                                                                                                 04/17/2018
                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                     November 14, 2017 Session

                                            IN RE T.W. ET AL.

                    Appeal from the Chancery Court for McMinn County
                        No. 2015-CV-346 Jerri Bryant, Chancellor
                         ___________________________________

                                  No. E2017-00317-COA-R3-PT
                             ___________________________________

In this termination of parental rights case, J.B.H. and H.D.H. (prospective parents) filed
a petition to terminate the parental rights of M.A.W. (mother) and E.R.W. (father) in
order to adopt two of their minor children, T.W. and B.W. (the children). S.A.G.
(grandmother) and M.W.G. (grandfather1) are the maternal grandparents of the children.
They joined the prospective parents as co-petitioners. The trial court found clear and
convincing evidence that mother and father abandoned their children by willfully failing
to visit and support them during the relevant statutory time frame. By the same quantum
of proof, the court also determined that termination is in the best interest of the children.
Consequently, the court entered an order terminating the parents’ rights. Mother appeals
the trial court’s order terminating her rights.2 We reverse.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Andrew E. Bateman, Athens, Tennessee, for the appellant, M.A.W.

Randy Sellers, Cleveland, Tennessee, for the appellees, J.B.H., H.D.H., M.W.G., and
S.A.G.

                                                 OPINION

                                                       I.

       In March 2014, mother and father resided in Autauga County, Alabama, with
       1
           M.W.G. is technically the step-grandfather of the children.
       2
           Father was not present during the trial and did not appeal the trial court’s order.
their two children, B.W. (eight months old) and T.W. (two years old). On March 14,
2014, mother pleaded guilty to theft of property and was subsequently incarcerated.
Shortly thereafter, grandmother, who lives in Etowah, Tennessee, was informed that
mother was in jail and that father was not taking proper care of the children.
Grandmother then drove to Alabama and filed a petition with the Juvenile Court of
Autauga County, Alabama, seeking emergency temporary custody of the children. On
March 19, 2014, after determining that the children’s “medical, nutritional, clothing, and
shelter needs [were] not being met” and that the children were “being exposed to
narcotics use, abuse, and sales,” the court grant temporary custody to the grandparents.

       A few months later, on June 25, 2014, the Juvenile Court of Autauga County
entered a final order, which states, in relevant part, as follows:

             Based upon all evidence it is ORDERED as follows:

             The children remain dependent.

             The [grandparents] are granted full legal and physical custody
             of the minor children.

             ...

             The Mother and Father shall attend and complete an intensive
             drug rehabilitation program and pass all drug tests. The
             parents are allowed telephone access to the children and may
             send letters/cards, etc. to the children.

             Upon completion of the drug program, proof of negative drug
             screens, proof of stable living arrangements and stable
             employment, the Mother and Father shall be allowed
             supervised visitation with the children to be supervised by
             Petitioners at times/places mutually agreed.

             Upon proof of continuous, consistent visitation by the
             parents, the parents may file for expanded visitation. . . .

(Paragraph numbering in original omitted.).

       Upon entry of this order, grandparents returned to Etowah with the children. A
few days later, on or around June 30, 2014, mother sent a birthday card containing $60 to
T.W. at the grandparents’ home address. Mother testified that she called her children on
the telephone multiple times in the days that followed. According to grandmother,
mother’s calls “upset” the children because mother repeatedly told the children that she
                                          -2-
would come to get them. Grandmother and mother both testified that in July 2014 the
Alabama court revoked mother’s right to call her children on the telephone and allowed
grandmother to change her telephone number.3 Grandmother owned two telephones;
however, she testified that she only changed one of her telephone numbers.

       In August 2014, pursuant to the Alabama court’s order, mother moved to a drug
rehabilitation facility. She completed the rehabilitation program in about one month;
however, because mother wanted additional assistance, she voluntarily enrolled in two
other rehabilitation programs and continued to seek treatment until May 2015. At some
point during her rehabilitation treatments, mother gave birth to C.W., over whom she
maintains custody and who is not a subject of the present litigation. Mother claims that,
while she was in rehabilitation, she attempted to contact her other children by calling
grandmother many times utilizing the telephone number that grandmother had not
changed. According to mother, grandmother either did not answer her calls or “hung up
in [her] face.” Grandmother denies that mother ever tried to call her after the Alabama
court supposedly suspended her right to telephonic communications. The trial court
found grandmother’s testimony more credible on this point.

       In November 2014, mother filed a pro se petition in the Juvenile Court of Autauga
County, Alabama, for reinstatement of her co-parenting rights. However, because the
children were living in Tennessee and mother was living at a residential treatment center
in Georgia, the Alabama court ultimately dismissed the petition for lack of personal
jurisdiction.

