                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                           Assigned on Briefs November 28, 2012

                           IN THE MATTER OF JACOB A. C. H.1

                  Appeal from the Chancery Court for Robertson County
                    No. 21618     Laurence M. McMillan, Chancellor


                  No. M2012-01175-COA-R3-PT - Filed January 16, 2013


The trial court terminated the parental rights of Mother to her child, finding that she wilfully
failed to visit or support the child. Mother appeals, contending that she lacked the capacity
to visit or pay support. Upon our de novo review we determine that the evidence does not
preponderate against the trial court’s findings of fact and its conclusion that Mother
abandoned the child and that termination of her rights is in the child’s best interest.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

Jonathan A. Garner, Springfield, Tennessee, for the appellant, Amber R. J.

Mary H. F.-H. and Stephen C. H., Springfield, Tennessee, Pro Se.

H. Garth Click, Springfield, Tennessee, for minor child, Jacob A. C. H.

                                               OPINION

       Jacob A. C. H. was born to Amber R. J. (Mother) and Stephen C. H. (Father) on
August 3, 2006, in West Virginia, where Mother resided. On August 21, 2009 the Family
Court of Logan County, West Virginia, entered an order granting Father custody of Jacob.
Mother was granted supervised visitation fours hours each on Saturday and Sunday on the
third weekend of each month, to take place in the State of Tennessee, where Father resided;
the order provided that, after six visits, Mother could return to return to court “to revisit the


        1
            This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
issue of parenting time.” Mother was also ordered to pay child support in the amount of
$50.00 per month.

       On October 29, 2010 Father and his wife filed a petition in the Robertson County,
Tennessee, Chancery Court seeking to terminate Mother’s parental rights on the ground of
abandonment and to allow Father’s wife to adopt Jacob. The petition alleged that Mother
had only exercised one visit with Jacob since October 2009 and that Mother had paid no
support since entry of the August 2009 order. Counsel was appointed for Mother due to her
indigency and, in due course, answered on her behalf, denying the factual allegations in the
petition and denying that her rights should be terminated.2

       Trial was held on February 16, 2012 and on April 30 the court entered its Findings of
Fact and Conclusions of Law, terminating Mother’s parental rights on the ground of
abandonment. The trial court held that Mother abandoned the child by wilful failure to visit
and wilful failure to support as set forth in Tenn. Code Ann. §36-1-102(1)(A)(i). The court
also permitted Father’s wife to adopt Jacob. Mother appeals the termination of her rights.

                                          DISCUSSION

        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 if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). Our termination statues 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., 2005
WL 1021618, at *7 (citing Tenn. Code Ann. § 36-1-113(g)). A party seeking to terminate
the parental rights of a biological parent must prove at least one of the statutory grounds for
termination. Tenn. Code Ann. § 36-1-113(c)(1); In re D.L.B., 118 S.W.3d 360, 366-67
(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Secondly, the party must
prove that termination of the parental rights of the biological parent is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c)(2).

        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 v. Kramer, 455 U.S. 745, 766-69 (1982); In re M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best


       2
         The petition and answer were amended in December 2011; the substance of the amendments is not
germane to the issues in this appeal.

                                                 -2-
interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. §
36-3-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened
standard of proof in these cases, a reviewing court must adapt the customary standard of
review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct.
App. 2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App.
P. 13(d). Id. 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. Id.

       Tenn. Code Ann. § 36-1-113(g)(1) provides that abandonment, as defined at Tenn.
Code Ann. § 36-1-102, is a ground to terminate parental rights; the latter statute provides in
pertinent part:

       (1)(A) For purposes of terminating the parental or guardian rights of parent(s)
       or guardian(s) 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(s) or guardian(s) of the child who is the subject of the petition for
       termination of parental rights or adoption, that the parent(s) or guardian(s)
       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.

Tenn . Code Ann. § 36-1-102. In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), the
court discussed wilfulness in the context of termination cases:

       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
       Tenn. Code Ann. § 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. . . . 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. . . . Failure to visit or support a child is “willful” when a

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       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.
       Failure to visit or to support is not excused by another person’s conduct unless
       the conduct actually prevents the person with the obligation from performing
       his or her duty . . . or amounts to a significant restraint of or interference with
       the parent’s efforts to support or develop a relationship with the child. The
       parental duty of visitation is separate and distinct from the parental duty of
       support. Thus, attempts by others to frustrate or impede a parent’s visitation
       do not provide justification for the parent’s failure to support the child
       financially.

