In Re: Victoria G.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 4, 2013 Session

IN RE VICTORIA G. ET AL.

Appeal from the Juvenile Court for Knox County
No. 75001 Timothy Irwin, Judge

No. E2012-01522-COA-R3-PT-FILED-MAY 29, 2013

This is a termination of parental rights case involving two minor children, Victoria G. and
Ethan G. (“the Children”). The Children were born during the marriage of David G.
(“Father”) and Rachel M. (“Mother”). When Father and Mother divorced in 2004, Mother
was awarded primary custody of the Children. In 2005, Mother suffered a recurrence of
cancer. She and the Children subsequently moved in with her sister, Amanda M., and her
sister’s husband, Paul M. When Mother died on October 6, 2005, Amanda M. obtained
custody of the Children the following day. Father did not seek custody of the Children until
April 2006. The parties engaged in protracted litigation, during which Father was allowed
varying types of visitation. In September 2010, Father was granted progressively expanding
visitation with the Children, designed toward increasing co-parenting in frequency and
consistency over time. The visits did not go well, however, and the Children eventually
refused to go with Father. The last attempted exchange, occurring on September 9, 2011,
resulted in an incident wherein Father was arrested for assault. Father did not seek visitation
with the Children after that date. Paul M. filed a petition seeking to terminate Father’s
parental rights on January 26, 2012, based upon the statutory ground of abandonment by
willful failure to visit and support. Following a bench trial, the trial court granted the petition
after finding clear and convincing evidence that Father had willfully failed to visit the
Children for at least four months preceding the filing of the petition, and upon determining
that termination was in the Children’s best interest. Father appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Joseph M. Viglione, Knoxville, Tennessee, for the appellant, David G.
Margaret Beebe Held, Knoxville, Tennessee, for the appellee, Paul M.

Michael J. Stanuszek, Knoxville, Tennessee, Guardian ad Litem.

OPINION

I. Factual and Procedural Background

When Father and Mother divorced, Father was awarded “standard” visitation.1 Father
apparently exercised visitation regularly until April 2005, when he and Mother agreed to
modify the visitation schedule at Father’s request. Father then began having “day” visits
with the Children, by reason of what he described as an “abusive marriage” and his new
wife’s threats toward Mother and the Children. Meanwhile, as Mother’s illness worsened,
she and the Children moved in with Amanda M. and Paul M. so that they could assist in
caring for Mother and the Children. Father left messages for Mother, regarding his co-
parenting time, beginning in mid-August 2005 but was unable to contact her. When Mother
died in October 2005, Amanda M. petitioned for and was granted custody of the Children
based upon the court’s finding of dependency and neglect. Father claimed he did not learn
about Mother’s death until two weeks after the funeral. He did not seek custody of the
Children until April 2006 when he and his wife separated.

Father’s petition was heard by the Juvenile Court Referee, who found, inter alia, that
Father was aware that Mother’s disease had recurred and that she had resumed cancer
treatment in August 2005. As the Referee noted, Father did not inquire regarding Mother’s
condition, prognosis, or ability to care for the Children. Instead, Father was “totally absorbed
in his own issues with his wife and he was unaware of the dire circumstances impacting the
mother and the Children.” The Referee further determined that due to Father’s choice to
remain in a marriage in which his wife consistently threatened the Children, Father “knew
he was not a custodial resource for the Children following the mother’s death and acquiesced
in the maternal aunt and uncle obtaining custody of the Children by his non-participation in
the Court proceeding.”

The Referee elucidated additional findings, in pertinent part as follows:

The children have viewed the actions of their father as abandonment of them

1
This term has traditionally been used to refer to visitation that occurs every other weekend. See,
e.g., Eldridge v. Eldridge, 42 S.W.3d 82, 84 (Tenn. 2001).

