                                                                                                            07/03/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                 Assigned on Briefs June 5, 2018

                                         IN RE D.N. ET AL.

                     Appeal from the Circuit Court for Bradley County
                       No. V-16-844       J. Michael Sharp, Judge
                         ___________________________________

                                 No. E2017-02315-COA-R3-PT
                            ___________________________________


This is a termination of parental rights case. Father/Appellant appeals the trial court’s
termination of his parental rights to the minor child on the ground of abandonment by
willful failure to visit. Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i).
Because there is clear and convincing evidence to support both the ground for
termination and the trial court’s finding that termination of Appellant’s parental rights is
in the child’s best interest, we affirm and remand.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Alan R. Beard, Chattanooga, Tennessee, for the appellant, Ervin T.

Lisa Ashley McLain Gaither, Cleveland, Tennessee, for the appellees, Brent E., and
Toyetta E.


                                                OPINION

                                             I. Background

       Courtney N. is the biological mother of the minor children, T.N. (d/o/b July 2011)
and D.N. (d/o/b May 2009).1 Appellant Ervin T. is the biological father of T.N. D.N.’s
biological father is deceased. Courtney N.’s parental rights were terminated by the trial
        1
          In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
court; however, she did not appeal. Accordingly, in the instant appeal, we are concerned
only with the termination of Ervin T.’s parental rights to T.N.

       Brent E. and Toyetta E. (together “Appellees”) were Courtney N.’s foster parents,
and she remained close to them after leaving their custody. T.N. and D.N. were removed
from Courtney N.’s custody based on allegations that the children were exposed to illicit
drug use, lacked proper supervision, and were in danger of psychological or physical
harm. By order of May 16, 2013, the Juvenile Court of Bradley County determined that
the children were dependent and neglected and placed custody with the Appellees, where
the children have remained since that time. Although Appellant testified that after T.N.
was removed from Courtney N.’s custody, he was contacted by DCS, through CASA, he
did not pursue custody.

       On December 8, 2016, Appellees filed a petition to terminate Appellant’s parental
rights to T.N. and for adoption.2 As grounds for termination, Appellees averred that
Appellant had abandoned T.N. by willful failure to visit and support.3 Appellant
answered the petition opposing termination of his parental rights.

        The petition was heard on August 8, 2017. By order of October 24, 2017, the trial
court terminated Appellant’s parental rights to T.N. on the sole ground of abandonment
by willful failure to visit and on its finding that termination of Appellant’s parental rights
is in the child’s best interest. Appellant appeals.

                                              II. Issues

       There are two dispositive issues in this case, which we state as follows:

1. Whether there is clear and convincing evidence to support the trial court’s termination
of Appellant’s parental rights on the ground of abandonment by willful failure to visit.

2. If so, whether there is clear and convincing evidence to support the trial court’s
finding that termination of Appellant’s parental rights is in the child’s best interest.

                                     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 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.

       2
          As noted above, the petition also sought termination of Courtney N.’s parental rights to both
T.N. and D.N.
        3
          At the hearing on the petition, Appellees waived the ground of abandonment by willful failure
to support and proceeded on the sole ground of abandonment by willful failure to visit.
                                                 -2-
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 (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). 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.

       In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).

        In its order terminating Appellant’s parental rights, the trial court made a specific
finding that Appellee, Toyetta E., was a credible witness. When the resolution of an
issue in a case depends on the truthfulness of witnesses, the trial judge, who had the
opportunity to observe the witnesses and their manner and demeanor while testifying, is
in a far better position than this Court to decide those issues. See Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); McCaleb v. Saturn Corp., 910 S.W.2d 412,
415 (Tenn. 1995). The weight, faith, and credit to be given to any witness’ testimony lies
in the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court. See Whitaker, 957 S.W.2d at 837; McCaleb, 910 S.W.2d
at 415; Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
                                               -3-
                      IV. Abandonment by Willful Failure to Visit

       The trial court found, by clear and convincing evidence, that Appellant’s parental
rights should be terminated on the ground of abandonment by 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 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 . . . have willfully failed to
       visit . . .

Tenn. Code Ann. § 36-1-102(1)(A)(i). Tennessee Code Annotated section 36-1-
102(1)(E) states that: “For purposes of this subdivision [36-1-102(1)], ‘willfully failed to
visit’ means the willful failure, for a period of four (4) consecutive months, to visit or
engage in more than token visitation.” Tennessee Code Annotated section 36-1-
102(1)(C) further provides that: “For purposes of this subdivision (1), ‘token visitation’
means that the visitation, under the circumstances of the individual case, 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.” Furthermore, “[a]bandonment may not be repented of by resuming visitation or
support subsequent to the filing of any petition seeking to terminate parental or
guardianship rights or seeking the adoption of a child.” Tenn. Code Ann. § 36-1-
102(1)(F).
                                            -4-
        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 Tennessee
Code Annotated section 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
immediately preceding the filing of the petition to terminate his or her parental rights. In
In re Audrey S., this Court discussed willfulness in the context of termination of parental
rights cases:

       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). “Whether a parent failed to visit or support a child is a question of
fact. Whether a parent’s failure to visit or support constitutes willful abandonment,
however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d 636, 640
(Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007)). As previously discussed, this Court reviews questions of law de novo with no
presumption of correctness. Id.

       In its order terminating Appellant’s parental rights, the trial court made the
following relevant findings concerning abandonment by willful failure to visit:

       [Appellant] knew at all times where his son was living, and knew at all
       times that his son was in the custody of [Appellees]. [Appellant] not only
       knew the address, he also knew the [Appellees’] phone numbers.

