                                                                                           04/14/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                              September 17, 2019 Session

                                   IN RE MATTIE L.

                 Appeal from the Chancery Court for Shelby County
                    No. CH-16-1899 Walter L. Evans, Judge
                     ___________________________________

                           No. W2018-02287-COA-R3-PT
                       ___________________________________


Mother and Father had been divorced for less than two years when Mother and her new
husband petitioned to terminate Father’s parental rights. A few weeks before trial, Father
was arrested, and he did not appear for the trial. In Father’s absence, the chancery court
concluded that two statutory grounds for termination had been proven by clear and
convincing evidence: abandonment by willful failure to visit and abandonment by willful
failure to support. The court also concluded that the evidence was clear and convincing
that termination of Father’s parental rights was in the child’s best interest. As part of its
analysis, the court applied the missing witness rule based on Father’s failure to testify at
trial. And the court applied the doctrine of unclean hands to “repel[] [Father] at the
courthouse steps from receiving any relief that he has requested in this cause.” We
conclude that neither the missing witness rule nor the doctrine of unclean hands was
applicable and that their application was fundamentally unfair to Father. We further
conclude that the evidence of the two grounds for terminating Father’s parental rights
was less than clear and convincing. So we reverse.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Abigail D. Hall, Memphis, Tennessee, for the appellant, Christian L.

Mitzi C. Johnson, Collierville, Tennessee, for the appellees, Michael G. and Rebecca G.

Lisa A. Zacharias, Memphis, Tennessee, Guardian ad Litem.
                                       OPINION

                                           I.

                                           A.

       Rebecca G. (“Mother”) and Christian L. (“Father”) married in June 2007. Their
union produced one child, Mattie, born in January 2012. Mother and Father divorced just
over three years later.

       At the time of the divorce, Mother and Father lived with Mattie in Florida. The
March 2015 Florida consent final judgment of dissolution of marriage incorporated a
marital settlement agreement that provided for parenting arrangements. Mother and
Father agreed that Mother would be the primary residential parent and that Father’s
parenting time would be supervised by his mother (“Grandmother”). Father also agreed
that Mother would relocate with the child to Memphis, Tennessee. So the parenting plan
provided that Father’s visitation would take place in the vicinity of Mother’s new
residence on alternate weekends and in the summer commencing five days following the
end of the school term and ending two weeks prior to the start of the new term. The
parenting plan also allowed Father time during certain holidays and on the child’s
birthday. Based on the allotted parenting time, the court ordered Father to pay $503.91 a
month in child support, as well as, half of Mattie’s private school tuition, books,
transportation, and other private school costs.

       Following her relocation and within two months of the divorce, Mother met and
moved in with Steven G. (“Stepfather”). Just five months after the divorce, Mother and
Stepfather married. Within four months of marrying, Mother and Stepfather were
discussing the possibility of Stepfather adopting Mattie.

       In November 2015, Mother registered the Florida judgment of dissolution in
Shelby County and petitioned to hold Father in civil contempt for failure to pay child
support and to modify the parenting plan. See Tenn. Code Ann. §§ 36-5-2602, 36-6-229
(2017). In February 2016, the court held Father in civil contempt for failing to pay
support and awarded Mother a judgment of $8,874.92. And the court ordered Father to
pay Mother $715.91 per month for child support, arrearages, and health insurance by
wage assignment. The court also modified the parenting plan. As modified, Father
received parenting time, supervised by Grandmother, on the first and third weekend of
every month. The holiday and birthday schedule remained the same.

      The modified parenting plan and child support order proved to be no more
workable than the first. Mother and Father soon found themselves back in court.


                                           2
                                                    B.

       On December 19, 2016, Stepfather, joined by Mother, petitioned to terminate
Father’s parental rights and for adoption. The petition alleged that Father had abandoned
Mattie both by his willful failure to visit and by his willful failure to support.1

       In late September 2018, as the trial date approached, Father was arrested. On
October 5, 2018, while in court for a previously scheduled hearing, Father’s counsel
orally moved to continue the trial date, asserting Father’s incarceration as grounds. But
the court denied the request.

