                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 AUGUST 28, 2000 Session

   IN RE: PETITION OF JOHN T. WEATHERFORD, ET AL. v. BRENDA
                     WEATHERFORD, ET AL.

                 Direct Appeal from the Chancery Court for Benton County
                  No. 8960;   The Honorable Ron E. Harmon, Chancellor



                  No. W1999-01014-COA-R3-CV - Filed December 29, 2000


Darrin Sheffield appeals the trial court’s judgment terminating his parental rights to his minor son,
Tyler Lee Weatherford. We affirm the trial court’s judgment based on our conclusion that the record
contains clear and convincing evidence to support the court’s findings that Mr. Sheffield abandoned
Tyler and that termination of Mr. Sheffield’s parental rights was in Tyler’s best interest.

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

ALAN E. HIGHERS , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.
and DAVID R. FARMER , J., joined.

Carrie W. Kersh, Clarksville, for Appellant Darrin Sheffield

Phillip G. Hollis, Camden, for Appellees

                                            OPINION

                                  Facts and Procedural History

       This case involves the termination of the parental rights of Brenda Weatherford and Darrin
Sheffield and the adoption of Tyler Lee Weatherford by John and Gray Hope Weatherford.

       The child at issue, Tyler Lee Weatherford, was born on December 23, 1991. The Appellant,
Darrin Sheffield, is the biological father of Tyler. Brenda Weatherford is Tyler’s biological mother.
Darrin Sheffield and Brenda Weatherford were never married. Mr. Sheffield knew that Brenda
Weatherford was carrying his child, as she told him in the summer of 1991 while she was still
pregnant that the child was his. Notwithstanding Mr. Sheffield’s knowledge that the child was his,
he waited over four years before he filed with the putative father’s registry on April 23, 1996.
       The Appellee, John Thomas Weatherford, is the father of John Weatherford, Jr., who was
married to Brenda Weatherford at the time Tyler was born. John Weatherford, Jr. passed away in
1994 at the age of 26. When the petition for adoption was filed by Mr. and Mrs. John Weatherford,
they believed that they were the paternal grandparents of Tyler.

       On April 5, 1995, while Tyler was living with his mother, the Juvenile Court found that Tyler
was dependent and neglected, and temporary custody of Tyler was given to the Appellee, Tommy
Weatherford. Brenda Weatherford signed the order giving custody to Tommy Weatherford.1

        When Tyler was born, as well as at the time the petition for adoption was filed, Mr. Sheffield
was in prison. Moreover, Mr. Sheffield was in and out of prison for most of Tyler’s early years, and
Mr. Sheffield remains on parole until 2003. Mr. Sheffield claims that he paid child support to
Tyler’s mother on a weekly basis and visited Tyler regularly when he was out of prison. The trial
court, however, found that there was no evidence of any support, and that any visitation by Mr.
Sheffield was token and sporadic.

        Tyler has been in counseling with Ms. Julia Austin, a licensed clinical social worker, since
May 22, 1995. Ms. Austin testified that Tyler Weatherford does not know that Mr. Sheffield is his
biological father; he thinks that his father was killed in a car accident. Moreover, another licensed
clinical social worker, Ms. Penny Snow, testified at trial that Tyler does not consider Mr. Sheffield
as part of his family. Both Ms. Austin and Ms. Snow testified that it is in the best interest of Tyler
Lee Weatherford that the adoption be granted. Additionally, Clyde W. Watson, a member of the
Benton County Bar and Juvenile Judge, served as guardian ad litem for Tyler Lee Weatherford. Mr.
Watson testified that it is in Tyler’s best interest for the parental rights of the natural parents to be
terminated and for the adoption to be granted.

       The trial court terminated the parental rights of Brenda Weatherford and Darrin Sheffield.
In addition, the trial court granted the adoption of Tyler Lee Weatherford to Mr. and Mrs. John
Thomas Weatherford. The Appellant, Darrin Sheffield, appeals this decision from the trial court and
presents three issues for our review. The issues presented, as stated in the Appellant’s brief, are as
follows:
                I.      Whether the Respondent’s procedural due process rights were violated by the
                        trial court’s failure to dismiss the petition for adoption pursuant to the rule
                        12.02(6) motion filed by the respondent.

