                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 9, 2000 Session

                BRADLEY J. BROWN v. MICKEY JOE ROGERS

                    Appeal from the Circuit Court for Rutherford County
                              No. 33086     Don R. Ash, Judge



                   No. M2000-01277-COA-R3-CV - Filed February 5, 2001


The biological father appeals the termination of his parental rights which allowed the adoption of
his two children by the stepfather after the mother’s death. Although the evidence that the father
abandoned his children was clear and convincing, the proof, when supplemented with post-judgment
facts, was insufficient to determine whether termination of parental rights was in the best interests
of the children. We remand for a hearing on the children’s best interests.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                  Vacated and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., and
WILLIAM B. CAIN , JJ., joined.

David Goad, Murfreesboro, Tennessee, for the appellant, Mickey Joe Rogers.

Daryl M. South, Murfreesboro, Tennessee, for the appellee, Bradley J. Brown.

                                            OPINION

        Mickey Rogers, the appellant, and his then-wife, Lisa (now deceased) had two children, a
son, born May 1990, and a daughter, born May 1992. The family lived in Kentucky when the
parents separated, and the mother brought the children to Tennessee, where her father and
stepmother lived. Mr. Rogers moved to Virginia. The mother obtained a divorce and custody of the
children in 1994. After the divorce was final, Bradley Brown, the appellee, moved in with the
mother and the children. Mr. Brown married the mother in 1996 and they had a son who was three
years old at the time of the hearing in this matter. Mr. Rogers also remarried and started a new
family. His wife was in the U.S. Navy. She was transferred to San Diego in August or September
of 1996. Mr. Rogers visited his family in Tennessee on his way to California and spent some time
with his children then. After moving to California, Mr. Rogers was not employed, choosing to stay
at home with his two younger children because of his wife’s absences due to her naval assignments
and because of the high cost of day care.
        On February 24, 1999, Lisa (Rogers) Brown died of pneumonia. Some time later Mr. Brown
called Mr. Rogers to inform him of the death, and Mr. Rogers came to Tennessee for the children.
The record is unclear what, if any, contact Mr. Rogers had with the children at that point. On March
15, 1999, Mr. Rogers filed a petition asking immediate return to him of his minor children. An
emergency hearing was held later that day. A few minutes before the hearing Mr. Brown filed a
petition seeking to terminate Mr. Rogers’s parental rights so he, the stepfather, could adopt the
children. After the emergency hearing, Mr. Brown was awarded temporary custody, pending a final
hearing. Mr. Rogers was granted visitation on specific dates and additional telephonic visitation
pending another hearing. Mr. Rogers was also ordered to pay previously ordered child support. The
trial court consolidated the two petitions. After another hearing, Mr. Rogers was given additional
specific dates of daylong visitation.

        Mr. Rogers remained in Tennessee, got a job, visited with his children who are the subject
of this action, and paid the support ordered by the court. His sister-in-law cared for his younger
children. The final hearing on both petitions was held April 14, 1999.

        Although the testimony was disputed on a number of specific issues, it is undisputed that Mr.
Rogers did not make child support payments after September 1996. Conflicting testimony was
presented as to whether regular payments were made before then, but the father admitted he had not
made support payments since 1996, when he left his employment. His reason for not paying the
support was that he had not worked for the past two years, after moving to San Diego, because he
was caring for the children of his second marriage. He said that he did not attempt to modify the
child support order based on his reduced income because he could not afford counsel.

         The father testified that he last visited the children in 1996 while on his way to San Diego.
He testified that he called the children every Sunday for a year or more after that, but then his former
wife began obstructing his efforts to contact the children. The father did not dispute his failure to
visit the children, but asserted that he was prevented from doing so by his former wife, the children’s
mother. Mr. Rogers admitted that he had spent time in Tennessee visiting his mother and other
family, but said that the children’s mother would not allow him to visit the children, threatening to
have him arrested if he attempted to see them. The stepfather denied that the mother had ever
prevented the father from calling or visiting the children. Similarly, the stepfather testified that the
biological father did not send gifts or cards to the children for Christmas or their birthdays, although
the father’s family brought gifts on occasion; Mr. Rogers claimed he had sent gifts and cards on
holidays and birthdays, and that, on occasion, he sent gifts through his family, asking that they not
reveal that he was the source of the gifts.

       The trial court found Mr. Rogers had abandoned the children and ordered that Mr. Rogers’s
parental rights be terminated. The court held a later hearing on Mr. Brown’s petition to adopt the
children. The petition was granted, and that order, although not the transcript, appears in the record
on appeal. Mr. Rogers appeals the termination of his parental rights.




