                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      June 14, 2000 Session

     ROBERT LELAND BRYANT, ET AL. v. JAMES ASHLEY BRYANT

                 A Direct Appeal from the Circuit Court for Davidson County
                   No. 97A-84    The Honorable Muriel J. Robinson, Judge



                    No. M1999-01280-COA-R3-CV - Filed October 10, 2000


Petitioners filed a petition to terminate the parental rights of the biological father and for adoption
of two minor children based on abandonment by the father. On the first appeal, this Court reversed
the trial court’s order denying termination of parental rights and remanded the case for the trial court
to determine whether the termination of parental rights is in the best interest of the children. The
trial court found that termination of parental rights is in the best interest of the children and granted
the adoption. Father has appealed.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS
AND HOLLY KIRBY LILLARD, J., joined.


Robert L. Jackson, Larry Hayes, Jr., Nashville, For Appellant, James Ashley Bryant

Wende J. Rutherford, Paul A. Rutherford, Nashville, For Appellees, Robert Leland Bryant, Linda
Kay Wolfson Bryant

                                              OPINION

         This case is before the Court for the second time. Petitioners, Robert Leland Bryant and wife,
Linda Kay Wolfson Bryant, filed a petition for the termination of the parental rights of defendant,
James Ashley Bryant (“Father,” “Respondent”), and for the adoption of his two minor children,
Megan Rae Bryant and Devon Michael Bryant. Petitioners appealed the trial court’s order denying
their petition to terminate defendant’s parental rights. This Court reversed the order of the trial court
stating:

                      From a review of the record, we find that the evidence
                preponderates against the findings of the trial court. The actions by
                Respondent constitute “abandonment” as defined by the foregoing
               statutory provisions in that he willfully failed to support or make
               reasonable payments toward the support of the children for a period
               of more than four consecutive months immediately preceding the
               filing of the Petition for Termination and Adoption.

        The case was remanded to the trial court for a determination of the best interests of the
children. On remand, after an evidentiary hearing, the trial court’s order entered May 20, 1999,
granted the petition for termination and adoption, finding that the termination of the parental rights
for both parents, James Ashley Bryant and Sandra Lynn Todd Bryant, was in the best interests of the
children. James Ashley Bryant has appealed.

        Petitioners are the father and stepmother of Respondent, and are the grandparents of the
minor children involved in this action. Sandra Lynn Todd Bryant and Respondent, the parents of
the two minor children, were married but separated at the time the petition was filed. They are now
divorced. On October 1, 1998, James Bryant married his current wife, Joanne Bryant.

        Father, Sandra Bryant, and the minor children lived in Colorado Springs until the couple
separated in March of 1996. Upon their separation, they requested that Petitioners care for the two
children until they could establish separate households. Linda Bryant went to Colorado Springs and
brought the children to Nashville. At the time the children moved to Nashville, James Bryant was
in the United States Army stationed in Colorado. The children have continuously resided with the
Petitioners since their arrival in Nashville in March of 1996. In October of 1996, Petitioners were
awarded custody of the minor children pursuant to an agreed order entered in the Juvenile Court of
Davidson County.

        James Bryant received early discharge from the Army in December 1996 and returned to
Nashville to live in Petitioners’ home from December 1996 through April 1997, when they asked
him to leave. According to Petitioners’ testimony, they no longer wanted James Bryant living in
their home because he was irresponsible and left pornography out in the open in his room. James
Bryant moved in with his mother who also lives in the Nashville area. Subsequently, James Bryant
married Joanne, and currently lives with her in Nashville.

        Father has appealed the final order terminating his parental rights and granting the adoption.
He presents two issues for review. Since this case was tried by the court sitting without a jury, we
review the case de novo upon the record with a presumption of correctness of the findings of fact
by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent
error of law. T.R.A.P. 13(d).

        The first issue presented for review is whether there is clear and convincing evidence in this
record that Mr. Bryant abandoned the minor children.