        Meanwhile, grandparents began allowing friends from their church, including
prospective parents, to help look after the children. One of the prospective parents
testified that he and his wife met the children in September 2014 and baby-sat them six or
seven times over the next couple of months.

       When grandfather’s health began to decline in the fall of 2014, grandparents asked
the prospective parents if they would be interested in helping with the children to a
greater extent. The prospective parents agreed to baby-sit the children more frequently
and in January 2015 the grandparents executed a power of attorney which gave the
prospective parents the authority to make educational and healthcare decisions for the
children. By March 2015, the prospective parents were keeping the children six to seven
days a week; grandparents still routinely spoke to and visited the children, and the
grandparents sometimes kept the children when one of the prospective parents had to
work. Neither the grandparents nor the prospective parents informed mother or father of
the children’s new living arrangement.


          3
              The trial court disregarded this testimony because neither party entered this order into the
record.
                                                    -3-
      In May 2015, mother was released from rehabilitation. Over the next few months
mother did not own a vehicle. She lived with various relatives of her husband.4 Mother
worked at IHOP from September 2015 to October 2015. During this time, mother
attempted to support herself and her newborn child, C.W. Mother also testified that she
sent a Facebook message in September 2015 to a person whom she believed was
grandfather. Grandfather died in January 2016 and was therefore unavailable as a
witness; however, grandmother denied knowing anything about the Facebook message.
Although the trial court did not make a specific finding with respect to the Facebook
message, the court repeatedly questioned the credibility of mother’s testimony.

       On November 23, 2015, the prospective parents and the grandparents jointly filed
a petition for termination of parental rights and adoption in the chancery court for
McMinn County, Tennessee. On January 26, 2017, after a bench trial, the court entered
an order terminating parental rights. On February 7, 2017, mother filed a notice of
appeal. However, this Court determined, sua sponte, that mother’s notice of appeal did
not comply with Tenn. Code Ann. § 36-1-124(d) because mother did not personally sign
the notice of appeal and instead allowed her attorney to sign for her. We entered an order
directing mother to cure this perceived error. On February 28, 2017, mother filed an
amended notice of appeal that contained her personal signature.

        Petitioners then filed a motion to dismiss the appeal, alleging that this Court
lacked jurisdiction because mother’s amended notice of appeal was filed more than thirty
days after entry of the trial court’s order terminating parental rights. We denied the
motion but did so “without prejudice to the ability of the appellees to raise the issue of
the initial deficiency in the Notice of Appeal in their brief.” We further stated that our
order “directing the filing of an Amended Notice of Appeal should not be construed as a
comment on whether the filing of the Amended Notice of Appeal cured any jurisdictional
defect that might exist as a result of the deficiencies in the initial Notice of Appeal.”

        On June 1, 2017, this Court determined, again sua sponte, that the trial court’s
initial order terminating parental rights was not “a final judgment adjudicating all the
claims, rights, and liabilities of the parties.” We entered an order directing mother “to
either secure an order from the Trial Court that complies with rule 54.02 and provides
this Court with jurisdiction to consider this appeal, or show cause why this appeal should
not be dismissed as premature.” In response, on June 30, 2017, the trial court entered an
amended final order terminating parental rights and granting adoption.

                                                    II.

        The parties raise the following issues in this appeal:

        4
          The record does not reveal the precise whereabouts of father during this time, but at trial mother
indicated that he was incarcerated during the months of September and October.
                                                   -4-
              Whether mother untimely filed her amended notice of appeal
              such that this Court lacks subject matter jurisdiction.

              Whether the trial court erred in finding clear and convincing
              evidence to terminate mother’s parental rights on the ground
              of abandonment by failure to visit.

              Whether the trial court erred in finding clear and convincing
              evidence to terminate mother’s parental rights on the ground
              of abandonment by failure to support.

              Whether the trial court erred in finding that clear and
              convincing evidence supports a finding that the termination of
              parental rights is in the best interest of the children.

                                            III.

       As a threshold matter, we must determine whether mother untimely filed her
amended notice of appeal. This inquiry is a question of law, which we consider de novo.
Chapman v. DaVita, Inc., 380 S.W.3d 710, 712-13 (Tenn. 2012) (quoting Northland
Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)).

        Approximately one week after oral argument, the Supreme Court decided In re
Bentley D., wherein the Court held that “the signature requirement of Tennessee Code
Annotated section 36-1-124(d) does not require a notice of appeal to be signed personally
by the [appealing parent].” 537 S.W.3d 907, 915 (Tenn. 2017). The Court decreed that
the signature of the parent’s attorney was sufficient. Id. In light of this holding, we
conclude that mother’s original notice of appeal complied with the demands of the
statute.

        In any event, both the original notice of appeal and the amended notice of appeal
were filed before the trial court entered a final judgment on June 30, 2017. Under Tenn.
R. App. P. 4(a) we are required to treat a “prematurely filed notice of appeal . . . as filed
after the entry of the judgment from which the appeal is taken and on the day thereof . . .”
Applying this rule, we treat mother’s original notice of appeal as timely filed, which
allows us to exercise jurisdiction over this case.

                                            IV.

       A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash–Putnam v. McCloud,
                                           -5-
921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent’s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Because termination
proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127
S.W.3d 737, 739 (Tenn. 2004), a parent’s rights may be terminated only where a
statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter
of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

       To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least 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
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables
the fact-finder to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these factual
findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

        Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

       We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
that in an appeal from an order terminating parental rights the Court of Appeals must
review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interest[ ], regardless of whether the parent challenges
these findings on appeal.”).

       The Tennessee Supreme Court has stated our standard of review:

              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
                                          -6-
              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 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.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

                                            V.

        Tenn. Code Ann. § 36-1-113(g)(1) provides that parental rights may be terminated
on the ground of abandonment. Tenn. Code Ann. § 36-1-102(1)(A)(i) further explains
that “abandonment” includes “willfully fail[ing] to visit or . . . willfully fail[ing] to
support” a child “[f]or a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the parent . . . .”

                                            A.

        We first address the issue of whether mother willfully failed to visit the children
during the operative four-month window. After our de novo review of the record, we
have determined that the evidence preponderates in favor of many of the facts found by
the trial court. However, we are not persuaded that the trial court considered all relevant
facts or that the facts relied upon by the court provide clear and convincing evidence that
mother’s failure to visit was willful.

       The trial court correctly identified the relevant statutory timeframe as July 23,
2015 to November 22, 2015. The evidence also preponderates in favor of the court’s
finding that mother did not personally visit the children during that time period.
However, we have consistently held that the mere failure to visit or support a child is not
clear and convincing proof of abandonment; rather, as the statute prescribes, such failure
                                           -7-
must be willful. See Tenn. Code Ann. § 36-1-102(1)(A)(i). A party seeking to terminate
parental rights has the burden of proving willfulness. Carr v. Moore, No. 01A01-9807-
CH-00402, 1999 WL 820608, at *3 (Tenn. Ct. App., filed July 20, 1999). To carry this
burden, a party must show that a parent “[was] aware of his or her duty to visit or
support, ha[d] the capacity to do so, ma[de] no attempt to do so, and ha[d] no justifiable
excuse for not doing so.” In re Adoption of Muir, No. M2004-02652-COA-R3-CV,
2005 WL 3076896, at *5 (Tenn. Ct. App., filed Nov. 16, 2005) (footnote and citations
omitted).

       In finding that mother’s failure to visit the children was willful, the trial court
failed to consider the threshold question of whether mother had a duty to visit the
children during the relevant four-month period.5 This question can be conclusively
answered by reference to the June 25, 2014 order entered by the Juvenile Court of
Autauga County, Alabama. That order granted emergency temporary custody to
grandparents and allowed mother only “telephone access to the children” as well as the
ability to “send letters/cards, etc.” Importantly, the order expressly conditioned any
future supervised visitation “[u]pon completion of the drug program, proof of negative
drug screens, proof of stable living arrangements and stable employment . . . .”

       The trial court found that mother had completed a drug rehabilitation program;
however, the trial court also found that mother was unemployed for approximately two of
the relevant four months. Although the trial court made no specific finding regarding
mother’s living arrangements during this time, mother testified, without contradiction,
that she did not own a vehicle and lived in Alabama with various relatives of her
husband. Thus, the evidence preponderates in favor of a finding that mother had not
obtained stable employment or stable living arrangements during the relevant four-month
period. Consequently, mother was not entitled to supervised visitation under the
Alabama court order, and therefore could not have had a “duty” to visit the children at
that point in time.

        We have previously held that “abandonment [by failure to visit] does not
encompass failing to challenge a facially valid ‘no contact’ order.” In re H.A.L., No.
M2005-00045-COA-R3-PT, 2005 WL 954866, at *4-*5 (Tenn. Ct. App., filed Apr. 25,
2005); see also Carr, 1999 WL 820608, at *3 (holding that a parent does not “willfully”
abandon his or her child simply by failing to petition the court for reinstatement of
visitation privileges that have previously been revoked). The Alabama court order
effectively prohibited mother from visiting the children. We conclude that evidence in
the record does not provide clear and convincing proof that mother’s failure to visit the
children was willful.


