                       IN THE COURT OF APPEALS OF TENNESSEE
                                     AT NASHVILLE
                             Assigned on Briefs October 1, 2014

                                     IN RE JOSIE A., ET AL.1

            Appeal from the Juvenile Court for Montgomery County
     No. TPDV133048, TPDV133049, TPDV133050       Wayne C. Shelton, Judge


                 No. M2014-00442-COA-R3-PT - Filed December 12, 2014


Father’s parental rights to his three children were terminated on the grounds of abandonment
by failure to visit, failure to support, and failure to provide a suitable home, as well as
persistence of the conditions that led to the removal of the children. He appeals, contending
that there is not clear and convincing evidence sufficient to terminate his parental rights.
Finding no error in the judgment of the trial court, we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., P. J., M. S., and W. N EAL M CB RAYER, J. joined.

Nicole A. Williamson, Clarksville, Tennessee, for the appellant, Joseph H. A.

Robert E. Cooper, Jr., Attorney General and Reporter and Jason I. Coleman, Assistant
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

I. H ISTORY

      Joseph H. A. (“Father”) and Juliette N. S. (“Mother”) are the parents of three children,
Joseph A., born 2007, Josie A., born 2009, and Jillian A., born 2010. On May 4, 2012, the
Tennessee Department of Children Services (“DCS”) received a referral that the children
were being exposed to drugs; the children were placed in protective custody of DCS on May




        1
            This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
5.2 On May 8 DCS filed a Petition for Temporary Legal Custody and Ex Parte Order in
Montgomery County Juvenile Court; the court entered an order placing the children in DCS
custody and setting a preliminary hearing for May 10. At the preliminary hearing, the court
found that there was probable cause to believe the children were dependent and neglected
and ordered that the children remain in DCS custody pending an effort to place them with
their maternal aunt in Texas. On June 22 a permanency plan was prepared and signed by
both parents; the plan was ratified by the court on July 26. The effort to place the children
with their aunt was not fruitful and an adjudicatory hearing was held on August 21; at that
hearing, the children were adjudicated to be dependent and neglected and ordered to remain
in DCS custody.3

        On July 31, 2013, DCS filed a petition to terminate the parental rights of both parents
on the grounds of abandonment by failure to visit, failure to support and wanton disregard;
failure to provide a suitable home; substantial non-compliance with the permanency plan 4 ;
and persistence of conditions. On January 9, 2014, Mother surrendered her parental rights
to the children and was dismissed from the case. On January 22, 2014, a hearing was held
and an order terminating Father’s parental rights on the grounds of abandonment by failure
to visit, support, and to provide a suitable home, as well as persistence of conditions, was
entered on February 14. Father appeals, contending that the evidence does not clearly and
convincingly establish the grounds upon which his rights were terminated or that termination
of his rights was in the best interest of the children.

II. S TANDARD OF R EVIEW

        A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). Our termination statues identify “those situations in which the state’s
interest in the welfare of a child justifies interference with a parent’s constitutional rights by
setting forth grounds on which termination proceedings can be brought.” In re W.B., 2005
WL 1021618, at *7 (Tenn. Ct. App. April, 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)).
A party seeking to terminate the parental rights of a biological parent must prove at least one



        2
          Father had been arrested for domestic violence and was in custody at the time the children were
placed in DCS custody.
        3
            Neither parent appeared at the adjudicatory hearing.
        4
            The ground was alleged as to Mother only.

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of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1); In re D.L.B.,
118 S.W.3d 360, 366–67 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Secondly, the party must prove that termination of the parental rights of the biological parent
is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2).

        Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 766–69; In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry
must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); In
re Valentine, 79 S.W.3d at 546. In light of the heightened standard of proof in these cases,
a reviewing court must adapt the customary standard of review set forth by Tenn. R. App.
P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court’s
findings of fact, our review is de novo with a presumption of correctness unless the evidence
preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then
determine whether the facts, as found by the trial court or as supported by the preponderance
of the evidence, clearly and convincingly establish the elements necessary to terminate
parental rights. Id.

