IN RE ELLA H. ( 2021 )

01/13/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 9, 2020 Session
IN RE ELLA H.
Appeal from the Circuit Court for DeKalb County
No. 2018-CV-53 Jonathan L. Young, Judge
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No. M2020-00639-COA-R3-PT
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In this termination of parental rights case, Appellants Mother and Stepfather appeal the
trial court’s finding that termination of Father’s parental rights was not in the Child’s best
interest. Appellee Father appeals the trial court’s finding that he abandoned the Child by
willful failure to visit and willful failure to support. Upon review, we conclude that Father
abandoned the Child by willful failure to visit and support. Because the record supports
the conclusion that termination of Father’s parental rights is in the Child’s best interest, we
reverse the trial court as to this issue, and we remand for entry of an order terminating
Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part, and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,
and CARMA DENNIS MCGEE, JJ., joined.
Amanda G. Crowell and Lindsey W. Johnson, Lebanon, Tennessee, for the appellants,
Natasha F. and Shaee F.1
Mingy Kay Ball, Smithville, Tennessee, for the appellee, Kenneth N.
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names to
protect their identities.
MEMORANDUM OPINION2
I. Background
Natasha F. (“Mother”) is the biological mother of Ella H. (d/o/b/ June 2015) (the
“Child”). When the Child was born, Mother believed Blake H. to be the Child’s father
based on the timeline of her pregnancy, and he signed the birth certificate making him the
putative father. When the Child was a few weeks old, a DNA test revealed that Mr. H. was
not the Child’s biological father.3 Thereafter, Mother realized Kenneth N. (“Father” or
“Appellee”) was the Child’s biological father and contacted him regarding same. For the
first year of the Child’s life, Mother brought the Child to Father’s family farm to visit.
Father’s Aunt, Carla S. (“Aunt Carla”) (who was also Mother’s family friend), occasionally
babysat the Child for Mother and also brought the Child to the family farm to visit a few
times. During this year, Father provided Mother some money for medical bills related to
the Child’s birth. Father also occasionally put money in the Child’s diaper bag, but his
support was never consistent. Father has not provided any form of support since 2015.
Not long after the Child’s birth, Mother began a serious relationship with Shaee F.
(“Stepfather,” and together with Mother “Appellants”), and the two married in October
2016. After Mother began her relationship with Stepfather, she informed Father that he
could continue visits with the Child, but that Mother would not be participating in the visits
anymore. As a result, Father only occasionally contacted Mother requesting visitation with
the Child. The last time Father spoke with Mother regarding visitation was on November
19, 2016. The last time Father saw the Child was in November 2017, when Aunt Carla
brought her to the family farm.
On August 6, 2018, Appellants filed a Petition for Adoption and to Terminate
Parental Rights in the Circuit Court for Dekalb County, Tennessee (“trial court”).
Appellants sought termination of Father’s parental rights on the grounds of: (1)
abandonment by willful failure to visit; (2) abandonment by willful failure to support; and
(3) for all the grounds listed in Tennessee Code Annotated section 36-1-113(g)(9)(A)
concerning putative fathers. The petition also alleged that termination of Father’s parental
rights was in the Child’s best interest. On September 12, 2018, Father filed his answer and
counter-petition, asking the trial court to establish his parentage, make a custody
2
Rule 10 of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason
in any unrelated case.
3
A default judgment was entered against Mr. H., and the termination of his rights is not a subject
of this appeal.
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determination, and grant him visitation with the Child.
On December 5, 2019, the trial court heard Appellants’ petition to terminate
Father’s parental rights, and the following witnesses testified: (1) Mother; (2) Stepfather;
(3) Father; and (4) Aunt Carla. Several exhibits were entered into evidence including text
messages between Mother and Father regarding Father’s visitation with the Child. By
order of December 13, 2019, the trial court found that Father abandoned the Child by
failing to visit and support her.4 While the trial court found grounds for termination, it also
found that terminating Father’s parental rights was not in the Child’s best interest.
Accordingly, the trial court denied the petition to terminate and ordered the parties to
mediation. Mother and Stepfather filed motions to alter or amend and to stay mediation,
which motions the trial court denied on March 26, 2020. Appellants and Appellee appeal.
