                                                                                                      08/30/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs July 17, 2019

                                      IN RE BRENLEE F.1

                 Appeal from the Chancery Court for Anderson County
                   No. 16CH8331     M. Nichole Cantrell, Chancellor


                                 No. E2018-01498-COA-R3-PT


This action involves the termination of a mother’s parental rights to her minor child.
Following a bench trial, the trial court found that clear and convincing evidence existed
to support the statutory grounds of abandonment by her (1) failure to visit; (2) failure to
support; and (3) conduct that exhibited a wanton disregard for the child’s welfare. The
trial court also found that termination was in the best interest of the child. We reverse the
trial court on its finding that the mother abandoned the child by failing to remit support.
We affirm the trial court on all other rulings.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Paige Coleman, Seymour, Tennessee, for the appellant, Olivia F.

Amanda Inman Lowe, Knoxville, Tennessee, for the appellees, Louie and Michele B.

Julianna L. Mason, Knoxville, Tennessee, guardian ad litem for the minor, Brenlee F.

                                             OPINION

                                     I.      BACKGROUND

      The Child at issue was born out-of-wedlock to Olivia F. (“Mother”) in October
2012. The Child’s father was later identified as Charles K. In 2014, Mother gave

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.
temporary custody of the Child to her mother (“Grandmother”), and a court order was
entered evidencing the same. In 2015, Grandmother relinquished custody to Louie and
Michele B. (“Petitioners”), who later obtained an order of custody from the Juvenile
Court on June 28, 2015. The custody order provided, in pertinent part, as follows:

          That visitation between [the Child] and [Mother] shall be strictly supervised
          by [Petitioners] at dates and times they designate.

          That any party seeking to modify this order shall file a petition with this
          Court.

Meanwhile, Mother engaged in a lifestyle of drug abuse and was charged with numerous
offenses, including shoplifting, theft of a motor vehicle, theft of property, criminal
trespassing, forgery, possession of drug paraphernalia, probation violations, contempt of
court, and failure to appear. These charges led to multiple periods of her incarceration,
the most recent of which occurred from March 30, 2016, through April 25, 2016, and
again from August 22, 2016, through September 19, 2016. Petitioners filed a petition to
terminate Mother’s parental rights on September 19, 2016.2 Mother executed a voluntary
surrender of her parental rights but then rescinded her intent to surrender.

       The case proceeded to a hearing on the termination petition on July 20, 2018.
Mother provided that she was arrested again in March 2018 and charged with
manufacturing, delivery, and resale of a Schedule II drug, simple possession, and failure
to appear. She was incarcerated on April 30th and was transported to the hearing from
the Anderson County Detention Facility. She claimed she has abstained from drugs since
April 30th and had been accepted into a rehabilitation program. She planned to enroll in
the program upon her release and stay for at least six months to two years.

       Mother agreed that she had not remitted child support to Petitioners during the
pertinent time period. She noted that her tax refunds were withheld from her in payment
of child support and that she made purge payments, one in June 2016, for back child
support. She agreed that she generally maintained employment when not incarcerated
and that she gave Grandmother approximately $40 per week for the Child when she was
not incarcerated. She explained that she contacted family members in an attempt to
acquire Petitioners’ phone number but that she was denied information.              She
acknowledged that she knew where Petitioners lived but did not mail them her support
payments. She stated that she had always paid the support to Grandmother and did not
realize she was supposed to remit payment through the child support office.


2
    They also requested termination of Father’s parental rights. He is not a party to this appeal.
                                                     -2-
       Mother testified that she had not seen the Child since 2015. She provided that per
the court order transferring custody, her visitation was at Petitioners’ discretion. She
claimed that her requests for visitation were denied. She admitted that she did not file a
petition with the court to secure her visitation rights.

       Mother stated that when Grandmother had custody of the Child, she lived with
them until she was removed from the home due to her substance abuse. She claimed that
she enjoyed an excellent relationship with the Child prior to her substance abuse issues.
She did not want to sever her relationship with the Child because she believed that she
could be a positive influence in her life if given the chance.

