IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 21, 2014 Session

IN RE LYRIC J.

Appeal from the Chancery Court for Smith County

No. 2012AA5 Charles K. Smith, Chancellor

No. M2014-00806-COA-R3-PT - Filed December 16, 2014

This appeal arises from the trial court’s decision to terminate Father’s parental rights to his

daughter (“Child”). Father lives in California and was not present for Child’s birth. Mother

died two days after giving birth, and Mother’s mother (“Grandmother”) received temporary

custody of Child because Father had not been declared the legal father. The final custody

hearing granted custody to Grandmother and Father filed an appeal of the custody order.

Grandmother filed a petition to terminate Father’s parental rights and adopt Child, and Father

filed a counter petition to establish paternity and request custody. The court terminated

Father’s parental rights based on its findings that Father willfully abandoned Child and that

terminating Father’s parental rights and permitting adoption by Grandmother were in Child’s

best interest. We find that it has not been established by clear and convincing evidence that

Father’s failure to visit and support was willful; therefore, the judgment of the Smith County

Chancery Court is reversed and the case is remanded for further proceedings consistent with

this opinion.

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

and Remanded

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,JR.,

P.J., M.S., and, BRANDON O. GIBSON, J., joined.

Laura A. Stewart, Nashville, Tennessee, for the appellant, Lance A.

J. Ray Akers, Mt. Juliet, Tennessee, for the appellee, Veronica J.
OPINION

BACKGROUND

1

Erica J. (“Mother”) lived in Davidson County, Tennessee. She gave birth to Lyric J.

(“Child”) in December, 2011, and died two days later. Appellant, Lance A. (“Father”), lives

in California and was not present for Child’s birth. Appellee, Child’s maternal grandmother

(“Grandmother”), who lives in Smith County, Tennessee, received temporary custody of

Child from the Tennessee Department of Children’s Services (“DCS”) because Father had

not yet been declared the legal father. On January 5, 2012, DCS held a Child and Family

Team Meeting at which Father was advised that he could not receive custody because there

was no proof that he was Child’s biological father. Father was also advised to take a DNA

test, which he took that same day.

A hearing was held in Davidson County Juvenile Court on February 27, 2012, at

which Father was advised that he should retain a lawyer. Father had not yet filed the DNA

test report. The juvenile court magistrate granted Grandmother custody of Child at the final

custody hearing on May 21, 2012. Father did not attend the May hearing and did not file an

intervening petition for custody between the two hearings. Father later hired an attorney and

appealed the custody order to the juvenile court judge. These proceedings were suspended

when the termination and adoption petition was filed in Smith County.

Starting in the summer of 2012, Father would call Grandmother about once a month

to talk to Child and attempt to set up a visit. Grandmother would let Father talk to Child, but

she said she was afraid to let Father visit because he had previously told her that he was

going to “come down with his boys and . . . take his baby.” On October 12, 2012,

Grandmother filed a petition in Smith County Chancery Court to terminate Father’s parental

rights and adopt Child, and on October 15, Father filed a counter petition to establish

paternity and request custody. The case was tried on October 11, 2013.

At trial, Father presented a copy of the DNA test results and both parties agreed that

Father was the biological father of Child. Grandmother testified that Father had not visited

or provided any support for Child during the four months preceding the filing of the petition.

She also stated that Father could not reach her at times because she often did not have a

As usual, the facts stated in this opinion are based on the record. Father’s attorney criticized 1

the testimony, stating, “if you could make sense out of when things happened and why and where

from this testimony, I don’t know how anybody could.” She also accuratelyreferred to the testimony

as “a mishmash of information.” We particularly had difficulty establishing a timeline and

understanding what proceedings had occurred previously. 

2
working phone, but she never went more than two days without getting a new one. One of

the times she spoke with Father about Child was while she was shopping. Grandmother

testified that she hung up on him because it was not a good time for her to talk and, since

then, she and Father “had some animosity” between them. As a result, she felt threatened by

Father and was only comfortable allowing supervised visits in public places. The one visit

Father had with Child was at Panera Bread in October 2012, while Grandmother, her son,

and her son-in-law were present. The visit lasted about an hour.

