                                                                                                              02/01/2017




                        IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                Assigned on Briefs January 4, 2017

                                      IN RE ANNA B. ET AL.

                  Appeal from the Chancery Court for Rutherford County
                        No. 14CV-1498     J. Mark Rogers, Judge
                         ___________________________________

                                 No. M2016-00694-COA-R3-PT
                             ___________________________________


This is a termination of parental rights case. Father appeals the termination of his parental
rights, to two minor children, on the grounds of: (1) severe child abuse, Tenn. Code Ann. §§
36-1-113(g)(4) and 37-1-102(22)(C); and (2) abandonment by willful failure to support and
willful failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). Father
also appeals the trial court’s finding that termination of his parental rights is in the children’s
best interests. Because Appellees did not meet their burden to show that Father willfully
failed to provide support for the children, we reverse the trial court’s finding as to the ground
of abandonment by willful failure to support. The trial court’s order is otherwise affirmed.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                  Reversed in Part, Affirmed in Part, and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR. and W. NEAL MCBRAYER, JJ., joined.

Daniel Lyn Graves, II, Murfreesboro, Tennessee, for the appellant, Christopher B.

Kirk D. Catron, Murfreesboro, Tennessee, for the appellees, Angela P. and David P.


                                                 OPINION

                                              I. Background

       There are two minor children at issue in this case, Anna B. (d.o.b. October of 2002)
and Ella B. (d.o.b. August of 2004) (together, the “Children”).1 The Children’s parents are
        1
          In cases involving minor children, it is the policy of this Court to redact the parties’ names so as to
protect their identities.
Appellant Christopher B. (“Father”) and Angela P. (“Mother”). Mother and Father were
married when the Children were born. As discussed below, Mother and Father are divorced,
and Mother has remarried David P. (together with Mother, “Appellees”). At the time Mother
and Father were married, Mother had a child from a previous relationship, Jenna B., who is
now an adult.

       After discovering that Father had sexually abused Jenna B., who was approximately
eleven years old at the time of the abuse, Mother filed a petition for an order of protection on
May 24, 2010. The trial court issued an ex parte order, enjoining Father from having any
contact with the Children, Jenna B., or Mother. On May 25, 2010, Mother filed a complaint
for divorce and for a temporary restraining order against Father; the trial court issued a
temporary restraining order, which prohibited Father from having any contact with the
Children. Thereafter, on July 27, 2010, Mother and Father entered into an agreed order,
which allowed Father supervised visitation with the Children for four hours per month. On
August 11, 2011, the parties were granted a divorce. The trial court also extended its order
of protection until November 6, 2013; after that date, no further orders of protection were
entered.

       Concurrent with their divorce, Mother and Father entered into a Marital Dissolution
Agreement and an agreed Permanent Parenting Plan. The parenting plan named Mother as
the Children’s primary residential parent, and Father was prohibited from any contact with
the Children. Father was ordered to pay $415 per month in child support. At the time the
parenting plan was entered, the trial court found that Father owed $4,140 in child support
arrears.

       Criminal charges were brought against Father stemming from the sexual abuse against
Jenna B. Father was charged with five counts of rape of a child in Cannon County and three
counts of soliciting sexual exploitation of a minor in Rutherford County. As to the Cannon
County charges, Father entered a best interest plea to two reduced charges of attempted
aggravated sexual battery, a Class C Felony. Tenn. Code Ann. §39-13-504. Under his plea
agreement, Father received a suspended sentence of six years for each count, to run
consecutively. As part of his Cannon County plea agreement, Father agreed that he would
“have no contact with [the] victim or [the] victim’s family.” Concerning the Rutherford
County charges, Father pled guilty to one count of soliciting sexual exploitation of a minor, a
Class B Felony. Tenn. Code Ann. §39-13-529. Father was sentenced to ten years, with one
year of incarceration in Rutherford County, which he served from October of 2010 to July of
2011. Father’s remaining sentence was suspended, and he was placed on probation for nine
years. As a condition of his Rutherford County plea agreement, Father agreed that “he will
have no unsupervised contact with any minor children, including his own, the supervisor will
be approved by the mother of the children prior to any visitation.” Father was still on
probation at the time of the hearing in this case. As a condition of his pleas, Father was
required to register as a sex offender.

