                                                                                                     05/12/2017




                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    March 21, 2017 Session

                                       IN RE SYDNEY B.

                   Appeal from the Chancery Court for Coffee County
                      No. 2015-CV-175 L. Craig Johnson, Judge
                       ___________________________________

                              No. M2016-01236-COA-R3-PT
                          ___________________________________


In this termination of parental rights case, prospective adoptive parents appeal the trial
court’s dismissal of their petition after finding that father did not willfully fail to pay
support for the child. We reverse and remand for further proceedings.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which BRANDON
O. GIBSON and KENNY ARMSTRONG, JJ., joined.

Michelle Blaylock-Howser, Murfreesboro, Tennessee, for the appellants, Emery S. and
Joseph S.

Jeremy W. Parham, Manchester, Tennessee, for the appellee, Chance B.

                                              Opinion
                                            Background
       Sydney B. (“the child”)1 was born in October 2009 to Jessica W. (“Mother”) and
Chance B. (“Father”). Although the child’s parents were never married, they lived
together for a short period of time following the child’s birth. On May 9, 2011,
Petitioners/Appellants Joseph S. and Emery S. (“Appellants”), the child’s maternal great
uncle and great aunt, obtained physical custody of the child. Appellants thereafter filed a
petition for legal guardianship of the child. Mother consented to the order of
guardianship. Father was incarcerated at the time of the guardianship proceedings.2
        1
         In cases involving termination of parental rights, it is the policy of this Court to remove the
names of minor children and other parties in order to protect their identities.
       2
         There is no dispute that Father was incarcerated from April 2011 to April 2014 and then again
Father did not participate in the guardianship proceeding and a default judgment was
entered against him. An order was entered awarding Appellants legal guardianship of the
child on August 30, 2012.

        On December 11, 2014, Father filed a parentage petition in the Coffee County
Juvenile Court (“juvenile court”) asking to be named the child’s legal father, to be
awarded parenting time with the child, and for “other relief.”3 This petition did not
specifically make any mention of child support. On January 7, 2015, the parties entered
into an agreed temporary order allowing Father supervised parenting time with the child
in December 2014 and January 2015 so long as Father “submitted to and passed a hair
follicle drug screening.” According to Father, he maintained regular overnight visitation
not only in December 2014 and January 2015, but until May 2015 when Appellants
terminated Father’s visitation.

       The temporary agreed order further provided that the parties would participate in
mediation and attend a court-approved parenting class. The parties attended mediation in
February 2015, and a hand-written agreement was signed by the parties. The mediated
agreement provided for a parenting time schedule and stated that “child support will be
established including retroactive support.” However, Father refused to sign the
formalized agreement, alleging that Appellants attempted to change some of the
previously agreed upon terms.4 It is undisputed that no child support order was ever
entered.

       On June 9, 2015, Appellants filed a petition to terminate the parental rights of
Father and Mother and for adoption in the Coffee County Chancery Court (“trial court”).
The petition alleged the following grounds against Father: (1) willful failure to support;
and (2) willful failure to visit.5 Thereafter, Father filed a motion in the trial court to
resume parenting time with the child. Again, the motion did not mention child support.

from July 2014 to November 2014.
         3
           Nothing in the record on appeal reflects that this petition was ever resolved, but there is no
dispute in this case that Father is the legal and biological parent of the child. Indeed, in a later brief to the
trial court in their termination of parental rights action, Appellants noted that Father had executed a
voluntary acknowledgement of paternity and conceded that he was, therefore, the legal father of the child
for purposes of the termination action. See Tenn. Code Ann. § 36-1-102(28)(A) (providing that the
biological father of the child is a legal parent where he has signed a voluntary acknowledgment of
paternity). Compare Tenn. Code Ann. § 36-1-113(g)(1)–(8) (outlining the grounds for termination for
legal parents), with Tenn. Code Ann. § 36-1-113(g)(9) (outlining grounds for termination applicable to
putative fathers who are not the legal parent of the child).
         4
           Specifically, Father took issue with a requirement that he not only take the child to soccer, as he
had previously agreed, but also to “every single extracurricular activity she was enrolled in.” Father took
issue with this requirement due to the driving that would be required, as well as the fact that such
activities would monopolize his allotted time.
         5
           The petition also alleged the same grounds against Mother. Mother is not a party to this appeal,
however, because her parental rights were terminated by consent.
                                                     -2-
        A trial occurred on January 8, 2016. At the beginning of trial, Father moved for
bifurcation of the proceeding and, with no objection, the trial court heard proof as to
grounds for termination only. There was no dispute that Father paid no support for the
child in the four months prior to the filing of the termination petition. Father also
acknowledged that he had a duty to support the child. Father testified he was working at
Quality Coverings during the relevant period and that he could have paid support;
however, because Appellants never asked him to pay and he was waiting for a child
support order to be entered, he never paid child support prior to the termination petition.
Father agreed that one reason he did not pay support was because Appellants “weren’t
letting [him] see [the child].” When Father attempted to pay child support in October
through December of 2015, Appellants refused to accept payment.6

        On March 15, 2016, the trial court issued its opinion, and the final order was filed
on May 25, 2016. Therein, the trial court found that, because Father was in active
litigation to establish a visitation schedule and had filed two separate motions to establish
visitation, Father’s conduct was not willful with respect to both failure to visit and failure
to support. As a result, the trial court concluded that Appellants’ petition “fail[ed] in that
the Father’s conduct was not willful in failing to visit or support due to the impending
litigation to establish paternity, visitation[,] and support.” Appellants thereafter appealed
to this Court.7

                                           Issue Presented

       Appellants raise one issue in this appeal: Whether the trial court erred in failing to
find clear and convincing evidence of abandonment by willful failure to support under
Tennessee Code Annotated section 36-1-102(1)(A)(i).8

                                                Analysis


        6
           Father admitted at trial that the money orders were from his grandparents’ address and in their
handwriting. Father asserted, however, that grandparents were paying the support as payment for work he
performed for them.
         7
           On March 23, 2017, this Court filed an order directing Appellants to obtain entry of a final
judgment in the trial court because the trial court’s original order failed to adjudicate Mother’s parental
rights or make the order final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.
Accordingly, the trial court submitted an amended order on March 31, 2017, essentially noting that
Mother’s parental rights had been terminated by consent.
         8
           Appellants do not challenge the trial court’s finding that they failed to prove abandonment by
willful failure to visit. The Tennessee Supreme Court in In re Carrington H., 483 S.W.3d 507 (Tenn.
2016), ruled that this Court must consider all of the grounds found by the trial court, “regardless of
whether the parent challenges these findings on appeal.” Id. at 525–26 (emphasis added). The rule
adopted in Carrington has never been construed to require this Court to also consider the grounds not
sustained by the trial court and thereafter appealed by the non-parent. Accordingly, we will only consider
the ground appealed by Appellants in this case.
                                                   -3-
       According to the Tennessee Supreme Court:

              A parent’s right to the care and custody of her child is among the
       oldest of the judicially recognized fundamental liberty interests protected
       by the Due Process Clauses of the federal and state constitutions. Troxel v.
       Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651
       (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re
       Adoption of Female child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v.
       Hawk, 855 S.W.2d 573, 578–79 (Tenn. 1993). But parental rights, although
       fundamental and constitutionally protected, are not absolute. In re Angela
       E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
       to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
       as parens patriae when interference with parenting is necessary to prevent
       serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
       Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
       v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).
       Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434
S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-
R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29,
2005)). A person seeking to terminate parental rights must prove both the existence of
one of the statutory grounds for termination and that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

       Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the
grounds for termination and the best interest inquiry must be established by clear and
convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at
546. Clear and convincing evidence “establishes that the truth of the facts asserted is
highly probable . . . and eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn.
Ct. App. 2004). Such evidence “produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established.” Id. at 653.