Grandmother testified that Father cancelled two visitsthey tried to schedule. One visit

was to be at Wal-Mart so Father could buy Child some clothes and give her some money.

Grandmother suggested that Father give the money to his lawyer, who could then give it to

Grandmother’s lawyer. She also stated that, once court proceedings began, she had no

problem letting Father visit and stay with her when they were not in court. However, when

they were in court, she would tell Father that visiting was not a good idea.

Finally, Grandmother testified that she and her nine grandchildren had a great

relationship with Child and that she provided Child with everything she needed.

Grandmother’s son-in-law, Mother’s former best friend, Grandmother’s neighbor, and

Mother’s former colleague from work all testified that Grandmother had a great relationship

with Child as well. Grandmother explained that Child got Social Security as a result of

Mother’s death, had her own insurance, and that Grandmother’sfamily sometimes helped her

take care of Child.

Father testified that he was fully disabled as the result of a motorcycle accident from

2006. He was on disability, lived in his mother’s guest house, and was behind on child

2

support obligations for his four other children, two of whom had special needs (one could

not walk or speak and another was autistic). Father had visitation with his other four children

during a month of summer vacation, a month during winter vacations, and every other

weekend. When Father had his children with him, he cooked, cleaned, and did everything

for them on his own.

Father testified that he did not cancel the visit with Child at Wal-Mart, as

Grandmother testified. Instead, Father testified that it was never set up despite multiple

attempts by him and his lawyer to arrange it. Despite his failure to pay child support, Father

One of Father’s children testified that when they visit they all stay in a different house than the one 2

Father testified he lived in – the house Father testified he rented to others. The trial court found this

conflicting testimony “alarming,” but made no credibility finding as to either Father or the child.

3
did provide Mother with an Electronic Benefit Transfer (“EBT”) card prior to her death.

3

The card was intended for Mother to buy things for Child, and, after Mother’s death, the card

was transferred to Grandmother through Grandmother’s counsel. Father stated that he was

familiar with California law but did not understand Tennessee law, which is why he never

tried to get custody of Child prior to May 2012.

Father further testified that he was “full of emotion” when he found out about Child.

He was happy to have a child but sad to lose Mother. Grandmother did not dispute this.

Father also testified that, before Mother’s death, he purchased diapers, a TV stand, a

computer stand, and a life insurance policy for Mother and Child. In addition, he repainted

and rebuilt Mother’s fireplace mantle and did other “little things around the house.” Father

said he tried to set up visitation with Child, but before October 2012, he was often unable to

reach Grandmother. When he did, she would either tell him that it was not a good idea for

him to visit or to wait until the next court date. Father said that every time he tried to set up

visitation after October, Grandmother told him it was not a good idea. During

Grandmother’s testimony, she agreed that it would be unreasonable for someone who is

trying to visit his child to fly three thousand miles and stay in a hotel without a definite visit

scheduled.

In regard to his income, Father testified that he lived in a home with his mother but

also owned another home that he rented out. However, given the real estate downturn, he

only broke even. Father testified that he might be able to sell that home for forty or fifty

thousand dollars “after everything settled.” He also said that he and Child were beneficiaries

of the life insurance policy he bought for Mother, but it had not been redeemed because he

had not been to Tennessee recently and a doctor needed to sign off on the policy. Father also

needed the death certificate, which he was unable to obtain before he was recognized as

Child’s father.

Two of Father’s other children testified that they loved Father, he took care of them,

kept them safe, and they had fun with him. At the end of the proceedings, Child was brought

into the court and allowed to interact with Father and his siblings. Although it was not at

issue, the trial court judge determined that, based on their interaction, Father would be

allowed unsupervised visitation; all of the children seemed outgoing and intelligent, and

there did not seem to be any need for supervision.

