                                                                                                      08/30/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                               Assigned on Briefs April 3, 2018

                                          IN RE ELLA P.1

                  Appeal from the Chancery Court for Madison County
                       No. 74391    James F. Butler, Chancellor


                                No. W2017-02219-COA-R3-PT


This action involves a termination petition filed by the mother and stepfather against the
father of a minor child. Following a bench trial, the court found that the statutory
grounds alleged, abandonment for failure to visit and to support, were not supported by
clear and convincing evidence. The petitioners appeal the denial of the petition and the
assessment of costs accrued below. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and BRANDON O. GIBSON, J., joined.

G. Michael Casey, Jackson, Tennessee, for the appellants, Bradley R. and Rachel R.

Nicholas B. Latimer, Jackson, Tennessee, for the appellee, Tristan W.

                                             OPINION

                                     I.      BACKGROUND

       Ella P. (“the Child”) was born to Rachel R. (“Mother”) and Tristan W. (“Father”)
in May 2013. The parents never married. Mother maintained physical and legal custody
of the Child and lived with her parents in Milan, Tennessee, while Father lived with his
parents in Trezevant, Tennessee. Mother took the Child to visit Father on a weekly basis
until February 2014, at which time Mother sought an order of protection from the
General Sessions Court in Gibson County. The court ultimately entered an order based

1
  This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
upon her allegations of stalking. Pursuant to the order, Father was required to stay away
from Mother’s home and workplace. The order expired on September 24, 2015.

       Mother obtained a new telephone number and moved to Indiana with the Child in
February 2014. She returned to Milan two months later before moving to Jackson,
Tennessee in May 2014. Mother did not advise Father of her moves or her new
telephone number. Mother married Bradley R. (“Stepfather”) in May 2015. The Child
has resided with Mother and Stepfather since that time.

       Meanwhile, Father was incarcerated on May 4, 2016. Mother and Stepfather
(collectively “the Petitioners”) filed a petition to terminate Father’s parental rights on
May 13, 2016, based upon the statutory grounds of abandonment for failure to visit and
to support. Father filed a motion to dismiss, alleging that the petition should be
dismissed for failure to allege grounds with sufficient detail and specificity. He
alternatively argued that any alleged abandonment was not willful because he was
unaware of the Child’s whereabouts until the filing of the termination petition.2 He
claimed that he made several attempts to locate the Child but that his efforts were
thwarted by Mother.

       The court denied Father’s motion to dismiss, and the case proceeded to a hearing
on October 16, 2017. Father participated via telephone because he was incarcerated in
Weakley County at the time of the hearing. Mother testified that she first met Father in
high school when she was 16 years old. They dated on and off until she became pregnant
in September 2012. She claimed that Father “emotionally and physically abused” her and
that he also abused drugs throughout their relationship. She admitted to marijuana use
prior to pregnancy but claimed that she stopped smoking marijuana when she learned of
the pregnancy. She stated that Father attended no more than one doctor’s appointment, if
any, and that he did not provide financial support throughout the pregnancy.

        Mother testified that Father was not present at the hospital for the birth of the
Child per her request and that she did not list him as the father on the birth certificate.
She agreed that he visited the day after the birth and that she then took the Child to visit
him on a twice weekly basis. Her parents did not approve of her relationship with Father
and were unaware of her visits. Father provided clothes on one occasion and gave her
$20 on another occasion. She ended her relationship with him in September 2013, when
he failed a drug test provided by her.

        Mother testified that Father last saw the Child in February 2014. She claimed that
at that time, Father was “doing things that [she] did not consider safe for [the Child]” and
2
  Father later alleged that the Petitioners failed to establish his paternity of the Child. The parents were
ordered to undergo genetic testing, the results of which were not apparent from the record.
                                                      -2-
that he would “get very mad” when she confronted him. She explained that she did not
believe that she and Ella were safe around him. She eventually filed a request for an
order of protection in March 2014 based upon Father’s extreme behavior and threats of
violence toward her. She noted that he advised her that he had hired someone to kill her
and that “all he had to do was pay.” She stated that her request for an order of protection
was granted on September 25, 2014, and that it ultimately expired on September 24,
2015. Father was present at the initial hearing, where the court advised him to “go next
door” to the juvenile court and request visitation. The order of protection provided that
child support and visitation were “per juv[enile] court.”

