                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 27, 2012 Session

         IN THE MATTER OF: CAYDENCE B. (d.o.b. 06/22/04) AND
                    KIMBERLY B. (d.o.b. 10/14/07)

            Direct Appeal from the Juvenile Court for Davidson County
           No. 2007-004334 PT # 134994 and 2009-004304 PT # 135010
                            Betty Adams Green, Judge


                No. M2011-02073-COA-R3-PT - Filed August 21, 2012


This is a termination of parental rights case. The trial court terminated Mother’s parental
rights upon its finding, by clear and convincing evidence, of abandonment, persistence of
conditions, and that termination is in the best interests of the children. We conclude that the
trial court erred in finding persistence of conditions. However, we affirm the trial court’s
finding of abandonment and that termination of Mother’s parental rights was in the best
interests of the children.

 Tenn. R. App.P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
                      part, Reversed in part & Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

C. Michael Cardwell, Nashville, Tennessee, for the appellant, Carmenita C.

Kelli Barr Summers, Brentwood, Tennessee, for the appellees, Christopher Prince, Leann
Prince, Brian Smith and Amanda Smith.

Lisa M. Fiehweg, Nashville, Tennessee, Guardian ad Litem.
                                    MEMORANDUM OPINION 1

                              I. Background and Procedural History

        Carmenita C. (“Mother”) and Billy Joe B. (“Father”) have four minor children
together. Two of the children, Caydence B. (“Caydence”) (d.o.b. 6/22/04) and Kimberly B.
(“Kimberly”) (d.o.b. 10/14/07), are the subject of this appeal. In July 2009, the Department
of Children’s Services (“DCS”) received a referral that Mother had left the children for six
(6) days in the home where she was living, and her roommate could no longer care for them.
When asked why she left the children, Mother told DCS that she needed a break from raising
four children on her own. One week later, DCS received another referral that one of the
children was sexually abused by a registered sex offender living in the home with Mother and
the children.2 After returning home, Mother decided to follow through with her previous
plans to enter the military, which necessitated placement of the children. Mother placed the
children in the care of her sister and signed a power of attorney for each. The children were
later split up, however, once the maternal aunt became unable to care for them.

        On August 17, 2009, DCS held a Child and Family Team Meeting to discuss
placement of the children given Mother’s plan to enter the military. The children were
placed in four different homes. Kimberly was placed in the home of Brian and Amanda
Smith (the “Smiths”), with whom she was already living before the Child and Family Team
Meeting. Similarly, Caydence was placed in the home of Christopher and Leann Prince (the
“Princes”), with whom she was already living before the Child and Family Team Meeting.
On October 19, 2009, Mother entered the military to begin basic training. Although Mother
signed a power of attorney for each child, the custodians of the four children filed a joint
petition for custody. On January 28, 2010, after conducting a hearing on the petition, the trial
court entered an Agreed Order for Change of Custody awarding custody of the children to
their respective custodians.

       While Mother was in basic training, she suffered injuries to her hips and knees which
required extensive rehabilitation. As a result of these injuries, Mother received an honorable


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
       2
           The registered sex offender later admitted to and was incarcerated for the abuse.

                                                     -2-
discharge from the military on July 30, 2010. Although Mother had returned home from her
military service, she did not inform the Princes or the Smiths of her return until August 9,
2010. Thereafter, on September 30, 2010, the trial court conducted a hearing on a Petition
to Set Child Support filed by the Princes on behalf of Caydence. The trial court concluded
that neither Mother nor Father had paid any amount to the Princes to support Caydence since
she was placed in their custody. Moreover, the trial court concluded that both Mother and
Father had the ability to pay child support during that time period. Therefore, the trial court
entered an order requiring Mother to pay $275 per month, and Father to pay $358 per month,
which included amounts for arrears owed to the Princes.

