IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 16, 2015

IN RE ALEXIS B.

 Appeal from the Probate and Family Court for Cumberland County

No. 2013-PF-3498 Larry Michael Warner, Judge

No. E2014-00943-COA-R3-PT-FILED-APRIL 14, 2015

This is a termination of parental rights case, focusing on Alexis B., the minor child (“the 

Child”) of Katie R. (“Mother”) and Johnny R.B. (“Father”). On August 26, 2013, the 

Child‟s paternal grandparents, Johnny B. and Deborah B. (“Grandparents”), filed a 

petition to terminate the parental rights of both parents and adopt the Child. Father 

subsequently agreed to surrender his parental rights to the Child, and he is not a party to 

this appeal. Following a bench trial, the trial court found that grounds existed to 

terminate the parental rights of Mother upon its finding, by clear and convincing 

evidence, that Mother had abandoned the Child by willfully failing to provide financial 

support and willfully failing to visit the Child in the four months preceding the filing of 

the petition. The court further found, by clear and convincing evidence, that termination 

of Mother‟s parental rights was in the Child‟s best interest. Mother has appealed. 

Having concluded that the evidence preponderates against a finding that Mother had the 

ability to financially support the Child during the determinative period, we reverse the 

trial court‟s finding that Mother abandoned the Child by willfully failing to provide 

support. We affirm the trial court‟s judgment in all other respects, including the 

termination of Mother‟s parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate and Family Court

Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.

John R. Williams, Crossville, Tennessee, for the appellant, Katie R.

Jonathan R. Hamby, Crossville, Tennessee, for the appellees, Johnny B. and Deborah B.

Sherrill Beard, Crossville, Tennessee, Guardian Ad Litem.
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OPINION

I. Factual and Procedural Background

Mother and Father were never married, but they resided together with the Child in 

the Grandparents‟ home following the Child‟s birth in April 2011. The relationship 

between Mother and Father subsequently disintegrated, and Mother moved out of the 

Grandparents‟ residence in November 2012 when the Child was nineteen months old. 

Mother does not dispute that she was addicted to controlled substances during the period 

that she resided with the Grandparents and that this problem contributed to the 

Grandparents‟ asking her to leave. It is also undisputed that the Grandparents were the 

Child‟s primary caregivers even when both parents resided in the Grandparents‟ home. 

When Mother relocated, the Child continued to reside with the Grandparents. Father also 

continued to live in the Grandparents‟ home. 

 The Grandparents filed a petition for termination of both parents‟ parental rights

and for adoption of the Child on August 26, 2013. As to Mother, they alleged that in the 

four months preceding the filing of the petition, she had abandoned the Child by willfully 

failing to provide financial support and willfully failing to engage in more than token 

visitation with the Child.

1

 Upon Mother‟s subsequent affidavit, the trial court found her 

to be indigent and appointed counsel to represent her on September 30, 2013.

On November 8, 2013, the Grandparents filed a motion to restrain Mother from 

exercising visitation, averring that Mother had not sought to exercise alternate-week 

visitation until she was served with the petition to terminate her parental rights. The

Grandparents further averred that visitation with Mother was not in the Child‟s best 

interest, inter alia, because the Child no longer knew Mother and no bond had been 

established.

On November 1, 2013, the Grandparents filed a motion, inter alia, requesting that 

the trial court require Mother to undergo “hair follicle drug testing.” In a response filed 

November 6, 2013, Mother agreed to submit to a drug screen. Mother alleged, however,

that Father was abusing controlled substances in the Grandparents‟ home. She requested 

that the court order hair follicle drug screens to be performed on Father, both 

Grandparents, and the Child. 

 

1A permanent parenting plan order regarding the parents‟ co-parenting of the Child after Mother no 

longer lived in the Grandparents‟ home is referenced in pleadings and testimony, but the parenting plan 

does not appear in the record. Under the specific facts and issues raised in this action, the plan‟s absence 

does not affect our analysis.
3

Mother filed an answer to the petition on November 22, 2013. Mother again 

alleged that Father was continuing to abuse controlled substances while residing in his 

parents‟ home. She also averred that the Grandparents had prevented her from exercising 

her visitation with the Child. Mother subsequently filed two separate motions to set 

visitation: the first on December 4, 2013, and the second on January 20, 2014, upon her 

assertion that she had tested negative for controlled substances after submitting to hair 

follicle drug screening. 