“Electronic Benefit Transfer . . . is a system for delivering Food Stamp and Families First benefits

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to eligibl e Tenne ss e ans.” EBT Cards, DE P A R T M E N T O F HU M A N SE R V I C E S ,

http://www.tn.gov/humanserv/adfam/fs_4.html (last visited Nov. 17, 2014). Father testified that he was the

beneficiary of the EBT card, not Lyric. It can be inferred that it was a California EBT card and that Father

received some sort of benefits from the State of California.

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The trial court eventually held that Father’s parental rightsshould be terminated based

on Tenn. Code Ann. § 36-1-113(g)(9)(A)(ii) and (iii), and the court established a parent and

child relationship between Grandmother and Child based on Tenn. Code Ann. § 36-1-121

(as amended). The court did not accept Father’s reasons for not paying child support and not

visiting more often. The court found that Father had the financial means to hire a lawyer

sooner and support Child for the four months preceding the filing of the petition, but that he

willfully chose not to. The court also found that Father did not seek reasonable visitation

with Child or visit her at all for the four months preceding the filing of the petition. The

court held that Father abandoned Child, and that terminating Father’s parental rights and

permitting adoption by Grandmother were in Child’s best interest. The final order was issued

on March 24, 2014, and this appeal followed.

STANDARD OF REVIEW

“A parent has a fundamental right to the care, custody, and control of his or her child.”

In re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *1 (Tenn. Ct. App.

May 21, 2014), perm. app. denied (Tenn. July 14, 2014). The state may only interfere with

parental rights if there is a compelling state interest. Id. “An order terminating parental

rights shall have the effect of severing forever all legal rights and obligations of the parent

or guardian of the child against whom the order of termination is entered and of the child

who is the subject of the petition to that parent or guardian.” Tenn. Code Ann. § 36-1-

113(l)(1).

Terminating a parent’s fundamental parental rights results in severe consequences;

therefore, termination cases require a higher standard of proof. In re Serenity B., 2014 WL

2168553, at *2. To terminate parental rights, the court must find by clear and convincing

evidence that at least one statutory ground for termination exists and that termination is in

the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re F.R.R., III, 193 S.W.3d 528,

530 (Tenn. 2006). “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 the evidence.’” In re Serenity B., 2014 WL

2168553, at *2 (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)) (internal

citations omitted).

This Court must then review the trial court’s factual findings de novo with a

presumption of correctness, unless the evidence preponderates to the contrary. Id.; Tenn. R.

App. P. 13(d). Upon reviewing a decision to terminate parental rights, this Court’s duty is

to “determine whether the facts, as found by the trial court or as supported by the

preponderance of the evidence, clearly and convincingly establish the elements necessary to

terminate parental rights.” In re Serenity B., 2014 WL 2168553, at *2.

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ANALYSIS

Father raises the following four issues on appeal: (1) whether there is clear and

convincing evidence to support the finding that Father abandoned Child; (2) whether there

is clear and convincing evidence to support the finding that it is in Child’s best interest to

terminate Father’s parental rights; (3) whether deficienciesin Grandmother’s proof cause her

petition to fail on its merits; and (4) whether the chancery court had jurisdiction over the

custody petition filed by Father. We will discuss each issue in turn.

The resolution of this matter involves the interpretation of severalstatutes. The words

of statutes “must be given their natural and ordinary meaning in the context in which they

appear and in light of the statute’s general purpose.” Mills v. Fulmarque, Inc., 360 S.W.3d

362, 368 (Tenn. 2012). We are to presume that every word in the statute has meaning and

purpose and should be given full effect unless the obvious intention of the General Assembly

indicates otherwise. In re Estate of Trigg, 368 S.W.3d 483, 490 (Tenn.2012); In re C.K.G.,

173 S.W.3d 714, 722 (Tenn. 2005).

I.

Father’s parental rights were terminated based on the trial court’s findings that Father

willfully failed to visit and support Child. The relevant statutory provisions are Tenn. Code

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Ann. § 36-1-113 and § 36-1-102, which provide, in part:

(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 non-exclusive, 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).

