Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs Date: August 1, 2017
from the Juvenile Court for Loudon County No. 16-JV-59 Henry
E. Sledge, Judge
parental termination action, we conclude that the trial court
properly found clear and convincing evidence to terminate the
rights of the mother and father on the grounds of failure to
provide a suitable home, substantial noncompliance with a
permanency plan, and persistence of conditions. We conclude
that the trial court erred in terminating the father's
rights on the ground of willful failure to visit. Clear and
convincing evidence supports the trial court's
determination that termination of parental rights is in the
best interest of the children.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed in Part and Reversed in Part
Christine L. Dummer, Knoxville, Tennessee, for minor children
Billy T.W. and Emily G.W.
McCabe, Knoxville, Tennessee, for the appellant, Billy T.W.
Christopher Irvin Belford, Knoxville, Tennessee, for the
appellant, Christy A.W.
Herbert H. Slatery, III, Attorney General and Reporter, and
William Derek Green, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
D. Bennett, J., delivered the opinion of the Court, in which
Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
A.W. ("Mother") and Billy T.W. ("Father")
are the parents of a son, Billy, and a daughter, Emily, born
in February 2003 and December 2005, respectively. The
Department of Children's Services ("DCS" or
"the Department") filed a Petition for Order
Controlling Conduct and for Protective Supervision against
Mother and Father in January 2015 asking the court to find
the children dependent and neglected, "to require
protective supervision, and to control the conduct of the
parents." The petition alleged that the family had
"extensive DCS history and the parents have criminal
history for drugs, assault, and theft." After receiving
a report that Mother was selling her food stamps to buy pain
pills, that Emily was begging neighbors for food, that
Billy's feeding tube was "unkempt, " and that
"the home was cluttered with food, trash and other
items, " DCS case manager Brittni Monroe visited the
home on September 30, 2014. Mother "tested positive for
opiates, oxycodone, and benzodiazepines." She refused a
request for a pill count. Mother submitted to a drug screen
on October 29, 2014 and tested positive for oxycodone; she
refused to allow a pill count or to sign a release to permit
the case manager to obtain information from her pharmacy.
January 27, 2015, the juvenile court held an adjudicatory
hearing regarding Father, who had notice of the hearing but
failed to appear. The court determined that Father had been
uncooperative with the investigation and that the children
were dependent and neglected. The court ordered Father to
complete an alcohol and drug assessment, "submit and
pass random drug screens and pill counts, sign releases for
DCS and GAL [guardian ad litem] to obtain service provider
and pharmaceutical and medical records, cooperate with DCS
and service provider and GAL, obtain and maintain stable
housing, transportation and income."
hearing on April 17, 2015, the juvenile court awarded
temporary custody of the minor children to DCS. The court
found that the Department had "attempted a less drastic
measure than removal by first filing a petition to control
conduct and by placing services in the home." The
court's order (entered on April 20, 2015) includes the
following findings concerning the Department's efforts
after the initial order in January 2015 finding the children
dependent and neglected:
DCS caseworker, Jennie Barger, attempted to contact [Father]
on April 4, 2015 and have him come to her office for a random
drug screen. Ms. Barger was unable to locate [Father]. On
April 17, 2015, Ms. Barger made an unannounced, unscheduled
visit to the home of [Father and Mother]. [Father] was
unavailable and [Mother] was unable to contact him. Ms.
Barger also noted that [Mother] appeared to be under the
influence. . . . After leaving the home, Ms. Barger made
contact with [the children] at school. Billy has a feeding
tube. Ms. Barger testified Billy appeared tired, dirty and
not well cared for.
parents were allowed supervised visitation with Billy and
Emily. Father was ordered to pay child support in the amount
of $100 per month.
4, 2015, DCS filed a petition in response to a bench order
summarizing the caseworker's allegations concerning the
case, requesting that the court consider the need to appoint
counsel for the parents, find the children dependent and
neglected at a final hearing, and consider the ability of the
parents to pay child support. At a hearing on July 13, 2015,
both parents waived the adjudicatory hearing and stipulated
that the children were dependent and neglected by Mother for
improper care and supervision pursuant to Tenn. Code Ann.
