IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 7, 2004
IN RE S.M.
Appeal from the Juvenile Court for Davidson County
No. 2219-67013 Betty Adams Green, Judge
No. M2003-00422-COA-R3-PT - Filed January 15, 2004
This appeal involves the termination of the parental rights of a biological father whose daughter was
surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the
biological father that it had custody of the child, the agency filed a petition in the Davidson County
Juvenile Court seeking to terminate the father’s parental rights. Following a bench trial, the juvenile
court concluded that the biological father had abandoned his daughter and that the child’s best
interests required terminating her biological father’s parental rights. We have determined that the
agency has failed to present clear and convincing evidence that the biological father has abandoned
his daughter.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed
WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which PATRICIA J.
COTTRELL , J., joined. WILLIAM B. CAIN , J., filed a concurring opinion.
Joanie L. Abernathy, Franklin, Tennessee, for the appellant.
Lisa L. Collins, Nashville, Tennessee, for the appellee, The Association for Guidance, Aid,
Placement and Empathy.
Susie Piper McGowan, Nunnelly, Tennessee, Guardian Ad Litem.
OPINION
I.
R.G.L. was born in Guadalajara, Mexico and migrated to Middle Tennessee in the late 1990s
to join several members of his family who were already residing in Nashville.1 He is twenty-three
years old and works as a house painter. He also has a wife and a daughter who are now residing in
Mexico. R.G.L. attended school in Mexico until he was fourteen, and he is not fluent in English.
1
R.G.L.’s mother, father, brother, and several uncles and cousins were already living in Nashville.
Sometime in 2000, R.G.L. became romantically involved with C.M., a teenage Mexican
emigré who was living in Nashville with another man. After R.G.L. discovered that C.M. was
pregnant, he provided her approximately $1,000 for medical expenses and clothing, and eventually
paid for her to travel to Chicago to be with her mother during the later stages of her pregnancy.
However, R.G.L.’s relationship with C.M. was strained because she apparently declined to end her
relationship with the other man with whom she had been living.
In September 2001, during her eighth month of pregnancy, C.M., without R.G.L.’s
knowledge, made an arrangement with The Association for Guidance, Aid, Placement and Empathy
(“A.G.A.P.E.”),2 a licensed child-placing agency in Nashville, to surrender her child for adoption.
Christy Akers, a social worker employed by A.G.A.P.E., informed C.M. that the child could not be
placed for adoption without the biological father’s consent. For some reason, C.M. informed Ms.
Akers that O.M.O. was the child’s biological father and, at Ms. Akers’s direction, obtained O.M.O.’s
written waiver of his interest in the child. As far as the record shows, A.G.A.P.E. never undertook
to independently verify that O.M.O. was the child’s biological father.
C.M. gave birth to S.M. on September 28, 2001 in Nashville. The child’s birth certificate
did not list a father’s name, and two days following the birth, A.G.A.P.E. took custody of the child
and placed her with her pre-adoptive family. 3 For its efforts, A.G.A.P.E. received a $1,000 fee for
inspecting the adoptive parents’ home, as well as a $9,500 placement fee. When R.G.L. inquired
about the baby, C.M. and her mother told him that the child had died. R.G.L. did not pursue the
matter.
On February 12, 2002, C.M. returned to A.G.A.P.E.’s office and told Ms. Akers that O.M.O.
was not S.M.’s biological father. She revealed that R.G.L. was actually the child’s father and
provided Ms. Akers with his telephone number. Ms. Akers later characterized the news as
“disconcerting” because she understood immediately that it would cause problems with the
adoption. Ms. Akers, who does not speak Spanish, decided to call R.G.L. immediately. When she
reached him by telephone on February 13, 2002, she told him that A.G.A.P.E. had custody of his
daughter and that she wanted to talk with him as soon as possible. R.G.L. told her that he could not
understand her and that she should talk with his brother who was more fluent in English. In a later
telephone conversation with R.G.L.’s brother, Ms. Akers arranged for a meeting with R.G.L. on
February 20, 2002.