                                             -2-
        On October 16, 2014, Appellees filed a petition to terminate Father’s parental rights to
the Children and for step-parent adoption. As grounds for termination of Father’s parental
rights, Appellees alleged abandonment, by willful failure to visit and willful failure to
support, and severe child abuse. On November 14, 2014, Father filed an answer, wherein he
contested Appellees’ petition for termination of his parental rights. Thereafter, the matter
was continued for purposes of appointing a guardian ad litem for the Children; the guardian
ad litem was appointed on May 8, 2015. Immediately before the appointment of the
guardian ad litem, on May 6, 2015, Father filed a motion for supervised visitation with the
Children. By order of September 18, 2015, the trial court denied Father’s motion for
supervised visitation, finding that it did not have jurisdiction over modification of the
parenting plan.

        The trial court heard the petition to terminate Father’s parental rights on December
7, 2015. Final arguments were heard on February 17, 2016. By order of March 21, 2016,
the trial court terminated Father’s parental rights on grounds of abandonment, by willful
failure to support and willful failure to visit, and severe child abuse. The trial court also
found that termination of Father’s parental rights is in the Children’s best interests.
Father appeals.

                                          II. Issues

       Father raises two issues as stated in his brief:

       1. Whether the trial court erred in finding grounds to terminate Biological
       Father’s parental rights.

       2. Whether the trial court erred in finding that termination of Biological
       Father’s rights was in the child[ren]’s best interests.

                                  III. Standard of Review

        Under both the United States and Tennessee Constitutions, a parent has a fundamental
right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state
may interfere with parental rights only when a compelling interest exists. Nash–Putnam,
921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination
statutes identify “those situations in which the state’s interest in the welfare of a child
justifies interference with a parent’s constitutional rights by setting forth grounds on which
termination proceedings can be brought.” In re W.B., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing
Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove
both the existence of one of the statutory grounds for termination and that termination is in
the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367
                                              -3-
(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

        Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination
and that termination of parental rights is in the child’s best interest must be established by
clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79
S.W.3d at 546. Clear and convincing evidence “establishes that the truth of the facts asserted
is highly probable . . . and eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct.
App. 2004), perm. app. denied (Tenn. July 12, 2004). Such evidence “produces in a fact-
finder’s mind a firm belief or conviction regarding the truth of the facts sought to be
established.” Id. at 653.

        On appeal, we review the trial court’s findings of fact “de novo on the record, with a
presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 13(d).
We then make our “own determination regarding whether the facts, either as found by the
trial court or as supported by a preponderance of the evidence, provide clear and convincing
evidence that supports all the elements of the termination claim.” In re Bernard T., 319
S.W.3d 586, 596-97 (Tenn. 2010). We review the trial court’s conclusions of law de novo
with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App.
2007).

