IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 22, 2012
IN RE ISAIAH L. A.
Appeal from the Chancery Court for Knox County
No. 179417-1 John F. Weaver, Chancellor
No. E2012-00761-COA-R3-PT-FILED-DECEMBER 20, 2012
This appeal concerns a termination of parental rights. The appellees filed a petition for
adoption and termination of parental rights with respect to the minor child at issue. The trial
court, upon finding clear and convincing evidence of several grounds on which to base
termination and concluding that termination was in the child’s best interest, revoked the
biological father’s parental rights to the child. The father appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.
Andrew O. Beamer, Knoxville, Tennessee, for the appellant, Fredrick L. A.1
N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, Robert L. A. and Melissa Ann
D. A.
Benjamin T. Norris, Strawberry Plains, Tennessee, guardian ad litem for Isaiah L. A.
OPINION
I. BACKGROUND
The minor child, Isaiah L. A. (“the Child”), was born in Jefferson County, Kentucky,
1
It is the policy of this court to identify the last names of those involved in termination proceedings
by initial.
on June 9, 2007. His mother, Drena G. (“Mother”), was unmarried. No father’s name
appears on the Child’s Kentucky birth certificate, no petition to establish paternity was ever
filed concerning the Child, and no order of paternity ever established the Child’s legal father.
Once the Child was removed to this state, no person registered with the Tennessee Putative
Father registry as the father requesting any notices about the Child. The appellant, Fredrick
L. A. (“Father”), contends in this action that he is the Child’s biological father.2
Within 60 days following the Child’s birth, and ultimately by virtue of a power of
attorney dated November 20, 2008, Mother placed the Child in the physical care and custody
of the maternal great-aunt, Frances S. Weems, a resident of Greene County, Tennessee.3
Following domestic violence incidents between Mother and Father, the Juvenile Court for
Greene County removed the Child from Mother’s legal custody on October 28, 2009, upon
a finding that the Child was subject to an immediate threat of harm. Less than a month later,
on November 23, 2009, Ms. Weems died unexpectedly. Two days after the death of Ms.
Weems, the Greene County court awarded the appellees, Robert L. A. and Melissa Ann D.
A., the maternal great uncle and great aunt of the Child (“the Relatives”),temporary legal
custody of the Child, without any objection of Mother or Father.4 Subsequently, the
Relatives sought legal custody of the Child to prevent him from going into state foster care.
In December 2009, Father and Mother met with the Department of Children’s
Services (“DCS”) to develop a permanency plan.5 The Relatives were given legal custody
of the Child at the final hearing on their petition on July 15, 2010. Neither Mother or Father
appeared at that hearing.
The Relatives filed the instant lawsuit to adopt the Child and to terminate the parental
2
Father testified that he had signed an acknowledgment of paternity at the hospital for his four other
children. However, he was incarcerated at the time the Child was born. As for why he did not acknowledge
paternity at a later date, he claimed that he “didn’t know how to do that” and “didn’t know it needed to be
done.” It is still unknown whether he is the biological father of the Child.
3
Father testified that he and Mother had contact with Ms. Weems “almost every day” during their
time in Tennessee.
4
Father stated he believed the arrangement “to be temporary.”
5
Father testified that he completed domestic violence and anger management classes, but did not have
the paperwork to prove it. He claimed to not know he was required to take parenting classes. Father
acknowledged that he did not complete the DNA testing required by the permanency plan, and that the
juvenile judge had suspended his visitation because he had not followed through on proving he was the
Child’s father.
-2-
rights of Mother and Father on December 28, 2010.6 Father was not incarcerated at the time
this action was instituted. He testified he was arrested on March 16, 2011, for the charges
on which he was being held at the time process was issued on April 19, 2011.7 Legal counsel
was appointed for Father.8
6
An evidentiary hearing on the petition against Mother was held on January 30, 2012. Mother did
not appear; her counsel put in an appearance. Mother ultimately sent a letter consenting to the Child’s
adoption by the Relatives. On March 16, 2012, a final order terminating Mother’s parental rights was
entered pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. She did not file an appeal.
7
If Father had been incarcerated prior to the time of the institution of the action, Tennessee Code
Annotated section 36-1-102(1)(A)(iv) would have been applicable, requiring review of his actions during
the four months preceding incarceration.
