IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 26, 2024 Session

IN RE BENTLEY E.

Appeal from the Chancery Court for Obion County

No. 35-195 W. Michael Maloan, Chancellor

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No. W2023-00846-COA-R3-PT

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This is a termination of parental rights and adoption case. Appellant/Father appeals the 

trial court’s termination of his parental rights on the ground of abandonment by failure to 

provide more than token support and failure to exercise more than token visitation. Father 

also appeals the trial court’s determination that termination of his parental rights is in the 

child’s best interest. Because Father met his burden to show that his failure to provide 

support and to visit was not willful, we reverse the trial court’s order terminating his 

parental rights and granting Appellees’ petition for adoption.

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

Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,

J., joined. J. STEVEN STAFFORD, P.J., W.S., filed a separate dissenting opinion.

Randy N. Chism, Union City, Tennessee, for the appellant, Todd E.1

David L. Hamblin, Union City, Tennessee, for the appellees, Brittany B., and Colby B.

OPINION

I. Background

Appellant Todd E. (“Father”) and Brittany B. (“Mother”), who were never married, 

are the parents of Bentley E. (the “Child”), who was born in December 2019. Mother and 

Father lived together until the Child was approximately one year old. In January 2022, 

 

1

In cases involving minor children, it is the policy of this Court to redact the parties’ names so as 

to protect their identities.

07/25/2024
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Mother married Colby B. (“Stepfather,” and together with Mother, “Appellees”). In his 

brief, Father asserts that from “December 2020 through May of 2021, [he] was able to see 

the child regularly and have brief visitation when he requested the same from Mother.” 

However, when Mother moved in with Stepfather in May 2021, Father asserts that his 

“visitation with the minor child was severely limited.” Father states that, “[i]n December 

of 2021, Mother moved out of the house with Stepfather and moved in with her mother for 

a time. Father was able to visit the child during that period of time and spent a significant 

amount of time with the [C]hild.” Concerning support, Father asserts that, 

[f]rom May of 2021 until March of 2022, Father would see the child when 

Mother called him and needed help with expenses. Mother would bring the 

child to where Father was working, Father would see the child in the car, and 

he would give Mother $40-$80 per time. He would also buy her big boxes of 

diapers. The last time that Mother requested money or diapers from him was 

in March of 2022. He gave her $40 and diapers, and Mother allowed him to 

spend forty-five (45) minutes with the child in a parking lot. During 2021 

through March of 2022, Father believes that he gave Mother approximately 

$1,000.00 in cash and even more in diapers and wipes to assist with taking 

care of the child. 

On May 26, 2021, Father filed a petition to establish paternity and to set visitation 

and child support. Mother answered the petition and requested that the Father be required 

to submit to a drug test. By order of May 16, 2022, the trial court ordered Father to submit 

to a ten (10) panel drug test before any visitation could be set. Father did not comply with 

the order until October 10, 2022, when he submitted to drug testing, which was positive 

for marijuana. 

On September 19, 2022, Appellees filed a petition to terminate Father’s parental 

rights and for Stepfather to adopt the Child. Father filed an answer in opposition to 

Appellees’ petition, wherein he asserted that any failure to visit or support the Child was 

not willful because (1) Mother had precluded his visitation, and (2) he had sought to 

establish paternity and child support. The trial court heard the case on February 28, 2023. 

By order of May 11, 2023, the trial court terminated Father’s parental rights on the ground 

of abandonment by failure to provide more than token support and failure to exercise more 

than token visitation. The trial court also granted Appellees’ petition for adoption and 

changed the Child’s surname to that of Stepfather. Father filed a timely notice of appeal 

on June 9, 2023. 

On October 2, 2023, Father filed a Tennessee Rule of Civil Procedure 60.02 motion 

to set aside the May 11, 2023 order. Therein, Father asserted that Appellees were separated 

and contemplating divorce. Father averred that Appellees misrepresented the state of their 

relationship during the February 2023 trial. Appellees filed a response, admitting that they 

were separated but denying any misrepresentation. By order of April 5, 2024, the trial 
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court denied Father’s Rule 60 motion, finding that the Appellees made no 

misrepresentations at the hearing. In his statement of the issues, Father does not raise a 

specific issue regarding the denial of his Rule 60 motion, and we will not address that 

ruling. In re Kaliyah S., 455 S.W.3d 533, 557 (Tenn. 2015) (stating that the failure to raise 

an issue on appeal results in its waiver).

