FILED

May 19, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

BETHANY CHRISTIAN SERVICES, ) C/A NO. 03A01-9810-JV-00345

INC., )

) HAMILTON JUVENILE

Appellee, )

) HON. SUZANNE BAILEY,

v. ) JUDGE

)

JONATHAN NATHANIEL JACKSON, )

)

Appellant. )

)

IN THE MATTER OF: ) AFFIRMED

) AND

JACOB ELIJAH MELTON. ) REMANDED

MICHAEL S. JENNINGS, SAMPLES, JENNINGS & PINEDA, P.L.L.C.,

Chattanooga, for Appellee.

BARBARA L. BROERSMA, Chattanooga, for Appellant.

O P I N I O N

Franks, J.

In this termination of parental rights case, plaintiff Bethany Christian

Services, Inc., sued the putative father, Jonathan Nathaniel Jackson, and the Trial

Judge terminated Jackson’s parental rights.

On December 1, 1997, Jacob Elijah Melton, was born to Jessica Renee

Melton. Jessica identified the father as Jackson, and on December 2, 1997, Jessica

entered into an agreement with pla intiff to surrender her parental rights to the child

and to have the child placed for adoption. This action against Jackson was filed on

December 10, 1997, alleging abandonment, and seeking custody for adoptive

placement. Plaintiff later amended the Petition adding alternative grounds for
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termination of parental rights under Tenn. Code Ann. § 36-1-113(g)(8)(A)(I), (ii), (iii),

(iv), and (vi). (R. 18). 

On February 18, 1998, Jackson filed an Answer and Counter-Petition,

denying that he had abandoned his child , requesting blood tests to determine

paternity, visitation with the child pending the re sults of the testing, and requesting, if

paternity be established, that custody be placed with him or his parents.

In ordering termination after the evidentiary hearing, the Trial Court

made findings of fact and stated she found by clear and convincing evidence:

That the petition filed by Bethany Christian Services, Inc., is well

taken and should be sustained and relief granted on the grounds of

abandonment and other causes therein stated and as amended in that the

respondent has willfully failed to visit and willfully failed to make

reasonable payments toward the support of the child’s mother during the

four (4) months immediately preceding the birth of the child; that the

respondent has failed, without good cause or excuse , to pay a reasonable

share of prenatal, natal, and postnatal expenses involving the birth of the

child in accordance with his financial means promptly upon his receipt

of notice of the child’s impending birth; that the respondent has failed,

without good cause or excuse, to make reasonable and consistent

payments for the support of the child in accordance with the child

support guidelines promulgated by the department pursuant to 36-5-101;

that the respondent has failed to seek reasonable visitation with the

child; that the respondent has failed to manifest an ability and

willingness to assume legal and physical custody of the child; that the

respondent has failed to file a petition to establish pa ternity of the child

within thirty (30) days after notice of alleged paternity by the child’s

mother.

The test results finding Jonathan to be the father were released on March

18, 1998. At the trial Jonathan testified that after the baby was born Jessica would

see him at school and give him derogatory looks. She later started saying “hello”

when he saw her. Sometime in February of 1998, Jessica approached him and said,

“please don’t go to the court, don’t go, I want the baby to go to an adoption agency,

whatever.” He said that he told one of her friends that he wanted to see pictures, and

that Jessica told the friend that she would not let him see any. He also said that he was

not employed, but that he could get a summer job at the post office or a grocery store. 
1

At the time of trial, Ms. Melton was age 14 and Jackson was 16.

3

When asked if he is willing to accept custody and if he would like to have custody, he

said, “Correct.” 

Except for filing the counter-action to get custody of Jacob, he made no

effort to see the child. He admitted that Jessica told him she was pregnant and that he

was the father. He also said that she called him sometimes, but that he was not

allowed to speak to her. He knew that the baby was born in December because he saw

Jessica at school. Though he knew the baby was born, he never attempted to check on

the baby, and never offe red Jessica any money to support the child. 

The standard of review of this case is de novo upon the record of the

Trial Court with the presumption of correctness of the Trial Court’s findings, unless

the evidence preponderates otherwise. T.R.A.P. Rule 13(d). We conclude the

evidence does not preponderate against the finding by the Trial Court, by clear and

convincing evidence, that Jackson abandoned his child and that the other factors

justifying termination were present. It does not preponderate against the finding that

termination and adoption are in the best interests of the child.1

Tennessee Code Annotated provides that “[t]ermination of parental or

guardianship rights must be based upon: (1) A finding by the court by clear and

convincing evidenc e that the grounds for te rmination 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) (Supp.

