                                                                                                      01/29/2019
                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                Assigned on Briefs December 5, 2018

                                              IN RE ETHAN M.1

                     Appeal from the Chancery Court for Hamblen County
                      No. 2016-CV-598    Douglas T. Jenkins, Chancellor


                                     No. E2018-00472-COA-R3-PT


This action involves the termination of a mother’s parental rights to her minor child.
Following a bench trial, the court found that clear and convincing evidence existed to
support the statutory grounds of abandonment for failure to support and to visit. The
court further found that termination was in the best interest of the child. We reverse the
trial court on its finding that the mother abandoned the child by failing to visit. We
affirm the trial court on all other rulings.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                               Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Cindy M.

Crystal G. Jessee, Greeneville, Tennessee, for the appellees, Mike S. and Mitzi S.

                                                  OPINION

                                         I.       BACKGROUND

       Ethan M. (“the Child”) was born to Cindy M. (“Mother”) and Joshua M.
(“Father”) in June 2006.2 The Child primarily resided with Mother; however, Mother
lived near the maternal grandparents, Mike and Mitzi S. (“Grandparents”), who provided

1
  This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
2
    Father’s parental rights were also terminated; however, he is not a party to this appeal.
support and assistance when needed. Mother often left the Child with Grandparents for
extended periods of time without providing notice of her absence. Specifically, Mother
left without warning in October 2014 and did not return until December 2014. She left
the Child again in February 2015 and never returned. She stole Grandparents’ televisions
upon her departure. The record reflects that Mother had issues with substance abuse.

       Grandparents obtained legal custody of the Child pursuant to an order filed on
April 6, 2016. Mother was permitted one hour of visitation per week at some point;
however, she never participated in visitation or remitted child support. The court
suspended her visitation on August 17, 2016. Grandparents filed a petition for
termination and adoption on December 9, 2016, alleging abandonment for failure to visit
and to support, wanton disregard for the Child’s welfare, and failure to manifest an ability
and willingness to assume custody of the Child as statutory grounds of termination.

       The case proceeded to a hearing on the termination petition, at which Mother
conceded that she left the Child with Grandparents in February 2015.3 She explained that
her father told her to leave and “get clean” but that he knew exactly where she was living.
She claimed that she even spoke with the Child via telephone every day for a month until
her father quit paying for her cellular telephone. However, she admitted that she later
overdosed and was put on a ventilator in April 2015. She further admitted to stealing
from her parents and receiving charges of theft and driving on a revoked license, for
which she received probation. She was arrested in February 2017 for violation of
probation because she failed to maintain contact with her probation officer. She claimed
that she was no longer on probation and has been sober for approximately two years.

       Mother admitted that she did not remit child support during the relevant time
period but claimed that she was unemployed and reliant upon her friends due to her
substance abuse. She conceded that she was physically able to work but chose not to
because the urge to buy pills with her income would have been “overwhelming.” She
later obtained employment in June 2017, earning $7.25 per hour. She admitted that she
did not remit support even after obtaining employment. She provided that she could
remit support but that she did not understand the process and had never received a court
order directing her to remit support.

      Relative to visitation, Mother admitted that she had not participated in visitation in
the year prior to the court’s suspension order on August 17, 2016. She claimed that
Grandparents never responded to her requests for visitation. She stated that she sent text
messages and left voicemails but that when she would get an answer or a return, they
advised her that they would “leave [visitation] up to [the Child].” She did not submit any

3
    She denied also leaving the Child with them from October through December 2014.
                                                    -2-
proof of her attempts to contact them. She claimed that her mother later advised her not
to speak with the Child because she had “messed him up enough.” She provided that she
did see the Child on occasion when he was with Father and that she also spoke to him by
telephone on occasion but that he told her not to tell Grandparents that they spoke. She
explained,

       I didn’t really know what to do. I mean – and I know that’s no excuse, but
       I didn’t know what to do. I mean, yeah, maybe I should have went and beat
       on their door, but at the same time, you know, I called and called but
       obviously that wasn’t good enough.

      Mother stated that she is currently living with a friend and that they split living
expenses between them. She provided that she did not want to regain custody of the
Child but that she simply wanted to foster a relationship with him. She agreed that he
was well taken care of in her absence and that his home with them is his “safe haven.”

        Grandparents testified that Mother never contacted them to arrange visitation,
despite a court order providing her with one hour per week of visitation. Grandmother
testified that Mother contacted her “[m]aybe once” and that she simply sent a text
message wishing the Child a happy birthday. Grandfather stated that Mother also left the
Child with them from October through December 2014 and that he told Mother not to
leave the Child again. He claimed that Mother has only seen the Child when the Child
was visiting with Father on a few occasions. He asserted that Mother often stole from
them but that he did not pursue criminal charges. He stated that he also supported her
financially until he could no longer afford to provide for her. He asserted that Mother
neither provided nor offered payments of support for the Child.

