                                                                                                             05/17/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                 Assigned on Briefs April 3, 2018

                                    IN RE JUSTIN P., ET AL.

                     Appeal from the Chancery Court for Moore County
                             No. 136A    J. B. Cox, Chancellor
                         ___________________________________

                                No. M2017-01544-COA-R3-PT
                            ___________________________________


This is a termination of parental rights case. Appellant/Mother appeals the trial court’s
termination of her parental rights on the ground of: abandonment by willful failure to
visit. Appellant also appeals the trial court’s finding that termination of her parental
rights is in the children’s best interests. Because Appellee/Father thwarted Appellant’s
attempts to visit the children, we conclude that Appellees failed to meet their burden to
show, by clear and convincing evidence, that Appellant abandoned the children.
Accordingly, we reverse the order terminating Appellant’s parental rights.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Kathryn P.

Melissa L. Thomas, Fayetteville, Tennessee, for the appellees, Dennis P. and Rebecca P.


                                                OPINION

                                             I. Background

      Appellant Kathryn P. (“Mother”) is the mother of J.L.P. (d/o/b August 1997),
K.R.P. (d/o/b August 1998), D.C.P. (d/o/b/ October 2001), and M.J.P. (d/o/b September
2010) (together, the “Children”).1 Dennis P. (“Father”) is the Children’s father. Mother
        1
           In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
and Father were divorced on September 4, 2013. Father has since remarried to Rebecca
P. (together with Dennis P., “Appellees”).2

       In connection with their divorce, Mother and Father entered into a permanent
parenting plan for the Children. In relevant part, the plan designates Father as the
Children’s primary residential parent and grants Mother 140 days per year of visitation.
The plan also includes a “special provision,” stating that: “The parties will not consume
alcohol and/or drugs in the presence of the minor children. If mother begins drinking or
becomes abusive during residential sharing, the children may call the father to pick them
up.”

        On April 10, 2015, Appellees filed a motion to terminate Mother’s parental rights
on the ground of abandonment by willful failure to visit.3 The petition stated that Mother
last visited the Children “in the month of August of 2014.” On May 1, 2015, Mother
filed an answer, wherein she denied the material allegations of the petition. The trial
court appointed a guardian ad litem by order of September 13, 2016. A hearing was held
on March 27, 2017. The trial court set out its findings of fact in a memorandum opinion
entered on April 17, 2017. On July 3, 2017, the trial court entered its order terminating
Mother’s parental rights on the sole ground of abandonment by willful failure to visit.
We note that, by the date of the hearing in this case, the two older children, J.L.P. and
K.R.P., had reached the age of majority. Accordingly, the trial court’s order terminates
Mother’s parental rights only as to the younger children, D.C.P. and M.J.P. As such,
Mother’s parental rights vis-à-vis J.L.P. and K.R.P. are not the subject of this appeal.
Mother appeals only the termination of her parental rights as to D.C.P. and M.J.P.

                                              II. Issues

        Appellant raises two issues for review as stated in her brief:

        1. Whether the Appellees proved by clear and convincing evidence that the
        Appellant failed to support, visit and/or abandoned the minor child for four
        (4) consecutive months preceding the filing of the termination petition as
        defined by Tenn. Code Ann. § 36-1-102(1)(A)(i).

        2. Whether there is sufficient evidence to support the trial court’s finding
        that termination of parental rights is in the best interest of the minor
        children.



        2
        Appellees did not file a responsive brief in this appeal.
        3
        The petition also avers abandonment by willful failure to support. The trial court found that this
ground was not met, and Appellees have not appealed this ruling.
                                                  -2-
                                 III. Standard of Review

        Under both the United States and Tennessee Constitutions, 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 when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes 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., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and that termination is in the child’s best interest. Tenn. Code
Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).

       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, 455 U.S. at 769. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-
113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes
that the truth of the facts asserted is highly probable ... and eliminates any serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.” In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July
12, 2004). Such evidence “produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the facts sought to be established.” Id. at 653.

       In light of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).

                     IV. Abandonment by Willful Failure to Visit

       The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of abandonment by willful failure to visit
pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) and Tennessee Code
                                          -3-
Annotated Section 36-1-102(1)(A)(i).       In pertinent part, Tennessee Code Annotated
Section 36-1-113(g) provides:

       (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:
       (1) Abandonment by the parent or guardian, as defined in § 36–1–102, has
       occurred . . .