8
Tennessee Code Annotated section 36-1-113(f) provides as follows:
Before terminating the rights of any parent or guardian who is incarcerated or who was
incarcerated at the time of an action or proceeding is initiated, it must be affirmatively
shown to the court that such incarcerated parent or guardian received actual notice of the
following:
(1) The time and place of the hearing to terminate parental rights;
(2) That the hearing will determine whether the rights of the incarcerated
parent or guardian should be terminated;
(3) That the incarcerated parent or guardian has the right to participate in
the hearing and contest the allegation that the rights of the incarcerated
parent or guardian should be terminated, and, at the discretion of the court,
such participation may be achieved through personal appearance,
teleconference, telecommunication or other means deemed by the court to
be appropriate under the circumstances;
(4) That if the incarcerated parent or guardian wishes to participate in the
hearing and contest the allegation, such parent or guardian:
(A) If indigent, will be provided with a court-appointed
attorney to assist the parent or guardian in contesting the
allegation; and
(B) Shall have the right to perpetuate such person’s
testimony or that of any witness by means of depositions
or interrogatories as provided by the Tennessee Rules of
Civil Procedure; and
(continued...)
-3-
A trial was held on February 28, 2012. Father, at that time, was still incarcerated in
Jefferson County, Kentucky, but he fully participated in the entire proceeding by telephone
with the assistance of counsel. On March 16, 2012, a final order was entered, pursuant to
Rule 54.02 of the Tennessee Rules of Civil Procedure, terminating the parental rights of
Father, upon the basis of clear and convincing evidence establishing the grounds for
termination in Tennessee Code Annotated sections (g)(1), (g)(2), (g)(3) and (g)(9), and upon
a finding that termination of Father’s parental rights was in the best interest of the Child. The
trial court provided specifically as follows:
Based upon the evidence presented at the hearing, the court finds, by clear and
convincing evidence, that legal grounds exist to terminate the alleged father’s
parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1)-(g)(2)-(g)(3)
and (g)(9).
With regard to the legal grounds of abandonment set forth at Tenn. Code Ann.
§ 36-1-113(g)(1), the court finds from the alleged father’s testimony that in the
four (4) months preceding the filing of the petition (the period beginning
August 28, 2010 to December 28, 2010) that the father (age 35/date of birth
February 6, 1977) was gainfully employed as a saw operator and lead man,
supervising three other employees, at Ohio Valley Aluminum in Shelbyville,
Kentucky. The alleged father was employed there full time from
approximately February, 2010 until laid off in February, 2011, making $13.36-
$16.36 per hour while employed there. The alleged father testified that he did
not pay any child support for the benefit of the minor child during that year of
employment nor pay for a DNA test to establish as the legal father of the child
due to having other financial obligations related to his girlfriend, [Mother], and
another child, Jeremiah A[.], born September 20, 2010, and his three (3) other
children, Deonte A[.], age 16 (Date of birth: 2/27/1996); Fredrick James A[.],
age 11 (date of birth: 9/12/2000); Christopher Joseph Thomas A[.], age 9 (date
of birth: 3/2/2002); by a previous relationship with Lashonda Yocum. The
alleged father has never been married and all of his children have been born
out of wedlock. The court finds that the alleged father’s failure to pay child
support for the minor child was willful in that the alleged father was gainfully
8
(...continued)
(5) If, by means of a signed waiver, the court determines that the
incarcerated parent or guardian has voluntarily waived the right to
participate in the hearing and contest the allegation, or if such parent or
guardian takes no action after receiving the notice of such rights, the court
may proceed with such action without the parent’s or guardian’s
participation.
-4-
employed full time, and did not provide for this child while allegedly
providing for his other four (4) children and this child’s mother.
From November 25, 2009 until suspended by the Court on June 15, 2010, the
alleged father was allowed supervised visitation on each Sunday from 10:00
a.m. until noon. During this period of time the alleged father could have had
twenty-nine (29) visits. The alleged father testified that he visited five (5)
times during that period, and the petitioners testified it was four (4) times.
