                                                                                                             08/21/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                Assigned on Briefs August 1, 2018

                                         IN RE TAYLOR C.

                       Appeal from the Circuit Court for Knox County
                            No. 2-485-15 William T Ailor, Judge
                          ___________________________________

                                 No. E2017-01824-COA-R3-PT
                            ___________________________________

This is a termination of parental rights case. Mother/Appellant appeals the termination of
her parental rights to the minor child on the grounds of abandonment by willful failure to
support and willful failure to visit. Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-
102(1)(A)(i). Mother also appeals the trial court’s determination that termination of her
parental rights is in the child’s best interest. Discerning no error, we affirm and remand.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which ANDY D. BENNETT
and THOMAS R. FRIERSON, II, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Felecia C.

Jennifer S. Bjornstad, Knoxville, Tennessee, for the appellee, Monica H.

                                                OPINION

                                             I. Background

       The minor child, Taylor C., was born to Felecia C. (“Mother,” or “Appellant”) in
January 2010.1 Monica H. (“Appellee”) is the child’s great aunt by marriage.2 On or
about October 30, 2014, the Juvenile Court of Knox County declared Taylor to be
dependent and neglected. Although a copy of the October 30, 2014 order is not included
in the appellate record, it is undisputed that the child has lived with Monica H. since


        1
           In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
        2
           Monica H. is no longer married to the child’s great uncle.
October 30, 2014.3 Furthermore, as set out in the order terminating Mother’s parental
rights, under the October 30, 2014 order, Mother “was awarded supervised visitation with
the supervision to be by an agency at the mother’s expense.”

        On September 14, 2015, Monica H. filed a petition to terminate Mother’s parental
rights to Taylor and for adoption in the Circuit Court for Knox County (“trial court”). As
grounds for termination of Mother’s parental rights, the petition alleged abandonment by
both willful failure to support and willful failure to visit.4 The trial court subsequently
appointed an attorney for Mother and a guardian ad litem for the child. On January 4,
2016, Mother filed an answer to the petition. Therein, Mother admitted that she had not
visited the child during the relevant time period but asserted that Monica H. had
prevented her attempts to visit.

       The trial court heard the petition to terminate Mother’s parental rights on May 16,
2016. By order of June 30, 2016, the trial court terminated Mother’s parental rights on
the grounds of abandonment by both willful failure to visit and willful failure to support.
The trial court also found that termination of Mother’s parental rights is in the child’s
best interest. Mother appeals.

                                                II. Issues

        There are two dispositive issues, which we state as follows:

1. Whether there is clear and convincing evidence to support at least one of the grounds
for termination of Appellant’s parental rights.

2. If so, whether there is clear and convincing evidence to support the trial court’s
determination that termination of Appellant’s parental rights is in the child’s best interest.

                                      III. Standard of Review

       Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes identify “those situations in which the state’s interest in
        3
           The record is not clear concerning where, or with whom, Taylor lived prior to October 30, 2014.
It appears that the child was kept by various family members, including her paternal aunt, maternal great-
grandmother, and her paternal uncle.
        4
           Monica H. also brought her petition against Taylor’s biological father. He did not participate in
the case, and his parental rights were terminated by default on February 17, 2016. He is not a party to this
appeal.
                                                   -2-
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 W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). 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. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest 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.

       In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).

                    IV. Grounds for Termination of Parental Rights

       As noted earlier, the trial court relied on the two statutory grounds in terminating
Appellant’s parental rights: (1) abandonment by willful failure to visit; and (2)
abandonment by willful failure to support. Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-
102(1)(A)(i). Although only one ground must be proven by clear and convincing
evidence in order to terminate a parent’s rights, the Tennessee Supreme Court has
instructed this Court to review every ground relied upon by the trial court to terminate
parental rights in order to prevent “unnecessary remands of cases.” In re Angela E., 303
S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we will review both of the foregoing
grounds.

