                                                                                                            04/30/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                      January 10, 2018 Session

                                          IN RE EMMA S.1

                 Appeal from the Chancery Court for Rutherford County
                   No. 16CV-1300     Howard W. Wilson, Chancellor
                        ___________________________________

                                No. M2017-01243-COA-R3-PT
                            ___________________________________


A mother’s parental rights were terminated on the ground of abandonment by willfully
failing to visit her daughter. Mother appeals, arguing that the petition initiating the
proceeding did not include the notice required by Rule 9A of the Tennessee Rules of
Civil Procedure; that the record did not contain clear and convincing evidence that she
abandoned her child; and that termination was not in the child’s best interest. Upon our
review, we conclude that the proof does not clearly and convincingly establish the ground
of abandonment by failure to visit. We reverse the judgment of the trial court and dismiss
the petition.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.

J. Stephen Aymett, Jr., Murfreesboro, Tennessee, for the appellant, Joy S.

Nathan A. White, Murfreesboro, Tennessee, for the appellees, Jennifer and Michael A.

Amy Broom Pollina, Murfreesboro, Tennessee, Guardian ad litem

Christopher H., Rome, Georgia, Pro Se




1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
                                                 OPINION

I. Factual and Procedural Background2

       This is an appeal from an order terminating the parental rights of Joy S.
(“Mother”) to her daughter, Emma S. Mother and Christopher H. (“Father”) are the
biological parents of Emma S., born in December 2012; at the time of her birth, Mother
and Father resided in Ellijay, Georgia.3 Emma resided with both parents until August of
2013, when Mother was incarcerated for a probation violation; Emma continued to reside
with Father. In June 2014, Father asked his cousin Jennifer A., who lives in
Murfreesboro, Tennessee, to care for Emma while he sought treatment for a drug
addiction; Jennifer A. and her husband Michael (collectively, “Petitioners”) agreed to do
so and brought Emma to live with them on July 29, 2014.

       Petitioners filed a petition for temporary custody of Emma in the Rutherford
County Juvenile Court in December 2014 to allow them to add Emma to their health
insurance; Petitioners received custody of her by order entered in March 2015. On July
28 of that year Petitioners initiated a proceeding to have Emma declared dependent and
neglected. After having been released from jail in August 2015, Mother was incarcerated
again in late January 2016 for failing to report to probation, for giving a police officer the
wrong name, and for failing a drug test. On March 12, 2016, Emma was adjudicated
dependent and neglected, and Petitioners were granted full legal custody of her. On
August 29, 2016, Petitioners filed a petition to terminate the parental rights of Mother and
Father to Emma and for adoption, alleging abandonment by failing to visit and support
her and by wanton disregard for her welfare, substantial non-compliance with the
permanency plan, and persistence of conditions as grounds for termination.

       Mother, who was still incarcerated at the time the petition was filed, and Father
both filed pro se answers to the petition; the trial court found Mother to be indigent and
appointed counsel for her. The court also appointed a Guardian ad Litem. A trial was
held on May 3, 2017, at which four witnesses testified on behalf of Petitioners. Mother
was incarcerated in Georgia at the time of the trial, and her deposition was introduced
into evidence. Father did not appear at trial in person or through counsel.


2
  This background is taken largely from the order under appeal. Unless otherwise noted, the factual
history is not disputed.
3
  Mother was married to another man at the time of Emma’s birth; an order was entered in a related
dependent and neglect proceeding stating that Father “admitted that he is the biological father of
Emma…” and declaring him to be her legal father pursuant to Tennessee Code Annotated section 36-2-
305. Father did not participate in the trial of this case, and the termination of his parental rights are not at
issue in this appeal.

                                                       2
       By order entered May 22, 2017, the trial court terminated Mother’s and Father’s
rights on the grounds of abandonment by failure to visit; the court deemed the proof as to
all other grounds for termination to be insufficient. The court also examined the best
interest factors at Tennessee Code Annotated section 36-6-113(i) and determined that
termination of Mother and Father’s rights was in Emma’s best interest. Mother appeals,
stating the following issues for our review:

   I.     Whether or not Appellant’s failure to personally sign the Notice of
          Appeal deprives the Court of jurisdiction and the appeal should be
          dismissed.