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                                              I. Standard of Review

        Termination of a person’s rights as a parent is a grave and final decision, irrevocably altering
the lives of the parent and child involved and “severing forever all legal rights and obligations” of
the parent. Tenn. Code Ann. § 36-1-113(l)(1). Because of its consequences, which affect
fundamental constitutional rights, courts apply a higher standard of proof when adjudicating
termination cases. See O'Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995). To justify
the termination of parental rights, the grounds for termination, and the fact that termination is in the
best interests of the child, must be established by clear and convincing evidence. See Tenn. Code.
Ann. § 36-1-113(c) (Supp. 2000); State Dep’t of Human Servs. v. Defriece, 937 S.W.2d 954, 960
(Tenn. Ct. App. 1996). "This heightened standard serves to prevent the unwarranted termination
or interference with the biological parents' rights to their children." In re M.W.A., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998).

        The “clear and convincing evidence” standard defies precise definition. While it is
        more exacting than the preponderance of the evidence standard, it does not require
        such certainty as the beyond a reasonable doubt standard. Clear and convincing
        evidence eliminates any serious or substantial doubt concerning the correctness of the
        conclusions to be drawn from the evidence. It should produce in the fact-finder’s
        mind a firm belief or conviction with regard to the truth of the allegations sought to
        be established.

O’Daniel, 905 S.W.2d at 188 (citations omitted).

         Under this heightened standard of review, we must first review the trial court’s findings in
accordance with Tenn. R. App. 13(d). That review is de novo, with a presumption of correctness
for the trial court’s findings of fact, unless the preponderance of the evidence is otherwise. See Tenn.
R. App. P. 13(d). Then, we must determine whether the facts make out a clear and convincing case
in favor of terminating the parents’ parental rights. See In re Drinnon, 776 S.W.2d 96, 97 (Tenn.
Ct. App. 1988).

                               II. Grounds for Termination of Parental Rights

       Parental rights may be terminated in only a limited number of statutorily defined
circumstances. In order to terminate a parent’s rights, one or more of the asserted statutory grounds
must be proved by clear and convincing evidence. See Tenn. Code Ann. § 36-1-113(c).

        The ground for termination in this case was abandonment, which requires a showing of either
willful failure to visit or willful failure to support.1 The trial court found, by clear and convincing


       1
           Tenn. Co de Ann. § 3 6-1-102 d efines “abando nment” as fo llows:

                                                                                           (continu ed...)

                                                         -3-
evidence, that Mr. Rogers abandoned his children on both bases. Specifically, the court found, by
clear and convincing evidence, that Mr. Rogers was willfully underemployed, not financially
disabled, and by his own testimony confirmed that he had failed to support the children. The
evidence does not preponderate against these findings; it supports them.

        On appeal, Mr. Rogers asserts that the trial court improperly applied the willfulness
requirement, in contravention of the Tennessee Supreme Court’s holding in Tennessee Baptist
Children’s Home v. Swanson, 2 S.W.3d 180 (Tenn. 1999). In that case, the court struck down a
definitional section of the failure to support statute which, in effect, eliminated the courts’ ability to
determine actual willfulness, or intent, on an individualized consideration of the facts of a particular
case. See Swanson, 2 S.W.3d at 188. At the hearing in the case before us, the trial court and counsel
did discuss the standards declared unconstitutional in Swanson; however, our reading of the trial
court’s ruling does not support an argument that the court relied upon or applied that standard. To
the contrary, the court determined that Mr. Rogers had not supported his children because of his
voluntary underemployment. In other words, the court examined the facts of the particular situation
presented and applied a standard requiring willfulness.

        Mr. Rogers, the father, continues to assert that his unemployment, admittedly voluntary so
that he could stay home with his younger children, rendered him unable to pay the support, thus
making his failure to support the older children not willful. In essence, Mr. Rogers attempts to
convince this court that he was entitled to nurture his second family at the expense of his first. We
are not persuaded and find no error in the trial court’s decision. Mr. Rogers did not support his
children, and his financial inability to do so was of his own making, a willful and voluntary choice.
We affirm the trial court’s finding of willful failure to support.2



         1
          (...continued)
         (1)(A) "Abando nment" m eans, for purpo ses of terminating the parental or guard ian rights of parent(s)
         or guard ian(s) of a c hild to that ch ild in order to mak e that child a vailable fo r adoptio n, that:
                   (i) For a period of four (4) consecutive mon ths immediately preceding the filing of a
         proceeding or pleading to termina te 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 ado ption, that parent(s) or gu ardian(s)
         either have willfully failed to visit or have willfully failed to suppor t or mak e reasona ble paym ents
         toward the supp ort of the ch ild;
                                                               ***
         (F) Abandonment may not be repented of by resuming visitation or support subsequent to the filing
         of any petitio n seeking to terminate parental or guardianship rights or seeking the adoption of a child
         ...


