                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs August 2, 2016

                                       IN RE JAIDEN C.

                    Appeal from the Chancery Court for Union County
                      No. 6556     Elizabeth C. Asbury, Chancellor
                        ___________________________________

                No. E2016-00366-COA-R3-PT-FILED-AUGUST 18, 2016
                       ___________________________________


This is a termination of parental rights and adoption case. Appellant, the minor child’s
paternal grandmother, appeals the trial court’s denial of her petition to terminate
Appellee/Mother’s parental rights on grounds of abandonment by willful failure to visit and
persistence of the conditions that led to the child’s removal from Appellee’s home.
Specifically, the trial court held that Appellant had failed to meet her burden of proof to
show, by clear and convincing evidence, either that Appellee’s failure to visit the child was
willful, or that the conditions that precipitated the child’s removal persisted. Discerning no
error, we affirm and remand.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ANDY D. BENNETT, and
THOMAS R. FRIERSON, II, JJ., joined.

Lisa A. White, Knoxville, Tennessee, for the appellant, Connie M.

Jennifer H., Maynardville, Tennessee, Pro Se.


                                              OPINION
                                           I. Background

      The child at issue in this case, Jaiden C., was born, out of wedlock, in October of
      1
2006. The child’s mother is Appellee Jennifer H. The child is currently in the custody of
          1
          In cases involving minor children, it is the policy of this Court to redact the parties’ names
so as to protect their identities.
her paternal grandmother, Appellant Connie M.2 The order placing custody with Connie M.
was entered on July 7, 2011 in the Juvenile Court for Knox County. The July 7, 2011 order
provides, in pertinent part, as follows:

       The Court finds clear and convincing evidence of dependency and neglect
       pursuant to T.C.A. § 37-1-102(b)(12) based upon the Mother’s failure to
       protect the child from physical abuse inflicted by her boyfriend, [Wayne G.],
       her failure to provide proper care and supervision for the child, and her failure
       to provide safe and appropriate housing for the child. The Court also finds
       clear and convincing evidence that [Wayne G.] poses a risk of substantial harm
       to the child if allowed future contact. Additionally, the Court finds that . . . it is
       in the best interest of the child . . . that the Paternal Grandparents [be awarded
       custody] . . . .

Under the July 7, 2011 order, Jennifer H. was granted visitation with Jaiden; however, the
order states that Appellee’s “contact with the child shall be limited to strictly supervised
visitation only at Parent Place, according to the rules and requirements of that organization.”
(emphasis in original). The order further states that “the Paternal Grandparents shall be
responsible for making the child available for visitation as arranged by Parent Place . . . .”

       On December 12, 2013, Connie M. filed a petition to terminate Jennifer H.’s parental
rights and to adopt Jaiden.3 As grounds for termination of Jennifer H.’s parental rights,
Connie M. averred abandonment by willful failure to visit, Tenn. Code Ann §36-1-113(g)(1),
as defined in Tennessee Code Annotated Sections 36-1-102(1)(A)(i), and persistence of the
conditions that led to the child’s removal from Appellee’s custody, Tenn. Code Ann. §36-1-
113(g)(3).

       By order of February 25, 2014, Appellee was declared indigent, and an attorney was
appointed to represent her. Thereafter, on May 23, 2014, Appellee filed an answer to the
petition to terminate her parental rights, wherein she denied the material allegations set out in
the petition. By order of June 5, 2014, a guardian ad litem was appointed for Jaiden.

        The petition to terminate parental rights was heard on November 17, 2015. By order
of December 8, 2015, the trial court denied Appellant’s petition and found, in relevant part,
as follows:

       2
          Custody was originally awarded to Connie M. and her husband, Stanley M.; Stanley M. died
during the course of these proceedings.
        3
          Connie M. testified that her son, the child’s father, is currently incarcerated. When asked
why Connie M. did not seek to terminate her son’s parental rights, she stated that he had orally
agreed not to contest her adoption of Jaiden. Regardless, the child’s father’s parental rights are not
the subject of this case, and he is not a party to this appeal.
                                                -2-
           [Connie M.] had the burden of proving by clear and convincing
   evidence first that mother had willfully failed to visit during the four-month
   period prior to the filing of the December 6, 2013 petition. The proof was that
   in fact no visits occurred during that time period. That was acknowledged by
   the grandmother and the mother. So, the focus of the Court has to be on the
   statutory word, “willfulness.”
           The Knox County Juvenile Court order [of July 7, 2011, supra] . . .
   says: “The paternal grandparent shall be responsible for making the child
   available for visitation as arranged by Parent Place.”
           The proof was story A from mom and story Z from grandmother, and
   there wasn’t anything presented to the Court to either refute mom or
   corroborate grandma. So it is really hard for the Court to say that mother has
   willfully failed to visit when the mother was saying that she was waiting for
   Parent Place to call her and the court order saying that the grandparents were
   the ones responsible for making the child available for visitation as arranged
   by Parent Place.
           The second issue is persistence of conditions. Now the same court
   order [i.e., July 7, 2011] . . . does say that mom failed to protect Jaiden from
   physical abuse as inflicted by the boyfriend. . . . The proof is . . . clear that she
   had no contact with that man since August of 2013 except for a brief time at
   Christmas when she took the . . . children to get . . .Christmas presents. . .

