                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 AUGUST 29, 2001 Session

    SCARLETT MARIE SPENCER & PATRICK MENEES SPENCER v.
                 JAMES JUSTIN AYDLOTTE

                 Direct Appeal from the Chancery Court for Gibson County
                   No. 14944; The Honorable George R. Ellis, Chancellor



                  No. W2001-00995-COA-R3-CV - Filed December 28, 2001


This is a suit for the termination of parental rights. The Appellants filed a petition in the Chancery
Court of Gibson County to terminate the Appellee’s parental rights to his child. Following a hearing,
the trial court entered an order denying the Appellants’ petition. The Appellants appeal the trial
court’s order denying the Appellants’ petition to terminate the Appellee’s parental rights. For the
reasons stated herein, we affirm the trial court’s decision.

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

ALAN E. HIGHERS , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY LILLARD , J., joined.

L. L. Harrell, Jr., Trenton, TN, for Appellants

Jeffrey A. Smith, Trenton, TN, for Appellee

                                             OPINION

                                 I. Facts and Procedural History

        The Appellant, Scarlett Marie Spencer (“Mrs. Spencer”), and the Appellee, James Justin
Aydlotte (“Mr. Aydlotte”), are the natural parents of James Landon Aydlotte (“Landon”), born April
5, 1996. Mrs. Spencer and Mr. Aydlotte were never married, and Landon was legitimated by action
of the Juvenile Court of Gibson County on April 16, 1996. On April 23, 1999, Mrs. Spencer
married the Appellant, Patrick Menees Spencer (“Mr. Spencer”).
        On June 20, 2000, Mr. Aydlotte filed a petition in the Juvenile Court of Gibson County to
establish parentage and for specific visitation.1 On June 21, 2000, Mr. and Mrs. Spencer filed a
petition to terminate parental rights and for Mr. Spencer to adopt Landon. The petition alleged that
Mr. Aydlotte abandoned Landon in that, for a period of four months immediately preceding the filing
of the petition, Mr. Aydlotte willfully failed to visit or support Landon. On July 14, 2000, Mr.
Aydlotte filed a motion for specific visitation in the Juvenile Court of Gibson County. On August
2, 2000, Mr. Aydlotte filed a response to the petition to terminate parental rights and for adoption.
Mr. Aydlotte admitted that he had failed to visit or support Landon for the four months immediately
preceding the filing of the petition. Mr. Aydlotte claimed, however, that Mrs. Spencer refused to
allow Mr. Aydlotte to visit Landon and refused to accept child support. On August 7, 2000, the
Juvenile Court of Gibson County entered an order transferring the motion for specific visitation to
the Chancery Court of Gibson County for consolidation with the hearing on the petition to terminate
parental rights and for adoption.

        The hearing on the petition to terminate parental rights and for adoption was held on
November 21, 2000. On December 28, 2000, the trial court entered an order denying the petition.
The trial court stated that while Mr. Aydlotte “has not pursued his parental rights as aggressively as
he should have, the Plaintiffs have failed to show by clear and convincing evidence that James Justin
Aydlotte has engaged in conduct that evinces a settled purpose to forego all parental duties and
relinquish all parental claims to the child.” The trial court also found that it did not have jurisdiction
to hear the motion for specific visitation. This appeal followed.

                                             II. Standard of Review

         Parents have a fundamental right to the care, custody, and control of their children. See
Stanley v. Illinois, 405 U.S. 645, 651 (1972). This right is not absolute, however, and parental rights
may be terminated upon a finding by clear and convincing evidence that the grounds for termination
of parental rights have been established and that termination is in the best interest of the child. See
TENN. CODE ANN . § 36-1- 113(c) (2000). Clear and convincing evidence is evidence which
“eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn
from the evidence. It should produce in the factfinder’s mind a firm belief or conviction with regard
to the truth of the allegations sought to be established.” O’Daniel v. Messier, 905 S.W.2d 182, 188
(Tenn. Ct. App. 1995) (citations omitted).

