IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 13, 2020 Session

IN RE AVAGALINE S.

Appeal from the Chancery Court for Hawkins County

No. 2019-AD-8 Douglas T. Jenkins, Chancellor

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No. E2020-00222-COA-R3-PT

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In this termination of parental rights case, Appellant Mother appeals the trial court’s 

termination of her parental rights to the minor child on the ground of failure to manifest an 

ability and willingness to parent the child, Tenn. Code Ann. § 36-1-113(g)(14). Similarly, 

Appellant Father appeals the trial court’s termination of his parental rights on the grounds 

of: (1) abandonment by failure to visit, Tenn. Code Ann. § 36-1-113(g)(1); (2) 

abandonment by failure to support, Tenn. Code Ann. § 36-1-113(g)(1); and (3) failure to 

manifest an ability and willingness to parent the child, Tenn. Code Ann. § 36-1-113(g)(14). 

Appellants also appeal the trial court’s finding that termination of their parental rights is in 

the child’s best interest. Because the record does not support grounds for termination of 

Appellants’ parental rights, we reverse the trial court’s order concerning same. 

Accordingly, the issue of whether termination is in the Child’s best interest is pretermitted.

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

Reversed, and Remanded

KENNY ARMSTRONG,J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and KRISTI M. DAVIS, J., joined.

William E. Phillips, II, Rogersville, Tennessee, for the appellant, Joshua S.1

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Brittany S.

Jefferson B. Fairchild, Rogersville, Tennessee, for the appellees, Dale S. and Jonna S.

 

1

In cases involving a minor child, it is the policy of this Court to redact the parties’ names to protect 

their identities.

12/11/2020
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OPINION

I. Background

Appellant Brittany S. (“Mother”) and Appellant Joshua S. (“Father,” and together 

with Mother, “Appellants”) are the unmarried biological parents of Avagaline S. (d/o/b 

June 2011) (the “Child”).2 Appellee Jonna S. (“Grandmother”) and Appellee Dale S.

(“Grandfather,” and together with Grandmother, “Appellees”) are the Child’s maternal 

grandparents. The Child and Mother lived with Appellees after the Child’s birth. In April 

2012, when the Child was approximately 10 months old, Appellees became concerned 

Mother was abusing illegal drugs. As a result, they filed an emergency petition for custody 

and were awarded legal and physical custody of the Child.

3

 Despite the change in custody, 

Mother continued to live with Appellees and the Child. Father resided in Tennessee before 

moving to Oklahoma and Missouri for a brief period of time, ultimately returning to 

Tennessee around 2015. Father visited the Child from her birth. However, in April 2016, 

Appellees unilaterally decided to deny him any further visitation. It is undisputed that 

Father has not visited the Child since April 2016. However, the parties dispute whether 

Father financially supported the Child during this time. 

On May 5, 2017, Father filed a pro se petition for custody of the Child in the 

Hawkins County Juvenile Court (“juvenile court”). On June 9, 2017, the petition was 

served on Appellees. On June 19, 2017, Appellees filed a petition to terminate Appellants’ 

parental rights and for adoption (“original petition”) in the Hawkins County Chancery 

Court (“trial court”), effectively staying Father’s custody proceeding. By order of June 26, 

2017, the juvenile court transferred Father’s custody matter to the trial court. On July 11, 

2017, Father filed his answer to the original petition. If Mother filed an answer to the 

original petition, it is not within our record. 

During this time, Mother continued to live with Appellees and the Child. However, 

in January 2018, Mother moved in with Father. Thereafter, in May 2018, Mother gave

birth to Appellants’ second child, Alexander S., who is not a subject of this appeal. Mother 

and Father continue to live together with Alexander.

On September 13, 2018, for reasons not found in the record, Appellees voluntarily 

nonsuited the original petition. However, on February 13, 2019, Appellees filed another 

petition to terminate Appellants’ parental rights and for adoption on the grounds of: (1) 

abandonment by failure to visit; (2) abandonment by failure to support; and (3) failure to 

manifest an ability and willingness to assume custody. Appellees also alleged that 

 

2 We note that the Child’s birth certificate shows her name is spelled “Avangaline,” and this is also 

how Father spelled it in his petition for custody of the Child. However, because the parties have spelled 

her name “Avagaline” throughout litigation, we adopt this spelling in our opinion.

3 Absent from our record is any order awarding custody of the Child to Appellees. However, it 

appears undisputed that Appellees have retained custody of the Child since this time.
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termination of Appellants’ parental rights was in the Child’s best interest. A guardian ad 

litem (“GAL”) was appointed for the Child, and counsel was appointed to represent 

Mother. Father retained his own counsel. On June 6, 2019, Father filed his amended 

answer in which he asserted his affirmative defenses that any failure on his part to visit or 

support the Child was not willful. Similarly, on December 16, 2019, Mother filed her 

answer and asserted the same affirmative defenses.

The trial court heard Appellees’ petition on December 17, 2019. All four parties 

testified at trial, and the following were admitted into evidence: (1) Appellees’ marriage 

certificate and the Child’s birth certificate and social security card; (2) three juvenile court 

orders from 2013; (3) Father’s May 5, 2017 juvenile court petition; (4) certified letter 

receipts with Grandmother’s signature; (5) a copy of the juvenile court file from Father’s 

custody matter; (6) Walmart money transfer receipts; (7) photographs of Mother and the 

Child; (8) carbon copies of Father’s checks to Appellees; and (9) Father’s empty checkbook 

with deposit slips. 

