In Re: The Adoption of Destiny R. D. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 13, 2011 Session
IN RE: THE ADOPTION OF DESTINY R. D.
Appeal from the Chancery Court for Maury County
No. A03710 Stella L. Hargrove, Judge
No. M2011-01153-COA-R3-PT - Filed March 27, 2012
The mother and stepfather of a three year old girl filed a petition to terminate the parental
rights of the child’s father on the ground of abandonment so that the stepfather could adopt
her. After hearing the proof, the trial court dismissed the petition, ruling that the petitioners
had not met their burden of proving by clear and convincing evidence that the father’s
failure to visit the child or his failure to provide child support in the four months preceding
the filing of the petition were willful. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.
Leonard Robert Grefseng, Columbia, Tennessee, for the appellants, J. A. D. and L. N. D.
Ronald G. Freemon, Columbia, Tennessee, for the appellee, D. S. V.
OPINION
I. B ACKGROUND
The child at the center of this case, Destiny R.D., was born out of wedlock in
Columbia, Tennessee in March of 2007. The child’s parents, L.N.D. (“Mother”), and D.S.V.
(“Father”) lived together for about a year and a half. At the time of the child’s birth, they
were living in a trailer owned by Father’s parents. Mother left Father when the child was
about five months old and moved into her parents’ home. She testified that the reason for
the move was that Father was not taking adequate care of the child while Mother was at work
(Mother worked days and Father worked nights) and that the child was not thriving. At some
point, Father moved out of the trailer and into his own parents’ home.
It is undisputed that Father saw the child only sporadically over the next three years,
and that he did not pay any child support. The proof showed that Mother refused Father’s
offers of support, and that she did very little to facilitate any kind of visitation between the
child and Father or his family members. For example, Father’s mother testified that she ran
into Mother several times at a local video store. She asked Mother if “we could see the
child.” Mother said she would bring her over. They waited and waited, but it never
happened. She also testified that Mother’s mother refused to allow Father’s parents to be
present at any of the child’s birthday parties. The proof showed that Mother’s mother did not
like Father or his family and that she tried to deter Father from establishing or maintaining
any kind of relationship with his child.
Mother left her parents’ home in October of 2008, to move in with J.A.D.
(“Stepfather”). They married on September 4, 2010. Shortly thereafter, on October 5, 2010,
Mother1 and Stepfather filed a petition in the Chancery Court of Maury County to terminate
Father’s parental rights and for adoption. The grounds alleged were abandonment by reason
of failure to visit and failure to provide support. Father filed an affidavit of indigency, and
the trial court appointed an attorney to represent his interests.
II. T HE H EARING ON THE T ERMINATION P ETITION
The hearing on the petition was conducted on March 2, 2011. Mother, Father and
Stepfather all testified, as did Father’s mother and father. Mother testified that she had
never received a penny of child support from Father. She acknowledged, however, that she
did not want him to pay any child support. She stated that Father “ . . . verbally told me that
he would provide whatever I needed for my daughter – our daughter. He would provide –
I would call him up – to call him up if I ever needed diapers or whatever.” Mother never
called “because I had a good job to provide my daughter with that stuff.” Father testified that
he had offered support more than once, and that Mother never took him up on the offer.
Father’s mother and father also confirmed Father’s offers and Mother’s refusal.
1
Although Mother has no standing to bring a petition to terminate parental rights, she is a necessary
party to a petition for adoption by her husband. Because the statute governing parties who can petition for
termination of parental rights, Tenn. Code Ann. § 36–1–113(b), does not include a biological parent as a
potential petitioner, Mother had no standing to pursue termination of Father’s parental rights. Osborn v.
Marr, 127 S.W.3d 739–40. Tenn. Code Ann. § 36-5-115(c) provides “that if the spouse of the petitioner is
a legal or biological parent of the child to be adopted, such spouse shall sign the petition as co-petitioner.”
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Mother also testified that her mother and Father’s mother did not get along. 2 She
attributed the difficulties between them to a threat Father’s mother allegedly made to her
mother at the hospital when she was giving birth. She testified that she did not hear the
threat and did not know what it was about. She insisted, however, that her mother had
nothing against Father and that she had told him that he could come to her house at any time
to see the child. Father’s mother testified, however, that on one occasion she heard Mother’s
mother on speaker phone telling Father “Do not come over here or we will call the police.”
