In Re Mariah H.

06/30/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 22, 2017 Session

IN RE MARIAH H.

Appeal from the Juvenile Court for Johnson City
No. 46,694 Sharon M. Green, Judge

No. E2016-02091-COA-R3-PT

This is a termination of parental rights case involving the child, Mariah H. (“the Child”),
who was one year of age at the time of trial. On June 26, 2015, the Johnson City Juvenile
Court (“trial court”) granted temporary legal custody of the Child to the Tennessee
Department of Children’s Services (“DCS”). The Child was immediately placed in foster
care, where she has remained since that date. Following separate hearings, the trial court
entered two orders adjudicating the Child dependent and neglected in the care of the
parents: one on November 25, 2015, as to the mother, Teresa H. (“Mother”), and the
second on January 13, 2016, as to the father, Stafford B. (“Father”). On February 2,
2016, DCS filed a petition to terminate the parental rights of Mother and Father.1
Following a bench trial, the trial court terminated Father’s parental rights to the Child
after determining by clear and convincing evidence that Father willfully failed to visit the
Child during the four months prior to the filing of the termination petition. Furthermore,
the trial court dismissed the grounds alleged against Father of failure to establish
paternity and persistence of the conditions leading to removal. Also finding clear and
convincing evidence that termination of Father’s parental rights was in the best interest of
the Child, the trial court terminated Father’s parental rights to the Child. Father has
appealed. Discerning no error, we affirm.

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

1
Mother is not a party to this appeal. In the termination petition, DCS requested termination of both
Mother’s and Father’s parental rights; however, termination of Mother’s parental rights was addressed by
separate order. The trial court noted Mother’s express intent to surrender her parental rights at the June
19, 2016 hearing and set a later trial date to address that matter. The trial court certified its September 6,
2016 order terminating Father’s parental rights as a final order pursuant to Tennessee Rule of Civil
Procedure 54.02.
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.

Cameron L. Hyder, Elizabethton, Tennessee, for the appellant, Stafford B.

Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

OPINION

I. Factual and Procedural Background

The Child was born in June 2015 in Sullivan County, Tennessee to Mother. The
Child’s birth certificate was silent as to the identity of her father. Only days after the
Child’s birth, DCS, responding to a referral involving child abuse, filed a petition for
temporary emergency custody of the Child. The trial court subsequently ordered that the
Child be placed into DCS custody on June 26, 2015. At the time of removal, Mother
stated to DCS that she believed Father to be the Child’s biological father but did not
know his whereabouts. According to Mother, she had informed Father that he was the
biological father of the Child in approximately March or April of 2015. Father claimed
that he only learned of the Child’s existence in June 2015, a couple of weeks before her
birth. According to Father, he moved to Georgia from Tennessee in March or April of
2015.

Concomitant with the petition for emergency custody, DCS filed a motion
requesting relief from the requirement of providing assistance to Father citing a previous
involuntary termination of Father’s parental rights to a sibling of the Child, J.H. In the
previous order terminating Father’s parental rights to J.H., the trial court found clear and
convincing evidence of three grounds for termination, including a finding that Father had
abandoned J.H. by failing to visit him in the four months prior to the termination
petition’s filing. In part because the trial court determined that J.H. and Father were
“complete strangers,” the trial court determined that it was in J.H.’s best interest for
Father’s parental rights to be terminated.

Following the Child’s placement in DCS custody, the trial court conducted a
preliminary hearing on July 9, 2015, during which Mother identified Father to the trial
court as the biological father of the Child. In an order entered on December 16, 2015, the
court found that the Child was “dependent and neglected as to the mother” and that
Mother had “perpetrated ‘severe child abuse’ upon [the Child].” On January 13, 2016,
the court further found the Child to be “dependent and neglected as to [Father].” The
court specifically found that “[Father] has not visited with the child at all” and “[Father]
2
has no relationship with the child at this time and is, in effect, a complete stranger to the
child.” Following that hearing, the court ordered that the Child remain in the custody of
DCS. The court further ordered that if Father desired to visit the Child, he should contact
DCS to schedule the visit. Additionally, the court granted DCS’s motion and relieved
DCS of making reasonable efforts to reunify the Child with Father due to the previous
involuntary termination of his parental rights to J.H. On February 2, 2016, DCS filed a
petition to terminate Father’s parental rights. The trial court conducted a bench trial on
June 19, 2016.

The testimony at trial established that Katie Wilhoit was assigned as the DCS case
manager. Despite having been relieved of making reasonable efforts to reunify Father
with the Child, DCS continued to encourage Father to develop a relationship with the
Child following the Child’s removal into DCS custody. Ms. Wilhoit testified that she
immediately began trying to contact Father and was eventually provided his telephone
number by Mother. She was subsequently able to contact Father on July 23, 2015.
According to Ms. Wilhoit, she learned during this telephone conversation that Father had
relocated from Elizabethton, Tennessee, to Augusta, Georgia, in March or April of 2015.
Ms. Wilhoit testified that she informed Father of the importance of visiting the Child and
remaining in contact with DCS during that phone conversation. At that time, Ms. Wilhoit
obtained Father’s mailing address to assist in furthering communication between Father
and DCS.

Ms. Wilhoit reported that she contacted Father via telephone again on July 27,
2015, at which time they discussed a permanency plan, DNA testing, and the importance
of Father’s visiting the Child. According to Ms. Wilhoit, she subsequently mailed Father
several documents, including information regarding a child and family team meeting.
Ms. Wilhoit spoke with Father on August 3, 2015, via telephone, when she again stressed
the importance of Father’s visiting and forming a relationship with the Child. During
their telephone conversation, Father informed Ms. Wilhoit that he was having a difficult
time visiting the Child because of the distance and his lack of a vehicle and driver’s
license.2

On August 14, 2015, Ms. Wilhoit mailed to Father documents regarding the
criteria and procedures for termination of parental rights, which Father acknowledged
having received during a telephone conversation with Ms. Wilhoit on August 24, 2015.
Ms. Wilhoit testified that during the August 24, 2015 conversation, she again stressed the
importance of Father’s visiting the Child. Father did not schedule a visit at that time.

2
Both Ms. Wilhoit and Father explained to the trial court that Father’s license had been suspended for
failure to pay child support.
3
 According to Ms. Wilhoit, she also assisted Father by scheduling an appointment
for him to complete DNA testing in Georgia, but Father missed the appointment. In lieu
of scheduling another appointment, DCS had a DNA test performed in approximately
September 2015, using a DNA sample that Father had previously provided for a DNA
test regarding another child. It is undisputed that the DNA test results were conclusive
that Father was in fact the biological father of the Child. Ms. Wilhoit testified that she
maintained contact with Father and continued to inform him of the significance of
visiting the Child and of the consequences of his failure to visit.

Over the course of the dependency and neglect proceedings, Father informed Ms.
Wilhoit and the trial court that factors such as the Child’s not being placed with Father’s
family and Father’s inadequate finances were preventing him from seeing the Child.
During trial, Father testified that he had maintained employment with FPL Foods since
approximately August 2015. The adjudicatory order reflects Father’s prior testimony
regarding his employment:

[Father] testified that he has not paid any support for the child at all. He
testified that he has a good paying job. He testified that he makes
approximately ten dollars ($10.00) per hour at this current job, and that he
works approximately ten (10) hours a day, six (6) days a week. He has
been employed at this job since September 2015. He is paid “time and a
half” for all hours over 40 hours each week.

According to Father’s testimony, he would have been more easily able to visit with the
Child if the Child had been placed with his family members. Ms. Wilhoit testified that
she attempted to arrange visitation for the Child’s paternal grandmother after the DNA
testing had been conducted. Ms. Wilhoit explained that the paternal grandmother did not
appear for the visit and that she never heard from the paternal grandmother again.

According to Ms. Wilhoit, Father repeatedly expressed to her that his employment
with FPL Foods prevented him from visiting with the Child because of the company’s
strict attendance policy. When asked at trial why he did not travel to Tennessee to visit
the Child, Father stated:

At the time, I was getting employed at that position. The rules and
regulations stated how long you have to work before you are able to even
get a day off. Then it also states that you have to wait a year before you can
have vacation leave, vacation pay. The total turnover at my job is just
phenomenal. People come and go every day, and they are replaced every
day. If it was a situation where I didn’t have to have a job because of my

4
 responsibilities with my kids, and I could possibly take a day off and get
fired like the other people.

Father provided Ms. Wilhoit with FPL Food’s employment policy, which was
ultimately entered as an exhibit at trial. The employment policy provided in pertinent
part:

The Company understands there may be a need to have time off for urgent
personal reasons. In those instances, a RTO-Request may be submitted.
The approval of these requests will be up to the Department Manager’s
discretion. No points will be issue[d] for the scheduled absence. The form
must be turned in twenty-four (24) hours before the absence is to occur in
order to be considered. A maximum of one (1) request may be approved
per rolling 90 day period; no requests may be accrued to give additional
time during later months.

Father testified that he had submitted “three or four” or “four or five” requests for time
off to visit the Child. Father claimed, however, that his requests were denied each time
due to his lack of seniority. The employment policy also allowed an employee to request
time off for court dates. Father testified that he requested time off work for a “few” court
dates.

Ms. Wilhoit testified that following Father’s complaints regarding his work
schedule, she had informed Father that they could schedule his visits with the Child on
weekends or evenings so long as Father provided Ms. Wilhoit with prior notice of two or
three days. Father testified, however, that no visitation was offered to him on weekends.
After the termination petition was filed, Father attempted to visit with the Child once on
the weekend of Memorial Day in 2016. Due to prior travel plans, Ms. Wilhoit was
unable to supervise a visit on that weekend. According to Ms. Wilhoit, the foster parents
were not willing to supervise that visit because they had never met Father.

Father visited the Child one time during the pendency of the case on June 20,
2016, for approximately two hours. Ms. Wilhoit supervised the visit between Father and
the Child. According to Ms. Wilhoit, the Child was initially upset during the visit
because of “the child not knowing who [Father was],” but the Child subsequently calmed
down. During the visit, Father played with the Child and talked appropriately to her the
entire time. At the conclusion of the visit, Ms. Wilhoit offered to schedule a “follow-up
visit” with Father and the Child. However, Father did not schedule a subsequent visit and
had not visited the Child since June 2016.

5
 During trial, Father indicated that he had five children. According to Father, he
did not have custody of any of his children. Father’s parental rights to one child had been
terminated. Father reported that he only paid child support through the court system for
two of his other children. Father testified regarding a recent warrant for his arrest in
Tennessee for statutory rape involving Mother. According to Father, he “went and took
care of the warrant” a couple of weeks prior to trial around the same time he came to visit
the Child. Father’s court date concerning the related criminal charge was scheduled for
July 19, 2016.

Ms. Wilhoit testified that the Child was doing well in her foster care placement
and that she had observed the Child as “part of the family unit” in the foster home. The
Child had been placed with two of her biological half-siblings. According to Ms.
Wilhoit, the foster family intended to adopt the Child if she were to become available for
adoption. Mother testified that if the Child could not be with her, she desired for the
Child to remain in foster care with the Child’s two half-siblings.

Following trial, the trial court entered a judgment on September 6, 2016,
terminating Father’s parental rights to the Child.3 The court found by clear and
convincing evidence that Father had abandoned the Child by willfully failing to visit her.
The trial court dismissed the grounds of failure to establish paternity and persistence of
the conditions leading to removal. The court further found by clear and convincing
evidence that termination of Father’s parental rights was in the best interest of the Child.
Father timely appealed.

II. Issues Presented

Father presents two issues for our review, which we have restated as follows:

1. Whether the trial court erred by finding clear and convincing
evidence that Father abandoned the Child by willfully failing to visit
her for four months preceding the filing of the termination petition.

2. Whether the trial court erred by finding clear and convincing
evidence that it was in the Child’s best interest to terminate Father’s
parental rights.

III. Standard of Review

3
Although DCS had pled the ground of abandonment for failure to support the Child in its petition, the
trial court did not address that ground in its order terminating Father’s parental rights.
6
 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. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). 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,
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 recently explained:

The parental rights at stake are “far more precious than any property
right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has
the legal effect of reducing the parent to the role of a complete stranger and
of [“]severing forever all legal rights and obligations of the parent or
guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
rights is “final and irrevocable”). In light of the interests and consequences
at stake, parents are constitutionally entitled to “fundamentally fair
procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).

Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“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
7
 substantial doubt about the correctness of these factual findings.” In re
Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).

***

In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).

IV. Abandonment by Willful Failure to Visit

Father asserts that the trial court erred by terminating his parental rights based on
the ground of abandonment by willful failure to visit. Upon a thorough review of the
record, we disagree and conclude that the trial court’s findings, made under a clear and
convincing standard, are supported by a preponderance of the evidence. Tennessee Code
Annotated § 36-1-113 (Supp. 2016) lists the statutory grounds for the termination of
parental rights, providing in relevant part:

(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. All pleadings and records filed in the chancery and circuit courts
pursuant to this section shall be placed under seal and shall not be subject to
public disclosure, in the same manner as those filed in juvenile court, unless
otherwise provided by court order.

***
8
 (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.

Tennessee Code Annotated § 36-1-113(g)(1) authorizes termination of parental
rights when:

Abandonment by the parent or guardian, as defined in section 36-1-102, has
occurred . . . .

Tennessee Code Annotated § 36-1-102(1)(A)(i) (Supp. 2016) 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 or parents or the guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
parent or parents or the 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 . . . .

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
previously has 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. section 36-1-102(1)(A)(i) unless the parent has either
“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. This Court has further explained:

9
 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. Furthermore, “[a] parent cannot be said to have abandoned a child when his failure to
visit . . . is due to circumstances outside his control.” In re Adoption of Angela E., 402
S.W.3d 636, 640 (Tenn. 2013) (citing In re Adoption of A.M.H., 215 S.W3d at 810). A
parent’s failure to visit is not excused by someone else’s conduct unless the conduct
actually prevents the obligated person from visiting or “amounts to a significant restraint
of or interference with the parent’s efforts to develop a relationship with a child.” Id. at
863-64. Lastly, any efforts made to visit a child after DCS files a petition to terminate
parental rights do not negate or provide repentance for prior abandonment. See Tenn.
Code Ann. § 36-1-102(1)(F); In re S.R.M., E2008-01359-COA-R3-PT, 2009 WL 837715,
at *12 (Tenn. Ct. App. Mar. 27, 2009).

In the present case, the trial court in its final judgment found as follows regarding
the ground of abandonment by willfully failing to visit the Child:

[Mother] testified during these proceedings that she had informed
[Father] that he was the father of the child in March or April, 2015.
[Father] acknowledged to the DCS family service worker that the mother
had told him about her pregnancy prior to the birth of the child but denied
that it was in March or April. The testimony of [Mother] is found to be
more credible on the issue of when she advised [Father] that he was the
father of her child.

***

The child was adjudicated a dependent and neglected child as to
[Father] on January 13, 2016, by clear and convincing evidence. [Father]
participated by telephone at the adjudicatory hearing at his request. As
recited in the Order from the father’s adjudicatory hearing, the Court found
that [Father] had not visited with the child at all, even though the child was
almost seven (7) months old at the time. The Court found that [Father] did
not have any relationship with the child and was, in effect, a complete
stranger to the child.

