In re Kiara S.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 28, 2015 Session

IN RE: KIARA S.

Appeal from the Circuit Court for Sevier County
No. 2013-AD-32-IV O. Duane Slone, Judge

No. E2015-00003-COA-R3-PT-FILED-OCTOBER 29, 2015

Rachel L.S. (“Mother”) and Brandon M.R. (“Step-father”) filed a petition seeking to
terminate the parental rights of Paul P. (“Father”) to the minor child Kiara S. (“the
Child”). After a trial, the Circuit Court for Sevier County (“the Trial Court”) entered its
order dismissing the petition after finding and holding, inter alia, that Mother and Step-
father had failed to prove by clear and convincing evidence that grounds existed to
terminate Father‟s parental rights for abandonment by willful failure to visit or for
abandonment by willful failure to support. Mother and Step-father appeal the dismissal
of their petition. We find that the evidence in the record on appeal does not preponderate
against the Trial Court‟s findings, and we affirm.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

James R. Hickman, Jr., Sevierville, Tennessee, for the appellants, Rachel L.S. and
Brandon M.R.

Andrew E. Farmer, Sevierville, Tennessee, for the appellee, Paul P.
 OPINION

Background

Mother and Father never married and are the biological parents of the Child who
was born in 2006. The Child has resided since her birth primarily with Mother. Mother
and Father entered into a private written agreement with regard to child support and
visitation, and the parties operated under this agreement for approximately the first five
years of the Child‟s life.

Mother and Step-father married in July of 2012, and Mother and the Child moved
into Step-father‟s house. In July of 2013, Mother and Step-father filed the petition
seeking to terminate Father‟s parental rights to the Child alleging, in pertinent part, that
Father had abandoned the Child by his willful failure to visit and by his willful failure to
support. The petition alleged that Father had not had contact with the Child and had not
paid child support for approximately a year and a half prior to the filing of the petition.
Father answered the petition and filed a petition seeking entry of a permanent parenting
plan. The case proceeded to trial in May of 2014.

Mother testified at trial about the signed written agreement she and Father entered
into with regard to visitation and support. Under this agreement, Father had visitation
with the Child overnight on Tuesday and Friday nights. Mother testified that Father
followed the schedule until approximately a year and a half prior to the filing of the
petition. The last overnight visit Father had with the Child occurred in December of
2011.

Mother testified that because Father does not drive either Mother or Father‟s
mother (“Grandmother”) would transport the Child to her visits with Father. Mother was
asked why Father stopped visiting the Child, and she stated: “Because he no longer could
- - his mom didn‟t want to come and pick her up or drop her off, and I said, I‟ll be willing
to meet you at Walter State or something, you know, meeting somewhere, but it‟s not my
job to do both ways and everything, so he just gave up.” When asked why Grandmother
stopped transporting the Child, Mother stated: “She probably got tired of it.” Mother
testified:

I was trying to be helpful in some way and I said, well, you know, would
you like to have some dinners with her through the week and everything
and he said yes. I said I will even drop her off to dinner and I will come
pick her up just so you will have time together and that happened two or
three times, and the last time he brought friends and I said, no more, this is
supposed to be about you and her spending time together, not having your
2
 friends. But if you would like to go back to the papers, I am absolutely
willing to do that. She is here for you on the nights that you‟re supposed to
have her, according to our papers, and he just quit calling, quit doing
everything.

Mother testified that this occurred in February of 2012.

Mother testified that after February of 2012 she would text Father to try to get
child support, but that the last time she received support was in June of 2012. Mother
stated: “[the phone number Father] texted me on in June of 2012 was my husband,
Brandon‟s, phone. And he‟s had that phone number for many years.” Mother testified
that Step-father still had the same phone number at the time of trial.

Mother testified that the Child calls Step-father „dad‟ or „daddy.‟ Mother testified:

You know, at first [the Child] said, I‟m going to call him Daddy B. I said
okay. And then it turned into Daddy, and I said, if that‟s what you want to
call him, then that‟s - - he was serving as the daddy, that‟s who was taking
care of her and with her all the time whenever we would go out to do things
and take care of her when she‟s sick and go to the hospital when needed, so
I thought she deserved to call him daddy if that‟s what she wants to do.