On January 13, 2020, the trial court issued its oral ruling, which it incorporated into 

its written order of February 4, 2020. The trial court found clear and convincing evidence 

to terminate Father’s parental rights on the grounds of: (1) abandonment by failure to visit; 

(2) abandonment by failure to support; and (3) failure to manifest an ability and willingness 

to assume custody. The trial court also found clear and convincing evidence to terminate 

Mother’s parental rights on the ground of failure to manifest an ability and willingness to 

assume custody.4 Finally, the trial court found, by clear and convincing evidence, that 

termination of Appellants’ parental rights is in the Child’s best interest. Mother and Father 

appeal.

II. Issues

We state the dispositive issues as follows:

1. Whether there is clear and convincing evidence to support at least one of the 

grounds relied upon by the trial court to terminate each Appellant’s respective 

parental rights.

2. Whether termination of Appellants’ respective parental rights is in the Child’s best 

interest.

III. Standard of Review

The Tennessee Supreme Court has previously explained that:

 

4 The trial court did not find clear and convincing evidence to terminate Mother’s parental 

rights on the grounds of abandonment by failure to visit or support.
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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 

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) the 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. § 36-1-113(c); In re Valentine, 79 S.W. 3d at 546. Clear and convincing 

evidence “establishes that the 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 of parental rights 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 
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S.W.3d 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 A.M.H., 215 S.W.3d 793, 809 (Tenn. 

2007)). The Tennessee Supreme Court has explained that:

The trial court’s ruling that the evidence sufficiently supports termination of 

parental rights is a conclusion of law, which appellate courts review de novo 

with no presumption of correctness. In re M.L.P., 281 S.W.3d at 393 

(quoting In re [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.3d at 524.

IV. Grounds for Termination

A. Abandonment by Father

The trial court found, by clear and convincing evidence, that Father’s parental rights 

should be terminated on the ground of abandonment by failure to visit and failure to 

support. We begin our analysis with a discussion of the ground of abandonment generally. 

In pertinent part, Tennessee Code Annotated section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights may be based 

upon any of the grounds listed in this subsection (g). The following grounds 

are cumulative and nonexclusive, so that listing conditions, acts or omissions 

in one ground does not prevent them from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in § 36-1-102, 

has occurred;

Tenn. Code Ann. § 36-1-113(g)(1). As is relevant to Father, Tennessee Code Annotated 

section 36-1-102 defines “abandonment,” in relevant part, as follows:

(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 . . . petition to terminate the parental rights of the parent 

or parents . . . of the child who is the subject of the petition for 

termination of parental rights or adoption, that the parent or parents . . 

. either have failed to visit or have failed to support or have failed to 
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make reasonable payments toward the support of the child;

***

(D) For purposes of this subdivision (1), “failed to support” or “failed to 

make reasonable payments toward such child’s support” means the failure, 

for a period of four (4) consecutive months, to provide monetary support or 

the failure to provide more than token payments toward the support of the 

child. That the parent had only the means or ability to make small payments 

is not a defense to failure to support if no payments were made during the 

relevant four-month period;

(E) For purposes of this subdivision (1), “failed to visit” means the failure, 

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

token visitation. That the parent had only the means or ability to make very 

occasional visits is not a defense to failure to visit if no visits were made 

during the relevant four-month period;

Tenn. Code Ann. § 36-1-102(1)(A)(i), (1)(D), (1)(E). 

Prior to 2018, the statutory definition of abandonment placed the burden of proof 

on the petitioner to show that the parent’s failure to visit or failure to support was “willful.” 

However, in 2018, the General Assembly amended the statute to shift the burden of proof 

to the parent or guardian to show that his or her failure to support or visit was not willful. 

For cases filed on or after July 1, 2018, Tennessee Code Annotated section 36-1-102(1)(I)

now provides that:

For purposes of this subdivision (1), it shall be a defense to abandonment for 

failure to visit or failure to support that a parent or guardian’s failure to visit 

or support was not willful. The parent or guardian shall bear the burden of 

proof that the failure to visit or support was not willful. Such defense must 

be established by a preponderance of evidence. The absence of willfulness is 

an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of Civil 

Procedure . . . .

Tenn. Code Ann. § 36-1-102(1)(I). Here, Appellees filed their petition on February 13, 

2019; accordingly, Father had the burden to prove, by a preponderance of the evidence,

that his failure to visit or support the Child was not willful. 

Concerning willfulness in the context of abandonment for termination of parental 

rights purposes, this Court has stated: 
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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. . . .

The willfulness of particular conduct depends upon the actor’s intent. Intent 

is seldom capable of direct proof, and triers-of-fact lack the ability to peer 

into a person’s mind to assess intentions or motivations. Accordingly, triersof-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. Aug. 25, 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 . . . is a

question of law.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing 

In re A.M.H., 215 S.W.3d at 810). As previously discussed, this Court reviews questions 

of fact de novo with a presumption of correctness unless the evidence preponderates 

otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 523-24. We review 

questions of law de novo with no presumption of correctness. In re Adoption of Angela 

E., 402 S.W.3d at 640 (citing In re A.M.H., 215 S.W.3d at 810). With the foregoing in 

mind, we turn to address whether Father abandoned the Child.