       On December 13, 2010, the Smiths filed a petition to terminate Mother and Father’s
parental rights to Kimberly, and the Princes filed a petition to terminate Mother and Father’s
parental rights to Caydence. The petitions alleged grounds of abandonment for failure to
support or visit the children and persistence of conditions. On May 12, 2011, the trial court
conducted a trial on the two petitions. Thereafter, on August 16, 2011, the trial court entered
two separate orders terminating Mother and Father’s parental rights to Kimberly and
Caydence. Mother timely filed a notice of appeal to this Court, and the cases were
consolidated for appeal.3

                                          II. Issues Presented

        Mother presents the following issues, as restated, for our review:

        (1)      Whether the trial court erred in finding, by clear and convincing
                 evidence, that there were persistence of conditions warranting
                 termination of Mother’s parental rights,

        (2)      Whether the trial court erred in finding, by clear and convincing
                 evidence, that Mother abandoned her children by willfully failing to
                 support or visit, and

        (3)      Whether the trial court erred in finding, by clear and convincing
                 evidence, that it was in the best interests of the children to terminate
                 Mother’s parental rights?




        3
        Father did not file a notice of appeal in this matter. Therefore, the focus of our discussion is limited
to Mother’s parental rights.

                                                      -3-
                                 III. Standard of Review

        We review a trial court's findings of fact de novo upon the record, according a
presumption of correctness to the findings unless a preponderance of the evidence is to the
contrary. Tenn. R. App. P. 13(d); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citation
omitted). No presumption of correctness attaches to a trial court's conclusions of law. Tenn.
R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000) (citation omitted). We
will not reevaluate the determinations of a trial court based on an assessment of credibility
unless clear and convincing evidence is to the contrary. In re M.L.D., 182 S.W.3d 890, 894
(Tenn. Ct. App. 2005) (citation omitted). Furthermore, where the trial court has not made
a specific finding of fact, we review the record de novo. In re Valentine, 79 S.W.3d at 546
(citation omitted).

        Tennessee Code Annotated section 36–1–113 governs the termination of parental
rights. This provision of the Code provides, in pertinent part:

       (c) Termination of parental or guardianship rights must be based 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) That termination of the parent's or guardian's rights is in the best
       interests of the child.

Tenn. Code Ann. § 36–1–113(c)(1), (2) (2010). This two-step analysis requires appellate
courts to consider “whether the trial court’s findings, made under a clear and convincing
standard, are supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d
528, 530 (Tenn. 2006). “Although the ‘clear and convincing evidence’ standard is more
exacting than the ‘preponderance of the evidence’ standard, it does not require the certainty
demanded by the ‘beyond a reasonable doubt’ standard.”                In re M.A.B., No.
W2007–00453–COA–R3–PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007)
(citation omitted). “Clear and convincing evidence is evidence that eliminates any
substantial doubt and that produces in the fact-finder’s mind a firm conviction as to the
truth.” Id. (citation omitted).

       The heightened burden of proof in parental termination cases requires us to distinguish
between the trial court's findings with respect to specific facts and the “combined weight of
these facts.” In Re: Michael C. M., No. W2010–01511–COA–R3–PT, 2010 WL 4366070,
at *2 (Tenn. Ct. App. Nov. 5, 2010) (quoting In Re: M.J.B ., 140 S.W.3d 643, 654 n.35
(Tenn. Ct. App. 2004)). Although we presume the trial court's specific findings of fact to be
correct if they are supported by a preponderance of the evidence, we “must then determine

                                             -4-
whether the combined weight of these facts provides clear and convincing evidence
supporting the trial court's ultimate factual conclusion.” Id.

                                         IV. Analysis

                                A. Persistence of Conditions

       We begin our analysis by addressing the trial court’s ruling that persistence of
conditions warranted the termination of Mother’s parental rights. Tennessee Code Annotated
section 36-1-113(g)(3) establishes a ground for termination if:

       The child has been removed from the home of the parent or guardian by order
       of a court for a period of six (6) months and:
              (A) The conditions that led to the child's removal or other conditions
       that in all reasonable probability would cause the child to be subjected to
       further abuse or neglect and that, therefore, prevent the child's safe return to
       the care of the parent(s) or guardian(s), still persist;
              (B) There is little likelihood that these conditions will be remedied at
       an early date so that the child can be safely returned to the parent(s) or
       guardian(s) in the near future; and
              (C) The continuation of the parent or guardian and child relationship
       greatly diminishes the child's chances of early integration into a safe, stable
       and permanent home[.]

Tenn. Code Ann. § 36-1-113(g)(3)(A)-(C). A finding of persistence of conditions is
permissible only if clear and convincing evidence is presented to establish each statutory
element. In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn. Ct. App. 2006) (citation
omitted).

       It is well settled, “based on the statutory text and its historical development, that Tenn.
Code Ann. § 36-1-113(g)(3) applies as a ground for termination of parental rights only where
the prior court order removing the child from the parent's home was based on a judicial
finding of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d 838, 874 (Tenn. Ct.
App. 2005) (emphasis added). In the case at bar, however, the children were not removed
from Mother’s home due to dependency, neglect, or abuse. In fact, no petition to adjudicate
the children dependent, neglected, or abused was ever filed, and the trial court never made
findings to that effect. Instead, custody of the children was based on the agreement of the
parties. This agreement was memorialized in the Agreed Order for Change of Custody
entered by the trial court on January 28, 2010. Therefore, we conclude that the trial court
erred in terminating Mother’s parental rights based on persistence of conditions.

                                               -5-
                                           B. Abandonment

       Next, we address Mother’s argument that the trial court erred in terminating her
parental rights based upon the ground of abandonment. Tennessee Code Annotated section
36–1–113(g)(1) provides for termination if “[a]bandonment by the parent or guardian, as
defined in § 36-1-102, has occurred . . . .” As pertinent to this appeal, “abandonment” means
that:

        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) either have
        willfully failed to visit or 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).4 Moreover, as this Court explained in In re Audrey
S., 182 S.W.3d 838 (Tenn. Ct. App. 2005):

                The concept of “willfulness” is at the core of the statutory definition of
        abandonment. A parent cannot be found to have abandoned a child under
        Tenn. Code Ann. § 36–1–102(1)(A)(i) unless the parent has either “willfully”
        failed to visit or “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


        4
          As defined in Tennessee Code Annotated section 36-1-102(1)(E), “‘willfully failed to visit’ means
the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token
visitation.” “Token visitation” is defined in section 36-1-102(1)(C) as visitation that “constitutes nothing
more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to
merely establish minimum or insubstantial contact with the child.”
         As defined in Tennessee Code Annotated section 36-1-102(1)(D), “‘willfully failed 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.” “Token support” is
defined in section 36-1-102(1)(B) as support that, “under the circumstances of the individual case, is
insignificant given the parent's means.”

                                                    -6-
       agent, knows what he or she is doing, and intends to do what he or she is
       doing.

               Failure to visit or support a child is “willful” when a person is aware of
       his or her duty to visit or support, has the capacity to do so, makes no attempt
       to do so, and has no justifiable excuse for not doing so. Failure to visit or to
       support is not excused by another person's conduct unless the conduct actually
       prevents the person with the obligation from performing his or her duty or
       amounts to a significant restraint of or interference with the parent's efforts to
       support or develop a relationship with the child. The parental duty of
       visitation is separate and distinct from the parental duty of support. Thus,
       attempts by others to frustrate or impede a parent's visitation do not provide
       justification for the parent's failure to support the child financially.

               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. Accordingly,
       triers-of-fact must infer intent from the circumstantial evidence, including a
       person's actions or conduct.

Id. at 863–64 (citations and footnotes omitted).

       It is undisputed that Mother did not visit or support the children during the four
consecutive months preceding the filing of the termination petitions on December 13, 2010.
On appeal, however, Mother argues that her failure to do so was not willful. Mother argues
that she failed to visit because she did not have transportation. Mother further argues that
the Princes, who live in Huntsville, Alabama, and the Smiths, who live in Ardmore,
Tennessee, impeded any possible visitation because they would only agree to bring the
children half way to meet her in Columbia, Tennessee.

        We disagree. It is not the duty of the Smiths or the Princes to conduct and arrange
visitation time for Mother. At no time did either of the custodians prevent or interfere with
Mother’s efforts to visit the children. In fact, it was the lack of effort by Mother to visit the
children that eventually led to the initiation of these proceedings. Despite Mother’s claimed
lack of transportation during the relevant four month period, she testified that she was able
to travel to and from hair appointments, doctors’ appointments, and school once a week.
Moreover, Mother testified that she last saw Kimberly in January 2010, and that she last saw
Caydence in December 2009. Based on the record before us, we find no justifiable excuse
for Mother’s failure to visit the children. Therefore, we agree with the trial court’s
determination that Mother’s failure to visit the children was willful.