Mother testified that she allowed the Child, who was approximately five years old at the
time, to make the decision about what name to use to refer to Step-father. Mother was
asked if she corrected the Child when the Child referred to Step-father as „Daddy,‟ and
she stated: “No. . . . Because that‟s who was taking care of her and acting as daddy.”
Mother was asked if Step-father was the one who Mother wanted as the Child‟s father,
and she stated:

I mean, I don‟t really remember, I guess. . . . I mean, no, I‟m not saying
that. I mean, of course, I mean, I would have loved for, you know, that to
have been her dad, but my intentions were absolutely not to put [Father] out
if that‟s what you‟re saying.

Mother admitted that she got engaged to Step-father in December of 2011 right
around the same time that she alleges that Father decided not to have contact with the
Child. Mother stated: “Well, I assumed it was because of the ride that he was talking
about. . . . I mean, he was - - I don‟t know if that is right.” Mother admitted that Father
was involved in the Child‟s life for the first five and a half years and that during that time
the Child would stay with Father an average of two nights per week. Mother admitted
that during that time the Child built a relationship with Father and with Father‟s parents.
3
Mother was asked if Father was a good father, and she stated: “When we were together,
yes. I mean, he was there and everything. But we‟re not and then whenever I married
and everything it was just, oh, well, we‟re not together, so why try.”

Mother testified that she has not received a child support payment since June of
2012. Mother was asked if she accepted a payment on April 30, 2014 sent certified mail,
and she stated: “No.” Mother was asked if it was her goal to have Father remain a part of
the Child‟s life, and she stated: “Was it my goal? When I filed with Jim Hickman [the
attorney who filed the instant petition for Mother and Step-father], it was my goal.”
Mother was asked if her engagement effectively stopped Father from seeing the Child,
and she stated: “No, I highly think it was because I was with somebody else and so he
was just like, well, we‟re broke up.”

Mother was asked if she thought it was healthy for the Child to have Father
involved in her life for the first five years and then suddenly have him removed from her
life, and Mother stated:

She‟s extremely happy right now. She feels extremely comfortable. She
knows [Step-father] is not going anywhere. She knows he‟s going to
always be there for her. I mean, he gave her her own ring during our
ceremony and said, you know, I will be here for whatever you need me to
be here for you.

Mother met Step-father around her birthday in 2011 and the Child met him in
September of 2011. After Mother and Step-father married, Mother and the Child moved
into Step-father‟s house. Mother admitted that she never has given Father the mailing
address for where she lives. Mother claims that she does not receive her mail there.
Mother admitted that there is a mailing address where she currently lives, but she has not
given Father that address. Mother stated: “but his parents both knew it.” Mother was
asked how Father used to provide child support to her, and she stated: “He would just
give it to me whenever he was getting [the Child]. The last time I got child support he
put it in my parents [sic] mailbox.” Mother testified that Father usually gave her cash.

When Mother was asked if she texted Grandmother to advise about the Child‟s
recital and told Grandmother not to tell Father, she stated:

I could have because any time that [Father] wanted to see [the Child] or do
anything with [the Child] he needed to go through me for that. He wanted
to do everything through his mother for it, and he needed to talk to me
about it. I didn‟t want to go through his mom about it.

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 Mother admitted that the Child had some visits with Father‟s parents after Mother
filed the petition. She stated: “I told [Grandmother] that this is a grandparents [sic] visit,
if [Father] wants to have a visit he needs to contact me about that. So let‟s keep it
grandparents when you‟re asking, and then he can call me to talk about a visit.” Mother
admitted that Father does not have her phone number, but stated that Father‟s parents do.

Father testified that he lives with his mother and father and that he works as a
personal trainer. Father last saw the Child in July of 2012. He was asked if he called
Mother and requested another visit after that time, and he stated: “Every time I‟ve been in
contact with [Mother] she refuses everything, and then there‟s times that she would just
go on and go on about not answering texts or not answering calls.” Father admitted that
it was his word against Mother‟s. Father was asked if he ever started a paternity action or
filed a petition for visitation, and he stated:

I started inquiry about getting lawyers right then at that point. I‟ve been
through several people and I couldn‟t afford actually to throw down a down
payment, which everybody wanted retainer fees, and that‟s when - - after
searching and searching, just saving money, that‟s when I got [my
attorney], which was actually months before she came to you. We started
discussing about what I need to do, and then he started helping me out with
payments.