       Michelle B. testified that the Child was doing well in their home and had adjusted
well after the initial transition into the home. She explained that the Child expressed fear
when she was left with a sitter or other family members in her stead. She took the Child
to counseling shortly after they obtained custody and stated that the Child still
participates in play therapy when their schedule permits.

        Michelle B. testified that they had not received any child support payments from
Mother or any purge payments from the child support office. She admitted that
Grandmother had offered them money but that they declined her offers of payment. She
stated that Grandmother never advised them that the money was from Mother for the
Child. She also acknowledged that they had declined two requests from Grandmother to
schedule a visitation with Mother. She stated that the first request occurred in either 2015
or the beginning of 2016. She explained that they denied the request because they had
just received custody and wanted to allow the Child time to adjust in her new home. She
stated that they received a second request in February 2016 when Mother had a short
period of release between her incarceration and entry into a rehabilitation program. They
denied that request because they did not believe it was in the Child’s best interest due to
Mother’s limited availability between periods of confinement and absence of proof that
Mother was stable enough to refrain from substance abuse. She agreed that they received
two letters from Mother for the Child and one gift for the Child in 2015. She also
admitted that they received one request for visitation directly from Mother via Facebook
messenger in July 2016. She stated that they did not receive the request in a timely
manner to permit the visitation as requested. She denied ever directing others not to
provide Mother with their telephone number.

      Louie B. confirmed his wife’s testimony and described a loving relationship
between himself and the Child.

     Following the hearing, the trial court granted the termination petition, finding that
Mother had abandoned the Child by her (1) failure to visit; (2) failure to support; and (3)
                                            -3-
conduct that exhibited a wanton disregard for the Child’s welfare. The court also found
that termination was in the best interest of the Child. This timely appeal followed.

                                       II.     ISSUES

       We consolidate and restate the issues on appeal as follows:

       A.    Whether clear and convincing evidence supports the court’s
       termination based upon a finding of abandonment for failure to remit child
       support pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv).

       B.    Whether clear and convincing evidence supports the court’s
       termination based upon a finding of abandonment for failure to visit
       pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv).

       C.     Whether clear and convincing evidence supports the court’s
       termination based upon a finding of abandonment related to Mother’s
       conduct prior to incarceration pursuant to Tennessee Code Annotated
       section 36-1-102(1)(A)(iv).

       D.      Whether clear and convincing evidence supports the court’s finding
       that termination was in the best interest of the Child 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)).

      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
                                             -4-
requires clear and convincing evidence of the existence of the grounds for termination.
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 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

       An appellate court reviews a trial court’s findings of fact in termination
       proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
       Rule 13(d), appellate courts review factual findings de novo on the record
       and accord these findings a presumption of correctness unless the evidence
       preponderates otherwise. In light of the heightened burden of proof in
       termination proceedings, however, the reviewing court must make its own
       determination as to whether the facts, either as found by the trial court or as
                                            -5-
        supported by a preponderance of the evidence, amount to clear and
        convincing evidence of the elements necessary to terminate parental rights.
        The trial court’s ruling that the evidence sufficiently supports termination
        of parental rights is a conclusion of law, which appellate courts review de
        novo with no presumption of correctness. 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 Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

                                         IV.     DISCUSSION


                                                 A. & B.

       Parental rights may be terminated if the parent has been incarcerated during all or
part of the four months immediately preceding the filing of the termination petition and
has either willfully failed to support or to visit the child for four consecutive months
preceding the incarceration. Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv).
Here, Mother was incarcerated for part of the four months preceding the filing of the
termination petition. In such cases, the “four-month period shall be created by
aggregating the shorter periods of nonincarceration beginning with the most recent period
of nonincarceration prior to commencement of the action and moving back in time.”
Tenn. Code Ann. § 36-1-102(a)(iv). As found by the learned trial court, the relevant time
period in this case begins on March 23, 2016. The period then concludes on September
18, 2016, the day before the filing of the petition.3

        A parent’s willful failure to 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).4 Token support is “support, under the circumstances of the individual case,
[that] is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). A
parent’s willful failure to visit “means the willful failure, for a period of four (4)

