In re Gavin G.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 21, 2015 Session

IN RE GAVIN G.

Appeal from the Chancery Court for Maury County
No. A-028-13 Stella L. Hargrove, Chancellor

No. M2014-01657-COA-R3-PT – Filed June 23, 2015

This appeal arises from the termination of Father‟s parental rights. After Father had not
seen the child for over a year-and-a-half, Mother and her husband petitioned to terminate
Father‟s parental rights. Following a trial, the chancery court found that Father had
abandoned the child by willfully failing to visit him. The court also found that the
termination of Father‟s parental rights was in the child‟s best interest. Father appeals the
court‟s determination that he abandoned the child and that the termination of his rights
was in the child‟s best interest. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Cara E. Lynn, Columbia, Tennessee, for the appellant, Adam G.

S. Jason Whatley, Columbia, Tennessee, for the appellees, Rex B. and Amy B.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Gavin G. was born out-of-wedlock in May 2009 to Amy B. (“Mother”) and Adam
G. (“Father”). Mother and Father lived together during Mother‟s pregnancy and after
Gavin‟s birth until July 2009, when they ended their relationship. After the parties
separated, Father‟s mother (“Grandmother”) watched Gavin during the day while Mother
worked. This arrangement continued from July 2009 to May 2010. Father lived with
Grandmother during that time, so he saw Gavin most weekdays “if he would make it
home before [Mother] would [pick up] Gavin.”

In late 2009, when Gavin was about six months old, Mother began a relationship
with Rex B. (“Stepfather”). Mother and Gavin began living with Stepfather in spring
2010. Shortly thereafter, Mother enrolled Gavin in daycare, obviating the need for
Grandmother to watch the child during the day.

In August 2010, Father petitioned to establish parentage and set visitation. The
parties entered into an agreed parenting plan. The plan named Mother as the primary
residential parent and gave her 285 days of parenting time. The plan granted Father
visitation with Gavin on some holidays and every other weekend, for a total of 80 days
per year. Father could only exercise his parenting time under Grandmother‟s supervision.

Father regularly visited Gavin and spent almost every other weekend with him
from August 2010 to December 2011. Father‟s visitations with Gavin occurred primarily
at Grandmother‟s home. Mother claims Father‟s last visit with Gavin was on December
24, 2011. Although Father claimed he had visited Gavin since then, he could not recall
any particular dates and admitted that if any visits occurred, they were “rare and
sporadic.”

Father admitted that from December 2011 to December 2012, his addiction to
Xanax was “real bad.” Father also had legal troubles. Although he was arrested several
times for driving with a suspended or revoked license, the charges were dismissed. He
was convicted of felony theft in May 2012 and served two months in prison.

In December 2012, Father completed a seven-day detox program and spent thirty
days at a treatment facility. In January 2013, he enrolled in a sober living facility. While
living at the facility, Father took the time to personally file a motion to lower his child
support obligation in May 2013. Father stated that he needed a reduction in child support
because: “Changed jobs and financial strain at new job. Moved cities and paying higher
rent. New job pays less. Lost previous job, could not find work in Columbia, and had to
move to Murfreesboro.” Father continued to live at the facility until November 2013.
After leaving the facility, Father moved into his own apartment.

Before Father entered detox, Mother and Stepfather married in October 2012. On
August 30, 2013, Mother and Stepfather petitioned to terminate Father‟s parental rights.
As grounds, Mother and Stepfather, who intended to adopt Gavin,1 alleged that Father
had abandoned the child by both failing to support and visit him.

1
Under Tennessee Code Annotated § 36-1-113(b)(1) (2014), Mother would not have standing to seek the
termination of Father‟s parental rights unless he “has been found to have committed severe child sexual
abuse under any prior order of a criminal court,” as defined by Tennessee Code Annotated § 36-1-
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 A. PROOF AT TRIAL

The chancery court conducted a trial on Mother and Stepfather‟s petition on July
15, 2014. Mother, Stepfather, Father, Grandmother, and a local police officer testified.
The parties stipulated to the testimony of Mother‟s parents and sister, Stepfather‟s
mother, and one of Gavin‟s teachers, specifically that they would testify to Mother‟s and
Stepfather‟s loving, strong relationship with Gavin and that Gavin was thriving in their
care.

