                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                             Assigned on Briefs August 1, 2013

                                     IN RE JUSTIN T. H.1
                    Appeal from the Circuit Court for Greene County
                    No. 10A012TJW Hon. Thomas J. Wright, Judge




             No. E2012-02401-COA-R3-PT-FILED-SEPTEMBER 24, 2013




This is a termination of parental rights case in which Mother and Stepfather filed a petition
to terminate the parental rights of Father to the Child. Following a bench trial, the trial court
found that clear and convincing evidence existed to support the termination of Father’s
parental rights on the statutory ground of abandonment and that termination of his rights was
in the Child’s best interest. Father appeals. We affirm the decision of the trial court.


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


J OHN W. M CC LARTY, J., delivered the opinion of the court, in which, C HARLES D. S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.

Jessica R. McAfee, Greeneville, Tennessee, for the appellant, Christopher S. H.

Linda T. Woolsey, Greeneville, Tennessee, for the appellees, Brandi N. W. and Jonathan B.
W.

Leslie E. Douthat, Greeneville, Tennessee, guardian ad litem for the minor, Justin T. H.




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

                                   I. BACKGROUND

       Justin T. H. (“the Child”) was born out of wedlock to Brandi N. W. (“Mother”) and
Christopher S. H. (“Father”) on August 4, 1998. Mother and Father married after the Child’s
birth but later divorced in April 2001. Father was tasked with submitting child support
pursuant to a court order and was awarded limited visitation with the Child. Father’s support
obligation was suspended at the time of the divorce because he was incarcerated. Following
his release, he petitioned the court for a reduction in the support obligation. The Child
continually resided with Mother, who subsequently married Jonathan B. W. (“Stepfather”)
on August 4, 2006. As the years passed, Father’s visitation with the Child became sporadic
because the Child refused to participate in the scheduled visitation and because Father was
incarcerated on different occasions for varying lengths of time. Visitation ceased at some
point in 2008. According to Father, it was at that point that he stopped remitting support.

       On April 13, 2010, Mother and Stepfather (collectively “Appellees”) filed a petition
to terminate Father’s parental rights and a corresponding petition for Stepfather’s adoption
of the Child. They alleged that Father had abandoned the Child by failing to remit child
support and by failing to visit the Child. Father objected, arguing that his alleged
abandonment of the Child was a result of Mother’s refusal to schedule visitation and to
apprise him of her current residence, thereby prohibiting him from submitting child support
because he did not know where to mail or hand deliver the payments.

       A hearing was held over the course of two days on February 24, 2012 and September
11, 2012. In lieu of providing a transcript for this court’s review, the parties submitted an
agreed-upon statement of the evidence that was prepared by the trial court. See Tenn. R.
App. P. 24(c). According to the statement of the evidence, LeAnn M. and Darryl A. testified
that Appellees had “a reputation for truthfulness in the community and deserve[d] to be
believed under oath.” Kelley D. and David F. testified that Stepfather had “a reputation for
truthfulness in the community and deserve[d] to be believed under oath.”

       Ginger L. and Eugene B. testified that they were employed by the Greene County
School System while the Child was enrolled. They related that the Child had been placed in
Eugene B.’s classroom for the 2008-2009 school year and in Ginger L.’s classroom for the
2009-2010 and the 2010-2011 school years. Eugene B. asserted that he also served as the
Child’s football coach for four years. Ginger L. and Eugene B. asserted that they never had
any communication with Father during their involvement with the Child in their respective
capacities with the school system.



                                             -2-
       Father, who was 36 years old at the time of trial, testified that he had graduated from
high school but had not yet attained his associate’s degree even though he was less than 30
hours from completing a degree in “business management/small business management.” He
acknowledged that he had been incarcerated for varying periods of time throughout the
Child’s life and that he had been in jail from June 2009 until August 2009, when he was
placed in a half-way house. He stated that while he remained under supervision, he was
allowed to return home in December 2009 and that he remained home until he violated his
probation and was imprisoned from March 2010 until February 2012. He agreed that the
relevant time period for the termination proceedings was December 2009 to March 2010.
He asserted that he was not incarcerated during that time period and that he maintained
minimal employment while residing in a mobile home that belonged to his grandfather.

         Father testified that he maintained a job with Jiffy Lube from 1999 until 2002 and that
he earned approximately $300 per week. He stated that he quit his job to manage his own
collision repair and restoration body shop. He said that when he was not incarcerated, he
operated his business in a building owned by his father and that he “took cars on
consignment and had to pay for the parts” before he recouped income. His income depended
upon the amount of work necessary to complete each job. He claimed that he earned “very
little” after 2002. He asserted that he did not know how much he had earned but admitted
that he worked on “some cars” during the relevant time period. He conceded that he had not
actively sought alternative employment. He recalled that at one time in 2009, he intended
to work for “Bill Gatton” but asserted that the situation simple “didn’t work out” and that in
2012, he applied for another job and for Social Security benefits. He claimed that he suffered
from various ailments but acknowledged that he was capable of performing manual labor on
his family’s farm and that he was knowledgeable enough to do “about anything”, namely he
could weld, paint, and provide manual labor on a farm.