       We begin with the ground of abandonment generally. In this case, Monica H.
                                       -3-
alleged abandonment under Tennessee Code Annotated Section 36-1-113(g)(1), which
provides that termination of a parent’s rights may be initiated based on “[a]bandonment
by the parent or guardian, as defined in § 36-1-102 . . . .” Tenn. Code Ann. § 36-1-
113(g)(1). Tennessee Code Annotated section 36-1-102 outlines several definitions of
“abandonment.” As is relevant to this case, the statute provides:

      (1)(A) For purposes of terminating the parental or guardian rights of a
      parent or parents or a guardian or guardians of a child to that child in order
      to make that child available for adoption, “abandonment” means that:

      (i) For a period of four (4) consecutive months immediately preceding the
      filing of a proceeding, pleading, petition, or any amended petition to
      terminate the parental rights of the parent or parents or the guardian or
      guardians of the child who is the subject of the petition for termination of
      parental rights or adoption, that the parent or parents or the guardian or
      guardians either have failed to visit or have failed to support or have failed
      to make reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i). Here, Monica H. filed the petition to terminate
Mother’s parental rights on September 14, 2015; accordingly, the relevant statutory time
period applicable to the ground of abandonment is May 13, 2015 to September 13, 2015.
In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct.
App. Feb. 20, 2014).

       Concerning the statutory requirement that a parent’s failure to visit or support
must be willful in order to support the ground of abandonment, this Court discussed the
willfulness criterion as follows:

              The concept of “willfulness” is at the core of the statutory definition
      of abandonment. A parent cannot be found to have abandoned a child . . .
      unless the parent has . . . “willfully” . . . failed to support the child for a
      period of four consecutive months. . . . In the statutes governing the
      termination of parental rights, “willfulness” does not require the same
      standard of culpability as is 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 ....

              The willfulness of particular conduct depends upon the actor’s
      intent. Intent is seldom capable of direct proof, and triers-of-fact lack the
      ability to peer into a person’s mind to assess intentions or motivations.
                                          -4-
       Accordingly, triers-of-fact must infer intent from the circumstantial
       evidence, including a person’s actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted). “Whether a parent failed to visit or support a child is a question of
fact. Whether a parent’s failure to visit or support constitutes willful abandonment,
however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d at 640 (citing
In re Adoption of A.M.H., 215 S.W.3d at 810). As previously discussed, this Court
reviews questions of law de novo with no presumption of correctness. Id.

        Concerning the ground of abandonment by willful failure to support, this Court
has held that failure to pay support is “willful” if 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) (quoting In re Adoption of Muir, No. M2002-02963-
COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). A parent
willfully fails to support her child when, for the relevant four month period, the parent
fails to provide monetary support or fails to provide more than “token payments” toward
the support of the child. Tenn. Code Ann. § 36-1-102(1)(D) (defining “willfully failed to
support” and “willfully failed to make reasonable payments toward such child’s
support”). “Token support” is support that, considering the individual circumstances of
the case, is “insignificant given the parent’s means.” Id. at (1)(B). Although it is
undisputed that Appellant paid no support for Taylor during the relevant time period, in
order to prove this ground, Monica H. also has the burden to show that Mother had the
capacity to provide support. In re. J.J.C., 148 S.W.3d at 926. As this Court recently
explained:

       It is axiomatic that “in order to establish the ground of abandonment by
       willful failure to support by clear and convincing evidence, the party
       seeking termination must generally ‘submit ... evidence regarding [the
       parent’s] employment, income, [or] other non-monetary assets,’” as well as
       the parent’s ‘expenses during the four-month period.’” In re Michael B.,
       No. M2015-02497-COA-R3-PT, 2016 WL 7486361, at *11 (Tenn. Ct.
       App. Oct. 6, 2016) (quoting In re Destiny H., No. W2015-00649-COA-R3-
       PT, 2016 WL 722143, at *9 (Tenn. Ct. App. Feb. 24, 2016)). Such
       evidence need not be an accounting of every dollar earned and spent, and it
       need not even be tied to dollars and cents, but it must be clear and
       convincing evidence that the parent had the capacity to pay support, did not
       do so, and had no justification for not doing so. In the case of In re
       Adoption of Angela E., 402 S.W.3d [636,] at 641 [(Tenn. 2013)], in the
       context of examining whether the father’s payments were “token support,”
       our Supreme Court stated that the evidence of the father’s income and
       expenses was “limited at best” and failed to prove that his payments were
                                           -5-
        “token support.” See also In re Michael B., 2016 WL 7486361, at *11
        (discussing In re Adoption of Angela E. and other cases regarding proof of
        employment, income, other non-monetary assets, and expenses necessary to
        establish a parent’s capacity to pay support).