The record in this case includes testimony and exhibits related to inconclusive
proceedings between the child’s parents that took place in the Juvenile Court of Maury
County prior to the proceedings in Chancery Court that gave rise to this appeal. Although
they had no legal effect on the chancery court proceedings, they provide some context for the
issues under consideration. One of those documents is a proposed permanent parenting plan
submitted by Mother’s attorney on March 13, 2008. The plan provided that Mother was to
be the child’s primary residential parent, and Father was to exercise supervised visitation
every Sunday from 2:00 p.m. to 6:00 p.m.3
Under the “special provisions” section of the plan was a statement that “The child
shall not be in the presence of [Father’s parents]. If Father has to work past 1:00 a.m. on
Sunday before his visitation, Father shall notify Mother so that Mother can take child to
daycare.” In a letter attached to the parenting plan, Mother’s attorney informed the Juvenile
Court that Mother wanted the child to be kept away from the paternal grandparents because
of their admitted past use of marijuana. Mother testified that Father’s mother was arrested
for using marijuana before Mother and Father started dating. Mother acknowledged under
questioning that she did not know whether Father’s mother still smoked marijuana.
Mother thus apparently anticipated that Father’s visitation would take place in the
home of her own parents, where she was still living at the time the proposed parenting plan
was submitted. The proof indicated, however, that Mother’s mother did not want to allow
Father in her house. The attorney’s letter also stated that Mother would not object if the
court reserved the issue of child support. The plan itself declared that child support was “to
be determined.” The copy of the plan in the record is not signed by either party or by the
2
Mother testified that her biological mother lived in Texas. The woman she referred to as her mother
during trial (and who we also refer to as Mother’s mother) was actually her stepmother, who had never
legally adopted her.
3
There was testimony in the record that Father and Mother had earlier collaborated on a proposed
parenting plan that gave Father more extensive visitation with Destiny, but that Mother’s mother did not
approve of that plan, and that she forced Mother to “do away with it,” and to submit instead the plan that is
found in the record.
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judge. According to the parties, the juvenile court judge signed the plan on December 9,
2009, but for reasons that are unclear from this record, neither party received a copy of the
signed plan. Thus, Father was never informed that the court had granted him any visitation
rights, however limited.
Mother had filed an application for TennCare benefits on behalf of the child at some
point, which led the Maury County District Attorney to file a petition for child support
against Father. Father was not served with the petition until September 30, 2010, just five
days before the filing of the petition to terminate his parental rights. There was therefore no
adjudication of his child support obligation prior to the termination proceedings, and the
District Attorney’s petition appears to be the first demand for child support made to Father.
The proof showed that Father was thirty-five years old at the time of trial and that he
had worked throughout his entire adult life. He held a job at a McDonald’s restaurant and
had worked there continuously for eleven years, except for a four month interval when the
restaurant laid him off. He has two older daughters from earlier relationships. His ten-year
old daughter lives in his parents’ house with him, and he shares legal custody of her with his
mother. The child’s mother pays child support to Father and his mother. Father testified that
he does laundry for the child, prepares her meals, and makes sure she gets on the school bus
on time. He pays his mother for rent and daycare. His other daughter is in the custody of her
mother, but Father testified that he sees her every two or three weeks.
The testimony of Father and his parents indicates that the reason he has to share
custody of the ten year old is because of his mental limitations. Father testified that he has
been diagnosed with a cyst on the right side of his brain. He denied that it interfered with his
mental capacity or his ability to understand things, but he acknowledged that he sometimes
has memory problems that make it hard for him to recall dates or time or people.
A small demonstration of Father’s limitations occurred during his testimony, when he
was asked how long it had been since he saw the child whose parenting is at issue in this
case. He answered “about five years.” Of course, Destiny had just turned four at the time
of trial and Father had seen her a few times after he and Mother separated, including within
the previous eighteen months. Father’s father testified that when Father was adopted, he and
his wife had him tested, which led to the discovery of a tumor in his brain. Surgery was not
recommended because the tumor did not appear to be growing. Father’s father confirmed
that Father had difficulty understanding the passage of time, did not comprehend how long
a month was, and could not plan more than a week ahead at most. He thus found it difficult
to set priorities.