Thereafter, the alleged father could have had his visitation re-instated during
the four months preceding the filing of the petition, if he had submitted to the
DNA testing. The alleged father testified while living in Greene County the
cost would have been around $200.00 but that he could not afford it and after
returning to Kentucky it was around $500.00, but that his resources while
working were committed otherwise. Due to his refusal to complete the DNA
testing as ordered by the Juvenile Court and as agreed to by the alleged father
in the permanency plan, the Court finds that the failure to visit with the child
was willful. Furthermore, the alleged father failed to maintain contact with the
petitioners and the child concerning his whereabouts after leaving Tennessee
in January, 2010.
With regard to the legal grounds of substantial noncompliance with the
permanency plan set forth at Tenn. Code Ann. § 36-1-113(g)(2), the court
finds from the alleged father’s testimony and the exhibits that the alleged
father participated in the permanency plan process and signed the permanency
plan on December 7, 2009. In the plan the alleged father agreed to submit to
DNA testing to prove his parentage of the child, to take parenting classes,
anger management classes, domestic violence classes, participate in an alcohol
and drug assessment and a parenting assessment, and present proof of
completion of such classes and assessments, obtain and maintain stable
housing for a period of at least four months, to obtain and maintain stable and
legal employment for a period of at least four months, attend marriage
counseling and provide proof of compliance. The alleged father testified that
he never completed the DNA testing due to his alleged lack of resources. He
testified that he completed the anger management and domestic violence
classes but that the certificates were in the possession of his Greene County
attorney. He testified that he was not aware that he needed to take parenting
classes or a drug and alcohol assessment. Following the completion of the
permanency plan in December, 2009, the alleged father along with the mother,
moved back to Kentucky in January, 2010, after discovering that Drena G[.]
was pregnant again with another child and they did not want that child taken
-5-
from them. The respondents never established stable housing and employment
in Greene County, and did not otherwise demonstrate compliance with the
permanency plan after relocating to Kentucky in January, 2010. The court
finds by clear and convincing evidence that there was substantial
noncompliance with the December 7, 2009 statement of responsibilities as
contained in the permanency plan developed by the Tennessee Dept. of
Children’s Services.
With regard to the legal grounds set forth at Tenn. Code Ann. § 36-1-
113(g)(3), the court finds by clear and convincing evidence, that the child was
removed from the home of the alleged father and mother by order of the
Greene County Juvenile Court for a period in excess of six (6) months, upon
a finding of dependency and neglect, on June 15, 2010, and that the conditions
that led to the child’s removal or other conditions that in all reasonable
probability would cause the child to be subjected to further abuse or neglect
and that, therefore, prevents the child’s safe return to the care of the parents,
still persist; there is [little] likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parents in the near
future; and the continuation of the parent and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable and
permanent home. The child has never lived with the alleged father. The
alleged father testified that he is the legal father of all of his other four (4)
children, except for this child. The alleged father was incarcerated at the time
of the child’s birth, and at trial was again incarcerated and awaiting trial on
criminal charges. While the alleged father was allowed supervised visitation
by the Juvenile Court with the child, he completed only a few visits with the
child, and shortly after completion of the permanency plan the alleged father
and mother left Tennessee and relocated to Kentucky to have another child.
The alleged father testified that they left Tennessee because of their fears that
someone might attempt to remove this child from them also once it was born.
Although gainfully employed in Kentucky after relocating there, the alleged
father failed to provide for the child financially. Once the child was placed by
the mother with Frances Weems shortly after his birth, the mother never filed
any proceeding to regain custody of the child, and the alleged father never
filed any legal proceedings for custody of the child.
With regard to the legal grounds set forth at Tenn. Code Ann. § 36-1-
113(g)(9), which apply to putative or alleged father’s who have not legally
legitimated a child, the court finds, by clear and convincing evidence, that:
-6-
(g)(9)(i) The alleged father has made no attempt to repay the
State of Kentucky for any of the birthing costs associated with
the birth of the child. The alleged father insists that the State of
Kentucky has not sought any repayment from him.
(g)(9)(ii) The alleged father has failed, without good cause or
excuse, to make reasonable and consistent payments for the
support of the child in accord[ance] with the Tennessee child
support guidelines, despite testifying that, when employed full
time during 2010, that he supported his other four (4) children
with his resources.
(g)(9)(iii) The alleged father has failed to seek reasonable
visitation with the child, and if visitation has been granted, has
engaged in only token visitation. When granted supervised
visitation by the Greene County Juvenile Court the alleged
father, at best, attempted only 5 of 29 allowable visits, and after
failing to take a DNA test could have had his visitation
reinstated by complying with DNA testing. The father’s
visitation has been token at best.
