In re Alexis B.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 16, 2015

IN RE ALEXIS B.

Appeal from the Probate and Family Court for Cumberland County
No. 2013-PF-3498 Larry Michael Warner, Judge

No. E2014-00943-COA-R3-PT-FILED-APRIL 14, 2015

This is a termination of parental rights case, focusing on Alexis B., the minor child (“the
Child”) of Katie R. (“Mother”) and Johnny R.B. (“Father”). On August 26, 2013, the
Child‟s paternal grandparents, Johnny B. and Deborah B. (“Grandparents”), filed a
petition to terminate the parental rights of both parents and adopt the Child. Father
subsequently agreed to surrender his parental rights to the Child, and he is not a party to
this appeal. Following a bench trial, the trial court found that grounds existed to
terminate the parental rights of Mother upon its finding, by clear and convincing
evidence, that Mother had abandoned the Child by willfully failing to provide financial
support and willfully failing to visit the Child in the four months preceding the filing of
the petition. The court further found, by clear and convincing evidence, that termination
of Mother‟s parental rights was in the Child‟s best interest. Mother has appealed.
Having concluded that the evidence preponderates against a finding that Mother had the
ability to financially support the Child during the determinative period, we reverse the
trial court‟s finding that Mother abandoned the Child by willfully failing to provide
support. We affirm the trial court‟s judgment in all other respects, including the
termination of Mother‟s parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate and Family Court
Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.

John R. Williams, Crossville, Tennessee, for the appellant, Katie R.

Jonathan R. Hamby, Crossville, Tennessee, for the appellees, Johnny B. and Deborah B.

Sherrill Beard, Crossville, Tennessee, Guardian Ad Litem.
 OPINION

I. Factual and Procedural Background

Mother and Father were never married, but they resided together with the Child in
the Grandparents‟ home following the Child‟s birth in April 2011. The relationship
between Mother and Father subsequently disintegrated, and Mother moved out of the
Grandparents‟ residence in November 2012 when the Child was nineteen months old.
Mother does not dispute that she was addicted to controlled substances during the period
that she resided with the Grandparents and that this problem contributed to the
Grandparents‟ asking her to leave. It is also undisputed that the Grandparents were the
Child‟s primary caregivers even when both parents resided in the Grandparents‟ home.
When Mother relocated, the Child continued to reside with the Grandparents. Father also
continued to live in the Grandparents‟ home.

The Grandparents filed a petition for termination of both parents‟ parental rights
and for adoption of the Child on August 26, 2013. As to Mother, they alleged that in the
four months preceding the filing of the petition, she had abandoned the Child by willfully
failing to provide financial support and willfully failing to engage in more than token
visitation with the Child.1 Upon Mother‟s subsequent affidavit, the trial court found her
to be indigent and appointed counsel to represent her on September 30, 2013.

On November 8, 2013, the Grandparents filed a motion to restrain Mother from
exercising visitation, averring that Mother had not sought to exercise alternate-week
visitation until she was served with the petition to terminate her parental rights. The
Grandparents further averred that visitation with Mother was not in the Child‟s best
interest, inter alia, because the Child no longer knew Mother and no bond had been
established.

On November 1, 2013, the Grandparents filed a motion, inter alia, requesting that
the trial court require Mother to undergo “hair follicle drug testing.” In a response filed
November 6, 2013, Mother agreed to submit to a drug screen. Mother alleged, however,
that Father was abusing controlled substances in the Grandparents‟ home. She requested
that the court order hair follicle drug screens to be performed on Father, both
Grandparents, and the Child.

1
A permanent parenting plan order regarding the parents‟ co-parenting of the Child after Mother no
longer lived in the Grandparents‟ home is referenced in pleadings and testimony, but the parenting plan
does not appear in the record. Under the specific facts and issues raised in this action, the plan‟s absence
does not affect our analysis.
2
 Mother filed an answer to the petition on November 22, 2013. Mother again
alleged that Father was continuing to abuse controlled substances while residing in his
parents‟ home. She also averred that the Grandparents had prevented her from exercising
her visitation with the Child. Mother subsequently filed two separate motions to set
visitation: the first on December 4, 2013, and the second on January 20, 2014, upon her
assertion that she had tested negative for controlled substances after submitting to hair
follicle drug screening.