Father’s non-confrontational personality is perhaps equally relevant to our
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understanding of his interactions with Mother and her family as are any specific limitations.
He testified, for example, that when Mother was living with her mother, he would call to
arrange visitation with Destiny, but that he was only able to visit the child once or twice. He
denied that Mother had rejected his attempts to arrange visitation, but he declined to criticize
Mother’s mother, who was apparently the one he usually spoke to.4 He admitted that he did
not know whether Mother’s mother passed his requests for visitation on to Mother. The
following excerpt from Father’s testimony should convey some idea of the strangeness of the
whole situation and Father’s passive response to it:
Q. Did [Mother’s mother] ever threaten you?
A. No, sir.
Q. Did she ever tell you weren’t welcome over there?
A. On the phone she did when she was mad at me, yes.
Q. When she was mad at you?
A. Yes.
Q. What was she mad at you about?
A. Not seeing Destiny.
Q. And how did that conversation go?
A. It went well.
Father’s father also testified that Father frequently expressed the wish to see Destiny,
and that he and his wife had urged Father to take legal action to secure his visitation rights.
Father refused, however, saying that he and Mother had an agreement that neither one would
take the other to court. Father’s father explained that Father always tried to please or appease
others and was reluctant to stand up for his rights. He also described Father as someone who
4
According to Father’s mother, Mother did bring the child to Father’s parents’ house for visitation
several times during that period: “She had to do it behind [her mother]’s back. So she would tell us not to
tell [her mother] that she was over there.” Father’s father testified that Mother came to their house for visits
with the child from time to time until September of 2009. He confirmed his wife’s testimony that Mother
told Father that her mother did not want Father over at her house.
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was easily persuaded by others to do things that were not in his best interest, and he
recounted an incident in which some of Father’s friends had tricked him into hauling water
during a drought from a source that they knew he had no right to access, resulting in Father’s
arrest.
Father was asked if he called Mother after she moved out of her parents’ home. He
said he did not, because he did not know the last name of Mother’s husband-to-be, and thus
could not find the phone number. The proof showed that Mother’s cell phone number did
not change after she moved out of her parents’ home. However, her cell phone service was
cut off after she lost her job in 2009, and it was still inactive at the time of trial. In any case,
Mother testified about one phone conversation with Father that occurred after she moved in
with Stepfather. Father called her parents’ home in November of 2009, and asked to speak
to Mother. As it happened, she was there because her grandmother had passed away two
days earlier, and the funeral had just concluded. Father asked Mother if she could bring the
child to McDonald’s to see him. Mother responded that it was not a good time, because of
the funeral. She did not offer any alternative time, and he did not ask for any other
alternative.
Father, Mother and Stepfather all went to the same church. So Father did get to see
Destiny on Sundays when she was in daycare at the church. But something happened in
January of 2010 to close that window for visitation. The trial court found that “visitation was
stopped after [Mother] requested the minister of the church to intervene.” But the affidavit
of a Sunday School teacher that was attached to Mother’s subsequently-filed motion to alter
or amend stated that the teacher knew of no actions by Mother or Stepfather that would
support that idea. The teacher stated that on two occasions Father came in during the middle
of his class for one to two year old children, and that in the teacher’s opinion this caused a
disturbance in the lesson he was attempting to teach. The teacher denied that he told Father
that he could not visit with the child, but only that he should not come in during class.
Mother was questioned about the child’s relationship with Stepfather. She testified
that he was the only father that the child had ever known, and that there was a strong and
loving bond between them. She denied that she had ever tried to get the child to call
Stepfather “Daddy,” but that the child began doing so spontaneously, and Mother thought it
would not be helpful to correct her. When Stepfather took the stand, he testified that he
considered the child to be his daughter, and he denied that there was any animosity or ill-will
between himself and Father.
After hearing all the testimony, the trial court took the matter under advisement. On
March 29, 2011, the court filed an order that summarized the trial testimony and contained
findings of facts and conclusions of law. The court acknowledged that Father had failed to
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energetically assert his visitation rights, but noted that he had to contend with the hostility
of Mother’s mother as well as with his own mental limitations. The court’s order stated,
“[t]he Court is concerned about the mental capacity of [Father] and his ability to set up
visitation rights with the child, and to follow through on a routine basis without assistance
or guidance,” and further that “[t]he Court is concerned that [Father] has never had a chance
to prove himself in his relationship with the child and finds that he needs a chance to work
with [Mother] outside of interference with the other side.”
