In Re: Taliah L.B. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 12, 2013
IN RE TALIAH L. B.
Appeal from the Circuit Court for Hamilton County
No. 11A160 Hon. Jacqueline Schulten Bolton, Judge
No. E2012-02102-COA-R3-PT - Filed April 2, 2013
This is a termination of parental rights case in which Custodial Parents sought termination
of Mother’s parental rights to the Child. The trial court granted the termination petition,
finding that Mother willfully failed to support and visit the Child and that termination was
in the best interest of the Child. Mother appeals. We affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.
Tiffany M. Campbell, Chattanooga, Tennessee, for the appellant, Tiffany B.
Michael S. Jennings, Chattanooga, Tennessee, for the appellees, Michael S. B., Jr. and
Rebecca L. B.
Misty L. Harris, Chattanooga, Tennessee, guardian ad litem for the minor, Taliah L. B.
OPINION
I. BACKGROUND
Taliah L. B. (“the Child”) was born out of wedlock on August 25, 2006, to Tiffany
B. (“Mother”) and an unknown father (“Father”). On July 19, 2009, Mother relinquished
custody of the Child to Michael S. B., Jr. and Rebecca L. B. (collectively “Custodial
Parents”). Mother, while pregnant with her second child, agreed to the arrangement
believing that she could return to care for the Child after she completed a Teen Challenge
program in Texas. Mother was unable to complete the program but remained in Texas with
her newborn son, Jamichael B. Custodial Parents filed a petition for legal custody of the
Child. Mother requested a continuance, alleging that she was not financially able to attend
the hearing on the petition for legal custody. The court denied Mother’s request, adjudicated
the Child as dependent and neglected, and awarded legal custody to Custodial Parents on
May 13, 2010. Mother remained in Texas until September 2010, when she moved to
Tennessee, obtained employment, and sporadically visited the Child.
On June 30, 2011, Custodial Parents filed a petition to adopt the Child and to
terminate the parental rights of Mother and Father.1 The ground asserted for termination of
Mother’s rights was abandonment for her willful failure to support the Child. Days later,
Mother filed a petition for custody, alleging that she had maintained steady employment for
six months and was capable of caring for the Child. The juvenile court stayed the custody
proceeding, pending the resolution of the termination petition in circuit court. Prior to the
hearing on the termination petition, Mother was arrested. Mother pled guilty to aggravated
burglary and theft and received concurrent sentences of four years incarceration, suspended
to probation following the service of 120 days in jail. Jamichael B. was placed with
Custodial Parents while Mother was in jail.2
A hearing was held on the termination petition at which several witnesses testified.
Anita Rivers, a licensed clinical social worker, testified that Custodial Parents hired her
through Adoption Consultants, a licensed child-placing agency in Tennessee, to perform a
home study. She approved the home in June 2011 and completed an updated home study in
August 2012. She insisted that the updated study confirmed her original finding, that
placement of the Child with Custodial Parents was appropriate.
Ms. Rivers testified that Custodial Parents also sought her counseling services for the
Child. She met with the Child on four occasions, starting in December 2011 and ending in
February 2012. She recalled that Custodial Parents sought her services because they were
concerned that the Child may have been adversely affected by Jamichael B.’s arrival and then
absence from their home. She claimed that the Child had established a sibling relationship
with Custodial Parents’ biological daughter, Ivy B., but simply believed that Jamichael B.
was her cousin. She stated that the Child viewed Custodial Parents as her parents and did not
have an attachment to Mother even though Mother was her biological parent. She believed
that removing the Child from Custodial Parents would be “extremely detrimental.” She
stated that the Child suffered from attention deficit hyperactivity disorder and would
1
Father’s parental rights are not at issue in this appeal because he was never identified.
2
At some point, Custodial Parents returned Jamichael B. to the Tennessee Department of Children’s Services.
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experience symptoms later in life that would require one-on-one attention and “a lot of”
interaction with the school system. She believed that Custodial Parents were capable of
ensuring that the Child received the assistance that was necessary to cope with her condition.
Michael S. B., Jr. (“Husband”) testified that he had a Bachelor’s Degree in Biology,
a Master’s Degree in Divinity, and had completed all but his dissertation for a doctoral
degree. He was employed by Creative Consulting Services as a support coordinator.