        5
        Most of the court’s discussion of “duty” relates solely to mother’s duty to support the children,
which we address in the next section of this opinion.
                                                  -8-
       Even if the Alabama court order did not affect mother’s duty to visit the children,
we also have serious questions about mother’s capacity to visit the children during the
four-month period. The trial court found that mother did have the capacity to visit the
children. The court relied upon the fact that mother failed to utilize resources apparently
available to mother in rehabilitation that would have helped her regain custody of the
children. For example, in its oral ruling, the court stated:

              [Mother] admits that she knew that in order to get co-
              parenting time she would need to file something either in
              Alabama or Tennessee. She was pro se in Alabama. She
              knew she could have been pro se in Tennessee. . . . She said
              rehab would not let her come to Tennessee, but she provided
              no proof of that. She admits that rehab did allow her to go
              from Georgia to Alabama.

The trial court also found that mother attended a rehabilitation facility that “provided
such services as help to get a job and help to get children back and [mother] did not avail
herself apparently of either of those services.” Although the evidence preponderates in
favor of these factual findings, mother’s time in rehabilitation falls completely outside the
relevant four-month window and is therefore not helpful in the present analysis.

       The trial court also stated that mother “had a car for the last eight months
[preceding the trial].” The evidence preponderates in favor of that finding; once again,
however, those eight months do not coincide or overlap with the relevant four-month
period. Mother testified, without contradiction, that she did not own a vehicle during the
relevant four months, and the trial court did not make a specific finding rejecting that
testimony. In this respect, the present case is analogous to In the Matter of A.D.A., 84
S.W.3d 592, 598 (Tenn. Ct. App. 2002), wherein this Court held that a mother’s failure to
visit her children was not “willful” because her access to transportation was
“substantially hampered” by the fact that she “did not own a car, and [was] dependent
primarily upon her father, who works over sixty hours a week, for transportation.”

        To conclude our discussion of this issue, we reiterate that a preponderance of the
evidence shows that mother had an affirmative duty not to visit her children until she
satisfied the conditions of the Alabama court order. Further, a preponderance of the
evidence shows that mother did not have the capacity to visit the children during the
relevant time period. Therefore, petitioners failed to prove by clear and convincing
evidence that mother’s failure to visit the children was willful. The trial court erred in
concluding otherwise.

                                             B.

       We next address petitioners’ theory of abandonment based on mother’s alleged
                                         -9-
failure to support the children.6 As stated above, petitioners have the burden of proving
that mother failed to support the children during the four-month period and that such
failure was willful. See In re Preston L., No. M2016-02338-COA-R3-PT, 2017 WL
4315356, at *6 (Tenn. Ct. App., filed Aug. 22, 2017). The standard for determining
willfulness in this context is the same as the standard for proving willfulness in the
failure-to-visit context. See In re Adoption of Muir, 2005 WL 3076896, at *5.

        The trial court correctly observed that the law imposes a duty on parents to support
their children, even when the parents lack custody of the children and regardless of
whether a court has ordered the parents to pay support. See Kirkpatrick v. O’Neal, 197
S.W.3d 674, 680 (Tenn. 2006). The law also presumes a parent’s knowledge of this duty
to support. See id. Given this presumption, the evidence preponderates in favor of the
trial court’s determination that mother was aware of her duty to support.

       Mother concedes that since losing custody of the children she has only provided
token support, such as occasional birthday or holiday gifts, and even those small
payments fall outside the relevant four-month period. However, mother argues that she
lacked the capacity to support the children during the relevant time period. She alleges
that her intermittent, low wage job at IHOP was insufficient to provide for herself, her
newborn baby, and her other two children. Mother also stated at trial that she could not
provide support because she did not know where her parents lived.

       The trial court credited mother’s testimony that her only employment during the
four-month period was at IHOP during the months of September and October. However,
petitioners did not introduce any proof with regard to mother’s wages during that time.

       The trial court disbelieved mother’s testimony that she did not know where her
parents lived, observing that mother had previously listed her parents’ home address on
her petition for co-parenting filed with the Alabama court in late 2014. We respect the
credibility determination of the trial court and conclude that the evidence preponderates
in favor of the court’s finding that mother knew where her parents lived.

