                                                                                                  07/17/2017
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 28, 2017 Session

                                     IN RE BRYSON F.1

                   Appeal from the Circuit Court for Hamblen County
                       No. 14CV-200      Alex E. Pearson, Judge


                                No. E2016-01303-COA-R3-PT


This is a termination of parental rights case in which the mother and stepfather sought
termination of the biological father’s parental rights to his child. The trial court found
that clear and convincing evidence existed to support the termination on the statutory
ground of abandonment for failure to remit child support. The court further found that
termination was in the best interest of the child. The father appeals. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J. and W. NEAL MCBRAYER, J., joined.

Matt E. Miller, Jefferson City, Tennessee, for the appellant, John Lee M.

Crystal G. Jessee, Greeneville, Tennessee, for the appellee, Charity Michelle H. and
Jason Robert H.

                                           OPINION

                                     I.      BACKGROUND

       Bryson F. was born to Charity Michelle H. and John Lee M. (individually
“Mother” or “Father” and collectively “the Parents”) in June 2011. Mother was married
to another man at the time of the Child’s birth. Mother later obtained a divorce but never
married Father, who was confirmed as the biological father through a DNA test.


1
 This court has a policy of protecting the identity of children in parental rights termination cases
by initializing the last name of the parties.
       The Child primarily resided with Mother as a result of Father’s condition of
cerebral palsy, which caused physical and cognitive impairment. The Parents lived in
different apartments in the same apartment complex in Bulls Gap, Tennessee for several
years. However, Father visited the Child on a limited basis usually with supervision
based upon Mother’s concern that he was incapable of caring for the Child for an
extended period of time. The Child often called for Mother while visiting with Father,
and at times, Father requested assistance because he could no longer care for the Child.
Father also left town on occasion and went weeks without visiting the Child.

       Father was unable to maintain regular employment based upon his physical and
cognitive limitations. He received $294 in disability income, $459 in supplemental
Social Security income, and $45 in food stamps per month. He also obtained limited
periods of employment on occasion. His mother managed his financial affairs and was
responsible for providing Father with a debit card to purchase his incidentals after his
bills were paid. Throughout the Child’s lifetime, Father never remitted child support and
only occasionally provided items for the Child while in his care.

        The relationship between the Parents eventually began to deteriorate. In
November 2012, Father filed a petition to establish paternity and for entry of a parenting
plan. He also filed a motion in which he sought to prevent Mother’s attempt to relocate
with the Child. The Parents later entered into an agreed order, providing for his
visitation. Father never pursued his initial attempt to establish paternity.

      Mother relocated to Newport, Tennessee in April 2013, causing difficulty in
maintaining the terms of the visitation agreement because Father was unable to drive.
Mother eventually returned to Bulls Gap, Tennessee. However, visitation between the
Child and Father remained sporadic, leading Father to file a motion for contempt in
September 2014 for failure to follow the visitation schedule.

        In November 2014, Mother married Jason Robert H. (“Stepfather”), who had
already assumed a large role in the Child’s life. On December 12, 2014, Mother and
Stepfather (collectively “the Petitioners”) filed a petition to terminate Father’s parental
rights. The Petitioners alleged that Father had abandoned the Child by failing to visit and
by failing to remit child support and that he had also failed to legitimate the Child. The
case proceeded to a hearing during which counsel argued that termination was warranted
given Father’s failure to visit and remit support. Counsel did not pursue Father’s failure
to legitimate the Child as a ground for termination at the hearing.

       As pertinent to this appeal, Mother testified that Father failed to visit with the
Child for the four months preceding the filing of the termination petition, namely August
through December 2014. She claimed that he last visited the Child in June 2014 and that
                                           -2-
he never requested visitation after June 2014. She further claimed that he was not home
when she attempted to bring the Child for visitation. She stated his visitation was
sporadic prior to the four months preceding the filing of the petition. She claimed that he
also went weeks at a time without visitation.

       Mother acknowledged that Father filed a petition to legitimate the Child in
November 2012. She asserted that he never pursued the petition because they entered
into an agreed visitation schedule where the Child stayed with Father for a few hours
several days a week. She claimed that the Child was often hungry and had not been
changed on a regular basis while with Father. She also observed trash throughout the
apartment, including beer bottles. She noted that a knife had been left on the coffee table
on one occasion. She stated that she advised Father of her concerns and that they later
agreed to limit visitation to one day per week. She recalled that he often asked for
assistance or ended the visit early even after his visitation decreased to one day per week.

        Mother testified that after she moved to Newport, Father refused her request for
gas money to facilitate visitation on at least one occasion. She claimed that he called her
repeatedly in May 2014 when she refused to leave a family function early to bring the
Child to Father for visitation. She claimed that she continued to facilitate visitation even
after their disagreement in May 2014. She described an incident in June 2014, where she
arrived with the Child only to find Father with two unclothed women in an unclean
apartment. She asserted that she cleaned the apartment and waited for the women to
disperse before leaving the Child. She stated that she found his apartment unclean yet
again when she returned for the Child’s second and last visitation in June 2014. She
recalled that Father called her 45 minutes later and asked her to retrieve the Child. She
provided that Father was not home when she attempted to facilitate visitation again in
June 2014. She agreed that she had not attempted to facilitate visitation since June 2014.

       Mother testified that Father never remitted child support, despite his receipt of
disability and Social Security benefits and occasional periods of employment. She
claimed that he and his mother also rebuffed her attempt to secure disability benefits for
the Child based upon his disability. She stated that he never provided for the Child, with
the exception of one pack of diapers and two packs of wipes in June 2012. She asserted
that he denied her repetitive requests for financial assistance and advised her that the
Child was her responsibility, not his. She agreed that Father provided some items for the
Child during visitation but recalled that she also provided snacks and other items.

      Mother described a loving relationship between Stepfather and the Child and
claimed that Stepfather also financially provides for the Child.



                                            -3-
        Charity Miles, a family friend and an employee at a local grocery store, testified
that Father used to frequent the store on a weekly basis to purchase beer and cigarettes
but that his visits had decreased in the last year. She recalled that he was employed at a
bar at one time and also left business cards for his personal business at another time.

       Stepfather testified that he too is employed at a local grocery store. He recalled
that Father frequented the store once or twice per week but his trips to the store had since
declined. He claimed that Father usually purchased beer and cigarettes.

       Stepfather claimed that he has cared for the Child since March 2013. He stated
that he loves the Child and is willing to adopt him. He confirmed Mother’s claims that
Father never financially provided for the Child and that Father refused her requests for
financial assistance. He provided that Mother attempted to facilitate visitation between
the Child and Father and never refused visitation. He recalled retrieving the Child early
from visitation on at least three occasions.

       Winnie H., the maternal grandmother, testified that she served as the primary
babysitter for the Child. She claimed that Father refused her request to reimburse her for
formula and diapers. She recalled that Father advised her that it was not his
responsibility. She claimed that Father received income from odd jobs in addition to his
disability income.

       Father testified that his disability prevents him from operating a car, managing his
finances, and maintaining employment. He claimed that Mother scheduled visits only at
her convenience and refused his requests for additional visitation, prompting him to hire
legal representation to establish visitation through the court system. He alleged that he
was still awaiting a date for mediation and that he filed a motion for contempt for failure
to abide by the visitation agreement on September 16, 2014.

       Father described a loving relationship between himself, the Child, and his
extended family. He claimed that he was heartbroken because he had not seen the Child
in two years. He asserted that he last attempted to arrange visitation in May 2014. He
recalled that Mother called the police, who advised him not to contact Mother.

