In Re Addalyne S. , 556 S.W.3d 774 ( 2018 )

04/26/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 14, 2018 Session
IN RE ADDALYNE S.
Appeal from the Chancery Court for Coffee County
No. 2015-CV-333 L. Craig Johnson, Judge
___________________________________
No. M2017-00958-COA-R3-PT
___________________________________
In this parental termination case, maternal Grandparents sought termination of both
Mother’s and Father’s rights on the grounds of: (1) abandonment by willful failure to
support and (2) abandonment by willful failure to visit. The trial court found no grounds
for termination as to Mother and only one ground—failure to support—as to Father. The
trial court however found that it was not in the child’s best interest to terminate Father’s
rights. We affirm the trial court’s judgment in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Christopher R. Stanford, Manchester, Tennessee, for the appellants, Anthony O. and
Bethany O.
Stacy L. Lynch, Tullahoma, Tennessee, for the appellee, Katheryn O.
Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellee, John S.
OPINION
FACTS
Addalyne S. (“Addy” or “the child”) was born in February 2013 to unmarried
parents John S. (“Father”) and Kathryn O. (“Mother”) (together with Father, “Parents”).1
1
In cases involving termination of parental rights, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.
Mother and Father engaged in a long-term, tumultuous relationship that included
abundant drug abuse and criminal charges for both. After Addy was born, she and
Mother resided with Mother’s parents, Anthony and Bethany O. (“Grandparents”), for a
short time because Mother needed assistance with Addy’s care. Shortly thereafter,
Mother moved out of Grandparents’ home, leaving Addy to be cared for by
Grandparents. Addy continues to reside with Grandparents, who support Addy
financially and provide her with a stable and loving home.
Grandparents filed a dependency and neglect petition on March 21, 2014, in the
Coffee County Juvenile Court (“juvenile court”). The petition detailed Father’s multiple
failures in providing for and raising Addy and Mother’s agreement that Grandparents
should be temporary legal guardians of Addy due to both Mother’s and Father’s inability
to provide for Addy’s needs. The parties participated in mediation, and on November 13,
2014, Grandparents obtained temporary custody of Addy through an agreed order. The
order granted Grandparents legal and physical custody of Addy and outlined different
steps Mother and Father must complete to regain custody of the child. These steps
included hair follicle drug screening, urine drug screens, and rehabilitation meetings.
Upon completion of each step, Mother and Father could increase their visitation time
with Addy, with the opportunity to eventually regain full custody.
Mother and Father continued to exercise their visitation with Addy after the agreed
order was entered. Visitation was, however, essentially the extent of their compliance
with the order. Mother and Father both took only one hair follicle drug screen as the
court ordered, and both parents failed their hair follicle test by testing positive for an
assortment of different substances. After failing their respective drug tests, Parents did
not take any urine tests or attend rehabilitation meetings pursuant to the agreed order.
Parents took additional drug tests after the petition for termination was filed, which is
discussed in more detail, infra. Mother and Father have both struggled with drug
addiction throughout Addy’s life. Eventually, their drug abuse resulted in criminal
charges. Father has been convicted of drug possession and driving under the influence.
Mother has also been convicted of driving under the influence. Mother and Father were
also arrested together in 2015 for drug possession and possession of drug paraphernalia.
In January 2015, Grandfather initiated a child support action through the State of
Tennessee seeking support from Mother. On February 4, 2015, however, Grandfather
voluntarily dismissed the pending child support action due to Mother’s medical issues,
which prevented her from working.2 The order stated that the matter was “dismissed due
2
In late 2014 into early 2015, Mother had two serious surgeries for thoracic outlet syndrome, which
rendered her unable to work and provide support for Addy. Thoracic Outlet Syndrome is “an abnormal
type of mononeuropathy characterized by paresthesia. It may be caused by a nerve root compression by a
cervical disk.” Mosby’s Dictionary of Medicine, Nursing, and Health Professionals 1767 (9th ed. 2013).
Paresthesia is “any subjective sensation, experienced as numbness, tingling, or a ‘pins and needles’
feeling.” Id. at 1336.
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to [Grandfather] no longer wanting to pursue child support from [Mother].” On April 22,
2015, Grandparents initiated a second child support case using a private attorney.
Grandparents’ attorney personally served both Mother and Father with summonses to the
juvenile court while Mother and Father were at the Coffee County Justice Center facing
criminal charges.3 The summonses specified that the hearing regarding child support
would occur on June 1, 2015.
Neither Mother nor Father appeared for the child support hearing. The juvenile
court entered a default judgment against Mother and Father on June 17, 2015, ordering
each parent to pay $308.00 in support per month. The June 17 judgement was mailed to
Mother and Father at Mother’s paternal grandmother’s home. It is disputed as to whether
Grandparents believed this was where Mother was actually residing. Mother claims that
she did not receive the default order at that time, and was unaware of the order requiring
her to pay the monthly child support until after the termination petition was filed. Father
also claims he was unaware of the order. Both parents later testified, however, that they
were aware of their duty to financially support Addy. Father paid $20.00 per week of
support in July 2015, totaling $80.00. Mother paid no support prior to the filing of the
termination petition, but provided Addy with doughnuts, an outfit, and tomatoes. Mother
paid a total of $95.00 in support after the petition was filed.
Despite Parents’ ongoing drug abuse problems to this point, both were able to
secure employment prior to the filing of the termination petition. Father worked in
construction, and testified that he made approximately $100.00 per day. Mother was
unable to work from late 2014 into early 2015 due to major surgeries. Mother resumed
work in October 2015 at Aspen Technologies Inc. (“Aspen Technologies”), a factory
located in Manchester, Tennessee. Mother, however, only worked at Aspen
Technologies for approximately three weeks, ending her employment in early November
2015. According to Mother, her issues with maintaining employment related to her
inability to secure reliable transportation.
On December 11, 2015, Grandparents filed a petition to terminate both Mother’s
and Father’s parental rights in the Coffee County Chancery Court (“trial court”).
