                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    May 18, 2004 Session

                                    IN RE: DMD & JLA

                 Direct Appeal from the Chancery Court for Shelby County
            No. CH-03-0382-1 and CH-03-0383-1     Walter L. Evans, Chancellor



                     No. W2003-00987-COA-R3-PT - Filed June 17, 2004


The trial court denied Appellants’ petition for termination of Mother’s parental rights and returned
physical custody of children to Mother. We reverse and remand for determination of whether
termination is in the best interests of the children. We vacate the order returning physical custody
to Mother.


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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and DAVID
G. HAYES, SP . J., joined.

Melissa C. Berry, Memphis, Tennessee, for the appellants, Charlotte Diane Asbridge and Hugh
Michael Asbridge.

Virginia M. Alexander, Memphis, Tennessee, for the appellee, Amy Michelle Darby (Asbridge).

                                            OPINION

       This is a termination of parental rights and child custody case. In February and April 2002,
the Juvenile Court of Shelby County determined that the children in this case, DMD (born November
24, 1998) and JLA (born January 25, 2001), respectively, were dependent and neglected and without
proper guardianship in that their mother, Amy Michelle Darby (Asbridge) (“Mother”) was unfit and
abused drugs. Hugh and Charlotte Asbridge (Asbridges), the children’s paternal aunt and uncle,
were granted temporary custody of the children. The children’s father was incarcerated at the time.
Mother did not appeal the custody determination. In February 2003, Asbridges filed a petition to
terminate Mother’s parental rights and to adopt DMD and JLA, then ages four and one.

      The termination of parental rights matter was heard in late March and early April 2003 in the
Chancery Court for Shelby County. The trial court denied the termination petition, and ordered
custody of the children returned to Mother following a transitional period. The trial court denied
Asbridges’ request that Mother’s visitation be supervised in Tennessee during this transitional
period. Accordingly, it denied the petition for adoption and entered an order for visitation. The trial
court also denied Asbridges’ motion to stay pending appeal.

        Asbridges filed their notice of appeal and application for extraordinary relief to this Court
on April 24, 2003. On April 25, 2003, we granted Asbridges’ application and granted their motion
to stay pending appeal. However, following Mother’s response, this Court held the trial court did
not err by denying the stay and lifted it accordingly.

                                           Issues Presented

        Asbridges raise the following issues, as we restate them, for review by this Court:

        (1)     Whether the trial court erred in denying Asbridges’ petition to terminate
                Mother’s parental rights;

        (2)     Whether the trial court lacked subject matter jurisdiction to return physical
                custody of the children to Mother, where juvenile court retained exclusive
                jurisdiction over its prior order granting temporary custody to Asbridges.

                                         Standard of Review

       Our standard of review of a trial court sitting without a jury is de novo upon the record.
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of
correctness as to the trial court’s findings of fact, unless the preponderance of evidence is otherwise.
Tenn. R. App. P. 13(d). However, no presumption of correctness attaches to a trial court’s
conclusions on issues of law. Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn. 2000); Tenn. R. App.
P. 13(d).

       Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code
provides, in pertinent part:

                (c) Termination of parental or guardianship rights must be based upon:
                (1) A finding by the court by clear and convincing evidence that the grounds
        for termination or parental or guardianship rights have been established; and
                (2) That termination of the parent's or guardian's rights is in the best interests
        of the child.

Tenn. Code Ann. § 36-1-113(c)(2001). This section also provides the grounds on which parental
rights may be terminated. The existence of any statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., N.W.W., Z.W.W., & A.L.W.,
37 S.W.3d 467, 473 (Tenn. Ct. App. 2000).


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        A court’s determination to terminate parental rights must be supported by clear and
convincing evidence. Id. at 474. The “clear and convincing evidence” standard is more exacting
than the “preponderance of the evidence” standard, although it does not demand the certainty
required by the “beyond a reasonable doubt” standard. Id. To be clear and convincing, the evidence
must eliminate any substantial doubt and produce in the fact-finder’s mind a firm conviction as to
the truth. Id. Insofar as the trial court’s determinations are based on its assessment of witness
credibility, this Court will not reevaluate that assessment absent clear and convincing evidence to
the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999).