III. D ISCUSSION

       Tenn. Code Ann. § 36-1-113(g)(1) establishes abandonment, as defined at Tenn. Code
Ann. § 36-1-102, as a ground for terminating parental rights. Tenn. Code Ann. § 36-1-102
(1)(A)(i) and (ii) defines “abandonment”, as pertinent to the issues in this case, as follows:

       (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;

       (ii) The child has been removed from the home of the parent(s) or guardian(s)
       as the result of a petition filed in the juvenile court in which the child was
       found to be a dependent and neglected child . . . and the child was placed in the
       custody of the department . . . that the juvenile court found, or the court where
       the termination of parental rights petition is filed finds, that the department .
       . . made reasonable efforts to prevent removal of the child or that the
       circumstances of the child’s situation prevented reasonable efforts from being
       made prior to the child’s removal; and for a period of four (4) months

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       following the removal, the department or agency has made reasonable efforts
       to assist the parent(s) or guardian(s) to establish a suitable home for the child,
       but that the parent(s) or guardian(s) have made no reasonable efforts to provide
       a suitable home and have demonstrated a lack of concern for the child to such
       a degree that it appears unlikely that they will be able to provide a suitable
       home for the child at an early date.

Father contends that the evidence does not support a determination that the acts which the
court found to constitute abandonment were willful. In In re Audrey S., 182 S.W.3d 838
(Tenn. Ct. App. 2005), the court discussed willfulness in the context of termination cases:

       The concept of “willfulness” is at the core of the statutory definition of
       abandonment. . . . In the statutes governing the termination of parental rights,
       “willfulness” does not require the same standard of culpability as is required
       by the penal code. Nor does it require malevolence or ill will. Willful conduct
       consists of acts or failures to act that are intentional or voluntary rather than
       accidental or inadvertent. Conduct is “willful” if it is the product of free will
       rather than coercion. Thus, a person acts “willfully” if he or she is a free
       agent, knows what he or she is doing, and intends to do what he or she is
       doing. . . . The willfulness of particular conduct depends upon the actor’s
       intent.

Id. at 863–64 (citations and footnotes omitted).

        As an initial matter we address Father’s assertion that DCS did not comply with the
notice requirement at Tenn. Code Ann. § 37-2-403; Father does not specify the notice that
DCS is alleged not to have given or otherwise explain the manner in which DCS is alleged
to be in default.

       Tenn. Code Ann. § 37-2-403 requires that a permanency plan be prepared within 30
days of a child’s initial placement into foster care; the plan is to be approved by the court
supervising the placement. The plan “shall include the definitions of ‘abandonment’ and
‘abandonment of an infant’ contained in Tenn. Code Ann. § 36-1-102 and the criteria and
procedures for termination of parental rights.” Tenn. Code Ann. § 37-2-403(a)(2)(A). When
the plan is presented to the court for approval, the parents or guardians are given notice to
appear and the court is obliged to “explain on the record the law relating to abandonment
contained at § 36-1-102, and that the consequences of failure to visit or support the child will
be termination of parents’ . . . rights to the child. . .”. Tenn. Code Ann. § 37-2-
403(a)(2)(B)(i). If the parents are not present at the first hearing, the court is required to
make the required explanation at any subsequent hearing. Id.

                                               4
        As part of the permanency plan prepared on June 22, 2012 and ratified by the court
on July 26 Father signed a document entitled “Criteria & Procedures for Termination of
Parental Rights” in which he attested that the criteria had been explained to him by the DCS
Family Service Worker. The document includes a section on grounds for termination of
parental rights; the section contains, inter alia, an explanation of abandonment by willful
failure to visit and willful failure to support, abandonment by an incarcerated parent, and
persistence of conditions. Father acknowledged at the termination hearing that he signed the
document; in addition, the petition to terminate alleges that the court explained the
consequences of failure to visit and support at hearings on November 27, 2012, and March
21, 2013. This argument is without merit; the record shows compliance with the notice
requirements set forth in the statute.

       A. Failure to Visit

        Mr. Michael Spring, the Family Services Worker, testified that Father visited the
children in April 2013, and that Father had no contact with the children since that date and
no contact with DCS until the date of the termination hearing. Father testified that he had
become frustrated at a hearing on April 21, 2013, that he had not had contact with any of the
children since the April hearing, and that “every effort I made has been denied.” Father also
testified that he did not contact the children, DCS, or the Guardian ad Litem because he
thought the children were with the maternal grandparents so there was nothing he could do.


       In the final order the Court stated:

       One thing that stands out in the testimony that the Court heard, perhaps above
       all else, is Ms. Williamson’s assertion that [Father] honestly believed that the
       children were in the custody of the grandparents and that the State had
       withdrawn and everything was up to the grandparents at that point. [Father]
       testified that was his honest belief. The conflict with that is the testimony of
       [Father], which seems to be the most credible, not just by a preponderance of
       the evidence, but is clear and convincing, and that was during the questions of
       [Father] by Ms. Turner, the Guardian ad Litem, wherein [Father] admitted that
       he got frustrated and gave up; and just walked out of their life. [Father]
       testified that he thought that it was left up to the mother, who wouldn’t speak
       to him, but to whom he gave money. [Father] testified that he thought it was
       left up to the grandparents, who he couldn’t get in touch with and that he just
       got frustrated and walked out of the children’s life, until today. He walked
       back in their life today. The Court finds this testimony by the Father to be
       more compelling than any other.