Grandparents relied on three separate grounds in their petition: (1) abandonment by
willful failure to support, (2) abandonment by willful failure to visit, and (3) persistence
of conditions.4 A trial was conducted on March 21, March 24, and March 30, 2017.
3
It is unclear from the record whether the petition to set child support was actually attached to Mother’s
summons.
4
Grandparents withdrew the ground of persistence of conditions because there was no finding of
dependency, neglect, or abuse. See In re Audrey S., 182 S.W.3d 838, 86768 (Tenn. Ct. App. 2005)
(holding that the ground of persistent conditions can only apply when the children were removed from
parents home based on a judicial finding of dependence, neglect, and abuse).
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At trial, Mother testified candidly about her struggle with drug addiction. She also
testified that she had not used any drugs for almost one year, and passed multiple drug
tests. Mother also stated that she had a steady job at Speedway Market in Tullahoma,
Tennessee, and was expecting a promotion. Mother testified that, at the time of trial, she
had a stable home and had been living with her boyfriend since the summer of 2016. She
also stated that she has consistently visited Addy, who calls her “Mommy,” once a week.
Regarding Mother’s visitation with Addy, Grandparents testified that Mother
visited only a minimal amount of times from August to December 2015, including
missing over fifteen visits from November 2015 to February 2016. Grandparents
introduced Grandmother’s written log of Mother’s visits into the record, which detailed
each of Mother’s visits. These logs detailed only six visits in the period relevant to this
appeal, as discussed, infra.5 Grandparents also stated that during Mother’s visits with
Addy she was often disengaged, smoking, playing on her phone, or under the influence of
illegal drugs. Grandparents noted that Mother usually did not stay the full six hours
allotted to her for her visits. Mother, however, testified that she visited Addy more than
the dates logged by Grandmother and that she was engaged during the visitation. Mother
testified that her failure to attend every visitation with Addy resulted from a combination
of unreliable transportation and disagreements with Grandparents. Mother described her
visits with Addy as “great” and that the two enjoyed doing activities, such as going
swimming and doing hair and make-up together.
Father also testified at trial. He, too, was candid about his drug abuse problems.
Father explained that he was incarcerated from September 29, 2015, to December 1,
2015, apparently as the result of a probation violation stemming from previous drug
convictions. Father stated that he has not had any more arrests or drug charges since the
beginning of 2016. From Father’s testimony, it appears that he has taken three drug
screens since the petition was filed, one on August 19, 2016, which tested positive for
THC (marijuana) only; one in December 2016, which tested positive for
methamphetamine, amphetamine, and marijuana; and the third on the day of the trial,
when he tested negative for all substances. Following his December 2016 drug test,
Father testified that he participated in and completed a three-week rehabilitation program
at Mirror Lake Recovery Center in early 2017.
Like Mother, Father stated that he also was living with his significant other and
her six year old son in a stable, drug-free household. There was also no dispute that
Father held a stable job. Furthermore, Father stated that he has not missed one visitation
with Addy in 2016. He also testified that Addy has a strong bond with Father’s niece,
Bella, along with Father’s mother and sisters. Father’s visitations also generally take
place on his mother’s twenty-five acre farm, where Addy has a horse named August with
5
These six visits occurred August 19, 2015; August 26, 2015; September 2, 2015; September 16, 2015;
September 23, 2015; and November 4, 2015.
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whom she also has a strong bond. Father testified that Addy is comfortable with him
during their visitations and she also calls him “Daddy” when they are together.
On April 25, 2017, the trial court issued its findings of facts and conclusions of
law, finding that Grandparents failed to present clear and convincing evidence as to any
ground to terminate Mother’s parental rights. The trial court found that Grandparents did
establish by clear and convincing evidence that Father willfully failed to support his
child. The trial court further concluded that it was not in Addy’s best interest to terminate
Father’s rights, in large part due to the guardian ad litem’s recommendation against
termination of Father’s parental rights if Mother’s rights were not terminated. The trial
court entered its final order denying termination and remanded the matter to juvenile
court for any further custody issues on May 9, 2017. From this order, Grandparents
timely appealed on May 10, 2017.
ISSUES
Grandparents present four issues on appeal, which we have taken from their
appellate brief, as follows:
1. Whether the trial court erred in finding that the Mother did not willfully
fail to pay child support during the relevant four-month period,
2. Whether the trial court erred in finding that the Mother did not willfully
fail to visit the child during the relevant four-month period.
3. Whether the trial court erred in finding the child’s best interest were not
served by terminating the Mother’s parental rights.
4. Whether the trial court erred in finding the child’s best interest were not
served by terminating the Father’s parental rights.
Father presents an additional issue, which we have taken, and slightly restated, from his
brief: Whether the trial court erred in determining that the Grandparents proved by clear
and convincing evidence that Father willfully failed to pay support during the relevant
four-month period.
STANDARD OF REVIEW
The Tennessee Supreme Court has explained that:
A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley v. Illinois,
405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896
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S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578–
79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. .
. .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E., 303
S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 52223 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute which identifies
“‘situations in which that 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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting 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)). Thus, a party seeking to terminate a parent’s rights must prove (1)
existence of one of the statutory grounds and (2) 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 (Tenn. 2002).
Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interest by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d at 546. Clear
and convincing evidence “establishes that that truth of the facts asserted is highly
probable . . . and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from evidence[,]” and “produces in a fact-finder’s mind a firm belief
or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004).
In termination cases, appellate courts review a trial court’s factual findings de
novo and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W at
52324 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281
S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn.
2007)). Our supreme court further explains:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
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novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at
393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally,
all other questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of correctness. In re
Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W at 524.
Lastly, in the event that the “resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying, is in a far better position than
this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct.
App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore
“gives great weight to the credibility accorded to a particular witness by the trial court.”
In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn.
Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
ANALYSIS
Grounds for Termination
Abandonment Generally
Abandonment is a statutory ground for termination of parental rights. Tenn. Code
Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 defines
“abandonment,” in relevant part, as
(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 a 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 a 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;
***
(iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
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parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or has willfully failed to support or
has willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent's
or guardian’s incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child[.]