       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.

Id. at 863–64 (citations and footnotes omitted).

I. Failure to Visit

        Mother does not dispute that she did not visit Jacob in the four months preceding the
filing of the petition to terminate. She asserts, however, that she did not willfully abandon
Jacob because she had no capacity to visit him which was a justifiable excuse in not doing
so.

       The trial court made the following finding relative to Mother’s failure to visit:

       That the Mother failed to visit the minor child at all during the four (4) months
       prior to filing of the underlying petition in this matter. The Court further finds
       that the Mother’s testimony regarding her attempts to visit and/or contact the
       Father in August and September of 2010, is not credible. Mother first stated
       that she believed she visited with the minor child in July, 2010; however,
       Mother later stated that she was homeless during this period and that she
       believed this visit actually took place in July, 2009. The Court also finds that
       Mother’s testimony regarding her attempts to visit or contact the Father or
       minor child during the four (4) months preceding the filing of the Petition
       herein was further refuted by evidence submitted by the Father in the form of
       telephone records. Mother testified that during the months of August and
       September, 2010, she was living in an inpatient rehabilitation facility in

                                               -4-
       Huntington, West Virginia. Mother testified that she, along with counselors
       who witnessed and assisted her, made several calls to the Father which were
       not answered or returned. Counsel for the Father later submitted Exhibit 2, a
       collective exhibit of several months of the Father’s phone records from his
       provider, which showed that the Father did not receive a single call to his
       phone number from anywhere in the state of West Virginia during these same
       months. Father’s phone records showed only two calls to the Father from
       inside West Virginia during the four (4) months preceding the filing of the
       underlying petition in this matter. Both of these phone calls came from a
       number belonging to the Mother’s parents, and the Father testified that the
       maternal grandparents did call twice during July, but that he never heard form
       the Mother during this period. As such, the Court finds that the Mother’s
       testimony regarding her attempts to visit the child during the four (4) months
       prior to the filing of the underlying petition in this matter is not credible.

Mother does not contend that the court’s finding is not supported by the evidence or cite
contradictory evidence in the record; rather, she argues that her difficult circumstances in
West Virginia somehow affected her capacity to visit Jacob.

        We have reviewed the record, particularly Mother’s testimony, giving great deference
to the court’s finding that Mother was not credible.3 As noted by the court, Mother’s
homelessness and unemployment, which she cited as reasons she could not visit Jacob, were
caused in large part by her abuse of drugs and her failure to use available services. The
evidence does not preponderate against the court’s findings that Mother did not attempt to
visit or call in the four months preceding the filing of the petition. Mother had the capacity
to rise above her circumstance and visit Jacob by seeking available assistance but chose not
to do so. The evidence clearly and convincingly supports the court’s holding that Mother’s
failure to visit was wilful.

II. Failure to Support

        Failure to support is “willful” if the parent “is aware of his or her duty to support, has
the capacity to provide the support, makes no attempt to provide support, and has no
justifiable excuse for not providing the support.” Tenn. Dep’t of Children’s Serv. v.
Calabretta, 148 S.W.3d 919, 926 (Tenn. Ct. App. 2004). Mother contends that she did not
wilfully fail to support Jacob because she was homeless, unemployed, and in and out of
hospitals in 2010 and, thereby, lacked the capacity to pay support.



       3
           The court made findings of Mother’s lack of credibility with reference to several other matters as well.

                                                         -5-
       The trial court made the following findings relative to Mother’s ability to pay:

       The testimony of the Mother revealed that even though she has previously
       maintained employment as an “entertainer,” she has personally provided no
       child support payments to the Father, and more specifically, provided no
       payments toward the child’s support at all during the four (4) months prior to
       the filing of the underlying petition in this matter.

       The testimony of the Mother revealed that she believes she has not been able
       to find work where she currently lives due to a “bad name” unless she were to
       return to her previous job as an “entertainer.” Mother further testified that she
       does not wish to work as an entertainer anymore; however, she testified that
       she did return to working as an entertainer on more than one occasion in the
       last year when she had what she described as “emergencies.”

       That the Mother’s testimony regarding her inability to work as well as her
       work history is not credible. Specifically, the Court finds that the Mother’s
       claim that she has not maintained employment for two (2) years is not credible
       as the Mother posted on her own Facebook page on August 5, 2011, “Looking
       for a ride to work.” (Exhibit 1). Further, the Court finds that by the Mother’s
       own admission she is capable of working and able to easily find employment
       in her previous line of work, as she testified to having done so on various
       occasions and to spending “a ridiculous amount of money on toys and
       expensive clothes” for the minor child while working in that profession.