                    II.       Whether the trial court erred by finding by clear and convincing evidence that
                              the grounds for termination of parental rights had been proven.

                    III.      Whether the trial court erred by finding that termination of the respondent’s
                              parental rights was in the best interest of the child.


          1
            Brenda Weath erford d id not app eal the dec ision of the trial court. Th us, the term ination of her paren tal rights
is not an issu e in the pre sent appe al.

                                                               -2-
We will consider each issue in turn.

                                                   Standard of Review

        Parents have a fundamental right to the care, custody and control of their children. See
Stanley v. Illinois, 405 U.S. 645 , 651 (1972). However, this right is not absolute, and parental rights
may be terminated upon a finding by the court by clear and convincing evidence that the grounds for
termination of parental rights have been established and that termination is in the best interests of
the child. Tenn. Code Ann. § 36-1-113(c). Clear and convincing evidence is evidence which
eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn
from the evidence. See Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992).

       The standard of review on appeal is de novo upon the record with a presumption of
correctness of the trial court’s findings of fact unless the preponderance of evidence is otherwise.
Conclusions of law are reviewed de novo with no presumption of correctness. TENN. R. APP . P.
13(d).
                                          Law and Analysis

       First, the Appellant cites error in the trial court’s failure to dismiss the petition for adoption
pursuant to his Rule 12.02(6) motion.2 The Appellant argues in his brief that neither the petition for
adoption nor the amended petition alleged any grounds for termination of his parental rights. The
Appellant argues that the petition merely alleged that it was in the best interest of the child that the
parental rights of the natural parents be terminated. The Appellant further argues that section 36-1-
113(d)(2)(D) of the Tennessee Code3 requires the complaint to state grounds for the termination of
one’s parental rights.

         Rule 15.02 of the Tennessee Rules of Civil Procedure states, in pertinent part, “[w]hen issues
not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings.” TENN. R. CIV . P. 15.02. We note that, in
his opening statement to the court below, counsel for the Appellees stated the following:

                    It is our position basically that because of the enactment of the new
                    adoption statutes in Tennessee, which were effective on January the
                    1st, 1996, that Tyler Lee Weatherford basically had been abandoned,


          2
            Every defense, in law or fact, to a claim for relief in any pleading , whether a claim , counterclaim, cro ss-
claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by motion in writing: . . . (6) failure to state a claim upon
which r elief can be granted. T E N N . R. C IV . P. 12.02(6).
          3
           The petitio n, or allega tions in the a doption petition, sha ll state: . . . [a]ny oth er facts wh ich allege th e basis
for termination of parental rights and which bring the child and parties within the jurisdiction of the court. Tenn. Code
Ann. § 36-1-113 (d)(2)(D) (1999 Supp.).

                                                                -3-
               that Tyler Lee Weatherford had been abandoned for some period of
               time and that basically on the basis of the abandonment that the
               parental rights of the parents ought to be terminated and the
               adoption ought to be granted.

(emphasis added).

Moreover, Mr. Sheffield himself testified on the issue of abandonment. Mr. Sheffield stated at trial,
              this child was born Tyler Lee Weatherford. I can’t even explain why
              he was named Tyler Lee Weatherford because I wasn’t there. There’s
              a lot of times in my children’s lives that I should have been there and
              I wasn’t. . . It hurt me really bad because, you know, because of my
              stupidity I was in prison and my children were left out here to defend
              their selves.

We find that, although abandonment was not specifically mentioned in either the complaint or the
amended complaint, due to the portion of the opening statement by Appellees’ counsel and the
testimony of Mr. Sheffield quoted above, the issue of abandonment was tried by the implied consent
of Mr. Sheffield pursuant to Rule 15.02 of the Tennessee Rules of Civil Procedure since Mr.
Sheffield did not object to abandonment as being outside of the pleadings. As a result, this issue is
without merit.