       Mother testified that Father had not visited the Child or remitted any form of child
support since February 2014. She acknowledged that she moved to Indiana in March
2014 and did not return until May 2014. She returned to her prior residence in Milan but
did not hear from Father, who had also not filed a request for visitation with the court.
She then moved to Jackson at the end of May 2014 with her mother and the Child. She
remained active in the Milan community and returned to her prior employment. She
explained that she and Father’s mutual friends knew of her employment in Milan. She
later obtained employment in Jackson in May 2015 but claimed that a simple Google
search revealed her employment position and her address.

       Mother believed that it would have been “very easy” for Father to “make contact.”
She also appeared in court for a hearing on Father’s charge of domestic assault after she
had moved to Jackson. He did not appear at the hearing. She agreed that she did not
share about her life on social media for fear that Father would harm Stepfather. She
explained that Father once told a mutual friend that he would kill her significant other if
she ever married.

        Mother admitted that Father’s fiancé contacted her mother through Facebook. She
explained that her mother did not know how to retrieve the message and did not inform
her of the message until after she filed the petition.

       Mother testified that she met Stepfather in Fall 2014 and that they married in May
2015. She stated that she and the Child have resided with him since their marriage. She
explained that he not only provides for them financially but has also served as the Child’s
father. She described a loving relationship between Stepfather and the Child.

       Stepfather also described a loving relationship between himself and the Child and
expressed his desire to adopt her. He claimed that Father had not provided support,
medical care, or gifts and that Father had also not visited the Child since he and Mother
started dating. He acknowledged that a Google search would reveal Mother’s
employment, her Facebook account, and her address. He agreed that he had not met
                                           -3-
Father and stated that he would have “no idea” if Father would have knowledge of his
marriage or Mother’s name change as a result of their marriage.

       Father testified that he was currently incarcerated in the Weakley County
Detention Center for a charge of driving on a revoked license and a seatbelt violation that
occurred in 2015. He acknowledged that he had also been charged with aggravated
burglary in September 2015 and received a three-year sentence. He explained that he
was 19 years old when he incurred the charge and that he was not involved with the Child
or Mother at that time.

       Father acknowledged that his relationship with Mother was “fairly good” at first
but stated that they had disagreements and that he picked the “wrong life at first.” He
agreed that he was not present for the Child’s birth per Mother’s request but stated that he
visited the next morning. He claimed that he provided money for diapers and visited the
Child almost every weekend after the birth. He agreed that he continued to smoke
marijuana after the Child was born.

        Father denied ever physically abusing Mother or threatening to kill her or her
future spouse. He never heard from Mother after the court entered the order of
protection, and he did not contact her for fear of violating the order. He noted that
Mother had blocked him from her Facebook account. He claimed that he sent messages
to her mother and attempted to connect with her brothers. He provided that he was
incarcerated beginning on March 4, 2016, and that he had no knowledge of Mother or the
Child’s whereabouts from at least November 4, 2015, until the filing of the petition. He
agreed that he never initiated legal proceedings to secure visitation or pay child support.
He explained that he was not financially stable prior to his incarceration. He expressed a
desire to reconnect with the Child and claimed that he would support her. He claimed
that his efforts to contact the Child since the filing of the petition have been unfruitful.

