                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                       Assigned on Briefs, September 29, 2010

In Re: MAYSOON M.A.A.K., and FALASTEEN M.A.A.K., MUHAMMAD
               I.S. and TESSA D. S., v. SONYA G.

                   Appeal from the Juvenile Court for Knox County
                        No. 73062     Hon. Tim Irwin, Judge


            No. E2010-01318-COA-R3-PT - FILED NOVEMBER 3, 2010




Petitioners, custodians of two minor children, filed this action to terminate the mother's
parental rights. Following an evidentiary hearing, the Trial Judge found there was clear and
convincing evidence to support termination, based upon willful failure to support/visit and
persistent conditions. The Court also found that the evidence was clear and convincing that
termination was in the children's best interest. On appeal, we affirm the Judgment of the
Trial Court.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and. D. M ICHAEL S WINEY, J., joined.


Ben H. Houston, II., Knoxville, Tennessee, for the appellant, Sonya G.

Theodore Kern, Knoxville, Tennessee, for the appellees, Muhammad I.S. and Tessa D.S.


                                        OPINION


       Petitioners, Muhammad S. and Tessa S., filed a Petition for Termination of Parental
Rights, seeking to terminate the parental rights of the biological mother, Sonya G., and the
biological father, Muzher A., to twin girls born June 24, 2008.
       Petitioners state that the girls have been residing with petitioners since they were
about four weeks old, and that they have legal custody.

        The Petition avers that Muzher A. was identified by the biological mother as the father
of the twins, but that he was not legally married to the mother when the twins were conceived
or born. The Petition further avers that the father is currently living in Jordan, having been
deported during the mother ’s pregnancy, and that he cannot legally return to the United
States at this time. The Petition avers that he has never seen the twins, and has only sent two
support payments over the last year, totaling $240.00.

         The Petition states that Sonya G., the mother, had the children removed from her care
at birth due to her history of mental problems, including depression and bipolar disorder, and
due to reports by the hospital staff that she appeared incapable of taking care of the children.
According to the Petition, the twins were found to be dependent and neglected on October
31, 2008, and the mother was given supervised visitation. Further, that the mother visited
15 times between June 30, 2008, and December 13, 2008, but she had not visited since that
time, and that the mother has never paid any child support.

       The Petition states that termination should be based on Tenn. Code Ann.
§36-1-102(1)(A), Tenn. Code Ann. §36-1-113(g)(2), and Tenn. Code Ann. §36-1-113(g)(3).
Further, that termination is in the children's best interests.

       A hearing was held on May 21, 2010. The mother and other witnesses, including the
petitioners testified. At the conclusion of the evidentiary hearing, the Trial Court entered
a Final Order Terminating Parental Rights of Sonya G., and made the following findings of
fact:

       Petitioners were members of mother’s religious community and applied for custody
       of the twins to help her. Petitioners have had custody of the twins since they were
       three weeks old and the twins have integrated into petitioners’ family and are thriving.
       The mother’s visits with the twins were supervised, at the mosque, with Tessa S.
       providing supervision from July through October 2008, but the visits were sporadic
       and the mother had difficulty due to reliance on public transportation. Tessa S. tried
       to accommodate her, and in October 2008, the mother switched the visits to the mall,
       and Muhammad S. began providing supervision. There were consistent weekly visits
       in October and November 2008, but in December 2008, the visits were moved to
       Parent Place.

      The Court found that petitioners offered to pay for Parent Place and offered to provide
the mother with transportation there by taxi, but the mother refused and never set up

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visitation. The Court found that the last visit was in December 2008, and the last telephone
contact was in January 2009. The Court held that petitioners could have been contacted by
the mother at any time if she had chosen to do so, and that the mother was not under any
disability that would have kept her from contacting petitioners. The Court found the mother
had never paid any child support for the twins, nor provided food, clothing, or any other
items for them, and that she was not under any disability that would have kept her from
providing some type of support.

       The Court found that clear and convincing evidence existed to support termination
based upon willful failure to support/visit, and for persistent conditions. The Court also
found that the evidence was clear and convincing that termination was in the children’s best
interests.

       The mother has appealed and these issues are raised:

       1.    Did the Trial Court err by terminating the mother’s parental rights based on a
       ground that was not sought by the petitioners nor addressed at trial?

       2.     Did the Trial Court err by relying on inadmissible hearsay evidence despite the
       objections of the mother’s counsel?

