Session August 9, 2016
from the Circuit Court for Greene County No. 14A020 Douglas
T. Jenkins, Chancellor Sitting By Interchange
W.H. ("Mother") and Justin H.
("Stepfather") filed a petition seeking to
terminate the parental rights of James P.
("Father") to the minor child Neylan H. ("the
Child") in order to allow Stepfather to adopt the Child.
After a trial, the Circuit Court for Greene County ("the
Trial Court") entered its order denying the petition
after finding and holding, inter alia, that Mother
and Stepfather had failed to prove by clear and convincing
evidence that Father had abandoned the Child by willful
failure to provide support. Mother appeals to this Court. We
find and hold that the evidence does not preponderate against
the findings made by the Trial Court, and we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Case Remanded
Douglas R. Beier, Morristown, Tennessee, for the appellant,
Terri W.H. Douglas R. Beier, Morristown, Tennessee, for the
appellee, Justin H. 
Jefferson B. Fairchild, Rogersville, Tennessee, for the
appellee, James P.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which CHARLES D. SUSANO, JR. and THOMAS R. FRIERSON, II, JJ.,
MICHAEL SWINEY, CHIEF JUDGE
Child was born in March of 2012, out of wedlock. Mother,
Father, and the Child lived together from July of 2012 until
March of 2013. Father moved out of Mother's house one day
after the Child's first birthday. In November of 2013,
Mother married Stepfather. The Child has lived with Mother
and Stepfather since their marriage. In October of 2014,
Mother and Stepfather filed a petition seeking to terminate
the parental rights of Father to the Child in order to allow
Stepfather to adopt the Child. The case was tried without a
jury in September of 2015.
testified at trial that she and Stepfather also have a
fourteen month old daughter. Mother, Stepfather, their
daughter, and the Child live in a house owned by Mother.
Mother explained that she had resided in this house for a
number of years prior to marrying Stepfather.
testified about her relationship with Father. Mother stated
that Father never lived with Mother, but did stay at her home
from July of 2012 until March of 2013. When Mother and Father
decided to separate, Father moved out because Mother owned
the house. The Child was one year old when Father moved out.
to Mother, Father spent no significant time with the Child
during the time that Father lived with them. Mother stated:
"During the six months that [Father] stayed with me he
stayed in the guest bedroom. He played videogames and he was
on his phone all the time. When I went to work my mother
would watch [the Child], who lived right up the road."
[Father] watched [the Child] once while he lived there and
that was for a two (2) hour period and then he called my
mother to come and get him because his belly hurt. [Father]
said that his belly hurt so my mother went down to my house
and got him, took him up to . . . . Went down to my house and
got [the Child], brought him up to her house.
stated that when she got home on the day "[Father]
watched [the Child]" she checked the Child's
"bottom and he had a diaper rash so [Father] didn't
watch him anymore after that."
testified that Father did not spend any significant time with
the Child after March of 2013. She stated that he visited
"four to five (5) [times]. And that wasn't long
periods." Mother testified that Father visited one more
time in October. She stated: "We went to the park. I was
there as well. He stayed for forty-five (45) minutes and then
left." Mother testified that Father has not seen the
Child since that time and that the Child does not know who
said that Father never gave her any child support and that he
did not pay any of the birth expenses or medical bills.
Mother testified that she asked Father for support and that
he responded by saying "[h]e wasn't going to give me
any money." Mother denied that Father provided any money
or support for food or bills while they lived together.
Mother testified that during that time she was a fulltime
student and that she also worked at Flip Zone.
Mother testified about Stepfather's relationship with the
[Stepfather] has been involved with [the Child] since we got
together. He's never pushed [the Child] aside. He's
always taken him in. [The Child] actually started calling
[Stepfather] daddy. They have a great relationship. Every
time he gets home or home from work they play ball together.