                    IV. Grounds for Termination of Parental Rights

        As noted earlier, the trial court relied on the following statutory grounds in
terminating Appellant’s parental rights: (1) Severe Child Abuse under Tennessee Code
Annotated Section 36-1-113(g)(4); (2) abandonment by willful failure to pay support and
willful failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). Although
only one ground must be proven by clear and convincing evidence in order to terminate a
parent’s rights, the Tennessee Supreme Court has instructed this Court to review every
ground relied upon by the trial court to terminate parental rights in order to prevent
“unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010).
Here, we note that, although Appellant states his first issue broadly, i.e., “[w]hether the trial
court erred in finding grounds to terminate [Father’s] parental rights,” his appellate brief fails
to address the severe child abuse ground. Tennessee Rule of Appellate Procedure 13(b)
provides that appellate review will generally only extend to those issues presented for
review. Although an issue may have been presented at trial, “a party’s failure to brief it
ordinarily constitutes waiver or abandonment of the issue.” Mosby v. Colson, No. W2006-
00490-COA-R3-CV, 2006 WL 2354763, at *10 (Tenn. Ct. App. August 14, 2006) (other
citations omitted); see also Newcomb v. Kohler Co., 222 S.W.3d 368, 401
(Tenn.Ct.App.2006) (failure “to cite to any authority or to construct an argument regarding
                                              -4-
[a] position on appeal” constitutes a waiver of the issue); Bean v. Bean, 40 S.W.3d 52, 55-56
(Tenn.Ct.App.2000) (“Courts have routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument section of the brief as
required by Rule 27(a)(7) constitutes a waiver of the issue.”). However, in the recent case of
In re Carrington H., the Tennessee Supreme Court carved an exception to the general rule
of waiver, which exception is applicable in termination of parental rights cases, to wit:

       Although . . . issues not raised in the Court of Appeals generally will not be
       considered by this Court, there are exceptions to this general rule. Indeed, we
       recognized recently that “Rules 13(b) and 36(a) of the Tennessee Rules of
       Appellate Procedure, considered together, give appellate courts considerable
       discretion to consider issues that have not been properly presented in order to
       achieve fairness and justice.” In re Kaliyah, 455 S.W.3d at 540 (footnote
       omitted). We exercised this discretion in that case to consider an issue that
       DCS had not raised in either the trial court or the Court of Appeals. Id. DCS’s
       argument on this point is unpersuasive. Therefore, consistent with our
       statement in In re Angela E., we hold that in an appeal from an order
       terminating parental rights the Court of Appeals must review the trial court’s
       findings as to each ground for termination and as to whether termination is in
       the child’s best interests, regardless of whether the parent challenges these
       findings on appeal. 303 S.W.3d at 251 n. 14.

In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016). Accordingly, this Court will
address both of the statutory grounds that the trial court relied on in terminating Father’s
parental rights.


                                  A. Severe Child Abuse

       Tennessee Code Annotated Section 36-1-113(g)(4) provides that termination of
parental rights may be based upon severe child abuse:

       (4) The parent or guardian has been found to have committed severe child
       abuse as defined in § 37-1-102, under any prior order of a court or is found by
       the court hearing the petition to terminate parental rights or the petition for
       adoption to have committed severe child abuse against the child who is the
       subject of the petition or against any sibling or half-sibling of such child, or
       any other child residing temporarily or permanently in the home of such parent
       or guardian;

Tennessee Code Annotated Section 37-1-102 defines “severe child abuse,” in relevant part,
as “[t]he commission of any act towards the child prohibited by §§39-13-502-- 39-13-504,
39-13-515, 39-13-522, 39-15-302, 39-15-402, and 39-17-1005.” Tenn. Code Ann. §37-1-
                                          -5-
102(22)(C). It is undisputed that Father pled guilty, in Cannon County, to two counts of
attempted aggravated sexual battery under Tennessee Code Annotated Section 39-13-504.2

        Concerning the ground of severe child abuse, in its order terminating Father’s parental
rights, the trial court found, in relevant part, as follows:

       15. That the trial brief of the guardian ad litem, . . . which the court has read,
       clearly states on page 5, “Did the defendant’s criminal charges qualify his
       grounds for termination of defendant’s parental rights pursuant to T.C.A. §36-
       1-113.” And the answer is “yes.” And the Guardian ad litem goes on to state
       the authority for such;

       16. That the trial brief for the father . . . under issue number 3, “[d]id the
       father’s criminal charges qualify as grounds for termination of father’s
       parental rights pursuant to T.C.A. §36-1-113, are the father’s criminal charges
       considered a condition of severe abuse as defined in T.C.A. §36-1-113(g)(4-
       5).” In the brief is stated “Father concedes that under the provisions of T.C.A.
       §36-1-113(g)(4-5), that he was incarcerated for a period of time that would by
       strict language of the statute give this court a ground for this petition.”
       However, father emphasized his best interest plea was made with intent of
       being able to seek supervised visits with his children and, thus to maintain a
       relationship with them for an opportunity to stay in their li[ves].