       Father claimed that Mother brought the Child for visitation without first providing
notice. He explained that he would have cleaned his apartment and excused his company
if he had been made aware that the Child would be available for visitation. He claimed
that he was required to maintain a tidy apartment because his apartment complex
routinely inspected his apartment. He asserted that he provided appropriate supervision
and hygiene care during visitation and alleged that the Child often arrived with a wet
diaper and dirty clothes.
                                            -4-
       Father asserted that he purchased clothing, food, and diapers for the Child while in
his care and that his mother also contributed to the purchase of these items. He recalled
purchasing gifts for the Child for birthdays and holidays. He identified two receipts, one
dated November 29, 2012, and another dated December 6, 2012, establishing his
purchase of several items for the Child. He provided that he had never been advised to
provide child support and that he was incapable of writing his own checks. He claimed
that Mother never asked for support and that he would have ensured payment if he had
been made aware of a duty to remit child support. He further claimed that he also could
not provide financial assistance because he no longer knew how to contact Mother. He
asserted that he was willing to secure benefits for the Child as a result of his disability but
that Mother had refused his offer to secure said benefits. He conceded that he worked the
occasional odd job but claimed that his pay was minimal. He listed the following
monthly expenses: $89 for rent, $40 for water, $70 for electricity, and $140 for cable.
He noted that he also received approximately $45 per month in food stamps.

        Father explained that his failure to pursue his legitimation petition and other
motions was a result of poor legal counsel. He noted that his initial attorney failed to
pursue his case, prompting him to hire new counsel, who left the practice of law to serve
as a circuit court judge.

       Cynthia M., the paternal grandmother, described a loving relationship between
Father and the Child. She further claimed that she provided financial assistance for
Mother before and after the Child was born and that she often transferred money to
Father’s debit card for him to purchase items for the Child. She denied Mother’s claim
that she refused to secure benefits for the Child. She explained that Mother never asked
for benefits and that she would not know how to apply for said benefits.

        Following the hearing, the trial court rejected the ground of abandonment for
failure to visit based upon Father’s attempt to secure visitation through the court system
and Mother’s failure to comply with the visitation agreement. However, the court found
clear and convincing evidence to support termination of Father’s parental rights to the
Child based upon abandonment for failure to remit child support. The court further found
clear and convincing evidence that termination of Father’s parental rights was in the best
interest of the Child. This appeal followed.




                                             -5-
                                       II.     ISSUES

       We consolidate and restate the issues on appeal as follows:

       A.    Whether clear and convincing evidence supports the court’s finding
       of abandonment for failure to remit child support pursuant to Tennessee
       Code Annotated section 36-1-102(1)(A)(i).

       B.     Whether the trial court erred in finding that clear and convincing
       evidence did not support termination based upon a finding of abandonment
       for failure to visit pursuant to Tennessee Code Annotated section 36-1-
       102(1)(A)(i).

       C.    Whether this court may consider an additional ground of termination
       based upon the failure to timely legitimate the Child pursuant to Tennessee
       Code Annotated section 36-1-113(g)(9)(A)(vi).


                             III.   STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination of
the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be
terminated only upon:




                                             -6-
       (1)    [a] finding by the court by clear and convincing evidence that the
       grounds for termination of parental or guardianship rights have been
       established; and

       (2)    [t]hat termination of the parent’s or guardian’s rights is in the best
       interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

       An appellate court reviews a trial court’s findings of fact in termination
       proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
       Rule 13(d), appellate courts review factual findings de novo on the record
       and accord these findings a presumption of correctness unless the evidence
       preponderates otherwise. In light of the heightened burden of proof in
       termination proceedings, however, the reviewing court must make its own
       determination as to whether the facts, either as found by the trial court or as
       supported by a preponderance of the evidence, amount to clear and
       convincing evidence of the elements necessary to terminate parental rights.
       The trial court’s ruling that the evidence sufficiently supports termination
                                            -7-
       of parental rights is a conclusion of law, which appellate courts review de
       novo with no presumption of correctness. Additionally, all other questions
       of law in parental termination appeals, as in other appeals, are reviewed de
       novo with no presumption of correctness.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).