       On October 15, the day of trial, Father was not present in the courtroom. When
the court asked about Father’s absence, his counsel responded:

        My client has an appearance before the criminal court this morning, Your
        Honor. He is currently in custody across the street and has an appearance.
        I have been in communication with his criminal defense attorney, have not
        gotten an actual answer as to what the status of what is going on over there
        this morning is.

Shortly thereafter, the following colloquy took place between the court and Father’s
counsel:

               THE COURT:              Now, where did you say your client was
        incarcerated?

               [COUNSEL]: He is at the Shelby County Criminal Justice Center
        across the street.

                THE COURT: And what is the reason he is not produced today?

              [COUNSEL]: He has a hearing there, and they would not transport
        because he has an appearance before a judge . . . .

                ....

                THE COURT: Is he in a trial or just to make an appearance?

        1
          The petition also alleged that Father “ha[d] failed to manifest an ability and willingness to
assume legal and physical custody or financial responsibility of the minor child[] and placing the child in
[Father’s] legal and physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child.” See Tenn. Code Ann. § 36-1-113(g)(14) (Supp. 2019). But Mother
and Stepfather did not pursue this ground at trial.
                                                    3
              [COUNSEL]: Just an appearance, and he should be done, I
       anticipate, relatively soon.

              THE COURT: Soon, meaning today or tomorrow?

              [COUNSEL]: That is my understanding, and I’m eagerly waiting
       any information to get him here.

       Counsel did not renew her request for a continuance in light of Father’s
unavailability. Instead, counsel requested that the trial be “bifurcated,” with the court
only hearing evidence of the grounds for termination. As counsel explained:

              I do believe we can begin, so long as we’re limiting it to the
       petitioner’s [sic] proof that their grounds exist by clear and convincing
       evidence that [Father] willfully failed to do the things they’ve alleged him
       doing. We can go ahead and get started on that, and if Your Honor finds
       that grounds don’t exist, then it is not necessary to hear any proof about
       best interest or review any documents that might go to best interest or the
       other day’s worth of testimony that we’re going to sit through to determine
       what’s in this child’s best interest because we have to get over the hurdle of
       grounds first.

The court denied the request to bifurcate, and the trial proceeded.

      On the second day of the trial, Father was still not present. When the court again
asked about Father’s absence and whether the trial could proceed without him, Father’s
counsel said “I’m here as his attorney of record, and I absolutely believe we can proceed
without him.” The trial proceeded that day and another four days thereafter.

        The court terminated Father’s parental rights. Its conclusions of law began with
an analysis of the missing witness rule. Mother and Stepfather asserted the rule applied
due to Father’s failure to testify. The court agreed and held that there was a
“presump[tion] that [Father’s] testimony would have been unfavorable to him.” The
court then considered both of the statutory grounds asserted and concluded that the
evidence was clear and convincing that Father had abandoned Mattie by the willful
failure to visit and by the willful failure to pay child support.

       In evaluating Mattie’s best interest and the statutory factors, the court again
applied the missing witness rule. Among the factors the court considered was whether a
meaningful relationship had otherwise been established between Father and Mattie. See
Tenn. Code Ann. § 36-1-113(i)(4) (Supp. 2019). Because Father had “failed to appear so
that he could testify about his relationship with the minor child,” the court “presumed that
[Father’s] testimony would be adverse to his case.” After evaluating all the applicable
                                              4
statutory best interest factors, the court concluded that “it [wa]s clearly in the best interest
of Mattie . . . that the parental rights of [Father] be terminated.”

       As a final point, the court decided that Father was “guilty of unclean hands.” The
court found that some of Father’s answers to Mother’s and Stepfather’s interrogatories
were false. As a consequence, the court determined that Father “should be repelled at the
courthouse steps from receiving any relief that he has requested in this cause.”

                                              II.

