In Re: Brandon J. G.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2013
IN RE BRANDON J. G. ET AL.
Appeal from the Chancery Court for Lawrence County
No. 12-15993 Robert L. Holloway, Judge
No. M2013-01832-COA-R3-PT - Filed February 25, 2014
The mother of six children and the father of one of the children appeal the termination of
their parental rights. The juvenile court terminated the mother’s parental rights on three
grounds, substantial noncompliance with the permanency plans, persistence of conditions,
and willful abandonment by incarceration, and upon the determination that termination of her
parental rights was in the best interests of the children. The court terminated the father’s
parental rights on the grounds of substantial noncompliance with the permanency plans,
willful abandonment by failure to support and failure to visit, and the determination that
termination was in the best interest of the child. Mother and father appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, J.J., joined.
M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Crystal C.1
William J. Eledge, Lawrenceburg, Tennessee, for the appellant, Christopher D.
Robert E. Cooper, Jr., Attorney General and Reporter, Ryan L. McGehee, Assistant Attorney
General, S. Craig Moore, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
1
This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
OPINION
Crystal C. (“Mother”) is the mother of the six children involved in this appeal:
Brandon (born September 2000); Rachel (born August 2001); Michael (born August 2003);
Allison (born July 2004); Alyssa (born April 2006); and Joshua (born September 2009). Each
child has a different father, but only Christopher D. (“Chris D.”), the father of Rachel, is
involved in this appeal.2 Thus, we will limit our analysis to these two parents.
Mother has an extensive criminal record and, as she described it, has been on
probation her “whole life” for one criminal act or another. In December 2003, Mother pled
guilty to misdemeanor child abuse. Mother and the children went to a department store and
the children were reportedly dirty and not wearing shoes or coats. Mother was seen striking
Brandon, three years old at the time, and was treating the children in an abusive manner.
From 2008 to 2010, Mother entered guilty pleas for various crimes including, passing
worthless checks, forgeries, fraudulent use of credit card, misappropriation of rental property,
possession of marijuana, Class C felony theft of property for stealing a rental car, and felony
vandalism for damages to the stolen rental car. The ultimate result of these guilty pleas was
a sentence of eight years to be served on community corrections.3
Mother also has a history of drug abuse and admitted to being addicted to opiates,
shooting morphine, smoking marijuana, and going on cocaine binges. Mother stated she
would melt morphine tablets and shoot them with a syringe while at her parents’ home,
where she and the children lived. In 2007, Mother was admitted into the New Life Lodge,
an alcohol and drug treatment center located in Burns, Tennessee, for a 21 to 28 day
program; however, she was administratively discharged (told to leave) six days into her stay
for offering drugs to other patients.
As Mother explained her romantic relationships, she “liked to get in abusive
relationships with men” and “was a glutton for punishment.” In 2000, Mother married Chris
D., father of Rachel. Mother and Chris D. divorced in 2010; however, before her divorce she
married James B. in 2002, father of Michael. After divorcing James B., Mother married
2
Scott W.G. is the father of Brandon (born September 2000); Christopher D. is the father of Rachel
(born August 2001); James B. is the father of Michael (born August 2003); Scott A. is the father of Allison
(born July 2004); Bruce B. is the Father of Alyssa (born April 2006); and the father of Joshua (born
September 2009) is unknown.
3
The Tennessee Community Corrections Act of 1985 was enacted to provide an alternative means
of punishment for “selected, nonviolent felony offenders in front-end community based alternatives to
incarceration,” and “thereby reserving secure confinement facilities for violent felony offenders.” State v.
McNack, 356 S.W.3d 906, 909 (Tenn. 2011) (internal citations omitted).
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Bruce B., father of Alyssa. In 2003, Mother testified that she had no relationship with Scott
A., father of Allison, other than that she met him on the internet and “got drunk and . . .
pregnant.” Mother testified that she does not know who Joshua’s father is. Currently, Mother
is married to Brandon C., whom she married in 2009. At the time of trial, Mr. C. was
incarcerated after pleading guilty to domestic assault.
The Department of Children’s Services (“the Department”) has been involved with
Mother and members of her family since the birth of her first child in 1999, when Mother
was 16 years of age.4 The Department’s first involvement with any of the six children at issue
here was in 2005 when the children were first removed from Mother’s custody. This event
stemmed from charges that she allowed a registered sex offender to live with her and the
children. Mother followed the steps and requirements of the permanency plan and the
children were returned to her custody.
