                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  September 5, 2001 Session

                                       IN RE:       Z. C. G.

                     Appeal from the Chancery Court for Sumner County
                         No. 2000 A-25   Tom E. Gray, Chancellor



                   No. M2000-02939-COA-R3-CV - Filed October 22, 2001


This case involves a request for termination of parental rights and adoption of a minor child.
Appellees/Petitioners are the mother of the minor child at issue and her current husband. They
petitioned for termination of the natural father’s parental rights and for adoption by her current
husband. The trial judge granted their petition finding that the father had abandoned his child by
willfully failing to visit for four months preceding the filing of the petition and that termination of
parental rights was in the best interest of the child. We find that the evidence did not clearly and
convincingly demonstrate that the father willfully failed to visit and, thus, reverse the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
PATRICIA J. COTTRELL , J., joined.

Gary M. Williams, Hendersonville, Tennessee, for the appellant, Chadrick Jerome Goins.

Bill Easterly and James B. Lewis, Nashville, Tennessee, for the appellees, Jodie Lynn Bergquist and
Mark Shane Bergquist.

                                             OPINION

       The child at issue in this matter, Z. C. G., is the biological child of Chadrick Jerome Goins,
Appellant, and Jodie Lynne Bergquist, Appellee. Ms. Bergquist re-married in May of 1999 to Mark
Shane Bergquist, who decided to adopt Z. C. G. and joined in the petition. Ms. Bergquist and Mr.
Goins were divorced in January of 1999. They had only one child, Z. C. G., who was born on
November 6, 1994.

       Ms. Bergquist alleged that Mr. Goins had been abusive and threatening to her and neglectful
of Z. C. G. during their marriage. She cited periods of lack of visitation and failure to pay child
support in support of her Petition for Adoption and Termination of Parental Rights. After the
hearing, the judge articulated his very detailed findings of fact. These findings provide an accurate
history of the parties’ divorce and subsequent custody problems:

       [T]he Court has made some findings of fact and conclusions of law, and these cases
       are always difficult . . . .

             Okay. The facts in this case are that Jodie Lynn Hensley and Chadrick
       Jerome Goins married in 1994. One child Z. C. G. was born to them on the 6th day
       of November, 1994.

               ....

              . . . [T]he wife did file a complaint for divorce in 1998 and on the 21st day of
       January, 1999, there was entered a final decree of divorce and that final decree of
       divorce was entered nunc pro tunc, meaning now for then, to the 22nd day of
       September, 1998.

                The mother was granted custody of the minor child Z. C. G. and the father
       was granted specific visitation and there was a point of exchange of the child for
       visitation described as an Amoco station near where the mother lived. The mother
       was granted a judgment against the father for $400 in child support arrears.

               Now, the visitation went fairly well, at least I have no evidence that it did not
       go fairly well, up until the 23rd day of April 1999. At that time the child was four
       and a half and the mother delivered the child to the father at the Amoco station for
       his scheduled visitation.

               . . . [T]he father had an acquaintance with him . . . .

               In the process of making the exchange the father conveyed not necessarily to
       the mother but at least where she heard it or he may have conveyed to her that he was
       going to take the child to the racetrack and take the child to the pits. The mother
       inquired as to who would take care of the child there at the pits and the father said
       that oh, there is always - - there are some women in the trailers that are there and one
       of them can, so at that point the mother refused to let the child go, she picked the
       child up, took the child back, got in her car, and Mr. Goins either backed or pulled
       his vehicle very close and he began to make threats to the mother and the child,
       threatened the life of both mother and child.

                And that was really what the Court saw as the first incident - - that was the
       first incident where the mother had refused the visitation that had been awarded to
       the father on the scheduled basis. And there were some attempts to get the mother
       to change her mind, she did not change her mind even when the police came and


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suggested that she do, and the paternal grandmother was involved, also the maternal
grandfather, but she did not allow visitation.

        The father didn’t have any visitation then until June the 25th and 27th when
he visited and there was a petition for contempt filed by the father alleging the
mother to be in contempt of court . . . .

