Assigned on Briefs July 1, 2019
from the Circuit Court for Blount County No. E-27956 Tammy M.
court terminated a father's parental rights on the basis
of abandonment by failure to visit and substantial
noncompliance with a permanency plan. The father appealed,
and we affirm the termination.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Jo Hardin, Knoxville, Tennessee, for the appellant, John R.P.
Herbert H. Slatery, III, Attorney General and Reporter, and
Jeffrey D. Ridner, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
D. Bennett, J., delivered the opinion of the Court, in which
John W. McClarty and Carma Dennis McGee, JJ., joined.
D. BENNETT, JUDGE
Factual and Procedural Background
M.H. ("Mother") and John R.P. ("Father")
are the parents of Keagan P., who was born in 2015. Keagan
was removed from his parents' care and placed in the
temporary custody of the Department of Children's
Services ("DCS" or "the Department") in
August 2017 when he was found living in a homeless shelter
with Mother. Mother and Father were awarded supervised
visitation pursuant to a preliminary hearing order dated
August 16, 2017. At an adjudicatory/dispositional hearing on
November 16, 2017, the trial court ordered DCS and the
parents to have a conference call each month to set up the
next month's visitation schedule. Mother and Father were
required to confirm their visits with the DCS case manager
twenty-four hours in advance of each scheduled visit, and DCS
was directed to assist the parents with their travel expenses
by providing them with gas cards.
Department initially prepared a Family Permanency Plan on
August 28, 2017, with the permanency goal of returning Keagan
and his siblings to their parents. This plan was ratified by
the trial court on November 16, 2017, and it had a goal
target date of February 28, 2018. The parents were not making
progress with the requirements set forth in this plan, so a
second permanency plan was created on April 2, 2018. In
addition to the goal of returning Keagan and his siblings to
their parents, the second plan included the permanency goal
of adoption. This plan was ratified by the trial court on May
11, 2018. Father's responsibilities under the second plan
were identical to those set forth in the first plan, with a
few responsibilities added. Father was required to visit
Keagan at least twice each month. He was permitted to have
visitation in person and via e-mail, phone calls, and
letters. His in-person visits were to be supervised
initially, with the level of supervision diminishing as he
met his responsibilities under the plan. Father was also
required to do the following: maintain a substance-free
lifestyle without legal infractions; complete an alcohol and
drug assessment and follow all recommendations; sign a
release of information to allow DCS access to the results of
the assessments; submit to random drug screenings upon
request by DCS; sign releases for background checks in
Tennessee and West Virginia; contact the family service
worker ("FSW") weekly to provide an update on his
living and job situation and his progress on recommendations
resulting from assessments; maintain safe housing free of
environmental hazards; and complete parenting assessments,
provide the FSW with a certificate of completion, and follow
recommendations. Father was required to provide proof to the
FSW of reliable transportation, legal income, and stable
housing to show he could support himself and Keagan.
Department placed Keagan and his siblings together in a
foster home that was over 100 miles away from Father. The
permanency plan directed Father to provide a transportation
plan to the FSW one week prior to each scheduled visit to
enable the FSW to prepare the necessary paperwork to submit a
request for a gas card to assist Father with his travel
costs. On April 26, 2018, Father signed a statement on the
second permanency plan indicating that the plan had been
discussed with him and that he agreed with the plan. He also
signed a statement the same day indicating that he had
received a copy of the Criteria and Procedures for
Termination of Parental Rights ("CPT") and that he
was given an explanation of its contents.
August 2017 to April 11, 2018, when DCS filed its termination
petition, Father exercised his visitation rights with Keagan
just two or three times. He failed to maintain contact with
DCS or complete any of the substantive requirements of the
second permanency plan. The Department filed its petition to
terminate Father's parental rights on April 11, 2018. The
grounds for termination DCS asserted against Father include
abandonment by failure to visit, pursuant to Tenn. Code Ann.