1998). The relevant grounds for termination of parental rights in this case are:

(1) Abandonment by the parent or guardian, a s defined in

§36-6-102, has occurred; . . .

(8)(A) The parental rights of any person who is not the legal

parent or guardian of a child or who is described in § 36-1-117(b)

or (c) may also be terminated based upon any one (1) or more of
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the following additional grounds:

 (I) The person has failed, without good cause or excuse , to pay a

reasonable share of prenatal, natal, and postnatal expenses

involving the birth of the child in accordance with the person’s

financial means promptly upon the person’s receipt of notice of

the child’s impending birth;

 (ii) The person has failed, without good cause or excuse, to make

reasonable and consistent payments for the support of the child in

accordance with the child support guidelines promulgated by the

department pursuant to § 36-5-101;

 (iii) The person has failed to seek reasonable visitation with the

child, and if visitation has be en granted, has failed to visit

altogether or has engaged in only token visitation, as defined in §

36-1-102(1)(C);

 (iv) The person has failed to manifest an ability and willingness

to assume legal and physic al custody of the child; . . .

 (vi) The pe rson has fa iled to file a pe tition to establish paternity

of the child within thirty (30) days after notice of alleged

paternity by the child’s mother, or as required in § 36-2-318(j), or

after making a claim of paternity pursuant to § 36-1-117(c)(3).

Tenn. Code Ann. § 36-1-113(g) (Supp. 1998).

In the past, abandonment had been defined by the courts as “any conduct

on the part of the parent which evinces a settled purpose to forego all parental duties

and relinquish all parental claims to the child. . . .” Ex Parte Wolfenden, 48 Tenn.

App. 433, 441, 348 S.W.2d 751, 755 (1961). To prove abandonment, the evidence

had to show “an actual desertion, accompanied with an intention to entirely sever, so

far as it is possible to do so, the parental relationship and throw off all obligations

growing out of the same.” Fancher v. Mann, 58 Tenn. App. 471, 476, 432 S.W.2d 63,

65 (1968). 

In 1996, however, the General Assembly changed this definition of

abandonment, setting forth in its place its own de finition. The General Assembly

explicitly stated:

“Abandonment” and “abandonment of an infant” do not have any

other definition except that which is set forth in this section, it

being the intent of the general assembly to establish the only

grounds for abandonment by statutory definition. Specifically, it

shall not be required that a parent be shown to have evinced a

settled purpose to forego all parental rights and responsibilities

in order for a determination of abandonment to be made . 
5

Decisions of any court to the contrary are he reby legislatively

overruled.” 

Tenn. Code Ann. § 36-1-102(1)(G) (1996) (emphasis added).

The definition of abandonment as contained in the Code is as follows:

(1)(A) “Abandonment” means, for purposes of terminating the

parental or guardian rights of parent(s) or guardian(s) of a child

to that child in order to make that child available for adoption,

that:

 (I) For a period of four (4) consecutive months immediately

preceding the filing of a proceeding or pleading to terminate the

parental rights of the parent(s) or guardian(s) of the child who is

the subject of the petition for termination of parental rights or

adoption, that the parent(s) or guardian(s) either have willfully

failed to visit or have willfully failed to support or make

reasonable payments toward the support of the child;

. . .

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

or willfully failed to make reasonable payments toward the

support of the child’s mother during the four (4) months

immediately preceding the birth of the child; provided, that in no

instance shall a final order terminating the parental rights of a

parent as determined pursuant to subdivision (1)(A)(iii) be

entered until at least thirty (30) days have elapsed since the da te

of the child’s birth; 

. . .

 (B) For purposes of this subdivision (1), “token support” means

that the support, under the circumstances of the individual case, is

insignificant given the parent’s means;

 (C) For purposes of this subdivision (1), “token visitation”

means that the visitation, under the circumstances of the

individual case, constitutes nothing more than perfunctory

visitation or visitation of such an infrequent nature of such short

duration as to merely establish minimal or insubstantial contact

with the child; 

 (D) For purposes of this subdivision (1), “willfully failed to

support” or “willfully failed to make reasonable payments toward

such child’s support” means that for a period of four (4)

consecutive months, no monetary support was paid or that the

amount of support paid is token support;

 (E) For purposes of this subdivision (1), “willfully failed to visit”

means that willful failure, for a period of four (4) consecutive

months, to visit or engage in more than token visitation;

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

or support subsequent to the filing of any petition seeking to

terminate parental or guardianship rights or seeking the adoption

of a child;

Tenn. Code Ann. § 36-1-102 (Supp. 1998).
6

Jackson argues that he did not abandon the child, but he relies solely on

the definition of abandonment in the court cases that were legislatively overruled by

the statutory definition of abandonment. Applying the statutory definition, as the

statute requires, clear and convincing evidence establishes that Jackson did abandon

his child. 