The trial court stated that it terminated Father’s parental rights based on § 36-1-113(g)(9)(A)(ii) 4

and (iii), but both parties and the court focused their discussions on abandonment, which is a ground for

termination of parental rights under Tenn. Code Ann. § 36-1-113(g)(1) and is defined in Tenn. Code Ann. 

§ 36-1-102(1)(A)(i). Section 36-1-113(g)(9) applies to parents who, “at the time of the filing of [the] petition

. . . [are] not the legal parent or guardian” of the child. These grounds were not pled, and Father, by

agreement, has been established as the legal parent of Child. Therefore, we will only consider the issue of

termination based on abandonment under Tenn. Code Ann. § 36-1-113(g)(1) .

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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, “abandonment” means that:

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

the filing of a proceeding or pleading to terminate the parental rights of

the parent(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[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i).

A. WILLFUL FAILURE TO VISIT

Father argues that his failure to visit was not willful given his limited financial means

and the fact that he lives in California. He claims that he tried to set up visits but had

difficulty contacting Grandmother and obtaining her consent for him to visit.

Willful failure to visit is defined as “the willful failure, for a period of four (4)

consecutive months, to visit or engage in more than token visitation[.]” Tenn. Code Ann. §

36-1-102(1)(E). “Token visitation” is 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). For a parent’s failure to visit

to be considered willful, the parent must have intended not to visit the child. See In re

Adoption of Copeland, 43 S.W.3d 483, 488 (Tenn. Ct. App. 2000).

A parent who has tried to visit his or her child but has been “thwarted by the acts of

others and circumstances beyond his [or her] control” has not willfully failed to visit. In re

Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). A parent’s failure to visit may be

excused by a third party’s conduct if the conduct “actually prevents the person with the

obligation from performing his or her duty, or amounts to a significant restraint of or

interference with the parent’s efforts to support or develop a relationship with the child.” In

re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (citations omitted).

This Court has set forth a list of actions that amount to a significant restraint or

interference with a parent’s efforts to develop a relationship with a child: “(1) telling a man

he is not the child’s biological father, (2) blocking access to the child, (3) keeping the child’s

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whereabouts unknown, (4) vigorously resisting the parent’s efforts to support the child, or

(5) vigorously resisting a parent’s efforts to visit the child.” In re Adoption of Muir, No.

M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 n.8 (Tenn. Ct. App. Nov. 25, 2003).

Grandmother asserts that Father’s failure to visit Child was willful. In support of her

argument, she relies on In re Z.R.S., No. M2008-00630-COA-R3-PT, 2008 WL 5272489

(Tenn. Ct. App. Dec.16, 2008), in which this Court terminated a father’s parental rights after

he only visited his daughter two times between the time she went into foster care and the first

day of trial. Id. at *10. Neither of those visits was during the four months preceding the

filing of the petition. Id. Grandmother also relies on In re Angela T., No.

W2011-01588-COA-R3-PT, 2012 WL 586864 (Tenn. Ct. App. Feb. 23, 2012), in which the

court terminated a father’s parental rights because he made no effort to reinstate visitation

or maintain any type of relationship with his children for three years prior to the petition to

terminate his rights. Id. at *5.

Both of the cases relied on by Grandmother are distinguishable from the case at hand.

In In re Z.R.S., the only thing stopping the father from visiting his child during the four

months preceding the filing of the petition was his voluntary refusal to take a drug screen.

2008 WL 5272489, at *10. Here, Father has limited financial means, lives over 2000 miles

away, and has difficulty communicating with Grandmother to set up visitation. In In re

Angela T., the father had not visited his children for nearly three years, 2012 WL 586864, at

*5, while Father here has made efforts to see Child by contacting Grandmother, and he has

seen Child on at least one occasion.