1. Failure to Visit

It is undisputed that Father did not visit the Child during the four months preceding 

the filing of the termination petition. Therefore, Father had the burden at trial of proving, 

by a preponderance of the evidence, that his failure to visit was not willful. See Tenn. Code 

Ann. § 36-1-102(1)(I). Concerning willfulness, Father alleged two defenses: (1) Appellees 

prevented him from visiting the Child; and (2) despite Appellees’ efforts, Father continued 

to pursue custody of the Child through his petition in the juvenile court. We address each 

defense in turn.

The trial court failed to make any findings concerning Father’s first defense that 

Appellees thwarted his visits with the Child. After an extensive review of the record, we 

conclude that Father proved, by a preponderance of the evidence, that Appellees not only 

prevented him from visiting the Child, but also attempted to wholly remove Father from 

the Child’s life.

Turning to the record, it is clear that Appellees tried to eliminate Father from the 

Child’s life. Father visited the Child and was developing a relationship with her until April 
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2016. Around this time, Father visited the Child in Appellees’ home where he stayed for 

a week-long visit. At trial, Grandmother admitted that there were no problems with 

Father’s week-long visitation as it concerned the Child; however, Grandmother and 

Grandfather believed Father stole from them during this visit (Father denied this), which 

prompted Appellees to forbid Father from entering their property. Grandmother admitted 

that Father is not allowed in her home “because he stole from [them] . . . [but that] it has 

nothing to do with . . . [the Child].” 

Despite Grandmother’s concession that there were no problems concerning Father’s 

visit with the Child, after said visit, Appellees prohibited Father from seeing the Child. 

Father testified that, soon after this visit, he contacted Appellees and was told that 

Appellees would file harassment charges against him if he ever contacted them again. 

Mother testified that she stopped asking Appellees if Father could visit the Child because 

it was understood that he was not permitted any visitation. Appellees not only forbade 

Father from in-person visitation, but also from speaking with the Child on the telephone. 

Father testified to a recent incident where Mother was video chatting with the Child when 

the camera lens switched around to where the Child could see Father on the screen. 

Grandmother saw Father on the screen and immediately ended the call. Grandmother 

testified that she took the phone away from the Child and ended the call because “[the 

Child] didn’t know who she was talking to.”5 Father is prevented from not only speaking 

with the Child on the telephone, but from even listening to the Child’s telephone calls with 

Mother. Mother testified that, if Grandmother hears Mother speaking with the Child on 

speakerphone, Grandmother will order Mother to take the telephone off speaker “because 

[Father]’s not allowed to hear [the Child],” a demand that is certainly most cruel. In 

addition to limiting any interaction between Father and the Child, Appellees have also 

prevented the Child from knowing anything about her father. According to Mother, she is 

prohibited from mentioning Father’s name in Appellees’ or the Child’s presence. Mother 

is also forbidden from referring to Father as the Child’s or Alexander’s father, and she has 

resorted to calling him her “roommate.” 

Remarkably, Appellees have independently removed Father from the Child’s life, 

absent any court order according them such power. At trial, Appellees relied on 2013 

juvenile court orders for their authority to unilaterally remove Father’s visitation. The three 

juvenile court orders, dated April 30, 2013, May 16, 2013, and November 14, 2013, were 

entered into evidence at trial.

6

 The orders addressed only Father’s visitation with the Child. 

One of the orders required Father to undergo an Alcohol and Drug Assessment; and two of 

the orders required Father to submit to a hair follicle test. The final order provided that 

Father’s parents would supervise his visitation with the Child. At trial, both Appellees 

 

5 Contrary to Grandmother’s testimony, the record demonstrates that the Child does indeed know

who Father is and that he is her father.

6

It appears these orders stem from the emergency petition Appellees filed in 2012. The orders are 

not related to Father’s custody petition in the juvenile court.
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testified that they would have allowed Father to visit had he complied with court orders 

and obtained a drug test. 

The problem with Appellees’ reliance on these orders is two-fold. First, there are 

potential due process issues with the orders. There is no proof that Father was even a party 

to the underlying custody proceeding from which the orders originated. Indeed, Father 

testified at trial that he was living in Missouri at the time the orders were entered. Similarly, 

there is no proof that Father ever received notice of the orders as none of the orders contain 

a certificate of service. Father’s testimony at trial demonstrated that he was unaware of his 

responsibilities under the orders. When asked if he submitted to an Alcohol and Drug 

Assessment, Father’s response was: “When was I ordered to take an Alcohol and Drug 

Assessment?” 

Assuming, arguendo, that Father received notice of the 2013 orders, the orders still 

did not grant Appellees the right, without court approval, to unilaterally halt Father’s 

visitation. See generally In re Justin P., No. M2017-01544-COA-R3-PT, 2018 WL 

2261187, at *4 (Tenn. Ct. App. May 17, 2018) (explaining that the trial court erred when 

it found that the parties’ parenting plan gave the father the right to curtail the mother’s 

visitation without court approval). Importantly, the November 14, 2013 order specifically 

provided, in pertinent part, that the “[c]ourt reserve[d] the ruling on suspending visitation 

with [Father] at this time.” There is simply nothing in the record to establish Appellees’ 

authority to end Father’s visits with the Child. See Id. at *5. Yet, Appellees independently

terminated, not only Father’s visitation with the Child, but any form of communication 

with her. 

Finally, we note that Appellees’ reliance at trial on the 2013 orders is contradicted 

by their own actions. The record shows that Father continued to see the Child after the 

2013 orders were entered, presumably without completing the requirements in the orders. 