        Grandfather testified that he has financially supported the Child since at least
December 2014. He has also facilitated the Child’s involvement in extracurricular
activities. He stated that he would continue to support and care for the Child.

       The trial court granted the termination petition, sustaining two of the four grounds
alleged, namely abandonment for failure to visit and to remit support. The court further
found that termination was in the best interest of the Child. This timely appeal followed.

                                       II.     ISSUES

       We consolidate and restate the issues on appeal as follows:




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       A.    Whether clear and convincing evidence supports the court’s
       termination based upon a finding of abandonment for failure to visit
       pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i).

       B.    Whether clear and convincing evidence supports the court’s
       termination based upon a finding of abandonment for failure to remit child
       support pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i).

       C.      Whether clear and convincing evidence supports the court’s finding
       that termination was in the best interest of the Child pursuant to Tennessee
       Code Annotated section 36-1-113(i).

                             III.   STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “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.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination.
In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon

       (1)    [a] finding by the court by clear and convincing evidence that the
       grounds for termination of parental or guardianship rights have been
       established; and

       (2)    [t]hat termination of the parent’s or guardian’s rights is in the best
       interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
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termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

       An appellate court reviews a trial court’s findings of fact in termination
       proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
       Rule 13(d), appellate courts review factual findings de novo on the record
       and accord these findings a presumption of correctness unless the evidence
       preponderates otherwise. In light of the heightened burden of proof in
       termination proceedings, however, the reviewing court must make its own
       determination as to whether the facts, either as found by the trial court or as
       supported by a preponderance of the evidence, amount to clear and
       convincing evidence of the elements necessary to terminate parental rights.
       The trial court’s ruling that the evidence sufficiently supports termination
       of parental rights is a conclusion of law, which appellate courts review de
       novo with no presumption of correctness. Additionally, all other questions
       of law in parental termination appeals, as in other appeals, are reviewed de
       novo with no presumption of correctness.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).




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                                         IV.     DISCUSSION

       Mother does not appeal the statutory grounds supporting the court’s termination
decision. In such cases, our Supreme Court offered the following instruction:

        [I]n 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.

In re Carrington H., 483 S.W.3d at 525-26 (internal citation and footnote omitted).
Accordingly, we will review each ground in turn.


                                                 A. & B.

       In terminating Mother’s parental rights based upon the statutory ground of
abandonment for failure to visit and to remit support, the court considered the four
months preceding December 9, 2016, the filing date of the termination petition. The
relevant time period was August 9, 2016, through December 8, 2016.4

        A parent’s willful failure to support “means the willful failure, for a period of four
(4) consecutive months, to provide monetary support or the willful failure to provide
more than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-
102(1)(D).5 Token support is “support, under the circumstances of the individual case,
[that] is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). A
parent’s willful failure to visit “means the willful failure, for a period of four (4)
consecutive months, to visit or engage in more than token visitation.” Tenn. Code Ann. §
36-1-102(1)(E). Token visitation is “visitation, under the circumstances of the individual
case, [that] constitutes nothing more than perfunctory visitation or visitation of such an
infrequent nature or of such short duration as to merely establish minimal or insubstantial
contact with the child.” Tenn. Code Ann. § 36-1-102(1)(C).



4
  “The applicable four month window . . . includes the four months preceding the day the petition to
terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-
00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014).
5
  The legislature has since amended Section 36-1-102(1)(A), effective July 1, 2018, to place the burden
upon the parent to establish his or her lack of willfulness as an affirmative defense to the statutory ground
of abandonment. The amendment does not apply to this case, filed in December 2016.
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       This court has consistently held that the term willfulness as it applies to a party’s
failure to visit or remit support must contain the element of intent. In re Swanson, 2
S.W.3d 180, 188-89 (Tenn. 1999). The element of intent utilized in termination
proceedings “does not require the same standard of culpability as is required by the penal
code.” In re Audrey S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures
to act that are intentional or voluntary rather than accidental or inadvertent.” Id. “[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.” Id. at 863-64.

                                             1.