Tenn. Code Ann. §36-1-102(1)(A)(i)(iv). A central inquiry a court must make when
determining whether a parent abandoned his or her child pursuant to section 36-1-
102(1)(A) is whether the abandonment was willful. See Tenn. Code Ann. § 36-1-
102(1)(A)(i) & (iv). This Court has explained the concept of willfulness in parental
termination cases:
The concept of “willfulness” is at the core of the statutory definition
of abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 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.
In the statutes governing the termination of parental rights,
“willfulness” does not require the same standard of culpability as is
required by the penal code. Nor does it require malevolence or ill will.
Willful conduct consists of acts or failures to act that are intentional or
voluntary rather than accidental or inadvertent. Conduct is “willful” if it is
the product of free will rather than coercion. Thus, a person acts “willfully”
if he or she is a free agent, knows what he or she is doing, and intends to do
what he or she is doing.
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. Failure to
visit or to support is not excused by another person’s conduct unless the
conduct actually prevents the person with the obligation from performing
his or her duty[] or amounts to a significant restraint of or interference with
the parent’s efforts to support or develop a relationship with the child[.]
The parental duty of visitation is separate and distinct from the parental
duty of support. Thus, attempts by others to frustrate or impede a parent’s
visitation do not provide justification for the parent’s failure to support the
child financially.
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.
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Accordingly, triers-of-fact must infer intent from the circumstantial
evidence, including a person’s actions or conduct.
In re Audrey S., 182 S.W.3d 838, 86364 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted). “‘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 Navada, 498 S.W.3d at 593 (quoting In re
Adoption of Angela E., 182 S.W.3d at 640). We next turn to the specific grounds of
abandonment alleged against Mother and Father in this case.
Grandparents appeal the trial court’s finding that Grandparents failed to prove by
clear and convincing evidence that Mother (1) willfully failed to support and (2) willfully
failed to visit to Addy pursuant to Tennessee Code Annotated section 36-1-102(1)(A).
Father has also appealed the trial court’s finding that he willfully failed to support Addy
pursuant to Tennessee Code Annotated section 36-1-102(1)(A).6 As such, we will discuss
the grounds appealed by each party in turn.
Abandonment by Willful Failure to Visit
We begin with abandonment by willful failure to visit as alleged against Mother.7
Tennessee Code Annotated section 36-1-102 defines willful failure to visit as “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(E) “Token visitation” means that “under the
circumstances of the individual case, [there is] 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.” Tenn. Code Ann. § 36-1-102(C). As to
this ground, the trial court found that
[r]egarding the Mother, there were approximately twenty-two (22) potential
weekend visits that could have occurred during this time pursuant to the
Juvenile Court Visitation Order. The proof at trial showed that she visited
at least eight (8) times during the four (4) months preceding the filing of the
6
The Court of Appeals is required to review “the trial court’s findings as to each ground for termination
and as to whether termination is in the child’s best interests, regardless of whether the parent challenges
these findings on appeal.” In re Carrington H., 483 S.W.3d at 52526 (emphasis added). Here, the trial
court found in favor of Father on the ground of willful failure to visit. “The rule adopted in Carrington
has never been construed to require this Court to also consider the grounds not sustained by the trial
court” and not challenged on appeal by the petitioning non-parent. In re Sydney B., 537 S.W.3d 452, 456
(Tenn. Ct. App. 2017), perm. app. denied (Tenn. Aug. 1, 2017). As such, this Court is not required to
review this ground for termination.
7
As previously discussed, Grandparents failed to appeal the trial court’s finding the Grandparents failed
to prove by clear and convincing evidence that Father willfully failed to visit Addy during the relevant
four-month period. As such, we will discuss this ground only as to Mother.
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Petition for Termination. It is clear that she visited enough that the child
continued to know who she was, called her “Mom,” and loved to do
activities together when possible under her supervised visitation. The
Court finds this visitation was enough to continue the bond between this
Mother and her child. The Court finds that [Grandparents] have failed to
prove this ground by clear and convincing evidence.
We also conclude that the Grandparents failed to prove this ground by clear and
convincing evidence. The trial court found, and there is no dispute on appeal, that
Mother exercised eight of twenty-two, or approximately 36% of, potential visits with
Addy during the relevant time period. Further, Mother testified that Addy calls her
“Mommy.” Additionally, there is evidence that Mother and Addy like to do many
activities together during Mother’s visitation such as playing outside together or doing
makeup and hair, and that they are affectionate towards one another during visits.
Mother’s amount of visitation certainly borders on being token. Indeed, at least
one Tennessee court has held that a mother who completed 37.5% of her potential visits
during the relevant time period only engaged in token visitation. See In re L.J., No.
E2014-02042-COA-R3-PT, 2015 WL 5121111, at *4*6 (Tenn. Ct. App. June 29, 2015).
In In re L.J., mother attended three of her eight, or 37.5% of her scheduled visits with her
child. Id. at *4. The mother argued that attending 37.5% of visits amounts to more than
token visitation, but the trial court disagreed. Id. In affirming the trial court’s decision,
the court considered a multitude of factors in determining whether the mother’s visitation
was, in fact, token. Id. at *4*6. These factors included the quality of the visits, the
relationship between the parent and child before the four-month period, the quantity of
visits, and whether the visits were sufficient to create and maintain a bond between parent
and child. Id. at *4*5. Reviewing the evidence, the Court concluded that the mother’s
visits were generally of poor frequency and mediocre quality, that the mother and child
had little relationship even prior to the four-month period; the court therefore likened the
mother’s situation to a case wherein a parent’s perfunctory visits were insufficient to
establish any meaningful relationship with the child. Id. at *4 (citing State Dep’t of
Children’s Services v. L.L.T., No. E2003-00501-COA-R3-JV, 2003 WL 23094559, at *4
(Tenn. Ct. App. Dec. 30, 2003) (noting that “absolutely no evidence that a meaningful
relationship was ever established between [m]other and child.”)). The Court additionally
noted that when mother provided an excuse for missing visitation, she “attributed it to a
lack of transportation and work conflicts.” Id. at *5. The Court noted, however, evidence
in the record to undermine mother’s testimony on this issue, as child services workers
testified that they assisted mother with transportation. Id. Under the totality of these
circumstances, the corut held that the petitioners provided sufficient proof that mother’s
visitation was no more than token. Id. at *5*6.
At first blush, the facts of In re L.J. appear to be analogous to the case-at-bar.
Indeed, Mother attended a similar, but even lesser amount, of visitation over the relevant
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time period, had problems with reliable transportation, and Mother and Addy’s
relationship was also built during her scheduled, supervised visits. Token visitation,
however, is analyzed in regard to the “circumstances of the individual case.” Tenn. Code
Ann. § 36-1-102(1)(c). As such, this Court has never imposed a bright-line rule as to
what percentage of visitation must be attended in order avoid categorization as token.
Compare In Re Jayden B.T., No. E2014-00715-COA-R3-PT, 2015 WL 3876573, at *8
(Tenn. Ct. App. June 23, 2015) (holding that petitioners failed to prove that visitation was
token where the parent made only two visits in four months); In re E.M.P., No. E2006-
00446-COA-R3PT, 2006 WL 2191250, at *5 (Tenn. Ct. App. Aug. 3, 2006) (holding that
given the “sparse record,” petitioners failed to provide clear and convincing evidence that
mother’s single visit to the child in the four month period was token under the
circumstances), with In re Audrey S., 182 S.W.3d 838, 867 (Tenn. Ct. App. 2005)
(holding that one or two visits in four months was “nothing more than token visitation”).
In re L.J., 2015 WL 5121111, at *4*6 (holding that three visits in four months was no
more than token visitation). Indeed, we have recognized that each termination of parental
rights case requires “individualized decision making[,]” rather than the application of
bright-line rules. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005) (“Because
of the gravity of their consequences, proceedings to terminate parental rights require
individualized decision making.”).
Although the percentage of visitation in this case is similar to In re L.J., other
facts lead us to reach a different conclusion in this case. Here, unlike the mother in In re
L.J., the trial court found that Mother was able to maintain a meaningful relationship
with Addy through the somewhat meager visitation that she attended. This Court has
previously considered whether a parent’s visitation was sufficient to “establish a
meaningful relationship or bond between [the parent] and the children” in determining
whether visitation was token. In re Kaylee F., No. M2012-00850-COA-R3PT, 2013 WL
1097791, at *3 (Tenn. Ct. App. Mar. 15, 2013). In this case, the trial court explicitly
found that the visitation was sufficient to continue the bond with the child, and the
evidence in the record does not preponderate against this finding. In reaching this result,
it appears that the trial court generally credited Mother’s testimony rather than the
testimony of Grandparents regarding the quality of the visitation between Mother and the
child. Findings based on credibility are afforded great weight by this Court. See Estate of
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
Moreover, Mother consistently maintained at trial that she had problems obtaining
reliable transportation. The same excuse was provided by the mother in In re L.J.;
however, in that case, the court appeared to discredit her testimony by noting the
countervailing proof in the record that DCS had provided the mother with transportation
assistance. See In re L.J., 2015 WL 5121111, at *5. In contrast, the trial court in this case
appeared to credit Mother’s testimony regarding her transportation woes, finding that
Mother’s failure to work during the period at issue was due to the lack of reliable
transportation. Because of the great weight afforded to a credibility determination of a
- 11 -
particular witness by the trial court, see Estate of Walton, 950 S.W.2d at 959, we accept
the trial court’s implicit finding that Mother’s testimony regarding her lack of reliable
transportation was credible and therefore provided a justifiable excuse for some of her
missed visits. Lastly, we are unable to determine Mother’s relationship with Addy prior
to the relevant four-month period because the record contains only vague statements
regarding Mother’s visitation before August 2015. Accordingly, under these particular
circumstances, Mother’s visits were more than perfunctory and were frequent enough to
establish more than minimum or insubstantial contact with Addy; thus, Mother’s
visitation does not meet the definition of token visitation under our termination statutes.
See Tenn. Code Ann. § 36-1-102(C). We therefore affirm the trial court’s determination
that Grandparents failed to provide clear and convincing evidence that Mother willfully
failed to visit her child.
Abandonment by Willful Failure to Support Generally
In order to satisfy section 36-1-102, a party must prove that the parent has
“willfully failed to support or ha[s] willfully failed to make reasonable payments toward
the support of the child.” Tenn. Code Ann. § 36-1-102(A)(1)(i). “Willful 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.’” In re Adoption of
Angela E., 402 S.W.3d at 640 (quoting Tenn. Code Ann. § 36-1-102(1)(D)). “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 re Audrey S., 182 S.W.3d at 864 (citing In re M.J.B., 140
S.W.3d 643, 654 (Tenn. Ct. App. 2004)). If a parent is financially unable to support a
child, then the failure to support is not willful. Id. at 824 fn.33. Token support, however,
does not prevent a court from finding of willful failure to support. In re Adoption of
Angela E., 402 S.W.3d at 641. Token support is defined as support “under the
circumstances of the individual case, is insignificant given the parents means[.]” Tenn.
Code Ann. § 36-1-102(B).
Mother
Next, we consider abandonment by willful failure to support as alleged against
Mother. Under Tennessee Code Annotated section 36-1-102(1)(A)(i), courts must look to
“the period of four (4) months immediately preceding the filing of a proceeding or
pleading to terminate the parental rights” when analyzing whether a child was
abandoned. In this case, the petition for termination was filed on December 11, 2015;
therefore, the relevant four-month period for reviewing Mother’s conduct is August 11,
2015 to December 10, 2015.
It is undisputed that Mother did not provide any support for Addy until after the
termination petition was filed, with the exception of some gifts during her visits within
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the relevant four-month period. This Court is therefore tasked with determining whether
Mother’s failure to provide support from August 11, 2015, to December 10, 2015, was
willful. As mentioned above, determining whether a parent’s abandonment is willful is a
question of law which we review de novo. In re Adoption of Angela E., 182 S.W.3d at
640 (citing In re Adoption of A.M.H., 215 S.W.3d at 810).