Therefore, it appears that Appellees rely on the 2013 orders only when it benefits them, i.e. 

when they want to terminate: (1) Father’s visitation with the Child; and (2) his parental 

rights based on his failure to visit. Appellees use their legal status as the Child’s custodians 

as both a shield, preventing them from allowing Father visitation with the Child, and as a 

sword, to demonstrate a ground for termination of his parental rights due to his lack of 

visitation. See In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *8 

(Tenn. Ct. App. July 22, 2020).

However, “Tennessee law makes clear that a [custodian] cannot significantly 

interfere with the noncustodial parent’s visitation and still rely on the ground of failure to 

visit to terminate parental rights.” In re Braelyn S., 2020 WL 4200088, at *8 (citing In re 

S.M., 149 S.W.3d 632, 642 n.18 (Tenn. Ct. App. 2004)). Indeed, time and again Tennessee 

courts have held that “a parent who attempted to visit and maintain relations with his child, 

but was thwarted by the acts of others and circumstances beyond his control, did not 

willfully abandon his child.” In re A.M.H., 215 S.W.3d at 810 (citing In re Swanson, 2 
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S.W.3d 180, 189 (Tenn. 1999)); In re Braelyn S., 2020 WL 4200088, at *8; In re Justin 

P., 2018 WL 2261187, at *6; In re Adoption of T.Z.T., No. M2007-00273-COA-R3-PT, 

2007 WL 3444716, at *5 (Tenn. Ct. App. Nov. 15, 2007). This is because a “parent’s 

efforts to support or develop a relationship with a child” are significantly restrained when 

another individual blocks access to the child or “vigorously resist[s] a parent’s efforts to 

visit the child. . . .” In re S.M., 149 S.W.3d at 642 n.18. (internal citations omitted); see 

also In re Braelyn S., 2020 WL 4200088, at *8; In re Justin P., 2018 WL 2261187, at *4.

Recalling that Father’s burden was by a preponderance of the evidence, Tenn. Code 

Ann. § 36-1-102(1)(I), we conclude that he has proven that it “is more likely true than not 

true,” that his failure to visit was not willful because Appellees blocked his access to the 

Child. In re Braelyn S., 2020 WL 4200088, at *8 (internal citations omitted) (“Proving an 

allegation by a preponderance of the evidence requires a litigant to convince the trier-offact that the allegation is more likely true than not true.”). See also In re S.M., 149 S.W.3d 

at 642 n.18 (internal citations omitted); In re Justin P., 2018 WL 2261187, at *4. There 

is ample evidence in the record that the only reason Father stopped asking to visit his Child 

was because he was threatened with harassment charges, and it was understood that 

Appellees forbid him from visiting her. While Appellees rely on the 2013 juvenile court 

orders as justification for suspending Father’s visits, it is apparent that Appellees’ contempt 

for Father was the driving force behind their refusal to allow him to visit the Child. 

The record clearly demonstrates that Appellees have a great deal of animosity 

toward Father.7 At trial, Grandmother admitted that she “do[es] not like [Father],” and her 

disdain for him radiated throughout the pages of her testimony in the trial transcript.8 “The 

Tennessee Supreme Court has held that antagonism between biological parents and legal 

guardians may excuse a failure to visit.” In re Justin P., 2018 WL 2261187, at *6 (citing 

In re A.M.H., 215 S.W.3d at 810 (“Where, as here, the parents’ visits with their child have

resulted in enmity between the parties . . . the evidence does not support a ‘willful failure 

to visit’ as a ground for abandonment.”)). Here, Father’s failure to visit the Child is 

excused because Appellees’ behavior “constitute[d] a significant restraint or interference 

with [his] attempts to visit the [C]hild.” In re M.L.P., 281 S.W.3d at 393 (citing In re 

Audrey S., 182 S.W.3d at 864). Thus, we conclude that Father has proven his defense, by 

a preponderance of the evidence, that Appellees thwarted his visitation with the Child such 

 

7 Such animosity seems one-sided. At trial, Father testified that he doesn’t “necessarily not like 

[Appellees]. [He’s] extremely grateful for what they’ve done for [his] daughter,” but he does not appreciate 

their blocking his visitation.

8 During trial, Grandmother made several sarcastic remarks at Father’s expense. For example, in 

one line of questioning, she was asked if she knew whether Father had ever been charged with a crime, to 

which she responded: “Only because he hasn’t been caught.” When asked why Grandmother rolled her

eyes when she indicated that Father is Alexander’s biological father, she testified: “Because he keeps 

knocking up my daughter.” As further proof of Appellees’ contempt for Father, the record shows that 

Appellees would throw away his gifts to the Child if they knew the gifts came from Father. As a result, 

Father would give Mother his gifts, which she would pass along to the Child. 
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that his failure to visit her was not willful. Accordingly, we turn to Father’ssecond defense, 

i.e., that his failure to visit cannot be willful because he was pursuing custody of the Child 

in juvenile court before the termination petition was filed.

Appellees’ harmful behavior, discussed at length supra, motivated Father to file his

custody petition. In his own words, Father filed the petition because he was “tired of not 

being able to see [his] daughter.” Despite this evidence, the trial court found that

. . . [Father] has not visited at all and [Father]’s defense to that is I filed a 

petition to visit back in ’17. But the [c]ourt finds that [Father]’s filing of that 

is – I think was done in a moment of anger or kind of spur of the moment. 

He’s made no real effort to follow through on it that the [c]ourt can see and 

it looks to be a bit pretentious on his part. He’s not visited, he’s not filed 

anything in court that he actually followed through with sufficient to amount 

to the defense. And I believe that that ground is sustained by clear and 

convincing evidence.