Relative to the Child, Husband stated that a minister in Cleveland, Tennessee contacted him
in July 2009 about the Child. He recalled that the Child, who was three years old, needed a
temporary place to live while Mother attended a program for drug addiction. He related that
the Child had resided in his home since their first meeting in 2009 and that the Child was
now almost six years old. He stated that at the initial meeting, he and Rebecca L. B. (“Wife”)
were not given legal custody of the Child. He insisted that they never planned to adopt the
Child because they believed that Mother would retrieve the Child.
Husband admitted that he and Wife sought legal custody because they were concerned
about their ability to make decisions regarding the Child while Mother was in Texas. He
insisted that Mother advised them that she wanted them to obtain legal custody but simply
never returned the proper paperwork. He related that once they sought legal custody, they
learned that Mother had been investigated by the Tennessee Department of Children’s
Services (“TDCS”).
Husband testified that Mother advised them in February 2010 that she was no longer
participating in Teen Challenge but had stayed in Texas. He related that they had “sporadic”
contact with Mother, who had obtained employment and was living with someone. He
claimed that she asked them if they would “continue keeping” the Child. He stated that they
discussed the option of adopting the Child and that Mother agreed and then changed her
mind. Mother finally returned to Tennessee in September 2010, and they continued
discussing the adoption option. He stated that they had come to somewhat of an agreement
and completed a home study before Mother changed her mind again shortly before they filed
the termination petition.
Husband testified that Mother never offered any type of monetary support for the
Child. He related that they did not expect child support while she attended the rehabilitation
program in Texas but that when they learned she quit the program and was employed, they
would have accepted monetary support. He conceded that they never actively sought child
support by filing a formal request with the court or by asking Mother for child support.
Husband stated that from September 2010 until June 2011, they scheduled visitation
appointments with Mother. He recalled that one time, Mother became upset with the Child
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when the Child called her by name. He claimed that Mother told the Child that she was her
“mommy” and that Mother’s assertion confused the Child. They gave Mother money to
spend while visiting with the Child, and they loaned her their car seat to transport the Child.
He related that one time, Mother brought food to the house for them to prepare during the
visit. He claimed that at times, Mother never arrived for her scheduled visitation.
Husband testified that Mother only made two attempts to schedule visitation in the
four months preceding the filing of the termination petition. He testified that prior to
Mother’s last visit with the Child, the Department of Children’s Services in Texas contacted
them and advised them to prohibit unsupervised visitation. He stated that against his better
judgment, he allowed Mother to visit with the Child unsupervised on Mother’s Day in May
2011. He related that Mother kept the Child beyond the agreed upon time and that after the
visit, they advised her that she would no longer be allowed to visit the Child without
supervision. He admitted that when Mother subsequently requested to take the Child to her
family’s house without their supervision, they advised her to contact their attorney about
future visitation. He also admitted that they did not respond to Mother’s “numerous text”
messages after they advised her to contact their attorney about visitation.
Husband conceded that he and Wife had moved and did not inform Mother of their
new address. He explained that the move occurred in February 2012, well after the
applicable time period in consideration. He acknowledged that he had also changed his
phone number but asserted that Wife had retained her phone number.
Wife testified that she had a Bachelor’s Degree in Psychology and a Master’s Degree
in Counseling. She worked as a consultant with Vanderbilt University and had a contract
position with TDCS. She explained that she was responsible for assessing children as they
entered state custody and before the child left state custody.
Wife testified that the Child and her biological daughter, Ivy B., were close and
considered themselves as sisters. She related that the Child called her “Momma” or
“Mommy” and called Husband “Daddy.” She claimed that the Child had made “dramatic
improvements” since her first day in their home. She stated,
When [the Child] came into our home, she was [] undisciplined. Some friends
of ours . . . referred to her as feral, like a wild cat, because she was . . . hard to
handle. She had a lot of behaviors. If we [] tried to [] hold her hand when we
were walking in a parking lot from the car to a store, she would try to run off
from us and we would have to . . . catch her, and she would kick and scream.
We would have bruises on our arms just from [] her fits.