The trial court concluded in pertinent part:

       While the Court does not doubt that the Mother has struggled with mental
       health issues, the Court must acknowledge that the Mother has apparently
       chosen to deal with these issues by abusing prescription drugs and shirking her
       responsibilities as a parent. The Mother reported having checked herself out
       of treatment centers early and having attended five (5) different treatment
       facilities, none of which appear to have been successful as the Mother testified
       to being on a waiting list for a treatment center at the time of the hearing.
       Under these circumstances, the Court does not find that the Mother has any
       justifiable excuse for failing to pay support and her failure to pay support was
       therefore willful.

        Mother’s testimony regarding her work history was conflicting; however, she did
testify that there were times she did work, but did not pay support during those times. She

                                               -6-
also testified that she was in college and providing for herself and her other children with
student grants, loans, and food stamps but again sent no support for Jacob. The court was
in a unique position to observe Mother and to assess her credibility and the court
appropriately discussed the evidence in the context of Mother’s arguments. Having
thoroughly reviewed the record, we conclude that the evidence does not preponderate against
the trial court’s extensive and detailed findings.

III. Best Interest

        Once a ground for termination has been proven by clear and convincing evidence, the
trial court must then determine whether it is the best interest of the child for the parent’s
rights to be terminated, again using the clear and convincing evidence standard. The
Legislature has set out a list of factors at Tenn. Code Ann. § 36-1-113(i) for the courts to
follow in determining the child’s best interest.4 The list of factors is not exhaustive, and the
statute does not require every factor to appear before a court can find that termination is in
a child’s best interest. See In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing


       4
           The factors at Tenn. Code Ann. § 36-1-113(I) are:

       (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.


                                                    -7-
State of Tennessee Dep’t of Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-CV,
2002 WL 970434 at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-
COA-R3-PT, 2006 WL 3077510 at *4 (Tenn. Ct. App. Oct. 31, 2006)).

        In determining that termination of Mother’s rights was in Jacob’s best interest, the
trial court stated:

               First, the Mother testified that she is currently attempting to once again
       enter a residential treatment facility. It is clear that the Mother has not
       adjusted her circumstances such that it would be in the best interest of the
       minor child to be in her home or have regular visitation with the minor child.
       There is no evidence outside of the testimony of the Mother as to her
       involvement with social services. The Mother did not testify as to what, if any,
       services were offered, but did testify that she has had involvement with Child
       Protective Services in West Virginia on more than one occasion. Without
       testimony from anyone from this agency, it is impossible to discern whether
       or not reasonable efforts were made by this agency.
               It is undisputed that the Mother has not maintained regular visitation or
       other contact with the minor child. As such, particularly in light of the minor
       child’s age, it would not appear that the Mother has maintained a meaningful
       relationship with the minor child. The Father’s testimony was that the minor
       child knows who his Mother is and occasionally brings her up but that his
       relationship with the step-mother is that of a mother and child. Clearly, in light
       of the foregoing facts, a change of caretakers would have a negative impact on
       the minor child, who has lived with his father exclusively since he was three
       (3) years old.
               There was no testimony given by any party that would clearly show that
       the Mother or anyone in her household has been guilty of abuse or neglect with
       regard to the minor child at issue. However, testimony did show that the
       Mother is still dealing with substance abuse and mental health issues and has
       a previous history with Child Protective Services regarding her other children.
       Testimony also showed that the Mother is not and has not provided financial
       support for the minor child. Therefore, upon evaluation of all the testimony
       and evidence presented in this matter, the Court finds that there is clear and
       convincing evidence that a termination of the Mother’s parental rights is in the
       best interests of the minor child in this matter.

        We have reviewed the evidence and it does not preponderate against these findings
of fact. In light of the evidence of Mother’s continued failure to address and resolve her
homelessness, joblessness, drug abuse and mental health issues as well as the fact that Jacob

                                              -8-
is in a stable, nurturing environment, the record clearly and convincingly shows that
termination of Mother’s rights is in Jacob’s best interest.

                                   CONCLUSION

      For the foregoing reasons, we affirm the decision of the trial court terminating
Mother’s parental rights.




                                               ___________________________________
                                               RICHARD H. DINKINS, JUDGE




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