                                              5
          The evidence is clear that Father did not visit the children on a regular basis–or seek
to visit with them–during the pertinent time period, and the court discredited his explanation
for not visiting his children. In any event, his explanation does not support a determination
that his failure to visit was not willful. See In re Audrey S., 182 S.W.3d at 864 (“Failure to
visit . . . is not excused by another person’s conduct unless the conduct actually prevents the
person with the obligation from performing his or her duty . . . or amounts to a significant
restraint of or interference with the parent’s efforts to . . . develop a relationship with the
child.”). This ground for termination is sustained.

       B. Failure to Support

        Mr. Spring testified that Father has not paid support, or sent cards or gifts during the
four months preceding the petition for termination. Father testified that he sent support
“numerous times on a regular basis up until September 2012” but that he did not bring
documentation because he did not know he would have an attorney at the termination
hearing. Father also stated that he “was never put on child support” and did not pay support
to the State between March 21, 2013 and July 21, 2013.

       The Court found that:

       That [Father] within the same four months, has made no effort to support these
       children, not even a token amount of support, gifts, cards, or letter have been
       submitted for the benefit of these children. [Father] has abandoned these
       children by failure to support. Between March 31, 2013 and July 31, 2013,
       [Father] provided no support, and no proof of support. Nothing was brought
       today that support was paid to the State, even though [Father’s] testimony is
       that he had given money to this mother with whom he had had a substantial
       conflict with. There is no proof of that whatsoever. No support went to the
       benefit of the children. There were no gifts, no cards, no letters, no presents,
       no visits, and no contacts.

        Father’s explanation that he was “never put on child support” does not relieve him of
his responsibility to pay support; neither does it establish that his failure to pay support was
not willful. See In re Audrey S., 182 S.W.3d at 864 (“Failure to . . . support a child is
‘willful’ when a person is aware of his or her duty to . . . support, has the capacity to do so,
makes no attempt to do so, and has no justifiable excuse for not doing so.”). The June 22,
2012, permanency plan required Father to pay support to DCS for the children and, as noted
earlier, Father signed the form setting forth the criteria for termination of rights including
termination for failure to pay support. Father does not contend, and the record does not



                                               6
support a finding that he could not pay support during the pertinent time period; the record
clearly shows that he did not pay support and that his failure in this regard was willful.

       C. Failure to Provide a Suitable Home

      In its determination that Father abandoned the children by failure to provide a suitable
home, the court made the following findings:

       The Department made reasonable efforts to prevent the removal of the
       children. The children have been in the custody of the Department
       consistently since May 5, 2012, through the Montgomery County Juvenile
       Court. The Department made reasonable efforts to find a less drastic
       alternative than state custody, but there was no less drastic alternative to state
       custody. The children were declared dependent and neglected on August 21,
       2012. The children have remained continuously in foster care since May 5,
       2012. For the four months after the removal, DCS made reasonable efforts to
       assist the Respondent in establishing a suitable home for the children. Mr.
       Atkins testified that DCS had over and over again made efforts to help him
       establish a home from May 5, 2012 through April 1, 2013; and that the
       Guardian ad Litem had been the biggest advocate for reuniting the children
       with him. Mr. Atkins failed in providing a safe home for the children in the
       four months after removal. Seven months after the children entered custody,
       Mr. Atkins came close to establishing a suitable home, with the help of the
       Department. The Department obtained court approval to begin a trial home
       visit on three occasions between December, 2012 and April 1, 2013.

              Unfortunately, safety hazards were discovered at the last moment,
       including sewage that was backing up into the home. This coupled with the
       father’s own failure to provide information prohibited the trial home visit from
       occurring. It was after the third attempt to begin a trial home visit failed, that
       Mr. Atkins stopped visiting the children and ceased contact with the
       Department and the Guardian ad Litem. The Department continued to make
       reasonable efforts. Mr. Atkins gave up and quit trying to provide a suitable
       home for his children and disappeared in April, 2013. By his own testimony,
       Mr. Atkins had contacted the Department and the Guardian ad Litem
       numerous times. Mr. Atkins knew how to contact the Department and
       Guardian ad Litem as their phone numbers and addresses did not change, yet
       after April, 2013, he did not do so. Mr. Atkins gave up and abandoned these
       children.