On June 28, 2011, the Department was called to the home of David and Mary H.,
Mother’s parents (“the Grandparents”), where Mother and the children had been living;
Mother’s oldest son, Matthew, whom the Grandparents had previously adopted, also lived
in the home. The home was infested with roaches, unsafe, unkempt, and unsanitary.
Following an investigation, the children were removed from the home due to the conditions
of the home and concerns for the children’s welfare. The Juvenile Court of Lawrence County
found the children dependent and neglected, pursuant to Tennessee Code Annotated 37-1-
102(b) and granted custody to the Department, where they have remained since their removal
on June 28, 2011.5
On August 29, 2012, the Department filed a petition to terminate the parental rights
of Mother and Chris D. Mother was serving an eight year sentence in the Lawrence County
Jail during the termination hearing which took place on June 18 and 19, 2013. Mother and
Chris D. were each represented by counsel; however, Father did not attend the hearing.
The juvenile court entered an Order Terminating Parental Rights of Mother and Chris
D. on July 12, 2013. With regard to Mother, the court found the Department had proven three
grounds by clear and convincing evidence, the grounds of: substantial noncompliance with
4
Mother became pregnant with her first child, Matthew, in March 1999. A referral was made to the
Department that Mother had removed the infant “from a moving vehicle” and “threatened to drop him on his
head if her demands were not met.” In April 1999, a Protective Custody Order was entered and the infant was
placed with the Department. On September 28, 1999, custody was granted to the maternal grandparents of
the child and Mother’s parental rights were terminated. The grandparents later adopted Matthew.
5
Matthew was also removed from the Grandparents’ home; however, the Grandparents regained
custody when they complied with the permanency plan and Matthew is not at issue in this appeal.
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the permanency plan, persistence of conditions, and abandonment due to Mother’s
incarceration and wanton disregard for the welfare of the children. In regard to Chris D., the
court found the Department had proven by clear and convincing evidence the grounds of:
substantial noncompliance with the permanency plan and abandonment due to failure to visit
and failure to support. Further, the court found termination of Mother and Chris D.’s parental
rights was in the best interests of the children. Accordingly, their parental rights were
terminated.
Mother and Chris D. filed a timely appeal. Mother presents the following issues for
our review: whether the trial court erred in finding three grounds for termination of her
parental rights under Tennessee Code Annotated § 36-1-113, and whether termination of her
parental rights is in the best interests of the children.
Chris D. presents four issues for our review: whether the trial court committed
reversible error by failing to grant a continuance on the trial in order for Chris D.’s court
appointed counsel to locate his client; whether the trial court erred in finding two grounds
for termination of his parental rights under Tennessee Code Annotated § 36-1-113; and
whether termination of his parental rights is in the best interests of the children. We will first
address the denial of his motion for a continuance.
A NALYSIS
I. D ENIAL OF C HRIS D.’S M OTION FOR C ONTINUANCE
Chris D. insists the trial court erred in denying his motion for a continuance made at
the start of the parental rights terminal trial on June 17, 2013. “The granting or denial of a
motion for a continuance lies in the sound discretion of the court. The ruling on the motion
will not be disturbed unless the record clearly shows abuse of discretion and prejudice to the
party seeking a continuance.” Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997)
(citations omitted).
Chris D. and his home address could not be located by the Department or his counsel
during the trial. Chris D. does not challenge the adequacy of the notice of service by
publication or the diligent efforts of the Department to locate him. At the start of the first day
of trial, June 17, 2013, Chris D.’s counsel made a motion for a continuance to have more
time to contact his client. The court denied the motion noting that the proceedings had been
filed on August 29, 2012, roughly ten months before.
The record indicates Chris D. voluntarily ceased communication with the Department
and did not provide an address when he moved to Alabama. Reviewing the record in its
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entirely, it defies logic to assume that if more time had been provided to counsel to locate
Chris D., that it would have made any difference in the outcome of the case. Consequently,
Chris D. has failed to demonstrate that the court abused its discretion in denying the motion
for continuance or that he was prejudiced by the denial. See, e.g., Commissioner of the Dept.
of Transp. v. Hall, 635 S.W.2d 110 (Tenn.1982).
II. S TANDARD OF R EVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.
1993). This right is superior to the claims of other persons and the government, yet it is not
absolute. In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006).
To terminate parental rights, a court must determine by clear and convincing evidence
the existence of at least one of the statutory grounds for termination and that termination is
in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of Angela E.,
402 S.W.3d 636, 639 (Tenn. 2013) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). The petitioner has the burden of proving that one statutory ground for termination
exists. See Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002). In addition to proving one ground for termination, the petitioner must prove that
termination of parental rights is in the child(ren)’s best interest(s). Tenn. Code Ann. § 36-1-
113(c)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn. 2006); In re A.W., 114 S.W.3d 541, 544
(Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000) (holding
a court may terminate a parent’s parental rights if it finds by clear and convincing evidence
that one of the statutory grounds for termination of parental rights has been established and
that the termination of such rights is in the best interests of the child). Therefore, a court may
terminate a person’s parental rights if (1) the existence of at least one statutory ground is
proven by clear and convincing evidence and (2) it is clearly and convincingly established
that termination of the parent’s rights is in the best interest of the child. Tenn. Code Ann. §
36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007); In re Valentine,
79 S.W.3d at 546.
Whether a statutory ground has been proven by the requisite standard of evidence is
a question of law to be reviewed de novo with no presumption of correctness. In re B.T. et
al., No. M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn. Ct. App. Jan. 31, 2008)
(citing In re Adoption of A.M.H., 215 S.W.3d at 810).
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III. P ERMANENCY P LAN AND THE D EPARTMENT’S E FFORTS
“Because of the prominent role that the Department plays in the lives of so many
dependent and neglected children, the Tennessee General Assembly has explicitly imposed
on the Department the responsibility to make reasonable efforts to reunify children and their
parents after removing the children from their parents’ home.”6 In re Tiffany B., 228 S.W.3d
148, 157-58 (Tenn. Ct. App. 2007) (citing Tenn. Code Ann. § 37-1-166). The Department’s
first obligation in this regard is to establish permanency plans, the terms of which are
“reasonable and related to remedying the conditions which necessitate foster care
placement.” In re Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. § 37-2-
403(a)(2)(C)). This statutory policy does not require that the Department’s effort to reunify
the family be “herculean”; nevertheless, the Department’s employees “must use their superior
insight and training to assist the parents in addressing and completing the tasks identified in
the permanency plan.” In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006).
Reasonable efforts are statutorily defined as the “exercise of reasonable care and
diligence by the department to provide services related to meeting the needs of the child and
the family.” Tenn. Code Ann. § 37-1-166(g)(1). In cases like this one, the factors that courts
use to determine reasonableness include: (1) the reasons for separating the parents from their
children, (2) the parents’ physical and mental abilities, (3) the resources available to the
parents, (4) the parents’ efforts to remedy the conditions that required the removal of the
children, (5) the resources available to the Department, (6) the duration and extent of the
parents’ efforts to address the problems that caused the children’s removal, and (7) the
closeness of the fit between the conditions that led to the initial removal of the children, the
requirements of the permanency plan, and the Department’s efforts. In re Tiffany B., 228
S.W.3d at 158-59 (citing In re Giorgianna H., 205 S.W.3d at 519).
6
Tenn. Code Ann. § 37-1-166(g)(4)(C) excuses reasonable efforts “if a court of competent
jurisdiction has determined that . . . [t]he parental rights of the parent to a sibling or half-sibling have been
terminated involuntarily.” (Emphasis added). In April 1999, a Protective Custody Order was entered and
Matthew, Mother’s first child, was placed with the Department. On September 28, 1999, custody was granted
to the maternal grandparents of the child and Mother’s parental rights were terminated. The record before
us, however, does not state whether Mother’s parental rights were terminated involuntarily, as required by
Tennessee Code Annotated § 37-1-166(g)(4)(C), and Mother, who was then 16, may have voluntarily
surrendered her parental rights to Matthew. Therefore, the facts of this case do not excuse the Department
from exerting reasonable efforts to reunify the family. Accordingly, we must first determine whether the
terms and goals of the permanency plan were reasonable and related to remedying the conditions which
necessitated removal of the children and whether the Department exerted reasonable efforts to assist Mother
and Chris D. to achieve the goals and to be reunited with their children before examining the grounds at
issue.
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Although the Department bears a heavy responsibility with regard to reunification, the
road to reunification is a “two-way street.” State Dep’t. of Children’s Servs. v. S.M.D., 200
S.W.3d 184, 198 (Tenn. Ct. App. 2006). Parents desiring to be reunited with their children
“must also make reasonable and appropriate efforts to rehabilitate themselves and to remedy
the conditions that required the Department to remove their children from their custody.” In
re Giorgianna H., 205 S.W.3d at 519. Accordingly, even though the Department bears a
heavy responsibility to facilitate reunification, the Department does not bear the entire
responsibility. S.M.D., 200 S.W.3d at 198.
A. P ERMANENCY P LAN
The children were removed from the Mother’s custody due to the conditions in the
Grandparents’ home in which she and the children were living. Sherry Allen, a Child
Protective Services Assessor for the Department, testified that the condition of the home was
“deplorable” with boarded up windows, holes in the walls, a large hole in the bathroom floor,
a roach infestation throughout the home, piles of clothes and toys in bedrooms, cat and dog
food scattered on the floors, and hypodermic needles were found in the bathroom. The
children’s medication was unlabeled and kept in a tackle box. Mother testified the medication
was “not in kid order,” but she knew “which medicines to grab.” Upon further investigation
by the Department, it was discovered that Mother had missed over twenty-five doctor’s
appointments for the children. Mother was arrested due to charges related to the conditions
of the home.
Because of the above concerns, the Department developed a permanency plan on July
25, 2011, with the desired outcome of Mother and/or fathers to be able to supply appropriate,
safe, and stable housing on a consistent basis and to be able to properly balance any and all
dental, education, medical, and mental health appointments consistently so the children’s
needs are properly met.
We have concluded the above requirements and goals identified in the permanency
plans were reasonable and related to remedying the conditions which necessitated the
removal of the children from Mother’s care and the resulting foster care placement.
Accordingly, the plans satisfied the requisite criteria. See In re Valentine, 79 S.W.3d at 547;
see also Tenn. Code Ann. § 37-2-403(a)(2)(C).
B. R EASONABLE E FFORTS
Since the Department first became involved in 1999, there have been approximately
twenty-five investigations due to numerous allegations of abuse and neglect. Ms. Allen
testified about the many services the Department provided to the family, including, mental
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health services, medication therapy and in-home case management services through Life
Care Family Services; intensive in-home services through Youth Villages, and in-home
monitoring services provided through the Department. The family would make some
progress when services were provided; however, when the Department was no longer
involved the situation deteriorated.
The Department also attempted to provide similar services to Chris D. Lori Bartlett,
a family services worker for the Department, testified that when Chris D. was released from
jail, the Department provided assistance in obtaining housing and parenting services,
including, paying his first month’s rent for a home in Lawrenceburg.
Considering the above facts and other relevant evidence we have not yet addressed,
we have determined the Department exerted reasonable efforts to assist Mother and Chris D.
to achieve the stated goals.
We now turn our attention to the statutory grounds at issue: substantial noncompliance
with the permanency plans, persistence of conditions, and abandonment, to determine
whether the evidence clearly and convincingly establishes one or more of these grounds.
IV. G ROUNDS FOR T ERMINATION OF P ARENTAL R IGHTS
A. S UBSTANTIAL N ONCOMPLIANCE WITH THE P ERMANENCY P LAN
The juvenile court found that both Mother and Chris D. were in substantial
noncompliance with the permanency plan. Noncompliance with the permanency plan is a
statutory ground for termination of a parent’s rights. Tenn. Code Ann. § 36-1-113(g)(2). For
noncompliance to justify the termination of parental rights, it must be “substantial”
noncompliance. In re S.H., No. M2007-01718-COA-R3-PT, 2008 WL 1901118, at *7 (Tenn.
Ct. App. Apr. 30, 2008). The issue of substantial noncompliance with the requirements of
a permanency plan is a question of law; therefore, it is reviewed de novo with no
presumption of correctness. In re Valentine, 79 S.W.3d at 546.
The first permanency plan was established on July 25, 2011. Pursuant to the first and
subsequent plans, the goals of which remained consistent, Mother and all fathers were to,
inter alia, resolve their legal issues, submit to random drug screens, obtain and maintain
suitable housing, maintain legal means for financial support, and all fathers were to become
more involved as parents with their child by attending supervised visits and/or appointments
concerning their particular child.
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Kim Jennings, a family service worker for the Department, testified that Mother’s
demeanor during meetings was “threatening,” to Ms. Jennings, other Department workers,
supervisors, or “whoever happened to be in the room.” Ms. Jennings described Mother’s
therapeutic visitations with the children as “chaotic,” with the children running around and
fighting, while Mother and the Grandparents would “just be sitting there.” Ms. Jennings also
discussed a visit in which candy, soda, and boxes of Little Debbie cakes were made available
to the children, including Michael, who has diabetes.
Lori Bartlett, a family services worker for the Department, also described a
therapeutic visit as “chaotic” and “horrible.” Ms. Bartlett testified that Mother became upset
at the presence of an African American worker for Omni Vision, and began to express her
beliefs in “white supremacy” and the “KKK.” During this same visit, one of the children
broke a plastic ring by accidently stepping on it; Mother yelled at the child and told him that
he “intentionally” broke the ring. Ms. Bartlett testified that Mother’s reaction toward the
child was inappropriate. Ms. Bartlett ended the visit after arguments in front of the children
between Mother and the grandmother.
In August 2011, shortly after signing the first permanency plan, Mother incurred new
criminal charges including, inter alia, domestic assault resulting from an altercation while she
and the children were living with Roger H. and his two children. Mother moved in with Mr.
H. after the children were removed by the Department. Mother testified that she was angry
because Mr. H. found her morphine pills and syringes and disposed of them. During the
assault with Mr. H., Mother said Mr. H.’s son got hit. Numerous drugs were found in the
home, along with a syringe on the floor and broken glass, to which Mr. H.’s children had
access. Along with domestic assault, Mother was also charged with possession of drug
paraphernalia, possession of Lortab without a prescription, and possession of over a half
gram of melted morphine found inside a spoon with burn marks on the bottom.
On October 13, 2011, as a result of these charges, Mother was revoked on the eight
year community corrections sentence and her eight year prison sentence stemming from her
2010 convictions was reinstated.
Ms. Bartlett also provided testimony regarding Chris D., stating that during 2011 and
2012, he paid de minimis amounts in child support to the Department on behalf of Mother
and he paid no child support on behalf of his child, Rachel. A home trial visit motion was
filed with the juvenile court in March of 2012; however, the visit never occurred, due to
Chris D.’s failure to correct the faulty electrical wiring in the home he resided in at that time.
Brooke Hall, an employee of Omni Vision, offered to make her office available for visits or
make other arrangements to allow for visitation. Chris D. stated he would contact Ms. Hall,
but he never did. His last visit with Rachel occurred on May 17, 2012, and shortly thereafter,
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he moved to Alabama, without providing an address, and ceased contact with the
Department.
The foregoing, and other evidence in the record, clearly and convincingly establish
Mother and Chris D. were in substantial noncompliance with the permanency plans.
Therefore, we affirm the trial court’s finding that the parents failed to substantially comply
with the requirements of the permanency plan.
B. A BANDONMENT
1. Mother’s Abandonment by Incarceration
The juvenile court found that Mother abandoned her children under the definition of
abandonment in Tennessee Code Annotated § 36-1-102(1)(A)(iv):
A parent or guardian is incarcerated at the time of the institution of an action
or proceeding to declare a child to be an abandoned child, or the parent or
guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and either
has willfully failed to visit or has willfully failed to support or has willfully
failed to make reasonable payments toward the support of the child for four (4)
consecutive months immediately preceding such parent’s or guardian’s
incarceration, or the parent or guardian has engaged in conduct prior to
incarceration which exhibits a wanton disregard for the welfare of the child.
The fact that a parent is incarcerated or recently incarcerated during the action or
proceeding, is not in and of itself a ground for the termination of parental rights. In re Audrey
S., 182 S.W.3d 838, 866 (Tenn. Ct. App. 2005).
An incarcerated or recently incarcerated parent can be found guilty of
abandonment only if the court finds, by clear and convincing evidence, that the
parent’s pre-incarceration conduct displayed a wanton disregard for the
welfare of the child. Thus, the parent’s incarceration serves only as a triggering
mechanism that allows the court to take a closer look at the child’s situation
to determine whether the parental behavior that resulted in incarceration is part
of a broader pattern of conduct that renders the parent unfit or poses a risk of
substantial harm to the welfare of the child.
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The record is replete with details of Mother’s extensive history of criminal behavior;
offenses which include, inter alia, misdemeanor child abuse and allowing a sex offender to
live with her children. Mother has abused numerous drugs, including opiates, morphine,
marijuana, and cocaine. Mother neglected the medical care of her children, including,
missing approximately sixteen doctor’s appointments for her children and thirteen
appointments at Vanderbilt to treat her child with Type 1 Diabetes.