II. Issues
While Appellants list three issues for review, we perceive that their argument
encompasses one dispositive issue: whether the trial court erred in finding that terminating
Father’s parental rights was not in the Child’s best interest.
In the posture of Appellee, Kenneth N. raises three issues for review as stated in his
brief:
1. Whether the trial court erred when it found clear and convincing evidence that
Father abandoned the Child by failure to visit and failure to support.
2. Whether the trial court erred when it found that Father failed to prove as an
affirmative defense, by a preponderance of the evidence, that his failure to visit was
not willful.
3. Whether the trial court erred when it found that Father failed to prove as an
affirmative defense, by a preponderance of the evidence, that his failure to support
was not willful.
III. Standard of Review
The Tennessee Supreme Court has previously explained that:
4
We note that the trial court only relied on abandonment as a ground for termination and failed to
make any findings or conclusions regarding Appellants’ third ground for termination concerning putative
fathers under Tennessee Code Annotated section 36-1-113(g)(9)(A). Neither party raised this as an issue
on appeal. Accordingly, as a reviewing court, we will only address the grounds relied upon by the trial
court in its order.
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A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois,
405 U.S. 645, 651, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896
S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79
(Tenn. 1993). But parental rights, although fundamental and constitutionally
protected, are not absolute. In re Angela E., 303 S.W.3d at 250. “‘[T]he
[S]tate as parens patriae has a special duty to protect minors . . . .’ Tennessee
law, thus, upholds the [S]tate’s authority as parens patriae when interference
with parenting is necessary to prevent serious harm to a child.” Hawk, 855
S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct.
App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct.
1388, 71 L. Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute, which identifies
“‘situations in which that 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) (citing Tenn. Code Ann. § 36-1-113(g))).
Thus, a party seeking to terminate a parent’s rights must prove: (1) the existence of one of
the statutory grounds; and (2) 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).
Considering the fundamental nature of a parent’s rights and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interest by clear and convincing evidence.
Tenn. Code Ann. § 36-1-113(c); 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 evidence[,]” and “produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the facts sought to be established.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004).
In termination of parental rights cases, appellate courts review a trial court’s factual
findings de novo and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483
S.W.3d at 523-24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re
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M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re A.M.H., 215 S.W.3d 793, 809 (Tenn.
2007)). The Tennessee Supreme Court has explained that:
The trial court’s ruling that the evidence sufficiently supports termination of
parental rights is a conclusion of law, which appellate courts review de novo
with no presumption of correctness. In re M.L.P., 281 S.W.3d at 393(quoting In re [A.M.H.], 215 S.W.3d at 810). Additionally, all other
questions of law in parental termination appeals, as in other appeals, are
reviewed de novo with no presumption of correctness. In re Angela E., 303
S.W.3d at 246.
In re Carrington H., 483 S.W.3d at 524.
IV. Grounds for Termination
The trial court found, by clear and convincing evidence, that Father abandoned the
Child by failure to visit and failure to support. We begin our analysis with a discussion of
the ground of abandonment generally. 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 nonexclusive, 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 adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately preceding
the filing of a . . . petition to terminate the parental rights of the parent
or parents . . . of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent or parents . .
. either have failed to visit or have failed to support or have failed to
make reasonable payments toward the support of the child;
***
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(D) For purposes of this subdivision (1), “failed to support” or “failed to
make reasonable payments toward such child’s support” means the failure,
for a period of four (4) consecutive months, to provide monetary support or
the failure to provide more than token payments toward the support of the
child. That the parent had only the means or ability to make small payments
is not a defense to failure to support if no payments were made during the
relevant four-month period;
(E) For purposes of this subdivision (1), “failed to visit” means the failure,
for a period of four (4) consecutive months, to visit or engage in more than
token visitation. That the parent had only the means or ability to make very
occasional visits is not a defense to failure to visit if no visits were made
during the relevant four-month period;
Tenn. Code Ann. § 36-1-102(1)(A)(i), (1)(D), (1)(E).
Prior to 2018, the statutory definition of abandonment placed the burden of proof
on the petitioner to show that the parent’s failure to visit or failure to support was “willful.”