Father was asked if he had called Mother to set up visits, and he stated:

Not called her. She‟s gone through my mother because I didn‟t have any
contact with her, and every visit that [the Child] was allowed to have over
there with my parents, I was not allowed to be in contact with her, and if I
was, whether it be - - I was there presently or, you know, on the phone, she
wouldn‟t let her come back over.

Father also testified:

We had several times where I used to call [the Child] on the days that I
didn‟t have her, and we had a specific time set because [Mother] would
only allow me to call at 10:30 in the morning, and if I called one minute
after that, whether I was at a job or working or anything, she would not let
me speak to her.

Father was asked if he had sent a letter by certified mail in an attempt to send child
support to Mother, and he stated:

5
 I‟ve been trying to send for a few months. That was the address that I was
aware that she was at. . . . Those are the addresses that were printed. We
actually had to go to the courthouse here to find the addresses for it,
because like was stated earlier about having only one mailbox over there
and it‟s [Step-father‟s] mother‟s address. I guess nobody - - there is
another mailbox, but nobody answers the door. So it keeps getting sent
back.

Father testified that the last address he had for Mother was Mother‟s parent‟s address.

With regard to child support Father testified:

I started not getting [the Child] periodically throughout that year, and I
continued to pay along with other things, doctor bills, her Mother‟s Day
Out bills and everything, which at one point [Mother] told me to stop doing
because [Step-father] would pay for it after that, which was - - that
statement actually came from in July, the last time I made that payment,
which was an extra $140 usually a month, and then on top of whatever else
[the Child] needed, I always supplied for and paid for, only to where
[Mother] stopped letting me have her altogether that I started trying to put
that money that I was taking with [the Child] towards, you know - - putting
towards the lawyer fees.

Father was asked to explain why his parental rights should not be terminated, and
he stated:

This has all been a big complete misunderstanding. This is her word
and her manipulating everybody that‟s around her, making things her way,
and that‟s just the way she is. I‟ve always told her no, and me and [the
Child] always had the best relationship that you could possibly think
between a father and a daughter.

Any time that we are around each other, it was perfect. Anytime she
needed something, I had it. Any time she, [Mother] was sick, even for like
there would be times where - - she can think of one time, of course, but
there was numerous times where she would be sick and we would keep her,
you know, and everybody would work around their work schedule for
almost even - - over a week at a time bouncing around, and there was more
than just one occasion that that would happen. And I was there for her,
everything she needed, like I would take her at any given point.

6
 And when this offer started is because when I found out that
[Mother] was engaged to [Step-father], it happened within two-and-a-half
months. If you knew [Mother‟s] history between people and every time we
would make up, break up, you know, and get back together, every place
that we‟ve had a house together, it wouldn‟t even be - - there was
sometimes, sir, she would have another man in the house within 48 hours,
and she would lie about people being there, lie about people drinking in
front of [the Child]. I would go over to her basement apartment and find
bottles of alcohol on the ground. And that‟s the stuff I would get upset
about.

The thing that I got upset about with [Step-father] here is that I was
upset that she was throwing somebody into [the Child‟s] life that she didn‟t
even know anything about, that [the Child] knew anything about, and what
[Mother] does is just push [the Child] in front of these people and keeps
shoving them down her throat until that‟s all she knows. I‟ve seen her do it
numerous times. Now, I‟m glad that, you know, she‟s actually got
somebody that she‟s married to and she‟s, you know, got a family and all
that, that‟s great. I never objected to any of that. That‟s none of my
business.

But what I was getting angry about is that through that process she
started continually making the dates less and less and less through the
problems that were complications that we had with my mother and
everybody coming and picking her up at her house. There‟s several
occasions where my dad got upset because their dog would come after him
when he‟d come out to get the baby. And so he asked if, you know, she
could drop her off at my workplace, which at the time [Mother] was living
at her parents [sic] house, which is not even three minutes away from my
workplace. It is literally right there.

She refused to drop her off right there at my workplace just for two
seconds so my parents could pick her up right there in the front of - - even -
- she didn‟t have to come inside, and she would never let [the Child] even
come inside the studio. There was a couple of times where [the Child]
would be off with me on like a Tuesday night and come over the next
Wednesday and I‟d go into work with her, and she‟d sit and play with all
the kids and everything, because we do tumbling classes and everything,
and as soon as [the Child] would get picked up and [Mother] found out
about her being in there, she was never allowed to come in there again.

