                                                                                                          10/23/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs October 1, 2019

                                     IN RE CHANNING M.

                   Appeal from the Chancery Court for Hawkins County
                    No. 2017-AD-6     Douglas T. Jenkins, Chancellor
                         ___________________________________

                                No. E2019-00504-COA-R3-PT
                           ___________________________________

This is a termination of parental rights case. After the death of the mother, petitioner—
the child’s maternal grandmother—sought to terminate the father’s parental rights on four
grounds: abandonment by failure to support the child; abandonment by failure to support
the mother; abandonment by failure to visit the child; and failure to manifest ability to
take custody of the child. The trial court found that clear and convincing evidence
existed to terminate father’s parental rights only on the ground of abandonment by failure
to support the child. The trial court further found that termination was in the best
interests of the child. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, William S.

Tammy M., Rogersville, Tennessee, Pro se.1


                                               OPINION

                         I. BACKGROUND AND PROCEDURAL HISTORY

       The child at issue in this case, C.M. (the “Child”), was born February 2013 to
Jessie M. (“Mother”) and William S. (“Father”).2 For the first two years of the Child’s

        1
          Appellee Tammy M. did not file a brief or otherwise participate in this appeal.
        2
          In cases involving minor children, it is this Court’s policy to redact names sufficient to protect
the children’s identities.
life, neither Mother nor Father knew with certainty the paternity of the Child; however,
when the Child was about two years old, Mother began reaching out to Father about the
possibility of his being the Child’s father. Father testified that it was during this time—
either late 2015 or early 2016— when he saw a picture of the Child, noticed the
resemblances between the two of them, and began to believe that the Child was his son.
Around the same time, Mother also approached Father’s mother, Vonda S. (“Ms. S.”), in
order to establish a relationship between her and the Child. Mother took the Child to visit
Ms. S. two to three times a week, and, as a result, Father also began to see the Child more
often. According to Father, “we just worked our way into it slowly.”

        Mother, however, was murdered on August 12, 2016. Upon investigation, Ms. S.
became a suspect and was ultimately tried and convicted of Mother’s murder.3
Immediately following Mother’s death, Tammy M., the Child’s maternal grandmother
(“Grandmother”), took custody of the Child.4 On August 17, 2016, Father filed in the
Greene County Juvenile Court (the “juvenile court”) a petition seeking legitimation and
custody of the Child. The juvenile court entered an order on December 7, 2016 in which
it found that, based on the results of paternity testing, Father is the biological father of the
Child. However, pending a further investigation into the facts, the juvenile court ordered
that Grandmother would retain temporary custody of the Child, reserving the matters of
visitation and custody for December 20, 2016. At the December 20, 2016 hearing, the
juvenile court entered an order with the following conditions regarding such matters:

              [T]hat upon the selection of a neutral independent supervisor,
       [Father] may begin supervised visitation with [the Child], to occur at a
       public place that the parties can agree upon. Only the supervisor and
       [Father] will be in attendance at these visits.

              [T]hat [Father] is authorized to communicate with [the Child’s]
       therapist to arrange for therapeutic counseling with [the Child] in an effort
       to better learn about [the Child’s] needs and to assist [the Child] in coping
       with the loss of his Mother.

       On March 1, 2017, Grandmother, as the prospective adoptive parent of the Child,
filed a petition in the Hawkins County Chancery Court (the “trial court”), seeking an
order terminating Father’s parental rights. In the petition, Grandmother alleged four
grounds for termination: (1) abandonment by willful failure to support the Child; (2)
abandonment by failure to visit the Child; (3) failure to manifest the ability to take
custody of the Child; and (4) abandonment by failure to support Mother. A hearing on

       3
          While documentation of Ms. S.’s conviction is not included in the record on appeal, the trial
court noted in its oral findings that all parties assented to this fact.
        4
          Mother and the Child had been living at home with Grandmother and her husband, Mother’s
two sisters, and one of the sister’s three children.
                                                 -2-
Grandmother’s petition was held on October 9, 2018, and, on February 20, 2019, the trial
court entered an order terminating Father’s parental rights. The trial court found that
Grandmother did not present clear and convincing evidence as to the grounds of
abandonment by failure to visit, abandonment by failure to support Mother, and failure to
manifest ability to take custody; however, because Father admitted that he paid no child
support during the relevant statutory period despite his ability to do so, the trial court
found clear and convincing evidence that he willfully failed to support the Child. The
trial court subsequently determined that termination was in the Child’s best interests and
terminated Father’s parental rights. Father timely appealed.