(g)(9)(iv) The alleged father has failed to manifest an ability
and willingness to assume legal and physical custody of the
child. The alleged father . . . never followed through to establish
any legal rights to the child by proving his parentage (even
though he testified that he established legal rights to his other
four children); never filed any legal proceedings for either
physical or legal custody of the child; and left the state of
Tennessee for Kentucky without completing the permanency
plan he signed.
(g)(9)(v) Placing custody of the child in the alleged father’s
legal and physical custody would pose a risk of substantial harm
to the physical or psychological welfare of the child. The
alleged father has a history of arrests and domestic violence
charges perpetrated against the child’s mother.9 The alleged
9
Father has a lengthy criminal history. Father was arrested in 2002 and received a seven-year
sentence. On May 17, 2007, approximately three weeks prior to the Child’s birth, Father was re-arrested for
(continued...)
-7-
father is currently in jail facing new legal charges. The alleged
father has not shown compliance to the court with domestic
violence classes or anger management classes other than his
unsubstantiated statements that he completed those classes.
As shown by clear and convincing evidence, termination of the
alleged father’s parental rights is in the best interest of the child.
Upon consideration of the factors set forth at Tenn. Code Ann.
§ 36-1-113(i) the court finds that the parents have not made such
an adjustment of circumstances, conduct or conditions as to
make it safe and in the child’s best interest to be in the home of
either the mother or the alleged father. The parents have failed
to effect a lasting adjustment after reasonable efforts by
available social services for such duration of time that lasting
adjustment does not appear reasonably possible. The court finds
that the parents have not maintained regular visitation or contact
with the child and the court finds that no meaningful
relationship has otherwise been established between the parents
and the child. The alleged father admitted in testimony that the
child would be likely unable to identify or recognize him due to
the few contacts between him and the child. The court finds that
a change of caretakers and physical environment is likely to be
detrimental to the child since now, at four (4) years of age, the
child has resided in the petitioners’ home since November,
2009, that the child refers to the petitioners as his mother and
father and to their other two children as his brothers. The
petitioners testified that there is significant bond between the
child and the members of the prospective adoptive family. The
alleged father’s continued involvement in activities leading to
arrests and incarceration render him unable to care for the child
9
(...continued)
a parole violation in Kentucky; at the time of the Child’s birth, Father remained in jail. Following his release
from confinement, Father and Mother again lived together. Father was arrested for domestic violence
against Mother in Kentucky. Subsequently, Father moved to Greeneville, Tennessee, with Mother. He was
arrested twice on domestic violence charges in Greene County against Mother. Subsequent to his arrest in
Greeneville, on January 17, 2010, for domestic violence against Mother, Father served six months in jail.
Thereafter Father and Mother both left Tennessee. Despite only living in Greeneville for six months, Father
and Mother moved back to Kentucky in February, 2010, leaving the Child behind with the Relatives. In
Kentucky, Father was again arrested for numerous new criminal charges.
-8-
on a consistent basis as needed by a child of a young age. The
court finds that the child has not been regularly and consistently
supported by the parents but has been regularly and fully
supported, including health insurance coverage, nurtured and
completely cared for physically, emotionally, mentally and
spiritually by the prospective adoptive parents. The child is in
a loving, stable, safe, and permanent home with the prospective
adoptive parents where he is doing well. The child is related to
the petitioners and the petition[er]s prevented the child from
being placed into state foster care by acting quickly to seek and
maintain custody of him upon the unexpected death of Frances
Weems, his prior custodian.
(Numbering omitted.). The trial court granted full legal guardianship of the Child to the
Relatives. Father filed a timely notice of appeal to this court.
II. ISSUE
The issue raised by Father is whether termination of his parental rights was in the best
interest of the Child.
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.”’ M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).
While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
-9-
re Drinnon, 776 S.W.2d at 97. “[A] court must determine that clear and convincing evidence
proves not only that statutory grounds exist [for termination] but also that termination is in
the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The existence
of at least one statutory basis for termination of parental rights will support the trial court’s
decision to terminate those rights. In re C. W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000),
abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This
evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:
A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn.2007)]. In light of the heightened burden of proof in proceedings under
[Tennessee Code Annotated section] 36-1-113, the reviewing court must then
make its own determination regarding whether the facts, either as found by the
trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination
claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
Appellate courts conduct a de novo review of the trial court’s decisions
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010) ]; In re
Adoption of A.M.H., 215 S.W.3d at 809.