There is simply nothing in the record to support the trial court’s finding that Father’s filing 

of his custody petition was a “spur of the moment” decision. Equally puzzling is the trial 

court’s statement that Father’s petition was “a bit pretentious on his part.” There is 

absolutely no proof that Father’s actions were motivated by anything other than his desire 

to see his Child. Further, the trial court’s finding that Father failed to follow through with 

the petition is also unsupported by the record because Appellees’ filing of the termination 

petitions effectively prevented Father from litigating his custody petition. 

Rather than surrender to Appellees’ efforts to sever his relationship with the Child, 

Father proactively sought the juvenile court’s assistance in establishing custody. See In re 

Chelbie F., No. M2006-01889-COA-R3-PT, 2007 WL 1241252, at *6 (Tenn. Ct. App. 

Apr. 27, 2007). As discussed, supra, on May 5, 2017, Father filed his pro se petition for 

custody with the juvenile court. The record reflects that Appellees received notice of 

Father’s petition on June 9, 2017. Although Grandmother’s signature appears on the 

certified letter receipt for the petition for custody, she denied receiving it. However, 

Grandfather testified that Appellees received the petition and immediately sought an 

attorney. The hearing on Father’s petition for custody was scheduled for June 29, 2017. 

However, on June 19, 2017, ten days before the hearing, Appellees filed the original 

petition to terminate Appellants’ parental rights and for adoption. 

By statute, the filing of Appellees’ petition suspended Father’s petition for custody 

of the Child and transferred the matter from the juvenile court to the trial court. Tenn. 

Code Ann. § 36-1-116 (f)(2) (“[A]ny proceedings that may be pending seeking the custody 

. . . of the child or visitation with the child who is in the physical custody of the petitioners 

on the date the petition is filed . . . shall be suspended pending the court’s orders in the 

adoption proceeding, and jurisdiction of all other pending matters concerning the child . . . 
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shall be transferred to and assumed by the adoption court.”); see also Tenn. Code Ann. § 

37-1-103 (c) (explaining, in part, that the juvenile court retains jurisdiction over a case filed 

in its court until a petition for adoption is filed as explained in Tennessee Code Annotated 

section 36-1-116(f)). Nevertheless, the trial court found, that Father failed to act on his 

custody petition. However, the record shows that Father only had a short period of time in 

which he could have acted. Appellees’ original petition for termination and adoption was 

pending from June 19, 2017 through September 13, 2018, when Appellees nonsuited it. 

Five months later, on February 13, 2019, Appellees filed the second petition for termination 

and adoption, which is the subject of this appeal. Therefore, the only period of time in 

which Father could have pursued his petition for custody was the five months between 

Appellees’ nonsuit of the original petition and their filing of the second petition. 

While Father has been consistently represented by counsel in the termination and 

adoption proceedings, he filed his petition for custody pro se and has never been 

represented by counsel in that matter. The record shows that Father misunderstood and 

was unaware of the procedures to follow in the juvenile court after the nonsuit of the 

original petition. Even at trial, Father remained confused regarding the proper procedure 

and testified that he “didn’t understand that [he] had to go back and file another petition 

for custody.” When it was explained that Father was not required to file another petition, 

but to ask the juvenile court for a hearing, Father testified that he did not know that was 

required. He explained that he thought his petition for custody “would start to go back into 

effect” once the termination and adoption case ended, and by the time he realized that was 

not the proper procedure, Appellees had filed their second petition for termination and 

adoption, which again suspended Father’s custody lawsuit.

Father was clearly pursuing a petition to establish custody of the Child before the 

termination and adoption petitions were filed. “His pursuit of a judicial remedy is 

inconsistent with a finding that he willfully failed to . . . visit [the Child] during the four 

months immediately preceding the filing of the petition.” In re Chelbie F., 2007 WL 

1241252, at *6; see also In re A.M.H., 215 S.W.3d at 810 (“[W]here the parents redirect 

their efforts at maintaining a parent-child relationship to the courts the evidence does not 

support a ‘willful failure to visit’ as a ground for abandonment.”). The record shows that 

the only time in which Father could have actively pursued his petition was the five months 

between the nonsuit of the original petition and the filing of the second petition for 

termination and adoption. We decline to conclude that Father’s failure to pursue the 

custody petition during this five-month period constituted his willful abandonment of the 

Child. Cf. In re Adoption of Angela E., 402 S.W.3d at 638-39; 642 (concluding that the

father willfully failed to visit his children when he filed a petition to reinstate his visitation 

rights in July 2003 but never acted on it before the mother filed a termination petition in 

July 2005). It appears Father was simply unaware that he was required to approach the 

juvenile court concerning another hearing on his custody petition. Accordingly, we 

conclude that Father has proven his defense, by a preponderance of the evidence, that his 

failure to visit the Child was not willful as shown by his pursuit of custody during the 
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relevant time period. Because Father met his burden to show his failure to visit was not 

willful, we reverse the trial court’s termination of Father’s parental rights on the ground of 

abandonment by failure to visit, and we turn to the question of whether Father abandoned 

the Child by failing to support her.