        And then the mother filed a petition for order [ ] of protection . . . .

       I think the father had filed his petition one or two days prior to that and the
mother filed a petition for an order of protection on the 17th day of June, 1999, at
which time she alleged that on April 23rd, 1999, that the father threatens to kill me
and my child, has done so in the past, when we pass him, he screams, acts like he is
shooting us. Order of protection has been ordered in the past. It ran out in March of
1999. The acts of Chad [are] very common and happen[] a lot. In the past he has
physically and mentally abused me, and she says my son. There is no evidence that
he had physically abused the child.

        But the petition was filed. There was - - the father did have visitation in July
and in August. He had visitation July 9th and 11th, July 23rd and 25th, August 6th
and 8th, August 20th and 22nd, September 3rd and 5th and October 1 and 4 on his
regular scheduled visitation and then the matter was heard in - - on the 4th day of
October there was a hearing held, the mother was granted a petition for order of
protection, and . . . [the] petition for contempt is dismissed. It is further ordered that
the plaintiff’s oral motion to restrict the defendant’s visitation is hereby denied the
plaintiff. The plaintiff was listed as Jodie Lynn Bergquist . . . .

        Further, the judge ordered it is adjudged and decreed the parties will strictly
comply with the visitation schedule and visitation guidelines set forth in the judgment
of divorce and marital dissolution agreement incorporated and entered on the 21st
day of January, 1999, nunc pro tunc.

         Further, the Court said even though he dismissed the petition for contempt,
. . . that the defendant’s visitation with his son shall be expanded to include two
nonconsecutive weeks of visitation during the summer months with the weeks to be
agreed upon by the parties with the agreement being established by May 15th of each
year.

        And he said also that the parties - - well, ordered and adjudged and decreed
that the parties’ son be with the defendant on Thanksgiving Day of 1999. And the
judge ordered that the parties shall continue to meet at McDonald’s Restaurant on
Peavine Road near Crossville, Tennessee, on those weekends during [ ] which the
defendant is to visit with his son, the parties are to make every reasonable effort to


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contact the other party and inform them of any impediments to them being on time
for that meeting.

        ....

         And then as the Court has pointed out, there was visitation October 1 through
4 and then the father went to pick up the child on October the 15th, he took Mr.
Humphreys with him, they went to Peavine Road McDonald’s, the mother was late.
And she has testified, and the Court finds the testimony credible, that there was in
fact a great deal of congestion due to road construction and she did not get there until
sometime after 6:00 p.m. Central Standard Time. She was supposed to have been
there I believe at 5:00 p.m.

        Now, Mr. Humphreys and Mr. Goins have testified that they got there at . .
. 4:30 Central Standard Time, and that they waited approximately two hours.
Perhaps they had just left when the mother arrived because the mother did get a - -
she did go in and make an order at McDonald’s on the 15th day of October, 1999,
and she did save the receipt and it shows that she was there at 6:34 p.m. when she got
this receipt . . . . [A]nd it shows that she in fact was there. The father didn’t wait long
enough.

        And further the Court finds that she was there before 6:34 p.m. because it was
her testimony that she had called her father for advice about what to do and he told
her that she should make a purchase, get something and save this receipt. And the
father missed that weekend of visitation.

        Then the next time the father saw the child was the 7th day of November and
the mother has testified and the Court finds it’s credible and it’s supported somewhat
by the paternal grandmother’s testimony that the mother had told the father that they
were going to be at the bowling alley for a birthday party on November the 6th.

         The mother testified that she had offered the father an opportunity to be there
at the birthday party with the child. The father testified that he hadn’t been told about
the birthday party on November the 6th and that his mother found out some other
way and his mother went over there to that - - on November the 6th, but his mother
[and] the mother of the parties’ child, Mrs. Bergquist, agreed for the child to visit
with the paternal grandmother, grandparents and the father on November the 7th.
That visitation took place.

        On November the 12th and 14th there was visitation and the paternal
grandmother picked the child up in Crossville. And then there was visitation with
the father November the 25th and 27th for Thanksgiving. He had been awarded that
in the most recent order that was entered on October the 4th, 1999.