       3.     Did the Trial Court err by terminating the mother’s parental rights even though
       the petitioners failed to produce sufficient evidence that the mother willfully failed
       to support her children?

       4.      Did the Trial Court err by terminating the mother’s parental rights even though
       the petitioners failed to produce sufficient evidence that the mother willfully failed
       to visit her children?

       5.     Did the Trial Court err in terminating the mother’s parental rights even though
       the petitioners failed to produce sufficient evidence to establish Tenn. Code Ann.
       §36-1-113(g)(3) as a ground?

       As we have previously stated:

       A biological parent's right to the care and custody of his or her child is among the
       oldest of the judicially recognized liberty interests protected by the Due Process
       Clauses of the federal and state constitutions. While this right is fundamental and
       superior to the claims of other persons and the government, it is not absolute. It
       continues without interruption only as long as a parent has not relinquished it,

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        abandoned it, or engaged in conduct requiring its limitation or termination.

        Termination proceedings in Tennessee are governed by statute. Parties who have
        standing to seek the termination of a biological parent's parental rights must prove two
        things. First, they must prove the existence of at least one of the statutory grounds for
        termination. Second, they must prove that terminating the parent's parental rights is
        in the child's best interests.

In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005)(citations omitted).

       The Supreme Court in In re F. R.R., III, 193 S.W.3d 528 (Tenn. 2006), explained the
standard of review for cases involving termination of parental rights:

        This Court must review findings of fact made by the trial court de novo upon the
        record "accompanied by a presumption of the correctness of the finding, unless the
        preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). To terminate
        parental rights, a trial court must determine by clear and convincing evidence not only
        the existence of at least one of the statutory grounds for termination but also that
        termination is in the child's best interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn.
        2002) (citing Tenn.Code Ann. § 36-1-113(c)). Upon reviewing a termination of
        parental rights, this Court's duty, then, is to determine whether the trial court's
        findings, made under a clear and convincing standard, are supported by a
        preponderance of the evidence.

Id. at 530.

        The Trial Court found the mother had abandoned the children as a ground for
termination, both by willful failure to support and by willful failure to visit. "Abandonment"
is defined in Tenn. Code Ann. § 36-1-102(1)(A)(i) as follows:

        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.

        As the Supreme Court has observed, "Certainly, a parent who has abandoned his child,
either by willfully failing to visit or by willfully failing to support, is unfit." In re Swanson,
2 S.W.3d 180, 188 (Tenn. 1999). The abandonment must be willful, however, and where a

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parent has been thwarted in visitation efforts, the courts have refused to find willful
abandonment. See, e.g., In re D.A.H., 142 S.W.3d 267, 277 (Tenn.2004).

        We have previously explained that the "[f]ailure 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. 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." In re Audrey S., at 864.

        In this case, the mother testified that she was unable to visit the children because the
petitioners insisted on moving the visits to Parent Place, which she could not afford. She
admitted that they offered to pay for this visitation at Parent Place and even offered to pay
for her to take a taxi over there, but stated that she did not want to accept assistance from
them because she was afraid they would later sue her to get this money back. The mother
claimed that she could not contact petitioners after January 2009 because she tried to call and
their phone number had been changed. The mother’s neighbor, Ms. Bailey, testified that the
mother had tried to use her phone and told her that petitioner’s number had been changed.

        Petitioners, on the other hand, testified that their phone number was the same from
October 2008 forward, that the mother had always had this number, and that it had not
changed. The proof was undisputed that their phone number was listed in the local phone
directory. Moreover, petitioners explained their reasons for wanting to change the visits to
Parent Place (which was expressly provided for in the Court’s order dated October 31, 2008),
and testified that they offered to pay the cost of the same for the mother, as well as provide
her with transportation to get there. Petitioners testified that they encouraged the mother to
see the babies, tried to accommodate her schedule, transportation issues, etc., and did nothing
to thwart her visits with her children. Petitioners testified the mother’s visitation was always
intermittent, and that when asked to go to Parent Place, she simply refused.

        Abandonment inquires are heavily fact-driven and the courts "may consider any fact
that assists them in deciding whether the parent's conduct demonstrates a conscious or willful
disregard of all of his parental duties." In re Satterwhite, 2001 WL 387389 (Tenn. Ct. App.
Apr. 17, 2001). The trial court is in the best position to assess the credibility of the
witnesses, and the "weight, faith, and credit to be given to any witness's testimony lies in the
first instance with the trier of fact. Therefore, such determinations are entitled to great
weight on appeal." Id.