In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010) (emphasis added).
-10-
IV. DISCUSSION
Tennessee Code Annotated section 36-1-113 provides the grounds for termination of
parental rights. The applicable provisions read as follows:
36-1-113. Termination of parental rights. – (a) The chancery and circuit
courts shall have concurrent jurisdiction with the juvenile court to terminate
parental or guardianship rights to a child in a separate proceeding, or as a part
of any grounds for termination of parental or guardianship rights permitted in
this part or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
***
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). . . :
(1) Abandonment by the parent or guardian, as defined in § 36-
1-102, has occurred;
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency
plan pursuant to the provisions of title 37, chapter 2, part 4;
(3) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal
or other conditions that in all reasonable
probability would cause the child to be subjected
-11-
to further abuse or neglect and that, therefore,
prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions
will be remedied at an early date so that the child
can be safely returned to the parent(s) or
guardian(s) in the near future; and
(C) The continuation of the parent or guardian
and child relationship greatly diminishes the
child’s chances of early integration into a safe,
stable and permanent home . . . .
Tenn. Code Ann. §§ 36-1-113(a) - (g)(3)(A)-(C) (Supp. 2012)10
Another applicable statutory provision, Tennessee Code Annotated section 36-1-
113(g)(9)(A), provides as follows:
The parental rights of any person who, at the time of the filing of a petition to
terminate the parental rights of such person or, if no such petition is filed, at
the time of the filing of a petition to adopt a child, is not the legal parent or
guardian of such child or who is described in § 36-1-117)(b) or (c) may also
be terminated based upon any one (1) or more of the following additional
grounds:
(i) The person has failed, without good cause or excuse, to pay
a reasonable share of prenatal, natal, and postnatal expenses
involving the birth of the child in accordance with the person’s
financial means promptly upon the person’s receipt of notice of
the child’s impending birth;
(ii) The person has failed, without good cause or excuse, to
make reasonable and consistent payments for the support of the
child in accordance with the child support guidelines
promulgated by the department pursuant to § 36-5-101;
(iii) The person has failed to seek reasonable visitation with the
10
Recent amendments have not modified provisions applicable in this case.
-12-
child, and if visitation has been granted, has failed to visit
altogether, or has engaged in only token visitation, as defined in
§ 36-1-102(1)(C);
(iv) The person has failed to manifest an ability and willingness
to assume legal and physical custody of the child;
(v) Placing custody of the child in the person’s legal and
physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child; or
(vi) The person has failed to file a petition to establish paternity
of the child within thirty (30) days after notice of alleged
paternity by the child’s mother, or as required in § 36-2-318(j),
or after making a claim of paternity pursuant to § 36-1-117(c)(3)
....
Tenn. Code Ann. § 36-1-113(g)(9)(A) (Supp. 2012).
The pertinent statutory definition of “abandonment” is addressed in Tennessee Code
Annotated section 36-1-102:
(1)(A) For purposes of terminating the parental or guardian rights of parent(s)
or guardian(s) 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 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;
***
(B) For purposes of this subdivision (1), “token support” means that the
support, under the circumstances of the individual case, is insignificant given
the parent’s means.
-13-
(C) For purposes of this subdivision (1), “token visitation” means that the
visitation, under the circumstances of the individual case, constitutes nothing
more than perfunctory visitation or visitation of such infrequent nature or of
such short duration as to merely establish minimal or insubstantial contact with
the child;
(D) For purposes of this subdivision (1), “willfully failed to support” or
“willfully failed to make reasonable payments toward such child’s support”
means the willful failure, for a period of four (4) consecutive months, to
provide monetary support or the willful failure to provide more than token
payments toward the support of the child;
(E) For purposes of this subdivision (1), “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;
***
(G) “Abandonment” and “abandonment of an infant” do not have any other
definition except that which is set forth in this section, it being the intent of the
general assembly to establish the only grounds for abandonment by statutory
definition. Specifically, 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. Decisions of any court
to the contrary are hereby legislatively overruled; and
(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 . . . .
