In Re Brookelyn W. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
February 25, 2015 Session
IN RE BROOKELYN W.
Appeal from the Chancery Court for Shelby County
No. CH121354 Walter L. Evans, Chancellor
No. W2014-00850-COA-R3-PT - Filed March 24, 2015
In this termination of parental rights case, mother and step-father appeal the trial court’s
decision to set aside a decree of adoption entered by default, as well as the trial court’s
subsequent finding that they failed to prove grounds for the termination of biological
father’s parental rights. We affirm the trial court’s decision to set aside the adoption
decree, but reverse the trial court’s determination that mother and step-father failed to
prove grounds for termination. Instead, we conclude that clear and convincing evidence
exists to show that biological father abandoned the child by willfully failing to visit and
support the child. As such, we remand to the trial court for a determination of whether
termination is in the child’s best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in
Part; Reversed in Part; and Remanded
J. S TEVEN S TAFFORD, P.J., W.S., delivered the opinion of the Court, in which A RNOLD B.
G OLDIN, J., and B RANDON O. G IBSON, J., joined.
Bradley C. Ball, Memphis, Tennessee, for the appellants, Joseph C.C. and Shanna R.C.
No brief filed by the appellee, Evan R.W.
OPINION
Background
Petitioner/Appellant Shanna R.C. (“Mother”) and Respondent Evan R.W.
(Father”) had one child together, Brookelyn (“the child”), born in 2007.1 The parties,
who were never married, separated in 2009, and Mother took physical custody of the
child. At that time, the parties did not seek court intervention to determine any visitation
or custody matters. Mother, however, allowed Father to visit the child at the home of the
child’s paternal grandmother until June 2010, when Mother grew concerned for the
child’s safety due to a lack of stability in grandparents’ home.2 From June 2010 until the
filing of the underlying petition in this case, Father had no visitation with the child and
generally paid no support.3
On March 26, 2012, Mother and Father appeared in the Tipton County Chancery
Court at the request of the Tipton County District Attorney General’s office. At this
hearing, the Tipton County Juvenile Court entered an agreed order requiring Father to
place the child on his health insurance policy. The Tipton County Chancery Court order
indicated that it provided only for the medical insurance of the child, and that any further
support requirements would be determined by the parties outside of court. On July 10,
2012, Father filed a Petition to Establish Parentage and Visitation with the child in the
Tipton County Juvenile Court. The petition asked the court to establish a visitation
schedule and set child support.
Mother subsequently married Petitioner/Appellant Joseph C.C. (“Step-Father” and
together with Mother, “Petitioners”) on August 26, 2012, and the Petitioners filed a
Petition to Terminate Father’s Parental Rights on August 27, 2012, on the grounds of
abandonment by willful failure to visit and/or willful failure to support.4 The petition
asked that Step-Father be permitted to adopt the child. Father was undisputedly served
and appeared before the trial court, where he was informed that he had thirty days to
obtain an attorney. Father, however, failed to respond to the petition, and a default
judgment was entered against Father. Father subsequently filed an answer to the petition
on December 31, 2012, and a voluntary acknowledgment of paternity on January 7, 2013.
The trial court nevertheless entered an order granting Petitioners’ request for termination
and adoption on January 7, 2013.
1
This Court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last names of the parties.
2
Specifically, paternal grandmother expressed to Mother her fear that her husband was “giving her
prescription drugs and raping her.”
3
Father asserted that he paid approximately $200.00 in support for the child at some point in 2010;
however, the record is unclear as to whether this alleged payment occurred before or after the visits
between Father and the child ended.
4
The petition also alleged abandonment by failure to timely establish paternity. This ground was later
abandoned, however, and is not at issue on appeal.
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On January 11, 2013, Father, represented by different counsel, filed a motion to set
aside the final decree. Father asserted that his delay in responding to the termination
petition was due to confusion with his previous attorney. Father also submitted an
affidavit denying that he had willfully failed to visit and/or support the child. The trial
court eventually granted Father’s request to set aside the termination and adoption decree
on September 10, 2013. The child was appointed a Guardian Ad Litem, and the parties
proceeded to discovery. Thereafter, Father also filed a motion to be allowed some
visitation with the child.
Prior to trial, Father filed a Statement of Admissions in the trial court, in which he
generally admitted to his lack of visitation, his failure to even attempt visitation, his
criminal record, and the fact that he was aware of Mother’s address. The trial court held a
trial on Petitioners’ termination petition on February 27, 2014. Petitioners and their
witnesses generally testified that Father made no attempt to visit or support the child
during the four months before the filing of the petition, or at any time after June 2010. In
addition, the witnesses testified that the child does not know Father and that she is in a
happy and stable home with Petitioners.
As can be expected, much of the testimony concerned the circumstances
surrounding Father’s alleged failure to visit and support the child. Mother testified that
she left Father because of his violence and alcoholism, which caused her to question both
her own and the child’s safety when around Father. Mother testified, however, that
despite her concerns, Father still had regular visitation with the child in the months after
the parties’ separation. Indeed, after the parties’ separation, it was undisputed that Mother
regularly drove the child from Shelby County to paternal grandmother’s home in Tipton
County, where Father was permitted to visit with the child. Once Mother grew concerned
about the lack of stability in paternal grandmother’s home, however, Mother stopped
taking the child to the home of paternal grandmother. Mother testified that she never
denied any request by Father to visit the child after the child’s visits to paternal
grandmother were terminated;5 instead, Father simply never requested visitation with the
child or inquired about the child in any way until the filing of his visitation petition in
July 2012. Mother submitted phone records to show that Father had not called Mother
during the months preceding the filing of the termination petition.
Mother admitted, however, that an incident occurred in January 2011, which
caused Mother to obtain an ex parte order of protection against Father on January 5,
5
After the termination petition was filed, Father’s attorney communicated several requests that Father be
allowed visitation with the child. Mother did not dispute that she opposed this visitation, as she believed
that it would be traumatic for the child to learn that Step-Father was not her father, given the uncertainty
involved as to whether Father would be in her life once the termination petition was determined.
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2011. Specifically, Mother testified that while she was driving around the area of her
home in Shelby County in January 2011, Father saw Mother in her car on his way to stop
by Mother’s home unannounced. When Father saw Mother driving, he followed her and
honked his horn to get Mother’s attention. Mother then drove to the nearby police station
and Father did not continue to follow her. Mother testified that she was frightened by the
incident due to Father’s history of domestic violence. Father did not deny that this
incident occurred, but characterized it as a friendly visit in an attempt to see the child
while he was in Memphis on other, unrelated, business. Father did not deny that he gave
Mother no notice regarding his intent to come by Mother’s home. The order of protection
was dissolved three months after its issuance, and no other orders were ever entered
preventing Father from having contact with Mother or the child.
Mother further testified Father paid no monetary support for the child since the
parties’ separation. In addition, since at least June 2010, the child received no gifts or in-
kind support of any kind from Father. Mother admitted at trial that she and the child had
moved on from Father, and as such, she did not want support from Father. However,
Mother testified that she never refused to accept any support from Father; instead, none
was ever offered. Mother also testified that Father eventually placed the child on his
health insurance in November 2012, but that she did not receive the child’s insurance card
from Father until January 2013.