The trial court conducted a hearing regarding the Grandparents‟ motion to restrain 

visitation on November 13, 2013, and subsequently held a bench hearing upon Mother‟s 

motion for hair follicle drug screens of the other parties on December 12, 2013. In an 

order entered January 22, 2014, the trial court suspended Mother‟s visitation with the 

Child and directed that Mother, Father, both Grandparents, and the Child would undergo 

hair follicle drug screens. Following a subsequent hearing conducted on February 6, 

2014, the trial court found that it was in the Child‟s best interest to deny Mother‟s motion 

for visitation pending the outcome of the case. The court entered an order to this effect 

on February 18, 2014, and set the date for final hearing on the termination petition. The 

court also appointed attorney Sherrill Beard as guardian ad litem (“GAL”) to represent 

the Child.

Following a trial conducted on March 31, 2014, the trial court entered an order on 

April 22, 2014, finding by clear and convincing evidence that Mother had abandoned the 

Child by willfully failing to support or make reasonable payments toward support of the 

Child and by willfully failing to visit the Child during the four months preceding the 

filing of the petition for termination. The court further found by clear and convincing 

evidence that it was in the best interest of the Child for Mother‟s parental rights to be 

terminated. Mother appealed the order to this Court on May 15, 2014.

At the beginning of trial, Father had announced through his counsel that he would 

be voluntarily surrendering his parental rights to the Child. For this reason, the court 

heard evidence only as to the petition to terminate Mother‟s parental rights. After Mother 

filed her notice of appeal, this Court entered an order on July 8, 2014, directing Mother to 

show cause why the appeal should not be dismissed as premature due to the outstanding 

issue of Father‟s parental rights. The trial court subsequently entered an order on August 

22, 2014, terminating Father‟s parental rights to the Child upon his voluntary surrender of 

those rights and certifying the August 2014 order as final pursuant to Tennessee Rule of 

Civil Procedure 54.02. This Court thereafter treated Mother‟s appeal as timely pursuant 

to Tennessee Rule of Appellate Procedure 4(d).
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II. Issues Presented

Mother presents four issues on appeal, which we have restated slightly:

1. Whether the constitutional requirements applicable to an action for 

termination of parental rights can be achieved without a substantially 

verbatim transcript or otherwise sufficiently complete record upon which 

an appeal can be based and reviewed. 

2. Whether the trial court erred by finding that there was clear and convincing 

evidence of the statutory ground of abandonment by willful failure to 

support the Child.

3. Whether the trial court erred by finding that there was clear and convincing 

evidence of the statutory ground of abandonment by willful failure to visit 

the Child.

4. Whether the trial court erred by finding clear and convincing evidence that 

termination of Mother‟s parental rights was in the Child‟s best interest.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine 

“whether the trial court‟s findings, made under a clear and convincing standard, are 

supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 

(Tenn. 2006). The trial court‟s findings of fact are reviewed de novo upon the record, 

accompanied by a presumption of correctness unless the evidence preponderates against 

those findings. Id.; Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de 

novo with no presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 

2010). The trial court‟s determinations regarding witness credibility are entitled to great 

weight on appeal and shall not be disturbed absent clear and convincing evidence to the 

contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their 

children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 

92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not 

absolute and parental rights may be terminated if there is clear and convincing evidence 

justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 
5

97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 

L.Ed.2d 599 (1982)). As our Supreme Court has instructed:

In light of the constitutional dimension of the rights at stake in a 

termination proceeding under Tenn. Code Ann. § 36-1-113, the persons 

seeking to terminate these rights must prove all the elements of their case 

by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re 

Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 

546 (Tenn. 2002). The purpose of this heightened burden of proof is to 

minimize the possibility of erroneous decisions that result in an 

unwarranted termination of or interference with these rights. In re Tiffany 

B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re M.A.R., 183 S.W.3d 

652, 660 (Tenn. Ct. App. 2005). Clear and convincing evidence enables 

the fact-finder to form a firm belief or conviction regarding the truth of the 

facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and 

eliminates any serious or substantial doubt about the correctness of these 

factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t of 

Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct. 