§§ 36-1-113(g)(1) and 36-1-102(1)(A)(i),
substantial noncompliance with the permanency plan, pursuant
to Tenn. Code Ann. §§ 36-1-113(g)(2) and
37-2-403(a)(2). Father did not file an answer to the
case was tried on November 21, 2018. Father was in West
Virginia during the trial and was permitted to participate in
the proceedings by phone. Father's attorney attended and
participated in the trial. The court heard live testimony by
Mother, Ms. J. (the foster mother), and Frenchie Mitchell
(the current FSW). Roben Hartsell was the FSW from August
2017 through July 8, 2018, and she gave a deposition on
October 16, 2018, that was admitted into evidence.
the presentation of evidence, the trial court issued a ruling
from the bench terminating Father's parental rights based
on the two grounds DCS asserted against him. The court then
issued a written order on December 12, 2018. Father appeals,
challenging the trial court's determination that clear
and convincing evidence supports both the grounds for
termination and the best interest analysis.
Standard of Review
Tennessee Supreme Court has described the appellate review of
parental termination cases as follows:
An appellate court reviews a trial court's findings of
fact in termination proceedings using the standard of review
in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts
review factual findings de novo on the record and accord
these findings a presumption of correctness unless the
evidence preponderates otherwise. In light of the heightened
burden of proof in termination proceedings, however, the
reviewing court must make its own determination as to whether
the facts, either as found by the trial court or as supported
by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate
parental rights. The trial court's ruling that the
evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo
with no presumption of correctness. Additionally, all other
questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn.
2016) (citations omitted); see also In re Gabriella
D., 531 S.W.3d 662, 680 (Tenn. 2017).
termination of a parent's rights is one of the most
serious decisions courts make. As the United States Supreme
Court has said, "[f]ew consequences of judicial action
are so grave as the severance of natural family ties."
Santosky v. Kramer, 455 U.S. 745, 787 (1982).
"Terminating parental rights has the legal effect of
reducing the parent to the role of a complete stranger,"
In re W.B., IV, Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App.
Apr. 29, 2005), and of "severing forever all legal
rights and obligations of the parent or guardian," Tenn.
Code Ann. § 36-1-113(1)(1).
parent has a fundamental right, based in both the federal and
state constitutions, 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) (citing Nale v. Robertson,
871 S.W.2d 674, 678 (Tenn. 1994)); In re Adoption of
Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995)
(citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.
1993)). This right "is among the oldest of the
judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state
constitutions." In re Carrington H., 483 S.W.3d
at 521 (citing U.S. Const. amend. XIV, § 1; Tenn. Const.
art. 1, § 8). While this right is fundamental, it is not
absolute. Id. at 522. The State may interfere with
parental rights in certain circumstances. Id. at
522-23; In re Angela E., 303 S.W.3d at 250-51. Our
legislature has listed the grounds upon which termination
proceedings may be brought. See Tenn. Code Ann.
§ 36-1-113(g). Termination proceedings are statutory,
and a parent's rights may be terminated only where a
statutory basis exists. In re Angela E., 303 S.W.3d
at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn.
2004); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998).
terminate parental rights, a court must find by clear and
convincing evidence the existence of at least 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 Kaliyah S., 455 S.W.3d 533, 552
(Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). '"Clear and convincing evidence
enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, and eliminates any serious
or substantial doubt about the correctness of these factual
findings."' In re Carrington H., 483 S.W.3d
at 522 (quoting In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010) (citations omitted)). "Evidence
satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly
probable." In re Audrey S., 182 S.W.3d 838, 861
(Tenn. Ct. App. 2005). As a reviewing court, we "must
'distinguish between the specific facts found by the
trial court and the combined weight of those
facts."' In re Keri C., 384 S.W.3d 731, 744
(Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228
S.W.3d 148, 156 (Tenn. Ct. App. 2007)). Then, we must
determine "whether the combined weight of the facts . .
. clearly and convincingly establishes all of the elements
required to terminate" a parent's rights.
Id. "When it comes to live, in-court witnesses,
appellate courts should afford trial courts considerable
deference when reviewing issues that hinge on the
witnesses' credibility because trial courts are
'uniquely positioned to observe the demeanor and conduct
of witnesses.'" Kelly v. Kelly, 445 S.W.3d
685, 692 (Tenn. 2014) (quoting State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000)).
ground for termination is established by clear and convincing
evidence, the trial court or the reviewing court conducts a
best interests analysis. In re Angela E., 303 S.W.3d
at 251. "The best interests analysis is separate from
and subsequent to the determination that there is clear and
convincing evidence of grounds for termination."
Id. at 254. The existence of a ground for
termination "does not inexorably lead to the conclusion
that termination of a parent's rights is in the best
interest of the child." In re C.B.W., No.
M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App.
June 26, 2006).
