IN RE:                               )
                                     )
     NIKOLAS DEAN WELCH,             )
     Minor, Date of Birth, 11/18/91, )  Appeal No.
     Social Security No. [Redacted]  ) M1999-02649-COA-R3-CV
                                     )
CHANNON MARIE TUCKER WELCH )            Dickson Chancery
and Husband,                         )  No. 5396-98
MICHAEL TODD WELCH,                  )
                                     )
     Plaintiffs/Appellants,          )
                                     )
                                     )                  FILED
v.                                   )
                                     )        February 18, 2000
JIMMY D. HILL,                       )
                                              Cecil Crowson, Jr.
                                     )       Appellate Court Clerk
     Defendant/Appellee.             )



                  COURT OF APPEALS OF TENNESSEE


  APPEAL FROM THE CHANCERY COURT FOR DICKSON COUNTY

                       AT CHARLOTTE, TENNESSEE


      THE HONORABLE LEONARD W. MARTIN, CHANCELLOR


TIMOTHY V. POTTER
102 Highway 70 East, Unit 1
P. O. Box 66
Dickson, Tennessee 37056
      ATTORNEY FOR PLAINTIFFS/APPELLANTS



JEFFREY L. LEVY
First American Center, 20th Floor
315 Deaderick Street
Nashville, Tennessee 37238-2075
       ATTORNEY FOR DEFENDANT/APPELLEE


                         AFFIRMED AND REMANDED



                                                  WILLIAM B. CAIN, JUDGE
                              OPINION
         This case involves a mother’s petition to terminate the parental rights
of a father. Channon Marie Tucker Welch and Jimmy D. Hill are the biological
parents of Nikolas Dean Hill. Ms. Welch and her husband, Michael Todd Welch,
appeal from the refusal of the chancery court to terminate the parental rights of
Mr. Hill.


          Channon Marie Tucker Welch (“the mother”) and Jimmy D. Hill (“the
father”) began a relationship in the summer of 1990, and on November 18, 1991,
Nikolas was born to this relationship. The parties continued to cohabit until
March of 1992 when the mother moved in with her own father taking Nikolas
with her. The father, Mr. Hill, visited regularly with the child and provided him
diapers and other essentials. In September of 1993, the mother moved into a
place of her own in Tennessee City. In November of 1993, her new boyfriend,
Michael Todd Welch, moved in with her. The father continued visiting with
Nikolas typically on every other weekend. The father began sending his
girlfriend and later wife, Angela, to pick up and drop off Nikolas at the home of
the mother and Mr. Welch.


            In November 1994 the Department of Human Services brought suit to
establish the paternity of Nikolas, and on January 23, 1995, the Juvenile Court
of Dickson County found that Jimmy D. Hill was Nikolas’ natural father. The
court awarded custody to the mother and set child support at $40 per week.
Also in January of 1995, the mother and her boyfriend, Michael Todd Welch,
were married.


            In August of 1995, the father visited Nikolas for the last time. The
father made his last child support payment in July of 1997. The reasons for non-
visitation and cessation of child support payments are the subject of disputed
testimony between the parties. The father asserts that the mother refused to
allow him visitation with Nikolas stating “she didn’t want me to have anything
to do with Nikolas because I wasn’t his father anymore.”


            On March 6, 1997, the father and his wife Angela had another child,
Tanner Hill. In early January 1998, the father wrote to the mother a letter stating
in part:
            It has been several months since Angela talked to you. Have
            you given any thought to whether you’ll allow Nikolas to
            visit us. I really miss him. Plus, Tanner is getting bigger and
            we want him to know his brother. . . . I feel awful,
            embarrassed and ashamed about not keeping in touch. I hope
            in the long run he’ll understand. I do want to see him and
            start paying child support again. I think that is the first step.
            ...
            . . . I know that in the past we’ve had our falling outs, but
            that is in the past. Hopefully, we can focus on the future. I
            want Nikolas to know who his dad is and who his brother is.

            Please write me back. We need to talk about meeting

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          somewhere and discuss this.

The mother testified that she was glad the father was out of her life and that she
did not talk to Nikolas about the father and that Nikolas referred to Mr. Welch
as “daddy.” She further testified that after August 1995, she did not encourage
Nikolas to have a relationship with the father.


          The record before the trial court indicates that the mother neither
wanted the father to have a relationship with Nikolas or wanted him to pay child
support. The father testified as follows:
            She came to my home, me and my wife and her sat down
         and we talked and I told her I missed Nikolas and I wanted
         to be with him, I wanted to see him. I wanted him to be in
         Tanner’s life. We went upstairs, I showed her some things
         that I had been saving for Nikolas and I guess it was, she was
         probably there an hour or an hour-and-a-half and we went
         back downstairs and she told me she wanted me to think
         about something and I said what.

              She asked me if I would give up my rights to Nikolas and
          I said no. She said that’s what he wants that he doesn’t know
          who I am any more. She said look at it this way, this is her
          words exactly, look at it this way you won’t have any child
          support to pay after that. I said that doesn’t matter. It
          doesn’t matter. I wanted to see my son. She told me she
          would get with Nikolas and they would call me later that
          evening. She called, she would not let me speak to Nikolas
          on the phone. She told me that Michael thought it was not a
          good idea for me to talk to Nikolas, her exact words.