                                  Termination of Parental Rights

        Termination of parental rights requires a two-step analysis. First, the court must determine
by clear and convincing evidence that statutory grounds exist to support termination. If such grounds
are found, then the court must determine whether termination is in the best interest of the children.
Tenn. Code Ann. § 36-1-113(c)(2)(Supp. 2001); M.L.J. v. Johnson, 121 S.W.3d 378, 381 (Tenn. Ct.
App. 2003). In the case now before this Court, Asbridges argue that the trial court erred by failing
to find that clear and convincing evidence supports termination of Mother’s parental rights under
Tennessee Code Annotated § 36-1-113(g)(1)-(3)(2001). They further assert that since grounds for
termination exist, the trial court erred by failing to conduct a best interest analysis.

       The code provides:

                (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the following grounds:
                (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred;
                (2) There has been substantial noncompliance by the parent or guardian with
       the statement of responsibilities in a permanency plan or a plan of care pursuant to
       the provisions of title 37, chapter 2, part 4;
                (3)(A) 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:
                (I) The conditions which led to the child's removal or other conditions which
       in all reasonable probability would cause the child to be subjected to further abuse
       or neglect and which, therefore, prevent the child's safe return to the care of the
       parent(s) or guardian(s), still persist;
                (ii) 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
                (iii) 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.

Tenn. Code Ann. § 36-1-113(g)(1)-(3)(2001).


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      We first consider Asbridges’ argument that clear and convincing evidence establishes that
Mother abandoned DMD and JLA. Under the code,

       “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 have willfully failed to make reasonable
       payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i)(Supp. 2003).

        The element of willfulness is central to our determination of failure to support or visit. See
In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999). This Court recently has noted that, “[f]ailure to
support a child is ‘willful’ when a person is aware of his or her duty to support, has the capacity to
provide the support, makes no attempt to provide support, and has no justifiable excuse for not
providing the support.” In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT, 2004
WL1085228, at *4 (Tenn. Ct. App. May 12, 2004). Willful failure to support does not occur where
a parent is financially unable to provide support. O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.
Ct. App.1995). However, a custodial parent's or third party's conduct does not excuse a biological
parent's willful failure to support or visit unless that conduct actually prevents or significantly
hinders the parent from doing so. In re Adoption of T.A.M, 2004 WL 1085228, at *4. Further,
interference with a parent’s attempts at visitation does not excuse the parent from his obligation to
support the child financially. Id.

        The trial court in this case found Mother had not financially supported DMD or JLA while
they were in the Asbridges’ custody with the exception of two payments, one of $69 and one of $60,
made after termination proceedings had begun. The court further found, however, that Mother had
no means or income to provide support for the children, and that she did not know that she had an
obligation to support them. The trial court found that Mother did not voluntarily relinquish custody
of the children; that she did not fail to attempt to reestablish contact with the children; that she did
not abandon them. The court concluded that there is no proof that Mother is unfit or that substantial
harm will result if Mother’s rights are not terminated.

         Upon review of the record, we find that it is undisputed that Mother neither financially
supported nor visited DMD or JLA while they were in the custody of the Asbridges, except for the
two payments made after the Asbridges had initiated termination proceedings. We must determine
whether the preponderance of the evidence supports the trial court’s findings that Mother was unable
to provide financial support, that she did not know she had an obligation of support; that she did not
fail to attempt to maintain contact with the children. The critical inquiry here is whether Mother’s


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failure to support or visit was willful; whether clear and convincing evidence supports a finding of
abandonment.1

       Mother met the children’s father, Martin Asbridge (Father), in 1998, when she was 16 and
he was in his early 40’s. Father is the biological father of DMD and the adoptive father of JLA.
Father was a drug abuser when he met Mother, and Mother testified that he introduced her to illegal
drugs. Father and Mother had an on-and-off relationship for several years, and married in January
2001. In April 2001, Father began serving a five-year sentence on charges of manufacturing crystal
methamphetamine.

        During this time, Mother also had a relationship with KG. Mother testified that for about
three years her relationship with Father and KG was “ongoing between the two of them.” All three
used illegal drugs, and KG was physically abusive to Mother while the children were present.
Mother testified that KG was arrested in December of 2001, before Asbridges were awarded custody
of DMD, and that she has not seem him since. She further testified that she has not abused illegal
drugs since DMD was placed in Asbridges’ custody in February 2002.