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She related that the Child had trouble sleeping and that she often caught the Child
masturbating. She sought counseling for the Child and stated that the Child received
counseling from Victoria Davidson and later from Anita Rivers. She claimed that the Child
no longer appeared undisciplined and was no longer exhibiting sexual behavior.
Wife testified that they never received child support from Mother but acknowledged
that Mother had sent “some gifts” to the Child. She recalled that they received gifts for
Christmas 2009 because Mother registered the Child for Angel Tree. She related that Mother
sent some gifts for Christmas 2010 and that they had received cards for the Child’s birthdays.
She recalled that Mother and Lisa Brown (“Grandmother”) had also brought clothing and
“other necessaries” to the Child a “few times.”
Wife testified that she received a call from the Texas Department of Children’s
Services about Jamichael B. in February or March 2011. She learned that Mother was being
investigated for abuse of Jamichael B. and was advised not to allow Mother to have
unsupervised visitation with the Child because the allegations against Mother “were serious.”
She stated that Jamichael B. was subsequently placed with them when Mother was arrested
in August 2011. She related that Jamichael B. was still in TDCS custody but resided with
another foster family. She claimed that she and the new foster family facilitated visitation
between the Child and Jamichael B.
Wife acknowledged that Mother exercised visitation until May 2011, when they told
her she could no longer visit with the Child without supervision. Mother asked for another
unsupervised visitation after the May 2011 visit. After they informed her that they would
rather supervise her visitation, Mother went “ballistic,” prompting them to inform her to
contact their attorney about future visitation. She claimed that Mother never asked for
visitation again. She insisted that the text messages that she subsequently received from
Mother always contained the same message, “Tell my daughter that her mother loves her.”
Mother denied certifying that she had obtained employment for six months prior to
filing her petition for custody. She explained that she had only obtained employment for
three to four months. She acknowledged that she had pled guilty to driving while her license
was revoked, theft-related offenses, and forgery in 2006. She also acknowledged that she
had been charged with shoplifting, felony theft, aggravated burglary, and violating her
probation in 2011. She explained that she was charged with shoplifting because she stole
diapers from Wal-Mart for Jamichael B and that she never committed aggravated burglary
but simply pled guilty for her ex-boyfriend’s benefit. Lastly, she acknowledged that she had
been charged with drug-related offenses in August 2011. She explained that while the drug-
related offenses were pending, she was attempting to get the charges reduced because her
attorney and probation officer believed that she was capable of rehabilitation.
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Mother conceded that she had never submitted any child support for the Child. She
explained that Custodial Parents advised her that they did not expect her to pay child support
because she was a single mother. She insisted that she had purchased items for the Child and
taken the Child to various restaurants for meals. She acknowledged that while she was living
in Texas, she paid bills, provided for Jamichael B., and paid a car payment.
Mother admitted that she had not answered counsel’s requests for admissions. She
also admitted that she had not allowed the guardian ad litem to inspect her residence because
she had been living with Grandmother, who had told her to find somewhere else to live.
Mother claimed that she decided to attend Teen Challenge in Texas because she loved
the structure that the program provided. She asserted that she never wanted to leave the
Child and that she never believed that she would have to go through the court system to
retain custody of the Child. She believed the agreement was always meant to be temporary.
She stated that while she attended the program, her ability to contact the Child was limited.
She explained that she ultimately left the program because the program was “in the process
of closing down.” She alleged that when she left the program, Custodial Parents informed
her that she could not retrieve the Child because she had failed to complete the program. She
learned of the custody hearing less than a week before the court date and simply could not
afford the plane ticket to travel to the hearing. She insisted that she never intended for
Custodial Parents to have legal custody of the Child. She believed that she could retrieve the
Child whenever she was “stable and ready to take care of” the Child.
Mother stated that Custodial Parents first approached her about adoption in September
2010. She never opened the adoption papers because she was “iffy” about separating from
the Child when she believed she could improve her life. She said that when she returned to
Tennessee, she was “always calling” and “always texting” about scheduling visitation with
the Child. She explained that her visits were not as frequent as she hoped because the Child
was often out of town or Custodial Parents simply could not fit in her visitation to their
schedule for the Child. She contacted the juvenile court “[t]hree to four times” about her
inability to visit with the Child. She asserted that Custodial Parents had refused to respond
to her requests for visitation and had prevented her from maintaining contact with the Child.