        A parent has a fundamental right, “protected by the Due Process Clauses of the
federal and state constitutions,” to the care and custody of his own child. In re
Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016). But parental rights are not absolute.
Id. at 522; In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010). Our parental termination
statute specifies circumstances in which the State’s interest in the welfare of a child
justifies interference with a parent’s right to his child. See Tenn. Code Ann. § 36-1-
113(g). Yet “when judicial proceedings are initiated to terminate parental rights, parents
are constitutionally entitled to certain fundamentally fair procedures.” In re Gabriella D.,
531 S.W.3d 662, 680-81 (Tenn. 2017) (citing In re Carrington H., 483 S.W.3d at 522).

                                              A.

       We first consider two rulings by the trial court that had implications for the
fundamental fairness of the trial: the application of the missing witness rule, along with
the “presumption that [Father’s] testimony would have been unfavorable to him,” and the
doctrine of unclean hands.

1.     Missing Witness Rule

       As our supreme court has explained,

       Under the missing witness rule, a party is entitled to argue, and have the
       jury instructed, that if the other party has it peculiarly within his power to
       produce a witness whose testimony would naturally be favorable to him,
       the failure to call that witness creates an adverse inference that the
       testimony would not favor his contentions.

State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992) (emphasis added) (citing State
v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984)). Application of the missing witness rule
requires evidence “show[ing] that the witness had knowledge of material facts, that a
relationship exists between the witness and the party that would naturally incline the
witness to favor the party and that the missing witness was available to the process of the
Court for the trial.” Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). The anticipated
                                             5
testimony must not be “merely cumulative,” Francis, 669 S.W.2d at 89, and the uncalled
witness “must [also] not have been equally available to both parties.” State v. Boyd, 867
S.W.2d 330, 337 (Tenn. Crim. App. 1992). The party invoking the rule has the burden of
establishing the necessary elements. See State v. Thompson, 768 S.W.2d 239, 250 (Tenn.
1989).

        Even assuming for the sake of argument that Mother and Stepfather established
the necessary elements, the missing witness rule was not applicable here. There was no
jury. This Court has stated, on more than one occasion, that the rule does not apply to
bench trials. Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 185 (Tenn. Ct. App.
2016) (“[Party] appears to be asking this Court to apply the missing witness rule to this
bench trial, which we determine to be inapplicable.”); see also Nelson v. Justice, No
E2017-00895-COA-R3-CV, 2019 WL 337040, at *19 (Tenn. Ct. App. Jan. 25, 2019)
(“Father fails to explain how this rule applies to a bench trial like the one here.”) perm.
app. denied, (Tenn. Sept. 18, 2019); In re Estate of Hamilton, No. M2009-01882-COA-
R3-CV, 2011 WL 532296, at *6 (Tenn. Ct. App. Feb. 14, 2011) (“[T]he missing witness
and missing evidence rule applies to jury trials where the trial judge instructs the jury
how to interpret the evidence or lack thereof, and [the appellant] does not explain how
this rule can apply to a bench-tried case such as this.”).

        Additionally, the missing “witness” was a party.2 Generally, “a defendant in a
civil case is not required to testify and has the right to rely upon the duty of the plaintiff
to carry the burden of proof and to avail himself of the plaintiff’s failure to make out a
case.” Runnells v. Rogers, 596 S.W.2d 87, 90 (Tenn. 1980). With a party, similar to the
missing witness rule, the court may make unfavorable inferences as a result of the party’s
failure to testify. Id. But “[a]n adverse inference . . . does not supply proof of any
particular fact; rather, it may be used only to weigh facts already in evidence.” In re
Samantha C., 847 A.2d 883, 899 (Conn. 2004); see also Runnells, 596 S.W.2d at 90 (The
adverse inference “applies, however, only ‘when the plaintiff’s proof and the legal
deduction therefrom make a prima facie case against the defendant.’” (quoting Davis v.
Newsome Auto Tire and Vulcanizing Co., 213 S.W. 914, 915 (Tenn. 1919))).

       Based on the language used in the order, it does not appear the court merely
applied an adverse inference to weigh the facts in evidence. Instead the court appears to
have presumed the existence of evidence based on Father’s failure to testify.