      The trial court also made a comment with respect to mother’s failure to enroll in a
government welfare program called “Families First.” Specifically, the trial court stated:
“[Mother] keeps saying she’s divorced and that she couldn’t get Families First because

        6
           At the conclusion of petitioners’ argument with respect to failure to support, petitioners’ brief
states that mother “did not deny the allegation of abandonment by willful failure to support in her pro se
Answer, which was never amended after she obtained counsel . . . .” Petitioners’ brief did not raise the
issue of waiver in its statement of the issues, so we decline to address it. See Forbess v. Forbess, 370
S.W.3d 347, 357 n.13 (Tenn. Ct. App. 2011) (citing Childress v. Union Realty Co., 97 S.W.3d 573, 578
(Tenn. Ct. App. 2002)). Moreover, under In re Carrington, we must “review the trial court’s findings as
to each ground for termination,” and here the trial court made findings with respect to both failure to visit
and failure to support. 483 S.W.3d 507, 525-26 (Tenn. 2016).
                                                   - 10 -
she was still married, or something along those lines, but I don’t have any proof of that
either.” It is unclear whether and to what extent the trial court relied upon this finding.
In any event, the court improperly shifted the burden to mother to prove that she was
unable or unwilling to enroll in the government assistance program. Petitioners bore the
burden of proving that mother was qualified to receive the additional assistance and that
she affirmatively chose not to enroll.

       Finally, although not expressly mentioned by the trial court, Mother’s affidavit of
indigency states that she had received food stamps in the amount of $500 since May
2015. The affidavit also states that mother’s monthly expenses included $500 for food
and $50 for a telephone.

       As a matter of law, we conclude that the foregoing facts do not amount to clear
and convincing evidence that mother’s failure to support the children during the four-
month period was willful. In O’Daniel v. Messier, we held that a mother’s failure to
support was not willful when she had only intermittent, part-time employment and was
“forced to rely on federal assistance and help from other family members because she
could not earn enough money to support her daughter and herself.” 905 S.W.2d 182, 188
(1995), superseded by statute on other grounds; see also In re Alysia S., 560 S.W.3d
536, 570 (Tenn. Ct. App. 2014) (“Simply finding that Mother worked and was
compensated at some point during the four-month period does not, by itself, mean that
she had the ability to pay child support. The trial court did not make any findings
regarding Mother’s income, nor did it mention Mother’s expenses.”). In O’Daniel, we
stated that failing to support a child is willful when such conduct is motivated by
“conscious disregard or indifference to [one’s] parental responsibilities,” not merely
“disadvantaged circumstances and family strife.” 905 S.W.2d at 188.

       In the present case, mother had just completed drug rehabilitation and was
attempting to care for her newborn baby, C.W. She was unemployed for approximately
two of the relevant four months and she lived with several different members of her
husband’s family. At trial, mother testified: “I was trying to get on my feet. I was trying
to get on my feet and better myself so I had a place for my kids, so I had a job, so I had a
place for my kids to go to.” Although mother is certainly responsible for the
disadvantageous circumstances in which she found herself, petitioners still bear the
burden of proving that mother had a capacity to provide support and that mother
consciously chose not to do so.

       Petitioners simply did not carry that burden. No pay stubs from this time period
were produced, and in the absence of additional evidence we decline to assume that
mother’s intermittent employment at IHOP provided sufficient funds to support a family
of four. We doubt that mother’s modest access to food stamps provided the additional
income necessary to support herself and her three children. This is certainly not the type
of evidence that “eliminates any serious or substantial doubt concerning the correctness
                                          - 11 -
of the conclusions to be drawn from the evidence,” as required by the clear and
convincing evidence standard. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)
(citations omitted). Accordingly, the trial court erred by concluding that clear and
convincing evidence exists to show that mother willfully failed to support the children
during the relevant time period.

                                            VI.

        Because we have determined that the record does not contain clear and convincing
evidence that grounds for termination exist, we do not reach the issue of whether
termination of mother’s parental rights is in the best interest of T.W. and B.W. See In re
Adoption of A.M.H., 215 S.W.3d 793, 810 n.6 (Tenn. 2007); In the Matter of Oliver Ray
Valentine, Jr., 79 S.W.3d 539, 549 (Tenn. 2002). We emphasize, however, that nothing
in this opinion should be construed as changing the custody of the children as it existed at
the time of the hearing below.

                                           VII.

       The judgment of the trial court is reversed. The costs on appeal are assessed to the
appellees, J.B.H., H.D.H., M.W.G., and S.A.G. The case is remanded, according to
applicable law, for further proceedings consistent with this opinion.




                                                    _______________________________

                                                    CHARLES D. SUSANO, JR., JUDGE




                                           - 12 -