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        On December the 10th, 1999, the mother and the father had a telephone
conversation and this conversation - - this was December the 10th was the weekend
that the father was to have visitation with the child . . . . December the 10th was on
a Friday in 1999.

        And they had a conversation. The father was wanting to have visitation on
December the 17th, the following weekend, and they had a discussion. It did not
appear to the Court that this was any type of argumentative type discussion. The
mother had indicated that she had told Mr. Goins and had also told his mother earlier
that the child was going to be in a Christmas play. That also has been corroborated
that there had been some statement.

        The question was what day was it going to be on, was it going to be on a
Friday night or a Saturday night. What the situation was, was it on the weekend of
December 17th, which was the mother’s weekend to have the child. The child was
to be in a Christmas program at his school and . . . . it was the mother’s mother or
some family members that were going to come down and visit[.] [T]here were some
questions back and forth if they don’t come down, I’m coming - - the mother was
saying if they don’t come down, I’m coming to Green County and yes, you can have
the child, but for Mr. Goins apparently the conversation wasn’t going anywhere to
him and he just hung up. And so then there was no further visitation.

       Also, on that - - in that December 10th call, the mother did tell the father that
he could have the child all day Christmas, which to the Court, Christmas is December
the 25th, she was saying you can have the child on December 25th. There was no
response from the father about that offer.

        Then the father didn’t visit on December the 10th and then the mother from
December the 24th to the 28th was in Greene county or at least part of the time was
in Greene County, Tennessee. She was in - - she visited with her mother and with
her father. She didn’t call Mr. Goins, but he also did not call her.

        I have no testimony at all about what these two people did for Christmas
when they were married or what traditions they had, although it appears that the
tradition in the Goins’ family was that they celebrated with family members about
a week before Christmas Day . . . .

        . . . [S]ince November the 27th, 1999, there has been no visitation by the
father with the child.

       The father did call on February the 28th, spoke to the stepfather of the child
for almost two minutes. 1.8 tenths minutes is what was recorded on the phone call.
There is some disagreement about what was said. The stepfather testified that he


                                          -5-
answered the telephone. The natural father says that he talked with the stepfather.
At least they both agree they talked to each other. The disagreement is about what
was said.

       The stepfather did learn that the grandfather of the natural father had passed
away and that the father wanted the child for a funeral and the stepfather said he told
him to call back, that his wife, the mother of the child, wasn’t at home.

       Mr. Goins says that he wanted - - he had asked that Mrs. Bergquist return his
call. She didn’t return the call. She did get the message or got a message from her
husband that Mr. Goins had called, that the grandfather had passed away, that he did
want the child for the funeral.

        There was no follow-up by Mr. Goins in calling the mother back and there
was no visitation. The Court can’t find and does not find that the mother denied the
father visitation on February the 28th. The father just didn’t call back.

        Further, in this case the Court has heard the witnesses and, Mr. Goins, I find
that you’re not a credible witness. You didn’t tell the truth from the witness stand.
You did threaten and you have threatened the mother and I find that you have also
hit her. You did tell the mother that you were going to take the child to the trailer
down at the racetrack and that’s probably what really started the matter.

       . . . If I understand that, the mother’s real complaint came about the trailer.
You said you didn’t tell her that. The Court finds you did.

       Also, Mr. Goins, you said that you didn’t say in the presence of the father that
you could snap the mother’s neck. The Court finds you did . . . .

       In this situation on the - - you also had indicated you had not threatened the
mother, and the mother had made testimony and also her husband, Mr. Bregquist, had
made testimony that on one occasion in seeing you on the road and the three, Mr.
Bergquist, Mrs. Bergquist and the minor child were in the car, Mr. Bergquist testified
and Mrs. Bergquist, too, that you leaned over and using your hands and arms that you
made a motion as if you were firing a rifle at them. I don’t know that they made as
good a description. They gave more of hand motions, but for the record they showed
how one has an imaginary gun, rifle in his hand, and is pointing it at someone and
making a shooting. That you did.