      As noted above, this Court previously ruled that there was abandonment of the children by
Respondent. Thus, on its face it would appear that the “law of the case” doctrine would apply. This


                                                 -2-
doctrine generally prohibits reconsideration of the issues that have already been decided in a prior
appeal of the same case. Memphis Publishing Co. v. Tennessee Petroleum & Underground
Storage Tank Bd., 975 S.W.2d 303 (Tenn. 1998). In this case, the Supreme Court said:

                       The law of the case doctrine is not a constitutional mandate
               nor a limitation on the power of a court. 5 Am.Jur.2d Appellate
               Review § 605 (1995); Ladd [v. Honday Motor Co. ltd., 939 S.W.2d
               83 (Tenn. Ct. App. 1996)], 939 S.W.2d at 90. Rather, it is a
               longstanding discretionary rule of judicial practice which is based on
               the common sense recognition that issues previously litigated and
               decided by a court of competition jurisdiction ordinarily need not be
               revisited. Ladd, 939 S.W.2d at 90 (citing other cases). This rule
               promotes the finality and efficiency of the judicial process, avoid
               indefinite relitigation of the same issue, fosters consistent results in
               the same litigation, and assures the obedience of lower court to the
               decisions of appellate courts. Ladd, 939 S.W.2d at 90; 5 Am.Jur.2d
               Appellate Review § 605 (1995); 1B James W. Moore, Moore’s
               Federal Practice, ¶ 0.404[1] (2d ed.1995); 18 Charles A. Wright,
               Arthur R. Miller & Edward H. Cooper, Federal Practice and
               Procedure § 4478, at 790 (1981).

                       Therefore, when an initial appeal results in a remand to the
               trial court, the decision of the appellate court establishes the law of
               the case which generally must be followed upon remand by the trial
               court, and by an appellate court if a second appeal is taken from the
               judgment of the trial court entered after remand. Miller, supra, ¶
               0.404[1]. There are limited circumstances which may justify
               reconsideration of an issue which was an issue decided in a prior
               appeal: (1) the evidence offered at a trial or hearing after remand was
               substantially different from the evidence in the initial proceeding; (2)
               the prior ruling was clearly erroneous and would result in a manifest
               injustice if allowed to stand; or (3) the prior decision is contrary to a
               change in the controlling law which has occurred between the first
               and second appeal. (citations omitted).

Id. at 306.

        Our previous opinion in this case was filed February 1, 1999. We noted in that opinion that
the termination of parental rights must be based on a finding of clear and convincing evidence
establishing grounds for the termination and that the termination is in the best interest of the child.
T.C.A. § 36-1-113 (c)(1)(2) (Supp. 1998). We also noted that pursuant to T.C.A. § 36-1-113 (g)(1),
a ground for termination of parental rights is abandonment by the parent as defined in T.C.A. § 36-1-
102.


                                                 -3-
We stated:
              With regard as to what constitutes abandonment, T.C.A. § 36-
       1-102 (Supp. 1998), as pertinent to our inquiry, provides:

                      (1)(A) “Abandonment” means, 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, 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 make reasonable payments toward the
              support of the child;

                      *               *                *

                     (B) For the purposes of this subdivision (1),
              “token support” means that the support, under the
              circumstances of the individual case, is insignificant
              given the parent’s means;

                      *               *                *

                      (D) For purposes of this subdivision (1),
              “willfully failed to support” or “willfully failed to
              make reasonable payments toward such child’s
              support” means that, for a period of four (4)
              consecutive months, no monetary support was paid or
              that the amount of support paid is token support;

                      *               *                *

                      (G) “Abandonment” and “abandonment of an
              infant” do not have any other definition except that
              which is set forth in this section, it being the intent of
              the general assembly to establish the only grounds for
              abandonment by statutory definition. Specifically, it
              shall not be required that a parent be shown to have
              evinced a settled purpose to forego all parental rights


                                          -4-
                        and responsibilities in order for a determination of
                        abandonment to be made. Decisions of any court to
                        the contrary are hereby legislatively overruled;

                                *               *               *

Bryant v. Bryant, No. 01A01-9806-CV-00337, 1999 WL 43282, *4 (Tenn. Ct. App. Feb. 1, 1999)

        As noted above, we found that there was an abandonment by Respondent as defined by the
statutory provision.

        Subsequent to our decision and subsequent to the evidentiary hearing in the trial court on
remand, our Supreme Court decided the case of In Re: Swanson, 2 S.W.3d 180 (Tenn. 1999), in
which the Supreme Court held that the definitions in the statute of “willfully failed to support,” and
“willfully failed to make reasonable payments toward such child support” would be unconstitutional
because they “in effect create an irrebuttable presumption that the failure to provide monetary
support for the four months preceding the petition to terminate parental rights constitutes
abandonment irrespective of whether that failure was intentional.” Swanson at 188. The Supreme
Court further held that the definition of abandonment under the prior law should be applied before
the legislature made any other provision. Swanson at 189.

