Assigned on Briefs February 2, 2017
from the Juvenile Court for Shelby County No. AA1036 David S.
Walker, Special Judge
a termination of parental rights case. The trial court
terminated Appellant/Father's parental rights on the
grounds of: (1) abandonment by willful failure to support;
and (2) persistence of conditions. Because the grounds for
termination of Father's parental rights are met by clear
and convincing evidence, and there is also clear and
convincing evidence that termination of Father's parental
rights is in the best interest of the child, we affirm and
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed and Remanded
Franklin, Jr., Memphis, Tennessee, for the appellant, Derrick
Herbert H. Slatery, III, Attorney General and Reporter, and
Rachel E. Buckley, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
Armstrong, J., delivered the opinion of the court, in which
Charles D. Susano, Jr. and W. Neal McBrayer, JJ., joined.
case concerns one minor child, Ja'Miya T. (d.o.b July
2008). Derrick T. ("Father, " or
"Appellant") and Jennifer B. ("Mother")
are Ja'Miya T.'s parents. The Tennessee Department of
Children's Services ("DCS, " or
"Appellee") first became involved with this family
on October 9, 2013, when DCS received a local referral,
reporting abuse of Ja'Miya T. and drug use in the home. A
DCS investigator visited the home and found that the family
had been evicted. DCS located Ja'Miya T., Father, Mother,
and Mother's other children at a motel. Ja'Miya T.
was reported to be unkempt; she was also not enrolled in
school. Mother stated that the family was living in various
motels. Mother also admitted to using cocaine and having
several untreated mental illnesses, including bipolar
disorder and schizophrenia. In a drug screen, Father tested
positive for marijuana and cocaine. Father and Mother stated
that they did not have stable housing or employment.
Ja'Miya T. reported that Father whipped her with
extension cords, and a physical examination revealed new and
order entered on February 17, 2014, the Shelby County
Juvenile Court ("trial court") adjudicated
Ja'Miya T. dependent and neglected, finding, in relevant
Child Protective Services investigator Julianka Jackson
testified. Upon arriving at the family's residence to
investigate a referral received by [DCS], Ms. Jackson found
the family's household items on the street. After
speaking with the property's manager, Ms. Jackson found
the family at a local motel. Upon further investigation, the
mother, Jennifer B[.], admitted to not having a home for the
child, admitted to the use of cocaine and marijuana, and
admitted to having prior mental health issues…. At
this meeting, Derrick T[.] tested positive for controlled
substance use. The mother was asked but declined to take a
drug test. There were also allegations of physical abuse of
the child on the part of the father, Derrick T[.] Ms.
Jackson spoke with the child who advised that [she] had
been whipped by the father with extension cords. Ms. Jackson
observed new and old marks on the child which were
consistent with being beaten with extension cords.
Family Services worker Tiffany Robinson testified. A Child
and Family Team Meeting was conducted on October 14, 2013. At
this meeting the father tested positive for cocaine and
marijuana. The mother refused to take a drug test….
Ms. Robinson testified that the father is also not in
compliance with the tasks listed in the Permanency Plan. The
father has failed to participate in or complete an alcohol
and drug assessment, a mental health assessment, domestic
violence counseling, and a parenting assessment. Furthermore,
the father has failed to obtain and maintain a stable source
of income, obtain and maintain stable housing, and legitimate
the children. Lastly, the father has only visited with the
child one time since [she] entered [DCS] custody. Ms.
Robinson testified that she had difficulty maintaining
contact with the father as his phone had been disconnected.
* * *
By clear and convincing evidence, the minor child [is]
dependent and neglected within the meaning of the law
pursuant to Tenn. Code Ann. 37-1-102(b)(12)(F) and
37-1-102(b)(12)(G). Based on the assessment of the family and
the child's circumstances, it was reasonable not to
make efforts to maintain the child in the home due to
allegations of drug exposure and physical abuse.
working with Father for over a year, on July 28, 2015, DCS
filed a petition to terminate Mother and Father's
parental rights. As grounds for termination of Father's
parental rights to Ja'Miya T., DCS asserted: (1)
abandonment by willful failure to support; and (2)
persistence of the conditions that led to the child's
removal from Father's home. On May 19 and 23, 2016, the
trial court heard the petition to terminate Father's
parental rights. On June 16, 2016, the trial court entered an
order terminating Father's parental rights to Ja'Miya
T. on the grounds of abandonment by willful failure to
support, persistent conditions, and on its finding that
termination of Appellant's parental rights is in the
child's best interest. Appellant appeals.
In his brief, Appellant raises three issues for review:
1. Whether DCS presented clear and convincing evidence in
regard to failure to support?
2. Whether DCS made reasonable efforts in regard to the
ground of persistence of conditions?
3. Whether it is reversible error for Special Judge Walker to
sit as a substitute [j]udge, though the procedures set forth
in Tennessee Code Annotated Section 17-2-118 have not been
Standard of Review
both the United States and Tennessee Constitutions, a parent
has a fundamental right to the care, custody, and control of
his or her child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental
rights only when a compelling interest exists.
Nash-Putnam, 921 S.W.2d at 174-75 (citing
Santosky v. Kramer, 455 U.S. 745 (1982)). Our
termination statutes identify "those situations in which
the state's interest in the welfare of a child justifies
interference with a parent's constitutional rights by
setting forth grounds on which termination proceedings can be
brought." In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL
1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn.
Code Ann. § 36-1-113(g)). A person seeking to terminate
parental rights must prove both the existence of one of the
statutory grounds for termination and that termination is in
the child's best interest. Tenn. Code Ann. §
36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546
of the fundamental nature of the parent's rights and the
grave consequences of the termination of those rights, courts
must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769.