       Under this heightened standard of review, we must first review the trial court’s findings in
accordance with section 13(d) of the Tennessee Rules of Appellate Procedure. That review is de
novo with a presumption of correctness as to the trial court’s factual findings, unless the
preponderance of the evidence is otherwise. See TENN. R. APP . P. 13(d). For issues of law, the
standard of review is de novo, with no presumption of correctness. See Ridings v. Ralph M. Parsons
Co., 914 S.W.2d 79, 80 (Tenn. 1996). We must then determine whether the facts make out a clear


         1
           Upon learning that an order had previously b een entered fin ding Mr. Ay dlotte to be the father of Landon , Mr.
Ay dlotte d ismissed the petition by an ag reed order entered on Ju ly 25 , 200 0.

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and convincing case in favor of terminating parental rights. See In re Drinnon, 776 S.W.2d 96, 100
(Tenn. Ct. App. 1988).

                                       III. Law and Analysis

        The sole issue presented for our review is whether the trial court erred by denying the petition
to terminate parental rights. In order to terminate parental rights, the court must find by clear and
convincing evidence that grounds for termination, as set forth by section 36-1-113(g) of the
Tennessee Code, have been established, and the court must determine that termination is in the best
interest of the child. See TENN. CODE ANN . § 36-1-113(c) (2000). As pertinent in the case at bar,
section 36-1-113(g) of the Tennessee Code provides that a termination of parental rights may be
based upon the ground of abandonment pursuant to section 36-1-113(g)(1). See TENN. CODE ANN .
§ 36-1-113(g)(1) (2000). In the present case, therefore, we must reverse the trial court’s judgment
denying the petition to terminate parental rights if the record contains clear and convincing evidence
to support abandonment and if termination is in the best interest of the child.

       Under the provisions of section 36-1-113(g)(1), termination of parental rights may be based
upon a parent’s abandonment of his or her child. See TENN. CODE ANN . § 36-1-113(g)(1). Section
36-1-102 of the Tennessee Code defines abandonment, for purposes of terminating parental rights,
as:

               (1)(A)(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 make
               reasonable payments toward the support of the child;
               (B) For purposes of this subdivision (1), “token support” means
               that the support, under the circumstances of the individual
               case, is insignificant given the parent’s means;

                (C) For purposes of this subdivision (1), “token visitation”
                means that the visitation, under the circumstances of the
                individual case, 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;

                (D) For purposes of this subdivision (1), “willfully failed to
                support” or “willfully failed to make reasonable payments
                toward such child’s support” means that, for a period of
                four (4) consecutive months, no monetary support was paid


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                or that the amount of support paid is token support;

                (E) For purposes of this subdivision (1), “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)(A)-(E) (2000).

         In In re Swanson, 2 S.W.3d 180 (Tenn. 1999), the Tennessee Supreme Court found the above
definitions of “willfully failed to support” and “willfully failed to make reasonable payments toward
such child’s support” to be unconstitutional because they “in effect create an irrebuttable
presumption that the failure to provide monetary support for the four months preceding the petition
to terminate parental rights constitutes abandonment, irrespective of whether that failure was
intentional.” Id. at 188. The Swanson court held that the definition as it existed under the prior
statute should be applied until the legislature amends the statute. See id. at 189. “Under the prior
statute, the definition of ‘abandoned child’ contained an element of intent both in failures to visit and
failures to support.” Id. at 189 n.14 (citing TENN. CODE ANN . § 36-1-102(1)(A)(i) (Supp. 1994)).

        Tennessee courts have defined abandonment as “any conduct on the part of the parent which
evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.”
Ex parte Wolfenden, 348 S.W.2d 751, 755 (Tenn. Ct. App. 1961) (citations omitted). The evidence
of abandonment must show “an actual desertion, accompanied with an intention to entirely sever,
so far as it is possible to do so, the parental relationship and throw off all obligations growing out
of the same.” Fancher v. Mann, 432 S.W.2d 63, 65 (Tenn. Ct. App. 1968) (citation omitted).
Abandonment may be found only when, given the benefit of every controverted fact, an inference
of abandonment follows as a matter of law. See id. at 66.

