IN RE ALEXIS S. 
Session July 17, 2019
from the Circuit Court for Hamblen County No. 17-AD-005 Alex
E. Pearson, Judge
an appeal from the trial court's termination of a
mother's parental rights and denial of the maternal
grandmother's petition for grandparent visitation. The
court terminated the mother's rights on the grounds that
she abandoned the child by willfully failing to visit and
support the child, and failed to manifest an ability or
willingness to assume personal custody of the child. The
court also found that termination of the mother's rights
was in the child's best interest. The court awarded
guardianship of the child to her paternal grandparents and
denied the maternal grandmother's intervening petition
for visitation, finding that the risk of harm in permitting
visitation was greater than the risk of harm in denying it.
The mother appeals the termination of her parental rights,
and the grandmother appeals the denial of her petition for
visitation. Because the trial court failed to make sufficient
findings as mandated by Tennessee Code Annotated §
36-1-113(k), we reverse the trial court's determination
that the ground of abandonment by willful failure to support
the child was established and remand the issue for the trial
court to make the requisite findings and to enter judgment
accordingly. We reverse the court's determination that
the other two grounds for termination were proven because the
record fails to establish either ground by clear and
convincing evidence. Because no ground for termination has
been proven, we also reverse the court's determination
regarding the child's best interests. Because the court
terminated the father's parental rights, we affirm the
court's appointment of the paternal grandmother and her
husband as the child's guardians, subject to the
mother's rights, which have not been terminated. We also
affirm the denial of the maternal grandmother's petition
for visitation. Therefore, the judgment of the trial court is
affirmed in part, reversed in part, the judgment terminating
parental rights is vacated, and this matter is remanded to
the trial court for further proceedings consistent with this
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in part, Reversed in part, Vacated in part and
Chapman, Morristown, Tennessee, for the appellant, Amanda P.
Crystal Goan Jessee, Greeneville, Tennessee, for the
appellees, Bill K. and Donna K.
Scott Justice, Jefferson, Tennessee, for the appellee,
Michelle G. Green, Rogersville, Tennessee, Guardian ad Litem,
for the minor child, Alexis S.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which D. Michael Swiney, C.J., and John W.
McClarty, J., joined.
G. CLEMENT JR., P.J., M.S.
December 2007, Alexis S. ("the Child") was born to
Amanda P. ("Mother") and Doug S.
("Father") in Jefferson County, Tennessee. In
December 2009, Mother and Father voluntarily gave custody of
the Child to her maternal grandmother, Vanessa T. Mother
continued to live in East Tennessee until she met her
husband, Caleb P., in 2014. Mother spent the next two years
traveling with Caleb while he worked as a truck driver.
September 2014, Mother agreed to a new custody order that
split custody of the Child between Ms. T. and the Child's
paternal grandmother, Donna K. Under the new order, Ms. T.
had custody of the Child during the summer and on school
holidays, and Ms. K. had custody of the Child during the
school year. Ms. T. and Ms. K. successfully maintained this
arrangement until August 2016, when Ms. K. filed a petition
in the Hamblen County Juvenile Court to terminate or severely
restrict Ms. T.'s custody. The petition alleged,
inter alia, that Ms. T. smoked marijuana in front of
the Child. Ms. T. later filed a competing petition to
terminate or restrict Ms. K.'s custody, alleging that Ms.
K. hit the Child.
Mother became pregnant and moved in with Caleb P.'s
family in Florida. Mother lived in Florida until she and
Caleb P. moved back to Tennessee with their new baby in April
or May 2017. The couple lived with Ms. T. until October 2017,
when they moved into a trailer home nearby. Although Mother
had no court-ordered visitation of her own, she enjoyed
informal visitation with the Child when she was with Ms. T.
November 2017, Mother filed a motion in the juvenile court
matter to regain custody of the Child. Mother argued that
returning the Child to her would put an end to the
grandmother's protracted litigation and provide the Child
with stability. Mother's motion, however, was never
adjudicated because Mr. and Ms. K. ("Petitioners")
instituted the present action to terminate Mother and
Father's parental rights in the Hamblen County Circuit
Court on December 13, 2017.
same day, Ms. K. obtained an order of protection against Ms.
T., which effectively suspended Ms. T.'s custodial time
with the Child. Because Mother's visitation with the
Child depended on the Child visiting Ms. T., Mother started
going to the Child's school twice a week for lunch.