At the time of trial, Father was married with two children and had been employed
with Cooper Moving since Fall 2010. Father admitted that in addition to the domestic
violence calls during the parties’ relationship, the police had also been called to his
current home for domestic violence issues. Father further admitted that after the parties’
separation, he continued to call Mother, often drunk and angry. Father stated, however,
that Mother had “instigated” these episodes.
Father admitted that he had no visitation with the child in the four months
preceding the filing of the Petition, although he had a job, a cell phone, and
transportation. While Father placed the blame for the lack of visits on Mother’s refusal to
cooperate with him, Father admitted that he did not contact Mother to arrange visitation at
any time after June 2010, other than his ill-advised trip to Mother’s home. Father testified
that other than his petition for visitation, he did nothing to request visitation in the months
leading up to the filing of the termination petition. Indeed, Father’s own Statement of
Admissions states that he “has not made any attempts to visit with the child since early
2010.” Father indicated that some of this failure was due to Mother’s move from Tipton
County to Shelby County; however, Father admitted in his Statement of Admissions to
the trial court that he was aware of Mother’s address “[s]ince the parties’ divorce.” 6
6
Presumably, by “divorce,” Father means the parties’ separation, as they were never married.
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Father also admitted that he never tried to request visitation by sending a letter to
Mother’s home.
Father characterized Mother’s refusal to allow the child to visit with paternal
grandmother as due to Father’s new romantic relationship; however, Father did not deny
Mother’s allegations regarding the instability in paternal grandmother’s home. Father
finally admitted that during the four months preceding the termination Petition, Mother
did not “do anything to keep [him] from having visitation” with the child.
Father testified that although he worked full-time earning $35,000.00 per year, he
had never provided support for the child after the parties’ separation, other than one
alleged payment in 2010. Father admitted that he had a duty to support his child and that
he earned sufficient income to provide support for the child. When asked what Father’s
excuse for his failure to pay support was, Father indicated that it was his belief that
visitation and support “go hand in hand,” and that he would not send support without
some assurance that he could see his child. Father further admitted that although he was
ordered in March 2012 to provide health insurance for the child, the child was not placed
on Father’s insurance until November 1, 2012, and no health insurance card for the child
was mailed to Mother until January 2013. Father testified that the delay in coverage was
due to a waiting period imposed by the insurance company, and that he was mistakenly
under the impression that the insurance company would send a card to Mother directly.
At the conclusion of trial, the trial court found that Father’s visitation petition
evinced his intent to establish a relationship with the child. Specifically, the trial court
held that by filing the visitation petition, Father “represented his interest and concern for
providing support and providing visitation within the four-month period preceding the
filing of the Petition for Adoption.” The trial court further found that Mother “frustrated
the attempt by [Father] to just visit the child.” As such, the trial court concluded that
Petitioners failed to establish grounds for termination by clear and convincing evidence.
On March 24, 2014, the trial court entered an order, incorporating its oral ruling by
reference. Petitioners appealed. While the appeal was pending, the trial court also entered
an order dismissing Father’s request for visitation.
Issues Presented
Petitioners present three issues, which are taken, and slightly restated, from their
7
brief:
1. Whether the trial court erred in finding that Petitioners
7
Father did not file a brief or otherwise participate in this appeal.
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failed to prove, by clear and convincing evidence, that Father
abandoned the child by failing to visit and failing to pay
support?
2. Whether the trial court erred in finding that Petitioners
failed to prove, by clear and convincing evidence, that
termination is in the child’s best interests?
3. Whether the trial court erred in setting aside the final
decree of adoption following a default judgment against
Father?
Default Judgment
We begin with Petitioners’ argument that the trial court erred in setting aside the
final decree of adoption that was entered due to Father’s default. Rule 55.02 of the
Tennessee Rules of Civil Procedure provides: “For good cause shown the court may set
aside a judgment by default in accordance with Rule 60.02.” Accordingly, Father’s
request to set aside the order of adoption is governed by Rule 60.02 of the Tennessee
Rules of Civil Procedure.8
Rule 60.02 provides, in pertinent part:
On motion and upon such terms as are just, the court may
relieve a party or the party’s legal representative from a final
judgment, order or proceeding for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
8 We note that Rule 60.02 generally applies to requests for relief from final judgments. See Tenn. R. Civ.
P. 60.02 (allowing the court to “relieve a party or the party’s legal representative from a final judgment.”).
In this case, however, the adoption decree was not final because thirty days had not passed since it was
entered. However, Rule 55.02 clearly contemplates that all requests for relief from a default judgment will
be considered under Rule 60.02. Other Courts have similarly applied Rule 60.02 even when the motion
for relief from the default judgment was filed less than thirty days after the judgment was entered. See
State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000); Nortell v. Nortell, No. 01A01-
9208-CV-00315, 1993 WL 1875, at *1–*2 (Tenn. Ct. App. 1993). Furthermore, regardless of whether
Father’s motion is construed under Rule 60.02 or Rule 59.04 ( motion to alter or amend a non-final
judgment), the appropriate standard is an abuse of discretion. See Stovall v. Clarke, 113 S.W.3d 715, 721
(Tenn. 2003).
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(3) the judgment is void; (4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no
longer equitable that a judgment should have prospective
application; or (5) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1) and (2) not more than a
year after judgment, order or proceedings was entered or
taken.
Tenn. R. Civ. P. 60.02.
The procedural history of this case is not in dispute. Petitioners filed their
termination petition on August 27, 2012, one day after their marriage and mere weeks
after Father filed his visitation petition in another county. The summons was served on
Father on September 21, 2012. Accordingly, Rule 12.01 indicated that Father had until
October 21, 2012 to answer the complaint. See Tenn. R. Civ. P. 12.01 (“A defendant shall
serve an answer within 30 days after service of the summons and complaint upon the
defendant.”). Father did not file an answer to the petition by October 21, 2012. Thus, the
Petitioners filed a motion for a default judgment. The record indicates that on November
16, 2012, Father appeared before the trial court, and the trial court allowed Father an
additional thirty days to respond to the petition. When Father did not respond within this
time frame, the trial court entered an order of default on December 18, 2012. Nearly two
weeks later, on December 31, 2012, Father filed an answer to the petition for termination
of his parental rights, by and through a Memphis Area Legal Services attorney. On
January 7, 2013, however, the trial court held a hearing on Petitioners’ petition for
termination of Father’s parental rights. On the same day, the trial court entered an order
terminating Father’s parental rights and granting Step-Father’s request to adopt the child.
A few days later, on January 11, 2013, Father filed a motion to set aside the default
judgment and the final decree of adoption. At this time, Father had retained private
counsel.9 Father attached a sworn affidavit stating that his delay in responding to the
petition was due to confusion as to where he could receive legal assistance. According to
Father, he was first told to consult Memphis Area Legal Services, but they referred him to
Tipton County Legal Services because Father resides in Tipton County. When he
consulted with Tipton County Legal Services, he was informed that they could not assist
him because the termination proceeding was in Shelby County. Father then returned to
Memphis Area Legal Services and entered into a contract for services on December 13,
2012. Father indicated that he was under the impression that the Memphis Area Legal
9 Father later indicated that his delay in hiring private counsel was “lack of money.”
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Services attorney would file an answer in the termination case; the Memphis Area Legal
Services attorney did file an answer to the petition, but not until December 31, 2012.