                                   II. ISSUE PRESENTED

        Father raises only one issue on appeal: whether the trial court erred in finding that
it was in the Child’s best interest to terminate his parental rights.

                               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 (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 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 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. 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.

                                            -3-
       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,
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

       On appeal, Father challenges only the trial court’s finding that termination is in the
Child’s best interest; however, this Court must review the trial court’s finding that clear
and convincing evidence exists to support the alleged ground for termination, as well. As
the Tennessee Supreme Court has held previously, “in an appeal from an order
terminating parental rights the Court of Appeals must review the trial court’s findings as
to each ground for termination and as to whether termination is in the child’s best
interests, regardless of whether the parent challenges these findings on appeal.” In re
Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) (citing In re Angela E., 303 S.W.3d
240, 251 n.14 (Tenn. 2010)).

       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 ground, the statute provides that “abandonment”
means:

       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 . . . of the child who is the subject of the petition for termination of
       parental rights or adoption, that the parent . . . [has] willfully failed to
       support or [has] willfully failed to make reasonable payments toward the
       support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i).5 Here, Grandmother filed the termination petition
on March 1, 2017. Accordingly, we look from November 1, 2016 to February 28, 2017
as the relevant statutory period.

       5
            In 2018, the Tennessee General Assembly amended this subsection to remove the element of
willfulness from the definition of abandonment by failure to support or visit. Rather than include
willfulness as an element of the ground, Tennessee Code Annotated section 36-1-102(1) now provides
that it is an affirmative defense:

       For purposes of this subdivision (1), it shall be a defense to abandonment for failure to
       visit or failure to support that a parent or guardian’s failure to visit or support was not
                                                  -4-
       Parents who are eighteen years of age or older are presumed to be aware of their
duty to support their children. See Tenn. Code Ann. § 36-1-102(1)(H). Moreover, “the
obligation to pay support exists even in the absence of a court order to do so.” In re
Michaela V., No. E2013-00500-COA-R3-PT, 2013 WL 6096367, at *8 (Tenn. Ct. App.
Nov. 19, 2013). For purposes of this ground, Tennessee Code Annotated section 36-1-
102(1)(D) defines “willfully failed to support” or “willfully failed to make reasonable
payments toward such child’s support” as “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).6 The statute defines “token support” as support that, “under the circumstances
of the individual case, is insignificant given the parent’s means[.]” Tenn. Code Ann. §
36-1-102(1)(B). “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 636, 640 (Tenn. Ct. App.
2013).

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

               I very much believe what this father told me on the witness stand,
        that he was estranged from the mother for a period of time after the birth of
        the child but that then the mother approached his own mother and they

        willful. The parent or guardian shall bear the burden of proof that the failure to visit or
        support was not willful. Such defense must be established by a preponderance of
        evidence. The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of
        the Tennessee Rules of Civil Procedure[.]

Tenn. Code Ann. § 36-1-102(1)(I). We have previously held that this change will not apply
retroactively. See In re Gabriel B., No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 n.7 (Tenn.
Ct. App. July 23, 2018) (“Because this change is substantive rather than procedural or remedial, however,
the amended statute will not be applied retroactively to this case.”) (citing In re D.A.H., 142 S.W.3d 267,
273 (Tenn. 2004)). Thus, we apply the version of the statute in effect when the case was initiated.
        6
          Again, this statute has since been amended by removing the element of willfulness from the
definition. It now reads as follows:

        For purposes of this subdivision (1), “failed to support” or “failed to make reasonable
        payments toward such child’s support” means the failure, for a period of four (4)
        consecutive months, to provide monetary support or the failure to provide more than
        token payments toward the support of the child. That the parent had only the means or
        ability to make small payments is not a defense to failure to support if no payments were
        made during the relevant four-month period[.]

Tenn. Code Ann. § 36-1-102(1)(D). However, as stated in the previous footnote, we apply the version of
the statute at issue when the case was initiated.
                                                   -5-
      started up a relationship, and he either saw a picture of the child or the
      child, and the Court will acknowledge, based on what it’s seen, that the
      child does bear a somewhat striking resemblance to him, and so, common-
      sensically [sic], the Court can see how that would make him think he was
      the father.

              But when he started thinking he was the father, he still did very little,
      I think, beyond – not much beyond token support for that child. But even if
      he had paid guideline support, it would be irrelevant, because the period of
      time that we’re looking at is November the 1st, 2016 to March 1st, 2017,
      and we all know that he paid no support during that period of time.