She believed that Custodial Parents changed their attitude concerning visitation when she
denied their attempt to adopt the Child.
Mother opined that the Child was “very happy” with her and expressed a desire to live
with her. She related that her relationship with the Child had been “awesome.” She claimed
that while TDCS had investigated her ability to care for the Child, TDCS closed each case
when they observed her with the Child. She acknowledged that she had been addicted to
drugs for approximately seven years and had used drugs during her pregnancy with the Child.
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Mother again acknowledged her recent drug-related charges and explained that she
was attending counseling and planned on attending a drug and alcohol class. She had also
been admitted to Partnership, a social service agency, and had been living there since July
26, 2012. She was attempting to obtain her Graduate Equivalency Diploma, and while she
was not employed, she had applied for several positions. She stated that the Child would be
allowed to live with her at Partnership if she were given custody of the Child.
Grandmother claimed that she was present when Mother relinquished custody to
Custodial Parents, who advised Mother that child support was unnecessary. She testified that
she visited with Mother “[j]ust about every day” but complained that she was unable to see
the Child. She asserted that she had not seen the Child in approximately two and a half years
because Custodial Parents were too busy to schedule visitation with her. She insisted that
she had accompanied Mother on three occasions as they attempted to obtain visitation with
the Child through the juvenile court system. She opined that she did not have any concerns
about Mother’s ability to maintain a relationship with the Child. She denied that she told
Mother she could no longer live with her.
Alissa Hughes, Mother’s case manager at Partnership, testified that she had known
Mother for approximately three weeks. She related that she interacted with Mother on a
“daily basis” and that Mother had requested assistance with housing, education, counseling,
and retaining custody of the Child. She claimed that if Mother retained custody of the Child,
Mother would be allowed to live at Partnership with the Child. She opined that Mother had
been an active participant in her service plan and was able to provide for the Child.
Following the presentation of the above evidence, the trial court terminated Mother’s
parental rights, holding that Mother had abandoned the Child by willfully failing to support
the Child and by willfully failing to visit the Child3 and that termination of Mother’s parental
rights was in the best interest of the Child. Relative to child support, the court found that
Mother never submitted child support even though she was “gainfully employed” and had
“freely admitted” her employment during the requisite time period. Relative to Mother’s
failure to visit, the court found that Mother willfully failed to visit the Child during the
requisite time period and that her effort to visit was inadequate and amounted to no more
than token visitation. This timely appeal followed.
3
Abandonment by failure to visit was not raised as a termination ground against Mother in the petition. The
parties presented evidence on both grounds without objection before the trial court ruled on both grounds.
See Tenn. R. Civ. P. 15.02 (“When issues not raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”).
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II. ISSUES
We consolidate and restate the issues raised on appeal as follows:
A. Whether there was clear and convincing evidence to establish that Mother
abandoned the Child.
B. Whether termination of Mother’s parental rights was in the best interest
of the Child.
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).
While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon
(1) [a] finding by the court by clear and convincing evidence that the grounds
for termination of parental or guardianship rights have been established; and
(2) [t]hat termination of the parent’s or guardian’s rights is in the best interest
[] of the child.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The existence of at least one statutory basis for termination of parental rights will support the
trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct.
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App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.
2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This
evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:
A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
then make its own determination regarding whether the facts, either as found
by the trial court or as supported by a preponderance of the evidence, provide
clear and convincing evidence that supports all the elements of the termination
claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
Appellate courts conduct a de novo review of the trial court’s decisions
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re
Adoption of A.M.H., 215 S.W.3d at 809.
In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).
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IV. DISCUSSION
A.
In terminating Mother’s parental rights based upon the statutory ground of
abandonment, the court considered Mother’s failure to remit support and failure to visit for
the four months preceding June 30, 2011, the filing date of the termination petition. Thus,
the relevant time period was February 28, 2011 to June 30, 2011. A parent’s willful failure
to support the child “means the willful failure, for a period of four (4) consecutive months,
to provide monetary support or the willful failure to provide more than token payments
toward the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D). Token support is
defined as “support, under the circumstances of the individual case, [that] is insignificant
given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). A parent’s willful failure
to visit the child “means 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). Token
visitation is defined as “visitation, under the circumstances of the individual case, [that]
constitutes 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.” Tenn. Code Ann. § 36-1-102(1)(C).