Father further alleged that he received no notice of the January 7, 2014 hearing. Finally,
Father alleged that he had a meritorious defense against the allegations in the termination
petition, in that he had neither willfully failed to visit or willfully failed to support the
child.
The trial court ultimately held a hearing on Father’s motion to set aside the default
judgment on May 1, 2013. At the conclusion of the hearing, the trial court made oral
findings of fact and conclusions of law. Specifically, the trial court found that Father’s
delay in filing an answer to the termination was due to “some misunderstanding with the
legal services attorney and/or their representative representing his interests.” Further, the
trial court found that Father had raised possibly meritorious defenses to the termination
petition, in that Father’s visitation petition evidenced his desire to create a relationship
with the child. As such, the trial court ruled that it was appropriate to set aside the default
judgment.
The trial court’s decision to grant or deny a motion to set aside a default judgment
is reviewed under the abuse of discretion standard. State ex rel. Jones v. Looper, 86
S.W.3d 189, 193 (Tenn. Ct. App. 2000). A trial court abuses its discretion when it has
applied an incorrect legal standard or has reached a decision which is against logic or
reasoning that caused an injustice to the party complaining. Johnson v. Richardson, 337
S.W.3d 816, 819 (Tenn. Ct. App. 2010) (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001)). We will not overturn the trial court’s decision merely because reasonable
minds could reach a different conclusion. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001). When considering a motion to set aside an order entered by default, we must
construe Rule 60.02 liberally. Nelson v. Simpson, 826 S.W.2d 483, 484 (Tenn. Ct. App.
1991). As this Court has explained:
In deciding whether to grant a rule 60.02 motion to set aside
the default judgment, courts consider three criteria: 1)
whether the default was willful; 2) whether the defendant has
asserted a meritorious defense; 3) the amount of prejudice
which may result to the non-defaulting party. [Tenn. Dep’t of
Human Serv. v. Barbee, 689 S.W.2d 863, 866 (Tenn.1985).]
If there is any reasonable doubt about whether the judgment
should be set aside, the court should grant relief. Nelson v.
Simpson, 826 S.W.2d 483, 486 (Tenn. Ct. App. 1991).
Reynolds v. Battles, 108 S.W.3d 249, 252 (Tenn. Ct. App. 2003). Further, Rule 60.02
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contains an express requirement that a motion under this rule, depending on the ground
asserted for relief, must be sought either within one year, or within a reasonable time. See
Tenn. R. Civ. P. 60.02.
Here, the trial court appears to have found that Father’s delay was not willful
because it was due to a misunderstanding regarding his representation. When the
resolution of an issue in a case depends on the truthfulness of witnesses, the trial judge
who has had the opportunity to observe the witnesses and their manner and demeanor
while testifying is in a far better position than this Court to decide those issues. See
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); McCaleb v. Saturn
Corp., 910 S.W.2d 412, 415 (Tenn. 1995). “The weight, faith, and credit to be given to
any witness’s testimony lies in the first instance with the trier of fact, and the
credibility accorded will be given great weight by the appellate court.” Mach. Sales Co.,
Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn. Ct. App. 2002)
(emphasis added). Here, the trial court specifically credited Father’s explanation for the
delay in responding. Because this issue hinges on the trial court’s assessment of Father’s
credibility, we cannot conclude that the trial court abused its discretion in crediting
Father’s explanation.
The trial court also found that Father had put forth a meritorious defense in that he
had presented his sworn affidavit that he had made an effort to visit and support the child
in the four-month period preceding the filing of the termination petition and that any
failure on his part was not willful. As explained by this Court in a similar case wherein
the defendants sought to set aside a default judgment: “The [d]efendants are correct in
their assertion that they were not required to prove their defense, but they were required
to assert a meritorious defense, namely a defense that at least had the potential of
succeeding at trial.” State of Franklin Bank v. Riggs, No. E2010-01505-COA-R3-CV,
2011 WL 5090888 (Tenn. Ct. App. Oct. 27, 2011) (requiring the defendants to submit
some evidence in support of their meritorious defense). Thus, Father was merely required
to submit some evidence of a defense that had the potential to succeed at trial. Here,
Father submitted sworn testimony indicating that he did not willfully fail to visit or
support the child. Under these circumstances, we conclude that the trial court did not err
in determining that Father properly asserted a meritorious defense.
Finally, we consider the prejudice to the Petitioners that would result from setting
aside the trial court’s judgment. Petitioners alleged in their response to Father’s motion to
set aside the default judgment that prejudice would result if Father “was allowed to ignore
the legal process until termination and adoption was granted, and then finally offer his
legal argument, however void of substance.” As previously discussed, however, Father
did assert a sufficient meritorious defense to the termination proceeding. In addition, he
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filed his answer to the termination complaint prior to the entry of any order granting the
adoption. Accordingly, Petitioners at least had some notice that Father intended to dispute
the termination proceeding. Moreover, a request to terminate a parent’s right to a child is
“one of the most difficult [questions] this Court is called upon to address.” Matter of
Sipe, No. 01A01-9704-JV-00185, 1998 WL 95227, at *7 (Tenn. Ct. App. Mar. 6, 1998).
As discussed in detail, infra, terminating a parent’s fundamental parental rights results in
severe consequences to both the child at issue and the parent. See In re Serenity B., No.
M2013-02685-COA-R3-PT, 2014 WL 2168553, at *1 (Tenn. Ct. App. May 21, 2014),
perm. app. denied (Tenn. July 14, 2014). Under these circumstances, we decline to
conclude that the trial court abused its discretion in setting aside the final decree of
adoption in this case.
Termination of Father’s Parental Rights
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 if there is a compelling state
interest. 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 Jacobe M.J., 434
S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 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)). 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. Consequently, both the grounds
for termination and the best interest inquiry 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.
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In light of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review as set forth 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). When the resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying is in a far better position than
this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415
(Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The
weight, faith, and credit to be given to any witness' testimony lies in the first instance
with the trier of fact, and the credibility accorded will be given great weight by the
appellate court. Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
Grounds for Termination
In this case, Petitioners alleged two grounds for termination of Father’s parental
rights: abandonment by willful failure to visit and abandonment by willful failure to
support pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) and Tennessee
Code Annotated Section 36-1-102(1)(A)(i). In pertinent part, Tennessee Code Annotated
Section 36-1-113(g) provides:
(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this
subsection (g). The following grounds are cumulative and
non-exclusive, so that listing conditions, acts or omissions in
one ground does not prevent them from coming within
another ground:
(1) Abandonment by the parent or guardian, as defined in §
36-1-102, has occurred; . . . .
Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part as follows:
(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
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adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate
the parental rights of the a [sic] parent or parents or a 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 a guardian or guardians . . . 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).