   II.    Whether or not the termination of Mother’s parental rights should be
          reversed because Petitioner’s Petition fails to comply with the
          requirement of Rule 9A of the Tennessee Rules of Civil Procedure that
          it contain language advising Mother of the expedited appeal provisions
          of Rule 8A of the Tennessee Rules of Appellate Procedure.

   III.   Whether or not the record supports the trial court’s finding that clear
          and convincing evidence existed that Mother abandoned Emma by
          willfully failing to visit her in the four months preceding the filing of
          Petitioner’s Petition.

   IV.    Whether or not the record supports the trial court’s finding that clear
          and convincing evidence existed that termination of Mother’s parental
          rights was in the best interest of Emma.

II. STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated under
certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes
on termination of parental rights provide the only authority for a court to terminate a
parent’s rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental
rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann.
§ 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights,
only one ground need be proved, so long as it is proved by clear and convincing
evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

       Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
                                             3
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).

III. ANALYSIS

       A. Notice of Appeal

       Petitioners moved to dismiss the appeal on the basis that Mother failed to
personally sign the notice of appeal, as required by Tennessee Code Annotated section
36-1-124(d). While the appeal was pending, our Supreme Court decided In re Bentley
D., holding that the statute does not require a notice of appeal to be signed personally by
the appellant and that the timely notice of appeal signed by the attorney of the parent
whose rights were terminated satisfies the signature requirement. In re Bentley D., 537
S.W.3d 907, 909 (Tenn. 2017). At oral argument, Mother’s counsel conceded that the
Supreme Court decision has rendered this issue moot.

       B. Rule 9A Notice

      Mother argues that the petition to terminate her rights is deficient because it fails
to comply with Rule 9A of the Tennessee Rules of Civil Procedure, which states:

       In addition to meeting all other applicable rules governing the filing of
       pleadings, any complaint or petition seeking a termination of parental rights
       shall contain the following notice: “Any appeal of the trial court’s final
       disposition of the complaint or petition for termination of parental rights
       will be governed by the provisions of Rule 8A, Tennessee Rules of
       Appellate Procedure, which imposes special time limitations for the filing
                                             4
        of a transcript or statement of the evidence, the completion and
        transmission of the record on appeal, and the filing of briefs in the appellate
        court, as well as other special provisions for expediting the appeal. All
        parties must review Rule 8A, Tenn. R. App. P., for information concerning
        the special provisions that apply to any appeal of this case.”

The petition to terminate Mother’s rights does not contain this notice, and has not been
amended to include the language in the Rule.

        Mother argues the petition is defective and “caused Mother to be uninformed from
the outset, which defeats the purpose of the rule,” that this “omission and error by
Petitioners was harmful and prejudicial,” and that therefore, her rights should not have
been terminated. Although not raised as matters of concern in her brief in chief, in her
reply brief, Mother asserts that the petition also fails to comply with Tennessee Code
Annotated sections 36-1-113 and 36-6-224 by failing to include the present address of
Emma and the Petitioners, the addresses of the persons whom Emma had lived with prior
to living with the Petitioners, the case number of the prior proceeding concerning the
custody of Emma, and a statement of whether Petitioners knew of any proceeding that
could affect the current proceeding before the court. While acknowledging that the
notice was not included in the petition, Petitioners respond that the petition otherwise
complies with the pertinent statutes and rules, that Mother has not shown that she was
prejudiced by the omission, and, therefore, the error should be considered harmless.

        Mother and Petitioners each rely on In re Natalie R.C., No. E2011-01185-COA-
R3-PT, 2011 WL 4924170 (Tenn. Ct. App. Oct. 18, 2011), in support of their positions.
In that case, a father appealed the termination of his parental rights asserting, among
other issues, that the trial court erred in not dismissing the petition due to what the father
contended were fatal defects in the petition, viz., failure to include the Rule 9A notice,
failure to comply with Tennessee Code Annotated section 36-1-113(d)(3)(A)(i)4 and (C)5,
and section 36-6-224.6 The trial court held that the affirmative defenses raised by the
father were without merit, proceeded to address the merits of the petition, and terminated
the father’s rights. On appeal, this court rejected the petitioning grandmother’s argument