Mother testified that she and Father were completely unable to communicate. She
stated that they had almost never had a “normal conversation”—most of their previous
conversations had involved Father “cursing, yelling, et cetera.” Since they ended their
relationship, Mother and Father communicated almost exclusively through Grandmother.

Mother maintained that Grandmother arranged her own visits with Gavin.
According to Mother, Grandmother never attempted to arrange visits for Father, except
for one request to take Gavin to Father‟s rehabilitation facility in summer 2013. Mother
testified that she would not allow Gavin to visit Father at the rehabilitation facility. She
explained that she did not think the facility was “a place where a child should be.”
Moreover, she stated that, “[Gavin] did not have a relationship with his father. I think
that would be very, very awkward for the child.”

Mother stated that Gavin refers to Father as “his other daddy.” She felt that the
termination of Father‟s parental rights was in Gavin‟s best interest because Stepfather
was “such a wonderful father to [Gavin] that he deserves it,” and Gavin “deserve[d] the
best father that he can have.” When asked if she could see “any way possible . . . that
Gavin could have you and your husband . . . and have his father in his life?” Mother
responded:

We definitely could make it work, but I do think it would be very difficult
with no communication. Of course, we are a lot older than we once were,
but I just don‟t think with no communication there would ever be a good
plan. [Gavin] has a great life the way he is, and I don‟t want him to not
have the father he‟s supposed to have, but I just don‟t see communication
ever working out in that aspect.

Stepfather testified that he viewed Gavin “like he‟s [his] own.” He stated that he
was “100 percent” prepared to adopt Gavin if Father‟s parental rights were terminated.
Stepfather stated that he was involved in Gavin‟s day-to-day care and extracurricular
sporting activities. When he was asked whether he saw “any way in Gavin‟s best

113(g)(11). However, she must join in the petition to show her consent to the adoption. Tenn. Code Ann.
§ 36-1-115(c) (2014).
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interest . . . that he could have you and your wife and his father in his life?” he responded,
“Sure,” but that “things would have to change.” Specifically, Stepfather stated that there
would have to be “proof that [Father] wants to be a dad” in order for Father to become
involved in Gavin‟s life.

Father admitted that he was previously addicted to Xanax from summer 2010 to
December 2012. Although he had a prescription for Xanax, he admitted he purchased or
otherwise obtained additional Xanax pills illegally. He attributed his sporadic visitation
with Gavin, in part, to his prior drug addiction. However, Father testified that he has
been sober and off drugs since December 6, 2012. Father also tested negative for drug
use at the hearing.

Regarding visitation with Gavin while he was residing at the sober living facility,
Father testified that his ability to visit was limited. He was not allowed to have outside
visitors at the facility until after he had lived there for thirty days. During his first thirty
days at the facility, Father could not use the internet or phone, and he could not receive
visitors or visit others. After he completed the first thirty days, Father communicated
with Grandmother via written letters and “weekly” phone calls. After six months at the
facility, Father was allowed to submit requests to visit others. Father requested and
received permission to visit Grandmother at least two times while he was living at the
facility. Father also requested and received permission to visit the Maury County
Courthouse to file a motion to reduce his child support obligation in May 2013.

Father claimed his limited opportunities for visitation with Gavin were impeded
because Mother would not allow Gavin to visit Father at the facility or at Grandmother‟s
home. Father also claims he could only request visitation with Gavin through
Grandmother because he and Mother were unable to communicate. Yet, he agreed that
his attempts to arrange visitation through Grandmother were not all he could have done.
Father admitted that he could have called Mother directly to arrange visitation, but he had
not done so. Although the facility had telephones and Father had a cell phone, he stated
his only attempt to arrange visitation with Gavin was through Grandmother.

Father also never called Gavin or sent him letters or cards while he was living at
the facility. Despite their lack of contact, Father said that, when he was visiting with
Gavin, their relationship was “great. It was good. We played X-Box all the time.”
When asked if he saw “any way that it could be in Gavin‟s best interest to have all three
of you in his life, [Mother] and [Stepfather] and you,” he responded “yes.” He
“absolutely” thought the three of them could communicate and coordinate visitation
arrangements and that he could “communicate with them in a positive way.”