However, in 2018, the General Assembly amended the statute to shift the burden of proof
to the parent or guardian to show that his or her failure to support or visit was not willful.
For cases filed on or after July 1, 2018, Tennessee Code Annotated section 36-1-102(1)(I)
now provides that:
For purposes of this subdivision (1), it shall be a defense to abandonment for
failure to visit or failure to support that a parent or guardian’s failure to visit
or support was not willful. The parent or guardian shall bear the burden of
proof that the failure to visit or support was not willful. Such defense must
be established by a preponderance of evidence. The absence of willfulness is
an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of Civil
Procedure . . . .
Tenn. Code Ann. § 36-1-102(1)(I). Here, Mother and Stepfather filed their petition on
August 6, 2018; accordingly, Father had the burden to prove, by a preponderance of the
evidence, that his failure to visit or support the Child was not willful.
Concerning willfulness in the context of abandonment for termination of parental
rights purposes, this Court has stated:
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
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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. . . .
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.
In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted). “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 . . . is a
question of law.” In re Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing In re A.M.H.,
215 S.W.3d at 810). As previously discussed, this Court reviews questions of fact de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d); In re Carrington H., 483 S.W.3d at 523-24. We review questions of law
de novo with no presumption of correctness. In re Angela E., 402 S.W.3d at 640 (citing
In re A.M.H., 215 S.W.3d at 810). With the foregoing in mind, we turn to address whether
Father abandoned the Child.
It is undisputed that Father failed to visit or support the Child within the four months
immediately preceding the filing of the petition to terminate his parental rights. By Father’s
own admission at trial, he has not visited the Child since November 2017, and he has not
provided support for the Child since 2015. Therefore, the sole question is whether Father’s
failure to visit or support the Child was willful. From the record, we conclude that it was.
Concerning visitation, the record shows that Father never made a genuine effort to
visit the Child. In 2015, during the first year of the Child’s life, Father relied on Mother
and Aunt Carla to bring the Child to his family farm for visits. After Mother stopped
accompanying the Child on visits, Father took almost no affirmative action to see the Child.
For example, in 2016, Father contacted Mother only sporadically concerning visitation.
There was no pattern to Father’s visitation requests except that they were usually made last
minute and at or near holidays, when the Child’s plans were already settled. Text messages
entered into evidence show that Father texted Mother concerning visitation in May 2016,
around Mother’s Day, and in June 2016, around Father’s Day and the Child’s birthday.
Regarding Father’s Day, it appears Father texted Mother two days before the holiday
asking to see the Child. The record shows that Mother and the Child had plans with
Mother’s family, and the Child was not available to visit with Father. During this text
exchange, Mother explained that she wanted Father to establish a consistent visitation
schedule with the Child, rather than infrequently seeking visitation around the holidays.
Father never replied to this text message.
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After the foregoing text exchange, Father did not contact Mother again concerning
visitation until late November 2016, just before the Thanksgiving holiday. By this time,
Father had not seen the Child in almost a year. Concerning this request for visitation,
Mother testified that she told Father that she and the Child already had holiday plans.
Mother further testified that she was concerned the Child did not know Father and would
be scared to go with him. For this reason, Mother asked Father to wait until the beginning
of the new year to have visitation with the Child. Mother testified that she told Father, “If
you are still adamant [in the new year] and still wanting to [seek visitation], I would love
for us . . . to make a plan.” Mother never heard from Father again. As discussed, supra,
Father’s last visit with the Child was in November 2017, when Aunt Carla brought the
Child to Father’s family farm to visit Father’s family, and Father happened to be there.
Although Father argues that Mother thwarted his visitation efforts, it is clear from
the record that Father’s efforts to visit were at first minimal and eventually ceased entirely.
Mother repeatedly explained to Father that she wanted him to have visitation with the Child
and asked only that he establish a consistent visitation schedule. It is clear, however, that
Father would not commit to this reasonable request, and there is no explanation in the
record as to why Father failed to pursue visitation with the Child despite ample opportunity
to do so. As such, there is sufficient evidence to show that Father’s failure to visit the Child
during the four months preceding the filing of the petition to terminate his parental rights
was due solely to his own unwillingness to pursue the opportunity. Accordingly, we affirm
the trial court’s finding that Appellants met their burden to prove the ground of
abandonment by failure to visit.