3
  “The applicable four-month window . . . includes the four months preceding the day the petition to
terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-
00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014). We reason the same holds
true for the start date of a parent’s aggregated periods of incarceration.
4
  The legislature has since amended Section 36-1-102(1)(A), effective July 1, 2018, to place the burden
upon the parent to establish his or her lack of willfulness as an affirmative defense to the statutory ground
of abandonment. The amendment does not apply to this case, filed in September 2016.
                                                     -6-
consecutive months, to visit or engage in more than token visitation.” Tenn. Code Ann. §
36-1-102(1)(E). Token visitation is “visitation, under the circumstances of the individual
case, [that] constitutes nothing more than perfunctory visitation or visitation of such an
infrequent nature or of such short duration as to merely establish minimal or insubstantial
contact with the child.” Tenn. Code Ann. § 36-1-102(1)(C).

                                             1.

        Mother claims that failure to visit was not willful when she lacked the capacity to
make any willful decisions as a result of her substance abuse addiction. Mother cites an
article in support of her claim that her substance abuse should be likened to someone
suffering from a debilitating disease such as cancer, thereby removing her capacity to
engage in willful behavior. Petitioners object to this argument, claiming that this
argument, along with the supporting article, was not considered by the trial court. We
agree with Petitioners that this argument was not considered by the trial court and may
not be raised on appeal.

        Mother alternatively argues that her attempts at contacting Petitioners were
rebuffed and that her requests for visitation were denied. The Supreme Court has held
that “a parent who attempted to visit and maintain relations with his child, but was
thwarted by the acts of others and circumstances beyond his control, did not willfully
abandon his child.” In re A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007) (citing Swanson, 2
S.W.3d at 189). However, “[a] parent’s failure to visit may be excused by the acts of
another only if those acts actually prevent the parent from visiting the child or constitute
a significant restraint or interference with the parent’s attempts to visit the child.” In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (citation omitted) (upholding termination
when the father did not take court action to secure visitation like the parents in In re
A.M.H.). The court order transferring custody to Petitioners in this case permitted
visitation at the discretion of Petitioners. However, the parties were both advised to
petition the court should modification of the order become necessary. Mother only made
sporadic requests for visitation during her periods of release and did not petition the court
when her requests were denied. With these considerations in mind, we uphold the court’s
finding of abandonment for failure to visit during the pertinent time period.

                                             2.

       The record reflects that Mother failed to remit support during the requisite time
period. She again cites her substance abuse addiction as justification for her failure to
remit support. This argument was not considered by the trial court. She alternatively
claims that her failure to remit support was not willful because she believed her periodic
payments to Grandmother were delivered to Petitioners. Further, she made at least one
                                            -7-
purge payment during the pertinent time period. Petitioners claim that they did not
receive any child support from Mother during the pertinent time period.

        “‘Failure 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)). Here, the record
reflects that Mother attempted to provide support through Grandmother during her
periods of employment. Mother explained that she did not have Petitioners’ telephone
number and believed that her payments were delivered by Grandmother. While
Petitioners deny Mother’s claim, they admitted that they refused offers of money for the
benefit of the Child from Grandmother. Accordingly, we conclude that the record did not
contain clear and convincing evidence to establish that Mother abandoned the Child by
failing to remit child support. This conclusion does not require reversal because only one
statutory ground is required to support the termination of Mother’s rights. Tenn. Code
Ann. § 36-1-113(c).

                                             C.

       Parental rights may be terminated if the parent has been incarcerated during all or
part of the four months immediately preceding the filing of the termination petition and
has engaged in conduct prior to incarceration that exhibits a wanton disregard for the
child’s welfare. Tenn. Code Ann. § 36-1-102(1)(A)(iv). To prove this ground, DCS
must establish that (1) Mother was incarcerated at the time the termination petition was
filed or within the preceding four-month period and that (2) she 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); In re Kason C., No. M2013-02624-COA-R3-PT, 2014 WL
2768003, *5 (Tenn. Ct. App. June 17, 2014).

       Mother claims that the court considered the four months prior to the filing of the
petition instead of the four months prior to incarceration in finding termination based
upon her wanton disregard for the Child. Petitioners assert that Mother exhibited a
wanton disregard for the welfare of the Child based upon her conduct, dating back to
February 2014. The Child’s Guardian ad Litem further notes that the court may consider
any and all conduct preceding the incarceration that occurred at or near the filing of the
termination petition.