In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), this Court discussed
willfulness in the context of termination of parental rights cases:
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 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. In re M.J.B., 140 S.W.3d at 654; see
also Shorter v. Reeves, 72 Ark.App. 71, 32 S.W.3d 758, 760
(2000); In re B.S.R., 965 S.W.2d 444, 449 (Mo. Ct. App.
1998); In re Estate of Teaschenko, 393 Pa.Super. 355, 574
A.2d 649, 652 (1990); In re Adoption of C.C.T., 640 P.2d 73,
76 (Wyo. 1982). . . .
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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 (internal citations and footnotes omitted).
We recognize that the statutory definition of “abandonment” requires us to focus
on the “period of four (4) consecutive months immediately preceding the filing of a
proceeding or pleading to terminate the parental rights[.]” Tenn. Code Ann. § 36-1-
102(1)(A)(i). In the present case, the four-month period for purposes of establishing
abandonment by failure to visit and support is April 25, 2012 until August 26, 2012, the
day before the petition was filed. However, in determining whether a parent’s conduct
was “willful,” it may become necessary in a given case to evaluate events occurring prior
to the start of the four-month period. Thus, events occurring prior to the four-month
period may bear on the “willfulness” of the parent’s conduct during the four-month
period. See In re Alex B.T., No. W2011-00511-COA-R3-PT, 2011 WL 5549757, at *6
(Tenn. Ct. App. Nov. 15, 2011) (“Courts often consider events that occurred prior to the
relevant period to determine if there was interference with the biological parent’s attempts
to visit or support the child[.]”); see also In re Keri C., No. E2010-00381-COA-R3-PT,
2010 WL 4739706, at *16 (Tenn. Ct. App. Nov. 22, 2010) (explaining that the parent’s
conduct prior to the four-month period is “relevant background and context for the
necessarily fact-intensive evaluation” of the parent’s conduct during the four-month
period).
“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). This Court reviews questions of law de novo with no
presumption of correctness. Id.
Willful Failure to Support
We begin with Petitioners’ contention that Father abandoned the child by willfully
failing to support her. See Tenn. Code Ann. § 36-1-102(1)(A)(I). There is no dispute in
this case that Father paid no support to Mother on behalf of the child during the relevant
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time period.10
Further, there is no dispute that during the relevant four-month period, Father
made no effort to send money, gifts, cards, or any other support to Mother for the child.
Finally, there appears to be no dispute that Father was gainfully employed during the
relevant time period, and therefore, was financially capable of providing support for the
child. Indeed, Father unequivocally admitted at trial that he was financially able to
provide support for the child in the four months preceding the termination petition.
Father argued at trial, however, that his failure was not willful for two reasons: (1)
he attempted to pay the child’s insurance during this time, as ordered by the Tipton
County Juvenile Court; and (2) in the Tipton County Juvenile Court, the parties agreed
that Father would not pay monetary child support to Mother. Here, the record shows that
Mother and Father appeared in Tipton County Juvenile Court in March of 2012. At that
time, the parties came to an agreement that Father would be named the legal father of the
child, that Father “owes a duty of support to” the child, and that Father would provide
medical insurance for the child “when available at a reasonable cost” through Father’s
employer. Finally, the order stated that: “This is a Medical Only Order as child support
has been addressed by the parties and is not to be enforced by the State at this time.”
We first reject Father’s argument that he was complying with the Tipton County
Juvenile Court’s order to provide medical coverage to the child during the relevant time
period. Father’s testimony at trial on this issue was weak, at best. First, there is no dispute
that health insurance coverage was available to Father at a reasonable cost from his
employer at the time the Tipton County Juvenile Court order was entered. Father testified
that he immediately complied with the order to provide medical coverage for the child,
but that his insurance instituted a 90-day waiting period on coverage. However, two
documents in the record directly contradict Father’s testimony. First, a document from
Father’s insurance company indicates that coverage was not effective for the child until
November 1, 2012, a total of 221 days after the order was entered requiring Father to
obtain insurance for the child. The document also shows that this insurance was available
to Father as early as January 1, 2011, the date on which his coverage became effective.
Next, the record contains a letter sent to Mother containing the child’s insurance card.
The postage date on this letter indicates that Mother did not receive the child’s insurance
card until January 18, 2013, nearly ten months after Father was ordered to provide
coverage. Father’s only explanation for this substantial delay was that he made every
effort to comply with the Tipton County Juvenile Court’s order and that he assumed that
10 As previously discussed, Father alleged at trial that he paid Mother approximately $200.00 shortly
after the parties’ separation. However, this alleged support occurred prior to the relevant four-month
period at issue in this case.
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the insurance company would send the child a copy of her insurance card. Father
admitted that he only sent Mother the child’s insurance card when he was directed to do
so by his attorney.
The trial court did not make a specific finding as to Father’s attempts to provide
medical insurance for the child. As previously discussed, there is no dispute that Father
provided no support for the child during the relevant four-month period. Accordingly, we
may consider events occurring outside the four-month period in determining whether this
failure was willful. See Alex, 2011 WL 5549757, at *6. From our review of the record,
we conclude that the evidence shows that Father willfully failed to comply with the
Tipton County Juvenile Court’s order to provide insurance coverage for the child. Father
testified that there was a ninety-day delay in coverage after a request to add a person to
his insurance. Mother disputed that was the case, but even crediting Father’s testimony
regarding the 90-day delay, the child should have been covered under Father’s insurance
on June 26, 2012. However, there is no dispute that the child was not covered until over
four months later. Indeed, Father’s testimony regarding his own health insurance
undercuts his testimony regarding the delay. Specifically, Father testified that he began
work at his current employment in Fall 2010. His insurance coverage went into effect on
January 1, 2011. Accordingly, Father’s insurance went into effect, at the latest,
approximately four months after any request for coverage. A four-month delay in the
child’s coverage would have resulted in her obtaining coverage, at the latest, on
approximately September 1, 2012. The child did not receive coverage until two months
later. This evidence tends to show that Father substantially delayed in complying with the
Tipton County Juvenile Court’s order. Further, Father admitted at trial that he received a
copy of the child’s insurance card but failed to send the card to the child’s Mother until
months after coverage became effective. Under these circumstances, although Father did
eventually comply with the Tipton County Juvenile Court’s order to provide health
insurance for the child, his substantially belated effort to do so constitutes, at best, token
support. Tenn. Code Ann. § 36-1-102(1)(B) (defining “token support” as “support, under
the circumstances of an individual case, [that] is not significant considering the parent’s
means”).