4
  Tennessee Code Annotated section 36-1-113(d)(3)(A)(i) requires that the petition to terminate parental
rights include a statement that the putative father registry had been consulted within ten days of the filing
of the petition and if there was any claim on the registry to the child who was the subject of the
proceeding.
5
  Tennessee Code Annotated section 36-1-113(d)(3)(C) requires language in the petition relating to the
effect of the termination of the parent’s rights to notice of and ability to object to adoption proceedings.
6
  Tennessee Code Annotated section 36-6-224 requires that the petition include certain statistical
information, as well as the existence and history of any other proceeding involving the child or which
could otherwise affect the termination proceeding.
                                                     5
that the petition “sufficiently complied with all relevant rules and statutes” and could be
excused. Id. at *4-5. We held that the omissions were “deficiencies which, taken
together, render the petition defective,” but did not agree with the father that “the defects
[were] fatal and require[d] the petition to be dismissed.” Id. at 5. Noting that the defects
could be cured, we vacated the decision and remanded the case to afford the petitioner the
opportunity to do so. Id.

       The recent case of In re Bentley D., No. E2016-02299-COA-R3-PT, 2018 WL
1410903, (Tenn. Ct. App. Mar. 21, 2018), wherein a father appealed the termination of
his parental rights, presented similar facts and legal issues to the case at bar. In that case,
the trial court held that the petition’s failure to include the information required by
Tennessee Code Annotated section 36-1-113(d)(3)(A)(i) and sections 36-1-
113(d)(3)(C)(ii) and (iii)7 did not make the defects fatal; on motion, the court allowed the
petition to be amended to correct the defects. Id. at *1. On appeal, we rejected the
father’s argument, based on In re Natalie R.C., that the petition should have been
dismissed, holding:

          In In re Natalie R.C., the termination petition had multiple defects, the
          omission of the Tenn. R. Civ. P. 9A notice being one of them. The
          appellate court found that all of the deficiencies together made the petition
          defective, but also noted that “[p]erhaps any one of the deficiencies alone
          might have constituted harmless error.” Moreover, the appellate court
          determined that the appropriate remedy was not dismissal. Rather, it held
          that “[t]hese defects are such that they can be corrected by [petitioner] and
          her current attorney if given the opportunity, and they choose to do so.”
          The court vacated the trial court’s judgment and remanded for further
          proceedings.

2018 WL 1410903, at *3.


7
    Tennessee Code Annotated section 36-1-113(d)(3)(C) states:

          (C) The petition to terminate, or the adoption petition that seeks to terminate parental
          rights, shall state that:
          ***
                   (ii) The child will be placed in the guardianship of other person, persons or
                   public or private agencies who, or that, as the case may be, shall have the right to
                   adopt the child, or to place the child for adoption and to consent to the child’s
                   adoption; and
                   (iii) The parent or guardian shall have no further right to notice of proceedings
                   for the adoption of the child by other persons and that the parent or guardian shall
                   have no right to object to the child’s adoption or thereafter, at any time, to have
                   any relationship, legal or otherwise, with the child.

                                                       6
        In the case before us, there is no evidence that the defects in the petition
prejudiced Mother; indeed none of the deficiencies were raised in the trial court. Mother
initially filed her answer pro se, and her appointed counsel did not seek to amend her
answer or address any defect by motion. In her initial brief on appeal, Mother
complained only of the Rule 9A omission; the asserted violations of information required
by the statute were not raised until Mother’s reply brief. Mother has pursued a timely
appeal and has complied with the process imposed at Rule 8A of the Tennessee Rules of
Appellate Procedure. Under the record presented, the omission of these items was
harmless error.

       C. Abandonment by Willful Failure to Visit

       Abandonment is identified as a ground for termination in Tennessee Code
Annotated section 36-1-116(g)(1) and defined in section 36-1-102(1)(A), which reads in
pertinent part:

       For purposes of terminating the parental or guardian rights of a parent or
       parents or a guardian or guardians of a child to that child in order to make
       that child available for adoption, “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).

