                  IN THE COURT OF APPEALS OF TENNESSEE
                                                                                FILED
                                     AT KNOXVILLE                               May 19, 1999

                                                                             Cecil Crowson, Jr.
                                                                             Appellate C ourt
                                                                                 Clerk
BETHANY CH RISTIAN SERVICES,)                  C/A NO. 03A01-9810-JV-00345
INC.,                       )
                            )                  HAMILTON JUVENILE
          Appellee,         )
                            )                  HON. SUZANNE BAILEY,
v.                          )                  JUDGE
                            )
JONATHAN NATHANIEL JACKSON, )
                            )
          Appellan t.       )
                            )
IN THE MATTER O F:          )                  AFFIRMED
                            )                  AND
JACOB ELIJAH MELTON.        )                  REMANDED




MIC HAE L S. JE NNIN GS, S AM PLES , JENN INGS & PIN EDA , P.L.L.C .,
Chattanooga, for Appellee.

BAR BAR A L. BR OER SMA , Chattano oga, for A ppellant.




                                       O P I N IO N


                                                            Franks, J.


               In this termination of parental rights case, plaintiff Bethany Christian

Services, Inc., sued the putative father, Jonathan Nathaniel Jackson, and the Trial

Judge terminated Jackson’s parental rights.

               On December 1, 1997, Jacob Elijah Melton, was born to Jessica Renee

Melton. Jessica identified the father as Jackson, and on December 2, 1997, Jessica

entered into an agreem ent with pla intiff to surren der her par ental rights to th e child

and to have the child placed for adoption. This action against Jackson was filed on

December 10, 1997, alleging abandonment, and seeking custody for adoptive

placement. Plaintiff later amended the Petition adding alternative grounds for
termination of parental rights un der Tenn. Cod e Ann. § 36-1-1 13(g)(8)(A)(I), (ii), (iii),

(iv), and (vi). (R. 1 8).

               On February 18, 1998, Jackson filed an Answer and Counter-Petition,

denying that he had abandoned his child , requesting blood tests to determine

paternity, visitation w ith the child pe nding the re sults of the tes ting, and req uesting, if

paternity be established, that custody be placed with him or his parents.

               In ordering termination after the evidentiary hearing, the Trial Court

made findings of fact and stated she found by clear and convincing evidence:

                       That the p etition filed by B ethany Christia n Services , Inc., is well
               taken and should be sustained and relief granted on the grounds of
               abandonment and other causes therein stated and as amended in that the
               respondent has willfully failed to visit and willfully failed to make
               reasonable payments toward the support of the child’s mother during the
               four (4) months immediately preceding the birth of the child; that the
               responde nt has failed , without go od cause or excuse , to pay a reason able
               share of prenatal, natal, and postnatal expenses involving the birth of the
               child in accordance with his financial means promptly upon his receipt
               of notice of the child’s impending birth; that the respondent has failed,
               without good cause or excuse, to make reasonable and consistent
               payments fo r the suppo rt of the child in accorda nce with th e child
               support guidelines promulgated by the department pursuant to 36-5-101;
               that the respondent has failed to seek reasonable visitation with the
               child; that the respondent has failed to manifest an ability and
               willingness to assume legal and physical custody of the child; that the
               responde nt has failed to file a petition to establish pa ternity of the child
               within thirty (30) days after notice of alleged paternity by the child’s
               mother.

               The test results finding Jonathan to be the father were released on March

18, 1998 .   At the trial Jon athan testified that after the b aby was bo rn Jessica w ould

see him at school and give him derogatory looks. She later started saying “hello”

when he saw her. Sometime in February of 1998, Jessica approached him and said,

“ple ase d on’t go to the c ourt, don ’t go, I wa nt the bab y to go to an adoption agency,

whatever.” He said that he told one of her friends that he wanted to see pictures, and

that Jessica told the friend that she would not let him see any. He also said that he was

not em ployed, b ut that he could g et a sum mer job at the po st offic e or a gr ocery stor e.