In its findings of fact and conclusions of law, the trial court made the following
findings relevant to the alleged ground of Mother’s abandonment by failure to support:
[Mother] admits that she failed to pay child support during this time.
* * *
In her deposition on November 11, 2016, [Mother] admitted [she] did work
at Aspen Technologies, Inc., for a portion of the relevant four (4)-month
period and provided small amounts of purchased goods for her daughter
during this time period. She has paid a small amount of support of
approximately Ninety-Five dollars ($95.00) after the filing of the petition
between November 11, 2016, and January 26, 2017. The Court was unable
to determine if she was able to work the entire four (4)-month period. The
Court finds that the [Grandparents] have failed to prove this ground by
clear and convincing evidence because the Court is not convinced that the
Mother was able to work the entire four (4)-month period . . . .
In this case, Mother repeatedly testified that she understood that she had a duty to
support Addy,8 although Mother did express some confusion regarding whether
8
In her testimony, Mother testified that:
[Grandparents’ Attorney]: And you understood that you had a duty to support [Addy] financially
when she was born?
[Mother]: Yes.
Q: You understood that you had a duty to support her until she turns 18 and graduates high school,
did you not?
A: Yes.
***
Q: Okay. Yet you knew you had a duty to support Addy since the day she was born?
A: Okay. Yes.
Q: Correct?
A: Correct.
***
[Mother’s Attorney]: You stated that you knew that it was your responsibility to pay child support?
[Mother]: Yes.
Q: . . . Is that an understanding that you have come to recently?
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Grandparents were seeking payments from her following the dismissal of the first child
support petition. Regardless of this dispute, we conclude that the record lacks clear and
convincing evidence that Mother had the capacity to pay support during the relevant time
period.
The evidence concerning this issue is limited at best. It is undisputed that Mother
was employed at Aspen Technologies for a portion of the four-month period. Mother
however testified that she only worked at Aspen Technologies for “about three weeks or
so.” Mother’s testimony revealed, however, that the lack of reliable transportation made
it difficult for her to maintain employment, which affected her ability to pay child
support. The trial court declined to discredit Mother’s testimony on this issue, and
Grandparents offered no countervailing proof to show that Mother worked longer than
three weeks or that the termination of her employment was based on anything other than
her lack of transportation. Accordingly, from August 10 to December 10, 2015, Mother
was employed for less than one-quarter of the relevant period.
It is also undisputed that Mother was paid for her work at Aspen Technologies;
however, the record is completely devoid of evidence regarding the number of hours
Mother worked per week, her hourly pay, or the expenses Mother incurred during this
time. Indeed, the only evidence included in the record regarding the wages earned by
Mother at Aspen Technologies is that Mother was able to purchase items such as
clothing, food, personal hygiene products, i.e. soap and shampoo, and drugs. Mother’s
decision to purchase drugs during the relevant time period is a grave concern for this
Court and indicates that Mother did have some funds for non-necessities. However, the
purchase of illegal drugs alone is insufficient to prove that Mother’s failure to provide
support was willful. See In re Kira G., No. 2016-01198-COA-R3-PT, 2017 WL
1395521, at *6 (Tenn. Ct. App. April 18, 2017) (“Although illegal drug abuse and the
purchase or sale of illegal drugs may well be relevant to determining whether a parent
willfully has failed to support his or her child while supporting his or her drug use, illegal
drug activity by itself does not establish willfulness.”)) (quoting In re Karissa V., No.
E2016-00395-COA-R3-PT, 2017 WL 758513, at *11 (Tenn. Ct. App. Feb. 27, 2017).
Further, Mother testified that she provided Addy with small gifts, such as an outfit,
tomatoes, doughnuts, and snacks, during the time period.
In recent decisions, this Court has noted that “[i]n determining a parent’s capacity
to pay support, it is not enough for a petitioner to ‘simply prove that [the parent] was not
disabled during the relevant timeframe’ and therefore assume that he or she was capable
of working and providing support.” In re Mya V., No. M2016-02401-COA-R3-PT, 2017
WL 3209181, at *4 (Tenn. Ct. App. July 28, 2017) (quoting In re Josephine E.M.C., No.
E2013-02040-COA-R3-PT, 2014 WL 1515485, at *18 (Tenn. Ct. App. Apr. 17, 2014),
A: Yes. Well, I mean, I know that I’m her mother and it is my duties to make sure she is provided for
and taken care of, which I have not performed all the way or much at all.
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perm app. denied (Tenn. July 23, 2014)). Rather, Tennessee courts have noted that proof
of employment and earned wages is not sufficient to prove that parent has the capacity to
provide support absent evidence of income and expenses. See In re Adoption of Angela
E., 402 S.W.3d at 641 (reversing the trial court’s determination of father’s willful failure
to support where father had paid a not-insignificant amount during the relevant period
and “[n]o evidence was introduced concerning [f]ather’s monthly expenses[,]” although
father was earning $150,000.00 annually); In re Noah B.B., No. E2014-01676-COA-R3-
PT, 2015 WL 1186018, at *8*9 (Tenn. Ct. App. March 12, 2015) (holding that although
mother affirmatively answered that she was working during the four-month time period,
DCS failed to prove by clear and convincing evidence she willfully failed to support child
because DCS did not provide “evidence of [m]other’s employment status, . . . the number
of hours she worked, the duration of her employment, her rate of pay, or whether
[m]other had assets other than regular income that might contribute to support of the
child.”); In re Josephine E.M.C., 2014 WL 1515485, at *17*18 (holding that DCS
failed to prove by clear and convincing evidence that mother had the capacity to support
the child and had no justifiable excuse for not doing so even though mother worked two
jobs on occasion and had previously been ordered to pay support because “there was little
to no evidence presented at trial regarding Mother’s income and expenses”).
The “burden to prove Mother’s abandonment by willful failure to support rests
squarely on” Grandparents. In re Noah B.B., 2015 WL 1186018, at *9. The record in
this case, however, lacks clear and convincing evidence to support this ground for
termination. It is our view Grandparents failed to present sufficient evidence that Mother
had the capacity to provide support and or to rebut her justifiable excuse for failing to do
so during the relevant period. Indeed, there is a complete lack of evidence concerning
her hours worked, wage earned, overall income, or expenses during this time in the
record, and Mother repeatedly testified that her failure to work was due to circumstances
outside her control. Recently, this Court reversed a trial court’s determination that a
parent willfully failed to support her children, where the evidence showed that the parent
worked only intermittently during the relevant period and her access to transportation was
hampered. In re T.W., No. E2017-00317-COA-R3-PT, 2018 WL 1831109, at *8 (Tenn.
Ct. App. Apr. 17, 2018) (citing In re Alysia S., 560 S.W.3d 536, 570 (Tenn. Ct. App.
2014) (“Simply finding that Mother worked and was compensated at some point during
the four-month period does not, by itself, mean that she had the ability to pay child
support.”). Under those circumstances, we held that the evidence was insufficient to
eliminate “‘any serious or substantial doubt’” as to the parent’s capacity to support during
the relevant time. Id. (quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)).
Likewise, we conclude that Grandparents failed to prove by clear and convincing
evidence that Mother willfully failed to support her child. We therefore affirm the trial
court’s determination on this ground.9
9
We note that both parties spend the great majority of their briefs presenting arguments regarding
whether Mother was aware of a child support order requiring her to pay $308.00 per month in child
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Father
Next, we will analyze Father’s argument that the trial court erred in finding that he
willfully failed to support his child under Tennessee Code Annotated section 36-1-
102(1)(A)(iv). As an initial matter, it appears that there is no dispute that this definition
of abandonment is applicable to Father, as he was incarcerated “during all or part of the
four (4) months immediately preceding the institution of such action or proceeding”;
Father was incarcerated from September 29, 2015 to December 2, 2015, leaving
incarceration approximately nine days before the December 11, 2015 termination petition
was filed. Id. Determining the four-month period relevant to Father’s alleged willful
failure to support, however, is somewhat more difficult. According to Tennessee Code
Annotation section 36-1-102(1)(A),
[i]f the four-month period immediately preceding the institution of the
action or the four-month period immediately preceding such parent’s
incarceration is interrupted by a period or periods of incarceration, and
there are not four (4) consecutive months without incarceration
immediately preceding either event, a four-month period shall be created by
aggregating the shorter periods of nonincarceration beginning with the most
recent period of nonincarceration prior to commencement of the action and
moving back in time.
Tenn. Code Ann. § 36-1-102(1)(A)(iv) (noting other rules used to determine the correct
time period that are not applicable in this case). Thus, Father’s relevant four-month
period runs from June 5, 2015 to September 28, 2015, and resumed December 3, 2015 to
December 10, 2015, due to his incarceration. See Tenn. Code Ann. § 36-1-102(1)(A)(iv).
Father provided $80.00 of support to Grandparents during the relevant time period.
Regarding this ground, the trial court found the following:
The testimony at trial showed that [Father] was able-bodied and had the
ability to work during the relevant time frame. Proof at trial showed that he
paid a token amount of child support during this four (4)-month period.
[Father] provided receipts totaling Eighty Dollars ($80.00). There was no
proof introduced at trial that the Father petitioned the Court to set or hold
support payments during the pendency of his proceedings. . . . The Court
finds that [Grandparents] have proven that the Father willfully failed to
provide more than token support during the relevant time period by clear
and convincing evidence.
support payments. Resolution of this dispute is unnecessary, however, because the evidence in the record
does not clearly and convincingly establish Mother’s ability to provide support during the relevant period.
- 16 -
On appeal, however, Father argues that this evidence was insufficient to find willful
failure to support because, like with Mother, Grandparents failed to offer evidence of
Father’s expenses during the relevant time period. Respectfully, we cannot agree.
First, we note that the record provides ample evidence that Father was working
and earning a significant wage during the four-month period. Regarding his income
during the four-month period, Father stated:
[Grandparents’ Attorney]: You’ve testified that your job for the last four
years has largely been construction work?
[Father]: For the most part, yes, sir.
Q: And you, generally had made about a hundred dollars a day?
A: Yeah. I guess I could average it out about that, a little less, a little more.
Q: Okay. And you work five days a week?
A: Yes, sir, weather permitted.10
Despite Father’s income of up to $2,000.00 per month, he provided support to his child of
only $80.00: receipts in the record indicate that Father paid weekly support payments in
the amount of $20.00 per payment in July 2015. Father did not dispute that these were the
only support payments made both during the four-month period and in the child’s
lifetime.
Most importantly, Father admitted that he could have paid child support
throughout the child’s life, but chose not to. His relevant testimony regarding his failure
to provide support to Addy follows:
[Grandparents’ Attorney]: You know that you have a duty to financially
support [Addy]?
[Father]: Yes, sir.
Q: You’ve known that you had a duty to financially support her since the
day she was born, didn’t you?
A: Yes, sir.
Q: However, you’ve only paid the $80 in child support –
A: Yes, sir.
Q: -- over the four years. Yes?
A: Yes, sir
* * *
10
Importantly, while a short period of Father’s four-month period of non-incarceration took place in
winter, which could foreseeably have prevented Father from working outdoors, the significant portion of
the four-month period took place in summer.
- 17 -
Q: Okay. And you could’ve paid child support?
A: I – yes, sir, I could have.
Q: But you didn’t?
A: But I didn’t.
Q: Had the ability to work?
A: Yes, sir.
Q: You did work, yet you didn’t pay support. You’re not dis – is that a
yes?
A: Yes, sir.
Q: You’re not disabled?
A: No, sir.
Q: So you have absolutely no excuse today for why you did not pay support
the four-months before you went to jail?