        On October the 15th you appeared, the mother also appeared, it’s unfortunate
that you left early, but you just left early. It’s also unfortunate that you didn’t make
a telephone call or try to make up that visitation.



                                          -6-
              You did call on February the 28th, 2000. You didn’t follow up on that call.
       The Court is of the opinion it wasn’t the mother’s responsibility to take the initiative
       and follow back up, although under the circumstances with the death of your
       grandfather it would have been a kind thing for her to do. But you could have called
       back.

               That’s the only call that you made. Now, your mother did make some
       telephone calls which the biological mother did not attempt to return, didn’t tell the
       child about. And under the - - but that’s the paternal grandmother and it is the father
       who has been granted the specific visitation.

               ....

               But what the circumstances are, Mr. Goins, is that for more than a hundred
       and twenty days preceding the filing of this petition for adoption and termination of
       parental rights on the 13th day of June 2000, you have wilfully failed to visit and it’s
       a willful failure to visit. The visitation was working. It’s regrettable about the
       October 15th incident, but it seems that matters came on December the 10th when
       you didn’t get December the 17th and you just hung up and did not make any more
       phone calls until February the 28th, then didn’t follow up on that.

                But the Court finds that by clear and convincing evidence that the father has
       willfully failed to visit and under Tennessee Code Annotated Title 36, under the
       definition of abandonment, it’s clear - - it says abandonment is a willful failure to
       visit or wilful failure to pay child support. I find that you have willfully failed to visit
       and that is abandonment under the statutory definition.

               ....

               So the Court in this matter finds that by clear and convincing evidence on the
       issues of abandonment, the issues of the best interests of the minor child, that the
       Petitioners have carried the burden of proof and the Court does in fact terminate
       parental rights and does find that it’s also in the best interests of the child that the
       Court enter an adoption for the stepfather and the Court will do that.

       Mr. Goins presented the following issues for review:
1.     Whether there was clear and convincing evidence that Appellant abandoned his son as
       required for termination of parental rights;
2.     Whether termination of Appellant’s parental rights was in his son’s best interests.

       Before a parent’s rights can be terminated, statutory abandonment must be found by clear and
convincing evidence. In re: Welch, No. M1999-02649-COA-R3-CV, 2000 WL 192580, at*3 (Tenn.
Ct. App.). Further, this abandonment must be willful, In re: Swanson, 2 S.W.3d 180 (Tenn. 1999),


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as the failure-to-visit definition contains an element of intent. In re Adoption of Copeland, 43
S.W.3d 483, 488 (Tenn. Ct. App. 2000); Hickman v. Hickman, No. E2000-00927-COA-CV, 2000
WL 1449853, at *1 (Tenn. Ct. App.). “Abandonment inquires are heavily fact oriented and the
courts may consider any fact that assists them in deciding whether the parent’s conduct demonstrates
a conscious or willful disregard of all his parental duties.” In re: Satterwhite, No. E2000-02107-
COA-R3-CV, 2001 WL 387389, at*4 (Tenn. Ct. App.).

        The trial court determined that Mr. Goins’ parental rights should be terminated due to
abandonment as a result of Mr. Goins’ failure to visit his son for four months prior to the petition
being filed. The statutory definition of abandonment provides:

               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.

Tenn. Code Ann. §36-1-102(1)(A) (Supp.1998). The burden rested with Mr. & Ms. Bergquist to
establish, by clear and convincing evidence, that Mr. Goins willfully abandoned his child. Carr v.
Moore, No. 01A01-9807-CH-00402, 1999 WL 820608 at*3 (Tenn. Ct. App.).

              The clear and convincing standard imposes a heightened burden on those
       seeking to terminate the rights of a natural parent. To meet this standard, a party
       must go beyond the mere threshold of a preponderance of the evidence:

               Clear and convincing evidence eliminates any serious or substantial doubt
       concerning the correctness of the conclusions drawn from the evidence. It should
       produce in the fact-finder’s mind a firm belief or conviction with regard to the truth
       of the allegations sought to be established.