§ 37-1-102(b)(12)(C) and by Father for abuse and neglect
pursuant to Tenn. Code Ann. §
37-1-102(b)(12)(G). The court went on to conduct a permanency
hearing and found both parents to be in partial compliance
with their permanency plan. (The requirements of the
permanency plan will be discussed in the analysis section of
the opinion.) The goals of the permanency plan were return to
parent and exit custody with relative. The court ratified the
Department filed the petition to terminate parental rights on
February 4, 2016. The petition alleges five grounds for
termination: (1) abandonment by failure to visit in the four
months preceding the filing of the petition (Father only),
(2) abandonment by failure to provide a suitable home, (3)
substantial noncompliance with the permanency plan, (4)
persistent conditions, and (5) abandonment by wanton
disregard (Mother only). The juvenile court heard the case on
October 7, 2016, and the only witness to testify was Eric
Fannin, a DCS representative. The trial court determined that
there was clear and convincing evidence to support four of
the five grounds alleged: abandonment by failure to visit
(Father), abandonment by failure to provide a suitable home
(both parents), substantial noncompliance (both parents), and
persistent conditions (both parents). The court did not find
clear and convincing evidence to support the ground of wanton
disregard. Furthermore, the court concluded that it
was in the children's best interest for the parents'
rights to be terminated. Therefore, the court ordered the
termination of Mother's and Father's parental rights.
parents have appealed and challenge all of the grounds for
termination found by the trial court as well as the best
both the federal and state constitutions, a parent has a
fundamental right to the care, custody, and control of his or
her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250
(Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174-75 (Tenn. 1996). This right is not absolute,
however. If a compelling state interest exists, the state may
interfere with parental rights. Nash-Putnam, 921
S.W.2d at 174-75 (citing Nale v. Robertson, 871
S.W.2d 674, 678 (Tenn. 1994)). Our legislature has enumerated
the grounds upon which termination proceedings may be
brought. See Tenn. Code Ann. § 36-1-113(g). A
parent's rights may be terminated only where a statutory
ground exists. In re Matter of M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).
terminating a parent's fundamental parental rights has
severe consequences, termination cases require a court to
apply a higher standard of proof. State Dep't of
Children's Servs. v. A.M.H., 198 S.W.3d 757, 761
(Tenn. Ct. App. 2006). First, a court must determine by clear
and convincing evidence that at least one of the statutory
grounds for termination exists. Tenn. Code Ann. §
36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). After a court makes this determination, a court
must find by clear and convincing evidence that termination
is in the best interest of the child. Tenn. Code Ann. §
36-1-113(c)(2); 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 Serenity B., No.
M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App.
May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted)).
of the heightened standard of proof required in termination
cases, we must adapt the customary standard of review
established by Tenn. R. App. P. 13(d). Id. In
accordance with Tenn. R. App. P. 13(d), we review the trial
court's findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise.
Id. Next, we must determine whether the facts
establish by clear and convincing evidence the elements
necessary to terminate parental rights. In re
M.J.B., 140 S.W.3d at 654.
Abandonment by failure to visit-Father
parent's rights may be terminated upon proof by clear and
convincing evidence that the parent "abandoned" his
or her child. Tenn. Code Ann. §§ 36-1-113(c)(1),
(g)(1). There are a number of different statutory definitions
of abandonment. See Tenn. Code Ann. §
36-1-102(1)(A). Tennessee Code Annotated section
36-1-102(1)(A)(i) defines abandonment as follows:
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[.]
must find that the abandonment was "willful." Tenn.
Code Ann. § 36-1-102(1)(A)(i). The statutory definition
of "willfully failed to visit" is "the willful
failure, for a period of four (4) consecutive months, to
visit or engage in more than token visitation." Tenn.
Code Ann. § 36-1-102(1)(E). Tennessee Code Annotated
section 36-1-102(1)(C) defines "token visitation"
as "perfunctory visitation or visitation of such an
infrequent nature or of such short duration as to merely
establish minimal or insubstantial contact with the
establish willfulness in this context, a petitioner must show
that "a parent who failed to visit or support had the
capacity to do so, made no attempt to do so, and had no
justifiable excuse for not doing so." In re Adoption
of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013); see
also In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct.
App. 2005) (stating that a person acts willfully if he or she
knows what he or she is doing and has the intention to do
what he or she is doing). "Whether a parent failed to
visit or support a child is a question of fact. Whether a
parent's failure to visit or support constitutes willful
abandonment, however, is a question of law." In re
Adoption of Angela E., 402 S.W.3d at 640 (citing In
re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007)). A parent will not be found to have abandoned his or
her child if the failure to visit the child is not within his
or her control. Id.
four months prior to the filing of the petition to terminate
Father's parental rights in this case are from October 4,
2015 to February 3, 2016. The trial court found that Father
"willfully did not visit [the children]" during
this time period. The trial court specifically found that
Father was not incarcerated during the relevant time period,
that he knew that the children were in DCS custody, that DCS
contacted Father to arrange visits, and that Father
"knew the consequences of [his] failure to visit the
child[ren] regularly because DCS and the Court told him . . .