Father’s failure to support the Child was also willful. When asked at trial how much
support he had paid, Father’s response was, “I haven’t really. I mean, just here and there,
I would give her some money, but it was just we didn’t speak really. We didn’t see each
other and didn’t talk[,] and it was just kind of up in the air.”5 By his own testimony,
Father’s attempts to support the Child were token at best. Tenn. Code Ann. § 36-1-
102(1)(B) (“‘[T]oken support’ means that the support, under the circumstances of the
individual case, is insignificant given the parent’s means.”). Despite his testimony, Father
argues that Mother prevented him from supporting the Child, arguing that “he tried on
multiple occasions to give Mother money for the support . . . and tried to place [the Child]
on a health insurance policy, all of which Mother refused.” During her testimony, Mother
testified that she refused money from Father on three occasions when he offered her money
he had on hand. Mother explained that she refused Father’s money on these occasions
because she was frustrated with Father’s token payments and general unwillingness and
inability to consistently support the Child. From our review of the testimony, it would be
incorrect to say that Mother thwarted Father’s attempts at support because these attempts
were sporadic and the funds offered were insignificant and made only when Father felt
5
We note that, in 2015, Father provided some support, which Mother applied to medical bills
related to the Child’s birth.
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compelled. A parent’s duty to support his or her child is not a discretionary responsibility.
In Tennessee, it is well settled that every parent is presumed to have knowledge of a
parent’s duty to support his or her minor children regardless of whether a court order to
that effect is in place. Tenn. Code Ann. § 36-1-102(1)(H) (“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[.]”).
Concerning the Child’s coverage under Father’s health insurance policy, the record
shows that it was not Father who took the initiative to add the Child as an insured. When
asked whether he had anything to do with putting the Child on his policy, Father testified,
“I don’t recall.” Indeed, the record shows that it was Father’s stepmother, not Father, who
initiated the Child’s insurance coverage. From the totality of the circumstances, it is clear
that Father has offered help and support for this Child only when it pleases him to do so.
His support has been inconsistent at best and completely lacking at worst. There is no
indication that Father lacked the means to provide for the Child; the only evidence is that
he chose not to provide support in any consistent or significant way. Accordingly, we
conclude that there is sufficient evidence that Father’s failure to support the Child in the
four months preceding the filing of the termination petition was willful. As such, we affirm
the trial court’s finding that Father abandoned the Child by willful failure to visit and
willful failure to support. We now turn to the question of whether termination of Father’s
parental rights is in the Child’s best interest.
V. Best Interest
When at least one ground for termination of parental rights has been established, the
petitioner must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the child’s best interest. In re Bernard T., 319 S.W.3d at 606 (citing
In re A.M.H., 215 S.W.3d at 809). As the Tennessee Supreme Court explained:
Facts considered in the best interest analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., [455 S.W.3d 533, 555 (Tenn. 2015)] (citing In re Audrey S.,
182 S.W.3d at 861). “After making the underlying factual findings, the trial
court should then consider the combined weight of those facts to determine
whether they amount to clear and convincing evidence that termination is in
the child’s best interest[s].” Id.In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. As is
relevant to this appeal, these factors include, but are not limited to, the following:
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(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;
***
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to § 36-5-
101.
Tenn. Code Ann. § 36-1-113(i).