2
The first letters of the organization’s name are an acronym spelling “agape.” While the word has several
meanings, the organization’s intended reference is to one of the Greek words for “love” that is now mo st com mon ly
understood in the N ew T estament sense as Christian love (of God or Christ o r fellow C hristians). 1 T HE O XFORD
E N G LIS H D IC T IO N A R Y 243 (2d ed. 1989 ).
3
Ms. Akers characterized S.M.’s initial placement as “preadoptive” because A.G.A.P.E. had entered into an
adoption contract with the parents and because A.G.A.P.E. believed that the biological parents had been identified, that
these parents had surrendered their parental rights, and that the rescission period had passed. However, when A.G.A.P.E.
learned that R.G.L. was actually the child’s biological father, it changed the characterization of the placement from “pre-
adoptive” to “legal risk.” A legal-risk placem ent reflects the reality that the bio logical parents may b e permitted to visit
the child and that a plan of care resulting in the eventual reunification of the child with one of its biological parents may
be ad opted.
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R.G.L. and Ms. Akers met on February 20, 2002 at A.G.A.P.E.’s office. He was
accompanied by John Faccadio, his employer.4 Ms. Akers readily observed that R.G.L.’s English
was “limited,” and so Mr. Faccadio translated for both of them as best he could. R.G.L. explained
to Ms. Akers that C.M. had told him that S.M. had died and that he had not attempted to verify that
information. He also provided details regarding his personal background and relationship with C.M.
He told her about his migration from Mexico, his immigration status, and his employment and salary.
R.G.L. also told Ms. Akers that his wife had discovered his relationship with C.M. and that she and
their daughter had returned to Mexico in January 2002.
Ms. Akers informed R.G.L. that his daughter had not died and that she was, in fact, healthy
and in A.G.A.P.E.’s custody.5 When R.G.L. asked to see his child, Ms. Akers told him that she
could do nothing to assist him and that she could not provide him with any additional information.
She told him that he needed to take steps if he desired to have a relationship with his daughter and
that he should hire a lawyer and file a petition to establish parentage within thirty days. Ms. Akers
did not inform R.G.L. of his parental rights or describe how R.G.L. could arrange for visitation or
begin paying child support.
On the day after her meeting with R.G.L., Ms. Akers met with A.G.A.P.E.’s lawyer to decide
what should be done about S.M. Terminating R.G.L.’s parental rights was one of the options
discussed. Soon thereafter, A.G.A.P.E. decided to pursue terminating R.G.L.’s parental rights. After
making the decision to file suit, A.G.A.P.E. opposed permitting R.G.L. to establish any sort of
parental relationship with S.M. On March 12, 2002, less than thirty days following Ms. Akers’s
meeting with R.G.L., A.G.A.P.E. filed a petition in the Davidson County Juvenile Court to terminate
R.G.L.’s parental rights on the ground of abandonment.
Within days after meeting with Ms. Akers, R.G.L. retained a lawyer to begin the proceedings
to establish his parentage of S.M. as Ms. Akers suggested. On April 9, 2002, his lawyer filed a
petition to establish parentage. Three days later, he filed an answer to A.G.A.P.E.’s petition denying
that R.G.L. had abandoned the child. Following a hearing on April 12, 2002, the juvenile court
entered an order on April 30, 2002, (1) appointing a guardian ad litem for S.M., (2) directing the
parties to undergo genetic testing to determine S.M.’s parentage, and (3) setting a hearing on
A.G.A.P.E.’s petition for September 18, 2002.
The results of the genetic tests were released in early June 2002 and demonstrated
conclusively that R.G.L. was S.M.’s biological father. The trial was continued twice and was
eventually rescheduled for December 16, 2002. In the meantime, A.G.A.P.E. filed two amended
termination petitions because R.G.L. had neither visited nor supported S.M. since his February 2002
meeting with Ms. Akers. In late October or early December, R.G.L. became concerned that he had
heard nothing from his lawyer about the status of his case and asked Mr. Faccadio and his brother
4
Mr. Faccadio did not speak Spanish when he first met R.G.L. He acquired whatever proficiency he had during
the five years R.G.L. had been working for him.
5
As far as this record shows, Ms. Akers did not tell R.G.L. that his daughter had already been placed in a pre-
adoptive home.
