Rule 10 of the Tennessee Court of Appeals provides: 

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This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion it shall be designated

"MEMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 17, 2004 Session

IN RE: S.B.D.W., a minor child born, January 14, 1999

Direct Appeal from the Chancery Court for Dyer County

No. 03A8 J. Steven Stafford, Chancellor

No. W2004-00863-COA-R3-PT - Filed December 1, 2004

The trial court terminated parents’ rights based on abandonment. Father appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and ALAN E. HIGHERS, J., joined.

Jason L. Hudson, Dyersburg, Tennessee, for the appellant. 

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellees. 

MEMORANDUM OPINION1

This is a termination of parental rights case. In March 2001, the Juvenile Court of Dyer

County awarded custody of S.B.D.W., a minor child born January 1999, to P.B., Appellant/Father’s

step-sister, and awarded Mother reasonable visitation. In March 2003, K.W., R.W., and P.B.

(collectively, Petitioners) filed a petition to terminate the parental rights of Father and Mother and

for adoption of S.B.D.W. by K.W. and R.W. The trial court terminated parental rights of both
Mother has not appealed the trial court’s determination.

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parents based on abandonment and granted the petition for adoption. Father filed a timely appeal

to this Court.

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Issues Presented 

On appeal, Father contends that the trial court erred in determining Petitioners satisfied their

burden of proof and in finding that Father abandoned S.B.D.W.

Standard of Review 

Our standard of review of a trial court sitting without a jury is de novo upon the record.

Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). We presume the trial court’s

findings of fact to be correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d).

However, no presumption of correctness attaches to a trial court’s conclusions on issues of law.

Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn. 2000); Tenn. R. App. P. 13(d). 

Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code

provides, in pertinent part: 

(c) Termination of parental or guardianship rights must be based upon: 

(1) A finding by the court by clear and convincing evidence that the grounds

for termination or parental or guardianship rights have been established; and 

(2) That termination of the parent's or guardian's rightsis in the best interests

of the child. 

Tenn. Code Ann. § 36-1-113(c)(2001). This section also provides the grounds on which parental

rights may be terminated. The existence of any statutory basisfor termination of parental rights will

support the trial court’s decision to terminate those rights. In re C.W.W., N.W.W., Z.W.W., & A.L.W.,

37 S.W.3d 467, 473 (Tenn. Ct. App. 2000).

A court’s determination to terminate parental rights must be supported by clear and

convincing evidence. Id. at 474. The “clear and convincing evidence” standard is more exacting

than the "preponderance of the evidence" standard, although it does not demand the certainty

required by the "beyond a reasonable doubt" standard. Id. To be clear and convincing, the evidence

must eliminate any substantial doubt and produce in the fact-finder's mind a firm conviction as to

the truth. Id. Insofar as the trial court’s determinations are based on its assessment of witness

credibility, this Court will not reevaluate that assessment absent evidence of clear and convincing

evidence to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999).
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The trial court found as grounds for terminating Father’s parental rights that Father had

abandoned S.B.D.W. under Tenn. Code Ann. section 36-1-113(g)(1). The Tennessee Code defines

abandonment as: 

(1)(A) "Abandonment" means, for purposes of terminating the parental or guardian

rights of parent(s) or guardian(s) of a child to that child in order to make that child

available for adoption, 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(s) or

guardian(s) of the child who is the subject of the petition for termination of parental

rights or adoption, that the parent(s) or guardian(s) 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;

(ii) The child has been removed from the home of the parent(s) or guardian(s)

as the result of a petition filed in the juvenile court in which the child was found to

be a dependent and neglected child, as defined in § 37-1-102, and the child was

placed in the custody of the department or a licensed child-placing agency, that the

juvenile court found, or the court where the termination of parental rights petition is

filed finds, that the department or a licensed child-placing agency made reasonable

efforts to prevent removal of the child or that the circumstances of the child's

situation prevented reasonable efforts from being made prior to the child's removal;

and for a period of four (4) months following the removal, the department or agency

has made reasonable efforts to assist the parent(s) or guardian(s) to establish a

suitable home for the child, but that the parent(s) or guardian(s) have made no

reasonable efforts to provide a suitable home and have demonstrated a lack of

concern for the child to such a degree that it appears unlikely that they will be able

to provide a suitable home for the child at an early date;

(iii) A biological or legal father has either willfully failed to visit or willfully

failed to make reasonable payments toward the support of the child's mother during

the four (4) months immediately preceding the birth of the 

child; provided, that in no instance shall a final order terminating the parental rights

of a parent as determined pursuant to this subdivision (iii) be entered until at least

thirty (30) days have elapsed since the date of the child's birth;

(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 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 which exhibits a wanton

disregard for the welfare of the child; or
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(v) The child, as a newborn infant aged seventy-two (72) hours or less, was

voluntarily left at a facility by such infant's mother pursuant to § 68-11- 255; and, for

a period of thirty (30) days after the date of voluntary delivery, the mother failed to

visit or seek contact with the infant; and, for a period of thirty (30) days after notice

was given under § 36-1-142(e), and no less than ninety (90) days cumulatively, the

mother failed to seek contact with the infant through the department or to revoke her

voluntary delivery of the infant.