                                               -7-
         Mother further asserts that her failure to support was not willful because she was
unemployed and was awaiting disability payments during the four months preceding the
filing of the termination petitions. After reviewing the record, we find no support for
Mother’s contentions. Not only did Mother fail to support the children during the relevant
four month period, she failed to provide any support during the entire twenty-one (21)
months in which the children were in the custody of the Smiths and the Princes. Although
Mother earned $1,200 per month during her military service from October 2009 until July
2010, she failed to send any of that money to the Smiths or the Princes to support the
children. While Mother claims that she was unable to pay support for the children during
that time, she admitted that she paid for things she wanted for herself, which included two
tattoos. Also, in August 2010, Mother incurred an obligation to pay tuition when she began
an online degree program. Although Mother testified that she could not work as a result of
her injuries, her testimony contains numerous inconsistencies. For example, Mother stated,
“I mean, I get disability. I mean, I can go to work, but my boss said that I would just have
to sit there and not lift no papers or nothing, just sit there and supervise,” and “I don’t hang
around with anybody anymore. I go to work, and I come home.” When asked by the trial
judge about where she worked, Mother replied, “I work for Prospect, but right now I’m not
working at all.” Mother also admitted that a Veterans Administration officer informed her
that she was able to work. Other than Mother’s inconsistent testimony, the record contains
no evidence to show that she was unable to work. Moreover, in October 2010, Mother
received $594 in unemployment, none of which was used to support the children. In light
of the foregoing, we agree with the trial court’s determination that Mother willfully failed
to support the children. Because only one statutory ground for termination need be
established to uphold a trial court's decision, 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), we
affirm the judgment of the trial court terminating Mother’s parental rights based on the
ground of abandonment.

                                       C. Best Interests

        Finally, we address Mother’s argument that the trial court erred in finding, by clear
and convincing evidence, that termination of her parental rights was in the best interests of
the children. Termination of parental rights is appropriate only if clear and convincing
evidence establishes that eliminating those rights is in the best interests of the children named
in the petition. Tenn. Code Ann. § 36–1–113(c)(2) (2010). Courts consider the following
non-exhaustive list of factors when determining the best interests of the children:

              (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-
               (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;
               (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
       § 36–5–101.

Tenn. Code Ann. § 36–1–113(i)(1)–(9). “Every factor need not be applicable in order for the
trial court to determine that it is in the best interest of the child for a parent’s right[s] to be
terminated.” In re D.C.A., No. M2008–01279–COA–R3–PT, 2009 WL 837877, at *8 (Tenn.
Ct. App. Mar. 30, 2009) (no perm. app. filed). The weight and relevance of these factors
may vary from case to case and it is possible that a single factor is determinative. Id. (citing
In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). In evaluating the issue of best
interests, the court must remember that any conflict between the best interests of a child and
the adult parent “shall always be resolved to favor the rights and the best interests of the
child[.]” Tenn. Code Ann. § 36–1–101(d).

        It is undisputed that Mother failed to provide any support for the children during the
entire twenty-one (21) months in which they were in the custody of the Smiths and the
Princes. It is also undisputed that Mother failed to maintain regular visitation or contact with
the children. In fact, at the time of the termination hearing, Mother admitted that she had not

                                                -9-
seen either Kimberly or Caydence in more than a year. Clearly no meaningful relationship
has been established given this prolonged absence from the lives of the children. Moreover,
two weeks before the termination hearing, Mother was arrested for driving under the
influence of pain medication and reckless endangerment. Although one of Mother’s
children, who is not involved in these proceedings, was in the vehicle at the time of Mother’s
arrest, Mother admitted that she did not inform the child’s custodian about the arrest because
she knew her visitation would be restricted. Most importantly, the Smiths and the Princes
have provided the children with a safe, stable, and loving home, and they intend to adopt the
children at the conclusion of these proceedings. Thus, from our thorough review of the
record, we conclude that the evidence presented clearly and convincingly established that
terminating Mother’s parental rights was in the best interests of the children.

                                      V. Conclusion

        For the foregoing reasons, we reverse the trial court’s order finding persistence of
conditions, and affirm the trial court’s order finding abandonment and that termination of
Mother’s parental rights was in the best interests of the children. This matter is remanded
to the trial court for enforcement of the judgment and the collection of costs. Costs of this
appeal are taxed to the Appellant, Carmenita C., for which execution may issue if necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




                                             -10-