***

10
 [Father] had not paid any support for the child as of his adjudicatory
hearing although he had a good paying job, made approximately ten
($10.00) dollars an hour, and worked approximately ten (10) hours a day,
six (6) days a week. He was paid “time and a half” for all hours over 40
hours each week. This was previously found by the Court in the father’s
adjudicatory hearing based upon his testimony.

***

In its Order from January 13, 2016, the Court found that “[Father’s]
behaviors toward the minor child at issue in this cause are reminiscent of
his behaviors when his other minor child, [J.H.], was removed into DCS
custody for foster care. These behaviors include issues of failure to visit,
failure to support, instability, and lack of a relationship with said child. As
a result of [Father’s] inaction in that case, his parental rights to the child,
[J.H.], were involuntarily terminated.”

***

The DCS family service worker later obtained a telephone number
for [Father] from the mother and contacted him by telephone on July 23,
2015. During the telephone conversation, he provided his mailing
address[.] The family service worker stressed to him the importance of
maintaining contact with her and spoke to him about visiting the child. . . .

The DCS family service worker had a second conversation with
[Father] four days later on July 27, 2015, during which they discussed him
having visits with the child. He filed a copy of the Child and Family Team
Meeting Summary dated July 27, 2015 (in which he participated by
telephone) as an attachment to his Response to the Petition to Terminate
Parental Rights. The Child and Family Team Meeting Summary stated that
“FSW told the father he could visit before DNA, just give a couple days’
notice of coming into town.” In the section under “visitation plans for the
next three months” the Child and Family Team Meeting Summary stated:
“Visits have been offered to father. He lives in GA. Father states he has
issues getting up to TN. States his job will interfere.” Father was not
employed by his current employer in July and was doing “sheet rock”
work.

The DCS family service worker had a third conversation with
[Father] a week later on August 3, 2015, in which they discussed him
11
visiting with the child to create a relationship with her. She stressed to him
the importance of the visits.

Ms. Wilhoit mailed [Father] a copy of the criteria and procedures for
termination of parental rights on August 14, 2015, to the address he had
provided to her. He acknowledged to her that he had received the
document.

During a telephone conversation with [Father] on August 24, 2015,
Ms. Wilhoit discussed how important visiting with the child was.

***

During a telephone conversation with [Father] on September 8,
2015, Ms. Wilhoit stressed the importance of him visiting with the child.

***

[Father] told Ms. Wilhoit that his failure to visit with the child was
due to his work schedule not permitting him time off to visit. He gave this
excuse at the time of the initial Child and Family Team meeting when he
was doing sheet rock work, even before he had obtained his current job and
continued to use this excuse.

A visit with the child and [Father’s] mother had been scheduled
through the DCS family service worker in December, 2015, but the paternal
grandmother did not attend the visit. She left the DCS family service
worker a message on her voice mail stating that her husband was on
dialysis three times a week, and that she did not have a ride. Ms. Wilhoit
did not ever hear from the grandmother again about scheduling another
visit.

In January, 2016, Ms. Wilhoit again discussed with [Father] the
importance of visiting with the child and, again, discussed the definition of
abandonment for willful failure to visit.

Ms. Wilhoit attempted to accommodate the father’s work schedule
by offering to schedule visits with the father later in the evenings and on
weekends. Her testimony on her offers to try to accommodate the father’s
schedule is credible.

12
 Ms. Wilhoit continued to urge the father to visit with the child in
February, March, April, May, and June, 2016.

The testimony of Ms. Wilhoit that she encouraged [Father] to visit
with the child during every conversation she had with him and that she
stressed the importance of his visiting with the child during every
conversation she had with him beginning in July, 2015, and extending
through June, 2016, is credible.

The testimony of Ms. Wilhoit as to her advising [Father] on multiple
occasions that his parental rights could be terminated on the basis of
abandonment if he failed to visit with the child is credible.

The Department of Children’s Services filed its Petition to
Terminate Parental Rights on February 2, 2016. The four consecutive
months immediately preceding the filing of the petition was October 2,
2015, until February 1, 2016.

[Father] did not visit or even request a visit with the child between
October 2, 2015, and February 1, 2016.

[Father] did not request a visit with the child for more than three (3)
months after the Petition to terminate his parental rights had been filed.

[Father] made his first request to visit with the child during the week
[preceding] the Memorial Day weekend, 2016. The DCS family service
worker was not able to accommodate his request for a visit during the
Memorial Day weekend due to her previous plans to be out of town for the
holiday weekend. [Father] subsequently requested a visit on June 20, 2016,
which was arranged by DCS and which he attended.

[Father’s] testimony that he had requested other weekend visits is
not credible. [Father] has not requested another visit with the child since
the solitary visit on June 20, 2016.

[Father] has family members in Georgia, and, according to his
testimony, they have homes with pools. He offered no valid explanation
why he did not seek assistance from them in coming to Tennessee to visit
with his child.

13
 Even after DCS was relieved of making reasonable efforts for
reunification on January 13, 2016, Ms. Wilhoit continued to try to contact
the father, continued to urge him to visit with the child, and continued to
keep him informed about what was going on with the child.

The father’s parental rights had been terminated on July 10, 2012, in
regard to another child for abandonment for his willful failure to visit with
the child for a period of four (4) consecutive months immediately preceding
the filing of the Petition seeking to terminate his parental rights. As in
these proceedings, the father had participated in the underlying dependency
and neglect proceedings by telephone while he was living out of state (New
York at that time). The Court found in those proceedings that “[w]hile he
lives in New York City and visitation would be difficult, the Court finds
that it would not be impossible or overly burdensome if he had the desire to
visit with his child.” The father was, therefore, aware of his duty to visit
his child and aware of the potential consequences for his failure to visit.

As found in regard to his other child, it would not be impossible or
overly burdensome for [Father] to visit with the child if he had the desire.
In this case, he is residing even closer to Johnson City than he was when his
parental rights to his first child with [Mother] were terminated.

From the time of the father’s adjudicatory hearing on January 13,
2016, until the hearing in these termination proceedings the only change in
the conditions for removal that has occurred as to [Father] is that he has
visited with the child one (1) time instead of no times. He still has no
relationship with the child and is, in effect, a complete stranger to the child.

At trial, the father explained that “finances” kept him from visiting
with the child even though the Court found on January 13, 2016, that
[Father] had been employed since late October, 2015, making $10.00/hour,
working 6 days a week, 10 hours a day, with overtime of time and a half for
all hours in excess of 40 hours/week. [Father’s] testimony that his
“finances” kept him from visiting is not credible.

[Father] acknowledged that, during a hearing, the Court urged him to
have face to face meetings with the child. He acknowledged that he knew
that his parental rights could be terminated if he did not visit with the child.

[Father] furnished the Court with a copy of his employer’s policy
which states that the employer “understands that there may be a need to
14
have time off for urgent personal reasons. In these instances, an RTO
request may be submitted. The approval of these requests will be up to the
department manager’s discretion. No points will be issued for the
scheduled absence. The forms must be turned in 24 hours before the
absence is to occur in order[] to be considered.”

The employer’s policy also stated that the employee could request
time off for court appearances.

There is no credible evidence that the father ever submitted a request
to have time off “for urgent personal reasons” or for a court appearance,
prior to his appearance today. The father’s testimony on cross examination
that he submitted “three or four” or “four or five” requests for time off is
not credible.

***

Less than one month following the child’s being placed in the
custody of DCS, the family service worker made telephone contact with
[Father], discussed the child being in the custody of the Department, and
began encouraging him to visit with the child. During every contact the
family service worker had with [Father], she encouraged him to visit with
the child and stressed to him the importance of visiting with the child.
[Father] acknowledged that the Court also urged him to visit with the child.
[Father] was aware that his parental rights could be terminated on the basis
of abandonment for his willful failure to visit, due to his parental rights to a
sibling of this child having been terminated in part for his abandonment of
that child for failure to visit. In addition, the family service worker advised
him of the criteria for termination of parental rights, including his willful
failure to visit for four consecutive months.

In July, 2015, [Father] was doing sheet rock work in Georgia and
used his work schedule as the excuse why visiting with the child would be
difficult. After October, 2015, he obtained different employment and again
used his work schedule as the excuse why he could not visit. The
employer’s work policy presented by [Father] specifically contained
provisions for an employee requesting time off for “urgent personal
reasons.” The Court finds that [Father’s] testimony that he requested time
off for the purpose of visiting his child on multiple times and that they were
all denied is not credible.

15
 During trial, [Father] testified that finances had been the reason he
did not visit although he had been gainfully employed on a full time basis,
with overtime pay on a regular basis, since October, 2015. The Court finds
that [Father’s] excuses for not visiting for financial reasons were not
credible.

The Court finds that the Department of Children’s Services
attempted to accommodate [Father] in visiting with the child after normal
work hours and on weekends and that he did not request a visit with the
child until late May, 2016, more than three (3) months after the petition to
terminate his parental rights had been filed. His first visit with the child
occurred on June 20, 2016, and he has not requested another visit since
then.

During the four (4) consecutive months immediately preceding the
filing of the petition, there was an outstanding attachment for [Father] due
to pending criminal charges against him. The Court can reasonably infer
that the outstanding attachment was the basis for [Father’s] not traveling to
Tennessee to visit with his child, more than finances or his work schedule.

The Court of Appeals has previously held that a parent’s failure to
visit may be willful when the parent voluntarily leaves the jurisdiction. In
re D.M.S., G.H.S., and T.M.S., 2005 WL 1887526 (Tenn. Ct. App. [Apr. 4,]
2005). The Court can reasonably infer that [Father’s] leaving east
Tennessee in March or April, 2015, on a Greyhound bus, with no
employment in Georgia, no home in Georgia, and in such financial straits
that he had to apply for “assistance” in the State of Georgia created a
situation of his own design and created willfulness in creating the
circumstances which led to his failure to visit. [Father] was residing in the
State of Georgia, adjoining the State of Tennessee. Although it may have
been more difficult for him to visit than if he had continued to reside in
Elizabethton, it certainly was possible.