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to call Ms. Akers about his daughter. Ms. Akers informed Mr. Faccadio that no contact should be
made directly and that all future communications regarding the child should be through the lawyers.
Shortly thereafter, R.G.L. hired another lawyer who filed a petition requesting the juvenile court to
set visitation and child support. The juvenile court denied the motion pending the hearing on
A.G.A.P.E.’s termination petition.
At the December 16, 2002 hearing, R.G.L. presented evidence regarding his desire to gain
custody of his daughter, his parenting skills, and the plans he had made to care for his daughter
should the court grant him custody.6 A.G.A.P.E. asserted that R.G.L. had abandoned S.M. by (1)
failing to reimburse C.M. for her birth expenses, (2) failing to pay financial support, and (3) failing
to visit. It also asserted that placing S.M. with R.G.L. would not be in her best interests because she
had been living with her pre-adoptive parents for one year and because R.G.L. was an undocumented
worker subject to being deported. The transcript of the hearing reflects R.G.L.’s lack of command
of English. An interpreter was used during the hearing, and on several occasions, R.G.L. stated that
he did not understand the questions or the proceeding. On January 21, 2003, the juvenile court
entered an order terminating R.G.L.’s parental rights with regard to S.M.
II.
A biological parent’s7 right to the care and custody of his or her child is among the oldest of
the judicially recognized liberty interests protected by the Due Process Clauses of the federal and
state constitutions.8 Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); Hawk v.
Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); Ray v. Ray, 83 S.W.3d at 731. While this right is
fundamental and superior to the claims of other persons and the government, it is not absolute. It
continues without interruption only as long as a parent has not relinquished it, abandoned it, or
engaged in conduct requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141
(Tenn. 2002); Stokes v. Arnold, 27 S.W.3d 516, 520 (Tenn. Ct. App. 2000); O’Daniel v. Messier,
905 S.W.2d 182, 186 (Tenn. Ct. App. 1995).
Termination proceedings in Tennessee are governed by statute. Parties seeking to terminate
a biological parent’s parental rights must prove two things. First, they must prove the existence of
6
R.G.L.’s mother plans to quit her job and becom e the child’s full-time caregiver.
7
This right exists notwithstanding the marital status of the child’s biological parents who have established or
are attemp ting to establish a re lationship with the child. Lehr v. Robertson, 463 U.S. 248, 262, 103 S. Ct. 2985, 2993-94
(1983); Jon es v. G arrett, 92 S.W.3d 835, 840 (Tenn. 2002) (extending the right to biological fathers who have grasped
the opportunity to develop a relationship with the child); In re Swanson, 2 S.W.3d 180 , 188 n.12 (Te nn. 19 99); Ray v.
Ray, 83 S.W .3d 72 6, 732 (Tenn Ct. App . 2001 ). The right also extend s to adoptive parents. Simmons v. Simmons, 900
S.W .2d 6 82, 6 84 (Tenn. 19 95).
8
U.S. Const. amend. XIV, § 1; Tenn. Const. art. I, § 8.
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at least one of the statutory grounds for termination.9 Tenn. Code Ann. § 36-1-113(c)(1); In re
D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); Jones v. Garrett, 92 S.W.3d at 838. Second, they must
prove that terminating the parent’s parental rights is in the child’s best interests.10 Tenn. Code Ann.
§ 36-1-113(c)(2); In re A.W., 114 S.W.3d 541, 544 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d
467, 473-74 (Tenn. Ct. App. 2000); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).
Because a decree terminating a biological parent’s parental rights obliterates the parent-child
relationship and, in the eyes of the law, relegates a biological parent to the role of a complete stranger
to his or her child,11 both the federal and state constitutions require an individualized determination
of the existence of the required statutory grounds before the courts may terminate a biological
parent’s parental rights. Stanley v. Illinois, 405 U.S. 645, 658-59, 92 S. Ct. 1208, 1216 (1972); In
re Swanson, 2 S.W.3d at 188; In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002).
Accordingly, Tenn. Code Ann. § 36-1-113(k) requires trial courts to enter written orders containing
specific findings of fact and conclusions of law in termination cases.12 A trial court’s failure to
comply with Tenn. Code Ann. § 36-1-113(k) fatally undermines the validity of a termination order.