       Father did not introduce any records concerning his expenses or income during the
relevant time period. He testified that he was not required to submit rent for his business or
residence and that in return for his assistance on the farm, his father paid most of his bills and
provided food for him during the relevant time period. He acknowledged that he currently
owned several entertainment items, including paintball guns, pellet guns, BB guns, a 4-
wheeler, a go-cart, a crossbow, and various other items. He admitted that he was also able
to purchase Christmas and birthday gifts for the Child and that he had also purchased
multiple pets, including a snake, iguana, and a dog for the Child. He acknowledged that he
had owned several vehicles and at least seven cellular telephones, that he usually owned a
dog, and that he was able to purchase cigarettes and had smoked approximately one-half of
a pack of cigarettes per day until he quit smoking eight months prior to trial. He also
admitted “taking” methamphetamine and prescription drugs, including “Alprazalam” and
“Cyboxin” prior to his incarceration in 2010.

                                               -3-
       Relative to child support, Father admitted that he had not remitted child support
during the relevant time period and that he last submitted child support “sometime in 2008.”
He claimed that he had not seen the Child since 2008 and that he had not submitted support
because he usually paid Mother when he saw the Child. He asserted that he could not remit
his child support payments to Mother because she refused to tell him where she lived. He
conceded that he knew where she worked and where her maternal grandmother lived and that
he was able to call Mother and the Child on their respective cellular telephones.

       The Child, who was 14 years old at the time of trial, testified that he wanted
Stepfather to adopt him. He recalled that when he visited Father, Father slept most of the day
and rarely played with him or showed him attention. He stated that in the evenings, Father
took him to the body shop, where he was left to entertain himself. He claimed that he was
often responsible for cooking what little food Father had and that when Mother learned that
Father rarely provided food, she sent food for him to eat during visitation. He asserted that
he hid from Mother when it was time for him to visit Father and that Mother often had to
force him to visit Father. He claimed that Mother continued to encourage him to visit Father
even after she granted his request to cease visitation. He testified that he did not want “any
contact” with Father and claimed that he had already changed his last name on his
schoolwork and that he provided Stepfather’s last name to his sports teams.

       Mother testified that she had been employed as a registered nurse at Laughlin
Memorial Hospital in Greeneville, Tennessee for approximately ten years. She claimed that
Father had visited her place of employment on occasion to return the Child and that she had
maintained the same cellular telephone number. She admitted that she refused to tell Father
her current address. She explained that she was “scared” of him and that although he did not
know where she lived, he knew her current cellular telephone number, where she worked,
and where her mother lived.

        Mother stated that she and Father were married in January 1999, separated in June
2000, and finally divorced in April 2001. She asserted that Father had not remitted any child
support since Spring 2006. She acknowledged that she never sought to enforce his child
support obligation and that in 2008, she refused to comply with his repeated requests for
visitation. She explained that during one of the last visits, she received a telephone call from
Father, who was “talking disjointedly about random things” and was slurring his speech. She
opined that she experienced other problems concerning visitation and that she eventually
stopped forcing the Child to visit Father. She insisted that despite her concerns, she never
discouraged the Child from visiting Father.

       Stepfather testified that he was employed by Greene County and that he also
volunteered at Greene County Emergency Medical Services. He confirmed that Father had

                                              -4-
not remitted child support since his marriage to Mother in August 2006. He asserted that he
loved the Child and wished to adopt the Child.

       Following the presentation of the above evidence, the trial court terminated Father’s
parental rights to the Child and granted the petition for adoption. In so holding, the court
rejected the statutory ground of abandonment based upon Father’s failure to visit but found
clear and convincing evidence that Father had abandoned the Child by willfully failing to
remit child support during the relevant four-month time period, namely December 2009
through March 2010, and for an additional period of time prior to June 2009. The court
stated that Father was aware of his duty to remit support, had the ability to work, had
provided for himself and supported his various habits with his income, and had not asserted
any justifiable excuse for his failure to remit support. The court further found that
termination of Father’s parental rights was in the Child’s best interest. This timely appeal
followed.

                                         II. ISSUES

       We consolidate and restate the issues raised on appeal by Father as follows:

       A. Whether clear and convincing evidence supports the trial court’s
       termination of Father’s parental rights to the Child pursuant to Tennessee Code
       Annotated section 36-1-102.

       B. Whether clear and convincing evidence supports the trial court’s ruling that
       termination of Father’s parental rights was in the Child’s best interest pursuant
       to Tennessee Code Annotated section 36-1-113(I).

                             III. STANDARD OF REVIEW

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



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

       (1) [a] finding by the court by clear and convincing evidence that the grounds
       for termination of parental or guardianship rights have been established; and

       (2) [t]hat termination of the parent’s or guardian’s rights is in the best interest
       [] of the child.