                                           ***

          So therefore the Court has to conclude that [Connie M.] has failed to
   prove by clear and convincing evidence the continuing persistence of
   condition.

                                        II. Issues

   Connie M. appeals. She raises three issues for review as stated in her brief:

1. Whether the trial court erred in finding that the Mother did not abandon the minor
   child when she willfully failed to visit.
2. Whether the trial court erred in finding there was no persistence of the Mother’s
   conditions that led to [the] Child’s removal.
3. Whether the trial court erred in failing to rule on whether it is in the best interest of
   the Child to terminate the parental rights of the Mother.




                                           -3-
                                  III. Standard of Review

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

                                   IV. Analysis
                       A. Abandonment by Willful Failure to Visit

       Tennessee Code Annotated Section 36-1-113(g)(1) provides that termination of
parental rights may be based on the ground of “[a]bandonment by the parent or guardian, as
defined in Section 36-1-102....” Tennessee Code Annotated Section 36-1-102(1)(A)(i)
defines abandonment, in relevant part, as follows:
                                           -4-
       (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 a guardian or guardians of the child who is the subject of the
       petition for termination of parental rights or adoption, that a parent or parents
       or a guardian or guardians either have willfully failed to visit or have willfully
       failed to support or have willfully failed to make reasonable payments toward
       the support of the child.

        As noted in the trial court’s order, supra, the parties do not dispute that Appellee did
not, in fact, visit Jaiden during the four months immediately preceding the filing of the
petition to terminate her parental rights. However, the trial court specifically found that
Appellee’s failure to visit was not willful. Failure to visit or support a child is “willful” when
a person is aware of his or her duty to visit or support, has the capacity to do so, makes no
attempt to do so, and has no justifiable excuse for not doing so. In re Audrey S., 182 S.W.3d
838, 864 (Tenn. Ct. App. 2005), perm. app. denied (Tenn. Nov. 7, 2005). Willfulness
depends on the actor’s intent, and intent is seldom capable of direct proof. Id. Therefore, the
trier-of-fact must infer intent from the circumstantial evidence, including a person’s actions
or conduct. Id. “Whether a parent failed to visit or support their 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, 649 (Tenn. Ct. App. 2013)
(citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)).

        As set out in the juvenile court’s July 7, 2011 order, Appellee’s visitation with Jaiden
was to be supervised by Parent Place, and Appellant was to be responsible for making the
child available for visitation as arranged by Parent Place. Turning to the record, Jennifer H.
testified that “from 2011 to 2012,” she exercised regular visitation at Parent Place. However,
she stated that her visits were “canceled” when Stanley M. became ill:

       Q. And how many times did you [visit]?

       A. I believe [I] visited from 2011 to 2012.

       Q. And then what happened?

       A. And then my visits were canceled.

                                              ***

       Q. Why did you cancel them . . .

       A. I did not cancel them . . . [I]n 2012, when [Stanley M.] was sick . . . he was
       undergoing chemotherapy . . . on Saturdays, when the visits were . . . and
                                              -5-
       [Connie M.] needed them changed again. And I couldn’t do that at that
       present moment.

       Q. Why not?

       A. I had a job.

Appellee explained that her visitation was originally scheduled on Thursday, but then the
visits were changed to Saturday. Although Appellee stated that her manager was fine with
the change to Saturday, when Connie M. requested visits be moved to Tuesday, Jennifer H.’s
manager would not give her the time off. Nonetheless, Appellee stated that, “I was talking to
Mandy at Parenting Place and I was letting her know that I couldn’t [visit on Tuesdays].”
Jennifer H. continued:

       I called Parent Place and I had my [phone] number changed and I had told
       [Parent Place that] if Connie was okay with the visits again, here is my new
       number. And it never went anywhere. . . . I didn’t hear from them. . . . I
       thought it was up to Parent Place [to arrange visits]. . . . I felt that they were
       [supposed] to call me, because I had give [sic] them my new number. And
       whenever Connie was okay with the visits again that we could go from there.

       Connie M.’s testimony largely corroborates Jennifer H.’s:

       Q [to Connie M.]: Okay. There has been a lot of discussion about visitation
       that was occurring . . . before March 2012. Was Jennifer . . . visiting Jaiden
       before March 2012?

       A. Yes, I think so, at Parent Place.

       Q. Okay. And did you request a change from Parent Place?

       A. Yes, I did. I requested two . . . . I asked for the first date and Mandy said
       she just didn’t know. Then I asked for another day and Mandy just told me she
       just said no. . . .