2. Failure to Support

The trial court found that Father abandoned the Child by failing to support her in 

the four months preceding the filing of Appellees’ second termination petition, to-wit: 

With respect to failure to support, [Father] shows a checkbook where he 

claims that he wrote out a bunch of checks—he wrote out the checks every 

so often and sent them over to [Appellees]. [Appellees] denied ever 

receiving them and [Father] agreed that they never went to the bank. [Father] 

agrees that he was certainly able to support the [C]hild but his efforts to 

support this [c]ourt does not find are entirely credible, do not amount to the 

defense in the [c]ourt’s mind because this [c]ourt can’t find that it was 

actually proven. So the [c]ourt sustains the uncontested part of the ground, 

which is that he did not support. The [c]ourt believes by clear and convincing 

evidence that it’s willful because his defense is not in the [c]ourt’s mind 

entirely credible. 

Contrary to the trial court’s finding that it is uncontested that Father failed to support the 

Child, Father, on appeal, “asserts unequivocally that he did pay support to [Appellees].” 

Citing In re M.J.B., Father alleges that he “has not voluntarily and intentionally chosen 

not to provide financial support for his daughter.” 140 S.W.3d at 654 (“Terminating 

parental rights based on failure to support presupposes (1) that the parent is aware of his or 

her duty to support, (2) that the parent is able to provide financial support, either through 

income from private employment or qualification for government benefits, and (3) that the 

parent has voluntarily and intentionally chosen not to provide financial support without a 

justifiable excuse.”). 

The record substantiates Father’s argument. After April 2016, when Appellees 

severed Father’s contact with the Child, he attempted to support his daughter, but Appellees 

again thwarted his efforts. At trial, Father testified that he “tried to send money to 

[Grandmother] . . . and was told that she didn’t want [his] money . . . so [he] sent it to 

[Mother] instead” because Mother was living with Appellees and the Child at the time. 

Mother corroborated Father’s testimony when she testified that Appellees informed her

they would not accept support from Father because Appellees believed doing so would 

entitle Father to visitation, and they did not want him to have visitation with the Child. The 

record confirms Father’s testimony that he sent support to Mother when Grandmother 

rebuffed his attempt. Both Mother and Father testified that, from 2016 through January 

2018, Father sent Mother weekly Walmart-to-Walmart money transfers with the 
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understanding that such funds would go toward supporting the Child. The receipts for 

these transfers were entered as an exhibit at trial. 

Father also testified that, after Appellees dismissed the original termination petition

in September 2018, on the advice of counsel, he began writing and mailing weekly checks 

to Appellees as support payments for the Child, but these checks never cleared his account. 

Father admitted carbon copies of the checks as an exhibit at trial; the first check is dated 

October 12, 2018, and the checks continue through the filing of Appellees’ second petition 

for termination. Father testified that he kept the carbon copies of the checks, as well as the 

receipts from the Walmart money transfers, to show that he was trying to support the Child,

but Appellees would not let him. 

Appellees’ only proof that Father failed to support the Child was their testimony 

that they never received support from Father, a claim that is most disingenuous. Rather, 

the proper statement would be that Appellees never accepted Father’s support because they 

feared doing so would result in his visitation with the Child. The record shows that Father 

tendered support; if such payments failed to reach the Child, it was due to Appellees’ 

actions, not Father’s. Appellees cannot now rely on their misbehavior as justification for 

terminating Father’s parental rights. Just as a custodial parent “cannot significantly 

interfere with [a] noncustodial parent’s visitation and still rely on the ground of failure to 

visit to terminate parental rights,” In re Braelyn S., 2020 WL 4200088, at *8, neither can 

a custodial parent significantly interfere with a noncustodial parent’s support and still rely 

on the ground of failure to support to terminate parental rights. See In re S.M., 149 S.W.3d 

at 642 n.18; In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 

22794524, at *5.

Upon extensive review of the record, we conclude that the evidence preponderates 

against the trial court’s finding that Father failed to support the Child. See In re Adoption 

of Angela E., 402 S.W.3d at 640 (citing In re A.M.H., 215 S.W.3d at 810); Tenn. R. App. 

P. 13(d); In re Carrington H., 483 S.W.3d at 523-24. Father’s and Mother’s testimony, 

along with the Walmart transfer receipts and the carbon copies of Father’s checks, which 

he wrote and mailed during the four months preceding the filing of the termination petition, 

demonstrate Father’s financial support of the Child. We cannot fault Father for Appellees’ 

actions upon receipt of said support. 

Even assuming, arguendo, that Father failed to support the Child, for all the reasons 

discussed, supra, Father proved, by a preponderance of the evidence, that his failure was 

not willful because Appellees thwarted his attempts. Further, Father’s petition for custody 

of the Child also serves as proof that his failure to support her was not willful. As 

discussed, supra, the Tennessee Supreme Court concluded it was inconsistent to find that 

biological parents willfully failed to visit their child when the parents redirected their 

“efforts at maintaining a parent-child relationship” to the courts. In re A.M.H., 215 S.W.3d 

at 810. This Court has applied the same logic to a parent’s failure to support a child, to-
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wit: “Based on our reasoning of the Tennessee Supreme Court’s decision in In re [A.M.H.], 

we have no reason to conclude that the same principle should not be applied to willful 

failure to support claims when a party is actively seeking to establish a child support 

payment.” In re Chelbie F., 2007 WL 1241252, at *6 (citing In re A.M.H., 215 S.W.3d 

at 810). Father implicitly sought financial responsibility of the Child through his petition 

for custody. Therefore, based on the foregoing, the trial court should have inferred from 

Father’s actions and conduct, that he intended to support the Child, and that any failure to 

do so was not willful on his part. See In re Audrey S., 182 S.W.3d at 864 (“The willfulness 

of particular conduct depends upon the actor’s intent, [which] is seldom capable of direct 

proof . . . . Accordingly, triers-of-fact must infer intent from the circumstantial evidence, 

including a person’s actions or conduct.”). Because any failure on Father’s part to support 

the Child was not willful, we reverse the trial court’s termination of his parental rights on

the ground of abandonment by failure to support. 