II. Issues

There are two dispositive issues:

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

grounds relied upon by the trial court to terminate Father’s parental rights.

2. If so, whether there is clear and convincing evidence to support the trial 

court’s finding that termination of Father’s parental rights is in the Child’s 

best interest.

III. Standard of Review

It is well settled that:

A parent’s right to the care and custody of [his or] her child is among the 

oldest of the judicially recognized fundamental liberty interests protected by 

the Due Process Clause of the federal and state constitutions. Troxel v. 

Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 

(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 (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). 

Termination of parental rights proceedings are governed by statute in Tennessee, In 

re Kaliyah S., 455 S.W.3d at 541, and the statutes identify “those situations in which the 

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. 
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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))) (internal quotation marks 

omitted).

Tennessee Code Annotated section 36-1-113 governs the termination of parental 

rights. It 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 of parental or guardianship rights have been established; and

(2) That termination of the parent’s or guardian’s rights is in the best interests 

of the child.

Tenn. Code Ann. § 36-1-113(c). Therefore, every termination of parental rights case

requires the trial court “to determine whether the parent has engaged in a course of action 

or inaction that constitutes one of the statutory grounds for termination[,]” and whether 

termination of the parent’s rights is in the child’s best interest. In re Donna E.W., No. 

M2013-02856-COA-R3-PT, 2014 WL 2918107, at *2 (Tenn. Ct. App. June 24, 2014). 

“Because the stakes are so profoundly high[ ]” in a termination of parental rights case, the 

statute “requires persons seeking to terminate a . . . parent’s parental rights to prove the 

statutory grounds for termination by clear and convincing evidence.” In re Audrey S., 182 

S.W.3d 838, 861 (Tenn. Ct. App. 2005). This Court has observed that “[t]his heightened 

burden of proof minimizes the risk of erroneous decisions.” Id. (citations omitted).

If the trial court determines that clear and convincing evidence supports grounds for 

termination, the 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.” In re Kaliyah S., 455 S.W.3d at 555. The party petitioning for the 

termination of parental rights bears the burden of demonstrating that termination is in the 

best interest of the child by clear and convincing evidence. In re Angela E., 303 S.W.3d 

240, 250 (Tenn. 2010).

We review the trial court’s findings of fact de novo on the record with a presumption 

of correctness. Tenn. R. App. P. 3; In re Carrington H., 483 S.W.3d at 524 (citations 

omitted). However, “[i]n light of the heightened burden of proof in termination 

proceedings . . . [we] must make [our] own determination as to whether the facts, either as 

found by the trial court or as supported by a preponderance of the evidence, amount to clear 

and convincing evidence of the elements necessary to terminate parental rights.” In re 

Carrington H., 483 S.W.3d at 524 (citation omitted). However, when the trial court has 

seen and heard witnesses, we give great deference to any findings that are based on the 

court’s assessment of witness credibility. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. 
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App. 2007) (citation omitted). We will not reverse a finding based on witness credibility 

unless the record contains clear and convincing evidence to contradict it. Id. A trial court’s 

conclusion that clear and convincing evidence supports termination of parental rights is a 

conclusion of law that we review de novo with no presumption of correctness. In re 

Carrington H., 483 S.W.3d at 524 (citation omitted). “This standard of review is 

consistent with the standard of review for mixed questions of law and fact.” In re Taylor 

B.W., 397 S.W.3d 105, 112-113 (Tenn. 2013) (citing Starr v. Hill, 353 S.W.3d 478, 481–

82 (Tenn. 2011) (“Although a presumption of correctness attaches to the trial court’s 

findings of fact, we are not bound by the trial court’s determination of the legal effect of 

its factual findings[.]”).

IV. Grounds for Termination of Father’s Parental Rights

The trial court terminated Father’s parental rights on the ground of abandonment by 

both failure to visit and failure to support. Tenn. Code Ann. § 36-1-113(g)(1). Although 

only one ground must be proven by clear and convincing evidence, the Tennessee Supreme 

Court has held that “appellate courts must review a trial court’s findings regarding all 

grounds for termination and whether termination is in a child’s best interests, even if a 

parent fails to challenge these findings on appeal.” In re Carrington H., 483 S.W.3d at 

511. Accordingly, we will review the trial court’s findings as to both abandonment by 

failure to support and abandonment by failure to visit.

Tennessee Code Annotated section 36-1-102(1)(A) defines the ground of 

abandonment as follows:

(i) For a period of four (4) consecutive months immediately preceding 

the filing of a proceeding, pleading, petition, or any amended petition 

to terminate the parental rights of the parent or parents or the guardian 

or guardians of the child who is the subject of the petition for 

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

the guardian or guardians either have failed to visit or have failed to 

support or have failed to make reasonable payments toward the 

support of the child[.]

Tenn. Code Ann. §§ 36-1-102(1)(A)(i). The statute further provides that a failure to visit 

consists of “the failure, for a period of four (4) consecutive months, to visit or engage in 

more than token visitation[.]” Tenn. Code Ann. § 36-1-102(1)(E). “Token visitation” is 

defined as visitation that, “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[.]” 

Tenn. Code Ann. § 36-1-102(1)(C). Similarly, a failure to support involves “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.” Tenn. Code Ann. § 
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36-1-102(1)(D). When the provided support, “under the circumstances of the individual 

case, is insignificant given the parent’s means[,]” it is considered token. Tenn. Code Ann. 

§ 36-1-102(1)(B). The parent’s abandonment within the relevant four-month period may 

not be rectified by resuming visitation or support subsequent to the filing of a termination 

petition. Tenn. Code Ann. § 36-1-102(1)(F). 

A parent may raise as an affirmative defense that the failure to perform more than 

token visitation or provide more than token support was not willful. Tenn. Code Ann. § 36-

1-102(1)(I). As noted above, in his answer, Father asserts that any failure to visit or support 

was not willful. As such, Father bears the burden of proving the absence of willfulness by 

a preponderance of the evidence. Id. Willfulness in terms of parental rights “does not 

require the same standard of culpability as is required by the penal code. Nor does it require 

malevolence or ill will.” In re Audrey S., 182 S.W.3d at 863. (citations omitted). Instead, 

“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.” Id. at 863-64. 

In its order terminating Father’s parental rights, the trial court held:

The Court finds by clear and convincing evidence that pursuant to T.C.A. § 

36-1-113 (g), Mr. Eaves has abandoned the minor child as defined in T.C.A. 

§ 36-1-102 (1) (A) (i) as he has failed to visit the minor child during the four 

(4) months preceding the filing of the adoption and has failed to pay child 

support during the four (4) month preceding the filing of the adoption. The 

Court further finds that any visitation or any support paid by Mr. Eaves would 

be token support as defined in T.C.A. § 36-1-102 (1) (B) (C).

In support of its holding, the trial court made the following, relevant factual findings:

2. [Father] filed a petition to establish paternity and set visitation and child

support . . . on May 26, 2021. The parties agreed at trial that [Father’s]

attorney died unexpectedly on November 18, 2021.

3. . . . An order was entered on May 16, 2022, requiring the [F]ather to submit 

to a ten (10) panel drug test before any visitation could be set in that case.

4. The [F]ather waited until October 10, 2022, to take the drug test . . . .

5. The Father had only brief times of visitation with the minor [C]hild 

between December 2021 and July 2022 and no visitation after July 2022.

6. . . . The Court further finds that when the [M]other separated from the 

[F]ather the [F]ather rarely visited and had no overnight visitation with the 

[C]hild after she left the [F]ather’s home in December 2020. The [F]ather 

never paid child support after the parties separated in 2020. However, the 

[M]other and [F]ather resided together for two weeks in December of 2021.

***
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10. The Court finds that [Father] gave a nominal amount of money to 

[Mother] in 2021 by buying diapers and giving small amounts of cash when 

the [M]other requested during 2021 and 2022.

Concerning Father’s failure to visit, it appears that, after she and Father separated, 

Mother unilaterally decided when Father could and could not see the Child. For example, 

Mother testified:

Q. And after [Mother and Father] separated, split up in December of ’21 there 

was—there were times between then and the next three or four months that 

[Father] would see Bentley some with you, maybe not for a long period of 

time, maybe not overnight, but he still saw his son during that period of time, 

correct?

A. Few times.

Q. Okay.

A. Was never alone. It was always with me.

Q. You didn’t want [Father] to have [the Child] alone; did you?

***

A. No.

Q. Okay. And you told people that [Father] can’t have [the Child], correct?

A. Because of the drug use, yes.

Q. You said [Father] can’t see [the Child], correct?

A. I never said [Father] couldn’t see [the Child].

Q. Okay. Did you let [Father] see [the Child] over at [Father’s] mother’s 

house?

A. No.

Q. Did you let [Father] see [the Child] over at [Father’s] father’s house?

A. I told him I would meet over there.
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In December 2021, Mother and Stepfather separated for approximately two months. 

During this separation, Mother testified that she “let [Father] spend time with [the Child].” 

Later in her testimony, Mother conceded that Father “[h]ad reached out . . . to visit the 

[C]hild.” When asked whether she denied Father visits, Mother stated that she did on “days 

that I couldn’t. Like I was at work or something.” Mother conceded that before he was 

ordered to take a drug test, Father “contacted [Mother] indicating that he want[ed] a 

relationship with the [C]hild.”

Father testified that he saw the Child quite often until Mother and Stepfather started 

their relationship. Thereafter, Father stated that he “really didn’t get a lot of visitations” 

until Mother and Stepfather separated in December 2021. During that brief separation, 

Father stated that Mother allowed him to see the Child, but Mother “wouldn’t let [Father]” 

have overnight visits. This led Father to file his May 2021 petition to establish paternity 

and to set visitation and child support. When asked why he filed the petition, Father 

testified that he “was trying to get visitation . . . [b]ecause . . . [he] was tired of [Mother] . 

. . [t]elling me when I can and when I couldn’t see [the Child].” Father recounted how his 

attorney unexpectedly died in November of 2021, and how Father hired another attorney 

within approximately one month of this event. Father testified that Mother attempted to 

get him to voluntarily relinquish his parental rights and offered him “$3,000 to sign the 

rights away [to] my son.” Father stated that he never “stop[ped] asking to see [the Child]” 

and continued to text Mother until “two or three weeks before [Appellees filed their 

petition] still trying to see my son.” 

The Child’s paternal grandfather’s testimony largely corroborates Father’s account 

of seeking visitation only to be denied by Mother. Specifically, grandfather testified:

Q. Did [Father] ask for additional visitation?

A. He did.

***

Q. What did [Mother] say?

A. Said she didn’t trust [Father] being alone with the [C]hild.

Q. Okay. Have you heard any other times that [Father] has . . . requested 

visitation with [the Child]?

A. I have. [Father has] come to my house in tears a couple of times stating 

that [Mother] won’t let him see [the Child]. I’ve heard her on the phone as 

well stating, I don’t trust you being with [the Child] by yourself, and I don’t 

want him being around your mother [i.e., the Child’s paternal grandmother].

Q. If he was on the phone, how did you hear the conversation?

A. Speaker.
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Grandfather further testified that he and his wife “even tried to mediate” by offering to 

facilitate Father’s visitation at their house. Mother stated that “she’d think about it,” but 

the visits never occurred. Grandfather’s wife corroborated that Mother “didn’t take us up 

on the offer [to facilitate visits].” 

As noted above, a parent’s failure to visit is deemed willful when it is the product 

of free will rather than coercion. In re M.L.P., 281 S.W.3d at 392 (citing In re Audrey S., 

182 S.W.3d at 863). Accordingly, if a parent attempts to visit a child but is thwarted by the 

acts of others, the failure to visit is not willful. Id. (citing In re Adoption of A.M.H., 215 

S.W.3d 793, 810 (Tenn. 2007)). However, “[a] parent’s failure to visit may be excused by 

the acts of another only if those acts actually prevent the parent from visiting the child or 

constitute a significant restraint or interference with the parent’s attempts to visit the child.” 

Id. at 393. Also, “[w]hen analyzing willfulness, courts have considered whether a parent 

who was allegedly denied visitation redirected their efforts to the courts in an attempt to 

secure visitation.” In re Heaven J., No. W2016-00782-COA-R3-PT, 2016 WL 7421381, 

at *5 (Tenn. Ct. App. Dec. 22, 2016). For instance, in In re Adoption of A.M.H., 215 

S.W.3d at 796, the Tennessee Supreme Court held that the parents’ failure to visit was not 

willful when “there was animosity between the parties and [ ] the parents were actively 

pursuing custody of [the child] through legal proceedings during the four-month period[.]” 