        2
           “[D]ue process require[d] the trial court to provide the prisoner defendant with meaningful
access to the court and an opportunity to be heard.” In re Perry, No. W2000-00209-COA-R3-CV, 2001
WL 277988, at *5 (Tenn. Ct. App. Mar. 12, 2001); see also Tenn. Code Ann. § 36-1-113(f)(3) (requiring
proof that an incarcerated parent has been advised of his “right to participate in the hearing and contest
the allegation that the rights of the incarcerated parent . . . should be terminated”). On appeal, Father does
not claim that he was denied access to the court or an opportunity to be heard.
                                                      6
2.      Doctrine of Unclean Hands

        The doctrine of unclean hands is a maxim of equity. In re Estate of Boote, 265
S.W.3d 402, 417 (Tenn. Ct. App. 2007); Henry R. Gibson, Gibson’s Suits in Chancery,
§ 2.09 (William H. Inman ed., 8th ed. 2004). The doctrine “is based on the principles
that he who seeks equity must do equity and that he who has done inequity cannot have
equity.” In re Estate of Boote, 265 S.W.3d at 417. “[I]t provides the court with a basis to
decline to grant relief to parties who have willfully engaged in unconscionable,
inequitable, immoral, or illegal acts with regard to the subject matter of their claims.” Id.
(footnote omitted); Continental Bankers Life Ins. Co. v. Simmons, 561 S.W.2d 460, 465
(Tenn. Ct. App. 1977). The doctrine “applies to him who affirmatively seeks equitable
relief.” City of Columbus v. Mercantile Tr. & Deposit Co. of Baltimore, 218 U.S. 645,
662 (1910). So the doctrine would have no application to a defendant not asserting a
counter or cross-claim. See 30A C.J.S. Equity § 105, Westlaw (database updated March
2020).

       To the extent that a parental termination and stepparent adoption may be
considered an action in equity,3 the unclean hands doctrine had no application to Father.
Only Mother and Stepfather were seeking relief. Thus Father should not have been, in
the words of the court, “repelled at the courthouse steps from receiving any relief that he
has requested in this cause.” Far from being repelled at the courthouse steps, Father had
a constitutional right to be there. See In re Perry, No. W2000-00209-COA-R3-CV, 2001
WL 277988, at *5 (Tenn. Ct. App. Mar. 12, 2001).

       We conclude that the trial lacked fundamental fairness based on the court’s
application of the missing witness rule and the doctrine of unclean hands. Neither the
rule nor the doctrine was applicable. And their application undermined the protections to
which Father was entitled by virtue of the liberty interest at stake. See In re Gabriella D.,
531 S.W.3d at 680-81; In re Carrington H., 483 S.W.3d at 521; In re Angela E., 303
S.W.3d at 250.


        3
           We have considered the possible application of the unclean hands doctrine in at least two cases
involving minors. Bulick v. Thompson, W2004-00816-COA-R3-CV, 2005 WL 123502, *4 (Tenn. Ct.
App. Jan. 18, 2005) (parental relocation); Haynes v. Haynes, 904 S.W.2d 118, 120 (Tenn. Ct. App. 1995)
(modification of custody). And there may be historical precedent for treating cases involving minors as
an equity action. See Ex parte Badger, 226 S.W. 936, 938 (Mo. 1920) (“[T]he protection of infants, even
from their parents . . . constitutes one of the well-established grounds for the exercise of equity
jurisdiction in the protection of personal rights.”). Ultimately, in our prior cases, we concluded that
“‘unclean hands’ does not necessarily repel a petition regarding the welfare of a child which
predominates over any offended dignity of the court.” Haynes, 904 S.W.2d at 120 (emphasis added); see
also Bulick, 2005 WL 123502, at *4 (quoting the same passage from Haynes).


                                                    7
                                             B.

       Although we have determined that the trial lacked the fundamental fairness
required by the Due Process Clauses of the federal and state constitutions and that alone
supports reversal, we still 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.” In re
Carrington H., 483 S.W.3d at 525.

        Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 544 (Tenn. 2015).
Parties seeking termination of parental rights must prove the existence of at least one of
the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-113(g).
Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for termination are
shown, they then must prove that terminating parental rights is in the child’s best interest.
Id. § 36-1-113(c)(2).

        Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c)). This heightened burden
of proof serves “to minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights.” Id. “Clear and convincing
evidence” leaves “no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992). It produces a firm belief or conviction in the fact-finder’s mind regarding the truth
of the facts sought to be established. In re Bernard T., 319 S.W.3d at 596.

       On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d at 596-97. A “trial court’s ruling that the evidence sufficiently
supports termination of parental rights is a conclusion of law.” In re Carrington H., 483
S.W.3d at 524. We review the trial court’s conclusions of law de novo with no
presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

       One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). The parental termination statutes
give alternative definitions for “abandonment.” Id. § 36-1-102(1)(A) (2017). At the time
Mother and Stepfather petitioned for termination, “abandonment” included “the willful
failure to visit, to support, or to make reasonable payments toward the support of the
                                            8
child during the four-month period preceding the filing of the petition to terminate
parental rights.”4 In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing
Tenn. Code Ann. § 36-1-102(1)(A)(i)). Mother and Stepfather alleged, and the court
concluded, that Father had abandoned Mattie by the willful failure to visit and to support.

       Because of the definition of abandonment at the time the petition was filed, the
court had to conclude that Father’s abandonment of Mattie was willful. The failure to
visit or support alone was insufficient to establish abandonment for purposes of
terminating parental rights. While the failure of the parent to visit or support presents a
question of fact, “[w]hether a parent’s failure to visit or support constitutes willful
abandonment . . . is a question of law.” Id. (citing In re Adoption of A.M.H., 215 S.W.3d
793, 810 (Tenn. 2007)). “Failure to visit or support a child is ‘willful’ when a person is
aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to
do so, and has no justifiable excuse for not doing so.” In re Audrey S., 182 S.W.3d 838,
864 (Tenn. Ct. App. 2005).

1.      Willful Failure to Support

        We are concerned with Father’s support of and visits with Mattie during the four-
month period from August 19, 2016, to December 18, 2016. See In re Jacob C.H., No.
E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014)
(concluding that the day before the petition is filed is the last day in the relevant four-
month period). The evidence does not preponderate against the finding that Father failed
to pay child support during the relevant period. So we focus our review on whether the
failure to support was willful.

        A willfulness determination must take into account the parent’s financial ability,
or capacity, to pay support. In re Mackenzie N., No. M2013-02805-COA-R3-PT, 2014
WL 6735151, at *6 (Tenn. Ct. App. Nov. 26, 2014). Capacity is evaluated, in part, by
considering the parent’s income or sources of support prior to the filing of the petition to
terminate. See In re Adoption of Angela E., 402 S.W.3d at 641. Here, the record includes
little evidence of Father’s income during the relevant time period. Mother testified that
Father worked for American Airlines, Federal Express, Prime Flight Aviation, and Home
Depot during various points between February and December 2016. Yet evidence
provided by the employers showed that Father only worked for Federal Express a few
days in early 2016 and that Father was terminated by Prime Flight in May 2016. Mother
also testified that Father was employed doing odd jobs, but she could not recall a time
frame.

        4
         Effective July 1, 2018, petitioners no longer have to prove a parent’s failure to support or to visit
was willful. 2018 Tenn. Pub. Acts 1088. Under the current version of the statute, the parent or guardian
must raise, and bears the burden of proof on, the defense of “absence of willfulness.” Tenn. Code Ann.
§ 36-1-102(1)(I) (Supp. 2019).
                                                      9
       The record does include Father’s account statements at a bank and a credit union.
At the bank, Father’s September-October 2016 statement showed a beginning balance of
$21.22, with $188.00 in deposits and $209.11 in debits, and an ending balance of $.11.
His October-November and November-December statements showed no activity. His
December-January statement showed a beginning a balance of $.11. After a refund of
$21.94 and debits of $21.93, the account balance as of January 10, 2017, was $.12. For
the credit union, Father started with an account balance of $5.69 as of July 1, 2016 and
ended with an account balance of $5.71 as of December 31, 2016. The only activity in
the account was a credit union dividend of 2 cents.