[Father] has also testified that without his job he would not have
been able to obtain custody of his child. It is true that having a legal source
of income is a consideration for the Court in determining a parent’s ability
to provide care for a child, but a child is not a piece of furniture which is
placed in storage for over a year until one is ready to move it into the home.
The Court takes judicial notice of the fact that a baby has significant
physical and emotional needs which must be met on a daily basis, twenty-
four hours each day, and that attachments are formed with the persons who
16
 meet those needs. As of the date of the hearing on the Department’s
petition, the child has been in the care of the foster parents for thirteen
months, where [her] physical and emotional needs have been met daily. In
comparison, the child has been in the supervised care of [Father] for two
hours, during a solitary supervised visitation on June 20, 2016.

The Court finds that the statutory ground of abandonment by willful
failure to visit for four (4) consecutive months immediately preceding the
filing of the petition to terminate the parental rights of [Father] has been
proven by clear and convincing evidence.

(Paragraph numbering omitted.) Based on the above facts, the trial court therefore found
by clear and convincing evidence that Father had willfully failed to visit the Child during
the determinative four-month period immediately preceding the filing of the termination
petition. We agree. We note that although we review the trial court’s findings of fact
with a presumption of correctness, the trial court’s conclusion that Father’s failure to visit
constituted willful abandonment is a question of law, which we review de novo with no
presumption of correctness. See In re Adoption of A.M.H., 215 S.W.3d at 810.

Testimony demonstrated that throughout the time the Child had been in DCS
custody, Ms. Wilhoit repeatedly informed Father that he needed to visit the Child and
informed him that the consequences could be termination of his parental rights if he
failed to do so. Additionally, Ms. Wilhoit provided Father with a copy of the criteria and
procedures for termination of parental rights, which Father acknowledged receiving. At
trial, Father admitted that he previously knew the possible consequences of his failure to
visit the Child during the relevant four-month period.

The trial court correctly determined that the statutorily determinative period
spanned from October 2, 2015, through February 1, 2015 (“determinative period”). The
record reflects that Father did not visit and made no attempt to visit the Child within the
determinative period. Only after the termination petition was filed did Father request
visitation with the Child. The first time Father made an effort to visit the Child was in
May 2016, over Memorial Day Weekend, which was after DCS filed the petition to
terminate Father’s parental rights. Ms. Wilhoit was unable to accommodate a visit on
that date due to previous travel plans. Father subsequently requested a visit in June
2016. The only time Father actually visited the Child was on June 20, 2016, almost five
months after the termination petition was filed. That visit lasted approximately two
hours. At trial, Father acknowledged that he had only visited the Child once. We note
that a parent’s abandonment of his or her child “may not be repented of” by the parent’s
efforts to visit the child after a termination petition is filed. See Tenn. Code Ann. § 36-
1-102(1)(F).
17
 Father does not dispute that he failed to visit the Child during the determinative
period. He instead argues that the trial court erred in finding that his failure to visit was
willful, insisting that his failure to visit was due in part to his demanding work schedule
and his employer’s strict attendance policy. We emphasize that a parent’s failure to visit
“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[.]” In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (citations
omitted).

Despite Ms. Wilhoit’s encouragement for Father to visit the Child, Father
repeatedly declined offers for visitation by claiming that he was unable to visit due to his
demanding work schedule. Consequently, Ms. Wilhoit offered Father visits that would
have occurred on evenings and weekends to accommodate his work schedule. The trial
court found Ms. Wilhoit’s testimony credible regarding her offer to accommodate
Father’s schedule and provide weekend visitation for Father. We further emphasize that
the trial court’s determinations regarding witness credibility are afforded great weight on
appeal. See Jones, 92 S.W.3d at 838. Despite Ms. Wilhoit’s offer to provide Father
with visitation on weekends and evenings, Father presented no evidence that he
attempted to visit the Child or develop any kind of relationship with her for the first
several months of her life. Only months after the termination petition was filed did
Father visit with the Child one time for approximately two hours. We determine
Father’s argument that he was prevented from visiting with the Child due to his work
schedule to be unavailing.

Additionally, Father posits that his failure to visit was not willful due to his lack
of a driver’s license and lack of financial resources to travel from Georgia to Tennessee
for the visits. In In re DMD, No. W2003-00987-COA-R3-PT, 2004 WL 1359046
(Tenn. Ct. App. June 17, 2004), a parent similarly argued that her financial situation had
prevented her from visiting her child. In that case, this Court determined:

We are not insensitive to Mother’s financial difficulties, and mere poverty
is not grounds for termination of parental rights. However, it is undisputed
that Mother made absolutely no attempt to maintain a relationship with [the
children] for nearly a year. [I]t is undisputed that Mother failed to visit,
telephone, send small gifts or cards, or in anyway maintain contact with
these children.

Id. at *5. This Court in DMD reversed the trial court’s denial of the abandonment
ground, determining that clear and convincing evidence existed to support a finding that
18
the mother “willfully failed to visit, contact, or in any way fulfill parental duties toward
[the children] for nearly a year.” Id.