Id. at *3 (quoting O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995)).

       The facts do not support this finding.

               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. Tenn. Code Ann. § 36-1-113(l)(1).
       Because of its consequences, which affect fundamental constitutional rights, courts
       apply a higher standard of proof when adjudicating termination cases. . . .

               Under this heightened standard of review, we must first review the trial
       court’s findings in accordance with Tenn. R. App. P. 13(d). That review is de novo,


                                                  -8-
       with a presumption of correctness for the trial court’s findings of fact, unless the
       preponderance of the evidence is otherwise. Then we must determine whether the
       facts make out a clear and convincing case in favor of terminating the parents’
       parental rights.

Brown v. Rogers, No. M2000-01277-COA-R3-CV, 2001 WL 92083, at*2-3 (Tenn. Ct. App.). It is
uncontroverted that Mr. Goins did not visit Z. C. G. for a least 4 months prior to the Bergquists
filing their petition. The issue, however, is whether the evidence showed this lack of visitation to
be willful. We believe the evidence does not establish a clear and convincing showing that Mr.
Goins’ failure to visit was willful.

       The trial court observed the demeanor of the witnesses and heard their testimony, thus this
determination is entitled to great weight. Weaver v. Nelms, 750 S.W.2d 158, 160 (Tenn. Ct. App.
1987); In Re Welch, No. M1999-002649-COA-R3-CV, 2000 WL 192580 at *3 (Tenn. Ct. App.).
Further, the court found that Mr. Goins was not a credible witness. However, even taking all facts
as found by the judge, we do not see clear and convincing evidence of willful failure to visit.
Further, in making his finding, the judge failed to consider several uncontroverted facts and gave
inappropriate weight and inferences to others.

        Mr. Goins visited his son regularly and had no visitation problems until Ms. Bergquist
decided to re-marry. Shortly thereafter she chose to move from Greene County, where Mr. Goins
lived, to Hendersonville and began interfering with Mr. Goins visitation. At one point she even
refused his visitation for several weeks prompting Mr. Goins to file a petition for contempt.

         Although, Mr. Goins behavior has been far from exemplary (often times down right
reprehensible), Ms. Bergquist has, by her own testimony and admitted actions, been less than co-
operative in working with Mr. Goins to make Z. C. G. available for his visitation. It was not
unreasonable for Mr. Goins to believe that Ms. Bergquist was not going to bring Z. C. G. for
visitation on October 15, after he waited for over an hour, considering past situations when he has
gone to the drop off point and she failed to show up. Further, A pre-school Christmas play is
certainly not of more importance than the opportunity to participate in an extended family Christmas
tradition. It is also uncontroverted that Mr. Goins called again on Christmas Eve to try to get Z. C.
G. for his Christmas visitation. In addition, Ms. Bergquist should have called Mr. Goins upon
arriving in Greene County for Christmas; she should have returned Mr. Goins call about his
Grandfather’s death, and she should allow Z. C. G. to communicate with has paternal Grandmother.
Regardless of her contempt for Mr. Goins and his family, as long as he has parental rights, it is her
obligation, as custodial parent with primary control over the child, to work on her end to foster the
relationship between Z. C. G. and his father. In this case, it appears that she did just the opposite in
the months leading up to the filing of the petition in this matter.

        However, the foregoing being said, Mr. Goins is certainly skating on thin ice with regard to
his parental rights. Although the evidence at this time does not clearly show willful abandonment,



                                                  -9-
Mr. Goins should now be on notice that any further neglect of his visitation will certainly be subject
to more liberal interpretation as evidence of willfulness.

       As we cannot find clear and convincing evidence of the element of willfulness necessary for
abandonment, it is unnecessary to determine the child’s best interests based on the factors set out in
T.C.A. §36-1-113(i) and Brown v. Rogers.

       The judgment of the trial court is reversed and the case remanded for further proceedings
consistent with this opinion. Costs on appeal are taxed to Appellees.




                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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