In re Preston L., No. M2016-02338-COA-R3-PT, 2017 WL 4315356, at *5 (Tenn. Ct.
App. September 27, 2017).

        In its order terminating Mother’s parental rights, the trial court found, in relevant
part,

        [t]hat the mother has never paid any child support for the support of this
        child . . . . The mother was employed throughout 2015. The mother was
        paid approximately $120 per week, however, she made no effort to pay
        child support for the child. The mother had been unemployed for
        approximately two months prior to the hearing due to the death of the
        elderly man she was sitting for. Despite being unemployed for the last two
        months, the mother made no effort to find gainful employment.

                                              ***

        That the mother has abandoned the child by willfully failing to provide
        support for the child during the four months preceding the filing of the
        Petition. The mother has been employed since prior to 2015, and despite
        having income and the ability to support, the mother has never made any
        payment for the support of the child.

Turning to the record, Mother testified that she was employed during some part of the
relevant four-month time period, to-wit:

        Q.   Did you work in 2015?
        A.   Yes.
        Q.   Where did you work?
        A.   I was sitting with an elderly man.

                                              ***

        Q. How much were you being paid?
        A. I was working three days a week. Probably maybe a hundred twenty a
        week.

There is no evidence to suggest that Mother has any infirmity that would preclude her
from gainful employment. The issue with Mother’s sporadic work history appears to be
                                        -6-
the fact that she has struggled with substance abuse issues, which have resulted in
numerous criminal charges. Nonetheless, during those times when she was able to
maintain employment, including her job as sitter, she did not attempt to provide any
monetary support for Taylor. Specifically, Mother testified:

       Q. Okay. So during that period [i.e., the relevant four-month time period], .
       . . [w]ere you paying child support to any of the children?
       A. No. I’ve not been ordered to pay child support.

       In the first instance, parents are presumed to know that they have a legal
obligation to support their children. See Tenn. Code Ann. § 36-1-102(1)(H).
Furthermore,

       biological 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.”). Accordingly, the fact that Mother was
not under court order to provide support does not, ipso facto, relieve her of that
obligation. It is undisputed that Mother made no financial contribution to the support of
the child. Furthermore, Monica H. testified that Mother never provided any gifts or
necessaries for the child during the relevant time period. From the undisputed facts, we
conclude that there is clear and convincing evidence to support the trial court’s
termination of Mother’s parental rights on the ground of abandonment by willful failure
to support.

        Concerning the ground of willful failure to visit, the trial court specifically found
“[t]hat mother has not had any contact with the child since before October of 2014, and
first contacted Parent Place to schedule supervised visitation on September 14, 2015.”
The record supports this finding. Mother does not dispute that she has not seen Taylor
since October of 2014. However, during the hearing, she indicated that her attempts to
arrange supervised visitation through Parent Place had been thwarted. The Tennessee
Supreme Court has held that a parent who attempts to visit and maintains a relationship
with the child, but is “thwarted by the acts of others and circumstances beyond [her]
control,” cannot be found to have willfully abandoned the child. In re Adoption of
A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007); In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The flaw in Mother’s argument is that, by her own testimony, despite the
                                           -7-
fact that she was granted the opportunity for supervised visits (by the October 30, 2014
juvenile court order, supa), she did not seek visitation until September of 2015, which
was after Mother was served with the petition to terminate her parental rights.
“Abandonment [by failure to visit] may not be repented of by resuming visitation. . .
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.”). There is no evidence that Mother was thwarted or otherwise
precluded from seeking visitation in the four months preceding the filing of the petition to
terminate her parental rights. In view of the undisputed fact that Mother did not attempt
to visit Taylor from October 2014 (when the child was placed with Monica H.) until after
she was served with the petition to terminate parental rights, we conclude that the
evidence clearly and convincingly supports the trial court’s termination of Mother’s
parental rights on the ground of abandonment by willful failure to visit.