In re D.L.B., 118 S.W.3d at 367-68; In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003
WL 22794524, at *3 (Tenn. Ct. App. Nov. 25, 2003).
In light of the constitutional dimension of parental rights, 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 Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re A.W., 114 S.W.3d at 545.
This heightened standard of review prevents unwarranted termination or interference with a
biological parent’s parental rights. In re C.W.W., 37 S.W.3d at 473; In re M.W.A., Jr., 980 S.W.2d
at 622. Evidence satisfying the clear and convincing evidence standard eliminates any serious or
substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine,
79 S.W.2d at 546; Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997); In re C.D.B., 37 S.W.3d
925, 927 (Tenn. Ct. App. 2000). It produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the propositions sought to be established. In re A.D.A., 84 S.W.3d at 596; Ray
v. Ray, 83 S.W.3d at 733; In re C.W.W., 37 S.W.3d at 474.
Because of the heightened burden of proof required by Tenn. Code Ann. § 36-1-113(c), we
must adapt Tenn. R. App. P. 13(d)’s customary standard of review for cases of this sort. First, we
must review the trial court’s specific findings of fact de novo in accordance with Tenn. R. App. P.
13(d). Thus, each of the trial court’s specific factual findings will be presumed to be correct unless
9
The statutory grounds for terminating parental rights are found in Tenn. Code Ann. § 36-1-113(g) (Supp.
2003).
10
The factors to be considered in a “best interests” analysis can be found in Tenn. Code Ann. § 36 -1-113(i).
11
In re Kn ott, 138 Tenn. 349 , 355 , 197 S.W . 109 7, 10 98 (191 7); O’Daniel v. Messier, 905 S.W.2d 182, 186
(Tenn. C t. App . 199 5); In re Adoption of Dearing, 572 S.W .2d 9 29, 9 32 (Tenn. Ct. A pp. 1978 ).
12
Because of Tenn. Code A nn. § 36-1-113(k), trial courts may not simply make oral findings of fact from the
bench and then adopt them by reference in their final ord er. In re C.R.B., No. M2003-00345-COA-R3-JV, 2003 WL
22680 911, at *3-4 (Tenn. Ct. App. Nov. 13 , 2003).
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the evidence preponderates otherwise. Second, we must determine whether the facts, either as found
by the trial court or as supported by the preponderance of the evidence, clearly and convincingly
establish the grounds for terminating the biological parent’s parental rights. Jones v. Garrett, 92
S.W.3d at 838; In re Valentine, 79 S.W.3d at 546; In re Adoption of Muir, 2003 WL 22794524, at
*2; In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *9-10 (Tenn. Ct. App. June
3, 2003) (No Tenn. R. App. P. 11 application filed); Ray v. Ray, 83 S.W.3d at 733; In re L.S.W., No.
M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct. App. Sept. 6, 2001), perm. app.
denied (Tenn. Dec. 27, 2001).13
III.
The juvenile court determined that the record contains clear and convincing evidence
warranting the termination of R.G.L.’s parental rights on two statutory grounds – Tenn. Code Ann.
§ 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-113(g)(9). We have determined that Tenn. Code Ann.
§ 36-1-113(g)(9) is inapplicable to R.G.L. and that the record does not contain the clear and
convincing evidence of willfulness required to support a termination based on abandonment under
Tenn. Code Ann. § 36-1-113(g)(1).
A.
Tenn. Code Ann. § 36-1-113(g)(9)(A) contains six grounds for terminating the parental rights
of a person who, at the time of the hearing, is not the legal parent or guardian of the child or who is
not among the persons described in Tenn. Code Ann. § 36-1-117(b) or (c).14 The Tennessee
Supreme Court has determined that this statute affords legal parents a heightened level of protection
concerning their parental rights and that the grounds for termination in Tenn. Code Ann. § 36-1-
113(g)(9)(A) can only be applied to persons identified in the statute. Jones v. Garrett, 92 S.W.3d
at 839. Thus, the pivotal question is whether R.G.L. is among the class of persons against whom the
grounds for termination in Tenn. Code Ann. § 36-1-113(g)(9)(A) may be applied.