                                                   ***

       18. That this Court has inquired by asking all counsel to address the Court
       with trial briefs addressing certain issues and specifically, the criminal
       charges, the incarceration, et cetera. And further, at the conclusion of their
       arguments today, this Court asked counsel if they agreed that issue pertaining
       to father’s criminal convictions had been resolved to their satisfaction from the
       evidence and was not an issue for this Court, based upon the Court’s reading
       of the trial briefs, and their respective positions from their arguments. All
       three counsel for the parties involved acknowledged that, in fact, it was their
       representation to this Court that this ground is proven to terminate one’s
       parental rights.

Although the trial court’s order indicates that Father conceded that Father’s criminal charges
       2
           Tennessee Code Annotated Section 39-13-504 defines aggravated sexual battery as:

            (a) Aggravated sexual battery is unlawful sexual contact with a victim by the defendant
            or the defendant by a victim accompanied by any of the following circumstances:
                                                     ***
            (4) The victim is less than thirteen (13) years of age.
                                                   -6-
were sufficient to satisfy the statutory definition of severe child abuse, the trial court notes
that “[F]ather emphasized his best interest plea was made with intent of being able to seek
supervised visits with his children and, thus to maintain a relationship with them for an
opportunity to stay in their li[ves].” Although, as discussed above, Father has not briefed his
argument for reversal of this ground, as noted by the trial court, during the hearing on the
petition to terminate his parental rights, Father testified at length about his decision to enter
Alford best interest pleas in the criminal cases.3 From his trial testimony, we glean that
Father’s argument is that, although his criminal charges satisfy the statutory definition of
“severe child abuse,” his Alford plea was not a finding by the criminal court, and, thus, the
statutory language, i.e., “[t]he parent . . . has been found to have committed severe child
abuse . . . under a prior order of a court,” was not satisfied. Tenn. Code Ann. § 36-1-
113(g)(4) (emphasis added). However, we need not address the question of whether an
Alford plea constitutes a “finding” of severe child abuse for purposes of termination of a
parent’s rights. By its plain language, Tennessee Code Annotated Section 36-1-113(g)(4)
does not require that the finding of severe child abuse be made by a court other than the court
hearing the petition to terminate. Rather, the statute provides avenues for a finding of severe
child abuse. First, the finding may be made in “a prior order of a court;” in the alternative,
the parent may be “found by the court hearing the petition to terminate parental rights . .
. to have committed severe child abuse against . . . any . . . half-sibling of such child[, who is
the subject of the petition to terminate parental rights].” Id. (emphasis added). Here, the trial
court made this finding in its order terminating Father’s parental rights. Specifically, the trial
court held:

        25. That Jenna [B.] placed trust in [Appellant] as her stepfather and that trust
        was violated. She was the victim of sexual abuse by her stepfather.

The question, then, is whether this finding is supported by clear and convincing evidence in
the record. Turning to the record, Father’s own testimony supports the trial court’s finding.
In relevant part, Father testified:


        Q. Did you commit these crimes against [Jenna B.]?
        A. Yes, sir.

        Q. Okay. You’re saying, yes, you did commit these crimes. We’ve got it on

        record now.

                                                   ***


        3
          An Alford plea, also known as the best interest plea, allows a criminal defendant to plead guilty
while asserting his or her innocence. North Carolina v. Alford, 400 U.S. 25, 37-38 (1970).
                                                   -7-
       Q. Did you choose to . . . have inappropriate relations with Jenna [B.]?