                                       IV.     DISCUSSION

                                             A. & B.

       In terminating Father’s parental rights based upon the statutory ground of
abandonment, the court considered his failure to remit support and to visit for the four
months preceding December 12, 2014, the filing date of the termination petition. The
relevant time period was August 12, 2014, through December 11, 2014.2

        A parent’s willful failure to support “means the willful failure, for a period of four
(4) consecutive months, to provide monetary support or the willful failure to provide
more than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-
102(1)(D). Token support is “support, under the circumstances of the individual case,
[that] is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). A
parent’s willful failure to visit “means the willful failure, for a period of four (4)
consecutive months, to visit or engage in more than token visitation.” Tenn. Code Ann. §
36-1-102(1)(E). Token visitation is “visitation, under the circumstances of the individual
case, [that] constitutes nothing more than perfunctory visitation or visitation of such an
infrequent nature or of such short duration as to merely establish minimal or insubstantial
contact with the child.” Tenn. Code Ann. § 36-1-102(1)(C).

       This court has consistently held that the term willfulness as it applies to a party’s
failure to visit or remit support must contain the element of intent. In re Swanson, 2
S.W.3d 180, 188-89 (Tenn. 1999). The element of intent utilized in termination
proceedings “does not require the same standard of culpability as is required by the penal
code.” In re Audrey S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures
to act that are intentional or voluntary rather than accidental or inadvertent.” Id. “[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.” Id. at 863-64.

2
  “The applicable four month window . . . includes the four months preceding the day the petition
to terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H.,
No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014).
                                                -8-
                                             1.

       Father concedes that he never remitted child support but claims that his failure to
remit support was not willful when he was unaware of a duty to remit support, when he
was actively involved in litigation to establish visitation and child support, and when he
was unable to provide said support. The Petitioners respond that the record supports the
court’s termination on this ground of abandonment.

       First, we reject Father’s claim that his failure to remit support was not willful
when he was unaware of a duty to remit support. “A parent’s obligation to support his or
her child exists regardless of a court order requiring the parent to pay support.” In re
Jacob M.J., 434 S.W.3d 565, 572 (Tenn. Ct. App. 2013) (citation omitted). Furthermore,
“[e]very parent who is eighteen (18) years of age or older is presumed to have knowledge
of a parent’s legal obligation to support such parent’s child or children.” Tenn. Code
Ann. § 36-1-102(1)(H). We acknowledge that Father suffered from some cognitive
impairment; however, the record does not reflect that his mental capacity was so impaired
that he did not understand that the Child required food and other items for survival.
Indeed, he provided token support in the form of a few diapers and snacks on occasion
when the Child visited his residence. Additionally, the court credited Mother’s testimony
that he refused her request for support and advised her that it was not his responsibility to
provide support. He also refused her attempt to secure benefits for the Child.

        Citing In re A.M.H., 215 S.W.3d 793 (Tenn. 2007), Father next claims that the
court erred in terminating his rights on this ground when he was actively pursuing
litigation. In In re A.M.H., the Court was “presented with a situation in which the parents
of [the child] actively pursued legal proceedings to regain custody [ ] during the
‘abandonment’ period but failed to visit for a period of four consecutive months
immediately prior to the filing of a petition for termination of parental rights.” 215
S.W.3d at 810. Unlike the situation presented in In re A.M.H., Father filed a petition to
legitimate the Child and other motions in 2012; however, no further action was taken
until September 2014. Moreover, this case involves Father’s failure to visit and to remit
support. The record does not establish that Mother ever refused support from Father. To
the contrary, he failed to provide child support throughout the entirety of the Child’s
lifetime and denied Mother’s request for support.