       On this record, we cannot conclude that the evidence was clear and convincing
that Father’s failure to support was willful. Mother and Stepfather failed to establish that
Father had the capacity to pay child support during the relevant four-month period. See
In re B.L., No. M2003-01877-COA-R3-PT, 2004 WL 2451355, at *10 (Tenn. Ct. App.
Nov. 1, 2004) (holding DCS did not meet its burden of establishing willfulness when the
record contained insufficient evidence of mother’s basic living expenses and the
consistency of her work). Father’s responses to interrogatories showed monthly living
expenses of just less than $1,000, but we find evidence of only nominal income during
the four-month period preceding the filing of the termination petition.

2.     Willful Failure to Visit

       The modified parenting plan granted Father parenting time, supervised by
Grandmother, on the first and third weekend of every month. He also received parenting
time at certain holidays and on Mattie’s birthday, if the birthday fell on a date that Father
was regularly scheduled to exercise visitation. In the months leading up to the filing of
the petition to terminate parental rights, the already contentious relationship between
Mother and Father only grew more so, in part, due to Father’s failure to pay child
support. On August 1, 2016, Mother e-mailed Father asking if he would be in Memphis
that weekend and if he would have $1,000 to give her. She told him that, if he had no
money, then he would not see Mattie. Father responded that he was in intensive alcohol
treatment.

        Father’s treatment did not last long; he was discharged after only three days. On
August 17, 2016, Mother and Father began an e-mail exchange regarding his upcoming
visitation on that Friday. On August 19, Mother wrote,

       If you don’t have $1000, she won’t be dropped off today. You refuse to
       give me job information, an address where you currently reside, or any
       answer regarding any financial obligations. So don’t get surprised when I
       don’t leave her tonight. If you can bring $1000 OWED TO US, she can
       stay. Otherwise, use your weekend to work so that you can start paying off
                                           10
      your debt with me. Understand?

After Father claimed that he could not get the money to Mother, she responded,

      No money, no kid. Sorry. You don’t pay anything and it’s time somebody
      holds you accountable for your actions.

             ....

      Any further contact from you this weekend will be considered harassment.
      I will not respond.

             ....

      I’m not kidding. We aren’t coming tonight since you choose once again,
      despite many warnings, to NOT PAY.

On August 23, 2016, Mother offered to let Father have Mattie if he would bring $1,000
cash or cashier’s check. After August 23, Mother did not respond to any further emails
from Father. Father continued to email Mother about visitation in September, October,
and December.

      When Mother stopped responding to Father’s emails, their primary means of direct
communication was cutoff. Mother often blocked Father’s cellphone number “for a few
days” when she was angry with him. And Mother refused to provide Father her address
because she feared for her safety. After she had cutoff direct communication, Mother
expected Father to deal with Stepfather about visitation.

      Visitation exchanges were to take place at a police precinct where Stepfather
worked. Stepfather testified that Father never showed up for an exchange during the
four-month period preceding the filing of the petition to terminate. But neither did
Mother or Mattie. According to Stepfather,

      [B]ecause Mattie was rather upset at the fact that she had to go visit with
      [Father] and [Grandmother], so I was -- with his sporadic showing up, I just
      told [Mother], I said: Just hold tight here, have her ready, and then I’ll go
      check, because I was already at work so I would hang out there and see that
      he didn’t show up. And when he didn’t show up, I would meet [Mother
      and Mattie] for dinner.

Stepfather also testified that he was aware of the vehicle Father drove. But he was not
asked if he knew Grandmother’s vehicle or looked for her.