Although “mere poverty” is not a reason or ground to terminate a parent’s parental
rights, see id., in the case at bar, Father made no efforts within his financial means to
contact the Child, visit the Child, or develop any relationship with her for nearly a year
following her birth. Father made his first attempt to visit the Child months after the
termination petition was filed. The trial court found that Father’s testimony that his
“finances” prevented him from visiting the Child was not credible. Contrary to Father’s
argument, Father testified in January 2016 during his adjudicatory hearing that he had a
“good paying job,” for which he earned approximately ten dollars per hour working ten
hours a day and six days a week, plus “time and a half” for any overtime worked. Father
maintained this employment until the termination trial in July 2016. Because Father was
gainfully employed and made no efforts to maintain a relationship with the Child, we
determine Father’s argument that his failure to visit was not willful due to his limited
financial resources and his lack of a driver’s license to be unavailing.

Father further asserted that he could have more easily visited with the Child if the
Child were placed with his family members in closer proximity to him. We note that Ms.
Wilhoit attempted to schedule visitation with the paternal grandmother; however, the
grandmother cancelled and failed to reschedule the visit. Father presented no evidence
that any of his relatives had filed a petition seeking custody or were willing to accept
custody of the Child. Upon a thorough review of the record, we conclude that the
evidence preponderates in favor of the trial court’s determination, by clear and
convincing evidence, that Father abandoned the Child by willfully failing to visit her
during the four months preceding the filing of the termination petition.

V. Best Interest of the Child

Father contends that the trial court erred by finding clear and convincing evidence
that termination of his parental rights was in the best interest of the Child. Upon a
thorough review of the record, we disagree. We conclude that the trial court’s
determination in this regard is supported by clear and convincing evidence.

When a parent has been found to be unfit by establishment of at least one 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. See In re Audrey S.,
182 S.W.3d at 877; see also In re Carrington H., 483 S.W.3d at 523 (Tenn. 2016) (“‘The
best interests analysis is separate from and subsequent to the determination that there is
clear and convincing evidence of grounds for termination.’”) (quoting In re Angela E.,
303 S.W.3d 240, 254 (Tenn. 2010)). Tennessee Code Annotated § 36-1-113(i) provides a
19
list of factors the trial court is to consider when determining if termination of parental
rights is in a 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. See In re Carrington H., 483 S.W.3d at 523; 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.”). Furthermore, 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
20
 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 pursuant to § 36-5-101.

As this Court has explained:

Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on
the unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.

In re Audrey S., 182 S.W.3d at 878.

In its final judgment, the trial court provided the following findings of fact
regarding the best interest analysis in addition to the previously stated findings regarding
Father’s failure to visit the Child:

The [Child] was placed in the temporary custody of the Tennessee
Department of Children’s Services on June 26, 2015, when she was two (2)
days old. The child was born drug-exposed to cocaine. The child has been
in the custody of the Department of Children’s Services continually since
June 26, 2015, a period of almost one (1) year as of the date of this hearing.

***

[Father] did not pay any prenatal expenses for the child to the
mother and did not provide any support to the mother prior to the child’s
birth. This was a previous finding of the Court in the father’s adjudicatory
hearing based upon his testimony.

21
 [Father] had not paid any support for the child as of his adjudicatory
hearing although he had a good paying job, made approximately ten
($10.00) dollars an hour, and worked approximately ten (10) hours a day,
six (6) days a week. He was paid “time and a half” for all hours over 40
hours each week. This was previously found by the Court in the father’s
adjudicatory hearing based upon his testimony.

***

The biological parentage of [Father] as the father of the child was
confirmed by DNA testing. His testimony that it took four months for the
DNA testing to be scheduled was not credible. The testimony of the DCS
family service worker that it had been scheduled in August but missed by
[Father] was credible.

***

The father has not made any payments of child support for the child
since she was born.

[Father] has not presented any evidence that he is able to assume
custody of the child. He has not provided any evidence of his living
conditions. His means of transportation is a bicycle, his driver’s license has
been suspended, and there is no evidence that he has any way to provide
transportation for the child. He has not provided any evidence of his child
care plans to provide care for the child for the extensive hours he works if
he were to obtain custody. He has not provided any evidence that he has
inquired with pediatricians in order to arrange medical treatment for the
child. His testimony appeared to focus on his opinion that it would be
easier for him to visit with the child if one of his family members had
custody. The record does not contain any evidence that any of his relatives
have ever filed a petition for custody of the child or even contacted the
Department of Children’s Services, with the exception of his mother who
requested the one visit which she failed to attend.

[Father] never filed a petition to establish parentage of the child after
the mother told him that he was the father of the child or after DNA testing
results were received.

The child has been placed in a DCS foster home with two of her
half-siblings since she was two (2) days old. It is a two parent home and
22
she is doing well. She is a part of the family unit in her foster home. The
foster parents are the care givers for the child and their home is the only
home she has known. If she were to become available for adoption, the
foster parents are willing to adopt her.

The preference of [Mother] would be that if the child could not live
with her, she would want her to live “with her [the Child’s] sisters” in the
foster home where she has resided since her discharge from the hospital
following her birth.

[Father] has been indicated by the Department of Children’s
Services for sexual abuse of a minor ([Mother]). He had an outstanding
warrant for his arrest in Tennessee throughout the dependency and neglect
proceedings for the statutory rape of [Mother] and during the hearing on
January 13, 2016, acknowledged that there was an outstanding warrant for
his arrest. The criminal proceedings are still pending at the time of this
trial, although [Father] testified that he “took care of the warrant” in June,
2016, when he was in town for his one visit with [the Child].