13
These decisions dra w a distinction betwee n specific facts and the co mbined weight of these facts. Tenn. R.
App. P. 13 (d) requires us to defer to the trial court’s specific findings of fact as long as they are supp orted by a
preponderance of the evidence. However, we are the ones who must then determine whether the combined weight of
these facts provides clear and convincing evidence supporting the trial court’s ultimate factual conclusion. The
Tennessee Supreme Co urt used this approach in In re Valentine when it recognized the difference between the conclusion
that a biological parent had not complied substantially with her obligations in a permanency plan a nd the facts relied
upon by the trial court to supp ort this co nclusion. In re Valentine, 79 S.W.3d at 548-49; see also Jones v. Garrett, 92
S.W .3d at 838 .
14
These persons include: a person who has filed an action to establish parentage regarding a child who is the
subject of an adop tion proceeding, Tenn. Co de A nn. § 36-1-117(b)(1), a biological father who has filed with the putative
father registry, Tenn. Code Ann. § 36-1-117(c)(1), a biological father who has been identified by the child’s biological
mother in a sworn written statement or by other information which the court determines to be credible and reliable, Tenn.
Code Ann. § 36-1-117(c)(2), a biological father who has claimed to be the child’s biological father, Tenn. Cod e Ann.
§ 36-1 -117 (c)(3), a biological father whose name is recorded on the birth certificate, Tenn. Code A nn. § 36-1-117(c)(4),
a biological father living openly with the child when an adoptio n pro ceed ing is commenced, Tenn. Code Ann. § 36-1-
117 (c)(5), and a biological father who has entered into a parenting plan, Tenn. C ode Ann. § 36-1 -117 (c)(6).
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There are two reasons why Tenn. Code Ann. § 36-1-113(g)(9) does not apply to R.G.L. First,
he had filed a petition to establish parentage eight months before the hearing on A.G.A.P.E.’s
petition to terminate his parental rights. Tenn. Code Ann. § 36-1-117(b)(2) reflects a clear
preference for determining questions of parentage before considering a petition to terminate parental
rights, Jones v. Garrett, 92 S.W.3d at 839, and thus the trial court should have taken up and
adjudicated the question of R.G.L.’s parentage before addressing the termination question. See Nale
v. Robertson, 871 S.W.2d 674, 680 (Tenn. 1994). Second, by the time of the hearing, genetic testing
had conclusively determined that R.G.L. was M.S.’s biological father, and the parties and the trial
court essentially stipulated that to be the case. Under these facts, the grounds for termination in
Tenn. Code Ann. § 36-1-113(g)(9)(A) are inapplicable to R.G.L. In re T.K.Y., No. M2002-00815-
COA-R3-JV, 2003 WL 1733583, at *3 (Tenn. Ct. App. Apr. 2, 2003), perm. app. denied (Tenn.
Sept. 2, 2003) (Tenn. Code Ann. § 36-1-113(g)(9) is inapplicable when the trial court heard the
termination petition without considering the pending legitimation petition and the parties agreed that
DNA testing established that the putative father was the child’s biological father).
B.
For the purpose of A.G.A.P.E.’s abandonment claim, current state law defines
“abandonment” as follows:
For a period of four (4) consecutive months immediately preceding
the filing of a . . . pleading to terminate the parental rights of the
parent(s) . . . of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent(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.
Tenn. Code Ann. § 36-1-102(1)(A)(i). In addition, Tenn. Code Ann. § 36-1-102(1)(D) defines
“willfully failed to support” as “the willful failure, for a period of four (4) consecutive months, to
provide monetary support or the willful failure to provide more than token payments15 toward the
support of the child.” Likewise, Tenn. Code Ann. § 36-1-102(1)(E) defines “willfully failed to visit”
as “the willful failure, for a period of four (4) consecutive months, to visit or engage in more than
token visitation.”16
The concept of “willfulness” is at the core of the statutory definition of abandonment. For
the purpose of Tenn. Code Ann. § 36-1-102(1)(A)(i), a parent cannot be found to have abandoned
15
Tenn. Code Ann. § 36-1-102(1)(B) defines “token support” as support that “under the circumstances of the
individual case, is insignificant given the parent’s me ans.”