       As our supreme court opined:

       The trial court’s ruling that the evidence sufficiently supports termination
       of parental rights is a conclusion of law, which appellate courts review de
                                            -4-
       novo with no presumption of correctness. In re M.L.P., 281 S.W.3d [387,]
       393 [(Tenn. Ct. App. 2009)] (quoting In re Adoption of A.M.H., 215
       S.W.3d [793], 810 [(Tenn. 2007)]). 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 Angela E., 303 S.W.3d at 246.

Carrington H., 2016 WL 819593, at *12.

       When the resolution of an issue in a case depends upon the truthfulness of
witnesses, the trial judge, who has had the opportunity to observe the witnesses and their
manner and demeanor while testifying, is in a far better position than this Court to decide
those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith,
and credit to be given to any witness’s testimony lies in the first instance with the trier of
fact, and the credibility accorded will be given great weight by the appellate court.
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).


        The sole issue on appeal is whether the trial court erred in dismissing Appellants’
petition for termination of Father’s parental rights based on abandonment by willful
failure to support. Tennessee Code Annotated section 36-1-1-113(g)(1) provides that
initiation of termination of parental rights may be based upon “[a]bandonment by the
parent or guardian, as defined in [section] 36-1-102.” Tennessee Code Annotated section
36-1-102(1)(A)(i) defines “abandonment,” in relevant part, as follows:

       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
       have willfully failed to make reasonable payments toward the support of
       the child; . . . .

For purposes of this subdivision, “willfully failed to support” or “willfully failed to make
reasonable payments toward such child’s 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).9



       9
           Token support means that “the support, under the circumstances of the individual case, is
insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B).
                                               -5-
       Here, there is no dispute that Father failed to pay any support for the child in the
four months preceding the filing of the termination petition, i.e., between February 9,
2015, and June 8, 2015. The only question in this appeal is whether Father’s failure was
willful. This Court has explained:

       “Willfulness” does not require the same standard of culpability required by
       the penal code. Nor does it require malevolence or ill will. 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.

In re Audrey S., 182 S.W.3d 838, 863–64 (Tenn. Ct. App. 2005) (internal citations
omitted).

       Parents are presumed to know they have a legal obligation to support their
children. See Tenn. Code Ann. § 36-1-102(1)(H). Moreover, it is well-settled in
Tennessee that:

       [B]iological parents must, as a general matter, support their children until
       they reach the age of majority. . . . The parent’s obligation to support, as
       well as the child’s right to support, exist regardless of whether a court order
       exists, and regardless of whether the parents were ever married.”

State ex rel. Hayes v. Carter, No. W2005-02136-COA-R3-JV, 2006 WL 2002577, at *2
(Tenn. Ct. App. July 6, 2006) (citing Tenn. Code Ann. § 34–1–102(a); Smith v. Gore,
728 S.W.2d 738, 750 (Tenn. 1987)); see also State Dep’t of Human Servs. v. Manier,
No. 01A01-9703-JV-00116, 1997 WL 675209, at *5 (Tenn. Ct. App. Oct. 31, 1997)
(“We dare say that the support of one’s children should not be conditioned upon whether
one has been placed under a court order to do so.”). The obligation to pay child support
therefore exists even without a court order requiring the payment of child support. State,
Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 523–34 (Tenn. Ct. App.
2004). “Abandonment [by failure to support] may not be repented of by resuming . . .
support subsequent to the filing of any petition seeking to terminate parental . . . rights or
seeking the adoption of a child[.]” Tenn. Code Ann. § 36-1-102(1)(F); see also In re
Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (quoting Tenn. Code Ann. §
36-1-102(1)(F)) (“A parent may not attempt to rectify abandonment by resuming
payments of support subsequent to the filing of ‘any petition’ seeking to terminate
parental rights or seeking to adopt a child.”). “However, we must consider the entire
‘constellation of facts’ when making a determination of whether a parent’s failure to
financially support their child was willful.” In re Makenzie L., No. M2014-01081-COA-
R3-PT, 2015 WL 3793788, at *18 (Tenn. Ct. App. June 17, 2015), perm. app. denied
                                            -6-
(Oct. 15, 2015) (quoting In re Kaleb N.F., No. M2012-00881-COA-R3-PT, 2013 WL
1087561, at *23 (Tenn. Ct. App. Mar. 12, 2013)).