Tenn. Code Ann. § 36-1-102(1)(A)-(H) (2010).
a. Abandonment
The relevant time frame to determine “abandonment” is the four months preceding
the filing of the petition. In the instant case, the petition for adoption and termination of
parental rights was filed on December 28, 2010. Accordingly, the four-month time period
preceding the filing of the petition would have been from August 28, 2010, until December
27, 2010.
-14-
In regard to failure to support the Child, in the four months preceding the filing of the
petition, Father was gainfully employed as a saw operator and lead man, supervising three
other employees, at Ohio Valley Aluminum in Shelbyville, Kentucky. Father testified that
he was employed there full time from approximately February 2010, until laid off in February
2011, making $13.36 -$16.36 per hour. Father further admitted that he did not pay any child
support for the benefit of the Child during that period of employment or pay for a DNA test
to establish himself as the legal father of the Child due to having other financial obligations
related to Mother and his other children.11 We conclude that there was clear and convincing
evidence to establish that Father willfully failed to remit support for the Child.
With regard to the failure to visit with the Child, in the relevant period, Mother and
Father were living in Kentucky after leaving Tennessee in January 2010. Father was in
agreement with the placement of the Child with the Relatives.12 Even when Father had been
granted visitation with the Child, the proof revealed that Father exercised little contact with
the Child. According to the Relatives, their records showed that Father visited the Child four
times.13 Father argues that he could not visit because the juvenile court suspended his
visitation pending the completion of DNA testing to determine his parentage. The record
supports the conclusion that Father’s own actions dictated the prevention of visitation. If he
had submitted to the DNA testing and the results had established him as the father of the
Child, Father’s visitation would have been reinstated. Accordingly, the record reveals clear
and convincing evidence to establish that Father willfully failed to visit the Child.
This court has consistently held that the term willfulness as it applies to a party’s
failure to support or failure to visit must contain the element of intent. In re Swanson, 2
S.W.3d 180, 188-89 (Tenn. 1999). The element of intent utilized in termination proceedings
11
On cross examination by his counsel, Father described the “support” he had provided to the Child.
Q. Do you know how much money you’ve sent?
A. I know I have sent probably, I don’t know, maybe – I sent what I could afford, so I was
taking care of three children, so it might be $50 here, $40 here. He needed shoes one time,
I sent money to Ms. Franc[e]s for that. Other than that, there hasn’t been a whole lot, no.
12
Regarding to the Child’s placement with the Relatives, Father testified that he did not want the
Child removed from their home, but simply wanted to have contact with him. Concerning his relationship
with the Child, Father candidly admitted that “I would be almost a stranger to him.” Father stated his main
opposition to the adoption was the changing of the Child’s name: “I’m opposed to the adoption as far as
changing the name.” “Again, like I said, I don’t oppose him staying with them and I know he would be
happy there.”
13
Father claimed that he had tried to contact the Child, but had been rebuked by the Relatives.
-15-
“does not require the same standard of culpability as is required by the penal code.” In re
Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). “Willful conduct consists of acts or
failures to act that are intentional or voluntary rather than accidental or inadvertent.” Id.
“[A] person acts ‘willfully’ if he or she is a free agent, knows what he or she is doing, and
intends to do what he or she is doing.” Id. at 863-64. Additionally, “‘[f]ailure to support a
child is ‘willful’ when a person is aware of his or her duty to support, has the capacity to
provide the support, makes no attempt to provide the support, and has no justifiable excuse
for not providing the support.’” In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005)
(quoting In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT, 2004 WL 1085228, at
*4 (Tenn. Ct. App. May 12, 2004)).
Based upon the factual findings, the trial court properly found that the Relatives met
their burden of proof with regard to abandonment under Tennessee Code Annotated section
36-1-113(g)(1).
b. Permanency Plan
Father did not raise any challenges to the trial court’s finding regarding Tennessee
Code Annotated section 36-1-113(g)(2) – non compliance with the permanency plan. The
proof established that the juvenile court approved a non-custodial permanency plan, which
Father signed on December 7, 2009. Subsequently, Father moved back to Kentucky the
following month. He did not attend the next court hearing in June 2010, at which time the
Child was found dependent and neglected by clear and convincing evidence and the Child’s
placement was continued with the Relatives. No evidence was presented to the juvenile court
that Father had completed any of the goals and requirements in the permanency plan. At the
time of trial, Father again failed to establish that he had complied with the permanency plan.