                                            ***

       [Appellant] also had the knowledge and ability to send letters and /or other
       correspondence to [Appellees] requesting in writing to see his child or to
       spend time with his child. [Appellant] chose not to do so. [Appellant’s]
                                         -5-
      occasional “pop up” visits were both inconsistent and unannounced. Even
      in the light most favorable to [Appellant], he visited, at most, seven times
      for the period from April 2013 through December [7], 2016. Therefore,
      during a period of about 32 months, considering the evidence most
      favorable to [Appellant], he visited the child less than once every four and a
      half months. Furthermore, [Appellant] visited with the child, in the light
      most favorable to his testimony, for a period of no more than an hour to an
      hour and a half. However, the court finds the testimony of [Appellees] to
      be in agreement on this issue that each of [Appellant’s] visits lasted no
      more than 30-45 minutes during each of his visits. Therefore, if he visited
      seven times, he spent a total of less than six hours with his child over more
      than 32 months.

                                           ***

      This action or inaction on the part of [Appellant] was always willful and
      voluntary. He knew at all times where his son was, he made the choice to
      do what he did, and was well aware of his options. . . . [Appellant] made
      the willful choice to only visit a very limited number of times for a very
      limited period of time. [Appellant] was not prevented by [Appellees] from
      performing his duties as a parent to visit his child . . . . [Appellant] simply
      chose to have no more relationship with his child than he did. There was
      no climate of hostility between [Appellees] and [Appellant].

                                           ***

      The court finds that this record fully supports the determination that
      [Appellant’s] failure to visit [T.N.] was willful. The court further finds that
      the very limited visits that [Appellant] had with [T.N.] were minimal, and
      at best, only token.

        Turning to the record, the petition to terminate Appellant’s parental rights was
filed on December 8, 2016; therefore, the relevant four-month time period for this ground
is from August 7, 2016 to December 7, 2016. There is some dispute as to whether
Appellant visited T.N. during the relevant period. Toyetta E., whom the trial court found
“extremely credible,” testified that Appellant did not visit T.N. during the relevant time
period. Both Brent E. and Appellant testified that Appellant visited at least two times
during the relevant time period. However, Brent E. later conceded that he had been
confused about the dates. Even if we allow, arguendo, that Appellant visited T.N. twice
between August 7, 2016 and December 7, 2016, the record is clear that Appellant’s visits
were always short, i.e., 45 minutes to one-and-one-half hours at most. In this regard, the
record clearly and convincingly supports the trial court’s finding that, over a period of
thirty-two months, Appellant spent less than six hours with the child. Furthermore, there
                                           -6-
was no pattern to Appellant’s visits. By his own testimony, Appellant would “pop up”
for a visit whenever he felt like doing so. Appellees did not deny him these visits, but we
cannot conclude that these visits established any meaningful relationship between
Appellant and T.N. Accordingly, we conclude that the record clearly and convincingly
establishes that Appellant’s visits were no more than token in that they were “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). Therefore, we affirm the
trial court’s termination of Appellant’s parental rights on the ground of abandonment by
willful failure to visit.

                                      V. Best Interest

       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. 2004). 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 838, 877 (Tenn. Ct. App. 2005). 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. As is
relevant to the instant 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;

                                            -7-
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.

       In its order terminating Appellant’s parental rights, the trial court made the
following findings concerning T.N.’s best interest:

              The court finds that [T.N.] has been in the home of [Appellees] since
       April of 2013. The court finds that [T.N.’s] sibling live in the [Appellees’]
       home with him. The court finds that [T.N.] has bonded with both his
       siblings as well as to the [Appellees]. For over four (4) years, this child has
       enjoyed the consistency of the [Appellees’] home and the routine with his
       siblings, and [Appellees]. This child . . . has been taken care of by the
       [Appellees] and provided not only a stable home, but a loving, caring and
       nurturing home for the last four years of his young life. All of the child’s
       needs are being met . . . . The child refers to [Appellees] as his mother and
       dad.

                                             ***

       The court finds that it would be extremely detrimental and harmful, both
       emotionally and physically, to remove this child from the [Appellees’]
       home at this point. Therefore, the court finds that it is in the best interest of
       this child to terminate the parental rights of [Appellant]. . . .

      Turning to the record, there does not seem to be a substantial bond between
Appellant and T.N. Toyetta E. testified that, although the child recognizes Appellant, he
remains standoffish when Appellant visits. Furthermore, when asked how T.N. reacts to
Appellant’s visits, Toyetta E. testified:

       A. He would act out.
       Q When you say act out kind of flesh that out for the Court. What would
       that consist
       of?
       A He would kind of regress back to the way [he was] when [he] came [to
       live with Appellees]. He would get real destructive. He would get real
       smart.
       Q You say destructive. What are some of the things the child would do that
       were destructive?
                                         -8-
      A Tear his toys apart.
      Q I know there were only a few visits you testified to but was this after
      each visit?
      A Yes.
      Q And how long would it take you to get the child back to normal?
      A About a day.

       Furthermore, as found by the trial court, the record clearly shows that T.N. has a
strong bong with Appellees. He calls them “mom” and “dad.” In addition, he has a bond
with his siblings, who also live with Appellees. From the record, T.N. is active in school
and church activities. Appellees ensure that T.N. gets all the medical attention he needs.
From the record, it is clear that T.N. is well adjusted and well cared for in Appellees’
home. From the totality of the circumstances, we agree with the trial court that to remove
T.N. from the only stable home he has ever known would be detrimental to his well-
being. Accordingly, we conclude that there is clear and convincing proof in the record to
support the trial court’s finding that termination of Appellant’s parental rights is in the
child’s best interest.

                                     VI. Conclusion

       For the foregoing reasons, we affirm the trial court’s order terminating Appellant’s
parental rights to T.N. We remand the case for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed to the
Appellant, Ervin T. and his surety, for all of which execution may issue if necessary.




                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




                                           -9-