         2
            The statute requires failure to support for at least    the four months immediately preceding the filing of the
petition. See Tenn. C ode An n. § 36-1 -102(1 )(A). Th us, the      sup port paid by Mr . Rogers p ending the final hea ring in
this matter cannot be used to show he “repented of” his              prior failure to support for purposes of determining
aband onme nt, because that suppo rt was paid after the fil ing     of the petition. See Tenn. Code An n. § 36-1-102(1)(F).
The trial co urt did no t consider it.

                                                              -4-
         The failure to support finding is sufficient to establish abandonment. However, the trial court
additionally found, by clear and convincing evidence, that Mr. Rogers’s “visitation with his children,
if any, was only token in nature” and specifically found Mr. Rogers’s testimony regarding his
attempts to contact the children and the thwarting of those attempts by the children’s mother not
credible. The court went on to find, by clear and convincing proof, that Mr. Rogers had not
participated in the children’s lives for a long time and had a “conscious disregard or indifference”
to the responsibilities of both support and visitation.3 The trial court’s finding regarding the failure
to visit is not raised by Mr. Rogers on appeal; thus, we need not address it.

        We agree with the trial court that, because he willfully failed to support them, Mr. Rogers
abandoned his children, as that ground is defined by statute, that such abandonment was shown by
clear and convincing evidence, and, therefore, that grounds for termination of his parental rights
exist.

                                          III. Best Interest of the Children

        Termination of parental rights requires, in addition to grounds, a showing, by clear and
convincing evidence, that the termination is in the best interest of the child. See Tenn. Code Ann.
§ 36-1-113(c)(2). “It is therefore beyond question that before a parent’s rights can be terminated,
there must be a showing that the parent is unfit or that substantial harm to the child will result if
parental rights are not terminated.” Swanson, 2 S.W.3d at 188. The best interest analysis has been
considered the equivalent of a determination of whether substantial harm will result to the child if
parental rights are not terminated. See State v. Pruitt, No. M2000-00416-COA-R3-CV, 2000 WL
827957 at *11 (Tenn. Ct. App. June 27, 2000) (no Tenn. R. App. P. 11 application filed) (best
interests of child required termination because substantial harm would result otherwise); Bryant v.
Bryant, No. M1999-01280-COA-R3-CV, 2000 WL 1483217 at *6 (Tenn. Ct. App. Oct. 10, 2000)
(no Tenn. R. App. P. 11 application filed) (“parental rights may be terminated only when continuing
the parent-child relationship poses a substantial threat of harm to the child”).

        Because the law requires both grounds and a determination of best interest, it cannot be
presumed that the existence of grounds necessarily leads to the conclusion that termination is
warranted. Termination of a person’s constitutionally-protected rights to parent a child requires an
individualized consideration based on the facts of a particular situation, including an individualized
determination of a child’s best interest. Our legislature has listed some, but not all, of the factors a
court is to consider when determining whether termination is in the best interest of the child:



         3
            The failure to visit issue is somewhat complicated, because the statute requires failure to visit for four
consecutive months immediately preceding the filing of the termination petition. The evidence indicates that Mr. Rogers
came to Tennessee upon learning of his former w ife’s death in order to retrieve his children. The record does not tell us
how much con tact and visitation he had with the m at that time. It is clea r that his efforts were opposed by Mr. Brown.
Having been obstructed in his efforts, Mr. Rogers filed his petition seeking an order requiring Mr. Brown to give physical
custody of the children to him. Only after notice of this petition did Mr. Brown file h is petition to term inate Mr. R ogers’s
parental righ ts. But see Tenn. Code Ann. § 36-1-102(1 )(C) (defining “token visitation”).

                                                             -5-
       (1) Whether the parent or guardian has made such an adjustment of circumstance,
       conduct, or conditions as to make it safe and in the child's best interest to be in the
       home of the parent or guardian;
       (2) Whether the parent or guardian has failed to effect a lasting adjustment after
       reasonable efforts by available social services agencies 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 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;
       (7) Whether the physical environment of the parent's or guardian's home is healthy
       and safe, whether there is criminal activity in the home, or whether there is such use
       of alcohol or controlled substances as may render the parent or guardian consistently
       unable to care for the child in a safe and stable manner;
       (8) Whether the parent's or guardian's mental and/or emotional status would be
       detrimental to the child or prevent the parent or guardian from effectively providing
       safe and stable care and supervision for the child; or
       (9) Whether the parent or guardian has paid child support consistent with the child
       support guidelines promulgated by the department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i).