It is true that Father did not seek custody of Child or try to set up visitation rights

before May 2012, but he did try to stay in contact with Child. Both Father and Grandmother

testified that Father called a number of times to speak to Child and set up visits. However,

Grandmother often did not have a working phone, which made it difficult for Father to reach

her, and Grandmother often told Father it was not a good idea for him to visit. Grandmother

admitted that it would be unreasonable for Father to travel from California to Tennessee

without speaking to Grandmother first and knowing that he would be able to visit Child.

Grandmother’s hesitancy to arrange visits with Father, coupled with Father’s limited

finances, the distance he had to travel, and his responsibilities as the father of four other

children living in California made it extremely difficult for Father to visit Child.

In addition, both Grandmother and Father testified that Father was genuinely happy

to have Child, and Father’s other children testified that Father loves them, takes care of them,

and that they love him as well. This evidence, in addition to the hurdles that Father had to

overcome to visit Child convinces us that the evidence is not strong enough to establish

clearly and convincingly that Father willfully failed to visit Child. Therefore, we reverse the

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trial court’s finding of willful abandonment for failure to visit Child.

B. WILLFUL FAILURE TO SUPPORT

Father also argues that his failure to support Child was not willful given his limited

financial means and the fact that he has to support four other children. He contends that the

clear and convincing standard has not been met because no evidence was provided regarding

his income, budget, or expenses.

Just like a parent’s failure to visit, failure to support a child financially can be grounds

for terminating parental rights if the failure was willful. Tenn. Code Ann. § 36-1-

102(1)(A)(i); In re H.A.L., No. M2005-00045-COA-R3-PT, 2005 WL 954866, at *4 (Tenn.

Ct. App. Apr. 25, 2005); In re M.J.B., 140 S.W.3d at 655 (“Simply proving that a parent did

not support [his or] her children is not sufficient . . . .”). Willful failure to support is “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.”

Tenn. Code Ann. § 36-1-102(1)(D). Token payments, or “token support,” are payments that,

“under the circumstances of the individual case, [are] insignificant given the parent’s means.”

Tenn. Code Ann. § 36-1-102(1)(B).

A parent’s failure to support is willful when he or she “is aware of his or her duty to

support, has the capacity to provide the support, makes no attempt to provide support, and

has no justifiable excuse for not providing the support.” In re Muir, 2003 WL 22794524, at

*5. A parent who does not support his or her child because he or she is financially unable

to do so is not liable for willfully failing to support his or her child. Id. at n.7.

The case In re H.A.L. involved termination of the parental rights of a father

(“R.W.L.”) who had been incarcerated for most of his daughter’slife. In re H.A.L., 2005 WL

954866, at *1. One of the grounds for termination was abandonment by willful failure to

support. Id. The only evidence presented was that R.W.L. had “held down some sort of

employment between September 1998 and September 1999.” Id. at *6. This Court held that,

without any evidence of R.W.L.’s income, expenses, or financial ability to pay child support,

the record did not contain clear and convincing evidence that R.W.L. willfully failed to

support his daughter for the four months at issue. Id.

The case In re M.J.B. involved termination of the parental rights of a mother

(“K.D.M.”) with regard to her two children. In re M.J.B., 140 S.W.3d at 645. She had no

marketable skills, and the court found that she had worked at only low paying jobs for brief

periods of time. Id. at 655. There was no evidence presented showing her actual earnings

from these jobs, and she relied on others for financial support. Id. As a result, this Court

9
held that the record did not contain clear and convincing evidence to establish that K.D.M.

was capable of supporting her children or that she willfully chose not to. Id.

Here, as in In re H.A.L. and In re M.J.B., no evidence has been introduced to establish

Father’s actual income, expenses, or financial ability to support Child. The evidence

suggested Father could have benefitted from Mother’s life insurance policy, currently

receives disability payments, and owns a home that he testified he may be able to sell for

around forty or fifty thousand dollars. There was no evidence presented to indicate that he

could have sold this house at some point during the four months preceding the filing of the

petition to terminate his parental rights. There was no evidence to indicate how much he

earns from his disability payments or the amount he would have received from the life

insurance policy. Father testified that he does not actually make any money from renting out

his other property.