                                               2
When asked if he is willing to accept custody and if he would like to have custody, he

said, “Correct.”

               Except for filing the counter-action to get custody of Jacob, he made no

effort to see the child. He admitted that Jessica told him she was pregnant and that he

was the father. He also said that she called him sometimes, but that he was not

allowed to speak to her. He knew that the baby was born in December because he saw

Jessica at school. Though he knew the baby was born, he never attempted to check on

the bab y, and nev er offe red Jess ica any m oney to su pport th e child.

               The standard of review of this case is de novo upon the record of the

Trial Court with the presumption of correctness of the Trial Court’s findings, unless

the evidence preponderates otherwise. T.R.A.P. Rule 13(d). We conclude the

evidence does not preponderate against the finding by the Trial Court, by clear and

convincing eviden ce, that Jackson aband oned his child and that the o ther factors

justifying termination were present. It does not preponderate against the finding that

termination and adoption are in the best interests of the child.1

               Tennessee Code Annotated provides that “[t]ermination of parental or

guardianship rights must be based upon: (1) A finding by the court by clear and

convincin g evidenc e that the gro unds for te rmination o f parental o r guardians hip

rights have been established ; and (2) That termination o f the parent’s or guardian’s

rights is in the best interests of the child.” Tenn. Code Ann. § 36-1-113(c) (Supp.

1998). The relevant grounds for termination of parental rights in this case are:

               (1) Aban donmen t by the parent o r guardian, a s defined in
               §36-6 -102, h as occu rred; . . .

               (8)(A) The parental rights of any person who is not the legal
               parent or guardian of a child or who is described in § 36-1-117(b)
               or (c) may also be terminated based upon any one (1) or more of

   1

       At the time of trial, Ms. Melton was age 14 and Jackson was 16.


                                               3
              the following additional grounds:
              (I) The perso n has failed, w ithout go od cause or ex cuse , to pa y a
              reasonable share of prenatal, natal, and postnatal expenses
              involving the birth of the ch ild in accordance w ith the person’s
              financial means promptly upon the person’s receipt of notice of
              the child’s impending birth;
              (ii) The person has failed, without good cause or excuse, to make
              reasonab le and con sistent paymen ts for the sup port of the c hild in
              accordance with the child support guidelines promulgated by the
              department pursuant to § 36-5-101;
              (iii) The person has failed to seek reasonable visitation with the
              child, and if v isitation has be en granted , has failed to v isit
              altogether or has engaged in only token visitation, as defined in §
              36-1-102(1)(C);
              (iv) The person has failed to manifest an ability and willingness
              to assum e legal a nd physic al custo dy of the child; . . .
              (vi) The pe rson has fa iled to file a pe tition to establish paternity
              of the child within thirty (30) days after notice of alleged
              paternity by the child’s mother, or as required in § 36-2-318(j), or
              after making a claim o f paternity pursuant to § 36-1-11 7(c)(3).

Tenn. Code Ann. § 36-1-11 3(g) (Supp. 1998 ).

              In the past, abandonment had been defined by the courts as “any conduct

on the part of the parent which evinces a settled purpose to forego all parental duties

and relinquish all parental claims to the child. . . .” Ex Parte Wolfenden, 48 Tenn.

App. 433, 441, 348 S.W.2d 751, 755 (1961). To prove abandonment, the evidence

had to show “an actual desertion, accompanied with an intention to entirely sever, so

far as it is possible to do so, the parental relationship and throw off all obligations

growing out of the same.” Fancher v. Mann, 58 Tenn. App. 471, 476, 432 S.W.2d 63,

65 (19 68).

              In 1996, however, the General Assembly changed this definition of

abandon ment, setting f orth in its place its own de finition. The General A ssembly

explicitly stated:

              “Abandonment” and “abandonment of an infant” do not have any
              other defin ition excep t that which is set forth in this section, it
              being the in tent of the g eneral assem bly to establish the only
              groun ds for a bando nmen t by statuto ry definitio n. Specifically, it
              shall not be required that a parent be shown to have evinced a
              settled purpose to forego all parental rights and responsibilities
              in orde r for a d etermi nation of aban donm ent to be made .

                                             4
             Decision s of any co urt to the con trary are he reby legislativ ely
             overruled.”

Tenn. Code Ann. § 36-1-10 2(1)(G) (1996) (em phasis added).

             The definition of abandonment as contained in the Code is as follows:

             (1)(A) “Abandonment” means, for purposes of terminating the
             parental or g uardian righ ts of paren t(s) or guardia n(s) of a ch ild
             to that child in order to make that child available for adoption,
             that:
              (I) For a perio d of fou r (4) consec utive mon ths immed iately
             preceding the filing of a proceeding or pleading to terminate the
             parental righ ts of the pare nt(s) or guard ian(s) of the c hild who is
             the subject of the petition for termination of parental rights or
             adoption, th at the paren t(s) or guardia n(s) either ha ve willfully
             failed to visit or have willfully failed to support or make
             reasonable payments toward the support of the child;
             ...
              (iii) A biologic al or legal fath er has either w illfully failed to visit
             or willfully failed to make reasonable payments toward the
             support of the child’s mother during the four (4) months
             immediately preceding the birth of the child; provided, that in no
             instance shall a final order terminating the parental rights of a
             parent as determined pursuant to subdivision (1)(A)(iii) be
             entered un til at least thirty (30) days ha ve elapsed since the da te
             of the child ’s birth;
             ...
             (B) For purposes of this subdivision (1), “token support” means
             that the supp ort, under the circumstan ces of the in dividual ca se, is
             insignificant given the parent’s means;
              (C) For purposes of this subdivision (1), “token visitation”
             means that the visitation, under the circumstances of the
             individual case, constitutes nothing m ore than perfunctory
             visitation or visitation of such an infrequ ent nature of such sh ort
             duration as to merely establish minimal or insubstantial contact
             with the ch ild;
             (D) For p urposes o f this subdiv ision (1), “w illfully failed to
             support” or “willfully failed to mak e reasonable paymen ts toward
             such child’s support” means that for a period of four (4)
             consecutive months, no monetary support was paid or that the
             amount o f support p aid is token s upport;
             (E) For pu rposes of th is subdivision (1), “willfully failed to visit”
             means that willful failure, for a period of four (4) consecutive
             months, to visit or engage in more than token visitation;
             (F) Abandonment may not be repented of by resuming visitation
             or suppor t subseque nt to the filing o f any petition se eking to
             terminate parental or guardianship rights or seeking the adoption
             of a child;

Tenn. Code Ann. § 36-1-10 2 (Supp. 1998).


                                             5
                Jackson argues that he did not abandon the child, but he relies solely on

the definition of abandonment in the court cases that were legislatively overruled by

the statutory definition of abandonment. Applying the statutory definition, as the

statute requires, clear and convincing evidence establishes that Jackson did abandon

his child .

                It is undispute d that Jacks on made no suppo rt payments to J essica wh ile

she was pregnant or after the baby was born. It is also undisputed that Jackson made

no attem pt to visit J essica w hile she was p regnan t or visit th e child a fter he w as born .

Instead, Jackson avoided contact with Jessica by refusing to take her phone calls and

refusing to talk to her at school. Since there was no visitation or support of Jessica

before the child was born, this is clearly a situation that falls within the definition of

abandonment found in Tenn. Code Ann. § 36-1-102(1)(A)(iii), which merely requires

a willful failure to visit or willful failure to make reasonable payments toward the

support of the child’s mother for four months immediately preceding the birth of the

child.

                Willful failure to visit means minimal or insubstantial contact, and

willful failure to support means that no monetary support, or only token support, was

paid for a period of four consecutive months. Moreover, other grounds exist for

terminating the parental rights of Jackson. The statute provides six additional grounds

for termination of the rights of a person who is not the legal parent. These grounds

apply to Ja ckson . See Tenn. Code Ann. § 36-1-113(g)(8)(A). Any of these grounds

constitu tes a bas is to term inate pa rental rig hts, but f ive are a pplicab le to Jack son.

Gro und (I) states that t he “p erso n has failed, w ithout go od cause or ex cuse , to pa y a

reasonable share of the prenatal, natal, and postnatal expenses involving the birth of

the child in accordance w ith the person’s financial mea ns promptly upon the pe rson’s

receipt of notice of the child’s impending birth.” Jackson was notified of the


                                                 6
pregnancy sometime in April, 1997, and the child was born December 1, 1997.

Jackson knew that the child was born in December. Though he admitted that he was

in good physical shape and could get a job, he made no attempt to pay any of the

expense s of the birth o f the child. H e cannot re ly upon Jessica ’s failure to co ntact him

or provide him with bills, because he had the responsibility to initiate contact and give

suppo rt.

                Ground (ii) states that “the person has failed, without good cause or

excuse, to m ake reason able and c onsistent pa yments for the support of the child in

accordance with the child support guidelines . . . .” Granted, Jackson was not

employed, b ut he testified th at he was capable o f some type o f employm ent. The ch ild

support gu idelines prov ide for imp uting incom e to person s who are voluntarily

unemployed. Jackson thus has no good excuse for failing to make some type of

support payments.

                Ground (iii) provides tha t the “person has failed to seek reaso nable

visitation with the child . . . .” Jackson has never made an attempt to see the child. As

of the time of trial, when the child was almost five months old, Jackson had never

seen the ch ild, and this fac tor is undispu tedly present.

                Ground (iv) provide s that the “pe rson has fa iled to man ifest an ability

and willingness to assume legal and physical custody of the child.” Jackson was

informed of the impending birth of his child in April, 1997, and he knew the child was

born in December, 1997. During the pregnancy and after the birth, he never initiated

any cont act with Jessica.

                Lastly, ground (vi) provides that the “person has failed to file a petition

to establish paternity of the child within thirty (30) days after notice of alleged

pate rnity b y the c hild’s mo ther.” Jac kson did n ot fil e a pe tition to establi sh pa ternity,

and did not adm it the pate rnity until M arch, 19 98, wh en bloo d tests w ere retu rned.


                                                 7
The statute, however, requires only notice of alleged paternit y, not certa in patern ity.

Under the terms of the statue, this ground for termination of parental rights exists as

well.

               We af firm the judgm ent of th e Trial C ourt in a ll respec ts.

               Jackson has raised the issue of the constitutionality of T.C.A. §36-1-113

as applied to unborn children of unwed parents. This issue was not raised in the Trial

Court, and the Tenn essee Sup reme Co urt has stated, “ It has long b een the ge neral rule

that question s not raised in the trial court w ill not be enterta ined on ap peal and th is

rule applies to an attemp t to make a constitutiona l attack upo n the validity of a statute

for the first time on appeal unless the statute involved is so obviously unconstitutional

on its face as to obviate the necessity for any discussion.” Lawrence v. Stanford, 655

S.W.2d 927, 929 (Tenn. 1983). Nor was the Attorney General notified of any

challenge, as required by Tenn. R. Civ. P. 24.04. Since the issue was not raised in the

Trial Cou rt, and since th e statute is not so “uncons titutional on its fa ce as to obv iate

the nec essity for a ny discus sion,” w e declin e to con sider this issue on appea l.

        Accordingly, we remand the case to the Trial Court with cost of the appeal

assessed to the appellan t.




                                              __________________________
                                              Herschel P. Franks, J.

CONCUR:




___________________________
Houston M. Godd ard, P.J.


___________________________
Charles D. Susano, Jr., J.




                                               8