       The Trial Court credited the petitioners’ testimony on these issues. Petitioners


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claimed that they had made every effort to facilitate and encourage the mother’s visitation
with the twins, that they had accommodated her schedule, transportation issues, etc., and
were willing to continue doing so had she pursued visitation. They did ask that the visits be
changed to Parent Place, as provided by the Court ’s prior Order, due to the mother’s
tendency to become upset and emotional and act out in public during the visits.

        The mother admitted that she was offered assistance by petitioners but refused it. She
admitted that she did not contact DCS or the Court to try and set up visitation with her
children. The proof is undisputed that petitioners were always listed in the phone directory,
and thus the mother could have reached them had she tried. Further undisputed proof
revealed that she did nothing and contacted no one to try to re-establish visitation with her
children for more than four months preceding the filing of the petition. The Trial Court did
not err in finding the mother could have visited the children if she had tried, and that she had
willfully failed to do so. This ground for termination was shown by clear and convincing
evidence.

       The proof was also undisputed that the mother never provided any financial support
for these twins.

       The proof supports the Trial Court’s finding that the mother willfully failed to support
the twins, as well as the ground of abandonment by willful failure to visit, which was clearly
established. Accordingly, the existence of any one ground for termination is enough. In re
Valentine, 79 S.W.3d 539 (Tenn. 2002).

      The mother argues that the Trial Court erred by basing its decision to terminate on the
ground of persistence of conditions, when same was not proven by clear and convincing
evidence and was not relied on by petitioners at trial. The ground was alleged in the Petition,
however, and evidence regarding the ground was adduced at trial. Tenn. Code Ann.
§36-1-113(g)(3) sets forth the grounds regarding termination.

        The Trial Court found that this ground was proven by clear and convincing evidence,
because the children had been in the custody of petitioners for nearly two years, and the
mother had failed to comply or had complied only in a token fashion with the requirements
listed in the October 2008 order for obtaining unsupervised visitation.

       The court order regarding these children provided that they were removed from the
mother’s custody because she had an older child that DCS was constantly involved with, to
which the mother eventually surrendered her rights, and because there were allegations
regarding the mother’s mental health. The Court found the mother lacked financial resources
to support the children, and that the father was in Jordan and only made infrequent, token

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support payments. The Court considered the mother’s psychological evaluation and
parenting assessment, and determined that the risk of negligent care by the mother was too
great to leave the twins in her custody.

       The proof at trial demonstrated that the mother had done none of the things required
of her even for unsupervised visitation, much less to try and regain custody.

        While the mother argues that she was "ready to be reunified with her children" and
had shown such to the Court by maintaining her subsidized housing for two years and
enrolling in school, this did not obviate the need for her to follow the Court’s prior order to
show that she was trying to merely gain unsupervised visitation. The mother offered no
explanation for failing to attend a parenting class, for failing to find even a part-time job, or
for failing to follow the Court’s order regarding mental health treatment. Moreover, the
mother had done nothing whatsoever to gain unsupervised visitation, or gain custody of her
children. Thus, there was clear and convincing evidence demonstrating persistent conditions
pursuant to Tenn. Code Ann. §36-1-113(g)(3).

        Next, the mother argues that the Trial Court erred in relying upon a chart regarding
visitation prepared by Tessa S., as it contains inadmissible evidence. This issue is moot,
however, as Mr. and Mrs. S. testified regarding the visitation at great length, and this chart
is merely cumulative of their testimony.

        Finally, the mother argues that termination was not shown to be in the children’s best
interests. The mother did not show that she had made such adjustments of circumstances that
it would be safe for the children to be with her, and had failed to effect a lasting adjustment
after two years of removal. She had not maintained regular visitation or contact, and did not
have a meaningful relationship with the twins. A change of caretakers and physical
environment could likely be very detrimental to these young children, who had been with
petitioners since birth and were bonded with them and their children. Considering all of the
foregoing factors established by the evidence, the Trial Court did not err in concluding that
termination was in the children's been interest.

       The Judgment of the Trial Court is affirmed and the cause remanded, with the cost of
the appeal assessed to Sonya G.




                                                     _________________________________
                                                     HERSCHEL PICKENS FRANKS, P.J.


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