                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                               Assigned on Briefs March 11, 2015

                                   IN RE ARIANA S., ET AL.1

                 Appeal from the Juvenile Court for Davidson County
          No. 20081662, 20085325, PT182266    Betty K. Adams Green, Judge




                    No. M2014-02031-COA-R3-PT – Filed May 28, 2015


This case arises from the termination of parental rights of the father of two children,
Ariana S., born April 2002, and Luis S., born February 2003. Father left his children and
moved to Puerto Rico in 2007; he has been incarcerated since 2012. Father’s parental
rights were terminated on the grounds of abandonment by willful failure to visit or
support and persistence of conditions; he appeals. We reverse the termination on the
grounds of abandonment by willful failure to support and persistence of conditions and
affirm the termination of Father’s rights on the ground of abandonment by willful failure
to visit.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
                             Part and Reversed in Part

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P. J., M. S., and W. NEAL MCBRAYER, J. joined.

Thomas H. Miller, Nashville, Tennessee, for the appellant, Raymond S.

M. Allen Ehmling and Elizabeth R. McClellan, Gallatin, Tennessee, for the appellee, the
Association for Guidance, Aid, Placement and Empathy, Inc.

Cynthia Hazelwood Moore, Nashville, Tennessee, Guardian ad litem.




1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
                                        OPINION

       Two children, Ariana S. (d/o/b April 2002) and Luis S. (d/o/b February 2003),
were born out of wedlock to Jessica S. (“Mother”) and Raymond S. (“Father”). The
record is not entirely clear regarding the history of the children and their custodial
placements; these are the findings of the Trial Court pertinent to the issues raised in this
appeal and are not contested:

           [Father] lived with the birth [Mother] and the children from 2002
            and 2006.
           [Father] was incarcerated for six (6) months in 2006 for failure to
            pay child support on another child.
           [Father] was employed at McDonalds in 2006.
           The last time [Father] saw Luis and Ariana was in February 2007.
            At that time, Luis was four (4) and Ariana was five (5).
           [Father] was not incarcerated in 2007 when he left his children to
            move to Puerto Rico.
           [Father] knew the whereabouts of his children when he left his
            children in 2007 and moved to Puerto Rico. The children were living
            with their birth [Mother] in Nashville, TN.
           At trial, [Father] offered no reason or excuse as to why he left his
            children and moved to Puerto Rico in 2007.
           [Father’s] last phone contact with Luis and Arianna was in 2010.
            During this time, the children were living with their maternal
            grandmother, Deborah England. He maintained phone contact on
            and off for approximately one month in 2010.
           By his own admission at trial, [Father] has failed to financially
            support his children since 2006. In 2007, when he left the children to
            move to Puerto Rico, [Father] knew where the children were living
            and where to send support and gifts. He testified the children were
            living with their mother in Nashville, TN. Also, by his own
            admission at trial, he failed to provide any gifts, letters or cards to
            his children from 2007 up to the date of his incarceration on
            September 28, 2012.
           [Father] was not incarcerated in March 2012 when the maternal
            grandmother, Deborah England, entered into a voluntary placement
            agreement with AGAPE.[2]


2
  AGAPE, the Association for Guidance, Aid, Placement, and Empathy, Inc., is a licensed child
placement agency existing under and by virtue of laws of the State of Tennessee.
                                             2
 Mary Corwin, AGAPE case manager, received the case in March
  2012. After receiving the case, she attempted to contact the [F]ather
  at a number she had been provided. When she asked to speak with
  the [Father], the person who answered said, “No,” and hung up the
  phone. No one answered the phone after that call.
 [Father] was not incarcerated when this Court granted temporary
  legal custody to AGAPE on July 10, 2012.
 [Father] was not incarcerated when AGAPE was relieved of
  reasonable efforts on August 30, 2012.
 AGAPE was relieved of reasonable efforts due to the termination of
  [Father’s] parental rights to another child.
 [Father] has been incarcerated continuously since September 28,
  2012.
 This Court granted AGAPE’s petition for custody on December 19,
  2012.
 Mary Corwin, the AGAPE case manager, telephoned the [Father] on
  April 23, 2013. During this phone call, [Father] told Ms. Corwin that
  he “did not want to lose his children,” and wanted them placed with
  his mother. Case manager Corwin provided [Father] with her contact
  information so he could pass the information along to his family
  members.
 No family member of [Father’s] extended family has ever contacted
  AGAPE inquiring about custody or visitation with the children.
 No family member has contacted AGAPE since case manager
  Corwin’s April 23, 2013 phone call to respondent, during which she
  provided her contact information so [Father] could relay it to his
  family members.
 [Father] wrote a letter to the Davidson County Juvenile Court in
  September 2013. The Court entered the letter into the children’s
  Juvenile Court filed on [September 16, 2013]. In his letter, [Father]
  states that he wants to give full custody of the children to his mother,
  wife, or brother. [Father] provides the names, addresses, and phone
  number of his family members in the letter. However, [Father] failed
  to send a copy of the letter to AGAPE or to his attorney, despite
  having AGAPE’s contact information.
 [Father] is serving a thirteen (13) year federal sentence for
  convictions including: possession with intent to distribute heroin,
  possession with intent to distribute cocaine, using and carrying
  firearms during and in relation to drug trafficking crime, conspiracy
  to distribute crack, cocaine, heroin, and marijuana. [Father] testified
  he had at least nine (9) years left to serve on this sentence.
                                  3
             In March 2014 [Father] was transferred to Puerto Rico to face
              weapon charges. He received a five (5) year sentence to be served
              concurrently with his federal sentence.

