                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                       May 12, 2015 Session


                                       IN RE BRAYDON C.

                    Appeal from the Chancery Court for Madison County
                         No. 69044    James F. Butler, Chancellor

                              ________________________________

                                 No. W2014-01641-COA-R3-PT – Filed May 29, 2015
                             _________________________________

Petitioners Father and Stepmother filed a petition to terminate Mother’s parental rights on
the ground of abandonment for failure to visit and failure to support. The trial court
denied the petition upon determining that Petitioners failed to demonstrate willful
abandonment by clear and convincing evidence. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

David W. Camp, Jackson, Tennessee, for the appellants, Alesha C. and Justen C.

Anna B. Cash, Jackson, Tennessee, for the appellee, Serena W.


                                   MEMORANDUM OPINION1

      This appeal arises from a petition to terminate parental rights and for adoption.
The background facts relevant to our disposition on appeal are not disputed. Serena W.
(“Mother”) and Justen C. (“Father”) are the unmarried parents of Braydon C.

1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify he actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
(“Braydon”),2 who was born in November 2007, in Jackson, Tennessee. In May 2012,
Father and Alesha C., his wife, (“Stepmother”), filed a petition in the Chancery Court for
Madison County seeking to terminate Mother’s parental rights and for adoption of
Braydon by Stepmother.3 In their petition, Father and Stepmother asserted abandonment
for the willful failure to visit or support as the grounds for termination of Mother’s
parental rights. Following a hearing on June 23, 2014, the trial court dismissed the
petition upon determining that Father and Stepmother had failed to carry their burden, by
clear and convincing evidence, that Mother’s failure to visit or support Braydon was
willful. The trial court also found that Father and Stepmother had failed to carry their
burden that termination of Mother’s parental rights was in Braydon’s best interests. The
trial court entered final judgment in the matter on August 6, 2014, and Father and
Stepmother filed a timely notice of appeal to this Court.

                                                Issue Presented

       In their brief, Father and Stepmother (collectively, “Appellants”) present the
following issue for our review, as stated by them:

           Did the trial court err when it found that the burden of proving by clear and
           convincing evidence as to abandonment and best interest of the child had
           not been met by the Father and Stepmother and denied the petition for
           adoption and termination of parental rights?

                                             Standard of Review

       Tennessee Code Annotated § 36-1-113 governs the termination of parental rights.
It provides, in pertinent part:

           (c) Termination of parental or guardianship rights must be based upon:

           (1) A finding by the court by clear and convincing evidence that the
           grounds for termination of parental or guardianship rights have been
           established; and

           (2) That termination of the parent’s or guardian’s rights is in the best
           interests of the child.

Tenn. Code Ann. § 36-1-113(c) (2012). Accordingly, under the statute, a party who has
standing to seek termination of a biological parent’s parental rights must prove by clear

2
    It is the policy of the Court to use initials to protect the privacy of minor children.
3
 Father and Stepmother married in 2010.
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and convincing evidence 1) the existence of a statutory ground for termination and 2) that
termination is in the child’s best interests. In Re Bernard T., 319 S.W.3d 586, 596 (Tenn.
2010) (citations omitted). Clear and convincing evidence is evidence that “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.” Id. (citations omitted). Because termination of parental rights proceedings
under Tennessee Code Annotated § 36-1-113 are tried by a court sitting without a jury,
we review the trial court’s findings of facts de novo upon the record with a presumption
of correctness unless the evidence preponderates otherwise. Id. We must 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.” Id. at 596-597. We review the
trial court’s conclusions on questions of law de novo with no presumption of correctness.
Id.

                                         Discussion

        Upon review of the record, we observe that Mother and Father entered into a
parenting plan giving them equal parenting time in 2008. From 2009 to 2011, they
engaged in litigation over custody and visitation in the Juvenile Court of Madison
County. At a hearing on January 18, 2011, the juvenile court continued the matter after
finding that Mother had been incarcerated shortly before the hearing for charges
stemming from simple possession of illegal substances and was due to be released that
day. By order entered February 11, 2011, the trial court ordered Mother to submit to a
hair follicle test upon release from custody and ordered that “should [M]other fail to
submit to a hair follicle test it will be presumed as positive and [M]other will have
supervised visits with CASA as the supervising agency.” The juvenile court further
ordered that, if the test results were negative, the parties would return to the court’s prior
order of alternating visitation until the matter could be heard. The court found that
Braydon had been living with Mother when she was arrested and that Braydon was living
with Father on the day of the January hearing. The trial court designated Father
temporary residential parent pending further proceedings. The January 2011 hearing was
the last proceeding before the juvenile court.