Mother was serving an eight year community corrections sentence at the time the
children were removed from the home. Mother knew the permanency plan required her to
resolve all legal issues; however, she incurred additional charges for domestic assault,
vandalism, and possession of drugs and drug paraphernalia on August 27, 2011, leading to
revocation of her community corrections sentence.
We have reviewed the record and find the evidence clearly and convincingly supports
the conclusion that Mother abandoned here children under the definition of abandonment in
Tennessee Code Annotated § 36-1-102(1)(A)(iv). The record reveals Mother has been
incarcerated since August 2011. The Department filed a petition to terminate the parental
rights on August 29, 2012; thus, Mother was incarcerated “all or part of the four months
immediately preceding the institution of such action or proceeding,” satisfying the first test
of the statute. Tenn. Code Ann. § 36-1-102(1)(A)(iv). Further, based upon the foregoing and
the record in its entirety, we find Mother’s pre-incarceration conduct clearly and
convincingly displayed a “wanton disregard for the welfare” of her six children. Mother
knew that violating the terms of the community corrections program would result in going
to prison, but testified that the “drugs got the better” of her.
We, therefore, affirm the trial court’s ruling that Mother abandoned her children as
defined in Tennessee Code Annotated § 36-1-102(1)(A)(iv).
2. Chris D.’s Abandonment by Failing to Visit
Tennessee Code Annotated § 36-1-113(g)(1) provides that parental rights may be
terminated based upon the ground of abandonment for willfully failing to visit the child. This
form of abandonment is defined as when a parent “willfully failed to visit . . . the child for
the period of four consecutive months preceding the filing of the petition to terminate that
parent’s rights.” Tenn. Code Ann. § 36-1-102(1)(A)(i).
Failure to visit a child is “willful” when a parent is aware of his or her duty to visit,
has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not
doing so. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005). However, where the
failure to visit is not willful, a failure to visit a child for four months does not constitute
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abandonment. R.G.W. v. S.M., No. M2009-01153-COA-R3-PT, 2009 WL 4801686, at *8
(Tenn. Ct. App. Dec.14, 2009) (citing In re Adoption of A.M.H., 215 S.W.3d at 810). “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.” Id.Tennessee Code Annotated § 36-1-102(1)(E) states, “‘willfully failed to visit’ means
the willful failure, for a period of four (4) consecutive months, to visit or engage in more than
token visitation.” “[T]oken visitation,” is visitation, which “under the circumstances of the
individual case, 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).
Chris D.’s last visit with his child, Rachel, was on May 17, 2012, which was within
the four month period preceding the Department filing the petition to terminate his rights.
After Chris D.’s last visit with Rachel, he moved to Alabama without providing an address
and refused to cooperate with the Department. Further, Chris D. made no attempts to visit
Rachel or contact the Department after his last visit, and he did not participate in the trial.
We have reviewed the record and although Chris D.’s last visit falls within the
preceding four months of the Department’s petition to terminate his parental rights, we find
the evidence clearly and convincingly supports the conclusion that Chris D. only engaged in
token visitation during the relevant period and the visitation did not produce a meaningful
visit to establish a meaningful relationship or bond between the parent and the child. Thus,
he willfully failed to visit the child for the determinative four months. See Tenn. Code Ann.
§ 36-1-102(1)(C) and (E).
We, therefore, affirm the trial court’s ruling that Chris D. abandoned the child by
failing to visit the child as defined in Tennessee Code Annotated § 36-1-102(1)(A)(i).
C. A DDITIONAL G ROUNDS FOR T ERMINATION
We have affirmed two grounds for the termination of Mother’s parental rights,
substantial noncompliance with the permanency plan and abandonment due to incarceration,
and two grounds for the termination of Chris D’s parental rights, substantial noncompliance
with the permanency plan and abandonment by failing to visit. Parental rights may be
terminated if (1) the existence of at least one statutory ground is proven by clear and
convincing evidence and (2) it is clearly and convincingly established that termination of the
parent’s rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re
Adoption of A.M.H., 215 S.W.3d at 809; In re Valentine, 79 S.W.3d at 546. Because the
Department has proven more grounds than are required to terminate both parents’ respective
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rights, it is not necessary that we analyze the remaining grounds. Nevertheless, we have
examined the record and find the evidence clearly and convincingly supports the trial court’s
conclusion that the conditions which led to the removal of the children from Mother would,
in all reasonable probability, continue to exist or reoccur upon Mother’s release from prison
and, in all reasonable probability, would cause the children to be subjected to further abuse
or neglect. Further, there is little or no likelihood for the safe return of the children to the care
of Mother and the continuation of Mother’s relationship with the children would greatly
diminish each child’s chances of early integration in to a safe, stable, and permanent home.