             He was, as Ms. Fairchild pointed out, working, making pretty good
      money. His girlfriend was working, making even more money than he was.
      He didn’t say at any time during this trial that he couldn’t have paid
      support. And he admitted that during the four months that’s relevant he
      paid none.

The trial court’s findings are supported by the record—most notably, Father’s admission
that he did not pay any support for the Child from November 1, 2016 to February 28,
2017. When asked to provide proof of each and every child support payment that he had
made, Father responded that he “does not currently pay child support” but that he had
helped Mother out with certain payments, such as necessary household items, vehicle
maintenance, and transportation. Other than Father’s own testimony, however, there is
scant evidence to support his claim. For example, there is a receipt from Boulevard
Motors with a handwritten note from Mother indicating that Father “gave me $100.00
[to] help with her car.” The receipt, however, also indicates that the payment was made
on June 17, 2016, which is outside the relevant statutory period. Accordingly, Father’s
$100.00 payment to Mother for help with her car is irrelevant for our review.
Additionally, a set of receipts from Walmart includes a handwritten note from Mother
indicating that Father made an additional $100.00 payment to Mother because the Child
was going to Dollywood. However, the only date provided indicates that such payment
was made on April 29, 2016—again, outside the relevant statutory period. While these
payments—if made during the relevant statutory period—would be considered nothing
more than token support, Father also admitted in his testimony that he had no proof of
any other payments during the relevant statutory period:

      The Court: Other than a hundred dollars here, hundred dollars there, did
      you ever pay regular support?
      ....
      [Father]: Oh, yes, sir.
      The Court: Where’s your proof of that?
      [Father]: (No response.)
                                         -6-
       The Court: Was it cash?
       [Father]: Yes, sir.
       The Court: So you’re testifying under oath to me –
       [Father]: Yes, sir.
       The Court: – that you gave [Mother] $50 or some –
       [Father]: Well, I – she would – I would never give her $50. She would
       never ask me for that. When she would – She would never ask me directly
       for money. She would go through my mother or her – Brittany, and I
       would take it to my mother’s car, and she would go by there and get it.
       The Court: Okay.
       [Father]: And I – I had text messages –
       The Court: But you don’t have any proof, then –
       [Father]: No, sir.

Further, and most significantly, when asked the date and amount of his last child support
payment, Father responded August 12, 2016—outside of the relevant statutory period.

        The record also reflects that Father acted willfully and had no justified reason for
failing to provide child support. 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 re Preston L., No. M2016-02338-COA-R3-PT, 2017 WL 4315356, at *5 (Tenn. Ct.
App. Sept. 27, 2017) (emphasis added). Concerning the statutory requirements that a
parent’s failure to support must be willful, this Court has stated that “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.” In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).
Here, Father testified that, at all times during the relevant statutory period, he was
working at a Walmart Distribution Center. Additionally, when pressed by the trial court
as to whether he had money to pay child support, Father admitted that he did.
Accordingly, Father has the “capacity to pay support, did not do so, and had no
justification for not doing so.” In re Preston L., 2017 WL 4315356, at *5. Therefore, we
                                             -7-
find, as did the trial court, that the ground of willful failure to support was proven against
Father by the standard of clear and convincing evidence.

                                    V. BEST INTERESTS

       When at least one ground for termination has been established by clear and
convincing evidence, the court must then consider if termination is in the best interest of
the child. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 1994). Upon
establishment of a ground for termination, the interests of the child and parent diverge,
and the court’s focus shifts to consider the child’s best interest. In re Audrey S., 182
S.W.3d at 877. Tennessee’s parental termination statutes recognize that although a
parent may be unfit, terminating that parent’s rights may not be in the best interest of the
child. Id. As the Tennessee Supreme Court has explained:

       Facts considered in the best interests analysis must be proven by “a
       preponderance of the evidence, not by clear and convincing evidence.” In
       re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
       861). “After making the underlying factual findings, the trial court should
       then consider the combined weight of those facts to determine whether they
       amount to clear and convincing evidence that termination is in the child’s
       best interest[s].” Id.

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).