B. Failure to Manifest an Ability and Willingness to Assume Custody

The trial court terminated both Appellants’ parental rights under Tennessee Code 

Annotated section 36-1-113(g)(14), which provides for termination when 

[a] parent or guardian has 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 the person’s legal and 

physical custody would pose a risk of substantial harm to the physical or 

psychological welfare of the child[.]

Tenn. Code Ann. § 36-1-113(g)(14). This ground required Appellees to establish two 

separate elements by clear and convincing evidence. In re Maya R., No. E2017-01634-

COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018) (citation omitted). 

First, that Mother or Father “failed to manifest ‘an ability and willingness to personally 

assume legal and physical custody or financial responsibility of the child.’” Id. (quoting 

Tenn. Code Ann. § 36-1-113(g)(14)).9 Second, that placing the Child in Mother’s or 

Father’s legal and physical custody would “pose a risk of substantial harm to the physical 

or psychological welfare of the [C]hild.” Id. 

 

9 This Court is split over the proper interpretation of the first prong of Tennessee Code Annotated 

Section 36-1-113(g)(14). See In re Ellie K., No. M2019-01269-COA-R3-PT, 2020 WL 1943522, at *9-11. 

(Tenn. Ct. App. Apr. 23, 2020) (describing the Court’s conflicting views on the first prong of the statute). 

The split concerns whether a parent must fail to manifest both an ability and willingness to assume custody 

or financial responsibility or whether a parent must fail to manifest either an ability or willingness to assume 

custody or financial responsibility. Compare In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 

2447044, at *7 (Tenn. Ct. App. May 31, 2018) with In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 

WL 3058280, at *14 (Tenn. Ct. App. June 20, 2018). By order of June 15, 2020, the Tennessee Supreme 

Court certified two questions for review on this issue of statutory interpretation involving the first prong of 

Tennessee Code Annotated section 36-1-113(g)(14). See In re Nevaeh M., M2019-00313-SC-R11-PT.
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Here, the trial court found, by clear and convincing evidence, that both Appellants 

failed to manifest, by act or omission, an ability and willingness to personally assume legal 

and physical custody or financial responsibility of the Child. Concerning Father, the trial 

court found that he “has no relationship with the Child” and “has not manifested a sustained 

effort to assume legal or physical custody of the [C]hild, or financial responsibility.” For 

the plethora of reasons discussed, supra, if Father has no relationship with the Child, it is 

because of Appellees’ actions. Appellees’ efforts thwarting, not only Father’s bond with 

the Child, but also his attempts to visit and support her, cannot form the basis on which to 

terminate his parental rights. Concerning Mother, the trial court found that she “admitted 

everything that’s required to prove” this ground, “that she’s not really to a place where she 

can take the [C]hild back immediately,” and that “[s]he just doesn’t have the ability to 

personally assume legal and physical custody or financial responsibility of the [C]hild” 

because “[s]he can barely take care of herself.” 

The record simply does not support the trial court’s findings. Rather, Mother and 

Father testified that they are willing and able to receive custody of the Child. The record 

demonstrates that the parents have been working together, as one family unit, to provide 

for their son, Alexander. There can be no greater proof of the parents’ ability to care and 

provide for the Child than their continued care for Alexander. Alexander was born in May 

2018, and he has remained in the custody and care of Mother and Father.10 Father testified 

that he has a stable job, which he had maintained for four years at the time of trial, that

allows him to provide for the family financially. Mother testified that she serves as 

Alexander’s full-time caretaker. 

In Mother’s own words, Appellants have “finally got[ten] on [their] feet.” Indeed, 

Mother admitted at trial that, in April 2012, the Child “needed” to be taken away from her. 

Rather than shy away from her past issues with drug abuse, Mother acknowledged that the 

Child was not safe in her care when Appellees received custody. However, Mother 

testified that she no longer abuses drugs (and has not done so for a few years) and now has 

the ability to care for the Child, as she has cared for Alexander. Similarly, Father testified 

that he neither drinks alcohol nor takes drugs, and that he has “done everything . . . [he] 

can do [to get his] family back together.” Appellees failed to provide any proof to the 

contrary. By Grandfather’s own admission at trial, Appellees have no proof that Alexander

is in danger or that the parents fail to provide for him. As evidence that Appellants desire

to care and provide for both Alexander and the Child, Appellants testified that they signed 

a lease and have purchased furniture for a three-bedroom house with the hopes that they 

would one day receive custody of the Child.

The parents’ ability to continuously care for Alexander, without issue, demonstrates 

 

10 Mother testified that the Department of Children’s Services has never investigated her concerning 

Alexander. Further, Appellees testified that they have not attempted to obtain custody of Alexander. 
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their ability to care for the Child. Further, Appellants’ leasing and furnishing a threebedroom house shows that they have undertaken steps to bring the Child into their home, 

demonstrating their willingness to assume custody of her.

11

 See In re Jonathan M., No. 