The father acknowledged that he has other children who he does not
have custody of, two in New York, and one in Maine. His testimony was
that he paid child support on his sons but not his daughters.

Father acknowledged that he has a criminal record.

Father acknowledged that he did not have a relationship with the
child.

***

The Court has examined the evidence in considering the non-
exhaustive factors set out in Tennessee Code Annotated,§ 36-1-113(i), as
well as other factors, in determining whether it is in the best interests of the
[Child], for the parental rights of [Father] to be terminated. The Court finds
that there is clear and convincing evidence that it is in the best interest of
the minor child that [Father’s] parental rights to the [Child], be
terminated[.]

The Court finds that [Father] has not made changes in his conduct or
circumstances that would make it safe for the child to go to his home. He
has no parent-child relationship with the child and is, in effect, a stranger to
23
the child. This circumstance has not changed since the child was placed in
the custody of DCS and DCS ha[d] its first contact with [Father] in July,
2015.

The Court finds that [Father] has not maintained regular visitation
with the child. He has had only one visit with the child in the thirteen (13)
months since the child was placed in the temporary custody of the
Department of Children’s Services although the child’s family service
worker encouraged [Father] to visit with the child and he was aware of the
potential consequences of his failure to visit. He moved to an adjoining
state at the time [Mother] advised him of her pregnancy. Although
traveling to Johnson City may have been more cumbersome for the father
from Georgia, it certainly was possible if he had truly wanted to establish a
relationship with the child.

The Court finds that [Father] does not have a meaningful
relationship with the child. [Father] has only had one visit with the child
during her entire life and that the child is now thirteen (13) months old. He
acknowledged that he did not have a meaningful relationship with the child
during his testimony.

The Court finds that changing caregivers at this stage of the minor
child’s life would have a detrimental effect on her. Specifically, the Court
finds that, at the time of this hearing, the minor child has been in foster care
for thirteen (13) months, and has been in the same foster home since she
was two (2) days old. The foster parents are her caregivers and she is part
of their family unit. The half-siblings (maternal) of [the Child] reside in the
same foster home with the minor child. The Court finds that [the Child]
has a genuine attachment and bond with her foster family. The foster
family is willing to adopt the child if she becomes available for adoption.
The child’s mother’s desire is that, if the child cannot be placed with her, it
is her desire that the child remain with “her sisters,” the child’s half-
siblings. The Court finds that a change of caregivers, removal of the child
from the foster home, and disruption of the bonds between the child and
other foster family members would be detrimental to the child.

The Court finds that [Father] has not paid child support consistently.

The Court finds that [Father] has shown little or no interest in the
welfare of the child. The proverbial “actions speak louder than words”
come to mind in this case. [Father] may have spoken with the DCS family
24
 service worker regularly, he did not even request to see the child until a
holiday weekend when the child was eleven (11) months old, even though
she had been in foster care since she was two (2) days old.

(Emphasis in original; paragraph numbering omitted.) Based on the foregoing findings,
the trial court determined by clear and convincing evidence that terminating Father’s
parental rights was in the best interest of the Child. Having carefully considered the
record in this cause, we agree with the trial court.

As the trial court found, several factors provided in Tennessee Code Annotated §
36-1-113(i) weigh in favor of the termination of Father’s parental rights. Father has not
made an adjustment of circumstance, conduct, or condition that would make it safe for
the Child and in the Child’s best interest to be placed in his home. Father has shown no
ability or plan to care for the Child in his home. Despite urging from DCS that Father
visit his Child, he has only visited for approximately two hours in her entire life. Due to
Father’s failure to visit the Child, Father is essentially a “complete stranger” to the Child,
as the trial court found. Father admits to not having any meaningful relationship with the
Child.

The trial court found that Father had shown little interest in the welfare of the
Child. Father did keep in contact with DCS and attend a parenting assessment in
Georgia; however, he failed to visit the Child to maintain a relationship with her. As the
trial court also found, Father failed to pay child support consistently for the Child.
Additionally, as of late June 2015, shortly before trial, Father had an outstanding warrant
for his arrest due to charges of statutory rape involving the Child’s mother. Those
charges were still pending at the time of trial.

As the trial court further found, a change of caretakers would likely have an
adverse effect on the Child. The Child has remained in the same foster home with two of
her biological half-siblings since shortly after she was born. Based on observations from
DCS, the court found that the Child is thriving in the care of her foster parents and that
abruptly returning the Child to Father would be detrimental to the Child. The Child is
bonded to the foster parents, who have expressed a desire to adopt her. Mother testified
that if she were unable to obtain custody of the Child, she would want the Child to be
with the Child’s current foster parents and biological half-siblings. Upon a thorough
review of the record, we conclude that the evidence does not preponderate against the
trial court’s finding by clear and convincing evidence that termination of Father’s
parental rights was in the Child’s best interest.

25
 VI. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in all respects,
including the termination of Father’s parental rights. Costs are assessed to the appellant,
Stafford B. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment terminating Father’s parental rights and
collection of costs assessed below.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

26