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

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

       In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:

       A reviewing court must review the trial court’s findings of fact de novo with
       a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
       Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
       [(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
       under [Tennessee Code Annotated section] 36-1-113, the reviewing court must

                                               -6-
       then make its own determination regarding whether the facts, either as found
       by the trial court or as supported by a preponderance of the evidence, provide
       clear and convincing evidence that supports all the elements of the termination
       claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
       [(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
       App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
       Appellate courts conduct a de novo review of the trial court’s decisions
       regarding questions of law in termination proceedings. However, these
       decisions, unlike the trial court’s findings of fact, are not presumed to be
       correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re
       Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).

                                     IV. DISCUSSION

                                              A.

       Father concedes that he failed to remit child support during the relevant time period
but asserts that his failure to remit support was not willful. He argues that he was unable to
submit support because he did not have regular and stable employment during the relevant
time period and because Mother refused to provide a current address. He asserts that the trial
court erred in considering his ability to support himself as evidence of his willfulness to
withhold support. Appellees respond that the trial court did not err in finding that Father had
abandoned the Child by willfully failing to remit support.

       The Tennessee Code provides, in pertinent part,

       (1)(A) For purposes of terminating the parental or guardian rights of parent(s)
       or guardian(s) 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)

                                              -7-
       consecutive months immediately preceding such parent’s or guardian’s
       incarceration[.]

                                            ***

       (B) For purposes of this subdivision (1), “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)(A), (B) (emphasis added). A parent’s willful failure to
support the child or make reasonable payments toward support of the child “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).

        This court has consistently held that the term willfulness as it applies to a party’s
failure to support a child must contain the element of intent. In re Swanson, 2 S.W.3d 180,
188-89 (Tenn. 1999). Indeed, “defining abandonment as the mere non-payment of support
[is] unconstitutional because this language creates an irrebuttable presumption of
abandonment, irrespective of intent.” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003) (citing
In re Swanson, 2 S.W.3d at 188). The element of intent utilized in termination proceedings
“does not require the same standard of culpability as is required by the penal code.” In re
Audrey S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures to act that are
intentional or voluntary rather than accidental or inadvertent.” Id. “[A] person acts
‘willfully’ if he or she is a free agent, knows what he or she is doing, and intends to do what
he or she is doing.” Id. at 863-64. Additionally, “‘[f]ailure to support a child is ‘willful’
when a person is aware of his or her duty to support, has the capacity to provide the support,
makes no attempt to provide the support, and has no justifiable excuse for not providing the
support.’” In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005) (quoting In re Adoption
of T.A.M., No. M2003-02247-COA-R3-PT, 2004 WL 1085228, at *4 (Tenn. Ct. App. May
12, 2004)).

        Despite Father’s assertion to the contrary, consideration of Father’s expenses and
income and how he spent his money was proper. This was not a case where a parent had
numerous expenses but faithfully provided support when he or she was able. See In re Dylan
H., No. E2010-01953-COA-R3-PT, 2011 WL 6310465, at *7 (Tenn. Ct. App. Dec. 16, 2011)
(reversing the trial court’s termination decision because mother was simply unable to fulfill
her child support obligation during the relevant time period). In this case, Father admitted
that he did not submit any support even though his expenses were minimal. The record
reflects that he was not required to submit rent for his residence or business and that his

                                              -8-
father provided groceries in return for manual labor on the farm. His assertion that he was
unable to submit support because of his employment situation was simply unavailing when
he admittedly left stable employment and when he chose to provide more than the basic
necessities for himself rather than support the Child. He admitted that he recouped some
income during the relevant time period and that he was somehow able to obtain cigarettes,
cellular telephones, multiple cars, methamphetamine, and other illegal drugs for himself.
Additionally, he could have searched for employment elsewhere or used his various skills to
garner additional income to fulfill his support obligation.

        We reject Father’s assertion that he was unable to remit support because Mother
refused to provide an address. He knew how to contact Mother and could have visited her
place of employment or her mother’s residence to remit support. With these considerations
in mind, we conclude that Father was aware of his support obligation, had the capacity to
remit support, made no attempt to remit support, and provided no justifiable excuse for his
failure to remit support. We further conclude that there was clear and convincing evidence
to establish that Father willfully failed to remit child support during the relevant time period.
Thus, a statutory ground existed for termination of Father’s parental rights.

                                               B.

        Having concluded that there was clear and convincing evidence supporting the
statutory ground for termination, we must consider whether termination of Father’s parental
rights was in the best interest of the Child. Although Father has not appealed the court’s best
interest finding, we have reviewed the issue because of the gravity and finality that this
decision will have on Father’s parental rights. See In re Arteria H., 326 S.W.3d 167, 184
(Tenn. Ct. App. 2010) (considering the best interest issue even though the issue was not
raised on appeal). Following our review, we conclude that there was clear and convincing
evidence to establish that termination of Father’s parental rights was in the best interest of
the Child pursuant to Tennessee Code Annotated section 36-1-113. Accordingly, we affirm
the trial court’s termination of Father’s parental rights.

                                     V. CONCLUSION

      The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Christopher
S. W.


                                            ______________________________________
                                            JOHN W. McCLARTY, JUDGE

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