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part, as follows:

       (1)(A) For purposes of terminating the parental or guardian rights of a
       parent or parents or a guardian or guardians 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 or parents or the guardian or guardians of the child who is the
       subject of the petition for termination of parental rights or adoption, that the
       parent or parents or the guardian or guardians . . . have willfully failed to
       visit . . .


Tenn. Code Ann. § 36-1-102(1)(A)(i).

        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 Tennessee
Code Annotated Section 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
immediately preceding the filing of the petition to terminate his or her parental rights. In
In re Audrey S., this Court discussed willfulness in the context of termination of parental
rights 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
                                            -4-
      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.


In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005 (internal citations and
footnotes omitted). “Whether a parent failed to visit or support a child is a question of
fact. Whether a parent’s failure to visit or support constitutes willful abandonment,
however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d 636, 640
(Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007)). As previously discussed, this Court reviews questions of law de novo with no
presumption of correctness. Id.

      In its memorandum opinion, the trial court made the following, relevant findings
concerning Mother’s abandonment by willful failure to visit:

      12. [Mother] was entitled to 140 days a year of residential sharing pursuant
      to the Permanent Parenting Plan.
      13. After the children had reported to [Father] that [Mother] had
      endangered them with her conduct related to her drinking, [Father]
      unilaterally stopped her visitation.
      14. [Father] later offered [Mother] supervised visitation to occur at a public
      place, and this visitation occurred for only a short period and then ceased
      when [Mother’s] relatives behaved inappropriately.
      15. [Mother] has not seen the children since that time.
      16. [Mother] last visited the children in August of 2014.
      17. [Mother] came to the oldest two children’s graduations.
      18. [Mother] had the ability to visit with the children.
      19. [Mother] has not taken [Father] back to court to obtain residential
      sharing time.

        Although Mother does not dispute that she last visited the Children in August of
2014, she argues that her failure to visit was not willful because her efforts were
frustrated by Father. In response to Mother’s allegation that Father thwarted her
visitation, the trial court made the following, relevant findings:

                                          -5-
              [Mother] complains that she has been obstructed and prohibited from
      visiting the children by [Father]. However, the proof does not bear out this
      assertion. While it is true that the Father unilaterally curtailed [Mother’s]
      visitation without the benefit of a court order and without going back to
      court to solidify his rights by way of an order, he did not totally eliminate
      [Mother’s] opportunity to visit with her children. To the contrary, Father
      extended the opportunity to visit with the children in a controlled
      supervised setting. At first [Mother] did visit with the children under this
      arrangement. However, when her family caused a scene and disrupted the
      visitation which caused the Father to terminate the visit, [Mother] never
      again attempted to visit with the children . . . . She clearly had the ability to
      visit the children. She made a knowing choice not to visit. She was a free
      agent in this choice.
              [Father] did not go about limiting [Mother’s] residential time in the
      most legally expedient way, and he should have obtained a court order to
      limit her time. However, even the parenting plan gave him the right to
      curtail the visitation if the children perceived that [Mother’s] drinking was
      a problem. Basically, that is what he did. The children were in danger and
      he protected them from [Mother]. Even then [Father] tried to cooperate and
      offered [Mother] residential sharing with supervision for the children.
      [Mother] and her family messed up the opportunity, intimidated and
      physically pressured the oldest child, and behaved in a manner that Father
      should have terminated residential sharing. Further attempts at supervised
      residential sharing were refused by the mother. The Court is clearly
      convinced that [Mother] had the opportunity to [visit] with supervision and
      willfully refused to visit under those conditions. Further, [Mother] did not
      go back to Court to obtain sharing time with the children.

      Indeed, this Court has held that

      [f]ailure to visit ... 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 ... develop a relationship with the child[.]

In re Muir, No. M2004-02652-COA-R3-CV, 2005 WL 3076896 (Tenn. Ct. App. Nov.
16, 2005) (internal citations omitted). When applying this standard, we have stated:

      Conduct that amounts to a significant restraint or interference with a
      parent’s efforts to support or develop a relationship with a child includes
      (1) telling a man he is not the child’s biological father, (2) blocking access
      to the child, (3) keeping the child’s whereabouts unknown, (4) vigorously
      resisting the parent’s efforts to support the child, or (5) vigorously resisting
                                            -6-
       a parent’s efforts to visit the child.