The trial court conducted a hearing regarding the Grandparents‟ motion to restrain
visitation on November 13, 2013, and subsequently held a bench hearing upon Mother‟s
motion for hair follicle drug screens of the other parties on December 12, 2013. In an
order entered January 22, 2014, the trial court suspended Mother‟s visitation with the
Child and directed that Mother, Father, both Grandparents, and the Child would undergo
hair follicle drug screens. Following a subsequent hearing conducted on February 6,
2014, the trial court found that it was in the Child‟s best interest to deny Mother‟s motion
for visitation pending the outcome of the case. The court entered an order to this effect
on February 18, 2014, and set the date for final hearing on the termination petition. The
court also appointed attorney Sherrill Beard as guardian ad litem (“GAL”) to represent
the Child.

Following a trial conducted on March 31, 2014, the trial court entered an order on
April 22, 2014, finding by clear and convincing evidence that Mother had abandoned the
Child by willfully failing to support or make reasonable payments toward support of the
Child and by willfully failing to visit the Child during the four months preceding the
filing of the petition for termination. The court further found by clear and convincing
evidence that it was in the best interest of the Child for Mother‟s parental rights to be
terminated. Mother appealed the order to this Court on May 15, 2014.

At the beginning of trial, Father had announced through his counsel that he would
be voluntarily surrendering his parental rights to the Child. For this reason, the court
heard evidence only as to the petition to terminate Mother‟s parental rights. After Mother
filed her notice of appeal, this Court entered an order on July 8, 2014, directing Mother to
show cause why the appeal should not be dismissed as premature due to the outstanding
issue of Father‟s parental rights. The trial court subsequently entered an order on August
22, 2014, terminating Father‟s parental rights to the Child upon his voluntary surrender of
those rights and certifying the August 2014 order as final pursuant to Tennessee Rule of
Civil Procedure 54.02. This Court thereafter treated Mother‟s appeal as timely pursuant
to Tennessee Rule of Appellate Procedure 4(d).

3
 II. Issues Presented

Mother presents four issues on appeal, which we have restated slightly:

1. Whether the constitutional requirements applicable to an action for
termination of parental rights can be achieved without a substantially
verbatim transcript or otherwise sufficiently complete record upon which
an appeal can be based and reviewed.

2. Whether the trial court erred by finding that there was clear and convincing
evidence of the statutory ground of abandonment by willful failure to
support the Child.

3. Whether the trial court erred by finding that there was clear and convincing
evidence of the statutory ground of abandonment by willful failure to visit
the Child.

4. Whether the trial court erred by finding clear and convincing evidence that
termination of Mother‟s parental rights was in the Child‟s best interest.

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 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, 597 (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,

4
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. Sufficiency of the Record on Appeal

Mother contends that the record on appeal is insufficient for appellate review
primarily because the record contains no verbatim transcript of the final hearing. The
record does contain a five-page statement of the evidence, which was approved by the
trial court on June 26, 2014, pursuant to Tennessee Rule of Appellate Procedure 24(c),
(e). Mother argues that this statement of the evidence is an insufficient record of the
testimony presented at trial. The Grandparents assert that the statement of the evidence is
a complete record of the testimony presented at trial and that, coupled with the trial
court‟s specific findings of fact and conclusions of law, the evidence in the record is
sufficient for appellate review. As Mother notes, this Court has explained that “a parental
rights termination case where a Statement of the Evidence would be sufficient would be
extremely rare . . . .” See L.D.N. v. R.B.W., No. E2005-02057-COA-R3-PT, 2006 WL
369275 at *5 (Tenn. Ct. App. Feb. 17, 2006). However, having carefully reviewed the
record, we determine that the case at bar constitutes such a “rare occasion” in which the
evidentiary record is sufficiently complete for appellate review in a parental rights
termination case despite the absence of a verbatim transcript. See, e.g., In re Austin C.,
No. M2013-02147-COA-R3-PT, 2014 WL 4261178 at *6 (Tenn. Ct. App. Aug. 27,

5
2014) (affirming the termination of the mother‟s parental rights following review of an
evidentiary record comprised in part of a statement of the evidence).

It is well settled that “in cases involving the termination of parental rights, a record
of the proceeding of sufficient completeness to permit proper appellate consideration of
the parent‟s claims must be made in order to preserve that parent‟s right to an effective
appeal.” In re Adoption of J.D.W., No. M2000-00151-COA-R3-CV, 2000 WL 1156628
at *4 (Tenn. Ct. App. Aug. 16, 2000). As this Court explained in In re Adoption of
J.D.W., the United States Supreme Court has held that “a parent‟s interest in defending
against a state‟s action in terminating parental rights require[s] a record complete enough
to allow fair appellate consideration of the parent‟s claims.” Id. at *3 (citing M.L.B. v.
S.L.J., 519 U.S. 102, 121-22 (1996)). If the trial court has determined that the parent is
indigent, the court must “ensure there is a record of trial evidence that is sufficiently
complete to allow an appellate court to review the evidence in accordance with applicable
standards, even when the petition to terminate parental rights is filed by a private party.”
In re Austin C., 2014 WL 4261178 at *4 (quoting In re Adoption of J.D.W., 2000 WL
1156628 at *4 n.5); see also M.L.B., 519 U.S. 102, 116 n.8 (1996) (explaining that state
action is invoked when a private party asks the state to terminate a parental relationship).