                                              ***

       Q. So, the visits, according to [Jennifer H.], were on Saturday at that time?

       A. Yes, ma’am

       Q. And did you—would you clarify, you were asking to change those to a
                                       -6-
       different day of the week?

       A. Yes. . . . I did not want Jenn to miss her visits, but when I talked to Mandy,
       she said Jennifer just said no on both days, and she wouldn’t . . . work with me
       on the days.

                                             ***

       Q. Okay. So, at any time between 2012 and 2014, did you receive any
       communication from Parent Place about restarting visitation?

       A. No.

                                             ***

       Q. And were the visits stopped by Parent Place.

       A. Yes.

                                             ***

       Q. But you never called the Parent Place and said . . . I can visit any day now?

       A. That is correct . . . .

        Under the circumstances, we concede that Jennifer H. should have taken a more active
role in ensuring her visits with Jaiden. However, from the foregoing testimony and the
totality of the circumstances, it is apparent that both Connie M. and Parent Place had some
role in dropping the proverbial ball concerning the ordered visitation. This is especially so in
light of the plain language of the juvenile court’s July 7, 2011 order, which places some
burden on Connie M. to provide the child for visits, and places some burden on Parent Place
to ensure that visitation comports with its internal policies. From the record as a whole, we
agree with the trial court that the evidence does not clearly and convincingly support a
finding that Appellee’s failure to visit was willful in this case.

           B. Persistence of the Conditions that Led to the Child’s Removal

    Tennessee Code Annotated Section 36-1-113(g)(3) provides that termination of parental
rights may be based upon persistence of conditions. Persistence of conditions is defined as:

       (3) The child has been removed from the home of the parent or guardian by
       order of a court for a period of six (6) months:
                                             -7-
       (A)       The conditions that led to the child’s removal or other conditions that in
             all reasonable probability would cause the child to be subjected to further
             abuse or neglect and that, therefore, prevent the child's safe return to the
             care of the parent(s) or guardian(s), still persist;

       (B)      There is little likelihood that these conditions will be remedied at an
             early date so that the child can be safely returned to the parent(s) or
             guardian(s) in the near future; and

       (C) The continuation of the parent or guardian and child relationship greatly
       diminishes the child’s chances of early integration into a safe, stable and
       permanent home.

The purpose behind the “persistence of conditions” ground for terminating parental rights is
“to prevent the child’s lingering in the uncertain status of foster child if a parent cannot
within a reasonable time demonstrate an ability to provide a safe and caring environment for
the child.” In re Arteria H., 326 S.W.3d 167, 178 (Tenn.Ct.App.2010), overruled on other
grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn.2015).

       In In re Audrey S., this Court held that, “based on the statutory text and its historical
development, [the ground of persistence of conditions found in Tennessee Code Annotated
Section 36-1-113(g)(3)] applies as a ground for termination of parental rights only where the
prior court order removing the child from the parent’s home was based on a judicial finding
of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 872. As set out in the
juvenile court’s July 7, 2011 order, supra, the finding of dependency and neglect in this case
was based on “the Mother’s failure to protect the child from physical abuse inflicted by her
boyfriend, [Wayne G.], her failure to provide proper care and supervision for the child, and
her failure to provide safe and appropriate housing for the child.” Turning to the record,
Appellee testified that she has had no significant contact with Wayne G. since 2013:

       Q. And you chose to stop seeing [Wayne G.] in, obviously, 2013, was it

       Christmas?

       A. In August.

                                               ***

       Q. . . . [Y]ou stated that you, since [August of] 2013, you have not seen
       Wayne [G.]?

                                               -8-
       A. There has been no communication . . . . I had said that I had seen him, but I
       would dodge and go the other way.

From our review, there is no countervailing evidence in the record to dispute Appellee’s
testimony that she has not had contact with Wayne G. since 2013.

        Concerning Appellee’s housing, the record indicates that, since the child was removed
from her custody in 2011, Jennifer H. has moved approximately five times. However, at the
hearing on the petition to terminate her parental rights, Appellee testified that she is currently
living in a two-bedroom apartment with two of her children. In addition, Appellee testified
that she is currently employed and that she earns sufficient income to maintain her housing
and to provide daycare for the two other children.

       From the totality of the circumstances, we agree with the trial court’s conclusion that
the evidence does not clearly and convincingly support termination of Appellee’s parental
rights on the ground of persistence of the conditions that led to Jaiden’s removal from her
custody. Having determined that neither ground for termination of Appellee’s parental rights
was proven by clear and convincing evidence, we pretermit discussion of whether
termination of Appellee’s parental rights is in Jaiden’s best interest. Tenn. Code Ann. § 36-
1-113(c) (stating that 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
children’s best interest).

                                        IV. Conclusion

        For the foregoing reasons, we affirm the order of the trial court. The case is remanded
to the trial court for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against the Appellant, Connie M., and her surety,
for all of which execution may issue if necessary.




                                                    _________________________________
                                                    KENNY ARMSTRONG, JUDGE




                                              -9-