The order also stated the court believed the testimony of Father’s father about the
conduct of Mother’s mother. The court noted that Mother’s mother had failed to testify, and
declared that “[t]he Court feels she was an absent material witness.” The court concluded
that the petitioners failed to meet the heightened burden of proof that is required to terminate
parental rights, and it denied the petition to terminate. Mother and Stepfather subsequently
filed a motion to alter or amend, or in the alternative for new trial, which the trial court also
denied. This appeal followed.
III. S TANDARDS F OR T ERMINATION OF P ARENTAL R IGHTS
This appeal involves one of the most serious decisions courts make. “Few
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)). Terminating parental rights has the legal effect of reducing the parent to the role of
a complete stranger, and of “severing forever all legal rights and obligations of the parent or
guardian.” Tenn. Code Ann. § 36-1-113(l)(1).
A parent has a fundamental right, based in both the federal and state constitutions,
to the care, custody and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921
S.W.2d 170, 174-75 (Tenn. 1996); In Re Adoption of a Female Child, 896 S.W.2d 546, 547-
48 (Tenn. 1995). While this right is fundamental, it is not absolute. The state may interfere
with parental rights, through judicial action, in some limited circumstances. Santosky, 455
U.S. at 747; In re Angela E., 303 S.W.3d at 250.
Our legislature has identified 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
the grounds upon which termination proceedings can be brought. Tenn. Code Ann. § 36-1-
113(g). Termination proceedings are statutory, In re Angela E., 308 S.W.3d at 250; Osborn
v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and parental rights may be terminated only
where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct.
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App. 1998).
Persons seeking to terminate another’s parental rights must prove two things.
Tennessee Code Annotated § 36–1–113(c) requires that termination of parental rights must
be based upon: (1) A finding by the court by clear and convincing evidence that the grounds
for termination of parental rights have been established; and (2) that termination of the
parent’s rights is in the best interests of the child.
Both grounds and best interests must be proved by clear and convincing evidence. In
re Angela E., 308 S.W.3d at 250 ; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). This heightened burden of proof is one of the
safeguards required by the fundamental rights involved, Santosky, 455 U.S. at 769, and its
purpose is to minimize the possibility of erroneous decisions that result in an unwarranted
termination of or interference with these rights. In re Bernard T., 319 S.W.3d at 586, 596
(Tenn. 2010); In re Angela E., 303 S.W.3d 240; In re M.W.A., 980 S.W.2d at 622.
Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838,
861 (Tenn. Ct. App.2005), and eliminates any serious or substantial doubt
about the correctness of these factual findings. In re Valentine, 79 S.W.3d at
546; State, Dep’t of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435,
447 (Tenn. Ct. App.2008).
In re Bernard T., 319 S.W.3d at 596.
In contrast to the preponderance of the evidence standard, clear and convincing
evidence should demonstrate that the truth of the facts asserted is “highly probable” as
opposed to merely “more probable” than not. In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct.
App. 2005).
The party seeking termination must establish the existence of only one statutory
ground to support a termination. In re Angela E., 303 S.W.3d at 251; In re Valentine, 79
S.W.3d at 546. Only if at least one ground is established by clear and convincing evidence
does the trial court or the reviewing court conduct a best interests analysis. In re Angela E.,
303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The
best interests analysis is separate from and subsequent to the determination that there is clear
and convincing evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
As we have stated before, existence of a ground does not inexorably lead to the conclusion
that termination of a parent’s rights is in the best interest of the child. In re C.B.W., No.
M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
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Appellate courts review the trial court’s findings of fact in termination proceedings
using the standard of review in Tenn. R.App. P. 13(d). In re Bernard T., 319 S.W.3d at 596;
In re Angela E., 303 S.W.3d at 246. Thus, reviewing courts will review the trial court’s
findings of fact de novo on the record and accord these these findings a presumption of
correctness unless the evidence preponderates otherwise. In the Matter of M.L.P., 281
S.W.3d 387, 393 (Tenn. 2009); In re A.M.H., 215 S.W.3d 793, 809 (Tenn.2007).