Regarding whether an appellate record missing a verbatim transcript of the
termination proceeding may constitute a record sufficiently complete for appellate
consideration, this Court has recently explained:

[W]e noted in L.D.N. that “a parental rights termination case where a
Statement of the Evidence would be sufficient would be extremely rare.”
L.D.N. v. R.B.W., 2006 WL 369275, at *5. However, no Tennessee court
has held that an evidentiary record that is based solely on a statement of the
evidence would automatically constitute an insufficient record. Id. More
specific to the evidence in this record, our courts have not held that an
evidentiary record that is based, in part, on a statement of the evidence is
automatically insufficient. To the contrary, our courts have “stopped just
short of holding that a Statement of the Evidence never will be sufficient
for proper appellate review in a parental rights termination case and that a
transcript always must be provided.” Id. Nevertheless, the best way to
proceed in a termination of parental rights case is by providing the appellate
court with a complete transcript of all evidence. Id.

What is required in appeals of parental termination cases is an
evidentiary record of sufficient completeness to permit proper appellate
review of the parent‟s claims. See In re J.M.C.H., 2002 WL 31662347, at
*4; see also In re Adoption of J.D.W., 2000 WL 1156628, at *3-4.
6
In re Austin C., 2014 WL 4261178 at 4-5 (emphasis in original); see also In re T.B.L.,
No. M2005-02413-COA-R3-PT, 2006 WL 1521122 at *2 (Tenn. Ct. App. June 2, 2006)
(“Although „[a] record of sufficient completeness does not translate automatically into a
complete verbatim transcript,‟ Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410,
414 (1971), statements of the evidence will rarely suffice because of the burden of proof
in termination of parental rights proceedings and the fact-intensive nature of the
appeals.”).

In the record before us, we have been provided with a statement of the evidence
summarizing testimony presented by the paternal grandmother (“Grandmother”) and
Father on behalf of the Grandparents, as well as testimony presented by Mother, the
maternal grandmother, a maternal aunt, and the father of Mother‟s oldest child on behalf
of Mother. Mother‟s contention that the statement of the evidence insufficiently
represents the termination proceeding is based on her assertions that (1) the trial court
adopted the Grandparents‟ statement of the evidence over Mother‟s statement and (2)
testimony revealed disagreement regarding the number of times Mother visited the Child
“during the time period between her leaving the [Grandparents‟] home” and the filing of
the termination petition. We will address each of these assertions in turn.

First, Tennessee Rule of Appellate Procedure 24(c) provides in pertinent part:

(c) Statement of the Evidence When No Report, Recital, or Transcript Is
Available. – If no stenographic report, substantially verbatim recital or
transcript of the evidence or proceedings is available, the appellant shall
prepare a statement of the evidence or proceedings from the best available
means, including the appellant‟s recollection. The statement should convey
a fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal. The statement, certified by the
appellant or the appellant‟s counsel as an accurate account of the
proceedings, shall be filed with the clerk of the trial court within 60 days
after filing the notice of appeal. . . . If the appellee has objections to the
statement as filed, the appellee shall file objections thereto with the clerk of
the trial court within fifteen days after service of the declaration and notice
of the filing of the statement. Any differences regarding the statement shall
be settled as set forth in subdivision (e) of this rule.

Pursuant to subdivision (e), “[a]ny differences regarding whether the record accurately
discloses what occurred in the trial court shall be submitted to and settled by the trial
court regardless of whether the record has been transmitted to the appellate court.” Tenn.
R. App. P. 24(e).
7
 In the instant action, it is undisputed that Mother filed a statement of the evidence,
to which the Grandparents responded by filing an alternative statement of the evidence.
See Tenn. R. App. P. 24(c). The trial court, acting in accordance with Rule 24(e),
determined that the Grandparents‟ statement of the evidence was more accurate and
approved that statement for the record. Mother states in her brief on appeal that she
subsequently filed a motion objecting to the statement of the evidence as approved but
that the trial court took no further action. Mother further states that neither her original
statement of the evidence nor her motion objecting to the adopted statement are included
in the record. We note that pursuant to Tennessee Rule of Appellate Procedure 24(e),
only the statement of the evidence certified by the trial court as accurate must become a
part of the record. Moreover, nothing has prevented Mother from explaining in her brief
on appeal any inaccuracies she alleges to be in the certified statement of the evidence.