Accordingly, both the grounds for termination and that
termination of parental rights is in the child's best
interest must be established by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re
Valentine, 79 S.W.3d at 546. Clear and convincing
evidence "establishes that the truth of the facts
asserted is highly probable ... and eliminates any serious or
substantial doubt about the correctness of the conclusions
drawn from the evidence." In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app.
denied (Tenn. July 12, 2004). Such evidence
"produces in a fact-finder's mind a firm belief or
conviction regarding the truth of the facts sought to be
established." Id. at 653.
light of the heightened standard of proof in termination of
parental rights cases, a reviewing court must modify the
customary standard of review in Tennessee Rule of Appellate
Procedure 13(d). As to the trial court's findings of
fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d). We must then determine whether the
facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly
establish the elements necessary to terminate parental
rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002). Furthermore, when the resolution of an issue in a case
depends on the truthfulness of witnesses, the trial judge,
who has had the opportunity to observe the witness and his or
her manner and demeanor while testifying, is in a far better
position than this Court to decide those issues. McCaleb
v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct.
App.1997). The weight, faith, and credit to be given to any
witness' testimony lies in the first instance with the
trier of fact, and the credibility accorded will be given
great weight by the appellate court. See Whitaker,
957 S.W.2d at 837; see also Walton v. Young, 950
S.W.2d 956, 959 (Tenn. 1997). Accordingly, appellate courts
will not re-evaluate a trial judge's assessment of
witness credibility absent clear and convincing evidence to
the contrary. See Humphrey v. David Witherspoon,
Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham
v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170
(Tenn. 1978); Wells v. Tenn. Bd. of Regents, 9
S.W.3d 779, 783 (Tenn. 1999).
Authority of the Trial Court
third issue, Appellant alleges that Special Judge Walker was
not properly appointed as a substitute judge, pursuant to
Tennessee Code Annotated Section 17-2-118, so as to have
authority to terminate Appellant's parental rights. From
our review of the record, Appellant failed to raise this
issue or object in the trial court. In fact, the trial
court's order specifically states that, "No party
objected to the Special Judge presiding over this
matter." "[T]he issue of whether a magistrate has
been properly appointed to serve as a special judge in
juvenile court has been thoroughly litigated and has never
been deemed to constitute an issue of subject matter
jurisdiction" and, therefore, may not be raised for the
first time on appeal. In re Marcell W., No.
W2014-02120-COA-R3-CV, 2015 WL 4396261, at *9 (Tenn. Ct. App.
July 16, 2015); see also State Dept. of Children's
Servs. v. A.M.H., 198 S.W.3d 757, 764 (Tenn. Ct. App.
2006) (declining to consider appellant's argument
concerning a special judge's authority because
"issues not raised at trial generally will not be
considered for the first time on appeal."). Because the
special judge issue does not raise a question concerning
subject matter jurisdiction, the issue cannot be raised for
the first time on appeal. Tenn. R. App. P. 13(b).
Accordingly, Appellant's argument that Special Judge
Walker lacked the authority to preside over the proceeding
for termination of parental rights is waived.
Grounds for Termination of Parental Rights
noted above, the trial court relied on two statutory grounds
in terminating Appellant's parental rights: (1)
abandonment by willful failure to pay support; and (2)
persistence of conditions. See Tenn. Code Ann.
§§ 36-1-102(1)(A)(i); 36-1-113(g)(1), (3). The
Tennessee Supreme Court has instructed this Court to review
every ground relied upon by the trial court to terminate
parental rights in order to prevent "unnecessary remands
of cases." In re Angela E., 303 S.W.3d 240, 251
n.14 (Tenn. 2010). Accordingly, we will review both grounds.
trial court found, by clear and convincing evidence, that
Father's parental rights should be terminated on the
ground of abandonment by willful failure to pay support
pursuant to Tennessee Code Annotated Section 36-1-113(g)(1)
and Tennessee Code Annotated Section 36-1-102(1)(A)(i). In
pertinent part, Tennessee Code Annotated Section 36-1-113(g)
(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
(1) Abandonment by the parent or guardian, as defined in
§ 36-1-102, has occurred[.]
Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated
Section 36-1-102 defines "abandonment, " in
relevant part as follows:
(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 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… 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). As found by the
trial court, the relevant, four-month time period in this
case is March 28, 2015 until July 27, 2015.
In re Audrey S., this Court discussed willfulness in
the context of termination of parental rights cases:
The concept of "willfulness" is at the core of the
statutory definition of abandonment. A parent cannot be found
to have abandoned a child under Tenn. Code Ann. §
36-1-102(1)(A)(i) unless the parent has either
"willfully" failed to visit or
"willfully" failed to support the child for a
period of four consecutive months . . . . In the statutes
governing the termination of parental rights,
"willfulness" does not require the same standard of
culpability as is required by the penal code. Nor does it
require malevolence or ill will. Willful conduct consists of
acts or failures to act that are intentional or voluntary
rather than accidental or inadvertent. Conduct is
"willful" if it is the product of free will rather
than coercion. Thus, a person acts "willfully" if
he or she is a free agent, knows what he or she is doing, and
intends to do what he or she is doing . . . .
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
In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct.
App. 2005) (internal citations and footnotes omitted).
purposes of Tennessee Code Annotated Section
36-1-102(1)(A)(i), "token support" means that the
support, under the circumstances of an individual case, is
not significant considering the parent's means. Tenn.
Code Ann. § 36-1-102(1)(B). This Court has held that
failure to pay support is "willful" if the parent
"is aware of his or her duty to support, has the
capacity to provide the support, makes no attempt to provide
support, and has no justifiable excuse for not providing the
support." In re J.J.C., 148 S.W.3d 919, 926
(Tenn. Ct. ...