         The case at bar is analogous to In re Adoption of Self, 836 S.W.2d 581 (Tenn. Ct. App.
1992). In Self, this Court considered the issue whether the trial court erred by terminating the
parental rights of a father to his minor child. See id. at 582. The trial court found that the father
abandoned the child based on his failure to pay child support or exercise visitation for four years.
See id. This Court reversed the trial court’s finding of abandonment based upon evidence in the
record that the mother made it difficult for both the father and his parents to visit with the child. See
id. at 583. The record also indicated that the mother refused to allow the father to exercise visitation
due to his failure to pay child support. See id. at 584. This Court noted that the testimony as to
visitation or attempted visitation was highly controverted. See id. This Court concluded that the
evidence of abandonment was not clear and convincing, and “[w]hile the record is clear that [the
father] has not been a good parent in many respects, it does not support a finding of abandonment
as defined by the courts in this state.” Id.

       The record before us indicates that Mr. Aydlotte failed to pay child support since November
2, 1996 and failed to visit with Landon since April 6, 1998. The testimony at the hearing was


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controverted, however, as to whether Mrs. Spencer thwarted Mr. Aydlotte from paying child support
and visiting with Landon. Mrs. Spencer testified that she told Mr. Aydlotte that he did not have to
pay child support if he thought she was using the money for her personal use. Mrs. Spencer testified
that Mr. Aydlotte stopped paying child support shortly thereafter. Mrs. Spencer further testified that
Mr. Aydlotte called her on December 26, 1998 and wanted to bring Christmas gifts to Landon. Mrs.
Spencer stated the following:

               he asked when would be an appropriate time for him to bring
               Landon his gifts. And I told him that there wasn’t going to be
               an appropriate time, that if he wanted to come and see the child
               and be a part of the child’s life, that he could do that by calling
               and start sending child support again, and then we would work
               out something as far as visitation, but that he wasn’t going to
               show up on Christmas and birthdays.

Mrs. Spencer testified that she had no contact with Mr. Aydlotte following the December 26, 1998
phone conversation.

        Mr. Aydlotte testified that Mrs. Spencer told him she no longer wanted him to pay child
support. Mr. Aydlotte testified, however, that paying child support was not made a condition of
visiting Landon by Mrs. Spencer. Mr. Aydlotte testified that visitation with Landon took place at
Mrs. Spencer’s home. Mr. Aydlotte testified that Mrs. Spencer refused to allow him to take Landon
to his home for visitation. Mr. Aydlotte further testified that, prior to April 6, 1998, Mrs. Spencer
either refused his requests to visit with Landon or told Mr. Aydlotte that “they had something else
to do.” Mr. Aydlotte testified that he never desired to terminate his parental rights or abandon
Landon.

       Mr. Aydlotte’s mother, Lynn Elliot (“Ms. Elliot”), testified that Mrs. Spencer refused Mr.
Aydlotte’s requests to take Landon to his home for visitation. Ms. Elliot testified that Mrs. Spencer
eventually refused to allow Mr. Aydlotte to visit with Landon. Ms. Elliot testified that in order for
Mr. Aydlotte to be allowed to visit with Landon, Mrs. Spencer said that he would have to pay child
support.

        From our review of the record, we agree with the trial court’s statement that Mr. Aydlotte
“has not pursued his parental rights as aggressively as he should have.” Nevertheless, Mr. Aydlotte
and Ms. Elliot testified at the hearing that Mrs. Spencer thwarted Mr. Aydlotte’s contact with Landon
by refusing child support payments and refusing visitation. Ms. Elliot testified that Mrs. Spencer
made visitation conditional upon Mr. Aydlotte paying child support. Giving Mr. Aydlotte the benefit
of every controverted fact, we find that Mr. and Mrs. Spencer failed to establish by clear and
convincing evidence that Mr. Aydlotte engaged in conduct “which evinces a settled purpose to
forego all parental duties and relinquish all parental claims to the child.” The record fails to support
a finding of abandonment as defined by the courts in this state. Accordingly, we affirm the trial
court’s decision.


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                                          IV. Conclusion

       For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellants, Scarlett Marie Spencer and Patrick Menees Spencer, and their surety,
for which execution may issue if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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