As to the testimony regarding the frequency of Mother‟s visitation, it is important
first to clarify the statutory determinative period at issue. The four-month determinative
period for purposes of determining abandonment, pursuant to Tennessee Code Annotated
§ 36-1-102(1)(A), began on April 26, 2013, and concluded on August 25, 2013, the day
prior to the filing of the termination petition. See In re Jacob C.H., No. E2013-00587-
COA-R3-PT, 2014 WL 689085 at *6 (Tenn. Ct. App. Feb. 20, 2014) (concluding that the
applicable four-month statutory period preceding filing of the termination petition ends
on the day preceding filing).

The testimony summarized in the statement of the evidence offers three different
accounts regarding the number of times Mother visited the Child in the nine months
spanning Mother‟s leaving the Grandparents‟ residence in November 2012 through the
filing of the termination petition on August 26, 2013. None of these accounts isolates the
four-month determinative period within that nine months. First, Grandmother testified
that Mother had visited with the Child twice. Second, Father testified that Mother had
visited the Child “three or four times.” Finally, Mother testified that she had visited the
Child “several” times following her move from the Grandparents‟ residence. The full
summary of each of these parties‟ respective testimony is presented in the statement of
the evidence as follows:

[Grandmother] testified that she and her husband have had physical
custody of the minor child essentially since birth, but that [Mother], had
lived with them off and on, until November, 2012, when she was asked to
leave the family home due, in large part, to [Mother‟s] drug use.
[Grandmother] testified that [Mother] had allowed the child to remain
living with the [Grandparents] and that [Mother] had visited the child two
times that she could recall since leaving the home of the [Grandparents];
8
that [Mother] had been provided transportation to these visits and that
[Mother] had been welcomed to the home during those visitations; that
[Mother] had never supported the child financially; that the child was not
bonded to [Mother] in the way that a child bonds with a parent; that the
child really doesn‟t know [Mother]; and that in fact [Grandmother], had
bonded with the child as a parent normally would. [Grandmother] further
testified that the one time they were advised, during the pendency of this
action, to take the child to [Mother] for visitation, that the child got
extremely upset and did not want to stay with [Mother]. [Grandmother]
further testified that she felt that changing the child‟s placement now would
have a detrimental effect on the emotional well-being of the child, because
the minor child had never known any home but that of the [Grandparents];
and that she and her husband had provided and have the ability to continue
providing for the child emotionally and financially.

[Father] testified: That he was willing to voluntarily terminate his
parental rights to allow his parents to adopt the child and that same is in the
best interests of the minor child; that he currently lives with the
[Grandparents] in their home, with the minor child; that he and [Mother]
had used drugs together in the past but that he is now clean, with the
assistance of a physician and the prescription drug suboxone; that [Mother]
had visited with the child, in the home of the [Grandparents] only 3-4 times
since moving out in November, 2012, despite the willingness of his parents
to allow such visitation and even to provide transportation to her for such
visitations.

[Mother] testified: That the [Grandparents] had, in fact, acted as the
primary caretakers for the minor child following the child‟s birth; that she
([Mother]) had been drug addicted through July, 2013; that she had lived
with the [Grandparents] until approximately November, 2012; that,
following that move, she had visited the [Grandparents‟] home on “several”
occasions, but that she had stopped visiting because the [Grandparents]
stopped coming to pick her up for those visitations and that she had no
means of transportation at the time; that she had not paid any money for
support of the child to the [Grandparents] but that she had tried to give
them some clothes “and other items” to the [Grandparents] but those items
were refused. [Mother] testified also that she was unemployed, although
not disabled and that she was currently relying on support provided by her
mother. [Mother] also testified that she was now living with [C.R.] who is
the father of her youngest child. [C.R.] has a significant criminal and drug

9
 history, but [Mother] indicated that he was doing much better and that they
were both currently drug-free.

Having carefully reviewed the statement of the evidence together with Mother‟s
assertion regarding disputed testimony, we determine that the statement of the evidence
presents the disputed testimony as Mother describes it. In other words, Mother has not
explained how her testimony allegedly differed from that presented in the statement of
the evidence, nor has she asserted how the testimony of any other witness differed from
its presentation in the statement of the evidence. We stress that the trial court‟s
determinations as to witness credibility are afforded great deference on appeal. See
Jones, 92 S.W.3d at 838. We therefore conclude that the evidentiary record before us,
including testimony summarized through a statement of the evidence, constitutes a rare
occasion in which a record containing no verbatim transcript is sufficiently complete for
appellate review in a parental rights termination case. See In re Austin, 2014 WL
4261178 at *5 (“What is required in appeals of parental termination cases is an
evidentiary record of sufficient completeness to permit proper appellate review of the
parent‟s claims.”) (underlined emphasis added).