This court has consistently held that the term willfulness as it applies to a party’s
failure to support or failure to visit must contain the element of intent. In re Swanson, 2
S.W.3d 180, 188-89 (Tenn. 1999). The element of intent utilized in termination proceedings
“does not require the same standard of culpability as is required by the penal code.” Audrey
S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures to act that are intentional
or voluntary rather than accidental or inadvertent.” Id. “[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.”
Id. at 863-64. Additionally, “‘[f]ailure to support a child is ‘willful’ when a person is aware
of his or her duty to support, has the capacity to provide the support, makes no attempt to
provide the support, and has no justifiable excuse for not providing the support.’” In re
M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005) (quoting In re Adoption of T.A.M., No.
M2003-02247-COA-R3-PT, 2004 WL 1085228, at *4 (Tenn. Ct. App. May 12, 2004)).
1.
Mother concedes that she failed to submit child support during the relevant time
period but asserts that her failure to remit support was not willful. She argues that Custodial
Parents advised her not to submit support and would likely have rejected any offer of support.
Custodial Parents respond that Mother maintained steady employment for a significant period
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of time prior to the filing of the termination petition but never remitted any amount of child
support during the relevant time period.
“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.” Tenn.
Code Ann. § 36-1-102(1)(H). Mother was born on August 8, 1992; therefore, she was 18
years of age or older during the requisite time period and was presumed to have knowledge
of her legal obligation to support the Child. Tenn. Code Ann. § 36-1-102(1)(H). This was
not a case where a parent had numerous expenses but faithfully provided support when he
or she was able. See In re Dylan H., No. E2010-01953-COA-R3-PT, 2011 WL 6310465, at
*7 (Tenn. Ct. App. Dec. 16, 2011) (reversing the trial court’s termination decision because
mother was simply unable to fulfill her child support obligation during the relevant time
period). In this case, Mother never paid child support and only provided sporadic gifts
during the entirety of the Child’s stay with Custodial Parents. Mother admitted that she was
gainfully employed for at least three or four months prior to the filing of the termination
petition. Mother claims that she believed that her arrangement with Custodial Parents was
to be temporary in nature and that she did not need to submit child support. The agreement
Mother relied upon clearly changed when Custodial Parents obtained legal custody of the
Child in 2010 and subsequently broached the subject of adoption with Mother. However, she
never offered to support the Child or evidenced an intent to retrieve her after she returned to
Tennessee. Accordingly, we conclude that there was clear and convincing evidence to
establish that Mother abandoned the Child by willfully failing to remit child support during
the relevant time period and that a statutory ground existed for termination of Mother’s
parental rights.
2.
Mother concedes that she failed to regularly visit the Child but asserts that her failure
to visit was not willful. She claims that Custodial Parents impeded her ability to visit.
Custodial Parents respond that Mother failed to initiate steps to schedule visitation once the
existing arrangement proved unworkable. They note that prior to their refusal to continue
unsupervised visitation at Mother’s request, Mother only sporadically visited the Child and
often missed scheduled visits.
The Supreme Court has held that “a parent who attempted to visit and maintain
relations with his child, but was thwarted by the acts of others and circumstances beyond his
control, did not willfully abandon his child.” A.M.H., 215 S.W.3d at 810 (citing Swanson,
2 S.W.3d at 189). However, “[a] parent’s failure to visit may be excused by the acts of
another only if those acts actually prevent the parent from visiting the child or constitute a
significant restraint or interference with the parent’s attempts to visit the child.” In re
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M.L.P., 281 S .W.3d 387, 393 (Tenn. 2009) (citation omitted). In A.M.H., the Court was
“presented with a situation in which the parents of [the child] actively pursued legal
proceedings to regain custody [] 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.” 215 S.W.3d at 810.
