Assigned on Briefs April 3, 2017
from the Chancery Court for Hamilton County No. 15-A-012
Pamela A Fleenor, Chancellor
appeals the termination of her parental rights on the grounds
of abandonment by willful failure to visit and support,
contending that her failure to visit and support was not
willful. Discerning no error, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
L. Sherrell, Chattanooga, Tennessee, for the appellant, Beth
C. Stokes, Chattanooga, Tennessee, for the appellee,
Christopher D. L. and Wendy G.L.
Braswell Gilbert, Ooltewah, Tennessee, Guardian Ad Litem.
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
appeal arises out of an action to terminate the parental
rights of Beth A.M. ("Mother") to her son, Colby
L., brought by Colby's father, Christopher D.L.
("Father") and stepmother, Wendy G.L.
("Stepmother"). Mother's rights were terminated
on the grounds of abandonment by willful failure to visit and
willful failure to support, and upon a finding that
termination of her rights would be in Colby's best
interest. Mother does not contest the fact that she did not
visit for three years prior to the filing of the petition,
but argues that her failure to visit was not willful.
Further, Mother does not contest the fact that she did not
support the child for a period of three years prior to the
filing of the petition but argues that her failure to support
was due to her inability to make support payments.
Facts and Procedural History
L. was born in June 2005; by order entered in the Superior
Court of Walker County, Georgia, on December 13, 2011,
nunc pro tunc to September 20, 2011, custody was
awarded to Father. At the time the order was entered, Mother
was residing with Robert B.; the order provided that
Mother's visitation would be supervised as long as she
resided with him. Until August 2012, Mother's visitation
was supervised by Four Points, Inc., of Lafayette, Georgia.
August of 2012, visitation records show that Colby informed
Mother, Father, and the Four Points staff members that he no
longer wanted to visit Mother and wanted to continue living
with Father. Of her own volition, Mother has not visited
Colby since that time. Mother testified that a few months
after her visits stopped she "[went] back to Four Points
a few months later and they said that since the visits had
stopped that there was no way to be able to get the visits to
go back." In December 2013, she attempted to visit with
him during a church service but was not permitted to do so.
April 23, 2015, Father and Stepmother filed a petition to
terminate Mother's parental rights and to allow
Stepmother to adopt Colby. As grounds for termination, the
petition alleged abandonment by failure to visit and failure
to support, Tennessee Code Annotated section
36-1-102(1)(A)(i). On August 20, 2015, the court appointed
Attorney Terri Gilbert as guardian ad litem for Colby.
matter was heard on July 26, 2016, and on August 3, the court
entered an order terminating Mother's rights on the
grounds of willful failure to visit and willful failure to
support and upon a finding that termination of Mother's
rights was in Colby's best interest. Mother appeals,
articulating the following issue:
1) Whether the Trial Court erred in finding the Appellant to
have willfully abandoned her child pursuant to Tenn. Code
Ann. § 36-1-113(g)(1) and § 36-1-1-2(1)(A)(i) when
the record shows the Appellant made an attempt to see her
child during the four (4) consecutive months before the
petition to terminate her parental rights was filed; 2)
furthermore, the Trial Court failed to make a finding as to
whether the Appellant's attempts to visit her child may
have been impeded or interfered with prior to the four
consecutive months before the petition to terminate her
parental rights was filed.
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