                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON
                                        OCTOBER 11, 2007 Session

                                     IN THE MATTER OF M. L. P.

                        Direct Appeal from the Juvenile Court for Shelby County
                                No. P9221   Herbert Lane, Special Judge



                            No. W2007-01278-COA-R3-PT - Filed April 8, 2008


                                                   DISSENT
                                           ________________________

HOLLY M. KIRBY, J., dissenting:

       I must respectfully dissent from the majority opinion in this case, on the grounds that the
proof does not support a finding of willful abandonment by the Father.1 Specifically, there is no
evidence that the Father was aware of his duty to visit, a necessary element of willfulness.

        In the proceedings below, after the trial court listened to all of the witnesses, it adjourned in
order to permit the attorneys to submit caselaw and any additional arguments on the termination
petition. When the trial judge resumed the proceedings, the attorney for Father moved to dismiss
the petition to terminate on the grounds that Father had never been advised of the requirements of
Tennessee’s abandonment statute. He contended that, had the Department of Children’s Services
(“DCS”) been involved with the child at issue, DCS would have advised Father regarding the
abandonment statute, and the Petitioners’ failure to do so amounted to a violation of his
constitutional rights to equal protection and due process.

       Without commenting on Father’s argument, the trial court dismissed the petition to terminate
on another ground. The trial judge first observed:

         I am concerned that the father was not an original party to the Dependency and
         Neglect case . . . . He’s not been found to be a neglectful parent. This termination
         is proceeding without any finding that he’s unfit in any way, or that the child will
         suffer substantial harm if the child is placed back in his custody.




         1
             I agree with the majority’s holding that Mr. and Mrs. Herring, “Great Aunt and Uncle,” did not have
standing to file a petition to terminate Father’s parental rights .
The trial court noted that there had been little evidence on Father’s ability to pay child support, and
made no finding related to child support.

        The trial court then issued its oral findings on whether Father “abandoned” the child by
willfully failing to visit:

         It’s clear to me that up until the time that the child went into the custody of the aunt
         and uncle here, that [Father] was in fact attempting visitation with the – Mrs. Duvall,
         the grandmother. The testimony was that when he attempted to contact these parties
         for visitation they said, no, we don’t think it’s in the child’s best interest. Then
         everybody was serving him with a court action, which here we are today. It would
         seem to me that these parties have in fact frustrated any attempt that this young man
         would have had toward visitation with the child. So, I cannot therefore say that he
         has abandoned the child within the meaning of the law.
                                                     ***
         . . . [A]s to this Termination Petition, I don’t feel good about it. I don’t think that you
         have shown the grounds sufficient for me to say that he has abandoned all attempts
         to be a parent or abrogated all his responsibilities to this child. I just feel that he has
         been frustrated in any attempt to visit with the child and because of that I do not feel
         that his actions were willful. Therefore this termination Petition will be dismissed.

       Thus, the trial court found that Father’s efforts at visitation were frustrated by the child’s
guardians, i.e., that he had a “justifiable excuse” for not visiting. In re Audrey S., 182 S.W.3d 838,
864 (Tenn. Ct. App. 2005). Because the trial court found no willful abandonment on this basis, it
was not necessary for the trial court to address any other element of willfulness or to address Father’s
argument that lack of notice of his duties and the consequences of failing to perform his duties under
Tennessee’s parental termination statute violated his constitutional rights to equal protection and due
process.

        On appeal, after reviewing the evidence, the majority emphasizes that “the element of
willfulness is essential, and central to the determination of abandonment.” It notes the meaning of
“willfulness” as set forth in prior caselaw: “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 at 864
(emphasis added) (citing In re M.J.B., 140 S.W.3d at 654). It acknowledges that “demeanor and
credibility . . . play an important role in determining intent” and that “trial courts are the proper
courts to make a determination of willfulness.”2

         2
           The majority states: “As a question of law, the trial court’s ruling that the facts of this case do not
sufficiently support the termination ground of willful abandonment is reviewed de novo with no presumption of
correctness.” (emphasis added.) The majority cites In re Adoption of A.M.H., 215 S.W .3d 793, 810 (Tenn. 2007).
This attribution to A.M.H. is not entirely accurate; the Supreme Court’s statement in A.M.H. is actually the converse.
It states: “As a question of law, the trial court’s ruling that the facts of this case sufficiently support the termination
                                                                                                          (continued...)

                                                           -2-
         The majority then finds that there is no evidence in the record indicating that Father’s efforts
at visitation were frustrated after Great Aunt rebuffed his attempts to contact the child in February
2004, in essence concluding that Father did not have a “justifiable excuse” for not visiting. Having
reached this conclusion, the majority skips over the remaining elements, ultimately making an
affirmative factual finding that Father willfully abandoned M.L.P.

         I cannot agree with this conclusion. In order to find willful abandonment, the Court must
find that the parent was “aware of his or her duty to visit” and nonetheless failed to do so. In re
Audrey S., 182 S.W.3d at 864. This requires a finding that the parent had knowledge that failing to
visit his child for four consecutive months could result in termination of parental rights. In re W.B.,
IV, No. M2004-00999-COA-R3-PT, 2005 WL 1021618 at *11-12 (Tenn. Ct. App., Apr. 29, 2005).

        In In re: W.B. IV, as in this case, DCS was not involved, and the termination petition against
the respondent mother was filed by private parties who sought to adopt the mother’s child. The
mother had a long-term addiction to crack cocaine, and the father was in and out of jail. After the
mother had reportedly subjected the child to unsafe conditions, she agreed to give temporary custody
of the child to an associate of a private ministry, in order to allow the mother to obtain treatment for
her addiction. Id. at *1-3. The mother did not complete the drug treatment program and ended up
incarcerated for a short time. The child’s guardian filed a dependency and neglect petition and was
awarded custody of the child. Id.