Unlike the situation presented in A.M.H., Mother visited the Child on two occasions
during the requisite time period and was subsequently offered the option of supervised
visitation when the Mother’s Day visit exceeded the agreed-upon arrangement. Mother
rejected the offer of supervised visitation. When her request for unsupervised visitation was
denied, she did not take any action until after the termination petition had been filed. While
Mother’s ability to visit with the Child was “restrained” in that Custodial Parents refused the
request for continued unsupervised visitation, the limitation did not significantly interfere
with Mother’s ability to visit the Child during the requisite time period. Mother could have
arranged for supervised visitation or sought relief through the court system. Mother and
Grandmother testified that they consulted with the juvenile court on three occasions;
however, the record reflects that Mother filed one petition after the termination petition had
been filed. With these considerations in mind, we conclude that Mother’s two visits during
the requisite time period amounted to nothing more than token visitation because the
visitation was of such an infrequent nature. Tenn. Code Ann. § 36-1-102(1)(C).
Accordingly, we conclude that there was clear and convincing evidence to establish that
Mother willfully failed to visit the Child during the relevant time period. Thus, a second
statutory ground existed for termination of Mother’s parental rights.
B.
Having concluded that there was clear and convincing evidence supporting the
statutory grounds to terminate Mother’s parental rights, we must consider whether
termination of Mother’s parental rights was in the best interest of the Child. In making this
determination, we are guided by the non-exhaustive list of factors provided in Tennessee
Code Annotated section 36-1-113:
(I) In determining whether termination of parental or guardianship rights is in
the best interest of the child . . . the court shall consider, but is 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;
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(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such duration
of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
(4) Whether a meaningful relationship has otherwise been established between
the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or
guardian, has shown brutality, physical, sexual, emotional or psychological
abuse, or neglect toward the child, or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol or controlled substances as may render the parent
or guardian consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to [section]
36-5-101.
Tenn. Code Ann. § 36-1-113(I). “This list is not exhaustive, and the statute does not require
a trial court to find the existence of each enumerated factor before it may conclude that
terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when
the best interest[] of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interest[] of the child, which interests are
hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering
a child’s best interest, the court must take the child’s perspective, rather than the parent’s).
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In this case, a number of the best interest factors weigh against Mother. Mother had
not made the adjustment of circumstances necessary to provide a stable home for the Child.
While Mother’s living situation at Partnership was an improvement, housing the Child with
her would not be in the Child’s best interest when she had only been a participant in the
program for a few weeks. Tenn. Code Ann. § 36-1-113(i)(1). Mother maintained sporadic
visitation with the Child prior to the relevant time period and only visited the Child on two
occasions during the relevant time period. Tenn. Code Ann. § 36-1-113(i)(3). The Child
viewed Custodial Parents as her family and despite Mother’s assertion, did not appear to have
maintained a meaningful relationship with Mother. Tenn. Code Ann. § 36-1-113(i)(4). The
Child presently resides in a safe and stable home and has bonded with Custodial Parents, who
are willing to adopt her. Removing the Child from Custodial Parents and returning her to
Mother, who lived in a shelter at the time of the hearing, would likely traumatize the Child.
Tenn. Code Ann. § 36-1-113(i)(5). There were allegations of abuse against Mother relative
to Jamichael B., who resided in TDCS custody at the time of the hearing. Tenn. Code Ann.
§ 36-1-113(i)(6). Questions remain as to whether the physical environment of Mother’s
potential home would be safe. Mother had only been housed in the Partnership shelter for
a few weeks at the time of the hearing. Likewise, she had a criminal history of felony
convictions and pending drug-related felony charges. Tenn. Code Ann. § 36-1-113(i)(7).
Evidence was not presented specifically relating to Mother’s mental and emotional status;
however, her history of drug addiction and pending drug-related offenses reflect poorly on
her mental status. Tenn. Code Ann. § 36-1-113(i)(8). Mother never submitted child support.
Tenn. Code Ann. § 36-1-113(i)(9).
We believe the above considerations overcome Mother’s recent attempt at
rehabilitation. Mother allowed others to provide for the Child while she refused to put
herself in a position in which she could adequately care for the Child, who had
understandably established an emotional bond with Custodial Parents and Ivy B. With all
of the above considerations in mind, we conclude that there was clear and convincing
evidence to establish that termination of Mother’s parental rights was in the best interest of
the Child. Accordingly, we affirm the decision of the trial court.
V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Tiffany B.
______________________________________
JOHN W. McCLARTY, JUDGE
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