7
 She would get so furious about her even being any other place
besides where she didn‟t know - - like it‟s a Christian based studio. There‟s
nothing going on in there besides what it is. It‟s dance, and [the Child]
loves dance, and plus she‟s with me. I feel she could - - any place I feel is
safe I would feel, you know, she could be with. [Mother] felt differently
because she didn‟t know the people that were in there, which is
understandable for a parent, but I never understood the people that were
around her either. So it was basically she can do stuff with [the Child] and
have her around anybody, but I was not allowed.

And when it comes to the birth certificate thing, of course she‟s
going to say she never refused me to be on the birth certificate and
everything. Every single time I asked to get put on that birth certificate,
there was always some kind of complication or problem and we never got
to it.

With the child support thing where my name is stated on the - -
stated for saying that whatever, that I get parental rights, I actually never
understood that was actually a parental - - like that‟s putting me on the birth
certificate, hearsay or whatever. I actually never understood that, so if I‟d
known that then I would have just pushed a lot of other things with the
court, but that was years before even this. But the only reason we did that
was because we already had a mutual agreement with the money and
basically we were lying to the state so she could keep her insurance. So
that‟s all that was.

Father testified that Mother threatened him “a few times” with a restraining
order if he showed up at her house. Father was asked if he felt that Mother had
done anything to stand in the way of him having a relationship with the Child, and
he stated: “On many occasions. I mean, even presently.” Father further
explained:

Well, the Court by itself, but her gradually taking her times away
from me. When we did come up like the time that she spoke of
earlier where she was talking about where we went to a place and I
decided to bring friends over there around [the Child], it‟s a public
place, people show up.

She didn‟t approve of the people because she didn‟t know
who was there, and any time there was ever a female around me or
anything, even if it was just a friend, she would immediately get on a
8
 - - and just start yelling at me about who‟s around [the Child], who‟s
around this and that, you know, I don‟t want her around anybody,
you know, like this. But these people - - I never put her in an unsafe
environment. I never had her around anybody that I would think
unfit on any case.

Father testified that he wants to be a part of the Child‟s life and stated: “I
want just my baby back, but I want some force of authority to tell her that she
can‟t tell me no, and that‟s what this whole thing is about.” Father testified that
prior to Mother‟s engagement he communicated directly with Mother about
visitations and that after her engagement “they started gradually not being through
me and she would only contact through my mother.”

Grandmother testified that she found out that the Child was her grandchild
after the Child was born. Grandmother was asked if she developed a relationship
with Mother, and she stated:

It was scary at first, you know, because I had met [Mother] actually about a
year before that, maybe a year before that, because [Father] was training
her for a contest. And I met her briefly then where he used to live and
stuff. But then they split up, I guess, or whatever, and he had actually kind
of kept track of her through that time and told me that she had got married1,
she was pregnant . . . . And then he actually - - he told me that he seen
[Mother] in a hospital, and the baby - - because somebody he knew, their
baby was born the same day, and he saw [Mother] in the hospital then.
And then it was about a month later then that I found out that [the Child]
was ours.

Grandmother testified that she and her husband were involved in the Child‟s life
from that point on. Grandmother was asked about testimony from others that made her
seem “like the mediator,” and she stated: I was put in the middle a lot, and that was
rough.” Grandmother was asked if something happened when the Child was
approximately five and a half years old, and she stated: “The both of them moved on. I
mean, she met [Step-father] . . . .” Grandmother testified that things began to “crumble
right after Christmas. . . . ‟12. . . . Right after Christmas, the first of the year.” She
testified:

I would either text or call [Mother] or - - and I said, you know, where‟s K
[the Child], because that‟s K, you know, or princess, and is she coming
1
The evidence in the record on appeal shows that Mother had been married to and divorced from another
man prior to her marriage to Step-father.
9
 over, and she‟d say, no. And then I started getting it more and more. And
then she would bring her over, you know, like at a special day, when she‟d
bring her over and stuff. And then it would start out, she can come over as
long as [Father] is not there.