In light of the heightened burden of proof in termination proceedings, the reviewing
court must make its own determination as to 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 necessary to terminate a parent’s rights. In re
Bernard T., 319 S.W.3d at 597. A reviewing court must review “the trial court’s ruling that
the facts of [a] case sufficiently support the termination ground. . . ,” a conclusion of law, de
novo with no presumption of correctness. In the Matter of M.L.P., 281 S.W.3d at 393
(quoting In re A.M.H., 215 S.W.3d at 810).
IV. A BANDONMENT
Mother and Stepfather alleged one statutory ground for termination of Father’s
parental rights - that he had abandoned his child. Abandonment has very specific statutory
definitions, and the provision relevant herein defines abandonment as:
For a period of four (4) consecutive months immediately preceding the filing
of a proceeding or pleading to terminate the parental rights of the parent(s) or
guardian(s) of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent(s) or guardian(s) either have
willfully failed to visit or have willfully failed to support or have willfully
failed to make reasonable payments towards the support of the child.
Tenn. Code Ann. § 36-1-102(1)(A)(i).
In the present case, it is undisputed that Father failed to provide support or to visit the
child during the relevant four month period. However, to establish abandonment, the failure
to support or to visit must have been willful. In re Swanson, 2 S.W.3d 180 (Tenn. 1999);
Menard v. Meeks, 29 S.W.3d 870, 874 (Tenn. Ct. App. 2000).
The willfulness of a parent’s conduct depends upon the person’s intent, and such
intent is seldom capable of direct proof. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct.
App. 2005). Thus, intent must often be inferred from circumstantial evidence drawn from the
parent’s actions or conduct. In re R.L.F., 278 S.W.3d 305, 320 (Tenn. Ct. App. 2008). A
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person’s demeanor and credibility as a witness also play an important role in determining
intent, and trial courts are accordingly in the best position to make such determinations. In
re D.L.B., 118 S.W.3d at 360, 367 (Tenn. 2003); In re Z.C.G., M2000-02939-COA-R3-CV,
2001 WL 1262609 at *6 (Tenn. Ct. App. Oct. 22, 2001).
A. Failure to Support
Generally, a person’s failure to support a child is willful when that person is “aware
of his or her duty of support, has the capacity to provide the support, makes no attempt to
provide support, and has no justifiable excuse for not providing support.” In re M.L.D., 182
S.W.3d 890, 896 (Tenn. Ct. App. 2005). The evidence in the present case showed that Father
offered child support to Mother more than once and that she always refused. There are no
indications in the record to suggest that Father’s offer was insincere or that he would not
have paid support if Mother had accepted his offer. Mother stated she turned down Father’s
offers because she could provide what was necessary for her daughter.
A failure to pay child support is generally not considered willful if support has been
offered and refused. Menard v. Meeks, 29 S.W.3d at 874; In re Adoption of W.J.P.,
E2007-01043-COA-R3-PT, 2008 WL 246015 (Tenn. Ct. App. Jan. 30, 2008) (no Tenn. R.
App. P. 11 application filed); In re A.J.H., M2002-01568-COA-R3-JV, 2003 WL 1129817at *3 (Tenn. Ct. App. Mar. 14, 2003) (no Tenn. R. App. P. 11 application filed).
It was Mother and Stepfather’s burden to prove, by clear and convincing evidence,
that Father willfully failed to support the child. Our review of the evidence confirms the trial
court’s implicit conclusion that they failed to carry their burden.
B. Failure to Visit
With regard to visitation, the evidence suggested that Mother’s conduct, and that of
her mother even more so, were calculated to discourage Father from exercising visitation.
The evidence also showed that Father tended to avoid confrontation and did not want to
“make waves.” The trial court itself noted that Father was easily discouraged when faced
with obstacles.5
5
We note that in the case of In re F.R.R., III, 193 S.W.3d 528 (Tenn. 2006), our Supreme Court
affirmed this court’s finding that the father had abandoned his child by failing to visit in the four months
prior to the filing of the petition for termination, even though the father had testified that his reasons were
(continued...)