16
Tenn. Code Ann. § 36-1-102(1)(C) defines “token visitation” as visitation that “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 estab lish minimal or insubstantial contact with the child.”
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a child unless the parent either has “willfully” failed to engage in more than token visitation or has
“willfully” failed to provide more than token monetary support to the child for four consecutive
months. “Willfully” is a word of many meanings, and so each use of the word must be interpreted
with reference to the statutory context in which it appears. United States v. Sanchez-Corcino, 85 F.3d
549, 552-53 (11th Cir.1996); In re Adoption of Muir, 2003 WL 22794524 at *5; GEORGE W.
PATTON , A TEXTBOOK ON JURISPRUDENCE 313 n. 2 (4th ed.1972) (suggesting that use of the word
should be avoided because of its ambiguities).
“Willfulness” does not require the same standard of culpability required by the penal code.
G.T. v. Adoption of A.E.T., 725 So. 2d 404, 409 (Fla. Dist. Ct. App. 1999). Nor does it require
malevolence or ill will. In re Adoption of a Minor, 178 N.E.2d 264, 267 (Mass. 1961). Willful
conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or
inadvertent. In re Mazzeo, 131 F.3d 295, 299 (2d Cir. 1997); United States v. Phillips, 19 F.3d 1565,
1576 (11th Cir. 1994); In re Adoption of Earhart, 190 N.E.2d 468, 470 (Ohio Ct. App. 1961); Meyer
v. Skyline Mobile Homes, 589 P.2d 89, 97 (Idaho 1979). Conduct is “willful” if it is the product of
free will rather than coercion. Thus, a person acts “willfully” if he or she is a free agent, knows what
he or she is doing, and intends to do what he or she is doing.
Failure 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.17 Shorter v. Reeves, 32 S.W.3d 758, 760 (Ark. Ct.
App. 2000); In re B.S.R., 965 S.W.2d 444, 449 (Mo. Ct. App. 1998); In re Estate of Teaschenko, 574
A.2d 649, 652 (Pa. Super. Ct. 1990); In re Adoption of C.C.T., 640 P.2d 73, 76 (Wyo. 1982). Failure
to support is not excused by another person’s conduct unless the conduct actually prevents the person
with the obligation to perform his or her duty to support, In re Adoption of Lybrand, 946 S.W.2d
946, 950 (Ark. 1997), or amounts to a significant restraint or interference with the parent’s efforts
to support or develop a relationship with his or her child. In re Serre, 665 N.E.2d 1185, 1189 (Ohio
Ct. C.P. 1996); Panter v. Ash, 33 P.3d 1028, 1031 (Or. Ct. App. 2001).18 Thus, attempts by others
to frustrate or impede a parent’s visitation do not provide justification for failing to financially
support a child. Bateman v. Futch, 501 S.E.2d 615, 617 (Ga. Ct. App. 1998); In re Leitch, 732 So.
2d 632, 636 n.5 (La. Ct. App. 1999).
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
17
A pa rent who fails to suppo rt a child beca use he or she is financially unable to do so is not willfully failing
to supp ort the child. O’Daniel v. Messier, 905 S.W.2d at 188; Pierc e v. Bechtold, 60 Tenn. App. 478, 487, 448 S.W.2d
425, 429 (1969).
18
Conduct that amounts to a significant restraint or interference with a parent's efforts to support or develop a
relationship with a child includes (1) telling a man he is not the child's biological father, (2) blocking access to the child,
(3) keeping the child's whereabouts unknown, (4) vigorously resisting the parent's efforts to support the child, or (5)
vigorously resisting a parent's efforts to visit the child. In re S.A.B., 735 So.2 d 52 3, 52 4 (Fla.Dist.Ct.App .199 9); In re
Adoption of Children by G .P.B., Jr., 161 N.J. 396 , 406 , 736 A.2d 127 7, 12 82 (N.J.199 9); Pan ter v. Ash, 33 P.3d at 1031.