        In determining that Father’s failure to support the child was not willful, the trial
court found that Father filed two separate motions to set parenting time with the child.
The trial court cited the Tennessee Supreme Court’s opinion in In re Adoption of
A.M.H., 215 S.W.3d 793 (Tenn. 2007) for the proposition that “a parent cannot be found
to have abandoned a child when [he or she is] actively seeking to establish visitation.” In
In re Adoption of A.M.H., the parents’ parental rights were terminated based on
abandonment of the child for willful failure to visit for four months preceding the filing
of the termination petition and that termination of parental rights was in the best interest
of the child. A.M.H., 215 S.W.3d at 806. Although it is undisputed that the parents
failed to visit the child during the four-month period at issue, the parents were “actively
pursu[ing] legal proceedings to regain custody of [the child] during the ‘abandonment’
period[.]” Id. at 810. As a result, the Supreme Court reversed the termination of the
parents’ parental rights under this ground because the failure to visit was not “willful.”
Id. at 810–11.

       The holding in In re Adoption of A.M.H. was applied in the context of child
support by this Court in In re Chelbie F., No. M2006-01889-COA-R3-PT, 2007 WL
1241252 (Tenn. Ct. App. Apr. 27, 2007). In In re Chelbie, the father’s parental rights
were terminated based on abandonment for both willful failure to visit and support. The
Court of Appeals reversed as to both grounds, holding instead that the Tennessee
Supreme Court’s decision in In re Adoption of A.M.H. “controls the outcome of this
case” even with regard to the father’s failure to pay child support. Id. at *6. Although the
Court of Appeals acknowledged that In re Adoption of A.M.H. addressed specifically the
issue of willful failure to visit, the Court of Appeals believed that it had “no reason to
conclude that the same principle should not be applied to willful failure to support claims
when a party is actively seeking to establish a child support payment.” Id. As a result,
the Court of Appeals held that father’s failure to support was not willful because he “was
pursuing a petition to establish his visitation rights and support obligations before the
petition to terminate his parental rights was filed.” Id.

       Appellants argue, however, that more recent caselaw supports the opposite
conclusion. See In re Makenzie L., No. M2014-01081-COA-R3-PT, 2015 WL 3793788
(Tenn. Ct. App. June 17, 2015), perm. app. denied (Oct. 15, 2015). In In re Makenzie,
the parents testified at trial that they had expended over $100,000.00 in order to regain
custody of their child. The parents also pointed out that they had never been ordered to
pay support or asked by prospective adoptive parents to provide support for the child.
Finally, the parents contended that they had “cooperated” with a petition filed by Child
Support Division of the District Attorney to establish child support. Like the trial court in
this case, the trial court declined to find the parent’s failure to pay child support willful

                                            -7-
because they were actively engaged in child custody litigation during the four-month
period at issue. Id. at 11.