Thus, we affirm the finding that the Department proved the ground of persistence of
conditions.
As for the finding that Chris D. abandoned his child by failing to pay child support,
we have concluded that the evidence is not sufficient to establish, by the requisite clear and
convincing standard, that he willfully failed to pay support at the applicable time.7
V. B EST INTERESTS OF THE C HILDREN
The Tennessee General Assembly has provided a list of factors for the court to
consider when conducting a best interests analysis. See Tenn. Code Ann. § 36-1-113(i)(1)-
(9). The nine statutory factors, which are well known and need not be repeated here, are not
exclusive or exhaustive, and other factors may be considered by the court. See In re M.A.R.,
183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Moreover, not every statutory factor need apply;
a finding of but a few significant factors may be sufficient to justify a finding that
termination of the parent child relationship is in the child’s best interest. See In re M.A.R.,
183 S.W.3d at 667. The child’s best interest is to be determined from the perspective of the
child rather than the parent. See State Dep’t of Children’s Servs. v. L.H., No. M2007-00170-
COA-R3-PT, 2007 WL 2471500, at *7 (Tenn. Ct. App. Dec. 3, 2007) (citing White v.
Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).
Ms. Bartlett provided testimony concerning the children and their current foster
placement. The children were placed in different foster homes based upon their different
needs.
Allison, Alyssa, and Joshua reside in the same pre-adoptive foster home, and Ms.
Bartlett stated the children’s behavior has improved since their placement. The foster parent,
7
“A parent’s failure to support is “willful” if (1) the parent is aware of his duty to support, (2) has
the capacity to provide the support, (3) makes no attempt to provide support, and (4) has no justifiable excuse
for not providing the support.” In re R.L.F., 278 S.W.3d 305, 320 (Tenn. Ct. App. 2008).
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Denise L., has a large support system which includes her church, where she is the director
of children’s ministry, and her mother and father, who live down the street from her.
Michael was placed in the foster home of Shawn and Michelle A. In March 2012, he
was admitted into a pediatric psychiatric hospital due to significant behaviors, specifically,
screaming fits that would last up to four hours. These behaviors were prevalent from the
beginning of his placement and he would have periods of improvement, however, they would
always reoccur. Although Michael has been removed from their home, Mr. and Mrs. A.
developed a significant bond with him. The foster parents often visit him on the weekends
and bring the family dog because it makes Michael happy. The goal is to return Michael to
their home and adopt him.
Brandon is staying in the pre-adoptive foster home of Jeff and Patricia R., which is
located on a horse farm. Ms. R. testified that Brandon was initially petrified of animals, the
dark, being alone, or even shutting the door to the bathroom or closing the shower curtain.
Since his placement in their home, Brandon now loves the animals and communicates better
with his foster parents and peers. Brandon is active in the family’s church, horse shows, and
goes camping with his foster parents. Ms. R. testified that they love Brandon and want to
adopt him.
Rachel is staying in a pre-adoptive foster home with several children, including a
daughter of the foster family that is her age. Ms. Bartlett testified that Rachel’s interaction
with her foster parents is positive and she has bonded with them. Rachel also testified that
the foster parents treat her well and she gets along with the other children in the home, and
it would be “good” if they adopted her.
The record shows that since the children have been removed from the home, they have
each thrived in their foster homes and Michael is receiving needed care in a pediatric
psychiatric hospital. Allowing the children to return to the parents would subject the children
to more uncertainty and instability. Moreover, it would require the removal of the children
from environments where their conditions have dramatically improved and they are much
happier and healthier. Tenn. Code Ann. § 36-1-113(i)(5).
Considering these relevant factors from the children’s perspective, the evidence
clearly and convincingly established it is in the children’s best interests that Mother and Chris
D.’s parental rights be terminated.
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I N C ONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the appellants, Mother and Christopher D., jointly and separately.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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