Grandmother testified that, on one occasion in 2013, she asked Mother to allow
her to take Gavin to visit Father at the facility. She testified that on another occasion, she
suggested reconnecting Gavin and Father at her home while Father was on “weekend

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passes” from the facility. When Mother did not agree to visitation at Grandmother‟s
home, Grandmother stated that she “backed off,” implying that she did not make any
more requests for Father‟s visitation with Gavin. When asked why Father did not do
more to attempt to visit Gavin, Grandmother stated that he was “ashamed.” Grandmother
did not believe Mother and Father “could communicate directly in a positive way about
Gavin” unless "[Mother] can forgive [Father] . . . .”

B. ORDER TERMINATING PARENTAL RIGHTS

In an order entered July 25, 2014, the court granted the petition to terminate
Father‟s parental rights. Regarding the statutory grounds for termination of Father‟s
rights, the court found that Mother and Stepfather had “failed to carry their burden of
proof by clear and convincing evidence as to the statutory ground of abandonment by
willful failure to provide support.” However, regarding the ground of abandonment by
willful failure to visit, the court found:

Two issues are not disputed: (1) Again, by his own admission any visitation
that might have taken place between [Father] and Gavin since December
24, 2011, has been rare and sporadic, and token visitation at best; and
(2) [Father] was in Murfreesboro in a half-way house during the four (4)
months preceding the filing of the Petition, and did not visit with Gavin.
The Court must address whether the failure to visit was willful. . . . .

The Court does not find [Father] to be a credible witness. He says what he
thinks will please the Court. Furthermore, the Court finds that [Father] is a
big baby, who sought sympathy during rehabilitation and received same
from his mother. He expected his mother to insist that Gavin be brought to
him at the half-way house when he had made absolutely no effort to have a
relationship with his son. They played x-box. Other than perhaps bathing
Gavin, [Father] failed to give the Court any example of ever taking day-to-
day responsibility for his son. . . . .

. . . . [Father] expressed no emotion one way or another. The Court is
concerned that it is really [Grandmother] who is striving to have a
relationship with Gavin. . . . .

The Court finds that (1) [Father] was aware of his right, as well as his duty,
to visit his child and maintain a relationship with him; and (2) that he had
the capacity to do so, made no attempt to do so, and has no justifiable
excuse for not doing so.

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 The court also found by “clear and convincing evidence that termination is
in the best interest of the child . . . .” With regard to seven statutory factors, the
court stated:

Each of the factors weighs strongly against [Father]. [Father] has not
maintained regular visitation or other contact with Gavin since he was two
(2) years old; no relationship has been established between Gavin and
[Father] beyond age two (2); [Father] has not consistently paid child
support for Gavin even though court ordered to do so. . . . [N]o child
support was paid for up to one and one-half years at one time. [Father] has
refused to even attempt to make an adjustment of circumstances, conduct,
or conditions as to make it safe and in Gavin‟s best interest to be in his
home. He did enter treatment and rehabilitation. During this time he
expected his mother to bring Gavin to him. He took no action himself to
see his son upon his passes to come to Columbia; after rehabilitation
[Father] moved out of his mother‟s home for some time and lived with a
female with a drug addiction; he testified that he now lives in
Murfreesboro; however, the Court heard no testimony that [Father] has
attempted to establish a meaningful relationship between himself and
Gavin; [Father] has never demonstrated that he wants to provide a physical
environment that is healthy and safe for Gavin. Indeed, he has always
relied on his mother to do this for him. The Court finds that [Father]
prefers to be free of any day-to-day responsibility for Gavin. He wants all
the rights, but none of the responsibilities. The Court is very concerned
about the adverse effect a change of caretakers and physical environment is
likely to have on Gavin, both emotionally and psychologically.

Father timely appealed the trial court‟s judgment.

II. ANALYSIS

Father raises two issues on appeal: (1) whether the trial court erred in finding that
his failure to visit was willful, and thus constituted abandonment under Tennessee Code
Annotated § 36-1-102(1)(A) (2014); and (2) whether the trial court erred in finding by
clear and convincing evidence that the termination of his parental rights was in the child‟s
best interest.