March 2018, Ms. T.'s visitation resumed when the order of
protection was dismissed. On May 16, 2018, however, Ms. T.
violated the court-ordered residential schedule by picking up
the Child from school. The next day, a Hamblen County Deputy
Sheriff went with Ms. K. to Mother's house, and Mother
denied knowing the location of Ms. T. and the Child. The
officer and Ms. K. then went to Ms. T.'s home, but Ms. T.
and the Child hid inside with the lights off. Ms. T. returned
the Child to Ms. K. the next day. Based on this incident, the
trial court issued a no-contact order that prohibited Ms. T.
and Mother from contacting the Child.
2018, Mother filed a motion for visitation that asserted she
was wrongfully included in the no-contact order. The trial
court, however, denied the motion due to Mother's lack of
prior, court-ordered visitation and the pending termination
hearing. Around the same time, Ms. T. joined the termination
proceedings by filing her own petition to terminate Mother
and Father's parental rights and for adoption. Ms. T.
also requested grandparent visitation if Petitioners
succeeded on their petition.
September 20, 2018, a final hearing was held on both
termination petitions. The court found that clear and
convincing evidence supported the termination of Mother and
Father's parental rights. As its ruling pertained to
Mother, the trial court found that Petitioners proved two
grounds of abandonment based on the fact that Mother made
only token visits with the Child in the four months before
December 2017, and never provided monetary support, despite
having extra money available every month and being capable of
working. The court also found that an additional ground had
been proven based on Mother's failure to manifest an
ability and willingness to assume custody of the Child, her
role as a "friend" rather than a parent, and the
improvement in the Child's behavior since Mother's
visits stopped. It concluded that placing the Child in
Mother's custody would pose a risk of substantial harm
because Mother, along with Ms. T., had exposed the Child to
"maladaptive behaviors." Finally, the trial court
found that termination of Mother's parental rights was in
the Child's best interest because of the time that had
passed since Mother had engaged in anything more than token
visits. For these reasons, Mother's parental rights were
Ms. T.'s request for grandparent visitation, the trial
court acknowledged that she had a significant relationship
with the Child but found that the Child would suffer less
psychological harm from losing the relationship than
continuing it. The court relied on the testimony of the
Child's therapist, Clifford Miller, who opposed
visitation "given all the psychological harm that has
occurred to [the Child]" when she was with Ms. T.
January 22, 2019, the trial court entered a final judgment,
terminating Mother's parental rights and placing
"full guardianship" of the Child with Mr. and Ms.
K. This appeal followed.
raises five issues on appeal:
(1) Whether the trial court erred in relying on statements
from Mother's discovery deposition;
(2) Whether the trial court erred in finding that Mother
willfully abandoned the Child by engaging in only token
(3) Whether the trial court erred in finding that Mother
willfully abandoned the Child by willfully failing to support
the Child or make reasonable payments to support the Child;
(4) Whether the trial court erred in finding that Mother
failed to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody
or financial responsibility of the Child, and placing the
child in Mother's legal and physical custody would pose a
risk of substantial harm to the physical or psychological
welfare of the Child; and
(5) Whether the trial court erred in finding by clear and
convincing evidence that the best interests of the Child
required termination of parental rights with respect to
addition, Ms. T. raises two issues on appeal: (1) whether the
trial court erred in denying Ms. T. grandparent visitation;
and (2) whether the trial court erred by failing to make
findings of fact and conclusions of law regarding
proceedings are tried to the court without a jury. In re
Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing
Tenn. Code Ann. § 36-1-113). "To terminate parental
rights, a trial court must determine by clear and convincing
evidence not only the existence of at least one of the
statutory grounds for termination but also that termination
is in the child's best interest." In re F.R.R.,
III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn.
Code Ann. § 36-1-113(c)). Furthermore, in termination
proceedings, the trial court must make "specific
findings of fact and conclusions of law." Tenn. Code
Ann. § 36-1-113(k).
review the trial court's findings of fact in termination
proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596 (citing
In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)).
Under Rule 13(d), we review the trial court's findings of
fact de novo on the record, and we will accredit the findings
unless the evidence preponderates otherwise. Id.
(citing In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007)). However, the heightened burden of proof in
termination proceedings requires this court to 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." In
re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016);
In re Bernard T., 319 S.W.3d at 596-97. A trial
court's ruling regarding whether the evidence
sufficiently supports termination is a conclusion of law,
which we review de novo with no presumption of correctness.