(B) For purposes of this subdivision (1), "token support" means that the

support, under the circumstances of the individual case, is insignificant given the

parent's means;

(C) For purposes of this subdivision (1), "token visitation" means that the

visitation, under the circumstances of the individual case, 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;

(D) For purposes of this subdivision (1), "willfully failed to support" or

"willfully failed to make reasonable payments toward such child's 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; 

(E) For purposes of this subdivision (1), "willfully failed to visit" means the

willful failure, for a period of four (4) consecutive months, to visit or engage in more

than token visitation;

(F) Abandonment may not be repented of by resuming visitation or support

subsequent to the filing of any petition seeking to terminate parental or 

guardianship rights or seeking the adoption of a child; and

(G) "Abandonment" and "abandonment of an infant" do not have any other

definition except that which is set forth in this section, it being the intent of the

general assembly to establish the only grounds for abandonment by statutory

definition. Specifically, it shall not be required that a parent be shown to have

evinced a settled purpose to forego all parental rights and responsibilities in order for

a determination of abandonment to be made. Decisions of any court to the contrary

are hereby legislatively overruled;

Tenn. Code Ann. § 36-1-102(1)(Supp. 2004).

At the time of the hearing, Father was incarcerated but participated in the matter by

deposition and was represented by counsel. The trial court found that for a period of greater than

four months prior to his incarceration Father willfully had failed to visit or support S.B.D.W. The

trial court further found that “no person has deprived [Father] of visitation with his child, nor kept

him from seeing the child or exercising visitation with his child.” The court additionally determined

that termination of Father’s parental rights was in the best interests of S.B.D.W. The trial court

terminated Mother and Father’s parental rights and granted K.W. and R.W.’s petition for adoption.
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 Father does not deny that he failed to visit or support S.B.D.W. for at least four months prior

to his incarceration, but contends his failure to do so was not willful. Father asserts that P.B., who

had legal custody of S.B.D.W., refused to allow him onto her property, with the exception of one

visit, and refused to permit him to take the child. Father testified that he spoke to S.B.D.W. on the

telephone several times while S.B.D.W. was visiting with Mother. Petitioners, on the other hand,

assert Father has had almost no contact with S.B.D.W. practically since her birth. They assert Father

made only one attempt to visit S.B.D.W. at P.B.’s home in December 2002. P.B. testified that she

was fearful of allowing Father, who was co-habitating with his ex-wife’s much younger daughter,

whom he had raised from the age of five, to take S.B.D.W. away from her home unsupervised.

Petitioners assert Father was not prevented from visiting S.B.D.W. at P.B.’s home. They further

submit that Father never called to see S.B.D.W. or to inquire about her, never supported the child,

and failed to send her even a single piece of mail. 

Having reviewed the entire record in this case, we find clear and convincing evidence

supports the judgment of the trial court. The record establishes that Father has been incarcerated

frequently and that, before going to live with K.W. and R.W., S.B.D.W. had been in the care of P.B.

almost since birth. Father’s deposition testimony establishes that Father made no attempt to support

S.B.D.W. and, with the exception of one half-hour visit in December 2002, made no attempt to visit

her. Although Father contends that P.B. stated that he was not welcome on her property, Father does

not assert that he attempted to visit S.B.D.W. and was denied the opportunity. 

The trial court further found that termination of Father’s parental rights and adoption of

S.B.D.W. by K.W. and R.W. are in the best interest of S.B.D.W. Father does not submit that the

trial court erred in this determination and, having reviewed the record, we agree that termination of

Father’s parental rights is in S.B.D.W.’s best interest. We accordingly affirm termination of Father’s

parental rights based on abandonment as defined by Tenn. Code Ann. Section 36-1-102(1)(A)(iv).

Holding 

In light of the foregoing, we affirm termination of Father’s parental rights to S.B.D.W. Cost

of this appeal are taxed to the Appellant, and his surety, for which execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE