Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 3, 2018
from the Chancery Court for Moore County No. 136A J. B. Cox,
a termination of parental rights case. Appellant/Mother
appeals the trial court's termination of her parental
rights on the ground of: abandonment by willful failure to
visit. Appellant also appeals the trial court's finding
that termination of her parental rights is in the
children's best interests. Because Appellee/Father
thwarted Appellant's attempts to visit the children, we
conclude that Appellees failed to meet their burden to show,
by clear and convincing evidence, that Appellant abandoned
the children. Accordingly, we reverse the order terminating
Appellant's parental rights.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Reversed and Remanded
Jonathan C. Brown, Fayetteville, Tennessee, for the
appellant, Kathryn P.
Melissa L. Thomas, Fayetteville, Tennessee, for the
appellees, Dennis P. and Rebecca P.
Armstrong, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.
Kathryn P. ("Mother") is the mother of J.L.P.
(d/o/b August 1997), K.R.P. (d/o/b August 1998), D.C.P.
(d/o/b/ October 2001), and M.J.P. (d/o/b September 2010)
(together, the "Children"). Dennis P.
("Father") is the Children's father. Mother and
Father were divorced on September 4, 2013. Father has since
remarried to Rebecca P. (together with Dennis P.,
connection with their divorce, Mother and Father entered into
a permanent parenting plan for the Children. In relevant
part, the plan designates Father as the Children's
primary residential parent and grants Mother 140 days per
year of visitation. The plan also includes a "special
provision, " stating that: "The parties will not
consume alcohol and/or drugs in the presence of the minor
children. If mother begins drinking or becomes abusive during
residential sharing, the children may call the father to pick
April 10, 2015, Appellees filed a motion to terminate
Mother's parental rights on the ground of abandonment by
willful failure to visit. The petition stated that Mother last
visited the Children "in the month of August of
2014." On May 1, 2015, Mother filed an answer, wherein
she denied the material allegations of the petition. The
trial court appointed a guardian ad litem by order of
September 13, 2016. A hearing was held on March 27, 2017. The
trial court set out its findings of fact in a memorandum
opinion entered on April 17, 2017. On July 3, 2017, the trial
court entered its order terminating Mother's parental
rights on the sole ground of abandonment by willful failure
to visit. We note that, by the date of the hearing in this
case, the two older children, J.L.P. and K.R.P., had reached
the age of majority. Accordingly, the trial court's order
terminates Mother's parental rights only as to the
younger children, D.C.P. and M.J.P. As such, Mother's
parental rights vis-à-vis J.L.P. and K.R.P.
are not the subject of this appeal. Mother appeals only the
termination of her parental rights as to D.C.P. and M.J.P.
Appellant raises two issues for review as stated in her
1. Whether the Appellees proved by clear and convincing
evidence that the Appellant failed to support, visit and/or
abandoned the minor child for four (4) consecutive months
preceding the filing of the termination petition as defined
by Tenn. Code Ann. § 36-1-102(1)(A)(i).
2. Whether there is sufficient evidence to support the trial
court's finding that termination of parental rights is in
the best interest of the minor children.
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.
Abandonment by Willful Failure to Visit
trial court found, by clear and convincing evidence, that
Mother's parental rights should be terminated on the
ground of abandonment by willful failure to visit 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) provides:
(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 . . .
Tenn. 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 visit . . .
Tenn. Code Ann. § 36-1-102(1)(A)(i).
concept of "willfulness" is at the core of the
statutory definition of abandonment. A parent cannot be found
to have abandoned a child under Tennessee Code Annotated
Section 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 immediately preceding the
filing of the petition to terminate his or her parental
rights. In In re Audrey ...