." Mr. Fannin testified that Father decided to move to
Louisiana for employment and that Mr. Fannin explained that
DCS could not facilitate visitation outside of Tennessee.
undisputed that Father failed to visit the children during
the four months prior to the filing of the petition.
Father's argument is that the trial court's finding
of abandonment is erroneous in light of Father's
"reasonable efforts" toward reunification.
Tennessee Code Annotated section 36-1-102(1)(A)(i) does not
include a "reasonable efforts" analysis. We will,
however, consider the facts cited by Father in considering
the issue at hand-whether Father's failure to visit as a
result of his relocation to Louisiana for employment was
burden of proof is upon DCS to prove willfulness by clear and
convincing evidence. See In re Lynx C., No.
E2016-01568-COA-R3-PT, 2016 WL 7378801, at *5 (Tenn. Ct. App.
Dec. 20, 2016). Did Father's decision to move to
Louisiana for employment constitute a justifiable excuse for
failing to visit his children?  See In re Audrey S., 182
S.W.3d at 864 ("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."). In evaluating willfulness, courts may consider
events that occurred prior to the relevant four-month period
because such events "may bear on the willfulness of the
parent's conduct during the four-month period."
In re Jamie G., No. M2014-01310-COA-R3-PT, 2015 WL
3456437, at *12 (Tenn. Ct. App. May 29, 2015).
two cases to be particularly instructive regarding the case
at hand. In In re B.D., No. M2008-01174-COA-R3-PT,
2009 WL 528922, at *9 (Tenn. Ct. App. Mar. 2, 2009), the
appellate court considered whether a mother's failure to
visit her children during the four months prior to the filing
of the petition to terminate her parental rights was willful.
The petition to terminate was filed on May 11, 2007; thus,
the relevant four-month period was from January 11, 2007
through May 10, 2007. In re B.D., 2009 WL 528922, at
*1. During this four-month period, the mother visited the
children on January 2, January 27, and February 9, 2007.
Id. at *9. She moved to Illinois in late February
2007 "to be near family support." Id. In
concluding that the mother's "less than perfect
visitation record is not proof of abandonment by clear and
convincing evidence, " Id. at *10, the trial
court made the following statements:
A review of the record shows that Mother's visits, while
less than perfectly regular, do show that she made efforts to
maintain a relationship with her children and have meaningful
visits with them. Even when unable to visit, Mother's
actions fall short of "willful" abandonment.
Mother visited the children on January 2, 2007, January 27,
2007, and February 9, 2007. The foster mother testified that
Mother also visited with the girls in late February or early
March 2007. Mother moved to be near family support in
Illinois in late February 2007, which made visitations
difficult. Nonetheless, despite transportation and financial
issues, Mother visited with the minor children on July 27,
2007, March 25, 2008 and March 26, 2008. Mother scheduled a
visitation for the weekend of April 12, 2008, but the foster
parents failed to deliver the girls for visitation.
Mother made these 2007 visits without assistance to and from
Illinois. Even though the caseworker knew that Mother did not
have transportation and could not financially afford to
travel to Tennessee, the state only began to offer
transportation and lodging to Mother after the petition for
termination was filed. Once help was offered, Mother's
visitations resumed. Furthermore, as the case manager
testified, Mother stayed in regular contact with the children
by telephone and letters, as was identified in the visitation
section of the permanency plan.
Id. at *9.
more recent case of In re Caira D., No.
M2014-01229-COA-R3-PT, 2014 WL 6680696 (Tenn. Ct. App. Nov.
25, 2014), is factually similar to the present case. In
In re Caira D., it was undisputed that the father
had not visited his children during the four months prior to
the filing of the petition, and the issue was whether his
failure to visit was willful. In re Caira D., 2014
WL 6680696, at *6. The family had lived in Indiana, but the
mother moved with the children to Tennessee while the father
remained in Indiana after the parents separated. Id.
at *1. Father asserted that he was not able to make the
seven-hour trip from Indiana to Tennessee because he did not
have a driver's license and could not afford the cost of
traveling. Id. at *7. Father further argued that he
"visited" with his children by talking with them
over the telephone at least every other week. Id.
The DCS caseworker who supervised these telephone calls
testified that the father "called his children at least
once every other week during the four-month period, and that
each phone call lasted approximately twenty minutes."
Id. The trial court found that the phone calls
amounted to only token visitation. Id.
appellate court disagreed, finding that "the evidence
fails to establish by clear and convincing evidence that [the
father's] telephone visits constituted mere token
visitation." Id. The court emphasized that
"token visitation" is defined as
"'visitation, under the circumstances of the
individual case, [which] constitutes nothing more than
perfunctory visitation or visitation of such an infrequent
nature or of such short duration as to merely establish
minimal or ...