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 and of their mother [. . . .] Both Courtney2 [G.] and Victoria [G.] had stated
in counseling with Jan Riepe that their mother informed them prior to her
death that they could not trust their father and that she wanted them to live
with their maternal aunt and uncle after she died. The children were very close
to their mother, the children watched their mother slow[ly] decline and finally
succumb to cancer, their father had chosen his abusive second wife over the
children and severely restricted his visitation with the children, the father was
not present for the children during their mother’s illness or when their mother
died, the father did not attend their mother’s funeral, and the children felt
abandoned by their father [. . . .] The father took no action to establish contact
with the children or to assert his superior parental rights in gaining custody of
the children through the Court until after the Final Order awarding custody to
the maternal aunt and uncle had been entered on 3-7-06 and the father had
finally decided to divorce his wife in April 2006 (six months after the mother’s
death and one year after the children began residing continuously with the
maternal aunt and uncle).

The Referee concluded that Father had lost his superior parental rights upon entry of
the final order granting custody to Amanda and Paul M. and that he would have to establish
a material change of circumstance impacting the Children in order to gain custody. The
Referee held that Father failed to prove such a change of circumstance, directing that
Amanda and Paul M. would retain custody. Father was granted visitation with the Children.

Father appealed the Referee’s ruling to the Juvenile Court, which confirmed the
findings and recommendations of the Referee. In declining to conduct an evidentiary
hearing, the Juvenile Court explained:

The Court further finds that a full dress hearing was held before a
lawyer/referee and that another full dress hearing before the Juvenile Court
Judge would be a redundant step since an Appeal can be taken from the Decree
to Circuit Court for another de novo hearing.

Therefore pursuant to Rule 4 of the Rules of Juvenile Procedure and
State v. York, 615 S.W.2d 154 [1981], the Court finds the interest of the
parties and due process would best be served by proceeding directly to a de
novo hearing before the Fourth Circuit Court of Knox County, Tennessee.

While the action was on appeal to Fourth Circuit Court, Father filed a motion to

2
Courtney G. reached the age of majority during the pendency of this action.

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dismiss, asserting that he had never been properly served with process in the dependency and
neglect proceeding in Juvenile Court. The Fourth Circuit Court found the assertion to be
accurate, with the court entering an order holding that the finding of dependency and neglect
could not be upheld. As the Circuit Court explained, “all that flowed therefrom must be held
for naught and is held for naught.” The court also concluded that it was fundamentally unfair
for Father to have to prove a change of circumstance in order to gain custody. The Juvenile
Court’s order was set aside, with the remaining issue designated as whether Amanda 3 and
Paul M. should be granted custody “because the birth parent is unacceptable.”

Paul M. filed a motion asking the Fourth Circuit Court to reconsider its ruling. He
contended that Father had never before challenged the notice he received regarding the
original petition. The court denied the motion to reconsider and stated in its memorandum
opinion that the Juvenile Court had to “take it all the way back to the start, the
commencement of this action for dependency and neglect.” The Circuit Court further
instructed the Juvenile Court to take such steps “as are appropriate.” In the written order
subsequently entered on July 16, 2010, the Fourth Circuit Court remanded the case to the
Juvenile Court, directing the Juvenile Court to conduct a preliminary hearing pertaining to
the allegations of dependency and neglect contained in the petition for emergency custody
filed by Amanda and Paul M. on October 6, 2005, and to “conduct such further proceedings
as the Juvenile Court deems necessary, and in accordance with the law.”

A hearing was held in Juvenile Court on August 5, 2010. The court held it would be
“extremely difficult, if not impossible, to hold a preliminary hearing on the Petition for
custody filed by Amanda [M.] due to the five year time span from the filing of the Petition
for Custody to the present . . . .” The court determined that the order of the Fourth Circuit
Court gave it the authority to decide on the proper course of action upon remand. The
Juvenile Court set the matter for a full hearing on all pending petitions and motions.
Attendant to its ruling, the court concluded that Father had not lost his superior parental
rights and that the hearing would be conducted incorporating the proper standard of proof
with Paul M. having the burden of demonstrating a threat of substantial harm to the Children.
The court also held that Father’s visitation with the Children, which at the time consisted of
four hours each Saturday at East Towne Mall, would continue pending further order of the
court.

A full evidentiary hearing was held in Juvenile Court on September 8-10, 2010. The
court made the following relevant findings:

3
The court noted that Amanda M. had announced she and Paul M. were going through a divorce,
and Amanda M. had opined Paul M. should be the custodian of the Children.