       The record reflects that the court considered the entirety of Mother’s past criminal
record, as well as her continued use of methamphetamine when not incarcerated in
determining that her behavior demonstrated a wanton disregard for the Child’s welfare.
                                             -8-
This court has held that the court may consider conduct that occurred any time prior to
incarceration and is not limited to acts occurring during the four-month period
immediately preceding the incarceration. State of Tenn., Dep’t. of Children’s Servs. v.
Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009).

       We have held on numerous occasions that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
867-68. Here, Mother engaged in criminal behavior and substance abuse, violated her
probation, and failed to provide adequate support for the Child prior to her multiple
periods of incarceration. Further, she experienced periods of release but ultimately
returned to her substance abuse and corresponding criminal behavior, leading to
additional periods of incarceration while the Child was cared for by Petitioners in her
stead. With these considerations in mind, we affirm the court’s finding of abandonment
based upon Mother’s conduct prior to incarceration.

                                                     C.

       Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, we must consider whether termination was in the
best interest of the Child. In making this determination, we are guided by the following
non-exhaustive list of factors:

        (i)     In determining whether termination of parental or guardianship
        rights is in the best interest of the child . . . the court shall consider, but is
        not limited to, the following:

            (1) Whether the parent or guardian has made such an adjustment of
            circumstance, conduct, or conditions as to make it safe and in the child’s
            best interest to be in the home of the parent or guardian;

            (2) Whether the parent or guardian has failed to effect a lasting
            adjustment after reasonable efforts by available social services agencies
            for such duration of time that lasting adjustment does not reasonably
            appear possible;5



5
  In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015) (“[I]n a termination proceeding, the extent of
DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable
efforts is not a precondition to termination of the parental rights of the respondent parent.”).
                                                     -9-
          (3) Whether the parent or guardian has maintained regular visitation or
          other contact with the child;

          (4) Whether a meaningful relationship has otherwise been established
          between the parent or guardian and the child;

          (5) The effect a change of caretakers and physical environment is likely
          to have on the child’s emotional, psychological and medical condition;

          (6) Whether the parent or guardian, or other person residing with the
          parent or guardian, has shown brutality, physical, sexual, emotional or
          psychological abuse, or neglect toward the child, or another child or
          adult in the family or household;

          (7) Whether the physical environment of the parent’s or guardian’s
          home is healthy and safe, whether there is criminal activity in the home,
          or whether there is such use of alcohol or controlled substances as may
          render the parent or guardian consistently unable to care for the child in
          a safe and stable manner;

          (8) Whether the parent’s or guardian’s mental and/or emotional status
          would be detrimental to the child or prevent the parent or guardian from
          effectively providing safe and stable care and supervision for the child;
          or

          (9) Whether the parent or guardian has paid child support consistent
          with the child support guidelines promulgated by the department
          pursuant to [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).



                                             - 10 -
       We acknowledge Mother’s current efforts to rehabilitate herself and her desire to
maintain a relationship with the Child. However, the fact remains that Mother was still
incarcerated at the time of the hearing and made plans to attend an extended rehabilitation
program upon her release, leaving her unable to care for the Child for a significant period
of time. Tenn. Code Ann. § 36-1-113(i)(1), (7). Further, Mother has experienced periods
of release only to return to her past addictions shortly thereafter. Meanwhile, the Child
has bonded with her Custodial Parents and is thriving. A change of caretakers at this
point in the Child’s life would be detrimental to her emotional condition when she has
not even seen Mother for several years. Tenn. Code Ann. § 36-1-113(i)(5). The Child
should be allowed to achieve permanency and stability in her current home. With all of
the above considerations in mind, we conclude that there was clear and convincing
evidence to establish that termination of Mother’s parental rights was in the best interest
of the Child. We affirm the trial court.

                                   V.     CONCLUSION

       The judgment of the trial court is reversed as to the finding of abandonment for
failure to remit support. The trial court is affirmed on all other grounds. The case is
remanded for such further proceedings as may be necessary. Costs of the appeal are
taxed to the appellant, Olivia F.


                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




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