        We first address Mother’s argument that a finding that she had engaged in conduct
that displayed a wanton disregard for the welfare of Emma was necessary in order to find
that she had abandoned her daughter. Mother argued in her brief and at oral argument
that this Court’s decision in In re Audrey S. dictates that before an incarcerated parent can
be determined to have abandoned their child, the court must make a finding that the
parent engaged in conduct displaying wanton disregard for their child’s welfare. This is
not a correct reading of In re Audrey S.

       Tennessee Code Annotated section 36-1-102(1)(A)(iv), quoted above, identifies
three distinct ways an incarcerated parent can be held to have abandoned a child for
                                           7
purposes of terminating that parent’s rights: (1) willfully failing to support the child
during the four month period preceding incarceration, (2) willfully failing to visit the
child during the four month period preceding incarceration, or (3) engaging in conduct
prior to incarceration that exhibits a wanton disregard for the child’s welfare. In re
Audrey S. held that the statute provided two tests for abandonment where the parent is
incarcerated, the first of which:

         prevents a parent from relying on his or her own criminal behavior and
         resulting imprisonment as a defense to the termination of his or her parental
         rights by allowing the court to examine the record of visitation and support
         during the most recent period for which the excuse of incarceration is
         unavailable. . . .

and the second of which:

         does not make incarceration alone a ground for the termination of parental
         rights. . . [but allows] [a]n incarcerated or recently incarcerated parent [to
         be] found guilty of abandonment only if the court finds, by clear and
         convincing evidence, that the parent’s pre-incarceration conduct displayed a
         wanton disregard for the welfare of the child.

182 S.W.3d at 866.

       Neither the statute nor the case law interpreting it support the contention that a
finding of wanton disregard is required in order for a court to find that an incarcerated
parent has abandoned a child by failing to visit or support the child; Mother’s argument
to the contrary is without merit. Accordingly, we proceed to discuss the sufficiency of
the evidence to support the ground of termination.

         As respects this ground, the court made factual findings as to Mother’s failure to
visit:

         On August 9, 2015, Mother was released from the Bleckley Probation
         Detention Center. On the day of her release, she contacted [Petitioners] to
         arrange visitation with the Child; however, visitation did not occur. Mother
         informed [Petitioners] of her plans to come to Murfreesboro with a friend
         who was then continuing on to Indiana. On August 24, 2015, she asked the
         [Petitioners] if she could spend the night at their home while visiting the
         Child; however, although it is undisputed that [Petitioners] were agreeable
         to her visit with the Child, they were not open to Mother’s request to stay
         overnight at their home. Mother claimed that she was unable to make other
         arrangements, and her plans fell through. [Petitioners] testified that the

                                               8
        conversation with Mother on August 24, 2015 was the last time she made
        contact with them or requested to visit with the Child.

        Despite being out of jail during the fall of 2015, Mother made no further
        attempts to visit with the Child. Although she claims that she was subject to
        special circumstances, including her lack of access to transportation and her
        difficulty in leaving the State of Georgia due to her supervised probation,
        Mother never even attempted to make further contact with the Child by
        telephone or otherwise arrange for her visitation with the Child. Mother
        turned to drugs in the months following her release from prison, and this
        choice soon landed her back in prison for the purpose of serving the
        sentence that she was originally ordered to serve.

On the basis of those findings, the court determined that Mother’s failure to visit was
willful:

        Accordingly, the Court finds that Mother’s actions, along with her lack of
        contact with [Petitioners] or the Child, clearly indicate her willful failure to
        visit. Thus, Petitioners have proven grounds for the termination of her
        parental rights pursuant to Tenn. Code Ann. §31-1-102(1)(A)(iv).

       Mother does not take issue with the court’s factual findings or contend that they
are not supported by the evidence; upon our review, with the exception the finding that
Mother had “difficulty in leaving the State of Georgia due to her supervised probation,”8
the evidence does not preponderate against the findings.9 Mother argues that the
evidence was not clear and convincing that her failure to visit Emma willful, and that the
record “in fact supports the opposite conclusion: that Mother did everything she could to
try and visit Emma until she realized Petitioners were never going to allow it to happen.”