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1. That the Court finds that the determinative issue in this matter is
whether the father’s inaction before, during, and after the death of
[Mother] rises to the level of dependency and neglect as those terms are
defined by T.C.A. § 37-1-102(12);

2. That the Court finds it difficult to believe that the father, who testified
that he had exercised visitation with the children during the summer of
2005, did not know where the children and [Mother] were living in the
months preceding [Mother’s] death on October 6, 2005, and the Court
further finds it difficult to believe that the father did not know the
severity of [Mother’s] cancer in the months preceding her death;

3. That the Court finds that the testimony of the children regarding their
negative feelings about their father and his family to be genuine; said
testimony includes, but is not limited to, testimony that: a) they do not
consider the father and his family as their family, b) they do not use
their father’s last name, [G.], even though it is part of their legal name,
c) they do not enjoy their current visitation with their father, and if they
had their choice, they would not see their father or his family, and d)
their father chose his wife (now ex-wife), Kim [P.], over them and their
mother in the months proceeding (sic) their mother’s death;

4. That the Court finds that Exhibit 1, which was a letter dated May 2,
2005 from the father to Neil Monaghan, his former attorney, bolsters
the children’s testimony that the father kept going back to Ms. [P.], a
woman who had made threats to kill [Mother] and had burned the
children’s stuffed animals;

5. That the Court finds that the father’s testimony regarding his current
visitation with the children, which depicts a family unit having a great
time together, is directly at odds with the children’s testimony regarding
their current visitation with their father; specifically, the court notes that
the two accounts of the visitations are so polarized that it is as if the
father and the children are going to separate visitations;

6. That the Court finds that the father has not done much to deserve the
kind of hatred that the children have for him, but the father also has not
done much to prevent that kind of hatred either;

7. That the Court finds that the father’s plight was exacerbated, at least in

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 part, by the actions of the mother’s family in not communicating with
the father at or near the time of the mother’s death, and though
testimony was presented that the mother’s family had attempted to
contact the father, the court is not convinced whether a substantial
effort was made by the mother’s family to find him;

8. That the Court finds that the testimony, and exhibits admitted, depicting
the children’s horseback riding trip with the father’s family, and the
wedding of the father’s brother, leave no doubt that both of those
events occurred in the summer of 2005;

9. That the Court finds that the children are dependent and neglected as
those terms are defined by law because of the father’s inaction and his
unavailability for the children at the crucial time before their mother’s
death (April, 2005 through October, 2005), at the time [of] their
mother’s death (October 6, 2005), and after their mother’s death
(October, 200[5] through May 2006) . . . .

The Juvenile Court ordered that custody remain with Paul M. such that Father could
“work toward standard visitation” with the Children over the following six to twelve months.
The court also directed that visitation periods would gradually increase, with a schedule to
be developed considering input from the Children’s therapist, Dr. Peter Young. Father
appealed this ruling to the Fourth Circuit Court.

During the hearing in Fourth Circuit Court on January 20, 2012, following what the
court described as, “substantial colloquy with the parties and counsel,” the court determined
that significant changes had occurred since the hearing in Juvenile Court, which the Circuit
Court elucidated as follows: (1) the oldest child, Courtney, had become an adult; (2) there
had been “remarkable improvement in the Children’s grades, mental health, behavior” since
the cessation of visitation with Father; (3) Father had been found in contempt by the child
support magistrate and incarcerated for the nonpayment of child support; (4) Father
voluntarily had not exercised co-parenting for over four months; and (5) Father had been
arrested for assault upon Paul M. in September 2011, which incident was alleged to have
taken place in the presence of the Children. The Circuit Court remanded the case to Juvenile
Court for appropriate action.

On January 26, 2012, Paul M. filed a petition in the Juvenile Court seeking to
terminate Father’s parental rights. The petition alleged as grounds that Father had willfully
failed to visit and support the Children. The petition also claimed that termination was in the
Children’s best interest. The petition stated that Paul M. desired to adopt the Children and

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that they wished to be adopted by him.