                                      V. Best Interests

        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. 2004). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id. at 877.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child's best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” White, 171 S.W.3d at
194.

       The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. As is
relevant to the instant case, these factors include, but are 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;

                                             ***

                                             -8-
      (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;

                                            ***

      (9) Whether the parent or guardian has paid child support consistent with
      the child support guidelines . . . ;

Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] 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 rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a single factor
or other facts outside the enumerated, statutory factors may dictate the outcome of the
best interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:

      Ascertaining a child’s best interests does not call for a rote examination of
      each of Tenn. Code Ann. §§ 36-1-113(i)’s nine factors and then a
      determination of whether the sum of the factors tips in favor of or against
      the parent. The relevancy and weight to be given each factor depends on the
      unique facts of each case. Thus, depending upon the circumstances of a
      particular child and a particular parent, the consideration of one factor may
      very well dictate the outcome of the analysis.

White, 171 S.W.3d at 194.

       In its order terminating Appellant’s parental rights, the trial court made the
following relevant findings concerning the child’s best interest:

      That it is in the best interest of the child for the mother’s parental rights to
      be terminated. The mother has made efforts to change her conduct and the
      conditions of her home, however . . . the mother’s live-in boyfriend spent
      four years in prison, creating an issue regarding the safety of the home.
      The mother has not made a lasting adjustment though she has made some
      progress with her substance abuse issues. The mother has not had any
      contact or visits with the child since prior to October of 2014. A
      meaningful relationship has been established between the petitioner and the
      child, however, a meaningful relationship does not exist between the
      mother and the child. A change in the child’s caretaker would be
                                             -9-
      traumatizing to this child based upon the first four years of the child’s life
      when compared to her life since residing with the petitioner.

       The appellate record supports the trial court’s findings. By her own admission,
Mother has a history of drug and alcohol abuse. Although Mother testified that, in
September of 2015, she completed intensive outpatient treatment for her addiction, she
admitted that she “received a DUI in Sevier County and a shoplifting charge in Anderson
County after [she] completed that intensive outpatient treatment.” These charges do not
support a finding that Mother has conquered her addiction so as to make her home a safe
and stable environment for Taylor. We have previously discussed the fact that Mother
has failed to visit and support the child. At the time of trial, Mother was not employed,
although (as noted above) there is no evidence that she is unable to hold a job.
Meanwhile, the record shows that Taylor has adjusted to her home with Monica H. She
considers Monica H. to be her mother. Monica H. testified that, when Taylor first came
to live with her, the child had some adjustment issues, including a fear that Monica H.
would leave her and a lack of empathy and proper emotional response. However, under
Monica H.’s care, the child has received therapy for these issues, and, according to
Monica H., Taylor has largely overcome these initial issues. In view of Mother’s current
living situation, the fact that her sobriety is unproven, and her lack of gainful
employment, it does not appear that Mother will be able to care for this child at any early
date. This fact, coupled with the undisputed testimony that Taylor is thriving in her
current home with Monica H. clearly and convincingly supports the trial court’s finding
that removal from Monica H.’s home would likely cause the child emotional and
psychological damage. From the totality of the circumstances, we conclude that there is
clear and convincing evidence to support the trial court’s finding that termination of
Mother’s parental rights is in the child’s best interest.

                                     VI. Conclusion

      The trial court’s order is affirmed, and the case is remanded for such further
proceedings as may be necessary and are consistent with this opinion.



                                                   _________________________________
                                                   ARNOLD B. GOLDIN, JUDGE




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