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Mother acknowledges that when a parent attempts to visit his child but is “thwarted
by the acts of others,” the failure to visit is not willful. In re Adoption of A.M.H., 215 S.W.3d
793, 810 (Tenn. 2007); In Re D.A.H., 142 S.W.3d 267, 277 (Tenn. 2004). She points out,
however, that “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 M.L.P., 281 S.W.3d 387, 393
(Tenn. 2009) (citing In re Audrey S., 182 S.W.3d at 864). She denies that anything she or
her mother did significantly interfered with Father’s ability to visit his child.
As a corollary to that denial, Mother argues that the trial court erred by giving Father’s
mental limitations any weight in its decision. First, she notes that Father has never been
adjudged incompetent, and that he has shown himself capable of holding down a job and
taking care of his older daughter. She concludes that Father’s failure to visit was his
conscious and deliberate choice, and thus has to be considered willful. The evidence
suggests, however, that Father very much wished to enjoy visitation with his child, but that
despite his ability to function normally in some areas of life, the actions of Mother and her
mother significantly constrained his opportunities for visitation, in light of his specific
limitations, as described by his father, and his non-confrontational nature.
The trial court examined the question of Father’s willfulness or lack thereof within
the context of the totality of the circumstances of this case. Those circumstances include
numerous acts and omissions by Mother and by Mother’s mother that had the effect of
limiting or discouraging contact between Father and his child.
Mother also argues that there was no evidence that any specific actions taken by
herself or anyone else during the four months prior to the filing of the petition for termination
of parental rights prevented Father from having contact with the child. She asserts that any
prior obstacles to visitation could not excuse Father’s failure to visit during the relevant time
period, thereby obligating us to conclude that Father’s failure to visit was willful. We find
this argument unpersuasive. Mother would have us construe the abandonment statute too
narrowly by trying to limit the scope of the trial court’s effort to understand parental
intention.
Virtually all termination cases involving abandonment include consideration of events
5
(...continued)
that he did not want to be a “trouble maker” or to “disrupt their lives.” But in that case, unlike in the present
one, the father did not assert that the child’s mother or stepfather or anyone else did anything to prevent him
from visiting. In re F.R.R., III, 193 S.W.3d at 530.
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that occurred prior to the critical four month period, because those events illuminate the
motivations of the parties and the situations they find themselves in during that period. In
the present case, Father and his parents were consistently thwarted in their efforts to see the
child over a period of years, which had the effect of deterring them from making additional
efforts. No gestures were made by Mother or by Mother’s mother prior to the service on
Father of the petition to terminate his parental rights to indicate that their attitudes towards
Father had changed. Father therefore had little opportunity to ask for visitation, and little
reason to believe that if asked for, it would be allowed.
Due to the gravity of their consequences, proceedings to terminate parental rights
require individualized decision making. In re Swanson, 2 S.W.3d at 188. The trial court
herein was called upon to determine, among other things, the willfulness of Father’s failures
or inactions. A witness’s demeanor and credibility play an especially important role in
determining matters of willfulness or intent. In re Adoption of T.A.M.,
M2003-02247-COA-R3-PT, 2004 WL 1085228 at *4 (Tenn. Ct. App. May 12, 2004) (no
Tenn. R. App. P. 11 application filed) (citing In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003)).
Trial courts are able to observe witnesses as they testify, to assess their demeanor, and
to evaluate their credibility. In re M.A.R., 183 S.W.3d 652, 661 (Tenn. Ct. App. 2005). 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 the issues that
depend upon such testimony. In re Arteria H., 326 S.W.3d 167, 176 (Tenn. Ct. App. 2010);
In re Adoption of W.J.P., 2008 WL 246015 at *9.
We have reviewed the record, and our review supports the trial court’s conclusion that
Mother and Stepfather failed to provide proof that eliminated any serious or substantial doubt
about whether Father’s failure to visit was willful.
IV.
Accordingly, we affirm the trial court, and we direct the court, upon Father’s
application, to fashion a visitation schedule that would enable Destiny to become
reacquainted with Father.
The order of the trial court is affirmed. We remand this case to the Chancery Court
of Maury County for further proceedings. Tax the costs on appeal to the appellants, J. A. D.
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and L. N. D.
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PATRICIA J. COTTRELL, JUDGE
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