A trial on the merits was held in the Juvenile Court on the termination petition on June
22, 2012. Following the trial, the court entered a final order terminating Father’s parental
rights. In support of its holding, the court made the following findings, as relevant here:

At the custody hearing on September 8-10, 2010, this Court affirmed Mr. [M.]
as the proper custodial placement for the children, but awarded [Father]
progressively expanding visitation rights, up to every other weekend, two
weeks in the summer, and a week at Christmas. [Father] has failed to exercise
his rights according to the visitation schedule, and admitted in open court that
he had voluntarily relinquished his right to visitation for a period in excess of
four (4) months prior to the filing of the Petition. . . .

The children’s therapist, Dr. Peter Young, testified that [Father] has failed to
follow any of his recommendations for re-establishing or improving [Father’s]
relationship with his children, and that he has failed to make any adjustment
to the behaviors that have led to the children remaining in Mr. [M.’s] custody.

The children are thriving. They are healthy, doing well in school, and staying
out of trouble. They are fully integrated into the [M.] home, and consider the
[M.] family as their family. They express that they do not wish to have any
further contact with [Father] or his extended family and that they do not
consider him to be trust-worthy, or to be their father. It is in their best interest
and in the best interest of the public for [the Children] to spend their teen-aged
years in a safe, stable, loving home where they feel comfortable, and for the
rights of [Father] to be terminated and the full care, custody, control and
guardianship of the children to be vested in Paul [M.], with the right to seek
adoption. . . .

In summary, Mr. [M.] has proven, by clear and convincing evidence, that for
a period of four (4) consecutive months immediately preceding the filing of the
Petition to Terminate, [Father] has willfully failed to visit the children; thus,
he has abandoned the children within the meaning of the statute.

It is unequivocally in the best interest of the children to remain in the home of
Paul [M.]:

A. [Father] has failed to maintain regular visitation or other
contact with the children by failing to visit, call, send letters,

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 Christmas cards, gifts, attend children’s events, or avail himself
of any remedy in this Court.

B. [Father] has failed to develop a meaningful relationship with
the children by such tasks as calling, attempting to resume
visitation, noting birthdays, holidays and other significant events
in the children’s lives.

C. The effect of a change of caretakers and physical
environment would likely have a detrimental effect on the
children’s emotional, psychological and medical conditions in
that the children are fully integrated into the [M.] home, where
they have lived since 2005, where they wish to stay, and where
they are doing well.

The trial court terminated Father’s parental rights. Father appeals that ruling.

II. Issues Presented

Father presents the following issues for our review, which we have restated as
follows:

1. Whether the Juvenile Court erred by failing to hold a preliminary
hearing on the original Petition for Custody filed by Amanda M.
when the case was remanded by the Fourth Circuit Court.

2. Whether the Juvenile Court erred when it initially imposed an
improper burden of proof on Father to succeed in his Petition for
Custody by ruling that Father had lost his superior parental rights.

3. Whether the Juvenile Court erred when it concluded that Father had
abandoned the Children pursuant to Tennessee Code Annotated §
36-1-102.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a

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presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982)). As our Supreme Court has instructed:

In light of the constitutional dimension of the rights at stake in
a termination proceeding under Tenn. Code Ann. § 36–1–113,
the persons seeking to terminate these rights must prove all the
elements of their case by clear and convincing evidence. Tenn.
Code Ann. § 36–1–113(c); In re Adoption of A.M.H., 215
S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to
minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In
re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). 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.

IV. Preliminary Hearing

Father contends that the Juvenile Court erred in failing to hold a preliminary hearing
after the case was initially remanded by the Fourth Circuit Court. Father specifically argues

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that the Juvenile Court ignored the directive of the Fourth Circuit Court, which it must not
do pursuant to applicable law. See Earls v. Earls, M1999-00035-COA-R3-CV, 2001 WL
504905 at *3 (Tenn. Ct. App. May 14, 2001) (“[T]rial court does not have the authority to
modify or revise the appellate court’s opinion, or to expand the proceedings beyond the
remand order.”) We disagree. A review of the entire record demonstrates that the Juvenile
Court did not ignore the Fourth Circuit Court’s directive. The Juvenile Court held a full
evidentiary hearing on all pending matters following the remand, including the issues of
whether the Children were dependent and neglected and who should be the proper custodian.