The same is true here. From the record, Father had access to the Child until Mother and 

Stepfather’s relationship began in or around May 2021. At that point, Mother largely 

precluded Father from seeing the Child. When this occurred, Father did not delay seeking 

the help of the courts; he filed his petition to establish paternity (wherein he also sought 

visitation and the setting of child support) on May 26, 2021 (the same month Mother and 

Stepfather’s relationship began). As evidenced by the foregoing testimony, while Father’s 

petition was pending, Mother would not allow meaningful visits. Under these 

circumstances, it was error for the trial court to terminate Father’s parental rights on the 

ground of abandonment by willful failure to visit. We reverse that holding.

Turning to the question of child support, Father’s May 2021 petition sought both 

visitation and the setting of child support. Unfortunately, Father’s attorney died 

unexpectedly before Father’s petition was resolved. Although not ordered to pay a specific 

amount of child support, Father testified that he gave Mother money and necessities for the 

Child:

Q [to Father]. After you separated from [Mother], did you buy any supplies 

for Bentley?

A. Yes, sir. [Mother] would call and ask me for diapers or if she could pull 

up and get money . . . .

Q. Did [Mother] come by to see you when you were . . . at work?
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A. Yes, sir, in 2021.

Q. Would you give her money?

A. Yes, sir, anywhere from [$]40 to $80 at a time.

Q. Did you buy diapers for her?

A. Yes, sir, big boxes.

Father further testified that he “called the child support office in Dresden to try to set myself 

up on child support, and they told me I couldn’t due to this case [pending].” Moreover, 

although Father conceded that he has not given enough support, he testified that he has 

provided approximately $1,000,2to-wit:

Q [to Father]. . . . But total money, out of all the times since this kid has been 

born and y’all separated . . . how much money do you think you[‘ve] given 

[Mother]?

A. I’ve probably given her maybe a thousand dollars. And I realize that’s 

not enough.

Q. A thousand dollars?

A. I realize that’s not enough.

Q. That would be 40 or 80 at a time?

A. Yes, sir.

Clearly, this case has had a lot of delays, including the death of Father’s attorney, 

Mother and Father’s brief reconciliation in December 2021, and court delays caused by 

COVID. However, despite these issues, Father has maintained his desire for paternal 

responsibilities, including participation in the Child’s life and the providing of support. As 

Father testified:

Q [to Father]. . . . You said when you [were] asked about child support, you 

said, I never had a problem with that?

A. Yes, sir.

 

2

In her testimony, Mother does not dispute that Father gave her some money, but she disputes the 

$1,000 amount, claiming that Father’s total support contribution was around $200.
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Q. You did have a problem with it because you weren’t paying it, true?

A. I wouldn’t say it was true. I didn’t have a problem with it, because I was 

ready to see my [C]hild. I was ready to pay child support if that’s what had 

to be done for me to see my [C]hild.

Q. Okay. So which would come first, paying the child support or seeing the 

[C]hild?

A. Well, from my understanding from everything that I had been told by 

when [my attorney] was alive was that once I started paying child support, I 

was going to get my visitation. But the child support was never set by the 

Court, so I didn’t know how much to pay.

From the record, this Court has no doubt that Father very much wants to be in this Child’s 

life. Although, as he concedes, Father should have been more proactive in pursuing his 

petition, he never abandoned it. Father sought permission from Mother to be in the Child’s 

life, but Mother largely refused. Father sought a court order to pay a set amount of support 

and even inquired at the child support office to establish this obligation, but, to date, the 

court has not heard the question of support. From our review, the evidence does not clearly 

and convincingly establish that Father abandoned this Child, although he has not 

consistently visited or supported him. In short, Father met his burden to show that any 

failure to visit or support was not willful. In view of this holding, we also reverse the trial 

court’s grant of Appellees’ petition for adoption and its decision changing the Child’s 

surname. The issue of best interest is pretermitted as moot.

V. Conclusion

For the foregoing reasons, the trial court’s order is reversed, and the case is 

remanded for such further proceedings as may be necessary and are consistent with this 

opinion. Costs of the appeal are assessed to the Appellees, Brittany B. and Colby B. 

Execution for costs may issue if necessary. 

s/ Kenny Armstrong 

KENNY ARMSTRONG, JUDGE