As an initial matter, we note that the trial court applied the incorrect statute in its
best interest analysis. The statutory factors applicable to best interest in the context of
termination of parental rights cases are codified at Tennessee Code Annotated section 36-
1-113(i). Here, however, the trial court applied the factors set out at Tennessee Code
Annotated section 36-6-106(a), which apply “[i]n a suit for annulment, divorce, separate
maintenance, or in any other proceeding requiring the court to make a custody
determination regarding a minor child.” Tenn. Code Ann. § 36-6-106(a). Usually, such
misapplication would result in our vacating and remanding the order for the trial court to
apply the correct statutory factors. See In re Layton W., No. M2020-00197-COA-R3-PT,
2020 WL 5944053, at *4 (Tenn. Ct. App. Sept. 2, 2020) (“Because the trial court’s
conclusions as to the [c]hild’s best interests do not satisfy the analysis mandated by statute,
we vacate those conclusions and remand the case to the trial court with instructions to
address the pertinent best interests factors as they apply to the facts of this case.”). Here,
however, the trial court’s ultimate reasoning concerning the Child’s best interest is clear
from the findings in its order, and the appellate record is complete such that we may review
those findings against the evidence. Moreover, “we are statutorily required to expedite
appeals in termination of parental rights cases to the extent consistent with the preservation
of the rights of the parties.” In re Audrey S., 182 S.W.3d at 859 n.21 (citing Tenn. Code
Ann. § 36-1-124 (b) (“In all cases that are appealed from the decision of a trial court, the
appellate court shall, consistent with its rules, expedite the contested termination of
parental rights . . . .”)); see also In re Raylan W., No. M2020-00102-COA-R3-PT, 2020
WL 4919797, at *7 (Tenn. Ct. App. Aug. 20, 2020). Furthermore, given the unusual
circumstances under which our courts have been required to operate during the current
Coronavirus pandemic, remand of this matter would likely cause significant delays to final
adjudication. “Accordingly, rather than remanding the case as we would customarily do,
we will address the substantive merits of the trial court’s conclusion [that termination of
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Father’s parental rights is not in the Child’s best interest].” White v. Moody, 171 S.W.3d
187, 192 (Tenn. Ct. App. 1994).
This Court has noted that the “list [of best interest factors set out at Tennessee Code
Annotated section 36-1-113(i)] 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 rights is in the best interest of a child.” In re M.A.R., 183 S.W.3d
652, 667 (Tenn. Ct. App. 2005), perm. app. denied (Tenn. Nov. 21, 2005). Depending on
the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests . . . does not call for a rote examination
of each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against the
parent. The relevancy and weight to be given each factor depends on the
unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.
White, 171 S.W.3d at 194. “When considering these statutory factors, courts must
remember that ‘[t]he child’s best interests [are] viewed from the child’s, rather than the
parent’s, perspective.’” In re Gabriella D., 531 S.W.3d at 681 (citing In re Audrey S., 182
S.W.3d at 878). “[W]hen the best interests of the child and those of the adults are in
conflict, such conflict shall always be resolved to favor the rights and the best interests of
the child. . . .” Tenn. Code Ann. § 36-1-101(d); see also In re Gabriella D., 531 S.W.3d
at 681-82. We now turn to address the relevant statutory factors against the record.
Concerning the third factor, whether the parent has maintained regular visitation or
contact with the child, Tenn. Code Ann. § 36-1-113(i)(3), the trial court found that Father
“admitted that he had not seen the [C]hild in at least a year or more.” The trial court further
found that Father never “pressed the issue [of visitation] or sought legal help [to establish
visitation].” Indeed, as discussed, supra, Father rarely asked for visitation with the Child,
and he made no effort to establish a routine visitation schedule with her. Father stopped
asking for visitation altogether in November 2016, over one-and-a-half years before
Mother and Stepfather filed the petition to terminate Father’s parental rights.
Father’s failure to visit the Child prevented him from establishing a meaningful
relationship with her, which is the fourth factor courts may consider when ascertaining
whether termination is in the Child’s best interest. Tenn. Code Ann. § 36-1-113(i)(4).
Although the trial court found that Father “shows some love and affection to the [C]hild,”
it ultimately concluded that “his lack of visitation has greatly hindered this factor.” We
agree. In his testimony, Father admitted the Child does not know him to be her father.
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Likewise, Mother expressed concern that the Child might be frightened to be alone in
Father’s custody because she does not know him. The record shows that the last time
Father saw the Child was in November 2017, when the Child was only two-and-a-half
years old. Given the Child’s age at the time of her last interaction with Father, it is very
unlikely that she would recognize him, much less that she would have any meaningful
relationship with him. This factor weighs in favor of termination.