In its ruling, the Fourth Circuit Court determined that the finding of dependency and
neglect could not be upheld, stating that “all that flowed therefrom must be held for naught
and is held for naught.” With the Juvenile Court’s order set aside, the Fourth Circuit Court
directed the remaining issue to be whether Amanda and Paul M. should be granted custody
“because the birth parent is unacceptable.” The court further concluded that the Juvenile
Court had to take the case “all the way back to the start,” taking such steps “as are
appropriate.”

Upon remand, the Juvenile Court observed it would be almost impossible to conduct
a preliminary hearing after the case had been pending for so long. The court determined the
more appropriate course of action would be to conduct a full evidentiary hearing on all
pending petitions and motions. The Juvenile Court proceeded with such a hearing, stating
that the main issue to be determined was whether Father’s inaction before, during, and after
the death of Mother rose to the level of dependency and neglect. As such, the court clearly
considered the “allegations of the petition for emergency custody filed by Amanda and Paul
M. on October 6, 2005” as it was directed. The Juvenile Court satisfied the directive of the
Fourth Circuit Court by considering the case from its inception before the finding of
dependency and neglect was made. We conclude that the Juvenile Court did not err in its
actions, as the Fourth Circuit Court specifically instructed the Juvenile Court to “conduct
such further proceedings as the Juvenile Court deems necessary, and in accordance with the
law.” This issue is without merit.

V. Burden of Proof Initially Imposed by Juvenile Court

Father also posits that the Juvenile Court erred in initially determining that Father had
lost his superior parental rights in the original custody proceeding, thereby imposing the
burden of proof on Father of establishing a material change of circumstances in order to
regain custody. Father is correct in his assertion that “a natural parent may only be deprived
of custody of a child upon a showing of substantial harm to the child.” In re Askew, 993
S.W.2d 1, 4 (Tenn. 1999). As stated above, however, the Juvenile Court’s initial ruling was
ultimately vacated by the Fourth Circuit Court. Upon remand, the Juvenile Court specifically

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concluded that Father had not lost his superior parental rights and conducted the hearing
applying the proper burden of proof. As this error was corrected, and Father received a full
evidentiary hearing with his superior parental rights intact, this issue is also without merit.

VI. Abandonment - Failure to Visit

The trial court terminated Father’s parental rights on the ground that he abandoned
the Children by failing to visit them for four months preceding the filing of the instant
petition. Tennessee Code Annotated § 36-1-113(g)(1) (Supp. 2012) provides, as relevant to
this action:

(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred . . . .

Tennessee Code Annotated § 36-1-102(1)(A)(i) (2010) defines abandonment, in relevant
part, 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 toward the support of the child . . . .

Pursuant to the statute, the court must find that a parent’s failure to visit or support was
willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has
previously explained:

The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
failed to visit or “willfully” failed to support the child for a period of four
consecutive months.

In re Audrey S., 182 S.W.3d at 863.

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 Failure to support or visit is “willful” when the parent is “aware of his or her duty to
visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable
excuse for not doing so.” In re Audrey S., 182 S.W.3d at 864. Further, failure to visit or to
support is not excused by another person’s conduct “unless the conduct actually prevents the
person with the obligation from performing his or her duty, or amounts to a significant
restraint of or interference with the parent’s efforts to support or develop a relationship with
the child.” Id.

This Court further explained:

The willfulness of particular conduct depends upon the actor’s intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a person’s actions
or conduct.

Id. (citations omitted).

This Court has often held that a parent’s demeanor and credibility as a witness plays
“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 360, 367 (Tenn. 2003). Further, as
Tennessee Code Annotated § 36-1-102(1)(G) expressly provides: “it shall not be required
that a parent be shown to have evinced a settled purpose to forego all parental rights and
responsibilities in order for a determination of abandonment to be made.”

At trial, Father admitted he had not seen the Children in almost a year. Father testified
that he attempted to see the Children on September 9, 2011, when he met Paul M. and the
Children at the designated exchange point. The Children, however, would not leave with
Father. While Paul M. and Father had a conversation during the scheduled exchange, Paul
M. called the police. Father was later arrested for assault. Father did not admit to any
wrongdoing during the exchange. He did, however, plead guilty to the assault charge so that,
according to Father, he could receive judicial diversion and the Children would not have to
testify. Father explained he had not attempted to see the Children since this incident because
he did not want to cause them stress.

