Assigned on Briefs February 2, 2017
from the Circuit Court for Greene County No. 12A027 Douglas
T. Jenkins, Chancellor
case to terminate the parental rights of a father to his
daughter is before the court for the second time. The case
began when the mother and stepfather filed the petition to
terminate the father's rights and for the stepfather to
adopt the child. The petition alleged the grounds of
abandonment by failure to visit and support and by engaging
in conduct showing a wanton disregard for the welfare of the
child, and asserted that termination was in the child's
best interest. After a hearing, father's parental rights
were terminated; Father appealed. This Court vacated the
judgment terminating his rights and remanded the case for the
trial court to include written findings of fact and
conclusions of law and to consider the four months prior to
the father's incarceration in the determination of
whether the father had abandoned the child. On remand, the
court entered an order which included findings of fact and
conclusions of law, and terminated father's parental
rights on the grounds alleged in the petition and upon a
finding that termination was in the child's best
interest. The father appeals. We affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Jennifer Luther, Greeneville, Tennessee, for the appellant,
Robert P. G., II.
A. Woolsey, Greeneville, Tennessee, for the appellees, Mikeal
R. T. and Jennifer N. J. T.
Richard H. Dinkins, J., delivered the opinion of the court,
in which D. Michael Swiney, C. J., and J. Steven Stafford, P.
J., W. S. joined.
RICHARD H. DINKINS, JUDGE.
the second appeal brought by Robert P. G., II
("Father") in this termination of parental rights
case. The salient facts are set forth in our previous opinion
in In re K. J. G.:
The child was born [in 2008]. Father was listed as a parent
on the child's birth certificate. [Jennifer N.J.T
("Mother")] and father were never married, though
they were living together at the time of the child's
birth. Mother testified that father moved out of the home in
July 2008, leaving her with the child and the child's
older sibling. The latter died in a tractor accident later
that year. In May 2012, mother married [Mikeal R.T.
Father admitted at trial that in about 2005 he began using
illegal drugs. He testified that in 2009 he sought treatment
for his drug use, but that he had begun using again by the
summer of 2010. According to him, he last used drugs in May
2013. From April 2, 2012, until July 31, 2012, father was
incarcerated for stealing from his father and grandmother.
Mother and stepfather (collectively the petitioners) filed a
petition to terminate father's parental rights on August
22, 2012. In the same petition, the stepfather
sought to adopt the child.
The trial court held a hearing on November 18,
2014. The court found clear and convincing
evidence (1) of grounds to terminate father's parental
rights and (2) that termination was in the child's best
interest. The trial court filed its judgment on January 13,
The trial court found three grounds for abandonment under
Tenn. Code Ann. § 36-1-102(1)(A)-willful failure to
visit, willful failure to support, and wanton disregard for
the child's welfare.
No. E2015-00087-COA-R3-PT, 2016 WL 1203800, at *1, *2 (Tenn.
Ct. App. Mar. 28, 2016).
appealed; we vacated the judgment and remanded the case for
the trial court to prepare written findings of fact and
conclusions of law in the order in accordance with Tennessee
Code Annotated section 36-1-113(k) and, in that regard, to
consider the four months prior to Father's incarceration
in its analysis of the evidence rather than the four month
period prior to the petition being filed. Following a
hearing on April 20, 2016, the court entered Findings of Fact
and Conclusions of Law on April 27; the Findings included a
section of "findings which were uttered orally at the
conclusion of the [November 18, 2014] hearing." Pursuant
to the instruction in the order of remand, the April 27
Findings considered the four month period prior to
Father's incarceration. On June 1, the court entered an
order incorporating the findings set forth in the April 27
document and terminating Father's parental rights on the
ground of abandonment by willful failure to visit, willful
failure to support, and wanton disregard, and upon a finding
that termination was in the child's best interest.
appeals, challenging the holdings of abandonment by failure
to visit and that termination was in Kira's best
Standard of Review
have a fundamental right to the care, custody, and control of
their children. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Adoption of A. M. H., 215 S.W.3d
793, 809 (Tenn. 2007). However, that right is not absolute
and may be terminated in certain circumstances. Santosky
v. Kramer, 455 U.S. 745, 753-54 (1982); State
Dep't of Children's Serv. v. C. H. K., 154
S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for
a court to terminate a parent's rights. Osborn v.
Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental
rights may be terminated only where a statutorily defined
ground exists. Tenn. Code Ann. § 36-1-113(c)(1);
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002);
In re M. W. A., 980 S.W.2d 620, 622 (Tenn. Ct. App.
1998). To support the termination of parental rights, only
one ground need be proved, so long as it is proved by clear
and convincing evidence. In the Matter of D. L. B.,
118 S.W.3d 360, 367 (Tenn. 2003).
the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts
must apply a higher standard of proof when adjudicating
termination cases. Santosky, 455 U.S. at 766-69. A
court may terminate a person's parental rights only if
(1) the existence of at least one statutory ground is proved
by clear and convincing evidence and (2) it is shown, also by
clear and convincing evidence that termination of the
parent's rights is in the best interest of the child.
Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.
M. H., 215 S.W.3d at 808-09; In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened
standard of proof in these cases, a reviewing court must
adapt the customary standard of review set forth by Tenn. R.
App. P. 13(d). In re M. J. B., 140 S.W.3d 643, 654
(Tenn. Ct. App. 2004). As to the court's
findings of fact, our review is de novo with a
presumption of correctness unless the evidence preponderates
otherwise, in accordance with Tenn. R. App. P. 13(d).
Id. 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. Id. In this regard, clear and convincing
evidence is "evidence in which there is no serious or
substantial doubt about the correctness of the conclusions
drawn from the evidence" and which "produces a firm
belief or conviction in the fact-finder's mind regarding
the truth of the facts sought to be established." In
re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014)
(internal citations omitted).
challenges only one of the three grounds for termination
found by the court. Mindful of the instruction set forth by
our Supreme Court that, "in an appeal from an order
terminating parental rights[, ] the Court of Appeals must
review the trial court's findings as to each ground for
termination and as to whether termination is in the
child's best interests, regardless of whether the parent
challenges these findings on appeal, " we will address
the sufficiency of the evidence to support each of the
grounds for termination. In Re Carrington H., 483
S.W.3d 507, 525-26 (Tenn. 2016), cert. denied sub nom.
Vanessa G. v. Tenn. Dep't of Children's Serv.,
137 S.Ct. 44, 196 L.Ed.2d 28 (2016) (footnote omitted).
is identified as a ground for termination in Tennessee Code
Annotated section 36-1-116(g)(1) and defined in section
36-1-102(1)(A), which reads in pertinent part:
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: ***
(iv) A parent or guardian is incarcerated at the time of the
institution of an action or proceeding to declare a child to
be an abandoned child, or the parent or guardian has been
incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or
proceeding, and either has willfully failed to visit or has
willfully failed to support or has willfully failed to make
reasonable payments toward the support of the child for four
(4) consecutive months immediately preceding such
parent's or guardian's incarceration, or the parent
or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the
Code Ann. § 36-1-102(1)(A)(iv).
Failure to Visit
final order, the court made the following findings with
respect to the ground of failure to visit:
It was shown to the Court that [Father] had, for the period
December 1, 2011 to April 1, 2012, willfully failed to . . .
visit the child. . . .
. . . [T]he Court finds that for the four month period agreed
upon between the parties as the "relevant period",
[Father] willfully failed to visit the subject child but may
have had only had token visitation with the child. Further,
during that period of time [Father] did not maintain any
relationship other than visitor with the child. [Father] was
very open and candid with the Court in this regard and the
Court appreciates him telling the truth.
court then held:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court
that the Respondent, [Father], by clear and convincing
evidence has willfully failed to . . . visit the child that
is the subject of this Petition during the period of time
between December 1, 2011 to April 1, 2012, the relevant four
(4) month period of time agreed upon by counsel at the trial
in this cause pursuant to T. C. A. § 36-1-102. . . .
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that
during the relevant four (4) month period of time between
December 1, 2011 to April 1, 2012, that the Respondent had
only as what would best be described as token visitation with
the child . . .
does not argue that the above finding is unsupported by the
record, and upon our review, we conclude that the record does
contain evidence in support of this finding. Rather, Father
argues that "the lack of significant visitation was
brought about by a climate of hostility toward [Father] and
was therefore not willful."
In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.
2005), this Court discussed willfulness in the context of
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. . . . 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. . . . 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. Failure to visit or to
support 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. The parental duty of visitation is separate
and distinct from the parental duty of support. Thus,
attempts by others to frustrate or impede a parent's
visitation do not provide justification for the parent's
failure to support the child financially.
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