Concerning the fifth statutory factor, because Father and the Child have no
meaningful relationship, a change of caretakers and of the Child’s physical environment
would likely have a profoundly negative effect on her wellbeing. Tenn. Code Ann. § 36-
1-113(i)(5). The trial court found that “[Mother] and [Stepfather] have a safe and proper
home for the . . . [C]hild,” and “[Mother] and [Stepfather] have created a bond with the
minor child. . . .” Indeed, the record is replete with examples of Mother’s and Stepfather’s
positive and loving relationship with the Child. Mother testified that she has been the
Child’s caretaker since birth, and the Child wants for nothing. The record also shows that
Stepfather has been actively involved in the Child’s life since the beginning of his
relationship with Mother, when the Child was only a few months old, and he has been the
Child’s primary father figure. Unlike Father, Stepfather has provided the Child with a
stable and consistent home, and has ensured that her needs are more than met. As a result,
the record demonstrates that the Child is bonded with Stepfather and is well-cared-for and
well-adjusted in Mother and Stepfather’s home. The record further shows that Mother and
Stepfather have a son, the Child’s half-brother, with whom the Child has a strong sibling
bond. Conversely, the Child, who is now five years old, has no relationship with Father.
As this Court has previously explained, when a parent is a stranger to a child, although no
proof may be specifically presented at trial that a “change in caretakers would be harmful
to the child, common sense dictates that removing a child from the only family she has ever
known and placing her with a stranger who has historically chosen to put his own desires
ahead of the child’s needs would cause harm to the child.” In re Jaydin A., No. M2018-
02145-COA-R3-PT, 2019 WL 6770494, at *8 (Tenn. Ct. App. Dec. 12, 2019) (internal
citations omitted); see also In re London B., No. M2019-00714-COA-R3-PT, 2020 WL
1867364, at *12 (Tenn. Ct. App. Apr. 14, 2020).
Concerning the final relevant factor, whether the parent paid child support, Tenn.
Code Ann. § 36-1-113(i)(9), the trial court found that “[Father] admitted that it has been at
least a year or more since he paid [any] support” and “that any support he paid for the entire
life of this child was token at best.” This finding is supported by the record. As discussed,
supra, Father admitted that he gave Mother money “here and there” in the first year of the
Child’s life, but he has provided no support since 2015.
From our review of the entire record, it is clear that the trial court erred in finding
that terminating Father’s parental rights was not in the Child’s best interest. As discussed
in detail above, Father has never parented this Child. He is ostensibly a stranger to her.
Father’s indifference to his obligation as a parent is further evidenced by his testimony
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concerning his relationship with his other child, who is the Child’s age. At trial, Father
admitted that he does not support this child either. “Often, the lack of a meaningful
relationship between a parent and child is the most important factor in determining a child’s
best interest.” In re London B., 2020 WL 1867364, at *12 (citing In re Addalyne S., 556
S.W.3d 774, 795 (Tenn. Ct. App. 2018), perm. app. denied (Tenn. 2018); In re Jayvien
O., No. W2015-02268-COA-R3-PT, 2016 WL 3268683, at *9 (Tenn. Ct. App. June 7,
2016) (affirming the trial court’s decision where it found the lack of meaningful
relationship the “most important[ ]” factor); In re Terry S.C., No. M2013-02381-COA-
R3-PT, 2014 WL 3808911, at *18 (Tenn. Ct. App. July 31, 2014) (“[P]erhaps most
importantly, [the mother] has failed to maintain regular visitation with the children and
therefore has no meaningful relationship with them.”)). It is clear to this Court that Father
has no authentic desire to parent any child. Conversely, the Child is well-settled in Mother
and Stepfather’s home. By all accounts, Stepfather has assumed the role of father. He has
provided for the Child’s emotional and material needs. Mother testified that she will
consent to Stepfather adopting the Child, and Stepfather testified that it is his intention to
adopt her. To delay termination of Father’s parental rights would further deprive the Child
of the permanency and stability she deserves. Accordingly, we reverse the trial court’s
finding that termination of Father’s parental rights is not in the Child’s best interest, and
we remand the case to the trial court with instruction to enter an order terminating Father’s
parental rights so that the adoption may proceed at the earliest date
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s finding that Father abandoned
the Child by failure to visit and failure to support. We reverse the trial court’s finding that
termination of Father’s parental rights is not in the Child’s best interest. The case is
remanded for entry of an order terminating Father’s parental rights and for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the appeal
are assessed against the Appellee, Kenneth N., for all of which execution may issue if
necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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