                                                                                                      09/13/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    August 22, 2018 Session

                                      IN RE ABAGAIL D.1

                    Appeal from the Chancery Court for White County
                     No. 2016-CV-72    Ronald Thurman, Chancellor


                                No. M2017-02557-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 visit and to support and that
termination was in the best interest of the Child. We vacate the order and remand for
additional findings of fact.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which RICHARD H.
DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S. joined.

John E. Hutson, Sparta, Tennessee, for the appellant, Amanda D.

Kelsy Miller, Cookeville, Tennessee, for the appellees, Michael G. and Shannon G.

                                             OPINION

                                     I.      BACKGROUND

      Abagail D. (“the Child”) was born to Amanda D. (“Mother”) and Michael G.
(“Father”) in April 2011. The Child resided with Mother in Kentucky until August 2014,
when she and her two half-siblings were removed based upon allegations of drug and
alcohol abuse. The Child was placed with Father in Tennessee, and visitation and child
support were addressed pursuant to a court order in Kentucky.


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.
       Mother was provided visitation via Skype each Wednesday between 7:30 p.m. and
8:30 p.m. and overnight visitation in Cookeville, Tennessee, subject to certain limitations.
She was not permitted to leave Cookeville during visitation and was required to show
proof of a hotel reservation in the area for the visitation period. Mother failed to provide
such proof and did not utilize her overnight visitation or remit child support.

        Father and his wife, Shannon G. (“Stepmother”) (collectively “the Petitioners”),
filed a petition for termination and adoption on August 29, 2016, alleging, as pertinent to
this appeal, abandonment for failure to visit and to support. Mother conceded that she
had not visited or remitted support but claimed that her failure to do so was not willful.
She explained that she was in a rehabilitation program from September 27, 2015, through
August 27, 2016. She claimed that she never failed a drug screen while in the program
and that she is ready and able to care for the Child as evidenced by her suitable home and
stable employment. She alleged that her repeated requests for visitation via Skype were
denied and that her offers to help with the Child’s expenses were rebuffed.

       The case proceeded to a hearing on the termination petition. The hearing was
recorded; however, the court reporter’s files were lost due to a faulty hard drive. The trial
court entered a statement of the evidence for the purposes of this appeal. Father testified
that Mother’s alcohol and drug abuse resulted in their divorce and that the Child was
ultimately removed as a result of Mother’s addiction. Mother’s other two children were
also removed and placed with their respective father. He claimed that from August 2014
through September 2016, Mother “rarely called or visited” and that Mother had no
contact with the Child and paid no support during the four months preceding the filing of
the petition. He claimed that he and his current wife “made no effort to thwart” visitation
but that they simply required Mother to follow the stipulations contained in the order. He
claimed that the Child had no relationship with Mother but had bonded with Stepmother.

       Stepmother confirmed Father’s testimony and testified concerning her loving
relationship with the Child. She claimed that the Child is thriving and also enjoys a
healthy relationship with the other children in their home. She asserted that the Child
was “withdrawn and always hungry” prior to her placement with them, that Mother’s
home was “always very dirty,” and that there were many unrelated guests in the home.
She noted that Mother and the Child were also homeless at one point.

       Shawn R. testified that he was in a relationship with Mother for six years and
fathered two of her sons. He received custody of them in 2014. He recalled that Mother
would drink to the point of passing out and leaving the children unsupervised. He
asserted that she attended rehabilitation programs but always relapsed. He claimed that
she provided no support and only sought visitation after he sought termination.

                                            -2-
        Mother testified that she currently resides in Kentucky and lives in a rented home
with her fiancé, a recovered heroin addict. She conceded that she had not visited the
Child or remitted child support during the relevant time period. She claimed that she
could not visit the Child because she did not have transportation. She asserted that
Stepmother would also not allow her to visit the Child, but she later conceded that she
made no effort to enforce the court order providing for visitation even though she had the
ability to comply with the stipulations of the order.

      Relative to child support, Mother confirmed that she maintained employment from
January 2016 through November 2016 as a server, with an approximate income of $20 to
$40 per day and that she is currently working at a restaurant making $380 per week. She
provided that she is responsible for rent in the amount of $400 per month and a car
payment in the amount of $75 per week. She has also purchased tattoos and smokes
approximately a half pack of cigarettes per day.

        The trial court granted the termination petition, holding that Mother had
abandoned the Child by failing to visit and to remit child support. In so holding, the
court found that Mother had willfully failed to provide support since the time of removal,
despite a period of employment during the relevant time period in which she made
approximately $20 to $40 per day at a restaurant. Relative to visitation, the court found
that she had willfully failed to visit, despite testimony suggesting that the Petitioners did
not allow visitation. The court noted that Mother failed to present phone records
establishing that her calls were denied and that the Petitioners claimed that they did not
impede overnight visitation but merely required Mother to comply with the specific
restrictions of visitation pursuant to the court order. 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:

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

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

                                              -3-
       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 of
the parent-child relationship. 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
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).



                                            -4-
       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).

                                   IV.    DISCUSSION

                                         A. & B.

      In terminating Mother’s parental rights based upon the statutory ground of
abandonment for failure to visit and remit support, the court considered the four months
preceding August 29, 2016, the filing date of the termination petition. The relevant time

                                           -5-
period was April 29, 2016, through August 28, 2016.2 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). 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).

       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.

        Mother argues that her failure to remit child support or to visit was not willful
because she was in a rehabilitation program during the relevant time period. She claims
that her income was used to pay the cost of the rehabilitation program and that she was
unable to visit while in the program. Mother also alleged in her response to the
termination petition that her attempts to visit via Skype were denied. The record reflects
that the court failed to consider the aforementioned facts in making its termination
decision, instead focusing upon the fact that support was not remitted and overnight
visitation had not occurred. Accordingly, we vacate the court’s finding of abandonment
and remand for findings of fact concerning the willfulness of the alleged abandonment.

                                                    C.

       In the event of further appellate review, 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:


2
  “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).
                                                     -6-
        (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
            for such duration of time that lasting adjustment does not reasonably
            appear possible;3

            (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


3
  In re Kaliyah S., 455 S.W.3d at 555 (“[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.”).
                                                     -7-
           (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
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).

       Here, the court’s findings focused primarily upon the period of time leading up to
the removal and shortly thereafter. While we agree that Mother failed to maintain a
relationship with the Child and had not visited the Child or remitted child support during
the relevant time period, Mother testified concerning her completion of a rehabilitation
program and the establishment of a home and continued stable employment. The record
reflects that the court failed to properly consider these factors in its best interest analysis.
With these considerations in mind, we vacate the order in its entirety and remand for
additional findings of fact.

                                     V.     CONCLUSION

       The trial court’s order granting the termination petition is vacated, and the case is
remanded for further proceedings consistent with this opinion. Costs of the appeal are
taxed one half to the appellant, Amanda D., and one half to the appellees, Michael G. and
Shannon G.


                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




                                              -8-