       Later, the ministry associate became acquainted with a couple who wished to adopt the child
and, toward that end, custody of the child was given to the prospective adoptive couple. Id. at *3.
The mother was not told of this transfer of custody. Once the mother learned of it, her efforts at
making contact with the child were limited to angry telephone calls to the ministry associate; she
took no legal measures to locate the children or establish visitation. Id. at *1-4. By the time the
prospective adoptive couple filed a petition to terminate the mother’s parental rights, the mother had

         2
             (...continued)
ground of willful abandonment are reviewed de novo with no presumption of correctness.” A.M.H., 215 S.W .3d at
801.

          The distinction between the standard of review as stated by the Tennessee Supreme Court in A.M.H. and
the standard of review as stated by the majority is subtle but significant. W here the trial court has evaluated the
credibility and demeanor of the witnesses and concluded that there is clear and convincing evidence of grounds for
termination, we need only look, de novo, at the aggregate of the evidence and determine if it meets the clear and
convincing standard, giving appropriate deference to the trial court’s assessment of credibility and demeanor. This is
what the Tennessee Supreme Court did in A.M.H.

         In contrast, in this case, the trial court found that grounds for termination were not established by clear and
convincing evidence. For this Court to reverse that finding and hold that grounds have been established, as the
majority does here, necessitates that this Court make an affirmative factual finding of willfulness that goes against
the direction of the trial court’s assessment of the witnesses’ credibility and demeanor. Moreover, such an
affirmative finding must comport with the “clear and convincing evidence” standard. This is considerably more than
the de novo review of the record that was done by the Supreme Court in A.M.H.



                                                          -3-
not seen the children for almost ten months. The trial court found that the mother had willfully
abandoned her children by failing to visit or support them and terminated her parental rights on that
ground. Id. at *6. The mother appealed.

        The appellate court in W.B. IV found that the evidence did not amount to “clear and
convincing” evidence that the mother’s failure to visit or pay support was willful, and thus reversed
the trial court’s termination of her parental rights. Id. at *12. Its holding was discussed by the
dissent to the opinion of the intermediate appellate court in In re Adoption of A.M.H., No. W2004-
01225-COA-R3-PT, 2005 WL 3132353 (Tenn. Ct. App. 2005):

               The appellate court in In re W.B., IV recognized that the children had not
       been taken into State custody by DCS, rendering inapplicable the statutes requiring
       DCS to explain to the biological parent the definition of abandonment and the criteria
       for termination of parental rights. Id. at *11 (citing T.C.A. § 37-2-403(a)(2) (Supp.
       2004)). Nevertheless, the court emphasized, “Mother’s knowledge of a duty or
       expectation that she provide support and visit is a factor in determining willfulness.”
       Id. The court stated, “Nothing in the record indicates Mother was informed by
       anyone that her failure to visit or support the children for four consecutive months
       could result in termination of her parental rights.” Id. at *12. On these facts, the
       appellate court concluded that the evidence did not rise to the level of “clear and
       convincing” that the mother’s failure to visit her children during the four months
       immediately preceding the filing of the petition was willful.
                                                ***
               Although In re W.B., IV was decided after the trial court below rendered its
       decision, its reasoning is applicable here. In any case in which the court is asked to
       terminate parental rights, the definition of willfulness remains the same, regardless
       of the involvement of DCS. Indeed, the legislature’s designation of DCS as having
       a duty to inform the biological parent that failure to support or visit could result in
       the termination of parental rights indicates the legislature’s intent that willfulness
       involve the abrogation of a known duty. This supports the conclusion in In re W.B.,
       IV that, even if DCS did not take the child into custody, in order to prove willfulness,
       the petitioner must show that the biological parent had some understanding of the
       consequences of his action or failure to act.

Id. at *102-03 (footnotes omitted). See also In re K.C. Jr., 2005 WL 2453877, at*10-11 (no
abandonment by failure to support where the parent was not informed that failing to pay support put
her parental rights at risk).

         As in W.B, IV, nothing in the record in the case at bar indicates that Father was informed by
anyone at any time that his failure to visit M.L.P. for four consecutive months could result in the
termination of his parental rights. Father’s lack of knowledge of the potential consequences of
failing to visit is important in determining whether his failure to visit during the four-month period
preceding the petition was willful.


                                                 -4-
         Despite its acknowledgement that willfulness can only be found where the parent “is aware
of his or her duty to visit,” the majority does not address this element and indeed does not discuss
or even cite In re W.B. IV. In W.B., IV, the parent’s lack of knowledge of the consequences of her
failure to visit was determinative in the Court’s holding that the record did not support a finding of
willful abandonment. Given the lack of evidence of such notice in the record below, the same should
hold true in this case.

        Therefore, I disagree with the majority’s conclusion that clear and convincing evidence in
the record establishes that Father’s failure to visit M.L.P. amounted to willful abandonment under
Tennessee’s statutes governing termination of parental rights. I would hold that the Petitioners did
not carry their burden of proving, by clear and convincing evidence, that Father willfully abandoned
M.L.P. by failing to visit him.3 Therefore, I would affirm the trial court’s holding that grounds for
the termination of parental rights had not been established, and its dismissal of the Petition.4

          Accordingly, I respectfully dissent.




                                                           __________________________________________
                                                           HOLLY M. KIRBY, JUDGE




          3
              This holding would pretermit the constitutional issue raised by Father in the trial court below and on this
appeal.

          4
         As noted in the dissent to the opinion of the intermediate appellate court in In re Adoption of A.M.H., our
Supreme Court or our Legislature should address the issue in this dissent, in order to ensure confidence in the fair
and consistent application of the law.

                                                              -5-