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intentions or motivations. American Cable Corp. v. ACI Mgmt., Inc., No. M1997-00280-COA-R3-
CV, 2000 WL 1291265, at *4 (Tenn. Ct. App. Sept. 14, 2000) (No Tenn. R. App. P. 11 application
filed). Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct. See Johnson City v. Wolfe. 103 Tenn. 277, 282, 52 S.W. 991, 992
(1899); Absar v. Jones, 833 S.W.2d 86, 89-90 (Tenn. Ct. App. 1992); State v. Washington, 658
S.W.2d 144, 146 (Tenn. Crim. App. 1983); see also In re K.L.C., 9 S.W.3d 768, 773 (Mo. Ct. App.
2000).
A.G.A.P.E.’s decisions to file three termination petitions somewhat complicate identifying
the proper four-month period to be considered under Tenn. Code Ann. § 36-1-102(1)(A)(i).19 Each
of the petitions alleged that R.G.L. had willfully failed to visit and support S.M. for four consecutive
months immediately preceding the filing of the petition. Viewing the petitions together, A.G.A.P.E.
is essentially asserting that R.G.L. has willfully failed to visit or support S.M. since November 15,
2001.
We turn first to the four-month period immediately preceding the filing of A.G.A.P.E.’s
original petition. R.G.L. did not willfully fail to support or visit S.M. during this entire period
because he had a justifiable reason not to – he believed that S.M. had died. This belief was
reasonable because he received this information from C.M., the child’s own mother, and other
members of her family. While A.G.A.P.E. insinuates otherwise, R.G.L. did not have an obligation
to launch an independent investigation to determine whether C.M. and her mother were telling him
the truth. He was justified in believing the child’s own mother.
We turn next to the period from February 20, 2002, when R.G.L. first met with Ms. Akers
and December 16, 2002, the date of the termination hearing. It is undisputed that R.G.L. neither
visited nor financially supported S.M. during this time. The reasons for this are plain and
straightforward. First, A.G.A.P.E. was not promoting the development of a relationship between
R.G.L. and S.M. because it knew that doing so would undermine the placement and the planned
adoption. Rather than voluntarily cooperating or assisting R.G.L., A.G.A.P.E. essentially took the
position to force R.G.L. to litigate if he desired to develop a relationship with his child. Accordingly,
A.G.A.P.E.’s advice to R.G.L. was to hire a lawyer and file suit. R.G.L. followed A.G.A.P.E.’s
directions. He hired a lawyer within days after his meeting with Ms. Akers, and his lawyer filed a
petition to establish parentage less than one month later.
R.G.L. has a limited education and a limited command of English. It is unclear precisely how
much of the process put in motion by A.G.A.P.E. he understood. The record contains no evidence
that he has refused to comply with any court order or that he has not diligently pursued establishing
a relationship with S.M. through the courts. He cannot be held responsible for the juvenile court’s
failure to dispose of his petition to establish parentage in a timely manner. Had the juvenile court
done so and ordered R.G.L. to begin paying child support, there is no indication in the record that
he would have refused to do so. Accordingly, we have determined that R.G.L. has a justifiable
19
A.G .A.P.E.’s original petition was filed on March 15, 2002. Its first amended petition was filed on June 17,
2002, and its second amended petition on October 18, 2002.
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excuse for failing to support and visit S.M. between the filing of A.G.A.P.E.’s original termination
petition and the final hearing.
Based on this record, we have determined that A.G.A.P.E. has failed to present clear and
convincing evidence that R.G.L. abandoned S.M. by willfully failing to support or visit her. Because
A.G.A.P.E. has failed to establish at least one statutory ground for terminating R.G.L.’s parental
rights, it is unnecessary and premature to determine whether the record contains clear and convincing
evidence that terminating his parental rights would be in S.M.’s best interests.
IV.
We vacate the portion of the January 21, 2003 order terminating R.G.L.’s parental rights with
regard to S.M. and remand the case to the juvenile court for further proceedings consistent with this
opinion. Our action does not disturb the juvenile court’s orders naming A.G.A.P.E. as S.M.’s
guardian. The costs of the appeal are taxed to The Association for Guidance, Aid, Placement and
Empathy for which execution if necessary may issue. Pursuant to Tenn. R. App. P. 42(a), the
mandate in this case shall issue thirty days following the filing of this opinion.
________________________________
WILLIAM C. KOCH, JR., P.J., M.S.
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