In re S.M., 149 S.W.3d 632, 642 n.18 (Tenn. Ct. App. 2004) (citing In re S.A.B., 735
So.2d 523, 524 (Fla. Dist. Ct. App. 1999)).

       As set out in context above, the trial court found that “even the parenting plan
gave [Father] the right to curtail the visitation if the children perceived that [Mother’s]
drinking was a problem.” The parenting plan, which was admitted into evidence as Trial
Exhibit 4, actually provides:

       The parties will not consume alcohol and/or other drugs in the presence of
       the minor children. If Mother begins drinking or becomes abusive during
       residential sharing, the children may call the Father to pick them up.

Contrary to the trial court’s finding, this special provision does not give Father the right,
without court approval, to unilaterally stop Mother’s visitation, nor does it give Father the
authority to convert her unsupervised visitation to supervised visitation and then to use
her failure to visit as a ground to terminate her parental rights. Rather, the parenting plan
provision simply gives Father the right to pick the Children up early from visitation if
Mother is drinking and the Children call him. Turning to the record, although Mother
conceded that she abused alcohol during her marriage to Father, she testified that she no
longer drinks. The Children’s respective testimony corroborates Mother’s statement.
When asked, “Did your mom drink while y’all were over there,” J.L.P., the oldest child,
testified, “Not that I know of, no.” The oldest daughter, K.R.P., was asked whether
Mother “continue[d] to drink when you went over there,” and she answered, “Not that I
know of.” Likewise, D.C.P. testified, in relevant part, as follows:

       Q. Okay. Now, did she drink in front of you at that house?

       A. No.

       Q. Okay. Did you ever feel threatened by anyone, that you were going to
       be hurt or harmed while you were there?

       A. No.

       Q. Were you able to call your dad at any point while you were there?

       A. Once.

D.C.P. further testified that he did not know why his Father stopped his visits with
Mother. Both J.L.P. and K.R.P. testified that neither had ever called Father to be picked
up from visits at Mother’s home. Rather, K.R.P. testified that:
                                          -7-
      Q. . . . You know there’s nothing in the visitation order to stop visitation.
      You understand that?

      A. Yes.

      Q. And that your dad basically quit letting y’all go; is that right?

      A. It wasn’t his decision. He didn’t let us quit.

      Q. Okay.

      A. We told him that we didn’t want to go back there.

      Q. So he was letting y’all make the decision?

      A. I mean, it was kind of half and half.

      Q. So half dad saying that you don’t have to go and half you saying that
      you’re not going.

      A. He said that if we didn’t want to go, we didn’t have to go.


      During his testimony, Father readily admitted that he stopped Mother from visiting
the Children. Specifically, he testified:

      Q. And in that parenting plan, the mother was given 140 days and you
      were given 225 days, correct?

      A. Yes.

                                           ***

      Q. And that was—visitation was happening from August 7, 2013, until
      when?

      A. It would have been the end of July of ’14.

      Q. And why did it stop?

      A. Because when they came back from that two weeks that we had, the
      alternate two weeks over the summer, and when they came back from that
      two weeks, there were things going on that were brought to my attention,
                                        -8-
       and I just felt that it was not safe for them to be there unsupervised . . .

                                             ***

       Q. So what you did when you didn’t feel safe, then you came back to the
       courthouse, you filed something to get her supervised visitation?

       A. No.

       Q. You’ve never been back to court, have you?

       A. No, sir.

Despite Father’s admission that he stopped Mother’s visitation without first seeking to
modify the parenting plan through legal channels, the trial court appears to place the onus
of litigation on Mother. As set out above, the trial court decision to terminate her
parental rights was based, in part, on its finding that “[Mother] has not taken [Father]
back to court to obtain residential sharing time.” This Court has previously held that an
adoption agency’s position that the biological parent “litigate if he [or she] desired to
develop a relationship with [the] child” was a substantial restraint on the parent’s efforts
to maintain a relationship with the child and the interference excused the biological
parent’s failure to visit. In re S.M., 149 S.W.3d 632, 642 (Tenn. Ct. App. 2004).
Accordingly, the fact that Mother did not seek visitation through court intervention
should not weigh against her.