       Following the hearing, the court denied the termination petition, by order entered
on November 3, 2017, finding that the grounds for termination had not been established
by clear and convincing evidence. The court stated,

       Father’s bad acts which have landed him in jail are not dispositive of the
       issue of whether or not grounds for termination exist during the relevant
       time period. The Court must be convinced by the presentation of clear and
       convincing evidence. The Court is not convinced that grounds for
       termination exist as to the alleged grounds of non-support and non-
       visitation particularly when viewed in light of the facts concerning
       Mother’s moving her residence, changing her phone number, and her
       family refusing to respond to Father’s inquiries. Further, Mother while
                                            -4-
       indicating that [Father] was the [biological father], made no effort to notify
       [him] or any member of his family where she or the [C]hild were at any
       particular time after February, 2014. Based on the foregoing, the Court
       finds that while Mother is able to prove the technical grounds of non-
       support and non-visitation, that Father’s defense dilutes Mother’s ability to
       prove those grounds by clear and convincing evidence and that they were
       willfully committed.

The court also found that termination was in the best interest of the Child. The court
assessed costs against the Petitioners, who filed this timely appeal.

                                       II.     ISSUES

       We consolidate and restate the issues on appeal as follows:

       A.     Whether the court erred in finding that the Petitioners failed to
       establish by clear and convincing evidence abandonment for failure to remit
       child support pursuant to Tennessee Code Annotated section 36-1-
       102(1)(A)(iv).

       B.     Whether the court erred in finding that the petitioners failed to
       establish by clear and convincing evidence abandonment for failure to visit
       pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv).

       C.     Whether the court erred in assessing court costs against the
       Petitioners.

                             III.   STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

                                             -5-
       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination of
the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be
terminated only 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)    [t]hat termination of the parent’s or guardian’s rights is in the best
       interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

       An appellate court reviews a trial court’s findings of fact in termination
       proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
       Rule 13(d), appellate courts review factual findings de novo on the record
                                            -6-
       and accord these findings a presumption of correctness unless the evidence
       preponderates otherwise. In light of the heightened burden of proof in
       termination proceedings, however, the reviewing court must make its own
       determination as to whether the facts, either as found by the trial court or as
       supported by a preponderance of the evidence, amount to clear and
       convincing evidence of the elements necessary to terminate parental rights.
       The trial court’s ruling that the evidence sufficiently supports termination
       of parental rights is a conclusion of law, which appellate courts review de
       novo with no presumption of correctness. Additionally, all other questions
       of law in parental termination appeals, as in other appeals, are reviewed de
       novo with no presumption of correctness.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

                                    IV.    DISCUSSION

                                          A. & B.

       For the purposes of termination proceedings involving a parent who was
incarcerated when the petition was filed, abandonment means that:

       (iv) A parent or guardian is incarcerated at the time of the institution of an
       action or proceeding to declare a child to be an abandoned child, or the
       parent or guardian has been incarcerated during all or part of the four (4)
       months immediately preceding the institution of such action or proceeding,
       and either has willfully failed to visit or has willfully failed to support or
       has willfully failed to make reasonable payments toward the support of the
       child for four (4) consecutive months immediately preceding such parent’s
       or guardian’s incarceration, or the parent or guardian has engaged in
       conduct prior to incarceration that exhibits a wanton disregard for the
       welfare of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(iv).

        As a threshold issue, the Petitioners allege that the court failed to address whether
the statutory ground of abandonment was supported based upon Father’s conduct prior to
incarceration that exhibited a wanton disregard for the welfare of the Child. Father
asserts that this ground was not pled in the petition, raised at the hearing, or addressed by
the trial court. The petition provides as follows:



                                            -7-
       Termination of [Father’s] parental rights is sought based upon, as
       alternatives to one another, the following grounds, which [the Petitioners]
       are prepared to prove by clear and convincing evidence:

              a.     Abandonment;
              b.     Failure to Visit; and
              c.     Failure to Support.

While the Petitioners alleged that Father was incarcerated, they did not cite Section 36-1-
102(1)(A)(iv) or specifically allege that abandonment was warranted based upon Father’s
conduct prior to his incarceration. This ground was also not discussed at the hearing or
addressed by the court in the order denying the petition. The court stated,

       Father’s bad acts which have landed him in jail are not dispositive of the
       issue of whether or not grounds for termination exist during the relevant
       time period.