A. STANDARD OF REVIEW

Termination of parental rights is one of the most serious decisions courts make.
Santosky v. Kramer, 455 U.S. 745, 787 (1982) (“Few consequences of judicial action are
so grave as the severance of natural family ties.”). Terminating parental rights has the
legal effect of reducing the parent to the role of a complete stranger and of “severing

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forever all legal rights and obligations of the parent or guardian.” Tenn. Code Ann. § 36-
1-113(l)(1).

A parent has a fundamental right, based in both the federal and State constitutions,
to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896
S.W.2d 546, 547-48 (Tenn. 1995). Although this right is fundamental, it is not absolute.
The state may interfere with parental rights through judicial action in some limited
circumstances. Santosky, 455 U.S. at 747; In re Angela E., 303 S.W.3d at 250.

Our Legislature has identified those situations in which the State‟s interest in the
welfare of a child justifies interference with a parent‟s constitutional rights by setting
forth the grounds upon which termination proceedings may be brought. Tenn. Code Ann.
§ 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at
250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).

To terminate parental rights, a court must determine by clear and convincing
evidence that at least one of the statutory grounds for termination exists and that
termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). This heightened burden of proof is one of
the safeguards required by the fundamental rights involved, see Santosky, 455 U.S. at
769, and its purpose “is to minimize the possibility of erroneous decisions that result in
an unwarranted termination of or interference with these rights.” In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010); see also In re Angela E., 303 S.W.3d at 250; In re
M.W.A., 980 S.W.2d at 622. “Clear and convincing evidence enables the fact-finder to
form a firm belief or conviction regarding the truth of the facts, and eliminates any
serious or substantial doubt about the correctness of these factual findings.” In re
Bernard T., 319 S.W.3d at 596 (citations omitted). The party seeking termination has the
burden of proof. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

On appeal, we review the trial court‟s findings of fact in termination proceedings
de novo on the record, with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Bernard T., 319 S.W.3d at 596;
In re Angela E., 303 S.W.3d at 246. Next, “[i]n light of the heightened burden of proof in
[termination] proceedings . . . [we] must then make [our] 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.” In re Bernard T., 319 S.W.3d at 596-97. We review the trial court‟s
conclusions of law de novo without any presumption of correctness. In re J.C.D., 254

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S.W.3d 432, 439 (Tenn. Ct. App. 2007) (citing Campbell v. Florida Steel Corp., 919
S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993)).

We note that the trial court specifically found Father not to be a credible witness.
As our Supreme Court has observed:

When credibility and weight to be given testimony are involved,
considerable deference must be afforded to the trial court when the trial
judge had the opportunity to observe the witnesses‟ demeanor and to hear
in-court testimony. Because trial courts are able to observe the witnesses,
assess their demeanor, and evaluate other indicators of credibility, an
assessment of credibility will not be overturned on appeal absent clear and
convincing evidence to the contrary.

Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 360 (Tenn.
2011) (citations omitted).

B. STATUTORY GROUND FOR TERMINATION

Turning to Father‟s issues, we first consider whether the trial court erred in
terminating Father‟s parental rights to Gavin pursuant to Tennessee Code Annotated
§§ 36-1-113(g)(1) and -102(1)(A)(i) (2010) for abandonment by willful failure to visit.

“Abandonment is defined as the willful failure to visit, to support, or to make
reasonable payments toward the support of the child during the four-month period
preceding the filing of the petition to terminate parental rights.” In re Adoption of Angela
E., 402 S.W.3d 636, 640 (Tenn. 2013); see also Tenn. Code Ann. § 36-1-102(1)(A)(i). In
this case, the relevant four-month period was May 29, 2013, to August 29, 2013. See In
re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App.
Feb. 20, 2014) (holding that the last day of the four month period is the day before the
petition is filed).

Petitioners carry the burden to demonstrate by clear and convincing evidence that
a parent abandoned his child by willfully failing to visit him. See In re Audrey S., 182
S.W.3d at 864. Whether a parent failed to visit is a question of fact, which we presume to
be correct unless the evidence preponderates otherwise. In re Adoption of Angela E., 402
S.W.3d at 640. However, whether a parent‟s failure to visit was willful is a question of
law, which we review de novo with no presumption of correctness. Id.