        Mother claims that her requests to visit during the pertinent time period were
denied. The Supreme Court has held that “a parent who attempted to visit and maintain
relations with his child, but was thwarted by the acts of others and circumstances beyond
his control, did not willfully abandon his child.” In re A.M.H., 215 S.W.3d 793, 810
(Tenn. 2007) (citing Swanson, 2 S.W.3d at 189). However, “[a] parent’s failure to visit
may be excused by the acts of another only if those acts actually prevent the parent from
visiting the child or constitute a significant restraint or interference with the parent’s
attempts to visit the child.” In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (citation
omitted) (upholding termination when the father did not take court action to secure
visitation like the parents in In re A.M.H.).

       In sustaining this ground of termination, the court stated,

       Mother has abandoned and willfully failed to visit [the Child] for at least
       the four (4) months preceding the hearing. The Court also finds that there
       was nothing impeding [Mother’s] right to visit, and by [Mother’s] own
       admission, she has a good relationship with her Father, and he has went out
       of [his] way to help her. The Court believes that if [Mother] desired to
       visit, that she could have done so by reaching out to the Father, and she did
       not make any attempt.

However, the record reflects that visitation was suspended pursuant to a court order on
August 17, 2016, precluding any visitation during the majority of the pertinent time
period. Accordingly, we reverse the trial court on its ruling that Mother abandoned the
Child by failing to visit. This conclusion does not end our inquiry because only one
statutory ground is required to support the termination of Mother’s parental rights. Tenn.
Code Ann. § 36-1-113(c).




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                                              2.

        The record reflects that Mother failed to remit support during the requisite time
period. She claimed at the hearing that there was no support order and that her ability to
support was hampered by her substance abuse issues during the relevant time period. “A
parent’s obligation to support his or her child exists regardless of a court order requiring
the parent to pay support.” In re Jacob M.J., 434 S.W.3d 565, 572 (Tenn. Ct. App. 2013)
(citation omitted). Furthermore, “[e]very parent who is eighteen (18) years of age or
older is presumed to have knowledge of a parent’s legal obligation to support such
parent’s child or children.” Tenn. Code Ann. § 36-1-102(1)(H) (emphasis added).

       “‘Failure to support a child is ‘willful’ when a person is aware of his or her duty to
support, has the capacity to provide the support, makes no attempt to provide the support,
and has no justifiable excuse for not providing the support.’” In re M.L.D., 182 S.W.3d
890, 896 (Tenn. Ct. App. 2005) (quoting In re Adoption of T.A.M., No. M2003-02247-
COA-R3-PT, 2004 WL 1085228, at *4 (Tenn. Ct. App. May 12, 2004)). Here, Mother
admitted her physical ability to work during the relevant time period and that she later
obtained employment after the relevant time period but still failed to provide any
financial support. Accordingly, we conclude that there was clear and convincing
evidence to establish that Mother abandoned the Child by failing to remit support during
the requisite time period.

                                              C.

       Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, we must consider whether termination was in the
best interest of the Child. In making this determination, we are guided by the following
non-exhaustive list of factors:

       (i)     In determining whether termination of parental or guardianship
       rights is in the best interest of the child . . . the court shall consider, but is
       not limited to, the following:

          (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



                                              -8-
            for such duration of time that lasting adjustment does not reasonably
            appear possible;6

            (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 [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list 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 parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
6
  In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015) (“[I]n a termination proceeding, the extent of
DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable
efforts is not a precondition to termination of the parental rights of the respondent parent.”).
                                                     -9-
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).

        Despite Mother’s progress since the time of her departure, she had not made an
adjustment of circumstances necessary for the Child’s return or maintained regular
visitation with him, despite a court order providing her with visitation until her visitation
was suspended in August 2016. Tenn. Code Ann. § 36-1-113(i)(1), (3). The record
reflects that she also failed to maintain a meaningful relationship with him during her
absence. Tenn. Code Ann. § 36-1-113(i)(4). The Child has resided with Grandparents
since February 2015. Mother even admitted that she did not wish to regain custody and
only wanted to reestablish her relationship with him. A change of caretakers at this point
in the Child’s life would be detrimental to his emotional condition. Tenn. Code Ann. §
36-1-113(i)(5). Mother has also failed to remit child support or submit any kind of
assistance for the Child even after obtaining employment. Tenn. Code Ann. § 36-1-
113(i)(9). The Child has been with Grandparents for almost four years now and should
be allowed to achieve permanency and stability in his current home. With all of the
above considerations in mind, we conclude that there was clear and convincing evidence
to establish that termination of Mother’s parental rights was in the best interest of the
Child. We affirm the trial court.

                                   V.      CONCLUSION

        The judgment of the trial court is reversed as to the finding of abandonment for
failure to visit. The trial court is affirmed on all other grounds. The case is remanded for
such further proceedings as may be necessary. Costs of the appeal are taxed to the
appellant, Cindy M.


                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




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