If it's wet outside or rainy outside they'll play
games inside. And I mean, he just treats him the same way
that he treats our daughter.
testified that Stepfather participates in feeding, bathing,
and putting the Child to bed. Mother works as a registered
nurse. When Mother and Stepfather are working,
Stepfather's mother cares for the Child.
acknowledged that she wants Stepfather to adopt the Child.
Because [Stepfather] has been involved with [the Child] more
than [Father] has. They have a great relationship.
[Stepfather] has provided . . . ever since that we've
been together he's provided [the Child] . . . when I was
a fulltime student he is the one that provided [the Child],
he bought everything that he needed and they have a great
testified that she and Stepfather began dating in August of
2013. When questioned further, Mother admitted that she and
Stepfather had dated previous to that time and had an on
again/off again relationship.
asked if she had received text messages from Father asking to
visit the Child, Mother responded: "I don't
remember. . . . I do not have that phone." A transcript
was admitted as an exhibit, and Mother admitted that she
recognized the transcript as being text messages between her
and Father. Mother stated: "Yes sir and it's . . .
these are sent late. [The Child's] bedtime is around 8:30
so he knows that he went to bed around that time."
Mother was asked to read one of the texts from Father, and
"Well just in case you didn't get the message I sent
this morning or ignored it I want to see [the Child] when I
get off work. Yes or no will be fine." He doesn't
get off . . . he didn't get off work until 7:00 so by the
time I fed [the Child], bathed him, he would be in bed.
was asked if she responded by finding another time when
Father could visit and she stated: "No. Some of these
messages I didn't receive." Father texted at 10:59
one morning asking to see the Child, and Mother admitted that
the Child would have been up, but stated: "That was a
time that I was in school." At 5:42 p.m. on October 4th
Father texted and asked if there was a certain time he could
see the Child, and Mother testified that her response was
"I said no cause I was out of school and off work at
that time." Father then texted: "Well ok. Kind of
sucks. I would like to see my son though." Father then
sent texts on multiple days asking to see the Child. Mother
was asked if she responded, and she stated: "Does he
have a copy of his work schedule because I know . . .
sometimes he was at work when he would text these."
was asked why she had testified that Father only asked for
token visitation when Father had sent all of these texts, and
she stated: "Every single day how can he see him when
he's at work though. He was just doing that to say that
he asked." When questioned Mother admitted that Father
could not have been asking to see the Child just to show
evidence in court because nothing had been filed in court at
that time. Mother then stated "But how do you know that
these [text messages] even went through to me. You can put
this on your phone and not even send it through." Mother
was asked if she was alleging that was what happened, and she
stated: "I'm saying that I can't recall. I
don't have any of those in my possession."
October 9th Father asked to see the Child, and received no
response. On October 10th Father told Mother it had been
twenty-eight days since he had been allowed to see the Child.
On October 11th Father told Mother that it had been another
day since he had been allowed to see his son. Mother stated
that her response was: "You can see him anytime you
want." Mother allowed Father to see the Child on October
11th for about forty-five minutes at the park. Mother was
asked why the visit was at the park, and she stated:
"Because I did not want him in my home." Mother was
asked why Father was not allowed to pick the Child up and
take him for visitation, and Mother stated: "Because the
last time he was with him alone it was when he had the dirty
diaper and he did not take proper care of him."
October 15th Father asked to see the Child, and Mother
responded by asking if he was at work. Father then responded
that he wanted to see the Child when he got off of work.
Mother responded "He will already be in bed."
Mother was asked if she refused to allow Father to have
visitation, and she stated: "So did you want me to wake
my son up so he can come over and see him?" Father
offered to come over and spend some time with the Child until
the Child "falls asleep." Mother stated:
"Which he knows that he takes his bath around 8:00, 8:30
and goes to bed."
October 18th Father offered to do visitation at his house or
at Mother's, and Mother's response was that they
would have to meet in public places. Father asked why they
needed to meet in public places, and Mother did not respond.
On October 19, 20, 21, and 22, Father asked to see the Child
and received no response from Mother. Father sent several
texts at the end of October asking if he could take the Child
trick-or-treating. Mother did not allow Father to take the