In the context of termination of parental rights actions, “„willfulness‟ does not
require the same standard of culpability as is required by the penal code.” In re Audrey
S., 182 S.W.3d at 863. Willfulness is also not determined by the party‟s ill will or
malevolence. Id. Instead, conduct is willful if it is intentional or voluntary, rather than

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coerced, accidental, or inadvertent. Id. In other words, 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 864. Willfulness is also determined by the party‟s intent, which triers of
fact may infer from circumstantial evidence like the party‟s actions or conduct. Id.

Failure to visit a child is willful when a parent is aware of his duty to visit, “has
the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not
doing so.” Id. A failure to visit cannot be excused by another person‟s conduct “unless
the conduct actually prevents the person with the obligation from performing [his
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. (citations omitted).

Father does not dispute that he failed to visit Gavin during the relevant four-month
period. He argues instead that his actions were not willful because he was in a sober
living facility during the entire four-month period. As a result, Father claims he was
unable to visit Gavin. According to Father, the facility‟s “specific rules” limited Father
to on-site visits with family or occasional day passes to visit a specific location. Father
claims Mother refused to allow Gavin to come to the facility or to Grandmother‟s home.

Despite Mother‟s resistance to visitation at the facility or Grandmother‟s home, we
conclude Father‟s failure to visit was willful. Father was aware of his obligation to visit
Gavin. In fact, he petitioned to set visitation in August 2010. He also had the capacity to
do so. Although he lived in the sober living facility, the proof showed Father was able to
arrange visits and contact with individuals outside the facility. Father was also able to
call, write, and visit Grandmother. He did not do the same for Gavin.

Although the facility limited Father‟s options for visiting Gavin, we conclude
Father had no justifiable excuse for his failure to visit Gavin. Father had the ability to
request passes to visit others, and he was able to request visitation with Gavin through
Mother or the court. Father did neither. Father claims Mother impeded his ability to visit
Gavin. Although Mother limited the locations in which Father could visit Gavin, she did
not significantly restrain or interfere with Father‟s ability to develop a relationship with
Gavin. Even Father admits that he could have done more to arrange visitation with Gavin
than make requests through Grandmother. Despite the parties‟ communication
difficulties, Father had a legal obligation to visit his son, and he completely failed to do
so during the relevant four-month period. See In re Adoption of Kleshinski, No. M2004-
00986-COA-R3-CV, 2005 WL 1046796, at *23 (Tenn. Ct. App. May 4, 2005) (finding
that a mother had abandoned her children for willful failure to visit despite her attempts
to arrange visitation through third parties before the relevant four-month period).

Perhaps most telling, in May 2013, Father left the facility to personally file a
motion to reduce his child support obligation. Yet, despite his alleged difficulties
communicating with Mother, he did not file a motion requesting visitation with Gavin.

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Certainly, Father was under no requirement to seek court assistance to enforce his
visitation rights. See In re Joseph D.N., No. M2009-01353-COA-R3-PT, 2010 WL
744415, at *4 (Tenn. Ct. App. Mar. 3, 2010). However, taking legal action to enforce
visitation rights can preclude a finding of willfulness. In re M.L.P., No. W2007-01278-
COA-R3-PT, 2008 WL 933086, at *11 (Tenn. Ct. App. Apr. 8, 2008); see also In re
Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007) (finding that the parents had not
abandoned their child, despite their failure to visit, because they “actively pursued legal
proceedings to regain custody.”). If Father wanted to visit Gavin but was unreasonably
being denied this opportunity, he could have filed a motion to enforce his right to visit.
He chose to seek only a reduction in his support obligation instead.

Therefore, we conclude that there is clear and convincing evidence that Father
abandoned Gavin by willfully failing to visit him for the four months preceding the filing
of the petition.

C. BEST INTEREST OF THE CHILD

The focus of the best interest analysis is on what is best for the child, not what is
best for the parent. In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005); White v.
Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004). “Because not all parental conduct
is irredeemable, Tennessee‟s termination of parental rights statutes recognize the
possibility that terminating an unfit parent‟s parental rights is not always in the child‟s
best interest.” In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013). However,
when the interests of the parent and child conflict, we resolve the conflict in favor of the
rights and best interest of the child. Tenn. Code Ann. § 36-1-101(d) (2014).

Under Tennessee Code Annotated § 36-1-113(i), courts consider nine factors in
making a best interest determination:

(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;

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 (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 substance as may render the parent
or guardian consistently unable to care for the child in a safe and stable
manner;

(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 . . . .