It is undisputed that Jackson made no support payments to Jessica while

she was pregnant or after the baby was born. It is also undisputed that Jackson made

no attempt to visit J essica while she was pregnant or visit the child a fter he was born. 

Instead, Jackson avoided contact with Jessica by refusing to take her phone calls and

refusing to talk to her at school. Since there was no visitation or support of Jessica

before the child was born, this is clearly a situation that falls within the definition of

abandonment found in Tenn. Code Ann. § 36-1-102(1)(A)(iii), which merely requires

a willful failure to visit or willful failure to make reasonable payments toward the

support of the child’s mother for four months immediately preceding the birth of the

child. 

Willful failure to visit means minimal or insubstantial contact, and

willful failure to support means that no monetary support, or only token support, was

paid for a period of four consecutive months. Moreover, other grounds exist for

terminating the parental rights of Jackson. The statute provides six additional grounds

for termination of the rights of a person who is not the legal parent. These grounds

apply to Ja ckson. See Tenn. Code Ann. § 36-1-113(g)(8)(A). Any of these grounds

constitutes a basis to terminate pa rental rights, but five are applicable to Jackson. 

Ground (I) states that the “person has failed, without good cause or excuse , to pay a

reasonable share of the prenatal, natal, and postnatal expenses involving the birth of

the child in accordance with the person’s financial means promptly upon the pe rson’s

receipt of notice of the child’s impending birth.” Jackson was notified of the
7

pregnancy sometime in April, 1997, and the child was born December 1, 1997.

Jackson knew that the child was born in December. Though he admitted that he was

in good physical shape and could get a job, he made no attempt to pay any of the

expenses of the birth of the child. He cannot re ly upon Jessica ’s failure to contact him

or provide him with bills, because he had the responsibility to initiate contact and give

support. 

Ground (ii) states that “the person has failed, without good cause or

excuse, to make reasonable and consistent payments for the support of the child in

accordance with the child support guidelines . . . .” Granted, Jackson was not

employed, but he testified that he was capable of some type of employment. The child

support guidelines provide for imputing income to persons who are voluntarily

unemployed. Jackson thus has no good excuse for failing to make some type of

support payments.

Ground (iii) provides tha t the “person has failed to seek reasonable

visitation with the child . . . .” Jackson has never made an attempt to see the child. As

of the time of trial, when the child was almost five months old, Jackson had never

seen the child, and this fac tor is undisputedly present.

Ground (iv) provide s that the “pe rson has fa iled to manifest an ability

and willingness to assume legal and physical custody of the child.” Jackson was

informed of the impending birth of his child in April, 1997, and he knew the child was

born in December, 1997. During the pregnancy and after the birth, he never initiated

any contact with Jessica. 

Lastly, ground (vi) provides that the “person has failed to file a petition

to establish paternity of the child within thirty (30) days after notice of alleged

paternity by the child’s mother.” Jackson did not file a pe tition to establish pa ternity,

and did not admit the pate rnity until March, 1998, when blood tests were returned. 
8

The statute, however, requires only notice of alleged paternity, not certain paternity. 

Under the terms of the statue, this ground for termination of parental rights exists as

well.

We affirm the judgment of the Trial Court in all respects. 

Jackson has raised the issue of the constitutionality of T.C.A. §36-1-113

as applied to unborn children of unwed parents. This issue was not raised in the Trial

Court, and the Tennessee Supreme Court has stated, “It has long been the general rule

that questions not raised in the trial court will not be enterta ined on appeal and this

rule applies to an attempt to make a constitutiona l attack upon the validity of a statute

for the first time on appeal unless the statute involved is so obviously unconstitutional

on its face as to obviate the necessity for any discussion.” Lawrence v. Stanford, 655

S.W.2d 927, 929 (Tenn. 1983). Nor was the Attorney General notified of any

challenge, as required by Tenn. R. Civ. P. 24.04. Since the issue was not raised in the

Trial Court, and since the statute is not so “unconstitutional on its fa ce as to obviate

the necessity for any discussion,” we decline to consider this issue on appeal. 

Accordingly, we remand the case to the Trial Court with cost of the appeal

assessed to the appellant.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Charles D. Susano, Jr., J.