A: There wouldn’t be a good enough excuse, even if I did. I should have
been paying support. I admit that. I was wrong. I should have been paying
child support this entire time.
Thus, Father openly admitted that he willfully failed to provide support for his daughter
and that he had no justifiable excuse for his failure to do so.
Support is considered “token” when “under the circumstances of the individual
case, [the support] is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-
102(1)(B). In determining whether support was insignificant given the parent’s means,
this Court must consider “evidence regarding both the parent’s actual financial support of
his or her child and the parent’s ‘means.’” In re Noah B.B., 2015 WL 1186018, at *8.
Additionally, “[t]he definition of token support itself requires consideration of the
circumstances of the individual case.” Id. (quoting In re K.C., No. M2005-00633-COA-
R3-PT, 2005 WL 2453877, at *9 (Tenn. Ct. App. Oct. 4, 2005) (citing Tenn. Code Ann.
§ 36-1-102(1)(B))). While we agree that the lack of evidence regarding expenses is
troubling in this case, we cannot ignore Father’s own admission that he had no justifiable
excuse for his failure to pay child support while he was gainfully employed. Here, the
evidence shows that Father paid less than five percent of his approximate monthly
earnings for only a single month of the four-month period. Thus, even if $80.00 was the
uppermost that Father was able to pay after paying his expenses, the record shows that he
had the ability to make this payment throughout the four-month period, rather than for a
single month. This amount is therefore clearly token under the circumstances. Coupled
with Father’s admission at trial that he had the knowledge and ability to pay support but
did not do so, we conclude that Grandparents provided clear and convincing evidence
that Father willfully failed to provide no more than token support in the relevant period.
The trial court’s finding that clear and convincing evidence exists that Father failed to
provide support for his daughter is affirmed.
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Best Interest
As a ground exists to terminate Father’s parental rights, we will proceed to analyze
whether it is in Addy’s best interest to terminate Father’s parental rights. Because we
found no ground for termination regarding Mother, we will not engage in a best interest
analysis for Mother.
When at least one ground for termination has been established, the court must then
consider if termination is in the best interest of the child. White v. Moody, 171 S.W.3d
187, 192 (Tenn. Ct. App. 1994). Upon establishment of a ground for termination, the
interests of the child and parent diverge, and the court’s focus shifts to consider the
child’s best interest. In re Audrey S., 182 S.W.3d at 877. Tennessee’s parental
termination statutes recognize that although a parent may be unfit, terminating that
parent’s rights may not be in the best interest of the child. Id. As the Tennessee Supreme
Court recently explained:
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child . . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
In re Gabriella D., 531 S.W.3d 662, 681–82 (Tenn. 2017).
The Tennessee Legislature has codified certain factors for the court to consider in
its determination of whether termination is in a child’s best interest. The factors include,
but are not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to affect a lasting adjustment
after reasonable efforts by available social services agencies for such
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duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol or controlled substances as may render the
parent or guardian consistently unable to care for the child in a safe and
stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i). We further note that a trial court does not have to find
the existence of each enumerated factor before it may conclude that termination is in the
child’s best interest. In re Navada N., 498 S.W.3d at 607. Therefore, “[d]epending on
the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis.” Id. However,
this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
- 20 -
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d at 682. Moreover,
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case.
In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
In this case, the trial court made some findings of fact and conclusions of law in
support of its determination that terminating Father’s rights would not be in the best
interest of the child. Although the trial court in this case did not analyze each of the nine
factors enumerated in the statute, the trial court did specifically mention the existence of
the nine factors when determining the best interest of the child. While we conclude that
the trial court’s order is sufficient to determine whether termination is in Addy’s best
interest in this case, we urge trial courts to make specific findings regarding each factor,
and any other considerations, in all future decisions. See In re Gabriella D., 531 S.W.3d
at 682 (discussing the court’s obligation to consider “all the factors and all the proof”).
We also agree with the trial court’s determination that the enumerated factors do not
establish that it would be in Addy’s best interest to terminate Father’s rights at this time.
First, Father’s long history of drug abuse and brief periods of incarceration prior to
trial are troubling in relation to the stability and safety of Father’s home and to Father’s
mental and emotional state. See Tenn. Code Ann. §§ 36-1-113(i)(7) & (8). We also note
that Father, after passing out due to illegal drug use, choked Mother as she was trying to
wake him up. Mother testified however that this incident occurred before Addy was
born, and there was no evidence of any abuse toward Addy or any other person
perpetrated by Father during the child’s life. See Tenn. Code Ann. § § 36-1-113(i)(6).
The evidence indicates, however, at the time of trial, Father was endeavoring to make a
lasting adjustment in circumstances in order for Addy to be safe in his home. See Tenn.
Code Ann. § 36-1-113(i)(1) & (2). It is also concerning that Father failed a drug test in
December 2016, approximately three months prior to the trial; however, since that failed
drug test, Father has attended and completed drug treatment and also passed a drug test
given by his probation officer on the trial date. Further, at the time of trial, Father had
been living with his girlfriend and her son since November 2016. At trial, Father’s
girlfriend testified that she had never personally witnessed Father take illegal drugs
(although she was aware that he failed a drug test in December 2016) and has seen no
signs of drug use in their home. Father’s girlfriend also stated that Father takes good care
of her son and has provided support for her and her son during the four months they have
- 21 -
lived together. Father is clearly making an effort to improve his circumstances.
Comparing Father’s undisputed prior drug abuse with his somewhat belated effort and
success in treating his issues and maintaining a safe and stable home, we conclude that
these factors weigh in favor of termination.
Next, Father has maintained visitation with Addy when he was not incarcerated.
Testimony from Father and his sister both indicate that Father has attended all allowed
visitations, with the exception of the time he was incarcerated or in a rehabilitation
program. In his testimony, Grandfather admits that Father, or a member of Father’s
family, has exercised visitation with Addy over ninety percent of the time. It is,
therefore, our view that Father has maintained regular visitation with Addy. See Tenn.
Code Ann. § 36-1-113(i)(3).