        This Court discussed willfulness in the context of parental right termination cases
in In re Audrey S.:

8
  Mother’s counsel said during opening argument that “Mother can’t leave the State [of Georgia]”; there
is no testimony or other evidence to support the court’s finding that her probation imposed a limit on out
of state travel.
9
  The petition was filed August 29, 2016, while Mother was incarcerated. After finding that Mother’s
most recent period of incarceration began on January 20, 2106, the trial court determined that the relevant
four-month period for was August 9, 2015, through January 20, 2016. The court did not explain how it
determined the period which, by our calculation, is a little over five months; we do note that the court
stated that Mother was released from jail on August 9, 2015, violated her probation, and was returned to
jail on January 20, 2106. Inasmuch as the period used by the court exceeds the four month period
required by the statute, our review of this ground for termination is not adversely impacted.

                                                    9
      The concept of “willfulness” is at the core of the statutory definition of
      abandonment. A parent cannot be found to have abandoned a child under
      Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either
      “willfully” failed to visit or “willfully” failed to support the child for a
      period of four consecutive months. . . . Willful conduct consists of acts or
      failures to act that are intentional or voluntary rather than accidental or
      inadvertent. Conduct is “willful” if it is the product of free will rather than
      coercion. Thus, 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. . . .
      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. Failure to visit or
      to support is not excused by another person’s conduct unless the conduct
      actually prevents the person with the obligation from performing his or her
      duty . . . or amounts to a significant restraint of or interference with the
      parent’s efforts to support or develop a relationship with the child. 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.

      The willfulness of particular conduct depends upon the actor’s intent.
      Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
      peer into a person’s mind to assess intentions or motivations. Accordingly,
      triers-of-fact must infer intent from the circumstantial evidence, including a
      person’s actions or conduct.

182 S.W.3d at 863-64 (citations and footnotes omitted).

        Evidence pertinent to this issue came from Jennifer A. and Mother. Jennifer A.
testified that about three months prior to Mother’s release from incarceration on August
9, Mother’s “phone calls dropped off,” but after her release from prison, Mother
contacted Jennifer A. to tell her that she would like to see Emma; that on August 24
Mother called “wanting to come for a visit because she had a friend that was driving
through Tennessee on her way to Kentucky and Indiana . . . [a]nd [Mother] wanted to
come and visit Emma and take her with her to these states”; and that she told Mother that
“she was more than welcome to visit” but she could not stay overnight with Petitioners
and could not take Emma overnight or out of the state. Jennifer A. testified that she had
not heard from Mother since August 24, 2015.

      Relative to her actions during the time period Mother testified as follows:


                                            10
Q. All right. How do you feel -- how do you feel about the -- Emma living
with [Petitioners], just from an overall standpoint?
A. Overall, I’m very grateful for them, for everything that they do for her. I
don’t know where she would be without their help. I’m very, very grateful.
I don’t have any bad things to say about them except that they didn’t allow
me to see her, and that really bothers me.
        In fact, I -- I fell apart when that fell through, you know. And I
didn’t handle that in a way that I’m proud of, but, you know, today, I feel
like I’m a different person than I was back then.
        I’ve gone through so many changes from being here. I’m completely
clean of all mental health medicine. I don’t take any medicine whatsoever,
and I work very closely with my counselor and psychologist, and they think
I’m doing very well without medications.
        I think I used them as a crutch in my past, and I’m – I’m a totally
different, stable person than I was when they first met me, even over the
telephone. And I just wish that I would have a chance to -- to be a part of
my daughter’s life.
***
Q. Again, ma’am, I’m only referring to this period from August 9th, 2015,
to January 26, 2016.
    What did you do during that period of time to get Emma back?
A. Well, I was trying to get somewhere to live.
Q. I’m not talking about trying. I’m asking actually what did you do during
that period of time to get Emma back?
A. I don’t have a good answer for that.
Q. Okay. All right.
A. I mean, I -- when -- when they wouldn’t bring her to me like we had
originally agreed, I got very upset, and I reacted in a very bad way by
getting, you know, myself in trouble again. Absolutely, it was the wrong
choice on every front. You’re 100 percent right about what you are going to
say about me in that way, but it was never my intention to give my daughter
away. And I know that it will never be in her best interest to not have me in
her life. I’m her mother. And even though I haven’t been the best mother
that she could have had, I’m still there, and I’m not going to give up trying
to be there.
Q. Okay. Well, just --
A. Even though I’m not able to be there right now, I’ve done anything in
my power to be here on this phone, and that took some effort on the part of
my lawyer and me. I guess, probably, if I hadn’t filed that answer, I
wouldn’t have even been given this opportunity, but I’m grateful for it.
***
Q. Okay. So why haven’t you made any contact with Emma or
[Petitioners] since August of 2015?
                                      11
       A. Well, since I’ve been -- since January of 2016, I’ve not had access to
       their address or phone number. I mean, I know what city they live in, but I
       don’t have their -- I don’t have access to it. And I’ve asked people to give it
       to me, but I haven’t been able to get it.
       Q. Okay.
       A. I think I’ve been completely defeated. You know, for a little while, I felt
       like there was no way that I could win in this situation, but I just couldn’t
       give up. You know, I love my daughter too much. Even though I know my
       actions don’t look – don’t point in that direction sometimes, I love my
       daughter, and I want to be a part of her life. And I know that they’re doing
       a great job taking care of her right now, and I’m so grateful that she has
       them. But I don’t believe in my heart that it will ever be in her best interest
       to not know me and not to have access to me.
       ***
       Q. Okay. And how far is Ellijay from Murfreesboro?
       A. Six hours away.
       Q. Six hours from Ellijay --
       A. Yes.
       Q. -- to Murfreesboro? I think you need to look at Google maps, but,
       regardless, you found a way to get to Atlanta. You found transportation to
       Atlanta, didn’t you?
       A. I did.
       Q. To party?
       A. I did.
       Q. Okay. But you -- that was a choice that you made instead of finding
       transportation to Murfreesboro to come up here and see Emma, correct?
       A. I don’t know how I was going to be able to – I mean, without their
       permission, without their cooperation, it was not going to be possible, sir.
       Q. But you never came here. Regardless, you never made the attempt to
       come up here?
       A. I -- I did make attempts, but no successful attempts.

        Mindful of our role as the reviewing court to determine whether the facts, “as
found by the trial court or as supported by the preponderance of the evidence, clearly and
convincingly establish” the element of willfulness, upon our review we are not left with
the “firm conviction” that Mother’s failure to visit was willful. In re Alysia S., 460
S.W.3d at 572. Mother’s testimony quoted above addresses the elements of willfulness
as set forth in In re Audrey S.; specifically, her capacity to visit, her attempts to visit, and
whether she had a justifiable excuse for not visiting. It was Petitioners’ burden to prove
these elements to the extent that there is “no serious or substantial doubt about the
correctness” of the conclusion that her failure to visit was willful. Id.


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        Granting Mother the deference due her in the absence of an adverse credibility
determination10 or evidence to the contrary, her testimony shows that she was clearly
concerned about her daughter and desired to visit with her but, for various reasons, was
unable to do so. Upon leaving jail Mother’s first call was to request permission to visit
Emma. The trial court made a finding that Petitioners “would not bring [Emma] to
Georgia, and [Mother] would not be permitted to take [Emma] out of the home for
overnight visitation”; as noted earlier, Petitioners advised Mother that she could not stay
overnight with them. There is no evidence that Mother was unwilling to meet the
conditions in order to visit Emma; rather, the evidence is unrebutted that she was unable
to do so. In other testimony, Mother stated that she did not have a driver’s license or a
vehicle and was dependent on others for the drive to Murfreesboro. Taken in context and
in its entirety, the evidence preponderates against the trial court’s finding of willfulness.

       This ground of abandonment by failure to visit was not clearly and convincingly
established by Petitioners, and we reverse the judgment of the trial court in that regard.
In light of our disposition of this issue, our review of the court’s best interest
determination is pretermitted.

III. CONCLUSION

       For the foregoing reasons, the judgment of the trial court terminating Mother’s
parental rights is reversed.11




                                                         RICHARD H. DINKINS, JUDGE




10
 We do not fault the trial court for not making a credibility determination, given that Mother’s testimony
was by deposition.

11
  Our resolution of this appeal does not affect the existing order in the dependent and neglect proceeding
granting legal custody of Emma to Petitioners.

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