However, in reaching this conclusion, we must emphasize that “the best way to
proceed in a termination of parental rights case is by providing the appellate court with a
complete transcript of all evidence.” See id. at *4. Moreover, we further emphasize that
if the trial court has determined that the parent is indigent, “then the trial court must
ensure that such a record is created and made available to a parent who seeks to appeal.”
See In re Adoption of J.D.W., 2000 WL 1156628 at *4.

V. Statutory Abandonment

Tennessee Code Annotated § 36-1-113 (2014) lists the statutory grounds for
termination of parental rights, providing as follows:

(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 the adoption
proceeding by utilizing 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.

***

10
 (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.

The trial court terminated Mother‟s parental rights on the ground that she
abandoned the Child. Tennessee Code Annotated § 36-1-113(g)(1) (2014) provides in
relevant part:

(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) (2014) 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

11
 “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 838, 863 (Tenn. Ct. App. 2005).

Failure to visit or support a child is “willful” when a person 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.” Id. 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
play “an important role in determining intent, and trial courts are accordingly in the best
position to make such determinations.” In re Adoption of Destiny R.D., No. M2011-
01153-COA-R3-PT, 2012 WL 1066496 (Tenn. Ct. App. Mar. 27, 2012) (citing 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: “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.”

A. Willful Failure to Support

In its judgment terminating Mother‟s parental rights, the trial court found that
Mother had provided only “token support” for the Child and “specifically no support
during the four months immediately preceding the filing of the Petition.” The court
further found that Mother had “willfully failed to make reasonable payments toward the
support of the child” during the determinative period. The trial court did not, however,
make any specific finding regarding Mother‟s ability to pay support. Having carefully
reviewed the statement of the evidence and the record as a whole, we conclude that the

12
evidence preponderates against a finding that Mother had the ability to pay child support
during the determinative period. We therefore conclude that the evidence preponderates
against a finding that Mother‟s failure to pay support was willful. See In re Audrey S.,
182 S.W.3d at 863 (“The concept of „willfulness‟ is at the core of the statutory definition
of abandonment.”).

It is undisputed that at the time of trial, the Grandparents had been the Child‟s
primary caretakers since the Child‟s birth and that Mother had never paid any funds to
the Grandparents for the Child‟s support. These facts alone, however, are insufficient to
support a finding that Mother‟s failure to support the Child during the determinative
period was willful. “„A parent who fails to support a child because he or she is
financially unable to do so is not willfully failing to support the child.‟” In re R.L.F., 278
S.W.3d 305, 320 (Tenn. Ct. App. 2008) (overruled on other grounds by In re Kaliyah S.
___ S.W.3d ___, 2015 WL 273659 (Tenn. Jan. 22, 2015)) (quoting In re M.J.M., Jr., No.
M2004-02377-COA-R3-PT, 2005 WL 873302 at *8 n.17 (Tenn. Ct. App. Apr. 14,
2005)).

The record contains the trial court‟s September 30, 2013 order finding Mother
indigent and appointing counsel to represent her. The court‟s order appears on the same
form and directly below the notarization of Mother‟s affidavit of indigency, also dated
September 30, 2013. This affidavit and order were therefore entered approximately one
month following the filing of the termination petition, or one month after the close of the
determinative period. Mother was twenty-three years old at that time. According to her
affidavit, she was unemployed, owned personal property limited in value to
approximately $400, and received no income from any source. She indicated that her
2011 federal income tax return was the one most recently filed and listed her net income
on that return as $300. According to the statement of the evidence, Mother confirmed
through her testimony that she was unemployed. She stated that she relied on her mother
for financial support. The maternal grandmother corroborated this testimony and also
explained that she resided in New Jersey and had sent funds from there to help support
Mother in Tennessee.

It is apparent from the record that Mother has three children in all. Mother in her
affidavit of indigency named her eldest child, C.B., as a dependent. C.B. was born to
Mother‟s previous relationship with R.B., who testified on Mother‟s behalf. Noting that
he now believed Mother to be “drug-free,” R.B. stated that he was “allowing” Mother “to
exercise court-ordered visitation” with C.B. The Child at issue in this action is Mother‟s
second child. Mother testified that at the time of trial, she was residing with her
paramour, C.R., and her “youngest child.” The age of Mother‟s youngest child appears
only in a pleading Mother filed in November 2013, stating that the child‟s birthdate was
in October 2013. On appellate review, we cannot accept a mere assertion in a pleading as
13
fact. See Tenn. R. App. P. 13(c). However, we note that Mother‟s affidavit of indigency,
accepted by the trial court in its order granting her indigent status in September 2013,
does not mention the youngest child. The record thus indicates that the youngest child
was born after September 30, 2013, and before the final hearing held March 31, 2014.
We can therefore surmise from the record that Mother was expecting a child during the
determinative period and was at some point thereafter at least partially financially
responsible for the care of an infant.

In summary, the record demonstrates that during the determinative period, Mother
was unemployed, dependent on her own mother for financial support, expecting the birth
of her third child, and to some degree financially obligated to support her eldest child as
well as the Child at issue. Moreover, the only documented income attributed to Mother
in the record is the $300 net income she claimed to have reported on her 2011 federal
income tax return, approximately two years before the determinative period. The
Grandparents failed to present any evidence that Mother had the ability to pay child
support during the period at issue.

Regarding the trial court‟s finding that Mother had provided token support at
some point in time prior to the determinative period, Mother testified that she had
attempted to give some clothes and “items” for the Child to the Grandparents. See Tenn.
Code Ann. § 36-1-102 (1)(B) (defining “token support” to mean that “the support, under
the circumstances of the individual case, is insignificant given the parent‟s means”). The
statement of the evidence contains no clarification regarding whether Mother offered
these items during the determinative period, and Mother does not assert on appeal that
she provided any more specific information during her testimony. Having concluded that
the evidence does not support a finding that Mother had the ability to pay support, we
further conclude that any issue regarding whether these items constituted only token
support is pretermitted as moot.

The trial court erred by terminating Mother‟s parental rights based upon the
ground of abandonment through willful failure to support the Child. We reverse the trial
court‟s finding on this statutory ground.

B. Willful Failure to Visit

In its judgment, the trial court specifically found that Mother had “willfully failed
to visit with the minor child . . . for a period of four (4) consecutive months immediately
preceding the filing of the Petition to Terminate parental rights in this case.” The court
further found that the Grandparents had “exercised the role of primary caretakers and
guardians of the minor child throughout the child‟s life” and that Mother had “exercised
only „token visitation.‟” Upon a thorough review of the record, we conclude that these
14
findings, made under a clear and convincing evidence standard, are supported by a
preponderance of the evidence.

As noted above, the statement of the evidence summarizes Mother‟s testimony
regarding her visitation with the Child following November 2012, inclusive of the
determinative period, as follows:

[Mother] testified . . . that following [the November 2012] move, she
had visited the [Grandparents‟] home on “several” occasions, but that she
had stopped visiting because the [Grandparents] stopped coming to pick her
up for those visitations and that she had no means of transportation at the
time . . . .”

On appeal, Mother does not specify any way in which her testimony at trial differed from
this summary. She does assert as facts that she had “never learned to drive” and that her
ability to visit the Child was “limited and dependent on others, including the
[Grandparents] for transportation assistance.” These assertions comport with Mother‟s
testimony regarding her reason for ceasing visits with the Child as summarized in the
statement of the evidence.

In contrast, Grandmother testified that she and her husband had transported
Mother to their home to visit the Child twice since November 2012. Noting that the trial
court is afforded great deference as to witness credibility, see Jones, 92 S.W.3d at 838,
we still have no means of determining whether these two purported visits occurred during
the determinative period, April 25 through August 26, 2013, or prior to that period. In
the absence of proof regarding the specific dates of the visits, for purposes of analysis on
appeal, we will assume that Mother visited the Child at the Grandparents‟ home at least
twice during the determinative period. See, e.g., In re Keri C., 384 S.W.3d 731, 748
(Tenn. Ct. App. 2010) (summarizing testimony regarding the frequency of the mother‟s
telephone calls to the child and assuming for purposes of analysis on appeal that “a
couple” occurred during the determinative period). The question then becomes whether
the evidence supports the trial court‟s finding that Mother‟s two visits with the Child
during the determinative period represented only token visitation.