Even if we were to conclude that Father did not willfully fail to comply with his
duty to provide the child with medical coverage, this fact does not excuse Father from his
duty to also provide monetary support for the child. As previously discussed, there is no
dispute that Father was financially able to provide support for the child during the
relevant four-month period; indeed, it appears from the record that Father was gainfully
employed and able to provide support for the child as early as Fall 2010, when Father
became employed at his current job. Nevertheless, Father argues that his failure to pay
support was not willful because he was not ordered to do so in the Tipton County Juvenile
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Court order, which he contends is illustrative of Mother’s refusal to accept support. A
very similar factual scenario was recently presented in In re Kiara C., No. E2013-02066-
COA-R3-PT, 2014 WL 2993845 (Tenn. Ct. App. June 30, 2014) (no perm. app. filed). In
Kiara, Father asserted that his failure to support the child was not willful because the
parties had previously been to court and biological father was only ordered to pay for the
child’s medical expenses. Specifically, biological father argued that the prior order
constituted a waiver of support. The Court of Appeals rejected this argument, explaining:
This argument is grounded in a misreading of the
divorce decree, in which the [prior] court reserved rather than
waived the issue of child support. [The] [m]other testified at
trial that she did not waive [biological] [f]ather’s duty to pay
child support. Moreover, whether [biological] [f]ather had
ever been ordered by a court to pay child support or advised
of his duty to do so is irrelevant.
Id. at *8. The Court of Appeals based its conclusion on the well-settled principle
that a parent’s duty to support his or her child exists regardless of an order from a court.
Tennessee Code Annotated Section 36-1-102(1)(H) states that “every parent who is
eighteen (18) years of age or older is presumed to have knowledge of a parent’s legal
obligation to support such parent’s child or children.” Thus, a parent’s obligation to
support his or her child exists regardless of a court order requiring the parent to pay
support. See e.g., In re Shandajha A. G., No. E2012-02579-COA-R3-PT, 2013 WL
3787594 (Tenn. Ct. App. July 17, 2013). As discussed by this Court in State ex rel.
Hayes v. Carter, No. W2005-02136-COA-R3-JV, 2006 WL 2002577 (Tenn. Ct. App.
July 6, 2006):
It is well settled in Tennessee that biological parents
must, as a general matter, support their children until they
reach the age of majority. See T.C.A. § 34-1-102(a), (b)
(2001); Smith v. Gore, 728 S.W.2d 738, 750 (Tenn. 1987).
Their support obligations are joint and several, and the extent
of their obligations depends on their ability to provide support
. . . . 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.
Carter, 2006 WL 2002577, at *2. In this case Father even acknowledged his duty
to support the child in the Juvenile Court order, but made no effort to provide any
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support, monetary or insurance-wise, immediately following the entry of the order. Thus,
the fact that the Tipton County Juvenile Court order did not specifically address support is
not an excuse for Father’s failure to support his child.
At trial, Father and his counsel emphasized that Mother never requested
support from Father. Mother did admit in her testimony that she did not request that
Father pay support for the child because she hoped that both parties could simply move
on with their lives apart. Father asserts that Mother’s refusal to accept support is
evidenced by the Tipton County Juvenile Court order, which does not obligate Father to
pay child support. When assessing the willfulness of a parent’s failure to pay child
support, we have said that the failure of a child’s parents to ask for monetary support may
be considered as “part of the constellation of facts that must be considered to assess
willfulness,” when it is coupled with a “rebuff” of the parent’s inquiry about specific
items that were needed, and the parent’s provision of in-kind support during visits. In re
Kaleb N.F., No. M2012-00881-COA-R3-PT, 2013 WL 1087561, at *23 (Tenn. Ct. App.
Mar. 12, 2013). We disagree, however, with Father’s characterization of the Tipton
County Juvenile Court order. The order states that the parties have addressed monetary
support outside of court. Nothing in the order suggests that the parties agreed that Father
was under no duty to provide monetary support for the child.
Further, Father admitted that other than one payment to Mother at her
request years ago, Father never inquired as to whether Mother needed any items for the
child, never offered Mother any items for the child, and never directly provided any
money, in-kind support, or gifts for the child. Other courts have indicated that a custodial
parent’s failure to seek support from the non-custodial parent is insufficient to excuse a
non-custodial parent’s failure to support a child. See David A. v. Wand T., No. M2013-
01327-COA-R3-PT, 2014 WL 644721, at *8 (Tenn. Ct. App. 2014) (no perm. app. filed);
In re Jacobe M.J., 434 S.W.3d 565 (Tenn. Ct. App. 2013) (discussed in detail, infra).
Indeed, this Court held that failure 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.” In re Audrey S., 182 S.W.3d
838, 864 (Tenn. Ct. App. 2005) (citing In re Adoption of Lybrand, 329 Ark. 163, 946
S.W.2d 946, 950 (1997); In re Serre, 77 Ohio Misc.2d 29, 665 N.E.2d 1185, 1189
(1996); Panter v. Ash, 177 Or.App. 589, 33 P.3d 1028, 1031 (2001)). Here, Father, by his
own admission, made no efforts to provide financial support for the child during the
relevant time period. Consequently, Mother’s statement that she did not want support
from Father is insufficient to excuse Father’s duty to support, as her statement neither
prevented Father from attempting to support the child nor constituted a significant
interference with any non-existent efforts on Father’s behalf.
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In a somewhat similar case, In re Jacobe M.J., 434 S.W.3d 565 (Tenn. Ct. App.
2013), the biological father of the child did not pay support for the child during the
relevant four-month period. Biological father argued that his non-support was excused,
however, because there was no court order requiring him to pay support, the custodian of
the child did not request support, and he was under the impression that a restraining order
prevented him from contacting the child’s custodian. Id. at 569. The Court of Appeals
rejected these arguments, concluding that biological father’s duty to support the child was
not dependent on a court order or request from the child’s custodian and that the
restraining orders at issue contained no provision preventing Father from contacting the
custodian or providing support for the child. Id. at 572. Similarly, here, Father places the
burden on Mother to seek support for the child and points to court orders that he alleges
excuse him from compliance. However, in this case, the order of protection had long
since expired by the time of the relevant four-month period, and the Tipton County
Juvenile Court order contains no provision that relieves Father of his duty to provide for
the child.
Finally, we note that the fact that Father willfully refused to provide support for
the child is expressed through his own testimony. Repeatedly at trial, Father testified to
his belief that he was under no obligation to pay support for the child unless and until he
was given assurances that he could visit the child. Specifically, Father testified that while
he could have mailed a support check to the child, he refused to do so unless he could
“know if [he] was going to be able to see [the child] or not” and that child support and
visitation “[g]o hand in hand.” It is well-settled, however, that: “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.” In re Audrey S., 182 S.W.3d at 864.
Thus, the record shows that Father made an “intentional or voluntary” choice to withhold
support from his child unless and until he was allowed to visit the child. Id. This is the
very definition of willful conduct.
Based on the totality of the evidence, we conclude that Petitioners presented clear
and convincing evidence to establish the ground of abandonment by willful failure to
support the child in the relevant four-month period. Although only one ground for
termination of parental rights must be met, the Tennessee Supreme Court has directed this
Court to review the findings of fact and conclusions of law as to each of the trial court’s
grounds for termination in order to avoid unnecessary remand. See In re Angela E., 303
S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we go on to consider whether the
ground of abandonment by failure to visit was also established in this case.
