                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                     ASSIGNED ON BRIEFS SEPTEMBER 28, 2007

           IN RE: ADOPTION OF D.R.T., d/o/b 12/25/93
    KEVIN DEAN TURNAGE v. MISTY RENEE MITCHELL CARR
                   Direct Appeal from the Chancery Court for Tipton County
                         No. 22, 007 Martha B. Brasfield, Chancellor



                     No. W2007-00116-COA-R3-PT - Filed January 28, 2008


This is a case involving the chancery court’s decision not to terminate a mother’s parental rights.
The father and his wife petitioned the court to terminate the mother’s rights and allow the wife to
adopt the minor child. The court held a termination hearing to determine if the mother’s rights
should be terminated. In the order dismissing the petition for termination and adoption, the court
found that the mother had not abandoned the child by failure to visit because her attempts to
maintain contact and visit the child were thwarted by the father and his wife. As to the father and
wife’s contention that the mother abandoned the child by her failure to pay child support, the court
found that the mother had no reason why she did not pay child support, but then found that her
failure to pay did not constitute abandonment. On this appeal, we do not have a transcript of the trial
proceedings. The father filed a statement of the evidence, and the mother filed an objection to the
father’s proposed statement of the evidence. In the mother’s filed objection, she stated that the
parties stipulated at trial that her failure to pay child support “was not sufficient in itself to terminate
[her] parental rights.” The chancery court certified its own statement of evidence, concurring with
the mother’s filed objection and stating that the mother’s failure to pay child support was not willful
because of her lack of education and inability to maintain employment. Father appeals, and we
affirm.

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

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

Paul E. Lewis, Millington, TN, for Appellant

Frank Deslauriers, Covington, TN, for Appellee
                                                     OPINION

                                    I. FACTS & PROCEDURAL HISTORY


        Misty Renee Mitchell Carr (“Appellee” or “Mother”) and Kevin Dean Turnage (“Appellant”
or “Father”) began their relationship in Texas when mother was 16 years old, and father was 18 years
old.1 A year later, the couple had a child, D.R.T., born December 25, 1993. Mother and Father lived
together with D.R.T. in Texas, but “had a very tumultuous, unsatisfactory, and sometimes violent
relationship.” When D.R.T. was still an infant, Father shoved Mother, while she held minor child,
out of the house and into the snow. The couple later separated, and Mother was the primary
caretaker of D.R.T. Father continued to be “abusive and coercive” after the separation. Father
became the primary joint managing conservator of D.R.T. Father moved to Tennessee with the
child, and Mother remained in Texas. Father has since remarried Monica Lee Turnage (“Appellant”
or “Wife”). In 2000, Father and Wife attended Mother’s family reunion with D.R.T. because they
believed that Mother would not attend. Mother did attend the reunion, though, and Father and Wife
would not allow D.R.T. to speak to Mother.

         On May 7, 2004, Father and Wife petitioned the chancery court in Tipton County, Tennessee
to terminate Mother’s rights and allow Wife to adopt minor child. The petition alleged that Mother
had abandoned D.R.T. by her failure to support and her failure to visit minor child. On September
28, 2006, the court held a termination hearing to determine if Mother’s rights should be terminated.
In the order dismissing the petition for termination and adoption entered on December 14, 2006,2 the
court found that Father and Wife had not met their burden of proof to establish that Mother had
willfully failed to visit D.R.T. The court found that Mother had not abandoned the child by failure
to visit because her attempts to maintain contact and visit with the child were thwarted by Father and
Wife. Specifically, the court found that Father and Wife recorded D.R.T.’s phone calls with Mother
and blocked Mother’s emails to D.R.T. The court also found that Father and Wife “did not tell the
truth about [Mother] to D.R.T. and, in fact, told falsehoods about [Mother].”




         1
            W e begin by noting that this Court does not have a transcript of the hearing, as neither party obtained a
court reporter’s services. Pursuant to the Tennessee Rules of Appellant Procedure 24(c), Appellant prepared a
statement of the evidence. Appellee filed an objection to Appellant’s filed statement, and the chancery court filed
its own statement of evidence, concurring with the statements made in Appellee’s filed objection. Thus, we recite
the facts as described in the court’s statement of the evidence. See Tenn. R. App. P. 24(e) (“Any differences
regarding whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by
the trial court . . . . Absent extraordinary circumstances, the determination of the trial court is conclusive.”).

         2
           The court did not enter the order within 30 days of the hearing, as provided for in Tenn. Code Ann. § 36-
1-113(k) (Supp. 2006). W e do not address this issue, though, as Appellant failed to raise it on appeal.

                                                          -2-
       As to Father and Wife’s contention that Mother had abandoned the child by her failure to
pay child support, the court found in the order as follows:

                        The Court also finds that [Mother] failed to pay child support
                as ordered for the child and that the current arrearage owed is in the
                amount of Twenty-three thousand Two hundred Dollars ($23,200.00).
                [Wife] has begun paying child support . . . in the Chancery Court in
                the state of Texas, and the Court finds that [Mother], by her own
                admission, had no reason why she did not pay the child support. The
                Court further finds that the failure to pay the child support as ordered
                does not constitute abandonment and, therefore, is not grounds to
                terminate [Mother’s] parental rights.