       A. That was a bad choice I chose to.

        Tennessee Code Annotated Section 39-13-504 defines aggravated sexual battery as
“unlawful sexual contact with a victim by the defendant” when “[t]he victim is less than
thirteen years of age.” It is undisputed that, at the time of the sexual abuse, Jenna B. was no
older than eleven. Concerning the nature of the “inappropriate relations” Father admitting to
having with his step-daughter, Father testified specifically as to what acts he committed.
Without including Father’s exact testimony, suffice it to say that, after review of the
transcript, it is clear that Father, by his own admission, touched Jenna B.’s genitals. From
this testimony, we conclude that there is clear and convincing evidence to support the trial
court’s finding that Father sexually abused Jenna B. in such a way as to satisfy the statutory
definition of aggravated sexual battery. Accordingly, the evidence clearly and convincingly
supports the trial court’s finding of severe child abuse as set out in Tennessee Code
Annotated Section 36-1-113(g)(4).

                                  B. Abandonment

        The trial court also found, by clear and convincing evidence, that Father’s parental
rights should be terminated on the ground of abandonment by willful failure to pay support
and willful failure to visit pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) and
Tennessee Code Annotated Section 36-1-102(1)(A)(I). In pertinent part, Tennessee Code
Annotated Section 36-1-113(g) provides:

       (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the grounds listed in this subsection (g). The following grounds
       are cumulative and non-exclusive, so that listing conditions, acts or omissions
       in one ground does not prevent them from coming within another ground:

       (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred;


Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part as follows:

       (1)(A) For purposes of terminating the parental or guardian rights of a parent
       or parents or a guardian or guardians of a child to that child in order to make
       that child available for adoption, “abandonment” means 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
                                              -8-
       or parents or the guardian or guardians of the child who is the subject of the
       petition for termination of parental rights or adoption, that the parent or
       parents or the guardian or guardians either have willfully failed to visit or have
       willfully failed to support or have willfully failed to make reasonable
       payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i). As found by the trial court, the relevant, four-month
time period in this case is June 16, 2014 until October 16, 2014.

       In In re Audrey S., this Court discussed willfulness in the context of termination of
parental rights cases:

       The concept of “willfulness” is at the core of the statutory definition of
       abandonment. A parent cannot be found to have abandoned a child under
       Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
       failed to visit or “willfully” failed to support the child for a period of four
       consecutive months.... In the statutes governing the termination of parental
       rights, “willfulness” does not require the same standard of culpability as is
       required by the penal code. Nor does it require malevolence or ill will. Willful
       conduct consists of acts or failures to act that are intentional or voluntary
       rather than accidental or inadvertent. Conduct is “willful” if it is the product of
       free will rather than coercion. Thus, a person acts “willfully” if he or she is a
       free agent, knows what he or she is doing, and intends to do what he or she is
       doing . . . .

       The willfulness of particular conduct depends upon the actor’s intent. Intent is
       seldom capable of direct proof, and triers-of-fact lack the ability to peer into a
       person's mind to assess intentions or motivations. Accordingly, triers-of-fact
       must infer intent from the circumstantial evidence, including a person’s
       actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005 (internal citations and
footnotes omitted).
                           1. Willful Failure to Support

       For purposes of Tennessee Code Annotated Section 36-1-102(1)(A)(i), “token
support” means that the support, under the circumstances of an individual case, is not
significant considering the parent’s means. Tenn. Code Ann. § 36-1-102(1)(B). This Court
has held that failure to pay support is “willful” if the parent “is aware of his or her duty to
support, has the capacity to provide the support, makes no attempt to provide support, and
has no justifiable excuse for not providing the support.” In re J.J.C., 148 S.W.3d 919, 926
(Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV,
2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)).
                                             -9-
       In its order terminating Father’s parental rights, the trial court made the following,
relevant findings concerning the ground of abandonment by willful failure to support:

       28. That the father has failed to pay support other than nominal support. The
       father was ordered to pay child support and chose to spend his money in other
       ways, rather than pay his support obligation. The father was in arrears at the
       time of divorce in the amount of $4,140.00, and remains in arrears as of today.
        That in the four months preceding the filing of this petition the father was
       ordered to pay around $1,600.00 and he paid $500.00, less than a third of the
       court ordered amount. The father’s number one priority was to pay to support
       his children, yet he chose to spend his money to make sure he did not go back
       to jail. The Court finds that admirable, however he made choices that led him
       to that situation. Children need financial support for their needs. In this case
       the father failed to support them to help make those need. His argument that
       he had other things facing him such as court fees and costs, but this does not
       excuse or lessen the fact that he paid approximately less than a third of the
       court ordered child support during that four month period. The Court finds
       that there was a failure to pay child support, other than nominal amounts. This
       was a conscious decision made, and the Court finds it was a willful failure to
       pay. Therefore, the Court finds that there are grounds for abandonment for
       failing to pay support. . . .


       Trial Exhibit 4 is a record of Father’s child support payments. This exhibit shows that
during the relevant four month time period, i.e., June 16 through October 16, 2014, Father
paid $500.00; however, what the record does not show is what Father’s income was during
this period. The trial court makes no finding as to his income, and, from our review of the
record, it appears that Appellees provided no evidence of Father’s income. During his
testimony, Father admitted that “I know that I have not paid [my child support obligation] in
full.” However, Father also testified that, after his arrest, he was fired from his job as an
EMT and that he had not been able to procure comparable employment since his release
from jail. Although Father also admitted that he had not attempted to have his support
obligation modified due to his changed circumstances, importantly, the burden of proof as to
income and ability to pay (in the termination of parental rights case) was on Appellees and
not on Father. In this regard, the instant case is factually similar to In re The Adoption of
Angela E., et al., wherein the Tennessee Supreme Court held that the evidence was
insufficient to establish that father had abandoned the child based on willful failure to
support. Specifically, the Court stated:

       Mother and Stepfather contend that Father had the ability to pay his child
       support obligation in full and that his payment of $3500 of the $10,336 owed
       between March 2005 and July 2005 was insufficient given his means. The
                                             - 10 -
       evidence concerning Father’s income and expenses is limited at best, however,
       and we conclude that Mother and Stepfather failed to prove that Father’s
       payment history between March 5, 2005, and July 5, 2005, reflected mere
       “token support.”

                                              ***

       For the four-month period immediately preceding the filing of the petition to
       terminate parental rights, Father paid $3500 in child support to Mother. No
       evidence was introduced concerning Father’s monthly expenses.

In re The Adoption of Angela E., et al., 402 S.W.3d 636, 641 (Tenn. 2013). The same is
true in this case. In order to meet their burden to show that Father willfully failed to pay
support, or made only token support, Appellees must show that Father “ha[d] the capacity to
provide the support, ma[de] no attempt to provide support, and ha[d] no justifiable excuse for
not providing the support.” In re J.J.C., 148 S.W.3d at 926 (citation omitted). In the
absence of any proof as to Father’s income and expenses during the relevant, four-month
time period, we conclude that Appellees have failed to show, by clear and convincing proof,
that Father has abandoned the Children by willful failure to provide support. Accordingly,
we reverse this ground for termination of his parental rights.