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Willful Failure to Visit
As previously discussed, another way to prove abandonment is by establishing
“the willful failure, for a period of four (4) consecutive months, to visit or engage in more
than token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). Here, it is undisputed that
Father had no visitation with the child in the four months preceding the filing of
Petitioners’ petition. Father contended at trial, however, that Petitioners cannot prove the
ground of abandonment by willful failure to visit because: (1) Mother had previously
filed an order of protection against Father that prevented him from having contact with
her; and (2) Father filed a petition in the Tipton County Juvenile Court to establish his
paternity and set visitation and support for the child, which he was actively pursuing at
the time of the termination petition. Thus, Father asserted while he was not exercising
visitation with the child, he was pursuing judicial intervention to facilitate his visitation
with the child, somewhat like the situation presented in In re Adoption of A.M.H., 215
S.W.3d 793 (Tenn. 2007).11
We begin first by disposing of Father’s assertion that he was thwarted in his
visitation by Mother’s order of protection. A similar argument was advanced in In re
Kiara C., No. E2013-02066-COA-R3-PT, 2014 WL 2993845 (Tenn. Ct. App. June 30,
2014) (no perm. app. filed). In Kiara, this Court rejected biological father’s argument that
his failure to visit was not willful due to a prior order of the court preventing him from
having visitation with the child. The Court concluded that biological father could have
returned to court at any time to modify the order, but that he chose to not to pursue that
action. According to the Kiara Court: “This Court has often held that when a parent’s
visitation has been suspended by the trial court and the parent has the ability to
demonstrate a change in situation or behavior that would warrant reinstating visitation but
fails to do so, that parent can be found to have willfully failed to visit.” Id. at *6 (citing In
re Elijah B., E2010-00387-COA-R3-PT, 2010 WL 5549229 at *8 (Tenn. Ct. App. Dec.
29, 2010)); see also Tenn. Dep’t of Children’s Servs. v. J.A.H., E2005-00860-COA-R3-
PT, 2005 WL 3543419 at *6 (Tenn. Ct. App. Dec. 28, 2005) (holding that the biological
father’s decision not to submit to testing that was a precondition to further visitation
constituted a “willful decision to discontinue visiting his son”). Further, the Court held
that even though there had previously been an order of protection preventing biological
father from having contact with the child, the order had been dissolved long before the
relevant four-month period, and that biological father’s knowledge of its dissolution was
immaterial. Kiara, 2014 WL 2993845, at *6 (“If . . . as [biological] [f]ather asserts, he
knew that the order of protection had been entered against him, it follows that he at least
11 Father filed no brief in this Court. In order to ensure that Father’s rights are protected, we have
attempted to address any arguments fairly raised in the trial court. We note, however, that Father cited no
specific legal authority in the trial court. Thus, we must rely on our own research in this case.
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knew which court had entered it and certainly could have accessed that court record to
discover the expiration date. [Biological] [f]ather’s failure to do so was voluntary, and his
argument is unavailing in this regard.”). Thus, the Court of Appeals held that clear and
convincing evidence supported a finding that biological father’s failure to visit the child
was willful.
Here, it was undisputed that the order of protection was dissolved in the Spring of
2011, more than a year before the filing of the termination petition. As such, under the
reasoning of Kiara, if Father was aware of the order of protection, he must also be
charged with an awareness of its dissolution. Id. Further, nowhere in his testimony does
Father indicate that his efforts to see the child were chilled by the order of protection;
instead, Father simply made no efforts, as evidenced by his own Statement of
Admissions. Under these circumstances, the dissolved order of protection is no excuse for
Father’s failure to visit his child.
We next consider whether Father’s visitation petition is sufficient to show that he
did not willfully abandon the child, based on the Tennessee Supreme Court’s opinion in
In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007). In re Adoption of A.M.H.
involved a termination of rights petition filed by the guardians of the child against the
child’s biological parents on the ground of abandonment by willful failure to visit. Id. at
796. The biological parents of the child undisputedly exercised no visitation with the
child in the relevant four-month period. Id. at 801–02. However, immediately prior to the
four-month period, custodial parents refused to permit biological parents to take the child
from the guardians’ home for family pictures and the police were called to escort
biological parents off the guardians’ property. Id. at 801. Less than a month later,
biological parents sought judicial intervention to regain physical and legal custody of
their child. A few months later, biological parents filed a petition to regain custody of the
child, and parents were actively litigating that case when the guardians filed their
termination petition. Id. at 802. The Tennessee Supreme Court concluded that these facts
failed to establish willful failure to visit, stating:
Here, we are presented with a situation in which the
parents of [the child] actively pursued legal proceedings to
regain custody of [the child] during the “abandonment”
period but failed to visit for a period of four consecutive
months immediately prior to the filing of a petition for
termination of parental rights. . . .We hold that the evidence in
this case does not support a finding that the parents
intentionally abandoned the [child].
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Id. at 810. The Court further explained its holding, opining:
Th[e] undisputed evidence does not support a finding
that the [biological] parents' failure to visit [the child] was
willful. Where, as here, the [biological] parents’ visits with
their child have resulted in enmity between the parties and
where the [biological] parents redirect their efforts at
maintaining a parent-child relationship to the courts the
evidence does not support a “willful failure to visit” as a
ground for abandonment. Therefore, we hold that there has
been no willful abandonment and reverse the termination of
parental rights.
Id. at 810–11 (footnote omitted). Thus, the Tennessee Supreme Court held that
even where a parent has not visited a child in the relevant four-month period, that fact
alone is insufficient to support a finding of willful failure to visit where visitation has
been thwarted by the other party and the parent is actively pursuing legal proceedings to
regain custody or visitation with the child.
The holding in In re Adoption of A.M.H. has been examined and followed in
subsequent cases, including In re Chelbie F., No. M2006-01889-COA-R3-PT, 2007 WL
1241252 (Tenn. Ct. App. Apr. 27, 2007). In Chelbie, the biological mother and step-
father to a child filed a petition to terminate the parental rights on the ground of
abandonment by failure to visit and/or support the child. The trial court specifically found
that biological father had not visited or attempted to visit the child in the relevant four-
month period, which finding was not disturbed on appeal. Biological father had, however,
filed a petition to establish visitation with the child that had not been resolved as of the
filing of ‘and step-father’s termination petition. Thus, the issue presented was:
“[W]hether a parent who, during the four months immediately preceding the filing of a
petition to terminate his parental rights, is actively pursuing a court order to establish
visitation rights and support obligations has willfully abandoned the child as proscribed in
Tenn. Code Ann. § 36-1-113(g)(1).” Id. at *4.
Specifically, in Chelbie, the evidence showed that biological father had pursued
three separate petitions regarding visitation with the child: one shortly after the birth of
the child, which was resolved without court intervention when the parties agreed to
resume joint parenting; one to modify the previous order to set a visitation schedule,
which was ultimately dismissed when biological father was unable to serve mother with
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process; and a third petition that biological father was actively pursuing when mother and
step-father filed their termination petition. Id. at *1–*2. Indeed, the evidence showed that
mother and step-father only filed their termination petition when the judge presiding over
the visitation case remarked that the visitation case would be “preempted” if mother and
step-father filed a termination petition. Id. at *2. Mother and step-father apparently took
the trial court’s observation to heart and subsequently filed their termination petition,
which caused the visitation petition to be stayed pending the termination petition’s
resolution. Id.