Tennessee Code Annotated § 36-1-102(1)(C) defines token visitation as
“perfunctory visitation or visitation of such an infrequent nature or of such short duration
as to merely establish minimal or insubstantial contact with the child.” See also In re
Keri C., 384 S.W.3d at 748 (“Whether visitation is „token‟ under this definition is a fact-
intensive inquiry to be decided on a case-by-case basis.”). We conclude that the record is
sufficient to support the trial court‟s finding that Mother‟s two visits with the Child
during the determinative period (or even, arguendo, “several” visits during the nine-
15
month period preceding filing of the termination petition) constituted only token
visitation. See, e.g., id. at 751 (concluding that visitation during the determinative period
of “once-a-month half-hour contacts” with the two-year-old child “at large family
gatherings [could] not be viewed as a reasonable attempt to forge a meaningful
relationship with the child” and were thus token in nature); In re Christopher J.B., Jr.,
No. E2014-00489-COA-R3-PT, 2014 WL 5044442 at *7 (Tenn. Ct. App. Oct. 9, 2014)
(“[W]e conclude that Mother‟s sole visit during the requisite time period amounted to
nothing more than token visitation because the visitation was of such an infrequent
nature.”); In re Jamontez S., No. M2013-00796-COA-R3-PT, 2013 WL 5302503 at *5
(Tenn. Ct. App. Sept. 17, 2013) (concluding that the evidence supported the trial court‟s
“finding that the two visits in the four months preceding the filing of the termination
petition were token.”); but see In re E.M.P., No. E2006-00446-COA-R3-PT, 2006 WL
2191250 at *5 (Tenn. Ct. App. Aug. 3, 2006) (determining that given the “sparse record
on appeal and the lack of a transcript,” the record did not contain clear and convincing
evidence that Mother‟s one visit to the child in four months could be characterized as
token).

As to the willfulness of Mother‟s failure to visit, she asserted in testimony and
now states in the facts section of her brief that she was forced to stop visiting the Child
because the Grandparents stopped providing transportation. This assertion is unavailing.
See In the Matter of M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (“A parent‟s failure to
visit may be excused by the acts of another only if those acts actually prevent the parent
from visiting the child or constitute a significant restraint or interference with the parent‟s
attempts to visit the child.”).

Mother fails to address on appeal the trial court‟s finding of token visitation. In
her brief, Mother‟s argument related to this issue is limited to a repeated assertion that the
evidence presented in the statement of the evidence is insufficient to support the trial
court‟s findings. We disagree as to this statutory ground. Upon our careful and thorough
review of the record, we conclude that the evidence does not preponderate against the
trial court‟s finding, under a clear and convincing standard, that Mother abandoned the
Child by engaging in only token visitation during the determinative period. We
determine that the trial court did not err in terminating Mother‟s parental rights based
upon this statutory ground.

VI. Best Interest of the Child

When a parent has been found to be unfit by establishment of a statutory ground
for termination of parental rights, as here, 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.
Tennessee Code Annotated § 36-1-113(i) (2014) provides a list of factors the trial court is
16
to consider when determining if termination of parental rights is in the child‟s best
interest. This list is not exhaustive, and the statute does not require the court to find the
existence of every factor before concluding that termination is in a child‟s best interest.
In re Audrey S., 182 S.W.3d at 878 (“The relevancy and weight to be given each factor
depends on the unique facts of each case.”). Further, the best interest of a child must be
determined from the child‟s perspective and not the parent‟s. White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004).

Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:

(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, controlled substances
or controlled substance analogues as may render the parent or
guardian consistently unable to care for the child in a safe and stable
manner;
17
 (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 § 36-5-101.

In analyzing the best interest factors, the trial court in its judgment terminating
Mother‟s parental rights stated in pertinent part:

[T]he termination of parental rights of [Mother] and adoption by the
[Grandparents], is in the best interests of the minor child in question, based
upon the following factors:

a) A meaningful relationship has not been established between the
minor child and [Mother] due to her infrequent contact with the
minor child.

b) That a change in the caretakers and the physical environment of the
child would have a negative impact upon the child‟s emotional
and/or psychological well-being.

c) That both during the four (4) months preceding the filing of the
Petition and after, [Mother] has failed to pay child support consistent
with the child support guidelines promulgated by the department
pursuant to Tenn. Code Ann. § 36-5-101[.]

d) That the [Grandparents] have assumed primary parental
responsibilities for the minor child since the child‟s birth, and in
doing so, have exhibited the willingness and ability to support the
minor child in all respects.

The trial court therefore concluded by clear and convincing evidence that it was in the
Child‟s best interest to terminate Mother‟s parental rights. We agree.

Mother‟s sole argument regarding the best interest analysis is that the statement of
the evidence does not indicate the trial court‟s finding. She therefore asserts that the
“evidence is insufficient” to support the court‟s determination regarding best interest.
18
We disagree. The absence of a transcript containing the court‟s verbatim ruling on the
day of trial does not prevent this Court from reviewing the trial court‟s findings of fact
and conclusions of law presented in its written judgment. As this Court has previously
explained, a trial court speaks through its written orders, and the appellate courts review
only the trial court‟s written orders. See In re Conservatorship of Alexander v. JB
Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011). Despite Mother‟s lack of
substantive argument regarding the best interest analysis, we will review the trial court‟s
consideration of the statutory factors due to the significance of this analysis. See In re
Arteria, 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010) (overruled on other grounds by In re
Kaliyah S. ___ S.W.3d ___, 2015 WL 273659 (Tenn. Jan. 22, 2015)).