                                  2. Willful Failure to Visit

        As discussed above, prior to the entry of the final decree of divorce, Father was
allowed four hours of supervised visitation with the Children per month. Thereafter, Mother
petitioned for, and was granted, an order of protection, which precluded Father from having
contact with the Children. The order of protection expired in November of 2013.
Concurrent with their divorce, Father and Mother entered into a Marital Dissolution
Agreement, under which Father was granted no visitation or contact with the Children.
Furthermore, under his plea agreements, which were entered in the criminal proceedings,
Father agreed that he would “have no contact with [the] victim or [the] victim’s family,” and
that he would “have no unsupervised contact with any minor children, including his own, the
supervisor will be approved by the mother of the children prior to any visitation.” It is
undisputed that Father had no contact with the Children during the relevant, four-month time
period. In fact, at the time of the hearing on the petition to terminate his parental rights,
Father had not seen the Children for approximately six years. Father’s argument, both at
trial and on appeal, is that the previous orders of the court precluded him from contact with
the Children and that, accordingly, his failure to visit was not willful. Father’s argument is
almost identical to the argument made by the father in In re The Adoption of Angela E., et
al. In that case, father did not dispute the fact that he failed to visit his children during the
relevant time period; rather, he argued that his actions were not willful because his visitation
had been suspended by court order. 402 S.W.3d at 642. In affirming this Court’s decision
that the prior order suspending father’s visitation rights did not preclude a finding that father
                                             - 11 -
willfully failed to visit the children, the Tennessee Supreme Court stated:

       At the time of the filing of the petition to terminate parental rights in July
       2005, Father had not exercised parenting time with the children for almost
       three years. He had taken no steps to have his parenting time reinstated
       despite language in the August 2002 order providing that he could petition the
       trial court for “a hearing at his earliest convenience.” After filing the petition
       to reinstate visitation in July 2003, Father took no further action to pursue the
       matter. He did not attempt to see the children until after the original
       termination petition was filed in July 2005. As the Court of Appeals observed,
       this is not a case in which a parent was actively trying to maintain visitation.

402 S.W.3d at 642 (citations omitted). Although, in the instant case, Father testified that he
has “tried” to see the Children, he was unable to provide any proof to support his statement.
In short, with the exception of Father’s May 6, 2015 motion for supervised visitation, which
was filed after the commencement of the termination of parental rights proceedings, there is
no indication in the record that Father has made any attempt to seek visitation through a
court, or that he has sought any visitation through Mother. Despite Father’s attempt to seek
visitation during these proceedings, Tennessee Code Annotated Section 36-1-102(1)(F)
clearly states that “[a]bandonment may not be repented of by resuming visitation or support
subsequent to the filing of any petition seeking to terminate parental . . . rights.”

       In its order terminating his parental rights, the trial court made the following, relevant
findings concerning Father’s failure to visit:

       23. That this Court and all Courts are available to return to, bring proceedings
       in front of, and request the exercise of visitation of rights and privileges. No
       effort was undertaken by father to do so. Father has never filed anything,
       never gone to court to request or made any effort to establish any visitation
       with his two children. . . since the parties’ divorce.

                                              ***

       Father chose to make a plea in the criminal charges and chose to agree to a
       parenting plan that gave mother 365 days a year and has done nothing to
       modify that in any way.

       27. That the father has willfully failed to visit or otherwise seek visitation
       with his minor children . . .

The record supports the foregoing findings. Under the holding in In re Adoption of Angela
E., we conclude that Father’s failure to pursue visitation was willful. Accordingly, we affirm
the trial court’s finding as to this ground for termination of his parental rights.
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        Although we reverse the trial court’s finding as to the ground of abandonment by
willful failure to support, in order to terminate parental rights, the moving party need only
establish one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c).
Because we have affirmed the remaining grounds that the trial court relied on in terminating
Father’s parental rights, i.e., abandonment by willful failure to visit and severe child abuse,
we proceed to the review of the trial court’s finding that termination of Father’s parental
rights is in the Children’s best interests.

                                      V. Best Interests

        When at least one ground for termination of parental rights has been established, the
petitioner must then prove by clear and convincing evidence that termination of the parent’s
rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). When a parent has been found to be unfit (upon establishment of ground(s) for
termination of parental rights), the interests of parent and child diverge. In re Audrey S .,
182 S.W.3d at 877. The focus shifts to the child’s best interest. Id. at 877. Because not all
parental conduct is irredeemable, Tennessee’s termination of parental rights statutes
recognize the possibility that terminating an unfit parent’s parental rights is not always in the
child’s best interest. Id. However, when the interests of the parent and the child conflict,
courts are to resolve the conflict in favor of the rights and best interest of the child. Tenn.
Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be viewed from the
child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at 194.