In September or October of 2011 Mother told Grandmother that she did not
want the Child at Father‟s work. Grandmother testified that “it would get to the
point where [Mother] didn‟t want [the Child] to talk to [Father] on the phone
either.” Grandmother testified that she “called and told [Father], said I‟m caught
between a rock and a hard place. I want to see my grandchild, but I‟m not allowed
to let you talk to her or see her . . . .” Grandmother testified:

We would call and we would ask can she come over, and it would
be, no, not right now, she‟s busy or there would be another - - like Easter,
have her come over and she would say, well, she can come over as long as
[Father] is not there and don‟t let them talk on the phone, and I realized that
she was like insecure over this. And when she would come over to the
house, I‟d literally open up the doors in my house, in the kitchen and the
bedroom door‟s [sic] open, and we‟d walk all through the house, you know,
to the bedroom, so she could see he‟s not here. I‟m not going to - - you
know, worry about jeopardizing, not being able to see my granddaughter,
you know. And we‟d go, you know, into that. It got a little bit farther in.

Grandmother testified that in May of 2013 she and Mother either spoke or texted about
the Child‟s upcoming recital. Grandmother testified: “[Mother said] please don‟t tell
[Father], and I‟m thinking, duh, I mean, who - - I mean, it‟s a - - all you have to do is
listen to the radio and it tells you when the recitals are, you know, with these things and
stuff. And he already knew about it anyway.”

Grandmother testified that she heard the Child refer to Step-father as „dad‟ shortly
before Mother and Step-father were married. Grandmother testified that a little over a
year prior to trial and after Mother and Step-father were married, Grandmother was with
the Child, and the Child was writing her name on a chalkboard. The Child wrote her last
name as Step-father‟s last name. Grandmother asked the Child why she wrote that, and
the Child told Grandmother that was going to be her new name.

Grandmother was asked about the complications that arose with transporting the
Child, and she stated:

It was because it seemed like we were doing it all the time. I was, or my
husband was the ones that were going back and forth, and it was just
10
 getting costly. And then it was hard to get my job to regulate with it. So
that‟s when we asked if - - why can‟t she just wait there at the studio
[where Father works] for us and I will be right there, pick her up on the
way through or something. I just - - it was getting harder and harder to go
over there.

After trial the Trial Court entered its order on July 7, 20142 dismissing the petition
after finding and holding, inter alia, that Mother and Step-father failed to prove by clear
and convincing evidence that Father willfully failed to visit the Child and failed to prove
by clear and convincing evidence that Father willfully failed to pay support for the
Child.3 Mother and Step-father appeal the dismissal of their petition to this Court.

Discussion

Although not stated exactly as such, Mother and Step-father raise three issues: 1)
whether the Trial Court erred in finding that Mother and Step-father failed to prove by
clear and convincing evidence that Father willfully failed to visit the Child; 2) whether
the Trial Court erred in finding that Mother and Step-father failed to prove by clear and
convincing evidence that Father willfully failed to pay support for the Child; and, 3)
whether the Trial Court erred in failing to find that Mother and Step-father had proven by
clear and convincing evidence that the termination of Father‟s parental rights was in the
Child‟s best interest.

Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court‟s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

This Court must review findings of fact made by the trial court de
novo upon the record “accompanied by a presumption of the correctness of
the finding, unless the preponderance of the evidence is otherwise.” Tenn.
R. App. P. 13(d). To terminate parental rights, a trial court must determine
by clear and convincing evidence not only the existence of at least one of
2
The order was entered nunc pro tunc to May 28, 2014.
3
By order entered on December 10, 2014, the Trial Court certified its order with regard to the petition to
terminate as a final order pursuant to Tenn. R. Civ. P. 54.02.
11
 the statutory grounds for termination but also that termination is in the
child‟s best interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)
(citing Tenn. Code Ann. § 36-1-113(c)). Upon reviewing a termination of
parental rights, this Court‟s duty, then, is 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).

In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

It is well established that “parents have a fundamental right to the care,
custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97
(Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct.
1208, 31 L. Ed. 2d 551 (1972)). “However, 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.” Id. (citing
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982)).