E2018-00484-COA-R3-PT, 2018 WL 5310750, at *5 (Tenn. Ct. App. Oct. 26, 2018) 

(“When evaluating willingness, we look for more than mere words.”). Therefore, we 

conclude the trial court erred when it found that Appellants failed to manifest an ability or 

willingness to assume legal and physical custody or financial responsibility of the Child. 

For completeness, we turn to the second prong of analysis, whether placing the 

Child in Appellants’ care “would pose a risk of substantial harm to the physical or 

psychological welfare of the [C]hild.” Tenn. Code Ann. § 36-1-113(g)(14). Concerning 

what constitutes “substantial harm,” we have explained before that 

[t]he courts have not undertaken to define the circumstances that pose a risk 

of substantial harm to a child. These circumstances are not amenable to 

precise definition because of the variability of human conduct. However, the 

use of the modifier “substantial” indicates two things. First, it connotes a 

real hazard or danger that is not minor, trivial, or insignificant. Second, it 

indicates that the harm must be more than a theoretical possibility. While 

the harm need not be inevitable, it must be sufficiently probable to prompt a 

reasonable person to believe that the harm will occur more likely than not.

In re Maya R., 2018 WL 1629930, at *8 (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. 

Ct. App. 2001)). The only evidence Appellees presented regarding this issue, was 

Grandmother’s testimony that she believed the Child would be at risk of physical or 

psychological harm if placed with Mother and Father because “[the Child] would be 

uprooted from the only home that she has lived in.” The trial court relied on Grandmother’s 

testimony, as well as testimony from Mother and Father, when it found that placing the 

Child in Appellants’ legal and physical custody would pose a risk of substantial harm to 

the Child. Concerning Mother’s testimony, the trial court found that Mother “admitted that 

‘ripping the [C]hild away’ from [Appellees] would cause substantial harm . . . to the 

[C]hild.” Similarly, the trial court found that Father testified that “taking [the Child] away 

from her present custodians would traumatize [her] if she were uprooted.”

Respectfully, the trial court mischaracterized Appellants’ testimony. Both 

Appellants’ acknowledged that immediately removing the Child from Appellees’ custody 

would likely be traumatizing to her, as she has lived with Appellees almost her entire life. 

However, neither parent testified that there would be a risk of substantial harm to the Child 

if she was placed in their custody. Rather, Appellants testified that they anticipated a 

gradual transition from Appellees’ custody to theirs, so the Child would be able to adjust 

 

11 We note that Father’s petition for custody of the Child quite obviously also demonstrates his 

willingness to assume legal and physical custody or financial responsibility of the Child.
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to her new home and caretakers. Mother testified that she wanted to assume custody of the 

Child, but that she also wanted to “ease [the Child] into that transition.” She wanted the 

Child “to be able to see [Appellants] and be able to get to re-know [Father] again before” 

fully transitioning her into Appellants’ care. Appellants even had the foresight to rent a 

house that is only three miles from Appellees’ house to help with the Child’s smooth 

transition. Mother testified that she chose a home “very close to [her] parents just in case 

. . . [the Child] spends the night one night and she doesn’t feel comfortable . . . she could 

go right back to [Appellees].” Similarly, Father testified that he did not believe the Child 

would be traumatized as long as she was gradually transitioned into Appellants’ lives. To 

the contrary, Father believed that it would benefit the Child to be placed in his custody 

because he is “a willing father” who wants to be part of her life. 

Contrary to Grandmother’s opinion and the trial court’s findings, the record does 

not support the conclusion that placing the Child in Appellants’ custody would pose a risk 

of substantial harm to her physical or psychological welfare. Rather, the record shows that

Appellants would provide the Child with the love and care she deserves. Appellants are 

loving parents who have worked hard to overcome past obstacles to create a loving and 

supportive family unit. Both Appellants love and care for Alexander, and desire to 

welcome the Child into their home to complete their family. Indeed, it is undisputed that 

Mother and the Child are deeply bonded to one another. Grandmother admitted that 

removing Mother from the Child’s life “would absolutely devastate” the Child. Further, 

the record shows that the Child is also deeply bonded with her little brother, and both 

children deserve the chance to grow this relationship. Finally, it is clear that Father 

desperately wishes to develop a relationship with his daughter, as evidenced by the 

following testimony: “You don’t know how hard it is to have two children and only be able 

to love one because you can’t see the other one.” We simply cannot conclude from the 

evidence in the record that placing the Child in Appellants’ custody would pose a risk of 

substantial harm to her welfare. Indeed, Mother and Father have already placed the Child’s 

welfare above their own desires by suggesting that the Child be slowly transitioned from 

Appellees’ custody to theirs, the sole purpose of which is to ensure that the Child is not 

harmed or traumatized during the transition. While Appellees admirably stepped in to care 

for the Child at a time when Appellants could not, the record reflects that Appellants are 

now able to provide the support and care the Child deserves. Accordingly, we reverse the 

trial court’s termination of both Mother’s and Father’s parental rights as to this ground.

Because we conclude the trial court erred when it found grounds to terminate 

Appellants’ parental rights, the issue of whether termination is in the Child’s best interest 

is pretermitted.

V. Conclusion

For the foregoing reasons, we reverse the trial court’s order terminating Appellants’ 

parental rights. The case is remanded for such further proceedings as may be necessary 
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and are consistent with this opinion. Costs of the appeal are assessed to the Appellees, 

Dale S. and Jonna S., for all of which execution may issue if necessary.

 s/ Kenny Armstrong 

KENNY ARMSTRONG, JUDGE