                                               7
        Father does not challenge the findings; rather, he contends that the evidence does not
support the holding that he failed to provide a suitable home. We disagree; the findings are
fully supported by the testimony of Father and Mr. Spring. It is clear that, despite his efforts
as well as those of DCS, Father was unable to provide a home in which the children could
live safely; his frustration led his to his failure to communicate with either DCS or the
Guardian ad Litem. This ground for termination is clearly supported by the evidence.

       D. Persistence of Conditions

      The court made the following findings with respect to the persistence of the conditions
which led to the removal of the children:

       Persistent conditions exist in that Mr. Atkins has not remedied the conditions
       that brought the children into the custody of the state. It has been more than
       six months since the children were removed from the Respondent’s home by
       order of the court. DCS removed the children from the home due to illegal
       drug use by the parents and domestic violence between the parents. The
       children were also the subject of a prior long-term Dependency/Neglect
       petition filed September 23, 2010. The children were adjudicated dependent
       and neglected during the pendency of that petition as well. The long term
       petition was also due to the domestic violence between the parties; bruises
       from spankings by Mr. Atkins; and unexplained scratches and cigarette burns.
       The Department has been working with this family since September, 2010.
       The conditions that led to the removal in May, 2012, still persist and/or
       conditions exist in the home that, in all reasonable probability, would lead to
       further abuse or neglect. There is little chance that those conditions will be
       remedied soon so that the children can be returned safely to the home. For
       twenty months during this custodial episode and also from September 22, 2010
       – March 21, 2011; DCS made reasonable efforts to help the Respondent
       remedy them, to no avail. Mr. Atkins has not made contact with the children
       or the Department since April 1, 2013. Mr. Atkins admitted that he had been
       arrested for theft of property within two weeks of this hearing. Continuation
       of the parent/child relationship greatly diminishes the chances of the children
       remaining in a safe, stable, home and achieving permanency.

       Father does not contest this ground. Notwithstanding, we have reviewed the record,
and the court’s findings are supported by the record and clear and convincing evidence.




                                               8
       E. Best Interest

        Once a ground for termination has been proven by clear and convincing evidence, the
trial court must then determine whether it is the best interest of the child for the parent’s
rights to be terminated, again using the clear and convincing evidence standard. The
legislature has set out a list of factors at Tenn. Code Ann. § 36-1-113(i) for the courts to
follow in determining the child’s best interest.5 The list of factors in the statute is not
exhaustive, and the statute does not require every factor to appear before a court can find that
termination is in a child’s best interest. See In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct.
App. 2006) (citing Tenn. Dep’t of Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-
CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-
COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).

       The trial court made findings as to the statutory factors in determining that termination
was in the best interest of the children. Significantly, the court noted the lack of Father’s
communication with the children, DCS or the guardian ad litem, particularly after April 2013,



       5
           The factors at Tenn. Code Ann. § 36-1-113(i) are:

       (1) Whether the parent or guardian has made such an adjustment of circumstance, conduct,
       or conditions as to make it safe and in the child’s best interest to be in the home of the
       parent or guardian;
       (2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable
       efforts by available social services agencies for such duration of time that lasting adjustment
       does not reasonably appear possible;
       (3) Whether the parent or guardian has maintained regular visitation or other contact with
       the child;
       (4) Whether a meaningful relationship has otherwise been established between the parent
       or guardian and the child;
       (5) The effect a change of caretakers and physical environment is likely to have on the
       child’s emotional, psychological and medical condition;
       (6) Whether the parent or guardian, or other person residing with the parent or guardian, has
       shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the
       child, or another child or adult in the family or household;
       (7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe,
       whether there is criminal activity in the home, or whether there is such use of alcohol,
       controlled substances or controlled substance analogues as may render the parent or
       guardian consistently unable to care for the child in a safe and stable manner;
       (8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental
       to the child or prevent the parent or guardian from effectively providing safe and stable care
       and supervision for the child; or
       (9) Whether the parent or guardian has paid child support consistent with the child support
       guidelines promulgated by the department pursuant to § 36-5-101.

                                                     9
and the failure of Father to develop a meaningful relationship with the children. While
Father points to evidence showing efforts he made to improve his condition, the evidence
shows that the children are living in a safe stable family home with their maternal
grandparents, are doing “extremely well”, and that a change of caregivers would be
detrimental to them. Considering all the best interest factors, the evidence supports the
holding that termination of Father’s parental rights is in the best interest of the children.

IV. C ONCLUSION

       For the foregoing reasons, we affirm the decision of the trial court terminating
Father’s parental rights.




                                                  ________________________________
                                                  RICHARD H. DINKINS, JUDGE




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