Session June 5, 2018
from the Circuit Court for Sumner County No. 2015-CV-554 Joe
H. Thompson, Judge
mother and step-father of a child appeal the denial of their
Petition to Terminate the Parental Rights of the father of
the child on the grounds of abandonment by failure to
support. Upon a thorough review of the record, we affirm the
judgment of the trial court.
R. App. P. 3, Appeal as of Right; Judgment of the Circuit
B. Hawkins, Gallatin, Tennessee, for the appellants,
Victory M. and Natalie M. Thomas H. Miller, Nashville,
Tennessee, for the appellee, Michael H.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Frank G. Clement, Jr., P.J., M.S., and John Wesley
McClarty, J., joined.
RICHARD H. DINKINS, JUDGE
Facts and Procedural History
was born to Natalie M. ("Mother") and Michael H.
("Father") in August of 2003. At some point after
Aden's birth, Victory Amos M. ("Stepfather")
came to live with Mother and Father at their home. Stepfather
and Mother began a relationship that resulted in the birth of
twin boys ("the Twins") in 2010. After the birth
of the Twins, Mother and Father separated; in June 2010,
Mother and Stepfather moved out of the house they shared with
Father, taking Aden with them.
March 25, 2014, Father went to the house Mother and
Stepfather shared and vandalized the house and two cars in
the driveway. Father then crashed his car, totaling it; as a
result, he was arrested, charged, and convicted of driving
under the influence, vandalism, and evading and resisting
arrest. The next day, Mother filed a Petition for an Order of
Protection, which was granted on April 1, prohibiting Father
from having any contact with Mother, Aden, or the Twins and
commanding that he stay at least one-mile away from
filed a complaint for divorce on May 21, 2014; a judgment by
default granting the divorce was entered on October 3. The
court incorporated a parenting plan that had been filed by
Mother in the final divorce decree.
January 9, 2015, Father filed a Petition to Modify
Current/Prospective Child Support ("Petition to
Modify"), in Sumner County Juvenile Court; the record
does not show that the Juvenile Court took any action on this
petition. On May 21, 2015, Mother and Stepfather filed a
Petition ("the Petition") in Sumner County Circuit
Court to (1) terminate Father's parental rights on the
ground of abandonment by failure to support and (2) allow
Stepfather to adopt Aden. Father answered and filed a
counter-petition on June 26, requesting that the trial court
either approve his proposed parenting plan or, alternatively,
"establish a parenting plan that provides for the Father
to have progressive reasonable and regular parenting time
with the minor child." Mother and Stepfather answered
the counter-petition on July 30. The juvenile court case was
transferred to the Sumner County Circuit Court and
consolidated with the current case by order of the Circuit
Court, entered February 18, 2016.
agreed order entered October 6, 2016, the case was set to be
heard on December 16; according to an order entered January
3, 2017, at the prehearing conference:
[Father] . . . raised a threshold legal issue as to the
effect and impact of possibly conflicting court orders in
regard to the Petitioners' ability to go forward with
their petition to terminate the parental rights of the
[Father] on the grounds of abandonment for nonpayment of
the trial court directed each party to:
[P]repare, file, and exchange a legal brief . . . on the
issue of the effect and impact of possibly conflicting court
orders in regard to the Petitioners' ability to go
forward with their petition to terminate the parental rights
of the [Father] on the grounds of abandonment for nonpayment
of child support.
the parties submitted their briefs, the trial court entered
an order on March 3, 2017, ruling as follows in regards to
the ground of abandonment by failure to support:
First, by order of the Juvenile Court for Sumner County . . .
[Father] was ordered to pay weekly support of $50.00 for the
benefit of Aden . . . and two other minors, pending the
results of a DNA test. By a subsequent order dated July 13,
2011 [Father] was disestablished as the father of
[Mother's] two other children . . . . Nonetheless, the
Juvenile Court modified and increased the Respondent's
child support obligation to $75.00 per week for the benefit
of Aden . . . . This obligation was not subsequently
Second, on March 28, 2014, [Mother] filed a Petition for an
Order of Protection against the [Father] in this court . . .
. In her petition, [Mother] incorrectly responded to the
following question on the form petition: "Other Court
Cases: Are the children that you and [Father] have together
involved in any other court case in Tennessee or another
state?" [Mother] also checked the following box under
the heading: "I ask the court to make the following
Orders after the hearing: (check all that apply)."
"11. Child Support: Please order the [Father] to pay
reasonable child support."
In the margin next to line 11, the [Mother] handwrote the
following comment: "I have custody and he pays child
support." An Order of Protection was thereafter entered
by this court on April 1, 2014, but despite [Mother]'s
request, no child support was ordered.
Third, on May 21, 2014, [Mother] filed for divorce against
[Father]. [Father] was properly served but never made an
appearance in the divorce proceedings. As a result, an Order
of Default and Final Decree of Absolute Divorce was entered
by this court on October 3, 2014. As part of the final
divorce decree, the court adopted a permanent parenting plan
that referenced the previous child support order from Sumner
County Juvenile Court. The [Father] was served with a copy of
the divorce decree, but notably the street address was
misidentified in the certificate of service as
"Springfield Drive" rather than the [Father]'s
actual street of residence, "Springview Drive."
Even though there are conflicting orders with respect to the
[Father]'s child support obligation, those conflicting
orders are not dispositive with respect to the [Father]'s
obligation to support his minor child.
trial court further ruled that "a further evidentiary
hearing is required to determine if the respondent's
failure to support his child was willful."
hearing was held on May 31, 2017. The trial court ruled that
"the Petitioners were able to establish that [Father]
was aware of his duty to support, they were not able to
establish that the father had the ability to support and they
were not able to prove the absence of justifiable excuse.
Therefore, having failed to prove grounds for termination of
[Father]'s parental rights, the best interest inquiry is
pretermitted." The trial court also ordered that Mother
and Stepfather were responsible for the Guardian Ad
and Stepfather raise three issues on appeal:
1. Whether, as a matter of law, the trial court erred in
determining that the Appellee/Father's complete failure
to support the Child did not constitute willful abandonment.
2. Whether the trial court erred in pretermitting its inquiry
and failing to make findings as to whether the termination of
the Appellee/Father's parental rights was in the best
interests of the Child.
3. Whether the trial court erred in assigning the entirety of
the Guardian Ad Litem fee and the court costs to the
Appellants/Mother and Stepfather.
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 Services 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
A.Abandonment by failure ...