Father is completely disabled and unable to work, he lives in his mother’s guest house,

and he is behind on child support payments for his four other children. Without any evidence

of Father’s actual ability to support Child, we do not believe that there is enough evidence

to establish clearly and convincingly that Father willfully failed to support Child. Therefore,

we reverse the trial court’s finding of willful abandonment for failure to support Child.

II.

If a court finds that there are no grounds for termination, it is unnecessary to conduct

a best interest analysis. See, e.g., In re Valentine, 79 S.W.3d 539, 550 (Tenn. 2002) (stating

that “we do not reach the issue of whether termination . . . was in [the child’s] best interest”

if no grounds for termination have been proven). We find that the only ground for

termination in this case (abandonment) has not been proven, and, therefore, we do not

address the issue of Child’s best interest.

III.

We decline to address Father’s other arguments in regard to Grandmother’s petition

because her petition has failed to establish the only asserted ground for termination.

IV.

Father also claims that either this Court or the chancery court should grant him

custody of Child. He argues that this Court has jurisdiction over custody decisions pursuant

to Tenn. Code Ann. § 36-1-116(f)(1). This statute concerns petitions seeking adoptions and

provides that:

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Upon the filing of the petition, the court shall have exclusive jurisdiction of all

matters pertaining to the child, including the establishment of paternity of a

child pursuant to chapter 2, part 3 of this title, except for allegations of

delinquency, unruliness or truancy of the child pursuant to title 37; provided,

that, unless a party has filed an intervening petition to an existing adoption

petition concerning a child who is in the physical custody of the original

petitioners, the court shall have no jurisdiction to issue any orders granting

custody or guardianship of the child to the petitioners or to the intervening

petitioners or granting an adoption of the child to the petitioners or to the

intervening petitioners unless the petition affirmatively states, and the court

finds in its order, that the petitioners have physical custody of the child at the

time of the filing of the petition, entry of the order of guardianship, or entry of

the order of adoption, or unlessthe petitioners otherwise meet the requirements

of § 36-1-111(d)(6).

Section 36-1-116(f)(1) refers to the trial court, not the appellate court. See In re

Shyann B., No. E2011-01740-COA-R3-JV, 2012 WL 2499591, at *6 (Tenn. Ct. App. June

29, 2012) (“To begin, there is no dispute that the trial court acquired ‘exclusive jurisdiction

of all matters pertaining to the child’ upon the filing of Foster Mother’s adoption petition.”)

(quoting Tenn. Code Ann. § 36-1-116(f)(1)); In re Adoption of M.J.S., 44 S.W.3d 41, 51-52

(Tenn. Ct. App. 2000) (“When an adoption petition is filed, the trial court in which the

petition is filed has ‘exclusive jurisdiction of all matters pertaining to the child . . . .’”)

(quoting Tenn. Code Ann. § 36-1-116(f)(1)). In this case, the court with exclusive

jurisdiction is the Smith County Chancery Court.

Tenn. Code Ann. Section 36-1-116(f)(1) givesthe court in which the adoption petition

is filed “exclusive jurisdiction of all matters pertaining to the child . . . .” At first blush, the

remaining language of Section 36-1-116(f)(1) appears to apply to limit the court’s authority

to issue custody orders. However, that portion of the statute has no application because no

intervening petitions were filed—Father was a party to the suit. Father filed a counter

petition to establish paternity and for custody.

5

This point may be merely an academic one in light of the fact that petitioner’s petition shows 5

that they have custody of the child. Tennessee Code Annotated section 36-1-116(f)(1) states: “the

court shall have no jurisdiction to issue any orders granting custody or guardianship of the child . .

. unless the petition affirmatively states, and the court finds in its order, that the petitioners have

physical custody of the child at the time of the filing of the petition . . . .” Thus, a custody order

would be allowed even if the latter part of the subsection applied.