       Finally, Father claims that his failure to remit support was not willful when he did
not have sufficient income to support himself and the Child. We acknowledge Father’s
disability, his difficulty in maintaining consistent employment, and his status as an
indigent defendant. However, this was not a case where a parent had extenuating
circumstances but faithfully provided support when he or she was able. See In re Dylan
H., No. E2010-01953-COA-R3-PT, 2011 WL 6310465, at *7 (Tenn. Ct. App. Dec. 16,
                                            -9-
2011) (reversing the termination decision because mother was simply unable to fulfill her
child support obligation during the relevant time period). In this case, Father never paid
child support throughout the entirety of the Child’s lifetime even when he was actually
employed at various times. Instead, he purchased beer and other items on a regular basis
and maintained a $140 monthly cable bill. With these considerations in mind, we
conclude that there was clear and convincing evidence to establish that Father abandoned
the Child by willfully failing to remit child support throughout the Child’s lifetime,
including the relevant time period.

       Although Father has not appealed the court’s best interest finding,3 we have
reviewed the issue because of the gravity and finality that this decision will have on his
parental rights. See In re Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010)
(considering the best interest finding even though the issue was not raised on appeal).
Following our review, we conclude that there was clear and convincing evidence to
establish that termination of Father’s parental rights was in the best interest of the Child
pursuant to Tennessee Code Annotated section 36-1-113(i). Accordingly, we affirm the
termination decision of the trial court.

                                               2.

        Only one statutory ground must be established by clear and convincing evidence
to justify termination. Tenn. Code Ann. § 36-1-113(c). In the event of further appellate
review, we will address the Petitioners’ claim that termination was warranted based upon
the additional ground of abandonment for failure to visit. The Supreme Court has held
that “a parent who attempted to visit and maintain relations with his child, but was
thwarted by the acts of others and circumstances beyond his control, did not willfully
abandon his child.” In re A.M.H., 215 S.W.3d at 810 (citing Swanson, 2 S.W.3d at 189).
However, “[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). Here, the record reflects that Mother failed to
comply with an agreed visitation schedule and that Father filed a motion for contempt in
the four months preceding the filing of the termination petition. With these
considerations in mind, we conclude that there was not clear and convincing evidence to
establish that Father willfully failed to visit during the relevant time period.




3
  Father claims that this court need not address this issue because the evidence does not support
the trial court’s termination decision.
                                              - 10 -
                                             C.

       The Petitioners next assert that this court should find that termination was
warranted based upon Father’s failure to timely legitimate the Child pursuant to
Tennessee Code Annotated section 36-1-113(g)(9)(A)(vi). This ground was included in
the termination petition but was not advanced at the hearing or ruled upon by the trial
court, presumably because this ground could not be used to terminate the rights of a
biological parent prior to July 2016. In Re Bernard T., 319 S.W.3d 586, 599 (Tenn.
2010) (“The grounds for termination in Tenn. Code Ann. § 36-1-113(g)(9) cannot be
used to terminate the rights of a person who is a child’s biological parent, legal parent, or
putative biological father at the time the termination petition is filed.”). During the
pendency of this appeal, the statute was amended to specifically provide for the
termination of a putative parent’s rights for failure to timely legitimate his or her child.
Tenn. Code Ann. § 36-1-113(g)(9)(A)(vi) (2016). The Petitioners note that this court
must apply the law in effect at the time it renders its decision, not at the time of the
hearing.

       While we agree with the premise of the argument, the fact remains that this ground
was not advanced at the hearing or ruled upon by the trial court. The jurisdiction of this
court is “appellate only.” Tenn. Code Ann. § 16-4-108. Appellate courts “cannot
exercise original jurisdiction” and act as the “trier-of-fact.” Peck v. Tanner, 181 S.W.3d
262, 265 (Tenn. 2005) (citations omitted); see also Pierce v. Tharp, 461 S.W.2d 950, 954
(Tenn. 1970) (rejecting appellants’ “novel” request to adduce proof in support of their
motion). This issue is without merit.


                                   V.      CONCLUSION

       This judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are taxed to the appellant,
John Lee M.


                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




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