Based upon the record, the trial court properly determined that the Relatives met their burden
of proof under (g)(2).
c. Persistent Conditions
Father also did not raise any issues regarding the court’s finding pursuant to
Tennessee Code Annotated section 36-1-113(g)(3) – persistent conditions.
At a hearing after the development of the permanency plan, the juvenile court found
that the Child was dependent and neglected. The court determined that Father had not
legitimated the Child. At a later juvenile court hearing in June 2010, Father did not attend
and provided no evidence of compliance with the permanency plan. Father had not
-16-
supported the Child or visited with the Child since returning to Kentucky. At the time of
trial, Father was incarcerated, as he had been at the Child’s birth. Father therefore was
unable to work to support the Child. We conclude that there was clear and convincing
evidence to establish that the conditions that led to removal and other conditions that prevent
the Child’s safe return persist, that there is little likelihood the conditions will be remedied
at an early date, and that the continuation of Father’s relationship with the Child will greatly
diminish the Child’s chances of early integration into a safe, stable, and permanent home.
Accordingly, the record supports the conclusion of the trial court regarding this ground.
d. “Putative Father”
Tennessee Code Annotated section 36-1-113(g)(9)(A) relates to terminating the
parental rights of putative fathers. Sufficient proof of any single ground is sufficient to
terminate parental rights under (g)(9)(A). The record clearly reveals that Father has failed,
without good cause or excuse, to pay a reasonable share of prenatal, natal, and postnatal
expenses involving the birth of the Child in accordance with Father’s financial means
promptly upon notice. Father also has failed, without good cause or excuse, to make
reasonable and consistent support payments for the Child. Father worked and earned income
during the four months preceding the filing of the petition, and he allegedly provided
financial support for Mother and his four other children. However, he did not use any of his
income or resources to pay for the DNA test or to support the Child. Additionally, Father has
failed to seek reasonable visitation with the Child, and of the visitation that was granted to
him, he made only token if any visits. When visitation was stopped due to Father’s refusal
to take a DNA test, Father never took the necessary test to resume visitation with the Child.
Further, Father clearly has failed to manifest any ability and willingness to assume
legal and physical custody of the Child. He did not take steps to legitimate the Child through
legal proceedings or to demonstrate compliance with the court-approved permanency plan.
He never filed a petition for custody of the Child. His incarceration now renders him unable
to take the Child. Further, placing the Child in Father’s legal and physical custody would
pose a risk of substantial harm to the physical or psychological welfare of the Child. The
Relatives have met their burden of proof under (g)(9)(A).
e. Best Interest
Having concluded that there was clear and convincing evidence supporting the
statutory ground to terminate Father’s parental rights, we must consider whether termination
-17-
of Father’s parental rights was in the best interest of the Child. In making this determination,
we are guided by the non-exhaustive list of factors provided in Tennessee Code Annotated
section 36–1–113:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child . . . the court shall consider, but is not limited to,
the following:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol or
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
-18-
(8) Whether the parent’s or guardian’s mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to [section] 36-5-101.
Tenn. Code Ann. § 36-1-113(i) (2010). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may conclude
that terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when
the best interest[] of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interest[] of the child, which interests are
hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering
a child’s best interest, the court must take the child’s perspective, rather than the parent’s).
As found by the trial court, Father had not made such an adjustment of circumstances,
conduct, or conditions as to make it safe and in the Child’s best interest to be in Father’s
home. Father had failed to effect a lasting adjustment after reasonable efforts by available
social services for such duration of time that lasting adjustment does not appear reasonably
possible. Father had not maintained regular visitation or contact with the Child and no
meaningful relationship had otherwise been established between them. A change of
caretakers and physical environment would be detrimental to the Child, who thinks of the
Relatives as his parents. We conclude that there was clear and convincing evidence to
establish that termination of Father’s parental rights was in the best interest of the Child.
V. CONCLUSION
The judgment of the trial court is affirmed and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are assessed to the appellant, Fredrick
L. A.
___________________________
JOHN W. McCLARTY, JUDGE
-19-