        It is not disputed that subsequent to the January hearing Mother entered a
downward spiral, did not take a hair follicle test upon release from custody, and did not
pass a hair follicle test until June 2013. It also is undisputed that CASA set up visitation
sessions for a period of three months; that Mother was unemployed, without
transportation, and unable to attend several of the sessions; that Mother was late to the
final visitation session after having walked approximately ten miles to get there; and that
CASA cancelled the visitation sessions thereafter. Braydon remained in Father’s custody
and, from November 2011 through December 2011, Mother sent five letters addressed
variously to Father and Braydon at Father’s last known address, which was Father’s

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grandmother’s home. In the meantime, Father had moved with Braydon to Mississippi
without informing Mother. Mother attempted to communicate with Father and his
grandmother and to maintain contact with Braydon, but did not know Father’s
whereabouts and grandmother refused to provide any information.

      In its well-drafted and thorough June 2014 memorandum to counsel and August
2014 order, the trial court set forth a comprehensive history of the matter.4 It found:

                  Mother and Father worked at the same employer, King Tire
          Company. Father was single and Mother was married. Mother and Father
          had sex and she became pregnant. Ultimately, she divorced over this. As a
          result of her pregnancy, Mother lost her job and Father retained his job.
          Mother has another daughter three years older than Braydon. At Braydon’s
          birth, Father lived with his grandmother [“Grandmother”].5 Father had no
          transportation at that time and Mother and her mother helped with his
          transportation needs. Braydon stayed with Father and Grandmother for
          about 1 ½ months while Mother found a place to live in Milan, Tennessee
          and then Braydon returned to her. Mother dealt mainly with Grandmother
          and had little communication with Father after the birth. At some point in
          time, Father moved out from Grandmother’s home. Grandmother and
          Mother began to alternate weeks keeping Braydon. For awhile, the Mother
          had no transportation. Braydon stayed with Grandmother full time during
          many of these periods.           Mother remarried to [her husband] in
          approximately 2009, and they ultimately moved to Florida trying to find
          work. Grandmother kept Braydon. Mother maintained contact with
          Braydon and Grandmother. In December, 2009, Father sued for custody.
          Mother defended the case, but on one occasion was unable to get to court
          and the Father was granted custody. Mother was granted supervised
          visitations and was Ordered by the Juvenile Court [of Madison County]
          Judge by Order of February 11, 2011, to take a hair follicle test [for illegal
          substances]. Mother did not take the test, mainly because she could not
          pass it according to her statement. Mother’s visitations were to be
          supervised if she did not take the test, or did not pass it. They were to be
          unsupervised if she did pass it. Mother was involved with drugs at that
          time and made “bad choices”. Mother had supervised visitations, but had
          no job and no vehicle. She was financially bankrupt during this period and
          walked to the last visitation at CASA, a distance of approximately ten
          miles. CASA had been set up to supervise the visitations for three months


4
    The trial court incorporated its June 2014 memorandum into its August 2014 order.
5
 To protect the privacy of the minor child, we substitute the names included in the trial court’s order with
the relationship of the individuals referenced.
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      and terminated the supervision thereafter. Mother was unable to get an
      attorney to seek reinstatement of her visits.

             Mother had no visitations or significant contact with Braydon
      between April, 2011 and December, 2011. She called and wrote letters, but
      only had Grandmother’s phone number and address and received no
      responses most of the time. Mother sent letters to Braydon through
      Grandmother, but got no response. Exhibit 4 were copies of letters sent
      October 26, 2011, November 25, 2011, November 29, 2011, December 2,
      2011, and December 22, 2011. Most of the letters were to Braydon and
      sent through Grandmother. One letter was to the Father and his Wife, and
      Grandmother, dated October 26, 2011. In the letter, Mother stated that she
      had cleaned up her problems with drugs and with courts and had a job.
      Mother sought forgiveness for her past actions and to be able to see
      Braydon and give him a gift she had for him. Mother asked for a response
      and furnished her phone number and address in Jackson. Grandmother
      acknowledged receiving the letters, but did not show them to Braydon. She
      did show them to the Father. Ultimately, the Father moved Braydon and
      his Wife to Mississippi and Grandmother was aware of this, but did not tell
      Mother, or that Father had married. Grandmother testified that Father’s
      attorney told her not to respond to the letters Mother sent to Braydon, to
      Grandmother, or to the Father. Grandmother denied getting phone calls
      from Mother in 2011 and 2012.