       The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:


       (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 effect a change of caretakers and physical environment is likely to
       have on the child’s emotional, psychological and medical condition;

       (6) Whether the parent or guardian, or other person residing with the parent or
       guardian, has shown brutality, physical, sexual, emotional or psychological
       abuse, or neglect toward the child, or another child or adult in the family or
       household;

                                             - 13 -
Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending
on the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:

               Ascertaining a child’s best interests does not call for a rote
               examination of each of Tenn. Code Ann. § 36-1-113(i)’s nine
               factors and then a determination of whether the sum of the
               factors tips in favor of or against the parent. The relevancy and
               weight to be given each factor depends on the unique facts of
               each case. Thus, depending upon the circumstances of a
               particular child and a particular parent, the consideration of one
               factor may very well dictate the outcome of the analysis.

White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

        In its order terminating Father’s parental rights, the trial court primarily relied on the
foregoing enumerated criteria in reaching its determination that termination of Father’s
parental rights is in the Children’s best interests. Concerning criterion three, i.e., whether the
parent has maintained regular visitations, the trial court found that this factor weighed in
favor of Mother. In reaching this conclusion, the trial court reiterated its findings under the
ground of abandonment by willful failure to visit, which we have discussed above.
Concerning criterion four, i.e., whether a meaningful relationship has been established
between parent and child, the trial court found that “[t]he [F]ather and [C]hildren . . . have
not had any relationship for . . . an extended period of time.” The record clearly and
convincingly supports this finding. Both children testified that they have very few memories
of their Father, and they have had no contact with him for many years. The record supports
this testimony; at the time of the hearing, Father had not seen these Children for
approximately six years. In addition, he made no effort to write to them or to call them.
Accordingly, we conclude that there is clear and convincing evidence in the record to support
the trial court’s finding. As to the fifth criterion, i.e., the effect of a change in caretakers and
physical environment, the evidence shows that both children are well adjusted in their
current home with Appellees. Both testified that they consider David P. to be their father.
Mr. P. testified that he, too, views the Children as his own and that he has taken on the role
of father in all ways. The record contains no evidence concerning Father’s current living
situation or whether the physical environment he would provide for the Children would be
harmful. Finally, as to the sixth criterion, i.e., whether the parent has sexually abused another
child in the family, the trial court reiterated its findings under the ground of severe child
abuse, which we have discussed in detail above. At the time of the hearing on the petition to
terminate parental rights, Anna B. was approximately thirteen years old; Ella B. was
                                                - 14 -
approximately eleven years old. At the time Father abused Jenna B., she was eleven years
old. Mother testified that she had grave concerns about any contact between Father and the
girls, especially in light of Jenna B.’s abuse at approximately the same age as the Children.
Both children testified that they had some idea about what had happened to Jenna B., and
both stated definitively that they did not want any relationship with Father. From the totality
of the circumstance, we conclude that there is clear and convincing evidence to support the
trial court’s finding that termination of Father’s parental rights is in the Children’s best
interests.


                                       VI. Conclusion

        For the foregoing reasons, we reverse the trial court’s termination of Father’s parental
rights on the ground of abandonment by willful failure to support. We affirm the termination
of Father’s parental rights on the grounds of severe child abuse and abandonment by willful
failure to visit. We also affirm the trial court’s finding that termination of Father’s parental
rights is in the Children’s best interests. The case is remanded for such further proceedings
as may be necessary and are consistent with this opinion. Costs of the appeal are assessed
against the Appellant/Father, Christopher B. Because Christopher B. is proceeding in forma
pauperis in this appeal, execution for costs may issue if necessary.



                                                      _________________________________
                                                      KENNY ARMSTRONG, JUDGE




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