      Under the law prior to Swanson, T.C.A. § 36-1-102 (1)(A)(i) (Supp. 1994) defined an
abandoned child as:

                [a] child whose parents have willfully failed to visit or have willfully
                failed to support or make reasonable payments toward such child’s
                support for four (4) consecutive months immediately preceding
                institution of an action or proceeding to declare the child to be an
                abandoned child.

       There is no definition of “willfully failed to support . . .” as contained in the current statute.
Therefore, under the prior law, as noted in Swanson, the definition of an abandoned child contained
an element of intent. In Re: Swanson, 2 S.W.3d 180, fn 14. Because of the change in the law
between the time of the first appeal and the second appeal, we must reconsider the issue of
abandonment.

        While we premised our previous decision on the statutory definition of “willfully failed to
support,” we also reviewed the record concerning the respondent’s activities with regard to support
of his children. The previous opinion states:

                      The record reflects a father who has failed to provide
                monetary support for his children and who has irresponsibly relied
                upon others to raise and support his children. As previously


                                                    -5-
mentioned, Respondent sent his children to live with his father and
stepmother in March 1996 while he and his wife were having marital
difficulties. At no time while the children resided with Petitioners
and he resided in Colorado did Respondent send any monetary
support to his children. While the children resided with Petitioners
and during the time that his wife had ceased residing in the same
household with him, Respondent, as part of his service in the military,
continued to receive extra military benefits for the support of his
family. Rather than send this money to Petitioners to support his
children, Respondent spent the money on himself. Furthermore,
Respondent also received Social Security benefits because of his son's
congenital birth defects. As with the military benefits, Respondent
did not send this money to Petitioners. Rather, Respondent used this
money for his own benefit. Respondent's excuse for not sending such
money to support his children is that Petitioners did not ask for any
money.

        As previously noted, in December 1996, Respondent was
discharged from the military. Upon being discharged, Respondent
moved back to Nashville and moved in with Petitioners and his
children. Petitioners allowed this so Respondent could get back on
his feet in order to be able to support himself and his children.
Respondent soon after became gainfully employed. However, there
is not one episode from the time he moved in in December 1996 until
the time he was requested to move out in May 1997 (footnote
omitted) that Respondent provided any reasonable monetary support
for his children, purchased any groceries for the children, purchased
any diapers or clothing for his children, or purchased any Christmas
or birthday presents for them. In addition, when asked if he would
help with Devon's medical bills, Respondent, on one occasion, stated
he could not afford to pay, and, on another occasion, he simply picked
up the bill and threw it down. However, the evidence reveals that
Respondent had the money to purchase a computer, software, and a
guitar for himself and to maintain monthly Internet service for
himself.

      Furthermore, Respondent admits that he failed to provide any
monetary support to Petitioners for his children. On May 27, 1998,
Respondent testified as follows at the proceedings below:

Q. Since March of 1996, have you paid any monetary support to
Robert or Linda Bryant for the support of your minor children?



                                 -6-
               A. No, I have not.

               Q. Have you paid one dime?

               A. No, I have not.

                      However, Respondent contends that he did provide support
               for his children. As support for this contention, he testified as
               follows:

               Q. Tell the Court some of the ways that you spent money on your
               children during that period of December '96 to May of '97.

               A. I took my kids to Discovery Zone, paid for everything there. I had
               taken them out to eat on occasion. I remember one time I was at--I
               was coming back from Georgia, I stopped in Cracker Barrel, I bought
               Megan a kaleidoscope, I bought Devon a harmonica and brought
               those home to them.

                      According to the plain terms of the statute, this Court views
               Respondent's assertions of support to constitute, at best, mere token
               support.

                       In addition to failing to provide monetary support for his
               children, Respondent failed to provide any other type of support for
               his children. For example, he left the day-to-day care of his children
               in the hands of Petitioners, he spent more time on the computer than
               with his children, he only attended one of Devon's speech therapy
               sessions and only one of Devon's numerous doctor's appointments
               and did so only at the insistence of Petitioners, and he briefly made
               an appearance at the hospital after one of Devon's surgeries.

Bryant, supra, at *4-*5.