At the hearing, the mother also testified with regard to this same conversation
which occurred prior to the filing of the petition to terminate parental rights. She
testified as follows:
           I called him and asked him, I told him what we were
           planning to do that Michael wanted to adopt Nikolas, that
           Nikolas wanted for Michael to adopt him and that we were
           going to file a petition and I called to ask him if he would
           voluntarily surrender his rights so that we wouldn’t have to
           fight with this and wouldn’t have to drag Nikolas through it
           and I was very civil to him, I never was ugly. I just told him
           point blank whether he surrendered his rights voluntarily or
           not that this was something that we were going to go through
           with and I gave him the opportunity to surrender them at that
           time.

          At the conclusion of the trial, the Chancellor made the following
statement from the bench:
          . . . I don’t always remember the styles of the cases and the
          case names and so forth and of course at the time I read them,
          they don’t have a Tennessee decision number or a Southwest
          number but I recall reading one about adoptions and it

                                         3
         reminds me of this case and what it says is that even though
         a person conducts himself so that you would be warranted in
         terminating his parental rights that he can recant, he can
         change his mind, he can come back and that makes some
         sense.

In this respect, the Chancellor was apparently referring to Ex parte Wolfenden
wherein the court stated as follows:
         So, the issue of abandonment should be resolved by the
         Circuit Court under the following statement of the 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, Section 42.

49 Tenn. App 1, 349 S.W.2d 713, 714 (1959); see also Bowling v. Bowling, 631
S.W.2d 386 (Tenn. 1982); Koivu v. Irwin, 721 S.W.2d 803 (Tenn. Ct. App.
1986). While the 1996 amendment to Tennessee Code Annotated section 36-1-
102(1)(G) legislatively overruled the definition of abandonment contained in
Wolfenden, Bowling and Koivu, the burden still rests upon the mother under
Tennessee Code Annotated section 36-1-113 to establish abandonment by clear
and convincing evidence. The statutory definitions of “willfully failed to
support” and “willfully failed to make reasonable payment toward such child’s
support” as set forth in Tennessee Code Annotated section 36-1-102(1)(D) were
found to be unconstitutional in In Re: Swanson, 2 S.W.3d 180 (Tenn. 1999).


         In the case at bar, the Chancellor held as follows:
                1. That to the extent Defendant Jimmy D. Hill could
         potentially have been adjudged to have abandoned (as the
         term is statutorily defined) his minor son Nikolas Dean Hill,
         Defendant’s subsequent behavior has demonstrated such a
         revocation of such behavior that his parental rights should
         not be terminated.
                2. It is in the best interests of the child that the
         Defendant reestablish and develop an active relationship with
         Nikolas.

So it is that we have much the same situation as faced the court in Massengale
v. Randolph, No. 03A01-9708-CV-00373, 1998 WL131516, at * 4 (Tenn. Ct.
App. 1998), wherein the Court of Appeals observed:
         While it is true the Trial Judge’s opinion relied upon case

                                       4
          law repealed by the Legislature, it is clear that he accredited
          the testimony of [the father] and his witnesses rather than
          those of the mother and her witnesses on the question of
          whether his conduct was wilful.

          Tennessee Code Annotated section 36-1-113(c) provides that
termination of parental rights must be based upon: “(1) a finding by the court by
clear and convincing evidence that the grounds for termination or parental or
guardianship rights have been established; and (2) that termination of the
parents’ or guardians’ rights is in the best interests of the child.”


          Not only did the trial judge in this case fail to find by clear convincing
evidence that Jimmy D. Hill had “abandoned” Nikolas but he made an
affirmative determination that it was in the best interests of Nikolas for defendant
to develop an active relationship with him. The evidence does not preponderate
against the findings of the trial judge as to the best interests of Nikolas. T.R.A.P.
13(d).


        In this case, the Chancellor saw and heard the witnesses, observed their
manner and demeanor and made his decision which is entitled to great weight on
appeal. Weaver v. Nelms, 750 S.W.2d 158 (Tenn. Ct. App. 1987).


         After a careful review of this record, we are compelled to hold that the
evidence does not establish under the “clear and convincing evidence” standard
of Tennessee Code Annotated section 36-1-113 that defendant has abandoned
Nikolas, nor does the evidence preponderate against the findings of the
chancellor as to the best interest of Nikolas. We therefore affirm the Chancellor
in all respects and remand the case to the Chancery Court of Dickson County for
such further proceedings as may be deemed proper. Costs of the appeal are
assessed to Appellants, Channon Marie Tucker Welch and Michael Todd Welch.


                                             _______________________________
                                             WILLIAM B. CAIN, JUDGE


CONCUR:



__________________________________________
BEN H. CANTRELL, P.J., M.S.


__________________________________________
PATRICIA J. COTTRELL, JUDGE

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