r of the juv enile court in Apr il of 1999. S. P.S. was, at that time, one month short of his second birthday. He has remained in custody of the Taylors continuously since that time.
Christy Sowell ha s not visite d with S.P. S. since a vis it on his second birthday in May of 1999. This visit took pl ace at t he home of

the Tay lors and l asted ab out fifte en to twen ty minutes. The only other time that Christy Sowell has seen S.P.S. was about a y ear prior to the January 7, 2002 hearing when she, without an y pr io r arrangement, came upon Mr s. Taylor and S.P.S. at a chec k cashing establishment. Christy Sowell has never paid a ny child support

for S.P.S. nor purchased any clothing or food for him.

S.P.S. has rema

ined cons tantly

in the custody of Mr. and Mr s. Taylor, and they have provided for his upkeep, preschool, and all of the necessities of life. S.P.S. does not know Christy Sowell and believes Mr. and Mrs. Taylor to be his fathe r and mother. S.P.S. lives in the home of Mr . and Mrs. Taylor where th e eldest son of Mrs . Tay

lor, 18 y ears of age a t the time of the hearin g, also res ides. The relationship b etween the old er son and S.P.S. is a good one, and the Tay lor home is free of alcohol, drugs and criminalactivity. Mrs. Tay lor, at the time of the hearing, was 57 y ears of age, and her husband, 67 ye ars of age.

The Petition for Termination also sought the termination of parental rights of William Shane Sowell. This Defendant Father appear ed at the hearing without counsel and announced his intention to join in the Petition of the Taylors to adopt S.P.S. Upon such anno uncement, the trial court continue d the hea

ring asto the par

ental rig hts of Willia

m Shane Sow ell.

Evidence on behalf

of Ch ri st y So we ll co ns is te d a lo ne of he r o wn te st im on y, which the trial court specific ally

found lac king in credibility. She admitted that she did not supp ort the c hild with
even token chi ld support in spite of the fact that she worked at gainful employ

ment for a substantial part of the time prior to the filing of thePetition to Termina te. Her t estimony that the T ay lors “did notwant” support from her begs the question. Of more significance than support is the undisputed fact that she d id not visit w ith the child

at all after the second birthday

of S.P.S. in May of 1999. She acknowl edged

that both her daug

hter and her mothe

r-in-la w knew wh

ere S.P.S. lived and that she made little eff

ort to loca

te her so n. Lik

ewise, a t no time did

she seek assistanc e of the c ourt to establish visitation with her son. She as serts, unconvincingly , that she was afraid of the Tay lor fa mi ly.-5-

This Court has held:

Six ‘nonexclusive’ factors were sugg ested for determining whether a pa rent has
a bandonedtheir child in Koivu v. I rwin , 721 S.W.2d 803 (Tenn. Ct. App. 1986 )

. They are: (1) the amount of support given to the child; (2) the de gree of contacts and visits with the child; (3) the frequency of gifts on special day s; (4) whether custody of the child was volun

tarily given over to another; (5) the leng th of time the child has been away f

rom his natural parents; and (6) the ho me environm ent and conduct of the natural parent s pr ior to the removal of the child from their custody . The Court stated [that] [t]o determine an abandonment, the Court is not to look at t he protestations of affections and intentions expressed by the natura l parent, but

look at the past cour se of conduct. Thisis a jud icial question to be determined consistent withthe welf

are of t he child. [] The ultima

te question in an abandonment situation is whether there is clear and convincing evidence of an

overall lack of any

parental
re sp on si bi li ty. Id. at 807. Moreover, even where a parent has reestablished contact with a previously aba

ndoned child, the Court may decline to find the abandonment has been terminated. Id. at 808. The Court has also noted the abandonment inquiry is heavily fact oriented and the outcome depends upon the facts of ea ch case. Rigsby
v. Rigsby , 1994 Tenn. app. LEXI S 46. The Court ackn owle dged the above factors and remark

ed no sing le facto

r is contr olling sin ce their purpose is simply to guide the Court’s consideration of the evidence. Id.

Baralv. Bomba rd , No . M-COA-200 2-00378, 2002 WL 1256246, at *4 (Tenn. Ct. App. June 5, 2002). Clear and convincing evidence established abandonment by Christy Sowell of

S.P.S. both by willful f ailure to support during the four month period immediately preceding the filing of the Petition to Terminate and by wilful failure to visit during the same time.

Tennessee Code Annotated se ction 36- 1-113(i) delinea tes the fa ctors tha t a trial c ourt must consider when determining the best interest of a c hild. These factors are:
(1) Whether th

e paren t or gua rdia n has made such an adjustment of circumstance, conduct, or

condition s as to mak

e it safe and in the

child’s b est inter

est to be in

the home of the parent or guardian; (2) Whether the parent or guardian has f a iled to a ffect a lasting adjustment after
reasona ble efforts by

available social services age ncies for such duration of time that lasting adjustment does not reasonably appear possible; (3) Whether the parent

or guardian has maintained regular visitation or other contact with the child; (4) Whether a

meaningful relationship has otherwise been established between the parent or guardian and the child; (5) The eff

ect a change of careta

kers and physica

l environment is likely to have on the child’s emotional, psychological, and mental condition;-6-

(6) Whether t he parent or guardian, or other pe rson residing with the parent or guardian, has shown brutality , phy sical, se xual, emotional or psychological abuse, or neglect toward the child, or another c hild or adult in the family or household; (7) Whether the physical e nvironment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whethe r there is s uch use of alcohol or controlled

substanc es as may

render the pare nt or gua rdian co nsistently unable to care for the child in a safe a nd stable manner; (8) Whether th

e paren t’s or guardian ’s mental

and/or e motional st

atus would be detrimental to the child or prevent the parent or guardian from ef fectively pr

oviding safe and stable care and super vision for the child; or (9) Whether the parent or guardian has pa id child supportconsistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-11 3(i) (1- 9) (2001) . The evi dence in this case clearly e stablishes that the best interest of S.P.S. lies in the vesting of custody in Penny and Kenneth Tay

lor.

The judgment of the trial court is in all respects affirmed, and the case is remanded for such further procee dings asmay

be nece ssary . Costs of th e cause are taxe d again st Appella nt.

___________________________________ WILL IAM B. CAI

N, JUDGE