Unlike many of the termination cases analyzed by this Court, the record also
reflects that Father has maintained a meaningful relationship with Addy. See Tenn. Code
Ann. § 36-1-113(i)(4). Addy calls him “Daddy.” The two are affectionate when they are
together, and she is always excited to see him. Addy also has a meaningful relationship
with Father’s extended family. Addy is especially close with her cousin and her aunts.
We note that the trial court put great weight on this factor stating that “[t]his is
particularly important in this case for Addy.” These factors weigh against termination.
A change in caretakers, however, would certainly have a negative effect on Addy.
See Tenn. Code Ann. § 36-1-113(i)(5). Grandparents have raised Addy since she was
born. Grandparents also provide Addy with a stable, loving home, as well as financially
support her. Both Mother and Father agree that Grandparents have done a wonderful job
raising Addy and neither have any complaints as to Grandparents caring for her. There is
also testimony that Addy adores her Grandparents. Furthermore, Father has failed to
provide Addy with any financial support since the petition was filed even though he has
been providing support for his girlfriend and her son for four months. See Tenn. Code
Ann. § 36-1-113(i)(9). These factors certainly weigh in favor of termination.
In addition to the factors listed in section 36-1-113(i), the trial court found that it
Agree[d] with the opinion of the Guardian ad Litem that the best interest of
the minor child would not be served by severing the parent-child
relationship of only one parent and that if the termination is not granted as
to both parents, it would not be in the child’s best interest to sever either
parental relationship.
Grandparents argue that “the trial court determined that because it would not sever the
relationship with the Mother, the Father also remained a parent by default.” We do not
agree that the trial court found that the continuation of Mother’s parental rights to the
child, ipso facto, required the trial court to find that termination was inappropriate as to
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Father. Indeed, had the trial court made such a finding, it would have been unnecessary
for the trial court to discuss any other factors relevant to best interest; the trial court,
however, clearly contemplated a number of factors in its best interest determination.
Moreover, we agree that the trial court was permitted to consider this fact among
the factors relevant to its best interest analysis. As previously discussed, the list of factors
contained in section 36-1-113(i) is non-exclusive. See Tenn. Code Ann. § 36-1-113(i)
(stating that the court “is not limited to” consideration of the enumerated factors); In re
Gabriella, 531 S.W.3d at 681 (citing In re Carrington H., 483 S.W.3d at 523) (“These
statutory factors are illustrative, not exclusive, and any party to the termination
proceeding is free to offer proof of any other factor relevant to the best interests
analysis.”). Here, the guardian ad litem expressly recommended that Father’s parental
rights not be terminated if Mother’s parental rights remained intact. This Court has
previously affirmed best interest determinations by trial courts that rested, in part, on the
recommendations of guardian ad litems. See, e.g., In re Kayden H., No. E2014-02360-
COA-R3-PT, 2015 WL 3876365, at *13 (Tenn. Ct. App. June 23, 2015) (discussing the
guardian ad litem’s recommendation). Moreover, the fact that only one parent’s rights are
subject to termination may also be considered by Tennessee courts:
When termination of both parents’ rights is sought by a petitioner with the
intent of adoption, there is no statutory bar that prohibits the trial court from
terminating one parent’s parental rights while denying termination of the
other parent’s parental rights. However, whether only one parent’s parental
rights should be terminated may be an appropriate consideration in the best
interest analysis.
In re Brooke E., No. M2016-02370-COA-R3-PT, 2017 WL 6606862, at *16 (Tenn. Ct.
App. Dec. 22, 2017) (citations omitted); see also In re Liam S., No. E2016-02461-COA-
R3-PT, at *11 (Tenn. Ct. App. Oct. 4, 2017) (reversing a trial court’s best interest finding
against father, where mother’s parental rights were not terminated, noting that the court
“do[es] not wish to leave the [c]hildren without a father if the proceedings following
remand establish that termination of [m]other’s parental rights is not in the best interest of
the [c]hildren”). In this case, the trial court and guardian ad litem clearly considered
whether only Father’s rights should be terminated, and concluded that it would not be in
Addy’s best interest to sever only Father’s rights in this case. The evidence in the record
does not preponderate against this finding.
Reviewing all the factors applicable in this case, we cannot conclude that clear and
convincing evidence supports a determination that the child’s best interests will be served
by terminating Father’s parental rights. Clearly, the trial court was entitled to place
particular weight on the meaningful relationship that had been maintained by Father with
the child through visitation, as well as the fact that Mother’s parental rights had not been
terminated. This Court has previously indicated that in some cases the lack of a
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meaningful relationship between a parent and child is the most important factor; it is not
error for a trial court to place similar weight on the fact that such a relationship exists.
See, e.g., In re Jayvien O., No. W2015-02268-COA-R3-PT, 2016 WL 3268683, at *9
(Tenn. Ct. App. June 7, 2016) (affirming the trial court’s decision where it found the lack
of meaningful relationship the “most important[]” factor); In re Terry S.C., No. M2013-
02381-COA-R3-PT, 2014 WL 3808911, at *18 (Tenn. Ct. App. July 31, 2014)
(“[P]erhaps most importantly, [the mother] has failed to maintain regular visitation with
the children and therefore has no meaningful relationship with them”). From our review
of the record as a whole, the facts as found by the trial court indeed militate in favor of
maintaining the parent-child bond between Father and the child. In a similarly “close
case” this Court has held that allowing the parent to continue a relationship with the child
supported denying termination of parental rights even where the children were in a loving
pre-adoptive home and questions remained as to whether the parent could effectively
parent the child. See In re Liam S., No. E2016-02461-COA-R3-PT, 2017 WL 4422342,
at *11 (Tenn. Ct. App. Oct. 4, 2017) (“We, like the trial court, believe that is [] an
extremely close case.”). Under this circumstance, Grandparents failed to meet their
burden to show that termination is in the child’s best interest.
CONCLUSION
The judgment of the Coffee County Chancery Court is therefore affirmed. The
costs of this appeal are taxed to Appellants Anthony O. and Bethany O., for which
execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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