Termination of parental or guardianship rights must be based upon a
finding by the court that: (1) the grounds for termination of parental or
guardianship rights have been established by clear and convincing
evidence; and (2) termination of the parent’s or guardian’s rights is in the
best interests of the child. Tenn. Code Ann. § 36-1-113(c). Before a
parent’s rights can be terminated, it must be shown that the parent is unfit
or substantial harm to the child will result if parental rights are not
terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A.,
Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Similarly, before the
court may inquire as to whether termination of parental rights is in the best
interests of the child, the court must first determine that the grounds for
termination have been established by clear and convincing evidence. Tenn.
Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 WL
1660838, at *6 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear and
convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Our Supreme Court has instructed:
“the clear and convincing evidence standard requires that the truth be highly probable.
„Clear and convincing evidence means evidence in which there is no serious or
12
substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005) (quoting Hodges
v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Mother and Step-father sought to terminate Father‟s parental rights to the Child
pursuant to Tenn. Code Ann. § 36-1-113(g)(1), which provides:

(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;

Tenn. Code Ann. § 36-1-113(g)(1) (2014). In pertinent part, Tenn. Code Ann. § 36-1-
102 provides:

(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:

(i) For a period of four (4) consecutive months immediately preceding
the filing of a proceeding or pleading to terminate the parental rights of
the a [sic] parent or parents or a guardian or guardians of the child who is
the subject of the petition for termination of parental rights or adoption,
that the a [sic] parent or parents or a guardian or guardians 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) (2014).

We first consider whether the Trial Court erred in finding that Mother and Step-father
failed to prove by clear and convincing evidence that Father abandoned the Child by
willful failure to visit the Child. The evidence in the record on appeal shows that Father
exercised regular visitation with the Child averaging visits two nights per week for the
first five years of the Child‟s life. The evidence shows that the situation changed right
around the time that Mother became engaged to Step-father. The evidence in the record
shows that although Mother insisted that Father go through her to schedule visitation,
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Mother failed to provide Father with her telephone number or the address where Mother
and the Child lived with Step-father. The evidence further shows that problems arose
with regard to transporting the Child to visits with Father, and that Mother refused to
allow the Child anywhere near Father‟s place of employment. Grandmother testified that
meeting at Father‟s place of employment would have made transportation easier and
Father testified that his place of employment was not an inappropriate place for the Child
to be. The evidence shows no valid reason for Mother‟s refusing to allow the Child to be
at Father‟s place of employment with Father. The evidence in the record also shows that
Mother instructed Grandmother not to tell Father about the Child‟s recital.

Overall, the evidence shows that Mother took steps that made it much more difficult
for Father to exercise visitation with the Child. Mother took unreasonable steps
restricting Father‟s access to the Child such as prohibiting the paternal grandparents from
allowing Father to see or talk to the Child when the Child visited the grandparents even
though Father lived with them. As such, the evidence in the record on appeal does not
support a finding that Father‟s failure to visit was willful. The evidence in the record on
appeal does not preponderate against the Trial Court‟s finding that Mother and Step-
father failed to prove by clear and convincing evidence that Father had abandoned the
Child by willful failure to visit.

Next, we consider whether the Trial Court erred in finding that Mother and Step-
father failed to prove by clear and convincing evidence that Father abandoned the Child
by willful failure to pay support for the Child. As discussed above, the evidence in the
record on appeal shows that Father paid child support in accordance with the signed
written agreement he and Mother had for approximately the first five years of the Child‟s
life. The evidence shows that the situation changed when Mother became engaged to
Step-father. The evidence shows that Mother failed to provide Father with the mailing
address where she and the Child resided, and, as discussed above, took steps which
interfered with Father‟s visits with the Child resulting in Father being unable to give the
child support directly to Mother when he exercised visitation as had been customary
between the parties in the past. The evidence shows that Father attempted to send child
support payments via certified mail to the address he obtained from the court file, but
those certified letters were not accepted.

In essence, the evidence shows that Mother took successful steps that interfered
with Father‟s ability to pay child support. As such, the evidence does not support a
finding that Father‟s failure to pay child support was willful. We find no error in the
Trial Court‟s finding that Mother and Step-father failed to prove by clear and convincing
evidence that Father abandoned the Child by willful failure to pay child support.

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 As we have affirmed the Trial Court‟s findings that grounds for termination were
not proven by clear and convincing evidence, we find no error in the Trial Court‟s refusal
to make a determination regarding best interest. We affirm the Trial Court‟s July 7, 2014
order dismissing Mother‟s and Step-father‟s petition.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Rachel L.S. and Brandon M.R. and their surety.

_________________________________
D. MICHAEL SWINEY, JUDGE

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