Father’s testimony included several other material facts. Paul M. had encouraged
Father’s visits with the Children at first but then ceased to do so at some point. Father stated
that he believed Paul M. had hindered his relationship with the Children but admitted Paul
M. had not done anything to overtly obstruct the co-parenting time. Father also admitted
that he experienced problems with the Children during visits and that some co-parenting

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sessions went well while others did not. According to Father, he had to contact Paul M. a
few times during visits to ask his advice on how to handle the Children or to have Paul M.
speak with them. Father conceded that on one occasion, he requested that Paul M. come get
the Children in the middle of the night because they were behaving so badly.

Father does not dispute that the Children were found to be dependent and neglected
in September 2010 due to his actions. When asked if he had made adjustments to his
behavior since then, he replied he had not because there was “no need.” Father did not
challenge the fact that he had not tried to re-establish a relationship with the Children since
June 2011, stating it was “impossible.” Admittedly, the Children had never expressed a desire
to live with him. Father stated he had not been to any of the Children’s school functions, ball
games, or therapy appointments since the last visit. Father indicated he had not been
informed of any of these events. Father also admitted he did not know what grades the
Children had earned in school, even though he had the ability to access that information.

Dr. Peter Young, the Children’s therapist, testified that he began working with the
Children in 2007 and had also met with Father and Paul M. Dr. Young testified at length
with reference to his therapy sessions. According to Dr. Young, he worked with the Children
in an attempt to resolve the conflict among them and Father so that the visits could increase
in frequency and quality. Paul M. was always cooperative and followed the therapist’s
suggestions. Father cooperated “to an extent” but had difficulty empathizing with the
Children. Dr. Young indicated that the Children provoked Father because he was not there
for them when Mother died. Dr. Young’s further testimony established that the Children had
built up a “reservoir of irritation and anger” toward Father due to his lack of contact close
in time to Mother’s death.

Dr. Young made numerous suggestions to Father for repairing his relationship with
the Children, recommending that he spend time with them in their “spheres of living.” Dr.
Young also suggested that Father attend school events, church, ball games, and perhaps even
dinner with the Children at Paul M.’s house. Paul M. was agreeable to this, but Father never
followed the therapist’s suggestions. Dr. Young indicated that when the Children spent time
with Father, they did not think he heard or understood them. Conversely, Paul M. had been
consistently empathetic and understanding with the Children. The Doctor opined that he did
not believe their relationship with Father could be repaired. Dr. Young characterized Father
as having persistently “strange” opinions and indicated it was best the Children not be forced
to go with him. According to Dr. Young, it would be in the Children’s best interest to sever
their ties with Father, with the Children remaining with Paul M.

Victoria, age fourteen, testified that Father was never available for the Children. She
stated she considered Paul M. to be her father instead because he did the things that fathers

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were supposed to do. Victoria stated Father never came to events at her school or church.
She explained that she never liked going to visit Father but that Paul M. would encourage
them to go. The Children were supposed to meet and go with Father on September 9, 2011.
She testified that when they refused to go with Father and attempted to return to Paul M.’s
car, Father kicked the car door because he was angry. According to Victoria, she had had
no contact from Father since the incident. Inasmuch, she had received no cards or gifts from
him for her birthday or Christmas. As Victoria explained, she wanted nothing to do with
Father because he was not present even before Mother died. Ethan, age eleven, provided
similar testimony.

During the trial, Paul M. testified that the Children had resided with him since April
2005. Amanda M. and Mother had maintained a very close relationship as sisters. Paul M.
stated that when Mother’s condition declined, Mother and the Children moved in so that
Amanda and he could provide appropriate care.

Paul M. confirmed that the visits between Father and the Children had not gone well.
The Children did not desire to go, instead exhibiting tremendous dread and animosity.
Although Paul M. tried to be positive regarding upcoming visits, telling the Children that
such would be fun, their attitudes did not improve. He explained that as the visits continued,
the environment worsened. Paul M. testified Father had always been welcome to join them
at church, or even at home for dinner, but he had not done so.