        This list reflects the concerns present in the situation where a child has been removed from
the parent’s custody because of neglect, abuse, or other problems. In such situations, when it
becomes obvious that a child will not be able to safely return to a parent’s custody, that child’s
interest may indeed be best served by terminating the rights of the parent so that the child may be
adopted into a stable and nurturing home. That was not the situation in the case before us. After
their mother’s death, Mr. Brown, the stepfather, sought to terminate Mr. Rogers’s parental rights so
that he could adopt the children. Evidence at trial indicated that Mr. Brown had taken an active role
in parenting the children while their mother was alive.

        While one might assume that remaining with the stepfather provided the greatest opportunity
for stability in the children’s lives, there was no evidence regarding the effect of a potential return
to the father’s custody. Mr. Rogers came to Tennessee to get his children after he learned that his
former wife had died. The record does not reflect what, if any, contact the children had with their
father when he returned. He filed a petition asking for physical custody of his children, premised
on the belief he had legal custody as their surviving parent, because Mr. Brown refused to allow him


                                                 -6-
to remove the children. After filing his petition, he was allowed regular visitation with the children,
and the testimony indicates these visits reestablished or repaired the parent-child relationship.

        In this case, we have a father who has in the past failed to live up to his parental
responsibilities, but who acted immediately to do so when he learned his children’s mother had died.
He came to Tennessee, brought his younger children here, got a job here, and paid support and
regularly visited the children who are the subject of this action. Meanwhile, we have a stepfather
who had undertaken and largely fulfilled the responsibilities of parenting these children. He did not
want to see the children taken out of his care. These children, who had lost their mother, had two
people stepping forward to provide homes for them. Unfortunately, in view of the children’s recent
loss and their undoubtedly fragile emotional state, these two people could not reach a resolution
which allowed the children the comfort offered by both. Consequently, the court was asked to make
this difficult and agonizing decision, and decided that termination was in the best interest of the
children.

        When making its decision, however, the trial court did not have the benefit of information
which has been presented to us after the argument in this appeal and which deals with events taking
place after the trial court’s decision.4 We have been provided with an order of the Juvenile Court
of Rutherford County, entered October 19, 2000, finding the two children who are the subject of this
action and their younger brother to be dependent and neglected and placing them in the custody of
Lisa Brown’s father and stepmother. Mr. Brown was ordered to pay child support and was allowed
only supervised visitation.

        While the evidence at the April 14, 1999 hearing provided, in the trial court’s judgment,
sufficient evidence of the children’s best interest, the trial court could not, of course, predict the
future course of events. We are unable to ignore those events, what little we know of them, and
cannot conclude that the evidence from the hearing, supplemented by the post-judgment facts
recorded in the juvenile court’s order, clearly and convincingly establishes that the children’s best
interest is served by termination of Mr. Rogers’s parental rights. Therefore, we vacate the trial
court’s earlier judgment terminating Mr. Rogers’s parental rights and remand to the trial court for
a determination of whether the evidence now shows, by a clear and convincing standard, that
termination of the father’s parental rights is in the best interest of the two children who are the
subject of this cause.




         4
          At the argument of this matter, counsel informed this court that certain post-judgment events had taken place
which this court should consider. After several post-argument filings by both parties, we decline to consider most of the
content as post-judgment facts under Tenn. R. App. P. 14. However, we do take notice of the certified copy of the
juvenile court’s order.

                                                          -7-
                                            V. Conclusion


        We vacate the order terminating the parental rights of Mickey Joe Rogers and remand this
case for findings regarding the children’s best interest. Those best interests are to be determined on
the facts as they exist as of the date of the hearing. Because an adoption, in situations such as this,
must be predicated on a termination of parental rights, the necessary result of our decision is that the
adoption by Mr. Brown is also vacated.

        Because these children have been found dependent and neglected, the juvenile court now has
exclusive jurisdiction over matters involving their custody until they reach the age of majority. See
Tenn. Code Ann. § 37-1-103(c). We do not, however, interpret this jurisdictional statute to remove
jurisdiction from the trial court herein regarding the termination of parental rights petition filed well
before the juvenile court’s action. Thus, on remand, the circuit court shall conduct whatever
proceedings may be necessary to determine whether, by clear and convincing evidence, the best
interests of these two children are served by termination of the parental rights of their father. The
determination by the juvenile court is res judicata as to the matters therein, and the trial court should
not allow inquiry into the validity of the juvenile court’s findings.

         The sole issue before the trial court on remand is whether termination of Mr. Rogers’s
parental rights is in the best interest of the children. We have affirmed the court’s finding of
grounds. Unless and until the trial court herein enters a final order terminating his rights, Mr. Rogers
shall be considered by all courts, including the juvenile court, as the children’s father. Since the
children are now under the jurisdiction of the juvenile court, that court shall make any determinations
regarding visitation, temporary custody, and similar matters.

       Costs are taxed to the appellee, Bradley J. Brown, for which execution may issue if
necessary.



                                                        ___________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




                                                  -8-