App. 2008).

In re Bernard T., 319 S.W.3d at 596.

IV. Sufficiency of the Record on Appeal

Mother contends that the record on appeal is insufficient for appellate review 

primarily because the record contains no verbatim transcript of the final hearing. The 

record does contain a five-page statement of the evidence, which was approved by the 

trial court on June 26, 2014, pursuant to Tennessee Rule of Appellate Procedure 24(c), 

(e). Mother argues that this statement of the evidence is an insufficient record of the 

testimony presented at trial. The Grandparents assert that the statement of the evidence is 

a complete record of the testimony presented at trial and that, coupled with the trial 

court‟s specific findings of fact and conclusions of law, the evidence in the record is 

sufficient for appellate review. As Mother notes, this Court has explained that “a parental 

rights termination case where a Statement of the Evidence would be sufficient would be 

extremely rare . . . .” See L.D.N. v. R.B.W., No. E2005-02057-COA-R3-PT, 2006 WL 

369275 at *5 (Tenn. Ct. App. Feb. 17, 2006). However, having carefully reviewed the 

record, we determine that the case at bar constitutes such a “rare occasion” in which the 

evidentiary record is sufficiently complete for appellate review in a parental rights 

termination case despite the absence of a verbatim transcript. See, e.g., In re Austin C., 

No. M2013-02147-COA-R3-PT, 2014 WL 4261178 at *6 (Tenn. Ct. App. Aug. 27, 
6

2014) (affirming the termination of the mother‟s parental rights following review of an 

evidentiary record comprised in part of a statement of the evidence).

It is well settled that “in cases involving the termination of parental rights, a record 

of the proceeding of sufficient completeness to permit proper appellate consideration of 

the parent‟s claims must be made in order to preserve that parent‟s right to an effective 

appeal.” In re Adoption of J.D.W., No. M2000-00151-COA-R3-CV, 2000 WL 1156628 

at *4 (Tenn. Ct. App. Aug. 16, 2000). As this Court explained in In re Adoption of 

J.D.W., the United States Supreme Court has held that “a parent‟s interest in defending 

against a state‟s action in terminating parental rights require[s] a record complete enough 

to allow fair appellate consideration of the parent‟s claims.” Id. at *3 (citing M.L.B. v. 

S.L.J., 519 U.S. 102, 121-22 (1996)). If the trial court has determined that the parent is 

indigent, the court must “ensure there is a record of trial evidence that is sufficiently 

complete to allow an appellate court to review the evidence in accordance with applicable 

standards, even when the petition to terminate parental rights is filed by a private party.” 

In re Austin C., 2014 WL 4261178 at *4 (quoting In re Adoption of J.D.W., 2000 WL 

1156628 at *4 n.5); see also M.L.B., 519 U.S. 102, 116 n.8 (1996) (explaining that state 

action is invoked when a private party asks the state to terminate a parental relationship).

Regarding whether an appellate record missing a verbatim transcript of the 

termination proceeding may constitute a record sufficiently complete for appellate 

consideration, this Court has recently explained:

[W]e noted in L.D.N. that “a parental rights termination case where a 

Statement of the Evidence would be sufficient would be extremely rare.” 

L.D.N. v. R.B.W., 2006 WL 369275, at *5. However, no Tennessee court 

has held that an evidentiary record that is based solely on a statement of the 

evidence would automatically constitute an insufficient record. Id. More 

specific to the evidence in this record, our courts have not held that an 

evidentiary record that is based, in part, on a statement of the evidence is 

automatically insufficient. To the contrary, our courts have “stopped just 

short of holding that a Statement of the Evidence never will be sufficient 

for proper appellate review in a parental rights termination case and that a 

transcript always must be provided.” Id. Nevertheless, the best way to 

proceed in a termination of parental rights case is by providing the appellate 

court with a complete transcript of all evidence. Id.