According to the testimony of Paul M., the Children would call him from Father’s
home, indicating that they were running away and saying, “We can’t stand it here.” On one
or two occasions, the Children would simply leave and start walking such that Paul M. would
have to retrieve them. The final visit by Father occurred in June or July 2011. Upon their
return, Victoria exited Father’s car screaming, “I will never see you again!” Paul M.
explained that he did nothing to interfere with co-parenting but that his encouragement of
them to visit waned because of personal frustration. As Paul M. explained, the Children were
so pained following Father’s last visit, he believed they should not have to endure continued
co-parenting time.

The evidence supports a finding that since the September 9, 2011 incident, Paul M.
transported the Children to McDonald’s every other Friday at the appointed time, but Father
never arrived. As Paul M. noted, the Children were doing very well by the time of trial and
had not needed to counsel with Dr. Young since January. Paul M. related that since the visits
with Father had ceased, the Children presented much less anxiety and stress, performed better
in school, and were more social.

Father admits, and the proof is undisputed, that he did not visit with the Children or

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seek to visit with them for more than four months prior to the filing of the termination
petition. Father argues, however, that his lack of visitation should be excused because of
obvious enmity between Paul M. and himself. Father contends that he redirected his effort
at maintaining a parent-child relationship to the courts. In support of this proposition, Father
points to his filing of a “Brief in Support of Writ for Habeas Corpus” on July 27, 2011, and
his pro se filing of “Proposed Stipulations of Fact” on January 27, 2012. Both of these
documents were filed in the Fourth Circuit Court during the pendency of his appeal of the
Juvenile Court’s Order finding the Children to be dependent and neglected in September
2010.

Father relies on the case of In re Adoption of A.M.H., 215 S.W.3d at 810, wherein our
Supreme Court stated, “[w]here, as here, the parents’ visits with their child have resulted in
enmity between the parties and where the parents redirect their efforts at maintaining a
parent-child relationship to the courts the evidence does not support a ‘willful failure to visit’
as a ground for abandonment.” In A.M.H., the biological parents visited their child regularly
at the home of the foster parents, but the foster parents became resistant to the visits, finding
the biological father to be “pushy.” Id. The final visit resulted in a call to the police, with
the police officer telling the biological parents not to return to the foster parents’ home. Id.
A dispute existed regarding whether the police officer directed that the parents not return at
all or simply that they not return that day. Id. Regardless, the biological parents did not
return to the foster parents’ home but actively pursued legal proceedings in the juvenile court
to regain custody during the four months preceding the filing of the termination petition. Id.
The Court found that there was no willful failure to visit given those circumstances. Id. We
do not find the A.M.H. case to be controlling here.

As this Court has previously explained, there is a difference between a parent who is
discouraged or prevented from visiting and must seek court intervention, and a parent who,
as here, did not have his visitation attempts thwarted in any way. In the case of In re Keri
C., 384 S.W.3d 731 (Tenn. Ct. App. 2010), the mother claimed that she could not be found
to have willfully failed to visit her child because she was participating in a drug rehabilitation
program during the relevant time period and was trying to fulfill the requirements of her
safety plan so that she could petition the court for custody. The mother argued that she was
actively pursuing custody and that her lack of visitation was not willful because she clearly
did not intend to abandon the child, similar to the parents in A.M.H. Keri C., 384 S.W.3d
at 752. This Court rejected the mother’s argument, however, stating that A.M.H. was
distinguishable. Id. In that case, the custodians had discouraged the parents’ visits and were
“to some extent, responsible for the parents’ failure to visit.” Id. The facts in Keri
established that the mother was welcome in the custodians’ home and that she was invited
to birthday parties, meals, and to attend church with the family, but she simply chose not to
participate. Id. The Court found that the mother’s failure to visit in that situation was

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willful. Id.