Tenn. Code Ann. § 36-1-113(i). The statutory best interest factors are neither exhaustive
nor are they applicable in every case. See In re William T.H., No. M2013-00448-COA-
R3-PT, 2014 WL 644730, at *4 (Tenn. Ct. App. Feb. 18, 2014). In this case, factors two
and six are not applicable.

The trial court found that all the applicable factors weighed against Father. Father
claims that the evidence preponderates against the trial court‟s factual findings on the
best interest factors. Factor (1) concerns adjustments made by the parent in order to
make it safe for the child to return to the parent‟s home. Father claims that, by entering
the rehabilitation facility, remaining drug-free, and maintaining housing and employment,
he adjusted his circumstances. We acknowledge that much of Father‟s testimony
supports these assertions. However, the trial court specifically found Father not to be a
credible witness. The trial court stated, “[Father] says what he thinks will please the
Court.” We rely on the trial court‟s credibility determination because there is not clear
and convincing evidence to overturn it.

Even if Father has addressed his drug addiction, he has failed to adjust his conduct
as a parent. He failed to visit Gavin over the past three and one-half years. Even after
Father went into recovery and was living in a sober living facility, he failed to request
visitation with Gavin, call, or even write him. During the same period, Father was able to
visit, call, and write to Grandmother and visit the court to file a motion to reduce his child

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support obligation. For nine months preceding the filing of the petition, Father was
apparently not abusing drugs and still did not initiate any contact with Gavin.

While we commend Father for addressing his substance abuse and dealing with his
criminal issues, we cannot ignore Father‟s lack of progress in becoming an engaged
parent. Father failed to visit Gavin over the past three and one-half years. As a result,
Father has been almost completely absent for the majority of Gavin‟s young life. There
is no indication from Father‟s past that he either desired or was able to care for and
supervise Gavin. At trial, Father stated that he was now ready and able to become
involved in Gavin‟s care and supervision, but the trial court did not find Father to be
credible. Moreover, Mother, Stepfather, and even Grandmother thought Father‟s
communication regarding Gavin was unlikely to change in the future, for a variety of
reasons.

Factor (3) concerns contact with the child. Father claims that he has not
maintained consistent visitation with Gavin because he was prevented from doing so. He
argues that he was living in a rehabilitation facility during the four months preceding the
filing of the petition and his visitation options were limited. Father argues he could have
only visited Gavin at the facility or at Grandmother‟s home under her supervision.
Mother would not allow visitation at the facility or at Grandmother‟s home. However,
Father had at least two other avenues for pursuing visitation with Gavin. As he admitted,
he could have directly contacted Mother to arrange visitation. He also could have
petitioned the court to order visitation when he filed a pro se motion to reduce his child
support obligation. Father attempted neither.

Under factor (4), the court examines the nature of the relationship between the
parent and child. Father maintains that he has a meaningful relationship with Gavin, and
that he and his family formed a strong bond with Gavin. He also claimed to be
responsible for Gavin‟s care when he exercised visitation. However, when asked which
specific activities he and Gavin did together, Father mentioned only bathing Gavin and
playing video games. Mother testified that Gavin is confused by Father and refers to him
as his “other Daddy.” Father may still have an emotional bond with Gavin. However, it
is doubtful Gavin has maintained an emotional bond with Father given his extended
absence from Gavin‟s life. Although the record indicates that Gavin knows who Father
is, Gavin, now six, has had no contact with Father for three and one-half years. Mother
testified that Gavin had no relationship with Father.

Factor (5) concerns the effect a change of caretakers and environment will have on
the child‟s emotional, psychological, or medical condition. Father claims there was no
evidence at trial regarding the effect a change of caretakers and physical environment is
likely to have on Gavin. With regard to this factor, the trial court stated, “[t]he Court is
very concerned about the adverse effect a change of caretakers and physical environment
is likely to have on Gavin, both emotionally and psychologically.” This statement is not

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a factual finding. Rather, it is a statement of concern. While we can speculate that
introducing Father as a new caretaker would be disruptive to Gavin‟s emotional,
psychological, and mental health, the record is devoid of evidence on this factor.
Therefore, we do not find it appropriate to consider this factor.