              It is undisputed that Braydon is doing well in Father’s home in
      Walnut, Mississippi and doing well in school. It is undisputed that Mother
      is now drug free and fully employed as a shift manager at the Pilot Center
      in Jackson. Mother produced undisputed evidence that she had passed two
      hair follicle tests in June and September, 2013. Mother’s Husband is
      currently employed at U.S. Farathane in Jackson and they have an adequate
      home. Mother is still involved in counseling with Pathways, and is
      prescribed two medications which she takes regularly and as directed.
      Mother testified she made several bad choices during a short period in her
      life after Braydon was born and her finances were really bad. She pointed
      out her Husband . . . stuck with her through her adversity and that she was
      able to pull herself up by her own bootstraps to get rid of her drug
      addiction. She testified further that she had moved around several times
      because of a lack of money to pay rent and living expenses. It is unrebutted
      that Mother has paid all of her fines and restitution, or arranged to do so,
      and that she has not used marijuana since February or March of 2013.

       Father moved out of Grandmother’s home and purchased a trailer, apparently
located on his grandparents’ property, in 2009. Father and Stepmother then relocated to

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Stepmother’s parents’ home and then to Walnut, Mississippi, in December 2012.             The
trial court found,

       Father . . . moved with Braydon several times after he got custody, but
       never advised Mother where he lived. Father also was aware of the letter
       Mother wrote in November and December, 2011, just prior to the beginning
       of the relevant period, but did not make Braydon aware of the letters,
       although he testified that Braydon knew [Mother] was his Mother. Father
       also did not call Mother after receiving the letters, although Mother
       furnished him her telephone number.

These facts are not disputed.

       As defined by the Tennessee Code, abandonment for the purposes of terminating
parental rights means that:

       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 or parents or the guardian or guardians of the child who is the
       subject of the petition for termination of parental rights or adoption, that the
       parent or parents or the guardian or guardians 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[.]

Tennessee Code Annotated § 36-1-102 (1)(A)(i) (2014). It is undisputed that Mother did
not visit Braydon for the four months immediately preceding the filing of Appellants’
petition. The trial court determined, however, that Mother did not willfully abandon
Braydon. The trial court stated:

       Mother demonstrated that she was writing letters to the child and Father in
       the two months immediately prior to the beginning of the relevant period.
       She was sending those to Grandmother since she had no address for Father
       and Father did not advise her of his move to Mississippi. Grandmother
       knew the Father’s address and made him aware of the letters, but neither
       responded to the Mother. Thus, they knew Mother was requesting time
       with the child and had furnished her address and telephone number.
       Mother testified that she was embarrassed and felt guilty about her previous
       bad acts, and failure to maintain contact with the child and did not push the
       issue during the relevant four month period. Mother was essentially
       begging forgiveness and seeking any contact with the child that the Father
       would allow her to have. The Father did not respond and waited out the
       four month period and then filed to terminate her parental rights.


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        In their brief, Appellants assert that the trial court erred by determining that
Mother’s failure to visit was not willful where “[Mother] never provided a clean hair
follicle test which is all it would have taken to resume her visits.” They further assert that
Mother “failed to make any effort to reestablish visitation or pay support for sixteen
months before the petition was filed.” We note, however, that Mother’s failure to
provide a clean hair follicle test impacted only her ability to exercise unsupervised
visitation with Braydon. As the trial court noted, Mother had a right to supervised
visitation, and she clearly had a right to maintain contact with Braydon. We agree with
the trial court that Father simply “waited out the four month period” before filing his
petition to terminate Mother’s parental rights.

        “[A] parent who attempts to visit and maintain relations with his child, but was
thwarted by the acts of others and circumstances beyond his control, did not willfully
abandon his child.” In re Adoption of A.M.H, 215 S.W.3d 793, 810 (Tenn. 2007).
Further, a petitioner alleging abandonment as a ground for termination of parental rights
carries the burden to prove by clear and convincing evidence that the “parent who failed
to visit or support had the capacity to do so, made no attempt to do so, and had no
justifiable excuse for not doing so.” In re Adoption of Angela E., 402 S.W.3d 636, 640
(Tenn. 2013) (citation omitted). In this case, Mother actively attempted to maintain
contact with Braydon. In her letters, including one addressed to Father and Stepmother,
Mother wrote, “I ask you please, I beg you for just a picture and a letter.” Mother
included her telephone number but received no reply. Additionally, the trial court found
that Mother had no vehicle and was unemployed for much of the time prior to May 2012.
It further found that she was not financially able to retain an attorney to seek
reinstatement of her supervised visits. We agree with the trial court that Appellants failed
to carry their high burden to demonstrate, by clear and convincing evidence, willful
abandonment for failure to visit.