      On November 21, 2013, AGAPE filed a Petition for Termination of Parental
Rights in Davidson County Juvenile Court. The petition set forth the following as
grounds for the termination of his rights:

        Father has been incarcerated during all or part of the four (4) months
        immediately preceding the filing of the petition for termination; Father has
        willfully failed to visit or support the children for the four (4) consecutive
        months preceding his incarceration; prior to incarceration Father engaged in
        conduct exhibiting a wanton disregard for the welfare of the children;
        substantial non-compliance of the permanency plans by Father; the children
        have been removed from the home for more than six (6) months and the
        conditions that led to removal still persist; termination of Father’s parental
        rights is in the best interest of said children.

       The case was heard on July 22, 2014. In an order filed on September 17, 2014, the
Court granted the petition on the grounds of abandonment by willful failure to visit or
support and persistence of conditions. The Court also found that it was in the children’s
best interest for the rights to be terminated. The Court made no finding relative to
abandonment by wanton disregard, and dismissed the ground of substantial non-
compliance of the permanency plans by Father.

        Father appeals the termination of his parental rights raising the following issues:3

        I. Whether the trial court erred in finding that the Father abandoned the
           children.

        II. Whether the trial court erred in finding that persistence of conditions
            supported the termination of Father’s parental rights.

I. STANDARD OF REVIEW

        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
3
  Mother’s parental rights were terminated by order of the Juvenile Court filed May 29, 2013, and are not
at issue in this case.
                                                   4
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 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.

II. WILLFUL ABANDONMENT

      Tenn. Code Ann. § 36-1-113(g)(1) designates abandonment, as defined at Tenn.
Code Ann § 36-1-102, as a ground for terminating parental rights. Tenn. Code Ann. § 36-
1-102(1)(A)(iv) defines “abandonment” for this purpose as follows:

      A parent or guardian is incarcerated at the time of the institution of an
      action or proceeding to declare a child to be an abandoned child, or the
      parent or guardian has been incarcerated during all or part of the four (4)
      months immediately preceding the institution of such action or proceeding,
      and either has willfully failed to visit or has willfully failed to support or
      has willfully failed to make reasonable payments toward the support of the
      child for four (4) consecutive months immediately preceding such parent’s
      or guardian’s incarceration, or the parent or guardian has engaged in



                                             5
        conduct prior to incarceration that exhibits wanton disregard for the welfare
        of the child.[4]

       The concept of “willfulness” is at the core of the statutory definition of
abandonment. In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005). In Audrey, the
Court discussed willfulness in the context of termination cases:

        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.

        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).

        A. Failure to Visit

        In the September 17, 2014 order terminating Father’s parental rights, the Court
held “[n]ot only did the proof establish by clear and convincing evidence [the Father’s]
willful failure to visit . . . during the relevant time period, the uncontroverted testimony
established . . . the last time he visited his children was 2007.” Father concedes that he
did not visit his children during the relevant four-month period; he contends that he did
not know where his children were and, as a result, was not capable of willfully failing to
visit them.



4
 In its order the Court determined that the relevant time period in accordance with the statute is May 28,
2012 through September 28, 2012, the four months immediately preceding Father’s date of incarceration.
This is not disputed.
                                                    6
       As held by the Trial Court, the evidence clearly establishes that Father’s failure to
visit was willful. In 2007, of his own free will, Father moved away from his children to
Puerto Rico; at the time of his move, he knew where his children were. Father’s
testimony was that the only contact he had with the children since 2007 and the date of
the trial was by phone during 2010; this contact was initiated by the maternal
grandmother and continued off and on for about a month. During this period of contact,
Father made no effort to locate the children in order to visit them and failed to maintain
contact. He provided no justifiable excuse for this failure to act. The evidence shows
Father’s failure to visit was not accidental or inadvertent, but rather intentional and
voluntary; consequently, it meets the standard of willfulness.

