                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                              Assigned On Briefs January 29, 2014

                                     IN RE: RIANNAH M.F.

                 Direct Appeal from the Chancery Court for Hardin County
                         No. AD94     Charles C. McGinley, Judge


                   No. W2013-02057-COA-R3-PT - Filed February 28, 2014


The trial court found that Petitioners had failed to demonstrate willful abandonment in this
action to terminate the parental rights of Mother. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Joe L. Brown, Savannah, Tennessee, for the Appellants, Father and Step-Mother.

Paul Simpson, Selmer, Tennessee, for the Appellee, Mother.

Carma Dennis McGee, Guardian Ad Litem.

                                   MEMORANDUM OPINION 1

      This is a termination of parental rights case in which the relevant facts are largely
undisputed. Riannah M. F. was born in May 2008 to unmarried parents. Custody of Riannah
was with Mother until October 2010. On October 22, 2010, the juvenile court for Hardin


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
County entered an ex parte order bringing Riannah into protective custody and placing her
in the temporary custody of Father. Following a hearing in November 2010, the juvenile
court found that probable cause existed that Riannah was dependent and neglected, extended
temporary emergency custody, and ordered Mother and Father to submit to drug testing.
Following a hearing on December 13, 2010, the juvenile court found that Mother had failed
her drug test and had failed to attend the hearing. By order entered December 16, 2010, the
juvenile court ordered Mother to complete alcohol and drug treatment and to “file a motion
with [the] [c]ourt before receiving visitation” with Riannah. The juvenile court specifically
reserved issues of child support and visitation. On February 3, 2011, the juvenile court
entered an amended order again requiring Mother to complete alcohol and drug treatment and
to file a motion before receiving visitation, again reserving issues of child support and
visitation.

       In April 2012, Father and his wife filed a petition for termination of Mother’s parental
rights and for adoption of Riannah by Father’s wife in the Chancery Court for Hardin
County. In their petition, Father and his wife (hereinafter, collectively, “Father”) asserted
that Mother had “willfully failed and refused to visit” Riannah and not paid child support for
a period exceeding four months prior to the filing of the petition, and sought termination of
Mother’s parental rights based on abandonment. They further asserted that the whereabouts
of Mother were unknown, that attempts to locate her family had been unsuccessful, that she
was rumored to have left the State with her boyfriend, and that she could not be located for
service of process. Publication notice was made for four consecutive weeks in April 2010
in The Savannah Courier.

         Mother, who apparently in fact resided in Lexington, Tennessee, filed a response by
letter in May 2012 and answered the petition on January 2013. Following a hearing on June
4, 2013, the trial court found that Mother had not supported Riannah, set Mother’s child
support obligation at $150.00 per month to be paid to the Guardian Ad Litem, and re-set the
matter for August 6, 2013. Following a hearing on August 6, the trial court determined that
Father had failed to demonstrate, by clear and convincing evidence, that Mother had willfully
failed to visit or pay child support. It accordingly dismissed Father’s petition and ordered the
matter transferred to the juvenile court to set Mother’s child support obligation and establish
visitation. The trial court entered final judgment in the matter on August 14, 2013, and
Father filed a timely notice of appeal to this Court.2




       2
        By correspondence dated January 27, 2014, counsel for Mother informed the Court that Mother
would rely on the record and did not intend to file a brief in the matter.

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                                       Issue Presented

      The issue presented for our review, as we perceive it, is whether the trial court erred
by dismissing Father’s petition to terminate Mother’s parental rights on the ground of
abandonment.

                                    Standard of Review

        We review findings of facts of a trial court sitting without a jury de novo upon the
record with a presumption of correctness unless the preponderance of the evidence is
otherwise. In Re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010) (citation omitted); Tenn. R.
App. P. 13(d). Insofar as a factual finding is based on the trial court’s assessment of witness
credibility, we will not reverse that finding absent clear and convincing evidence to the
contrary. In Re: M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). No presumption of
correctness attaches, however, to a trial court’s conclusions on issues of law. Bowden v.
Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Tenn. R. App. P. 13(d). A trial court’s conclusion
regarding whether the facts of the case support a statutory ground for termination of parental
rights is a question of law that we review de novo with no presumption of correctness. In re
Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007) (citation omitted).

      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 of 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)(2010). Accordingly, every termination case requires the
court to determine whether the parent has engaged in a course of action or inaction that
constitutes one of the statutory grounds for termination. A parent may not be deprived of
their fundamental right to the custody and control of their child unless clear and convincing
evidence supports a finding that a statutory ground for termination exists and that termination
is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c)(2010). The “clear and
convincing evidence” standard is more exacting than the “preponderance of the evidence”
standard, but does not require the certainty demanded by the “beyond a reasonable doubt”
standard. In Re: M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App.2005). Clear and convincing
evidence is evidence that eliminates any substantial doubt and that produces in the fact-

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finder’s mind a firm conviction as to the truth. Id.

       This heightened burden of proof in parental termination cases requires us to
distinguish between the trial court’s findings with respect to specific facts and the “combined
weight of these facts.” In Re: Michael C. M., No. W2010-01511-COA-R3-PT, 2010 WL
4366070, at *2 (Tenn. Ct. App. Nov. 5, 2010) (no perm. app. filed) (quoting In Re: M.J.B.,
140 S.W.3d 643, 654 n.35 (Tenn. Ct. App. 2004)). Although we presume the trial court’s
specific findings of fact to be correct if they are supported by a preponderance of the
evidence, we “must then determine whether the combined weight of these facts provides
clear and convincing evidence supporting the trial court's ultimate factual conclusion.” Id.