Similarly, in the case at bar, the testimony established that Father was welcome in
Paul M.’s home and free to attend church with Paul M. and the Children. There was no
evidence that Paul M. had done anything to hinder Father’s co-parenting with the Children.
In fact, he had encouraged and even coerced the Children to visit Father against their will.
Although there was evidence Paul M. became frustrated and somewhat less encouraging of
co-parenting over time, there was a dearth of evidence that Father had attempted to see the
Children and been obstructed by the custodian. There was also no proof Paul M. had
influenced the Children in their negative feelings toward Father or regarding their reluctance
and ultimate refusal to visit. Rather, the Children and their therapist indicated that the
Children’s feelings were based on the fact that Father had not been there for them
surrounding the time of Mother’s death. The Children also embraced a perception of
Father’s inability to empathize with or understand their feelings. We conclude that because
Father cannot establish that his visitation attempts were thwarted by Paul M., he cannot rely
on his own conduct or the Children’s feelings toward him as an excuse for his failure to visit.

Further, the only evidence of enmity between the parties in this case stems from
Father’s dislike of Paul M. Father filed pleadings that contained denigrating remarks about
Paul M. throughout the litigation. The incident on September 9, 2011, was described by the
Children as an occasion wherein Father became angry, kicking Paul M.’s car door. As
referenced earlier, Father pled guilty to the resulting assault charge.

Father admitted at trial that Paul M. did not obstruct Father’s visitation with the
Children. Father instead asserted he did not attempt to visit further so as not to upset them.
A parent’s desire to not “disrupt” the lives of the custodian or the children by visiting,
however, is also not sufficient to excuse a lack of visitation. See In re F.R.R., III, 193
S.W.3d at 530. Since there was no proof Father was prevented from visiting the Children,
the trial court did not err in finding that Father’s admitted failure to visit for at least the
relevant four-month period was willful.

Father’s filing of a document purportedly seeking custody of the Children in the
months prior to the termination petition being filed likewise does not negate a finding of
Father’s willful failure to visit. See, e.g., In re Adoption of Angela E., ___ S.W.3d ___,
W2011-01588-SC-R11-PT, 2013 WL 960626 at *5-6 (Tenn. Mar. 13, 2013). In Angela E.,
our Supreme Court found that the father had done nothing to have his visitation reinstated,
despite the filing of a petition, because he “took no further action to pursue the matter” and
made no attempt to see the Children for almost three years. Id. The father argued that by
filing a petition, he had demonstrated that he did not intend to abandon the Children. Id. The
Court disagreed, finding that there was clear and convincing evidence establishing the

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ground of abandonment by willful failure to visit. Id.

In this case, the record does show that Father filed a “Brief in Support of Writ of
Habeas Corpus” on July 27, 2011, seeking a return of custody. There is nothing in the
record, however, to demonstrate this was ever pursued at the trial court level. Father also
filed a pro se pleading entitled “Proposed Stipulations of Fact” in January 2012, purportedly
in preparation for a hearing in Fourth Circuit Court regarding his appeal of the Juvenile
Court’s dependency and neglect finding. These are the only efforts that Father made toward
maintaining his parent-child relationship during the relevant time period. Even if Father had
established that there was such enmity between the parties that he was prevented from
visiting, these token attempts would be insufficient to negate his complete failure to visit the
Children. As the trial court noted in its ruling, Father’s mistake was not in leaving when the
Children refused to go with him, it was in “not ever coming back or not requesting a different
form of visitation” as Father presented no excuse for not “trying.” Father could have called
or sent cards or gifts, but he did nothing to maintain a relationship with the Children. The
evidence does not preponderate against the trial court’s ruling, by clear and convincing
evidence, that Father willfully failed to visit the Children. This ground for termination must
be affirmed.

VII. Best Interest of Children

While Father has not appealed the trial court’s finding that it is in the Children’s best
interest to terminate his parental rights, we have considered this issue because of its
importance. See In re Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010). When at least
one ground for termination of parental rights has been established, as here, the petitioner
must then prove by clear and convincing evidence that termination of the parent’s rights is
in the Children’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 1994).
When a parent has been found to be unfit by establishment of a ground for termination, the
interests of parent and child diverge, and the focus shifts to what is in the child’s best
interest. In re Audrey S., 182 S.W.3d at 877.

After reviewing the record, we hold that there is clear and convincing evidence that
termination was in the Children’s best interest. Therefore, we affirm the trial court’s
termination of Father’s parental rights.

VIII. Conclusion

The judgment of the trial court terminating the parental rights of Father is affirmed.
Costs on appeal are taxed to appellant, David G. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of

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costs assessed below.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

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