The parent‟s home environment is the focus of factor (7). The court found that the
physical environment of Father‟s home weighed against him. Father maintains that there
is no condition in his home that would render him unable to care for Gavin in a safe and
stable manner. Father testified that he lived by himself in an apartment. Other than
where Father lived at the time of trial, scant evidence was offered regarding whether
Father‟s home was healthy and safe for Gavin. Father admitted that he lived with another
recovering drug addict for three to four months following his departure from the sober
living facility, but he claimed they were no longer in a relationship. In light of this
evidence, we cannot conclude that the evidence preponderates against the trial court‟s
findings regarding factor (7).

As for factor (8), the trial court called into question Father‟s emotional maturity.
The trial court also expressed concern about Father‟s role in caring for Gavin when they
did have contact, noting Father “has always relied on his mother” for Gavin‟s needs.
Father argues he has adequately addressed his drug and criminal issues and is now able to
safely supervise Gavin. We do not find that the evidence preponderates against the trial
court‟s findings relative to this factor.

Finally, factor (9) examines the payment of child support. Father maintains that
he consistently paid child support when he was able to do so. However, Father failed to
pay any child support during several time periods. Father failed to pay child support
from December 2010 to May 2011; August 2011 to March 2013 (over a year and one-
half); and September 2013 to March 2014. During some of the periods in 2011 and 2012,
Father acknowledged that he was working and buying drugs. When he was not paying
support, Father had a continuing obligation under a child support order, which had not
been modified by the court. See Mowery v. Mowery, 363 S.W.2d 405, 407 (Tenn. Ct.
App. 1962) (finding a Father who was unable to pay child support guilty of contempt
because he failed to apply for a reduction and disregarded the order of the Court). If he
was unable to pay child support, he had the responsibility to petition the court, as he did
in May 2013, to reduce his obligation.

The goals of any termination proceeding are to help a child achieve permanency,
stability, and safety. See, e.g., In re T.M.G., 283 S.W.3d 318, 322-23 (Tenn. Ct. App.
2008). Sometimes, the child‟s best interest may need to be considered by weighing the
losses and benefits that will accrue to a child from the termination of a parent‟s rights:

Since the court is required to focus on what is best for the child, rather than
to act out of sympathy for the parent, the court often has to determine if the

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 strength of the emotional bond that exists between the parent and the child
is more significant than the benefit the child will receive from termination,
which is intended to free the child for adoption and a permanent, stable
home.

In re Dominique L.H., 393 S.W.3d 710, 718-19 (Tenn. Ct. App. 2012) (quoting Sherry S.
Zimmerman, Annotation, Parents’ Mental Illness or Mental Deficiency as Ground for
Termination of Parental Rights—Best Interests Analysis, 117 A.L.R. 5th 349 (2004)).

When we consider the loss of the emotional bond Gavin will experience if
Father‟s rights are terminated against the benefit he will receive from termination, we
must conclude that the benefits of termination are entitled to more weight. During his
young life, Gavin has had very little contact with Father. We assume Gavin‟s positive
environment living with Mother and Stepfather would not change if Father‟s rights were
not terminated. See In re William T.H., 2014 WL 644730, at *5 (declining to terminate a
father‟s parental rights where Father was financially supporting the child and his visits
had been restricted by Mother). However, if Father‟s rights are terminated, Gavin will be
available for adoption and will have permanency in the stable home he shares with
Mother and Stepfather. See In re Adoption of T.L.H., No. M2009-01011-COA-R3-PT,
2009 WL 4113706, at *2-3 (Tenn. Ct. App. Nov. 24, 2009) (finding that termination was
in a child‟s best interest when a “Father allowed his relationship with his child to become
non-existent and the stepfather stepped into [the] void.”).

When we consider the lack of relationship between Father and Gavin, Father‟s
consistent failure to visit and support, and the likelihood that these circumstances will not
change, we conclude that there is clear and convincing evidence that the termination of
Father‟s parental rights is in Gavin‟s best interest.

III. CONCLUSION

Because we conclude that Father abandoned Gavin by willful failure to visit and
that the termination of Father‟s parental rights is in Gavin‟s best interest, we affirm the
trial court‟s judgment.

_______________________________
W. NEAL McBRAYER, JUDGE

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