(emphasis added). Father and Wife timely appealed, and the chancery court filed its own statement
of evidence, in relevant part, as follows:

                The Father and his wife, the Appellants, have filed an appeal and an
                “Appellant’s Statement of the Evidence.” Mother has filed
                “Appellee’s Objection to Statement of the Evidence.” The Court has
                read and studied both documents and the notes taken at the hearing.
                ...
                        The Court concurs in the statements made in the “Appellee’s
                Objection to the Statement of Evidence.”
                        The Court considered the following testimony and evidence
                in determining that the Mother’s parental rights should not be
                terminated:
                        The Mother has a 10th grade education and was unemployed
                for two years after the Father became the Primary Joint Managing
                Conservator of [D.R.T.]. The Mother had a minimal ability to
                support herself.
                ...
                        This Court found that, based on the statements in the
                Appellee’s Objection to the Statement of Evidence, the additional
                statements in this document (?) [sic], that the Mother’s failure to pay
                child support was not willful or intentional, but due to her lack of
                education and her lack of ability to maintain employment. Further,
                her low pay made traveling from Texas to Tennessee for shared
                parenting time with [D.R.T.] extremely difficult.

Appellee’s objection filed in response to Appellant’s statement of the evidence provides, in relevant
part, as follows: “The parties stipulated at trial that the failure of [Mother] to fail [sic] child support
was not sufficient in itself to terminate parental rights. This matter was discretionary with the trial
court.”


                                                   -3-
                                            II. ISSUES PRESENTED

        Appellant presents the following issue for review: “Did the Trial Court err in refusing to find
that the Appellee had abandoned the minor child as a result of willful nonpayment of child support
and lack of contact with the child?”3 We find that the parties’ stipulation is determinative, and thus
we affirm.

                                         III.    STANDARD OF REVIEW

         We review a trial court’s findings of fact de novo with a presumption of correctness. We will
only overturn these factual findings if the evidence preponderates against them. Tenn. R. App. P.
13(d) (2007); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The evidence preponderates
against a trial court’s finding of fact when it supports “another finding of fact with greater
convincing effect.” Nashville Ford Tractor, Inc., v. Great American Ins. Co., 194 S.W.3d 415, 425
(Tenn. Ct. App. 2005); Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing
Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc.
v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). We give great weight
to the trial court’s factual findings concerning the credibility of witnesses, Nashville Ford Tractor,
Inc., 194 S.W.3d at 425 (citations omitted), and we will not re-evaluate these factual findings unless
we find clear and convincing evidence to the contrary. Sircy v. Metro. Gov’t of Nashville and
Davidson County, 182 S.W.3d 815, 818 (Tenn. Ct. App. 2005) (citation omitted). On the other
hand, we review the trial court’s conclusions of law de novo upon the record with no presumption
of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate
of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

        The rights of a biological parent are “fundamental and superior to the claims of other persons
and the government[.]” In re S.M., 149 S.W.3d 632, 638 (Tenn. Ct. App. 2004). They are not,
however, absolute. These rights can be taken away if the parent has relinquished them, abandoned
them, or engaged in conduct requiring their termination. Id. at 638–39 (citing Blair v. Badenhope,
77 S.W.3d 137, 141 (Tenn. 2002); Stokes v. Arnold, 27 S.W.3d 516, 520 (Tenn. Ct. App. 2000);
O'Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995)). “In light of the constitutional
dimension of parental rights, persons seeking to terminate these rights must prove all the elements
of their case by clear and convincing evidence,” In re S.M., 149 S.W.3d at 639 (citations omitted),
and we must look to determine whether the trial court’s findings are supported by a preponderance
of the evidence. In re F.R.R., III, 193 S.W.3d at 530.




         3
             Appellant raises the issue that the trial court erred by failing to find that Mother abandoned minor child
by her lack of contact. Appellant’s brief, however, does not mention this issue again, nor make any reference or any
type of argument to support this contention. Thus, we will not consider the issue. See Bean v. Bean, 40 S.W .3d 52,
56 (Tenn. Ct. App. 2000) (citations omitted) (“[A]n issue is waived where it is simply raised without any argument
regarding its merits.”).

                                                          -4-
                                         IV. DISCUSSION


       Abandonment based on the failure to pay child support is defined 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) . . . have willfully failed to support or have
               willfully failed to make reasonable payments toward the support of
               the child[.]


 Tenn. Code Ann. § 36-1-102(1)(A)(I). The failure to pay must be willful, meaning that the parent
“is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to
provide support, and has no justifiable excuse for not providing the support.” In re J.J.C., 148
S.W.3d 919, 926 (Tenn. Ct. App. 2004) (quotation omitted).


        Turning back to the present case, because the parties stipulated at trial that abandonment
based on the failure to pay child support could not be a ground of termination, we find it curious that
Father now argues to this Court that we “must determine if the nonpayment of support was
willful[.]” Father argues that “[t]here are simply not enough findings of fact in the Court’s Statement
of the Evidence to support the Court’s conclusions of law as to the Appellee’s willfulness or lack
thereof.” But again, the parties stipulated that abandonment based on Mother’s failure to pay was
not a sufficient ground for terminaton, and thus whether there were any findings of fact concerning
her willful failure to pay is irrelevant.


        Even if we were to ignore the stipulation, (which we are not inclined to do), there is no clear
and convincing evidence to support the termination of Mother’s parental rights based on her willful
failure to pay child support. The court’s statement of the evidence found that her failure to pay
support was “not willful or intentional, but due to her lack of education and her lack of ability to
maintain employment.” And as previously discussed, abandonment by failure to pay must be willful.
Thus, we do we not find any inconsistency between the court’s order denying the termination of
Mother’s parental rights and the court’s statement of the evidence. Nor is there anything in the
record indicating that the termination of Mother’s rights would be in the best interest of the child.
But as already said, the parties entered into a stipulation at trial, and we see no reason why they are
not bound by it.




                                                 -5-
                                      V. CONCLUSION


      We affirm the trial court’s decision. Costs of the appeal are assessed against Appellant,
Kevin Dean Turnage, and his surety, for which execution may issue if necessary.




                                                          ALAN E. HIGHERS, P.J., W.S.




                                              -6-