The Court of Appeals concluded that biological father’s actions prior to the filing
of the termination petition indicated that he did not willfully fail to visit the child. The
Chelbie Court cited In re Adoption of A.M.H. as precedent that a parent actively
pursuing legal proceedings may not be found to have willfully failed to visit a child:
The Tennessee Supreme Court has recently addressed
this question in In re Adoption of A.M.H., 215 S.W.3d 793
(Tenn. 2007). In that case, the court concluded that redirection
of “efforts at maintaining a parent-child relationship to the
courts” is inconsistent with a finding of “willful failure to
visit’ as a ground for abandonment.” In re Adoption of
A.M.H., 215 S.W.3d at 810. . . .
There are, to be sure, differences between the facts of
this case and the facts of In re Adoption of A.M.H. The
biological parents in In re Adoption of A.M.H. had attempted
to visit their child just five days before the beginning of the
pivotal four-month period and had been ordered by the police
to leave and to never return again. There is no evidence in the
case before us of recent efforts to visit or acrimonious
confrontations shortly before or during the four-month period.
However, it is undisputed that [mother] did nothing to foster
or encourage visitation by or support from [biological father].
In fact, she conceded that ever since their final visitation in
October 1999, she did not want [biological father] to visit [the
child] and that she did not want to accept any financial
support from him. She had, in her own words, decided to
“move on.” Accordingly, the facts of this case and those of In
re Adoption of A.M.H., are similar in that they involve
circumstances in which the child’s custodians did not favor
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and had not encouraged the development of a relationship
between the biological parent and the child.
The Tennessee Supreme Court’s decision in In re
Adoption of A.M.H. controls the outcome of this case.
[Biological Father] had filed and was pursuing a petition to
establish his visitation rights and support obligations before
the petition to terminate his parental rights was filed. His
pursuit of a judicial remedy is inconsistent with a finding that
he willfully failed to support or visit [the child] during the
four months immediately preceding the filing of the petition.
Chelbie, 2007 WL 1241252, at *6. Thus, the Chelbie Court concluded that biological
father’s action in actively pursuing visitation with the child through the court system
precluded a finding that biological father willfully failed to visit the child.
Recent cases, however, have distinguished both In re Adoption of A.M.H and
Chelbie. For example, in In re Erykah C., No. E2012-02278-COA-R3-PT, 2013 WL
1876011 (Tenn. Ct. App. 2013), the Court of Appeals affirmed the trial court’s finding of
willful failure to visit, even though biological mother had filed a petition to regain
custody of the child in the relevant four-month period. In Erykah, biological mother
alleged that her efforts to visit with the child were rebuffed and that, instead, she was
advised to seek judicial intervention. She subsequently filed a petition to regain custody
within the four months preceding the filing of the termination petition. On appeal,
biological mother argued that there could be no finding that her failure to visit the child
was willful because her petition evidenced that she lacked the intent to abandon her child.
Id. at *5. The Court of Appeals, however, concluded that biological mother was not
actively pursuing her custody case, as she missed a court date simply because it was
raining that day. Id. at *6.
Another recent case distinguished both In re Adoption of A.M.H and Chelbie, In
re Mark A.L., No. M2013-00737-COA-R3PT, 2013 WL 5536801 (Tenn. Ct. App.
2013). In Mark, biological father visited two days during the relevant four-month period
and filed a petition to set visitation and support one month prior to the filing of the
termination petition. Father asserted that based on In re Adoption of A.M.H and Chelbie,
he could not be found to have willfully failed to visit. The Court of Appeals disagreed,
explaining:
[Biological] [f]ather relies on In re Adoption of A.M.H., 215
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S.W.3d 793 (Tenn. 2007) and In re Chelbie F., No. M2006-
01889-COA-R3-PT, 2007 WL 1241252 (Tenn. Ct. App. Apr.
27, 2007). In that case [i.e., In re Adoption of A.M.H.] the
parents were actively pursuing visitation within the courts
during the pertinent four-month period and, importantly, the
parents had continually visited and maintained a relationship
with their child while she was in temporary foster care. In re
Adoption of A.M.H., 215 S.W.3d at 798. The record before us
reveals that [biological] [f]ather did not actively or
continually visit or maintain a relationship with the child at
any time. Thus, Father’s reliance on In re Adoption of
A.M.H. is misplaced.
Moreover, [biological] [f]ather’s reliance on Chelbie
F. is also misplaced. In that case the father failed to support or
visit with his child for approximately seven years. In re
Chelbie F., 2007 WL 1241252 at *1. However, the court
found that despite this failure, the father did not willfully
abandon his child because he had actively sought visitation
rights through the courts for seven years. Id. at *6. In fact, the
father had filed three petitions for visitation over the seven
year period after the mother had concealed the child’s
whereabouts, discouraged his efforts to visit the child, and
spurned his efforts to provide financial support. Id. Moreover,
the mother admitted that she did not want the father to visit
with the child or to provide financial support. Id. For these
reasons, the court found no abandonment. Id. Under the facts
of this case, [m]other never excused payment of child support
nor did she interfere with or deny visitation, a fact clearly
evident from the liberal visitation, including extended trips
granted to [g]randmother. Although there is some testimony
from the witnesses that indicates a lack of communication,
there was no outward denial or refusal to visit. Further, as
noted above, [biological] [f]ather failed to accompany
[g]randmother on her frequent visits. Accordingly,
[biological] [f]ather’s visitation was nothing more than token.
Tenn. Code Ann. § 36-1-102(1)(C).
The trial court found that the petitioners proved by
clear and convincing evidence that [biological] [f]ather failed
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to make any significant effort to visit the child or maintain a
relationship with him. [Biological] [f]ather admitted that, in
the past four years, he has seen the child a mere six to eight
times. Moreover, [biological ][f]ather made only one attempt
to visit the child during the pertinent four-month period. As
the trial court correctly noted, if it were not for
[g]randmother’s efforts, [biological] [f]ather would have had
no contact with child during the past four years.
Mark, 2013 WL 5536801, at *6–*7. Thus, the Mark Court held that In re Adoption of
A.M.H. was inapplicable because biological father was “not actively or continually”
visiting with the child prior to filing of his visitation petition. In addition, the Mark Court
concluded that Chelbie offered no support to Father’s case, as unlike in Chelbie, there
was no evidence that the custodial parent spurned biological father’s efforts to visit or
support the child.
In another case, In re Adoption of Angela E., 402 S.W.3d 636 (Tenn. 2013), the
Tennessee Supreme Court concluded that despite the fact that biological father had filed a
visitation petition in the years preceding the termination petition, biological father could
be found to have willfully failed to visit the child. The record showed that while Father
filed his petition to reinstate his visitation, he took no further action to pursue the matter.
Further, biological father “had no reasonable excuse for failing to pursue the petition to
reinstate visitation during those two years.” The Court concluded that it simply was not a
case where a parent was “actively trying to maintain visitation” unlike In re Adoption of
A.M.H. and Chelbie. Angela, 402 S.W.3d at 642.