In re Carrington H., 483 S.W.3d at 524.
trial court fails to comply with the statutory mandate to
make "specific findings of fact and conclusions of
law," appellate courts "must remand the case with
directions to prepare the required findings of fact and
conclusions of law" and to enter judgment accordingly.
In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005); see In re Jaylah W., 486 S.W.3d 537, 555
(Tenn. Ct. App. 2015).
Grounds for Termination
trial court found that Petitioners proved three grounds for
termination of Mother's parental rights. We shall review
each ground separately.
Abandonment: Willful Failure to Support
contends there is insufficient evidence in the record to
support the trial court's finding that she abandoned the
Child by willfully failing to contribute toward the support
of the Child. More specifically, she contends the only
specific finding of fact relied upon by the trial court
concerning this ground is not in the record, and it only
appears in her discovery deposition, which was not introduced
into evidence. Petitioners counter that the error, if any,
was harmless because other evidence in the record supports
the court's findings on this ground.
is one of the grounds for termination of parental rights.
Tenn. Code Ann. § 36-1-113(g)(1). When this petition was
filed on December 13, 2017, the statute in effect at that
time defined abandonment as the willful failure to visit, to
support, or to make reasonable payments toward the support of
the child during the four-month period preceding the filing
of the petition to terminate parental rights. Tenn. Code Ann.
§ 36-1-102(1)(A)(i) (2010). To prove the ground of
abandonment as statutorily defined in 2017, a petitioner was
required to "establish by clear and convincing evidence
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). Whether a parent
failed to support a child is a question of fact and whether a
parent's failure to support constitutes willful
abandonment is a question of law. Id.
failure to support or to make reasonable payments toward
support means 'the willful failure, for a period of four
(4) consecutive months, to provide monetary support or the
willful failure to provide more than token payments toward
the support of the child.'" Id. (quoting
Tenn. Code Ann. § 36-1-102(1)(D)). Significantly,
however, a parent has not abandoned her child when her
failure to support is due to circumstances outside her
control. See In re Adoption of A.M.H., 215 S.W.3d at
810 (holding that the evidence did not support a finding that
the parents "intentionally abandoned" their child).
petition for termination of Mother's parental rights was
filed on December 13, 2017. Although the petition was later
amended, the relevant period for purposes of abandonment is
the four-month period immediately preceding the filing of the
original petition. See In re Adoption of Angela E.,
402 S.W.3d at 640 (citing Tenn. Code Ann. §
36-1-102(1)(A)(i); In re D.L.B., 118 S.W.3d 360, 366
(Tenn. 2003)). Therefore, the relevant four-month period is
August 13, 2017, to December 12, 2017.
October 19, 2018 Memorandum Opinion, which the court
incorporated by reference in its Final Judgment, the court
set forth its findings of fact concerning each ground for
termination. The entirety of the trial court's findings
of fact pertinent to the ground of abandonment for willfully
failing to support the Child reads as follows:
2. The Court finds by clear and convincing evidence that
[Mother] has willfully failed to support the minor child and
has willfully failed to make reasonable payments toward the
support of the minor child since birth including the last
four months before the filing of this petition in December of
2017. The clear testimony from [Mother] establishes that she
was and is fully capable of working to help support Alexis
but simply has chosen from the time the child was born to not
contribute any support for Alexis. [Mother] testified both
during trial and at deposition that she was not disabled and
was fully capable of working. [Mother] acknowledged that she
operates a small business called Pink Zebra but is not really
making much money through it. The Court considered the
testimony of [Mother] that she bought "some clothes and
stuff" for Alexis (Lexi) in conjunction with the rest of
her testimony as well as the other proof at trial and finds
such testimony unpersuasive. [Mother] acknowledged in
her deposition that she had between $80.00 and $100.00 per
month in extra money available; however, she chose
not to obtain employment outside of the home or provide any
support for Alexis.
5. The Court further finds for the same reasons provided in
paragraph 2 above that the intervening petitioners have
established that [Mother] has willfully failed to make
reasonable payments toward the support of the minor child. As
discussed above, [Mother] has never paid child support for
the minor child and there is no reason as to why she cannot
work to provide support.
than the finding that "[Mother] acknowledged in her
deposition that she had between $80.00 and $100.00 per month
in extra money available," the trial court made no
specific finding of fact that supports the conclusion that
Mother "willfully" failed to support the Child.
This is significant because Mother's acknowledgment only