                                           11
         Where a parent attempts to visit his child but is obstructed by the acts of another,
his failure to visit is not “willful” within the meaning of the statute. In re M.L.P., 281
S.W.3d 387, 392 (Tenn. 2009) (citing In re Adoption of A.M.H., 215 S.W.3d at 810). A
parent’s attempts at visitation are obstructed where another person’s conduct creates “a
significant restraint of or interference with the parent’s efforts to support or develop a
relationship with the child.” In re Audrey S., 182 S.W.3d at 864. As such, the failure to
visit is only willful if it is a “product of free will, rather than coercion.” Id. at 863.

       Considering the entire record, the evidence was not clear and convincing that
Father’s failure to visit was willful. In addition to cutting off direct communication and
not appearing for exchanges, Mother took other steps to limit Father’s access to Mattie
such as telling Mattie’s school that Father was violent and dangerous. At trial, Mother
admitted that she was withholding visitation because she was frustrated and fed up with
all Father had put her through.5

                                                    C.

       All parties have requested attorney’s fees on appeal. Under the “American rule,”
which is followed in Tennessee and most other jurisdictions, “a party in a civil action
may recover attorney fees only if: (1) a contractual or statutory provision creates a right
to recover attorney fees; or (2) some other recognized exception to the American rule
applies, allowing for recovery of such fees in a particular case.” Cracker Barrel Old
Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).

       Father cites no authority for an award of attorney’s fees. He only states that it is in
this Court’s discretion to award attorney’s fees on appeal. We decline to award
attorney’s fees to a party that cannot identify a contractual, statutory, or some other basis
for such an award.

       Unlike Father, Mother and Stepfather identify two bases for an award of attorney’s
fees. They claim an award is authorized under Tennessee Code Annotated § 36-5-103(c).
At the time the petition for termination was filed, the statute permitted an award of
attorney’s fees “incurred in enforcing any decree for alimony and/or child support, or in
regard to any suit or action concerning the adjudication of the custody or the change of
custody of any child.”6 See Tenn. Code Ann. § 36-5-103(c)(2017). We have previously
held that Tennessee Code Annotated § 36-5-103(c) does not apply to parental termination
cases. See In re Makenzie L., No. M2014-01081-COA-R3-PT, 2015 WL 3793788, at *21
(Tenn. Ct. App. June 17, 2015); In re Nathaniel C.T., 447 S.W.3d 244, 247 (Tenn. Ct.
        5
            Because we conclude that neither statutory ground for terminating parental rights was proven by
clear and convincing evidence, we do not reach the issue of whether termination was in Mattie’s best
interest.
          6
            Subsection (c) of Tennessee Code Annotated § 36-5-103 was amended in 2018. The amended
version applies to actions commenced on or after July 1, 2018. 2018 Tenn. Pub. Acts 1186.
                                                    12
App. 2014); Bryant v. Bryant, No. 01A01-9806-CV-00337, 1999 WL 43282, at *6 (Tenn.
Ct. App. Feb. 1, 1999). We see no reason to depart from our prior precedent.

       Stepfather and Mother also assert that Father’s appeal is frivolous. Under
Tennessee Code Annotated § 27-1-122 (2000), an appellate court may award damages,
including attorney’s fees, against an appellant if an appeal is frivolous or taken solely for
delay. A “frivolous” appeal is one that is devoid of merit, has little prospect of success,
or is lacking in justiciable issues. See Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586
(Tenn. 1977) (citing the predecessor to Tennessee Code Annotated § 27-1-122). This
appeal is not frivolous.

                                                   III.

        Because he was deprived of fundamentally fair procedures, we reverse the
termination of Father’s parental rights to Mattie. We also conclude that the evidence was
less than clear and convincing that Father abandoned his child by the willful failure to
visit or the willful failure to support. We remand the case for such proceedings as may be
necessary and consistent with this opinion.7


                                                          _________________________________
                                                          W. NEAL MCBRAYER, JUDGE




        7
           Although we restore Father’s parental rights, our decision does not preclude Mother from
seeking to further restrict Father’s parenting time based on the developments that occurred after the filing
of the petition to terminate. Our decision also does not preclude Stepfather from the filing of a new
petition to terminate Father’s parental rights.
                                                    13