        The Tennessee Legislature has codified certain factors for the court to consider in
its determination of whether termination is in a child’s best interest. The 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;
       (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
                                             -8-
        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, controlled substances or controlled substance
        analogues 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). In its order terminating Father’s parental rights, the trial
court referenced all nine factors, ultimately finding that six of the nine weighed in favor
of termination.7 Of particular relevance, the trial court referenced Father’s failure to
provide child support, the stability of Grandmother’s home, and the fact that Father has
no relationship with the Child. Specifically, the trial court stated as follows:

               [T]he Court heard only good things about the grandmother’s home.
        It seems to be stable. There’s a grandfather in the home with a good
        relationship with the child, and the aunts are there, and they have a loving
        relationship with the child.
               ....
               [T]he Court does think that the stability and continuity of the home
        that the child is in now are very important for the child. The child is five
        and a half years old. The child at this point enjoys little, if any, or no
        remembrance of the father.

After our review of the record, we agree with the trial court’s findings and conclude that
there is clear and convincing evidence that termination of Father’s parental rights is in the
Child’s best interests.

        The record reflects that, aside from a nine-month period, Mother and the Child
lived at home with her parents. Also in the home were Mother’s two sisters, one of
whom had three children of her own. At trial, Grandmother and one of the sisters
testified that they interact with the Child daily and that the Child has a great relationship
with everyone in the home, especially Grandmother and her husband. Moreover, because
Mother gave birth to the Child when she was seventeen years old and still in high school,

        7
           Of the remaining three factors, the trial court found two to be neutral and one to be inapplicable
to the circumstances of the case.
                                                   -9-
Grandmother assumed many of the childrearing duties in order to help Mother finish
school. The record also reflects that Father has no meaningful relationship with the
Child. At trial, Father testified as follows:

       Q: Do you recall when [Grandmother] said – I asked her the question if [the
       Child] would walk in the front doors right now, would he recognize you?
       And her answer was no. Do you agree or disagree with that?
       ....
       A: I don’t know if he would now or not.
       Q: But you think it’s a possibility he wouldn’t recognize you?
       A: Yes, sir, I think.
       Q: Because it’s been, what, two – it’s been over two years since you’ve
       seen him; correct?
       A: Yes, sir.
       Q: Okay, so you don’t have any current bond with the child, meaning a
       father-son bond?
       A: No, sir.

Father has not seen the Child since Mother’s death on August 12, 2016. While Father’s
lack of visitation can be attributed in some measure to an apparent mutual acrimony
between him and Grandmother, the record does not support Father’s contention that he
was “denied visitation.” As noted previously, the juvenile court’s December 20, 2016
order provided that, upon the selection of a neutral independent supervisor, “[Father] may
begin supervised visitation with [the Child], to occur at a public place that the parties can
agree upon.” Father and Grandmother, however, both admitted at trial that they would
not agree to the other’s proposed supervisors.8 Yet, while this Court recognizes both
parties’ unwillingness to observe the juvenile court’s order, Father nevertheless provided
the following testimony:

       Q: You could have agreed to the supervisors that she suggested; correct?
       A: When they accused us of murder, no. I will not. That’s your answer.
       No.
       Q: Do you know who was on her list of suggested supervisors?
       A: No ma’am; can’t recall.
       Q: So you don’t even know who was on their list?
       A: Probably her, her sister.
       Q: You don’t even know who was on her list of potential supervisors, but
       you wouldn’t agree to let any of them supervise your visitation?
       ....


       8
        Father testified as follows: “She wouldn’t meet my people, and I wouldn’t meet hers.”
Grandmother’s testimony echoed Father’s: “He wouldn’t agree to mine, and I wouldn’t agree to his[.]”
                                              - 10 -
       A: I would not meet with any of them when they accused us of that, none of
       them.

Father’s own testimony indicates that he could have visited with the Child had his desire
to do so outweighed his feelings toward Grandmother and her family. Moreover, the
record reflects that Father never went back to the juvenile court or the trial court to seek
any additional relief regarding his visitation rights. Accordingly, Father’s own
decisions—not Grandmother’s—prevented him from visiting with the Child and from
forming a father-son bond, which, as he admitted, is non-existent. Further, as discussed
in the previous section regarding the ground for termination, Father willfully failed to
provide any support during the relevant statutory period and provided no more than token
support since the time when he began to believe he was the Child’s father. Accordingly,
the evidence in the record on appeal does not preponderate against the trial court’s
findings relative to best interests, and we find, as did the trial court, that the totality of
this evidence amounted to clear and convincing proof that it was in the Child’s best
interests for Father’s parental rights to be terminated.

                                     VI. CONCLUSION

       For the foregoing reasons, we conclude that clear and convincing evidence
supports the termination of Father’s parental rights on the ground of failure to support
and that such termination is in the Child’s best interests.



                                                     _________________________________
                                                     ARNOLD B. GOLDIN, JUDGE




                                            - 11 -