        We also agree with the trial court that Appellants failed to carry their burden to
demonstrate abandonment for the willful failure to support. “A party seeking termination
of parental rights must prove by clear and convincing evidence that the opposing party
had the capacity to pay support but made no attempt to do so and did not possess a
justifiable excuse.” Id. at 641 (citation omitted). The trial court in this case found:

        Mother testified extensively as to her financial difficulties after she became
        pregnant with Father’s child, and losing her job over that. Mother had
        problems finding a place to live and work. Mother had no transportation
        for extended periods of time. Father paid child support to the Mother,6 but
        was significantly in arrears at periods of time, although he ultimately did
        pay up. The lack of timely support had an adverse effect on Mother’s

6
 The permanent parenting plan entered into by the parties in 2008 set Father’s child support obligation at
$139.00 per month.
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      ability to pay her daily living expenses. Mother made a mistake becoming
      involved with drugs and this resulted in legal problems. Mother did not
      take the Court Ordered drug test, which would have allowed her
      unsupervised visitations because she had no money to pay for it according
      to her testimony and also knew she could not pass it. Mother was without
      counsel after that and felt she needed an attorney to go to court because of
      what she was told at Juvenile Court, but she had no money to hire an
      attorney.

The court concluded:

      Considering the Mother’s financial history, it is understandable to the Court
      that she did not pay money support during the relevant period. Given her
      lack of income and lack of any significant family support and no
      transportation for long periods of time and the lack of response to the letters
      and inquiries, the fact Father did not tell her where the child lived, and the
      fact that Grandmother, her only contact did not respond, it is
      understandable then that she failed to effect a visitation during the relevant
      period and failed to provide money support.

       As the trial court noted, there was no child support order in place requiring Mother
to pay child support, Father never petitioned for support, and the 2008 parenting plan
required Father to pay child support to Mother. Additionally, as we noted above, the
order entered by the juvenile court in February 2011 continued the proceedings
adjudicating the matter of custody and visitation. The trial court noted that the lack of a
court order is not a valid excuse for not paying child support, but found that Mother had
ongoing financial difficulties, no transportation, and lacked employment for most of the
relevant period. The court noted Mother’s acknowledgment that, after Braydon was
born, her finances were “really bad” and she made several “bad choices.” The trial court
found:

      [Mother’s] 2012 tax return shows she had income from Bio Blood
      Components, Inc. of $8,704.00. Mother did not obtain this employment
      until May, 2012 which was about the time the Petition was filed. There is
      no evidence of her income prior to then during the relevant period, other
      than she was unemployed. Since Mother made a prima facie case of lack of
      ability to pay during the relevant four month period, the burden of proof
      shifted to the Father to show she had such ability.

The trial court concluded:

      The Court is mindful of all the Mother’s missteps during a time prior to the
      relevant period, but the evidence fails to clearly and convincingly show a

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      conscious disregard or indifference to the child. Mother put the child
      where he would be cared for during the time Mother was not physically,
      emotionally, or financially able to care for him. When she got herself
      straight and attempted to reestablish contact with the child, she was
      ignored. This rebuts the proposition that she had a settled purpose to
      abandon the child and forever relinquish her rights, duties and obligations
      to the child. There is no clear and convincing evidence of abandonment.

We agree with the trial court’s determination that Appellants did not carry their heavy
burden to demonstrate willful abandonment by clear and convincing evidence in this
case.

                                       Holding

        In light of the foregoing, we affirm the judgment of the trial court. Because
Appellants have failed to carry their burden of proof to demonstrate a statutory ground
for the termination of Mother’s parental rights, it is unnecessary to address the trial
court’s finding that termination of Mother’s parental rights is not in Braydon’s best
interests. Costs on appeal are taxed to the Appellants, Father and Stepmother, and their
surety, for which execution may issue if necessary. This matter is remanded to the trial
court for enforcement of the judgment, including the development of a parenting plan as
set forth in the trial court’s August 6, 2014, order, and for the collection of costs.



                                               _________________________________
                                               ARNOLD B. GOLDIN, JUDGE




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