Accordingly, this statutory ground was not properly pled or tried and is waived on appeal.

        We next consider Father’s alleged willful failure to support or to visit. A parent’s
willful failure to support “means the willful failure, for a period of four (4) consecutive
months, to provide monetary support or the willful failure to provide more than token
payments toward the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D). Token
support is “support, under the circumstances of the individual case, [that] is insignificant
given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). A parent’s willful failure
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)(E). Token
visitation is “visitation, under the circumstances of the individual case, [that] 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.” Tenn. Code Ann. § 36-1-102(1)(C).

        This court has consistently held that the term willfulness as it applies to a party’s
failure to remit support or to visit must contain the element of intent. In re Swanson, 2
S.W.3d 180, 188-89 (Tenn. 1999). The element of intent utilized in termination
proceedings “does not require the same standard of culpability as is required by the penal
code.” In re Audrey S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures
to act that are intentional or voluntary rather than accidental or inadvertent.” Id. “[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.” Id. at 863-64.

                                             -8-
        The Supreme Court has held that “a parent who attempted 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 A.M.H., 215 S.W.3d 793, 810
(Tenn. 2007) (citing Swanson, 2 S.W.3d at 189). However, “[a] parent’s failure to visit
may be excused by the acts of another only if those acts actually prevent the parent from
visiting the child or constitute a significant restraint or interference with the parent’s
attempts to visit the child.” In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (citation
omitted) (upholding termination when the father did not take court action to secure
visitation like the parents in In re A.M.H.). “The parental duty of visitation is separate
and distinct from the parental duty of support. Thus, attempts by others to frustrate or
impede a parent’s visitation do not provide justification for the parent’s failure to support
the child financially.” In re Audrey S., 182 S.W.3d at 864 (citations omitted).

        In determining whether termination of Father’s parental rights was warranted
based upon the statutory grounds of abandonment for failure to visit and to remit support,
the court considered the four months preceding March 4, 2016, the date of Father’s
incarceration. The relevant time period was November 4, 2015, through March 3, 2016.3
Here, the record reflects that Father was unaware of Mother’s whereabouts during the
relevant time period as evidenced by her moving her residence and changing her phone
number and her family’s failure to respond to Father’s inquiries. While Father failed to
initiate court proceedings to secure visitation like the parents in In re A.M.H., we believe
this failure is excused by his inability to locate Mother, who had moved to another city,
during the relevant time period after the expiration of the order of protection.

        Further, the Petitioners failed to establish Father’s ability to remit support during
the relevant time period. No evidence was presented concerning his ability to remit
support, with the exception of Father’s testimony that he was not financially stable prior
to his incarceration. With these considerations in mind, we conclude that there was not
clear and convincing evidence to establish that Father willfully failed to visit and to
support during the relevant time period. Accordingly, we affirm the denial of the
termination petition. This court “may affirm a judgment on different grounds than those
relied on by the trial court when the trial court reached the correct result.” City of
Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 60 n. 18 (Tenn. Ct. App.
2004); see also Bige v. City of Etowah, No. M2013-01771-COA-R3-CV, 2014 WL
6888857, at *8 (Tenn. Ct. App. Dec. 4, 2014) (quoting City of Brentwood for the same
proposition).


3
  “The applicable four month window . . . includes the four months preceding the day the petition to
terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-
00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014). We reason the same holds
true for the start date of the parent’s incarceration.
                                                       -9-
                                            C.

       Having affirmed the court’s denial of the petition, we also affirm the assessment of
costs against the Petitioners.

                                   V.     CONCLUSION

       The trial court’s order denying the termination petition is affirmed, and the case is
remanded for such further proceedings as may be necessary. Costs of the appeal are
taxed to the appellants, Bradley R. and Rachel R.


                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




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