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Two other statutes are also pertinent to this discussion. Tennessee Code Annotated

section 36-1-116(f)(2) states:

Except for proceedings concerning allegations of delinquency, unruliness, or

truancy of the child under title 37, any proceedings that may be pending

seeking the custody or guardianship of the child or visitation with the child

who is in the physical custody of the petitioners on the date the petition is filed,

or where the petitioners meet the requirement of § 36-1-111(d)(6), shall be

suspended pending the court’s orders in the adoption proceeding, and

jurisdiction of all other pending matters concerning the child and proceedings

concerning establishment of the paternity of the child shall be transferred to

and assumed by the adoption court; provided, that until the adoption court

enters any orders affecting the child’s custody or guardianship as permitted by

this part, all prior parental or guardian authority, prior court orders regarding

custody or guardianship, or statutory authority concerning the child’s status

shall remain in effect.

Thus, the custody proceedings pending in Davidson County Juvenile Court were “suspended

pending the court’s orders in the adoption proceeding.” The Smith County Chancery Court

had authority to and did establish paternity by the agreement of the parties based on the blood

test. The Juvenile Court’s orders affecting custody remained in effect “until the adoption

court enters any orders affecting the child’s custody or guardianship as permitted by this part

. . . .”

The second relevant statute is Tenn. Code Ann. § 36-1-117(b)(4), which provides

6

that:

If grounds for termination of parental rights do not exist, then the child’s legal

father shall be granted custody of the child, unless the court determines, upon

clear and convincing evidence, that the legal father is unable currently to

provide proper custodial care for the child, in which case the court shall make

such orders as may be necessary for the child’s care and supervision pursuant

to § 37-1-140; or unless the child’s mother’s rights have not been previously

terminated, in which case the court shall make a determination of the custodial

status of the child between the legal father and the mother, and the court may

make such other orders as are necessary to provide for the child’s care and

supervision. If the court determines that neither parent is suitable to provide

Father cites Tenn. Code Ann. § 37-1-117(b)(4), but there is no such provision and we believe that

6

this was a typographical error.

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for the care of the child, it shall make such other orders as it may determine are

necessary for the child’s care and supervision.

In a pretrial discussion, the parties and the court expressed some confusion about what would

happen if no grounds for termination were found. Some thought was given to having to

return to the Davidson County Juvenile Court to change its previous custody order.

As already noted, the Juvenile Court’s orders affecting custody remained in effect

“until the adoption court enters any orders affecting the child’s custody or guardianship as

permitted by this part . . . .” Tenn. Code Ann. § 36-1-116(f)(2). This is where Tenn. Code

Ann. § 36-1-117(b)(4) comes into play. The statute requires the trial court to grant custody

to the legal parent in an adoption proceeding if no grounds for termination exist, unless the

court determines by clear and convincing evidence that the father is unable to provide the

child with proper custodial care. Tenn. Code Ann. § 36-1-117(b)(4); Diana L. Schmied, A

Roadmap Through Tennessee’s New Adoption Statute, 27 U. MEM. L. REV. 885, 896-97

(1997) (citing § 36-1-117(b)(4) and stating that “[i]f no grounds to terminate exist [in an

adoption proceeding], the father must be granted custody of the child if the mother’s rights

have already been terminated, unless he is unable to provide proper care for the child.”). The

clear language of Tenn. Code Ann. § 36-1-117(b)(4) provides the Smith County Chancery

Court with the authority to make a custody determination when the grounds for termination

of Father’s rights are not found.

After considering the relevant statutes and the record in this case, it is evident that the

focus of the hearing was abandonment by failure to visit and failure to support, not custody.

Therefore, we remand the case to the chancery court for the purpose of making a custody

determination pursuant to Tenn. Code Ann. § 36-1-117(4).

CONCLUSION

The judgment of the chancery court is reversed and remanded for further proceedings

consistent with this opinion. Costs of appeal are assessed against the appellees.

_________________________

ANDY D. BENNETT, JUDGE

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