        The trial court also faults Mother for not agreeing to Father’s unilateral decision to
convert her court-granted, unsupervised visitation to supervised visitation. As set out in
context above, the court found that Father “tried to cooperate and offered [Mother]
residential sharing with supervision for the children. [Mother] and her family messed up
the opportunity, intimidated and physically pressured the oldest child, and behaved in a
manner that Father should have terminated residential sharing.” There is nothing in the
record to establish Father’s authority to make the determination for supervised visitation.
Furthermore, the trial court also appears to fault Mother for the actions of her family
members. While the record reveals that Mother’s family members made certain
offensive hand gestures toward Father at a park where Mother was to exercise visitation,
under Father’s supervision, it is not clear that Mother engaged in this behavior. As
Father stated in his testimony: “[Mother’s] aunt and cousin would be in the car behind us
yelling obscenities at us and flipping us the bird through the windows and stuff like that .
. . .” The bad acts of others in her family should not weigh against Mother.

      The Tennessee Supreme Court has held that a parent who attempts to visit and
maintains a relationship with the child, but is “thwarted by the acts of others and
circumstances beyond [her] control,” cannot be found to have willfully abandoned the
                                         -9-
child. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007); In re F.R.R., III,
193 S.W.3d 528, 530 (Tenn. 2006). However, as noted above, “[a] parent’s failure to
visit may be excused by the acts of another only if those acts actually prevent the parent
from visiting the child or constitute a significant restraint or interference with the parent’s
attempts to visit the child.” In re M.L.P., 281 S.W.3d 387, 393 (Tenn.2009) (citation
omitted). Thus, a parent’s failure to visit is willful when it is “the product of free will,
rather than coercion.” In re Audrey S., 182 S.W.3d at 863. Turning to the record, there
is evidence that, even after Father refused to allow the Children to visit Mother, she
continued to call Father’s house to speak with them. Father testified, in relevant part,
that:

       Q. And how many times has she called you and asked to talk to the kids
       and you haven’t let the kids return her call?

       A. I don’t know that there has been.

       Q. You don’t—[Mother’s] never called you since you quit letting her have
       visitation?

       A. She’s called a few times.

       Q. Okay. And did she talk to the kids?

       A. She talked to them a few times, yes . . . . I let them talk to her a few
       times when she was—when she called. And then after I told her that we
       could do a supervised visitation on weekends, and then she told me that she
       wasn’t going to do that and then quit corresponding.

J.L.P. also testified that Mother would call Father’s house “like once a week I guess,
twice a week maybe,” and the Children would talk with her. Mother testified that, since
that time, Father has blocked her from calling his cellular telephone. In addition to the
attempted telephone communication, it is undisputed that Mother attended the high
school graduations of the two older children. Pictures of these events, showing Mother
with the Children, were admitted into evidence.

       From the totality of the circumstances, we conclude that the evidence shows an
effort on part of the Appellees to interfere with Mother’s right to see her Children or to
communicate with them. As a result, there is much animosity between Mother and the
Appellees. The Tennessee Supreme Court has held that antagonism between biological
parents and legal guardians may excuse a failure to visit. See In re Adoption of A.M.H.,
215 S.W.3d 793, 810 (Tenn. 2007) (“Where, as here, the parents’ visits with their child
have resulted in enmity between the parties . . . the evidence does not support a ‘willful
failure to visit’ as a ground for abandonment.”). By virtue of the parenting plan, the
                                           - 10 -
Appellees were clearly aware that Mother had been awarded reasonable, unsupervised
visitation rights with the Children, and their unilateral decision to stop visitation, or only
to allow Mother access to the Children when Father was present, has created “a
significant restraint or interference with [Mother’s] attempts to visit the [C]hild[ren].” In
re M.L.P., 281 S.W.3d at 393. Accordingly, we conclude that the evidence does not
clearly and convincingly establish that Mother has abandoned these Children by willful
failure to visit. Having determined that the sole ground for termination of Mother’s
parental rights is not met, we do not reach the issue concerning the Children’s best
interests.
                                       V. Conclusion

       For the foregoing reasons, we reverse the trial court’s order terminating
Appellant’s parental rights to D.C.P. and M.J.P. The case is remanded for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the
appeal are assessed to the Appellees, Dennis P. and Rebecca P., for all of which
execution may issue if necessary.




                                                     _________________________________
                                                     KENNY ARMSTRONG, JUDGE




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