                                          Discussion

        We begin our discussion with two observations. First, we note that in his brief Father
urges that clear and convincing evidence supports termination of Mother’s parental rights on
the statutory grounds of abandonment and persistence of conditions. Father did not assert
persistence of conditions as a ground for termination in the trial court, however, and he
cannot assert it for the first time here. Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn.
2006)(issues not raised or asserted in the trial court may not be raised for the first time on
appeal; In re Anthony R., No. M2012-01412-COA-R3-PT, 2013 WL 500829, at *1 (Tenn.
Ct. App. Feb. 8, 2013)(reversing termination of parental rights on a ground not pled in
petition). Second, we observe that the trial court made no findings of fact in its August 2013
order other than to state that Father had failed to demonstrate willful failure to visit or
support. The trial court also did not incorporate its oral rulings into its written order. Rule
52.01 of the Tennessee Rules of Civil Procedure requires trial courts to make findings of fact
and conclusions of law in their written orders to support their rulings. The Rule provides:

               In all actions tried upon the facts without a jury, the court shall find the
       facts specially and shall state separately its conclusions of law and direct the
       entry of the appropriate judgment. The findings of a master, to the extent that
       the court adopts them, shall be considered as the findings of the court. If an
       opinion or memorandum of decision is filed, it will be sufficient if the findings
       of fact and conclusions of law appear therein.

Tenn. R. Civ. P. 52.01. When a trial court fails to comply with the mandates of Rule 52.01,
we will generally vacate the trial court’s judgment and remand the matter for written findings
of fact and conclusions of law. Acuff Inern., Inc. v. Sanyo Mfg. Corp., No. W2013-01146-
COA-R3-CV, 2014 WL 346661, at *4 (Tenn. Ct. App. Jan. 30, 2014)(citation omitted). We
may, however, “soldier on” if the legal issue is clear and we can readily ascertain the basis
for the trial court’s decision. Id. (citations omitted). In this case, the facts are largely

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undisputed, the trial court specified its reasons for dismissing Father’s petition at the
conclusion of the hearing of this matter, and it is clear that the trial court determined that
Father had not carried his burden to demonstrate that Mother’s failure to visit or support
Riannah was willful in light of the orders entered by the juvenile court. We accordingly will
“soldier on” notwithstanding the lack of specific findings in the trial court’s final order.

       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, “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(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)(2010). “[W]illfully failed to support” or “willfully
failed to make reasonable payments toward such child’s 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) (2010). Section 36-1-102(1)(G) provides that “it shall not be required that
a parent be shown to have evinced a settled purpose to forego all parental rights and
responsibilities in order for a determination of abandonment to be made.” It is well-settled
that the failure of a parent to support the child is deemed willful only if the parent “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 J.C.H.,
No. W2012-01287-COA-R3-PT, 2012 WL 6466631, at *11 (Tenn. Ct. App. Dec. 14, 2012)
(quoting In re M.F.O, No. M2008-01322-COA-R3-PT, 2009 WL 1456319, at *3;(Tenn. Ct.
App. May 21, 2009) (citing Tenn. Dep’t. of Children’s Servs. v. Calabretta, 148 S.W.3d 919,
926 (Tenn. Ct. App. 2004))). Every parent 18 years or older, however, is presumed to know
of their legal obligation to support their child. Tenn. Code Ann. § 36-1-102(1)(H)(2010).

       Willfully failed 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). “[T]oken visitation,” is visitation “under the circumstances of the individual case
[which] 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).



                                               -5-
        Upon review of the record, we agree with the trial court that there is no clear and
convincing evidence in this case to demonstrate that any failure on the part of Mother to visit
or support Riannah was willful. It is not disputed that Mother did not pay any child support
until ordered to do so in June 2013. It also is not disputed that Mother paid child support as
ordered in June and July 2013. The absence of a child support order did not relieve Mother
of her obligation to support Riannah, of course. However, we observe that the juvenile court
entered two orders specifically reserving the issue of child support. Additionally, Father has
offered no evidence to demonstrate that Mother had the ability to pay child support during
the relevant period. Mother testified that she had received food stamps and applied for SSI
benefits but had no other income, and that Father had rejected her attempts to bring gifts of
clothing to Riannah for her birthday. Father testified that he had not asked Mother for any
child support, and there is nothing in the record to suggest that Father sought an order of
support after the juvenile court twice reserved the matter in December 2010 and February
2011. There is no clear and convincing evidence of willful failure to support in this record.

        The record also does not demonstrate that Mother willfully failed to visit Riannah.
The juvenile court’s orders of December 2010 and February 2011 specifically ordered
Mother to complete drug and alcohol treatment and denied Mother visitation until after she
filed a petition. The juvenile court’s orders are ambiguous, at best, but may fairly and
reasonably be perceived as requiring Mother to provide evidence that she had completed
treatment before petitioning for visitation. The trial court concluded that Mother “had no
right to visit her child until she petitioned through the juvenile court after giving proof of
alcohol and drug counseling. . . She had no legal right to visit . . . Notwithstanding that, she
attempted on occasion to visit the child or contact the child which were denied by [Father].”
The trial court’s conclusions are not controverted. It also is uncontroverted that Mother had
been attending “Teen Challenge” counseling and drug and alcohol treatment for three years,
that she was scheduled to graduate from the program on August 15, 2013, (nine days after
the matter was heard by the trial court) and that she was taking parenting classes at the Carl
Perkins Center in Lexington. The record does not contain clear and convincing evidence to
demonstrate willful failure to visit in this case.

                                           Holding

       In light of the foregoing, the judgment of the trial court is affirmed. Costs on appeal
are taxed to the Appellants Father and Step-Mother, and their surety, for which execution
may issue if necessary. This matter is remanded to the trial court for enforcement of the
judgment and the collection of costs.

                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE

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