Other courts in dealing with similar arguments on the part of biological parents
have characterized the decisions in In re Adoption of A.M.H. and Chelbie as being based
on “circumstances in which the child’s custodians discouraged the biological parents
from visiting the child and were, to some extent, responsible for the parents’ failure to
visit during the pertinent four-month period.” In re Keri C., 384 S.W.3d 731, 752 (Tenn.
Ct. App. 2010); see also In re Kadean T., No. M2013-02684-COA-R3-PT, 2014 WL
5511984, at *3 (Tenn. Ct. App. Oct. 31, 2014) (no perm. app. filed) (citing A.M.H. for
the proposition that a custodial parent may not actively “thwart” the visitation of another
parent); In re Taliah L.B., No. E2012-02102-COA-R3-PT, 2013 WL 1319573, at *9
(Tenn. Ct. App. Apr. 2, 2013) (citing A.M.H., and affirming finding of willful failure to
visit in spite of testimony that biological mother consulted with juvenile court about
regaining custody of the child prior to filing of termination petition, as the limitations
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placed on visitation by custodial parents did not amount to significant interference with
biological mother’s visitation). These courts have concluded that the custodial parents’
actions in In re Adoption of A.M.H. and Chelbie involved some “impediment” to the
biological parent’s visitation. Keri, 384 S.W.3d at 753.
In its ruling, the trial court in this case does not discuss the testimony of the
parties, but appears to base its decision solely on the fact that Father filed his petition to
set visitation within the relevant four-month period, which the trial court concluded was
evidence that he did not intend to abandon his child. As previously discussed, however,
intent may be determined by the sum of a party’s actions and conduct. In re Audrey S.,
182 S.W.3d at 864. Accordingly, we will consider the testimony of the parties, as well as
Father’s petition.
From our review of the record, the facts in this case are distinguishable from both
In re Adoption of A.M.H. and Chelbie. First, there is no evidence in this case that Father
was thwarted in any effort to visit the child by Mother. In re Adoption of A.M.H., 215
S.W.3d at 798. Here, Father admitted that other than one ill-advised drive-by to Mother’s
home, he made no attempts to see the child after Mother stopped taking the child to
paternal grandparents’ home in Tipton County. Indeed, the record shows that even those
few visits that Father did have with the child after the party’s separation were completely
facilitated by Mother, who drove the child to Father. Simply put, nothing in the record
indicates that prior to the filing of his visitation petition did Father ever take any
affirmative action to visit with child. Thus, there can be no finding that Mother thwarted
Father’s non-existent efforts. See In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App.
2005) (holding that the only excuse for failure to visit is a significant interference with a
parent’s efforts to maintain a relationship with the child).
Instead, Father placed all the onus to schedule and facilitate visitation on Mother
and even Step-Father. Repeatedly at trial, Father’s counsel emphasized that Mother made
no effort to seek out Father to have visitation with the child. The situation in this case is
highly analogous to this Court’s recent Opinion in Mark, where there was no evidence
that the custodial parent placed any impediment on the non-custodial parent’s visitation,
and instead, all visits that did occur were the product of an effort made only by the
custodial parent. Mark, 2013 WL 5536801, at *6–*7. The same is true in this case. While
Mother is not entitled to thwart an effort by Father to have a relationship with the child, it
was certainly not her burden to ensure that Father exercised visitation with the child.
Additionally, unlike in both In re Adoption of A.M.H. and Chelbie, here there was
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no valid excuse for Father’s considerable delay in seeking visitation with the child. As
previously discussed in In re Adoption of A.M.H., parents terminated their visits when
the visits became so acrimonious that police were called. In re Adoption of A.M.H., 215
S.W.3d at 798. Prior to that incident, however, parents exercised liberal and “continual[]”
visitation with the child. After the incident with the police, the parents in In re Adoption
of A.M.H. quickly sought court intervention. Similarly, in Chelbie, biological father was
forced to repeatedly return to court to reestablish his right to visit the child throughout the
child’s life, as the custodial parent spurned biological father’s efforts to maintain a
relationship with the child. In this case, however, Father simply made no effort to
maintain any relationship with the child until the filing of his visitation petition, over two
years since his last visit with the child.
Here, no such excuse exists for Father’s considerable delay in establishing a
relationship with the child. Although Father testified that his finances prevented him
filing a visitation petition earlier, nothing in the record indicates that he was prevented
from simply asking for visitation from Mother. Father admitted that he knew the address
of Mother’s home; indeed, he drove by Mother’s neighborhood hoping to see Mother and
the child in early 2011, far before the termination petition was filed. Moreover, nothing in
the record indicates that Mother denied Father any requested visitation; instead, Father
simply never requested it. Finally, neither Father nor Mother testified that Father
requested visitation with the child when the parties appeared in the Tipton County
Juvenile Court in March 2012. Thus, until he filed his visitation petition, Father’s actions
evinced his intent not to establish a relationship with the child. Under these
circumstances, we must conclude that Father’s visitation petition was merely a token
effort at establishing visitation. See Tenn. Code Ann. § 36-1-102(1)(C) (defining “token
visitation” as “under the circumstances of the individual case, . . . nothing more than
perfunctory visitation or visitation of such an infrequent nature or of such short duration
as to merely establish minimal or insubstantial contact with the child”). Thus, the trial
court erred in finding that Petitioners failed to prove that Father willfully failed to visit
with the child pursuant to Tennessee Code Annotated Section 36-1-102.
Best Interest
In this case, the trial court disposed of Petitioners’ termination petition on the basis
that they failed to prove grounds for the termination. Thus, the trial court did not consider
whether termination was in the child’s best interest. This Court has reversed the trial
court’s findings with regard to the grounds for termination. A finding that grounds exist
for termination, however, is not the end of the inquiry. This Court has observed that
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“before a court in this State can terminate a biological parent’s parental rights, it must
find that doing so is in the best interest of the child.” State, Dept. of Children’s Services
v. Hood, 338 S.W.3d 917, 928 (Tenn. Ct. App. 2009). When a parent has been found to
be unfit upon establishment of a ground for termination of parental rights, then “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. 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). Because the trial court did not reach the issue of whether termination was in the
child’s best interest, this cause must be remanded back to the trial court for a
determination of whether termination of Father’s parental rights is in the best interest of
the child, which must be supported by appropriate findings of fact and conclusions of law.
See In re Adoption of Angela E., 402 S.W.3d 636, 643 (Tenn. 2013) (indicating that the
appropriate procedure when an appellate court reverses a trial court on whether grounds
exist for termination, is to remand to the trial court for a determination of whether
termination is in the child’s best interest).
Conclusion
The judgment of the Shelby County Chancery Court is affirmed in part, reversed in
part, and remanded to the trial court for further proceedings as may be necessary and are
consistent with this Opinion. Costs of this appeal are taxed one-half to Appellants Shanna
R.C. and Joseph C.C., and their surety, and one-half to Appellee, Evan R.W., for all of
which execution may issue if necessary.
J. STEVEN STAFFORD, JUDGE
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