       Next, the Appellant argues that the trial court erred in finding by clear and convincing
evidence that the grounds for termination of parental rights had been proven. Specifically, the
Appellant argues that the finding that Mr. Sheffield abandoned his child is not supported by clear
and convincing evidence. Section 36-1-102 of the Tennessee Code defines abandonment. Section
36-1-102(1)(A)(iv) states the following, as one of the grounds for abandonment:

               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 make reasonable payments toward the support of
               the child for four (4) consecutive months immediately preceding such
               parent’s or guardian’s incarceration, or the parent or guardian has
               engaged in conduct prior to incarceration which exhibits a wanton
               disregard for the welfare of the child.

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (Supp. 1999).
There is no question that Mr. Sheffield was incarcerated at the time of the institution of the action
to terminate his parental rights. However, the Appellant takes issue with the trial court’s finding that
he either willfully failed to visit or willfully failed to support Tyler for four consecutive months


                                                  -4-
immediately preceding his incarceration. The Appellant points to his own testimony in which he
stated that he had his children every weekend. Moreover, the Appellant points to the testimony of
Brenda Weatherford, Tyler’s biological mother, in which she stated that Mr. Sheffield picked Tyler
up on weekends and paid child support “when he could.” There was no documentary evidence of
child support, and the trial judge did not find the testimony of Darrin Sheffield or Brenda
Weatherford to be credible. The trial judge, in his order of judgment, stated that, “[i]t is the opinion
of the Court that Mr. Darren Sheffield is not a truthful witness and his testimony is unreliable. He
has never been a father to anyone, except in the strictly biological sense.” We think the trial judge
had good reason to discredit the testimony of Darren Sheffield, as Mr. Sheffield had curiously
neglected to disclose his misdemeanor convictions in responding to interrogatories. The trial judge,
in his order of judgment, stated, “[h]e [Mr. Sheffield] admitted that he had been untruthful in
responding to interrogatories relating to his criminal record and had failed to disclose other
convictions of record, while claiming to furnish a correct version to his then counsel, Mr. Hawley.”

         In this nonjury case, the trial judge as the trier of fact had the opportunity to observe the
manner and demeanor of the witnesses, including Darren Sheffield, as they testified from the witness
stand. 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.
See Town of Alamo v. Forcum-James Co., 327 S.W.2d 47, 49 (1959); Sisk v. Valley Forge Ins. Co.,
640 S.W.2d 844, 849 (Tenn. Ct. App. 1982). Due to the great deference that must be given to the
trial court regarding issues depending on witness credibility, we find that evidence of abandonment
was proven by clear and convincing evidence. Therefore, this issue is also without merit.4

       Finally, the Appellant argues that the trial court erred by finding that termination of Mr.
Sheffield’s parental rights was in the best interest of the child pursuant to section 36-1-113(i) of the
Tennessee Code. We simply cannot agree. The evidence presented by two licensed clinical social
workers as well as the testimony of the guardian ad litem clearly reinforces the decision of the trial
judge that the termination of Mr. Sheffield’s parental rights is in the best interest of Tyler Lee
Weatherford.




         4
           The Appellant also cites as error the finding of the trial court that Mr. Sheffield was and is under a sentence
of ten or more years as a basis for termination of his parental rights as an incorrect application of section 36-1-113(g)(6)
of the Tennessee Code. Due to our finding above, that the grounds for abandonmen t were proven by clear and
convincing evidence, we dec line to add ress this issue, as o nly one bases for ter mination must be proven . See In the
Matter of B.B., No. M1999-00643-COA-R3-CV, 2000 WL 794360, at *4 (Tenn. Ct. App. Jun. 20, 2000); Tenn. Code
Ann. § 36-1-113 (c)(2) (Supp. 1999).

                                                            -5-
                                            Conclusion

        For the aforementioned reasons, the decision of the trial court is affirmed. Costs of this
appeal are taxed against the Appellant, Darrin Sheffield, for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




                                                -6-