Grounds for Termination
Abandonment by Failure to Visit
termination of a parent's rights may be based on the
ground of abandonment, as that term is defined in Tenn. Code
Ann. § 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1).
The Department alleged that Father abandoned Keagan by
willfully failing to visit him, as set forth in Tenn. Code
Ann. § 36-1-102(1)(A)(i). When DCS filed the termination
petition, that statute provided, in relevant part:
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 . . . the child.
Code Ann. § 36-1-102(1)(A)(i) (2018). The applicable
statute defines "willfully failed to visit" as
"the willful failure, for a period of four (4)
consecutive months, to visit or engage in more than token
visitation." Id. § 36-1-102(1)(E) (2018).
"Token visitation" is defined as "visitation,
under the circumstances of the individual case, [that]
constitutes nothing more than perfunctory visitation or
visitation of such an infrequent nature or of such short
duration as to merely establish minimal or insubstantial
contact with the child." Id. §
36-1-102(1)(C). The statute further provides that
"[a]bandonment may not be repented of by resuming
visitation . . . subsequent to the filing of any petition
seeking to terminate parental or guardianship rights or
seeking the adoption of a child." Id. §
36-1-102(1)(F). The Department filed the termination petition
on April 11, 2018. Thus, the relevant four-month period is
December 10, 2017, through April 10, 2018. See In re
Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085,
at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that
statutory four-month period covers four months preceding day
termination petition was filed and does not include day
petition was filed).
conduct consists of acts or failures to act that are
intentional or voluntary rather than accidental or
inadvertent." In re Audrey S., 182 S.W.3d at
863. To prove the ground of abandonment by failure to visit,
DCS must show by clear and convincing evidence that Father
"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) (citing In re Audrey S., 182 S.W.3d at 864).
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
circumstantial evidence, including a person's actions or
In re Audrey S., 182 S.W.3d at 864 (citations
omitted); see also Tenn. Dep't of Children's
Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct.
App. 2004). Whether Father failed to visit Keagan is a
question of fact. See In re Adoption of Angela E.,
402 S.W.3d at 640. Whether his failure to visit constitutes
willful abandonment under the statute, however, is a question
of law that we review de novo, according the trial
court's determination no presumption of correctness.
See id. (citing In re Adoption of A.M.H.,
215 S.W.3d 793, 810 (Tenn. 2007)).
did not testify at the trial. Ms. Hartsell, who was
Keagan's FSW from August 2017 through July 8, 2018,
testified by deposition that Father visited Keagan just one
time during the relevant four-month period, on March 8, 2018.
Ms. Hartsell explained that in November 2017 the trial court
ordered DCS to schedule a Child and Family Team Meeting
("CFTM") each month to accommodate the parents, who
had different schedules, to allow them to select visitation
dates that worked for them. Ms. Hartsell submitted an
affidavit that was included as an exhibit at trial in which
she stated that CFTMs were scheduled in advance and took
place on November 30, 2017, January 5, 2018, February 2,
2018, March 2, 2018, April 2, 2018, and May 7, 2018. Father
was notified by e-mail and text, and by phone when possible.
Ms. Hartsell testified that Father attended fewer than three
CFTMs. There is no evidence of the number of visits Father
scheduled, but he does not dispute that he visited Keagan
only once during the relevant four-month period.
cites In re Adoption of A.M.H., 215 S.W.3d 793
(Tenn. 2007), to support his contention that he was thwarted
in his attempts to visit Keagan more because Keagan was
living in a foster home that was over 100 miles away. In that
case, the Tennessee Supreme Court stated that "a parent
who attempt[s] to visit and maintain relations with his
child, but [is] thwarted by the acts of others and
circumstances beyond his control, [does] not willfully
abandon his child." In re Adoption of A.M.H.,
215 S.W.3d at 810. Unlike this case, A.M.H.'s custodians
did not allow the child's parents to see A.M.H. as often
as her parents wanted. Id. at 800. On the day of
A.M.H.'s second birthday, her parents wanted to take her
with them to have a family photograph made, but A.M.H.'s
custodians refused to let her go. Id. at 801. The
police were called and told A.M.H.'s parents they would
be arrested if they returned to the custodians' house.
Id. As a result, A.M.H.'s parents did not visit
A.M.H. in the four months preceding the filing of the
termination petition. Id. The parents took steps to
regain custody of their child during that time, however, by