         Mother testified that she maintained telephone contact with DMD from February 2002 until
the Asbridges were awarded custody of JLA in April 2002. She testified that she decided not
continue to telephone following an argument with Asbridges because it was upsetting to DMD. She
testified that she did not receive notice of the custody hearing regarding JLA, but also testified that,
in the meantime, she has moved with “Julio” and notice may have been sent to her prior known
address. At the time of the hearing, Mother was working as a waitress and pregnant with a third
child.

        Mother testified that in 2002, her income was $2,843. She further testified that she did not
send any portion of her income to Asbridges to support the children and that she did not send the
children gifts for Christmas or their birthdays. Mother also testified that, at the time, she did not
know she had an obligation to support the children once they had been placed in Asbridges’ custody,
and that she did not buy gifts because she was pregnant and had no income. Mother testified that
no agency had contacted her regarding available services and that no permanency plan had been put
in place. She also testified that she had been depressed and “down-and-out,” but that, at the time of
the hearing, she was in a stable home and committed relationship with “Ceasar,” and was willing to
attend parenting classes and do whatever was necessary to regain custody of the children.

       We are not insensitive to Mother’s financial difficulties, and mere poverty is not grounds for
termination of parental rights. However, it is undisputed that Mother made absolutely no attempt
to maintain a relationship with DMD and JLA for nearly a year. In addition to making no attempt

         1
          W e review the trial court’s specific findings of fact de novo, presuming each specific finding to be correct
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Then we must determine whether the facts as
found by the trial court or as supported by the preponderance of the evidence clearly and convincingly establish grounds
for termination of parental rights. In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT, 2004 W L1085228, at *3
(Tenn. Ct. App. May 12, 2004)

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to provide even minimal financial support, it is undisputed that Mother failed to visit, telephone,
send small gifts or cards, or in anyway maintain contact with these children. Further, although
Mother testified to one unpleasant telephone conversation with Asbridges, this conversation does
not support a determination that Mother was prevented or significantly hindered from visiting or
maintaining contact with her children.

       The clear and convincing evidence in this case is that Mother not only failed to provide even
minimal financial support, but willfully failed to visit, contact, or in any way fulfill parental duties
toward DMD and JLA for nearly a year. The evidence further establishes that she was neither
prevented nor significantly hindered from doing so by Asbridges. Thus, under Tennessee Code
Annotated § 36-1-113(g)(1), Mother abandoned these children and grounds exist for termination of
her parental rights. We accordingly remand this cause for a determination of whether termination
of Mother’s parental rights is in the best interest of the children.

                                               Custody

         We next consider whether, upon denying Asbridges’ petition for termination of Mother’s
parental rights and adoption, filed as one petition, the trial court properly returned physical custody
of DMD and JLA to Mother. Asbridges assert that, upon denial of their petition to terminate parental
rights, subject matter jurisdiction over issues of custody reverted to juvenile court, which retained
continuing exclusive subject matter jurisdiction over its prior custody order. Mother, however,
submits that, under Tennessee Code Annotated § 37-1-103, upon the filing of the petition for
adoption in chancery court, subject matter jurisdiction over the entire matter was transferred to
chancery court. We agree with Asbridges that subject matter jurisdiction over the custody
determination reverted to juvenile court upon denial of the termination petition.

       Section 37-1-103 of the Tennessee Code provides, in pertinent part:

               (c) When jurisdiction has been acquired under the provisions of this part, such
       jurisdiction shall continue until the case has been dismissed, or until the custody
       determination is transferred to another juvenile, circuit, chancery or general sessions
       court exercising domestic relations jurisdiction, or until a petition for adoption is
       filed regarding the child in question as set out in § 36-1-116(f). However, the juvenile
       court shall retain jurisdiction to the extent needed to complete any reviews or
       permanency hearings for children in foster care as may be mandated by federal or
       state law. This provision does not establish concurrent jurisdiction for any other court
       to hear juvenile cases, but merely permits courts exercising domestic relations
       jurisdiction to make custody determinations in accordance with this part.
       Notwithstanding any other law to the contrary, transfers under this provision shall be
       at the sole discretion of the juvenile court and in accordance with § 37-1-112. In all
       other cases, jurisdiction shall continue until a person reaches the age of eighteen (18),
       except that the court may extend jurisdiction for the limited purposes set out in §
       37-1-102(b)(4)(B) until the person reaches the age of nineteen (19).