        B. Failure to Support 5

       Failure to pay support under the termination statute 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 as no justifiable excuse for not providing the support.”
State of Tenn., Dep’t. of Children’s Serv. v. Calabretta, 148 S.W.3d 919, 926 (Tenn. Ct.
App. 2004) (citing In re Adoption of Muir, 2003 WL 22794524 (Tenn. Ct. App. Nov. 25,
2003)). The fact that a parent may not be under an order to pay support is not dispositive
of the question of whether the failure is willful, as the obligation to pay support exists in
the absence of a specific order.

        The fact that Father did not pay support is not contested. The only proof in
support of a finding that Father had the ability to provide support was his testimony that
he was employed at McDonalds in 2006. This, however, is not clear and convincing
proof that he had the ability to pay support in the four months preceding his incarceration
in 2012. Moreover, while the record shows that Father had been incarcerated in 2006 for
failure to pay child support on another child, this is only evidence of his awareness of a
general obligation to support; it is not clear and convincing evidence that he was aware of
a specific obligation to support Ariana and Luis.6 Accordingly, we reverse the Trial
Court’s finding of abandonment by failure to support.



5
  The guardian ad litem concedes that there is a lack of clear and convincing evidence to uphold the
termination of the father’s parental rights on the ground of willful failure to support.
6
  Father was incarcerated at the time of trial and testified by phone. His testimony regarding his
employment with McDonald’s and his incarceration for failure to pay support for the third child arose in
the course of the court’s questioning of him relative to the period from 2002 to 2006, when he lived with
Ariana and Luis and their mother and was not specifically directed toward the obligation to pay support.
While it is testimony relating to the broad issue of child support, considered in context it does not clearly
and convincingly establish the ground of abandonment by failure to pay support.
                                                     7
         C. Wanton Disregard

        While the Trial Court made no findings relative to the ground of abandonment by
conduct evidencing wanton disregard, AGAPE argues on appeal that clear and
convincing evidence supports such a finding. Inasmuch as the Trial Court did not make
any finding on this issue, and in light of our holding that another ground for termination
exists, it is not necessary to address the issue of abandonment by wanton disregard.

III. PERSISTENCE OF CONDITIONS

      Tenn. Code Ann. § 36-1-113(g)(3)(A) provides that parental rights may be
terminated on the basis of “persistence of conditions” when:

         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 and:

         (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;

A termination proceeding based on the persistence of conditions ground requires a
finding by clear and convincing evidence of all three statutory factors. In re Valentine,
79 S.W.3d at 549.

      Father contends that the Trial Court erred in terminating his rights on this ground
because the children were not removed from his home by a court order. In its brief,
AGAPE concedes that the Trial Court made “a harmless error in designating Tenn. Code
Ann. § 36-1-113(g)(3) as a basis for termination” but it argues that that § 36-1-113(g)(6)
provides an alternative basis of termination.7 AGAPE acknowledges that the prison


7
    Tenn. Code Ann. 36-1-113(g)(6) provides:

                                                8
sentences were not imposed in time to be added to the original petition as grounds for
termination, but notes that the court made a finding relative to the same and contends that
this court should hold that § 36-1-113(g)(6) establishes such an alternative ground for
termination of Father’s rights.

       While Tenn. R. Civ. P. 15.02 recognizes that issues not raised in the pleadings
may be tried by implied consent of the parties, In re S.J.M., No.M2009-01080-COA-R3-
PT, 2009 WL 4039430, at *3, a thorough review of the record reveals that neither party
raised or consented to the consideration of Tenn. Code Ann. § 36-1-113(g)(6) at trial; as
noted, the court did not base the termination for Father’s rights on this ground. In the
absence of clear consent to try this issue and in light of the heightened consideration we
give to the protection of parents’ rights in termination cases, we cannot treat this as
“harmless error” on the part of the trial court and proceed to determine the issue de novo.
Rather, we must reverse the termination of Father’s rights on the ground of persistence of
conditions.8

IV. BEST INTEREST

        Once at least one 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. The list of factors in the
statute 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 Tenn. 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)).



        (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:
        ***
        (6) The parent has been confined in a correctional or detention facility of any type, by
        order of the court as a result of a criminal act, under a sentence of ten (10) or more years,
        and the child is under eight (8) years of age at the time the sentence is entered by the
        court.
8
  In light of the fact that we have affirmed the termination on another ground, there is no need to remand
the case for further consideration of this ground.
                                                     9
       Although Father does not otherwise contest the holding that the termination of his
rights was in the best interests of the children, we have reviewed the record at length and
determined that the evidence clearly and convincingly proves that the termination of the
Father’s rights is in the children’s best interest.

V. CONCLUSION

        In accordance with the evidence and for the reasons herein stated,the judgment of
the trial court is reversed in part and affirmed in part; the termination of Father’s parental
rights is affirmed.


                                                  ________________________________
                                                  RICHARD H. DINKINS, JUDGE




                                             10