Contrary to Mother‟s assertion, the trial court‟s written findings indicate that it
analyzed the factors contained in Tennessee Code Annotated § 36-1-113(i) in
determining that termination was in the Child‟s best interest. In particular, the trial
court‟s findings show that it weighed the following factors against preserving Mother‟s
parental rights: (3) failure to maintain regular visitation or other contact with the Child;
(4) lack of a meaningful relationship between Mother and the Child; (5) negative effect a
change of caretakers and physical environment is likely to have on the Child‟s emotional,
psychological, and medical condition; and (9) failure to pay child support. See Tenn.
Code Ann. § 36-1-113(i). Mother does not dispute that the Grandparents had been the
Child‟s primary caregiver since birth. Grandmother testified that the Child had not
bonded with Mother, and Mother offered no proof to contradict this testimony. The GAL
opined at trial that the best interest of the Child would be served by terminating both
parents‟ rights to the Child and allowing the Child to be adopted by the Grandparents.
Mother has paid no funds toward child support. Having previously concluded that the
evidence does not preponderate against the trial court‟s finding that Mother abandoned
the Child by willfully failing to visit her, we determine that the evidence does not
preponderate against the trial court‟s findings as to these statutory factors.

Further, our review of the record reveals that the remaining statutory factors
applicable to this action do not weigh in favor of maintaining Mother‟s parental rights.
See Tenn. R. App. P. 13(c) (noting that this Court “may consider those facts established
by the evidence in the trial court and set forth in the record. . . .”); see In re Dominique
L.H., 393 S.W.3d 710, 716 (Tenn. Ct. App. 2012) (“We must then determine whether the
facts, as found by the trial court or as supported by the preponderance of the evidence,
clearly and convincingly establish the elements necessary to terminate parental rights.”);
White, 171 S.W.3d at 194 (taking notice of the appellate record in affirming trial court‟s
best interest finding). The trial court did not directly address in its judgment allegations
that Mother had struggled with substance abuse throughout the Child‟s life.

19
 By Mother‟s undisputed admission, she had been “drug addicted” through at least
July 2013, a month prior to the filing of the termination petition. She testified that at the
time of trial in March 2014, she was “currently drug-free.” In Mother‟s summary of the
facts on appeal, she states that she “has remained drug free since before the filing of this
petition.” Her citation to the record for this assertion is to the summary of the maternal
grandmother‟s testimony that she “had seen a remarkable improvement in her daughter
since she had been through drug-rehabilitation.” Mother presented no documentation of
a drug rehabilitation program. Mother also states in the facts section of her appellate
brief that she underwent “numerous drug screens, including one ordered by the Trial
Court in this case.” The citation to the record for this assertion is to the trial court‟s
January 22, 2014 order directing that all parties undergo hair follicle drug testing.
Mother presented no documentation of a completed hair follicle drug screen. 2 Mother
acknowledged at trial that her paramour, C.R., with whom she was residing, had a
“significant criminal and drug history.” She did assert that C.R. was also “currently
drug-free.”

Although Mother presented testimony that she may have successfully turned a
corner in her struggle with substance abuse immediately preceding the filing of the
termination petition, the record cannot be said to weigh in Mother‟s favor regarding the
following factors: (1) whether Mother “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”
and (7) whether the “physical environment” of Mother‟s home is healthy and safe,
including whether there is “criminal activity in the home” and whether there is such use
of controlled substances “as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner.” See Tenn. Code Ann. § 36-1-113(i). We
conclude that the record sufficiently supports the trial court‟s finding by clear and
convincing evidence that termination of Mother‟s parental rights was in the Child‟s best
interest.

VII. Conclusion

The decision of the trial court is affirmed in part and reversed in part. We reverse
the trial court‟s finding that Mother abandoned the Child by willfully failing to support
her. We affirm the trial court‟s judgment in all other respects. Costs on appeal are
assessed equally to the appellant, Katie R., and the appellees, Johnny B. and Deborah B.
This case is remanded to the trial court, pursuant to applicable law, for enforcement of

2
We note that such documentation, if presented as an exhibit at trial, would have been included in the
appellate record pursuant to Tennessee Rule of Appellate Procedure 24(a), regardless of the availability of
a verbatim transcript.
20
the trial court‟s judgment terminating parental rights and collection of costs assessed
below.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

21