       The Court of Appeals rejected each argument raised by parents. As an initial
matter, the court noted that there was no dispute that the parents had not paid any support
during the relevant period, despite the ability to do so. Id. at 18. The court disagreed with
parents’ argument that they were “seeking to support” the child through their efforts to
regain custody. Instead, the court held that effort to establish custody or visitation does
not negate the fact that a parent has failed to pay support for his or her child. Id. at 19
(“Parents who are ‘actively seeking custody’ through the judicial process are not
providing support for their children as contemplated by Tenn. Code Ann. § 36-1-
102(1)(A)(i).”). The court also disagreed with parents’ characterization of their
cooperation with the pending child support proceeding. Rather, the court noted that after
being served with the petition, parents took no action to actually attempt to establish
support for the child. Id. at 19. Finally, the court declined to conclude that parents’ failure
to support was excused by the absence of a court order requiring them to do so. In
reaching this result, the Court of Appeals noted that:

        [T]he law is clear that parents have a duty to support their children even
        absent a court order requiring them to do so. State v. Wilson, 132 S.W.3d
        340, 343 (Tenn.2004). Thus, even if the parents “were following the
        process of the Child Support Division of the District Attorney in
        establishing any support that may have been due,” as the trial court stated,
        this fact alone does not justify a determination that their failure to support
        was not willful, nor does it absolve them from the responsibility to support
        their child financially while the matter was pending a final resolution.

In re Makenzie, 2015 WL 3793788, at *20.

       Here, we agree with Appellants that clear and convincing evidence was shown that
Father willfully failed to support the child during the relevant period. First, unlike the
typical case, there is no dispute in this case that Father had the ability to pay support for
the child. Likewise, Father admitted that he was aware of his obligation to provide
support. Father asserts, however, that his failure to provide support was justified because
Father was involved in “active, pending custody and support litigation at the time the
petition was filed.” Respectfully, we cannot agree.

       We concede that at the time that Appellants’ termination petition was filed,
Father’s petition in the juvenile court to determine the child’s parentage and set visitation
was still pending.10 Father’s efforts to establish parenting time with the child, however,

        10
           We note, however, that nothing in the record reflects that Father was actively prosecuting his
petition from the time the January 2015 temporary order was entered until the termination petition was
                                                  -8-
did not include any effort to establish child support. Indeed, none of the pleadings
seeking to establish visitation filed by Father in either the juvenile court or the trial court
in any way mention child support. Accordingly, the facts of this case are simply not
analogous to the facts in In re Chelbie, in which this Court repeatedly emphasized that
the parent in that case was “actively seeking to establish” both visitation and support
through judicial proceedings. In re Chelbie, 2007 WL 1241252, at *6.11

       The situation in this case is therefore more closely akin to In re Makenzie than In
re Chelbie. Here, Father knew of his obligation to support the child, but did nothing to
meet that obligation. At trial, Father admitted that his failure to pay support was because:
(1) no child support order was ever entered directing him to do so; and (2) Appellants
“weren’t letting [him] see [the child].” Neither excuse holds weight in this Court. See In
re Brookelyn W., No. W2014-00850-COA-R3-PT, 2015 WL 1383755, at *12 (Tenn. Ct.
App. Mar. 24, 2015) (holding that the father’s inability to visit the child was no excuse
for his failure to pay child support) (citing In re Audrey, 182 S.W.3d at 864 (“The
parental duty of visitation is separate and distinct from the parental duty of support.”));
State, Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 523–34 (Tenn. Ct.
App. 2004) (holding that parents owe an obligation to pay child support regardless of a
court order requiring them to do so). Indeed, this Court in Makenzie expressly rejected
similar arguments made by parents. See In re Makenzie, 2015 WL 3793788, at *19–20.

        Here, regardless of his efforts to establish visitation with the child, there can be no
dispute that Father was not providing support to the child, despite the ability to do so.
See In re Makenzie, 2015 WL 3793788, at *20 (holding that the fact that parents were
actively engaged in litigation to regain custody did not excuse their failure to support the
child). Moreover, the lack of a court order that Father partially blames for his failure to
provide support is largely the result of his own conduct. As previously discussed, Father
and Appellants agreed at mediation that Father would pay child support, both retroactive
and ongoing. Thereafter, it was Father that refused to honor the parties’ agreement based
upon a purported disparity regarding the child’s extracurricular activities. Although
Father did not disagree with his previous agreement to pay child support, he made no
effort to do so during the relevant four-month period. Clearly then, Father’s decision to
withhold support from his child was “the product of free will rather than coercion[.]” In