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Tenn. Code Ann. § 37-1-103(c)(2001)(emphasis added).

         Mother contends that the phrase “or until a petition for adoption is filed regarding the child
in question as set out in § 36-1-116(f)” stands for the proposition that once any petition for adoption
is filed, jurisdiction over the entire matter automatically is transferred. We disagree.

       Section 36-1-116(f) is found within the portion of the chapter regarding adoption
proceedings. It provides:

                (f)(1) Upon the filing of the petition, the court shall have exclusive
        jurisdiction of all matters pertaining to the child, including the establishment of
        paternity of a child pursuant to chapter 2, part 3 of this title, except for allegations of
        delinquency, unruliness or truancy of the child pursuant to title 37; provided, that,
        unless a party has filed an intervening petition to an existing adoption petition
        concerning a child who is in the physical custody of the original petitioners, the court
        shall have no jurisdiction to issue any orders granting custody or guardianship of the
        child to the petitioners or to the intervening petitioners or granting an adoption of the
        child to the petitioners or to the intervening petitioners unless the petition
        affirmatively states, and the court finds in its order, that the petitioners have physical
        custody of the child at the time of the filing of the petition, entry of the order of
        guardianship, or entry of the order of adoption or unless the petitioners otherwise
        meet the requirements of § 36-1-111(d)(6).

Tenn. Code Ann. § 36-1-116(f)(2001).

        This section must be read in context with the entire statutory scheme governing termination
or surrender of parental rights and adoption. The petition referred to in section 36-1-116(f) is the
petition for adoption. Further, this petition must state, inter alia, that there has been full compliance
with the law regarding surrender of the child or termination of parental rights, or that the petitioner
intends to effect compliance with requirements for termination of parental rights as part of the
adoption proceeding. Tenn. Code Ann. § 36-1-116(b)(11)(2001). Thus, the adoption petition is
predicated upon the surrender or termination of the biological parents’ rights. When a petition to
adopt is filed concurrently with the petition to terminate rights, the termination of parental rights
determination necessarily precedes consideration of the adoption matter.

        When a petition for termination of parental rights is filed in a court with concurrent
jurisdiction, the exclusive jurisdiction of juvenile court is superceded. Tenn. Code Ann. § 36-1-
113(a). Under section 36-1-113(m), upon termination of parental rights, the court granting the
termination petition also may place the child with prospective adoptive parents. However, if the
court denies the termination petition, it has no option but to dismiss the adoption petition. Thus, its
authority over the matter ends.




                                                   -7-
        The denial of the termination petition, moreover, does not alter the prior custody order issued
by juvenile court. In re Valentine, 79 S.W.3d 539, 550 (Tenn. 2002). Upon denial of the petition,
jurisdiction reverts to the juvenile court that entered the order upon finding the children dependent
and neglected. State v. R.S. and K.S., No. M2002-00919-COA-R3-CV, 2003 WL 22098035, at *
19 (Tenn. Ct. App. Sept. 11, 2003) (no perm. app. filed).

        Under section 36-1-113(a), prospective adoptive parents may file a termination of parental
rights petition together with an adoption petition. Thus, a court with concurrent jurisdiction may
consider both the termination and adoption aspects of the petition. However, in view of the
foregoing, we cannot agree with Mother that the mere filing of the adoption petition along with the
termination petition automatically transfers the entire custody matter from juvenile court when those
petitions are denied. In this case, had chancery court granted the termination petition, it would have
had jurisdiction to consider the adoption petition. However, once chancery court denied and
dismissed the termination petition, the adoption issue was rendered moot and the court had no
alternative but to deny and dismiss the petition. Its authority ended here. Absent an order from
juvenile court transferring the matter, jurisdiction over the prior custody order reverted to the
juvenile court which issued it.

                                              Holding

        We find statutory grounds exist for termination of Mother’s parental rights based on
abandonment. We accordingly remand to the trial court for determination of whether termination
of Mother’s parental rights is in the best interest of the children. We further hold that when the
chancery court denied the termination petition, jurisdiction over the prior, unappealed custody order
reverted to the juvenile court which issued it. Accordingly, we vacate the order of chancery court
returning physical custody to mother. Costs of this appeal are taxed to Amy Michelle Darby
(Asbridge).



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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