         The requirement of intent does not invalidate our finding of abandonment of the minor
children by the Respondent, because the record reflects that Respondent had the means to provide
support for his children but willfully failed to do so. The record evidences an intent on Respondent’s
part to avoid his parental responsibilities. Accordingly, we find, as we did in our previous opinion,
that there is clear and convincing evidence that Respondent has abandoned his minor children,
thereby establishing grounds for termination of his parental rights.
         The second issue presented for review as stated in respondent’s brief is:




                                                 -7-
               2. Whether there is clear and convincing evidence in this record that
               it is in the best interests of the minor children to termiante Mr.
               Bryant’s parental rights.

         Parents have a fundamental right to the care, custody and control of their children. Stanley
v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972); and O'Daniel v. Messier, 905
S.W.2d 182, 186 (Tenn. Ct. App.1995) . However, this right is not absolute and may be terminated
if there is clear and convincing evidence justifying such termination under the applicable statute.
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.Ed.2d 599 (1982). Termination of
parental rights must also be in the best interests of the children.

       Clear and convincing evidence "eliminates any serious or substantial doubt concerning the
correctness of the conclusion to be drawn from the evidence." O'Daniel, 905 S.W.2d at 186.
Parental rights may be terminated only when continuing the parent-child relationship poses a
substantial threat of harm to the child. See Baker, In re, No. W1998-00606-COA-R3-CV, 1999
WL 1336044 *3 (Tenn. Ct. App. Dec. 28, 1999) (citing Petrosky v. Keene, 898 S.W.2d 726, 728
(Tenn.1995)). With regard to whether termination of parental rights is in the best interest of the child
T.C.A. § 36-1-113 (i) (Supp. 1999) states:

                         (i) In determining whether termination of parental or
                guardianship rights is in the best interest of the child pursuant to this
                part, 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) 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;



                                                  -8-
                     (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 other children 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.

The trial court formed the basis for its termination of the parental rights of Sandra Bryant and
Respondent as follows:

              a.)     The father, James Ashley Bryant, cannot be considered a
                      custodial parent to the two children, as the Court has been and
                      continues to be concerned about his parenting skills reflected
                      by his character, attitude and demeanor;

              b)      Respondent admits that he paid no child support in December
                      of 1998, despite the litigation in this matter. He has discussed
                      this case with his young daughter and readily admits that he
                      will violate the retraining order prohibiting such
                      communication if he thinks it necessary. He has violated this
                      Court’s Order on at least two occasions, one occasion being
                      with his present wife;

              c)      The children virtually do not thrive with their father,
                      the Respondent. To allow further interference of this
                      birth father in the way he conducts his life and his
                      irresponsibilities to the children confirm that
                      termination of his parental rights is in the best interest
                      of the children; and



                                                 -9-
               d)      The mother of these children, Petitioner Sandra Bryant, gives
                       her consent to her rights being terminated, as she does not
                       desire to parent her children.

        From a review of the record, we find that the trial court did not err in finding clear and
convincing evidence that the termination of the Respondent’s parental rights is in the best interest
of the children. It is in the best interests of the children that they establish a permanent home with
the adoptive parents. The children currently have a home that appears to be substantially better than
the home that Respondent provided for them prior to their move from Colorado. Respondent argues
that he has rehabilitated himself as a parent, in part, because he has remarried and now lives in a
three bedroom home in a crime free neighborhood. However, the mere fact that a parent has moved
to a new home does not mandate a finding that he has made adequate adjustments to conduct or
conditions. See Baker, at *4 (citing In the Matter of M.W.A., Jr., C.D.A., P.C.A., K.M.A., and
A.K.A., 980 S.W.2d 620, 623 (Tenn. Ct. App. 1998) (“Although the parents have improved their
living conditions with a clean, well-furnished home, they have not demonstrated that their parenting
skills have improved or will likely improve in the near future even with additional support”)).
Additionally, the testimony of Dr. Clayton, Devon’s treating physician, and the testimony of
Petitioners indicates that Respondent continues to be neglectful of Devon’s substantial and ongoing
medical needs. Respondent himself testified that he was unaware of Devon’s last surgery. A
permanent home with the adoptive parents, who have been consistent in their attention to the medical
needs of Devon, and to the daily and emotional needs of both of the children, is in their best
interests.

         Accordingly, we find that Respondent has abandoned the minor children as defined by the
foregoing Tennessee law. We further find that the evidence does not preponderate against the trial
court’s finding of clear and convincing evidence that the termination of Respondent’s parental rights
is in the best interest of the children.

       Accordingly, the judgment of the trial court is affirmed. The case is remanded to the trial
court for such further proceedings as are necessary. Costs of appeal are assessed against the
Appellant, James Ashley Bryant, and his surety.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                -10-