filed in June 2015. Indeed, the record on appeal contains no pleadings filed in the juvenile court during
this interim time period.
         11
            At oral argument, counsel for Father argued that a request to set child support was “inherent in
[Father’s] motion[.]” While a court may have been required to set child support in conjunction with
Father’s request for visitation, see generally Leonardo v. Leonardo, No. M2014-00372-COA-R3-CV,
2015 WL 3852802 (Tenn. Ct. App. June 18, 2015), vacated in part (Tenn. Nov. 24, 2015) (Stafford, J.,
dissenting), we cannot agree that a mere “inherent” request to set child support is sufficient to bring
Father within the rule set forth in Chelbie. An unstated, yet “inherent” request buried in the penumbra of
Father’s pleadings certainly cannot qualify as an “active[]” effort on Father’s part to establish child
support. Chelbie, 2007 WL 1241252, at *6.
                                                   -9-
re Audrey, 182 S.W.3d at 863. Consequently, like in In re Makenzie, we also conclude
that Father’s participation in judicial proceedings to establish visitation with the child
does not excuse his failure to pay support.

       Father asserts in his brief, however, that he did pay support “once it became clear
that the mediation agreement was not going to be formalized.” We cannot agree with
Father’s characterization of his efforts. First, we note that Father admits that the hand-
written mediation agreement was signed in February 2015. Father’s first support payment
occurred in October 2015, approximately seven months later. Accordingly, Father was
aware for several months of his duty to support the child but only attempted to provide
support four months after the termination petition was filed. Moreover, these payments
were made even though no formal support order had yet been entered. Accordingly, it
stretches credulity to believe that Father could not likewise have attempted to provide
support for the child in the absence of a court order prior to the filing of the termination
petition. Rather, Father’s efforts in the fall of 2015 were “simply too little, too late.” In re
Michael, No. M2015-02497-COA-R3-PT, 2016 WL 7486361, at *16 (Tenn. Ct. App.
Oct. 6, 2016) (citing In re K.M.K., No. E20140-00471-COA-R3-PT, 2015 WL 866730,
at *6 (Tenn. Ct. App. Feb. 27, 2015) (holding that father’s efforts after the termination
petition was filed were “too little, too late”); In re A.W., 114 S.W.3d 541, 546 (Tenn. Ct.
App. 2003) (holding that mother’s improvement only a few months prior to trial was
“[t]oo little, too late”)). As such, Father’s attempts at sending child support payments to
Appellants only after the termination petition had already been filed did not, in our
opinion, alleviate the fact that he consciously chose to withhold child support when he
concededly was aware of his legal obligation to do so. See Tenn. Code Ann. § 36-1-
102(1)(F).

        Here, the record contains clear and convincing evidence that Father willfully failed
to pay support for the child in the four months preceding the filing of the termination
petition. Accordingly, we reverse the trial court and, instead, conclude that a ground for
termination exists under Tennessee Code Annotated sections 36-1-1-113(g)(1) and 36-1-
102(1)(A)(i). When at least one ground for termination of parental rights has been
established, the petitioner must then prove by clear and convincing evidence that
termination of the parent’s rights is in the child’s best interest. White v. Moody, 171
S.W.3d 187, 192 (Tenn. Ct. App. 1994). Here, the trial court bifurcated the proceedings
and therefore did not hear evidence concerning whether termination of Father’s parental
rights was in the child’s best interests. Accordingly, this cause must be remanded to the
trial court for a hearing on this issue.

                                         Conclusion

       The judgment of the Coffee County Chancery Court is reversed and this cause is
remanded to the trial court for further proceedings consistent with this Opinion. Costs of
this appeal are taxed to Appellee, Chance B., for which execution may issue if necessary.
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         _________________________________
         J. STEVEN STAFFORD, JUDGE




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