What is required in appeals of parental termination cases is an 

evidentiary record of sufficient completeness to permit proper appellate 

review of the parent‟s claims. See In re J.M.C.H., 2002 WL 31662347, at 

*4; see also In re Adoption of J.D.W., 2000 WL 1156628, at *3-4.
7

In re Austin C., 2014 WL 4261178 at 4-5 (emphasis in original); see also In re T.B.L., 

No. M2005-02413-COA-R3-PT, 2006 WL 1521122 at *2 (Tenn. Ct. App. June 2, 2006) 

(“Although „[a] record of sufficient completeness does not translate automatically into a 

complete verbatim transcript,‟ Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 

414 (1971), statements of the evidence will rarely suffice because of the burden of proof 

in termination of parental rights proceedings and the fact-intensive nature of the 

appeals.”).

In the record before us, we have been provided with a statement of the evidence 

summarizing testimony presented by the paternal grandmother (“Grandmother”) and 

Father on behalf of the Grandparents, as well as testimony presented by Mother, the 

maternal grandmother, a maternal aunt, and the father of Mother‟s oldest child on behalf 

of Mother. Mother‟s contention that the statement of the evidence insufficiently 

represents the termination proceeding is based on her assertions that (1) the trial court 

adopted the Grandparents‟ statement of the evidence over Mother‟s statement and (2) 

testimony revealed disagreement regarding the number of times Mother visited the Child 

“during the time period between her leaving the [Grandparents‟] home” and the filing of 

the termination petition. We will address each of these assertions in turn.

First, Tennessee Rule of Appellate Procedure 24(c) provides in pertinent part:

(c) Statement of the Evidence When No Report, Recital, or Transcript Is 

Available. – If no stenographic report, substantially verbatim recital or 

transcript of the evidence or proceedings is available, the appellant shall 

prepare a statement of the evidence or proceedings from the best available 

means, including the appellant‟s recollection. The statement should convey 

a fair, accurate and complete account of what transpired with respect to 

those issues that are the bases of appeal. The statement, certified by the

appellant or the appellant‟s counsel as an accurate account of the 

proceedings, shall be filed with the clerk of the trial court within 60 days 

after filing the notice of appeal. . . . If the appellee has objections to the 

statement as filed, the appellee shall file objections thereto with the clerk of 

the trial court within fifteen days after service of the declaration and notice 

of the filing of the statement. Any differences regarding the statement shall 

be settled as set forth in subdivision (e) of this rule.

Pursuant to subdivision (e), “[a]ny differences regarding whether the record accurately 

discloses what occurred in the trial court shall be submitted to and settled by the trial 

court regardless of whether the record has been transmitted to the appellate court.” Tenn. 

R. App. P. 24(e).
8

In the instant action, it is undisputed that Mother filed a statement of the evidence, 

to which the Grandparents responded by filing an alternative statement of the evidence. 

See Tenn. R. App. P. 24(c). The trial court, acting in accordance with Rule 24(e), 

determined that the Grandparents‟ statement of the evidence was more accurate and 

approved that statement for the record. Mother states in her brief on appeal that she 

subsequently filed a motion objecting to the statement of the evidence as approved but 

that the trial court took no further action. Mother further states that neither her original 

statement of the evidence nor her motion objecting to the adopted statement are included 

in the record. We note that pursuant to Tennessee Rule of Appellate Procedure 24(e), 

only the statement of the evidence certified by the trial court as accurate must become a 

part of the record. Moreover, nothing has prevented Mother from explaining in her brief 

on appeal any inaccuracies she alleges to be in the certified statement of the evidence.

As to the testimony regarding the frequency of Mother‟s visitation, it is important 

first to clarify the statutory determinative period at issue. The four-month determinative 

period for purposes of determining abandonment, pursuant to Tennessee Code Annotated 

§ 36-1-102(1)(A), began on April 26, 2013, and concluded on August 25, 2013, the day 

prior to the filing of the termination petition. See In re Jacob C.H., No. E2013-00587-

COA-R3-PT, 2014 WL 689085 at *6 (Tenn. Ct. App. Feb. 20, 2014) (concluding that the 

applicable four-month statutory period preceding filing of the termination petition ends 

on the day preceding filing). 

The testimony summarized in the statement of the evidence offers three different 

accounts regarding the number of times Mother visited the Child in the nine months 

spanning Mother‟s leaving the Grandparents‟ residence in November 2012 through the 

filing of the termination petition on August 26, 2013. None of these accounts isolates the 

four-month determinative period within that nine months. First, Grandmother testified 

that Mother had visited with the Child twice. Second, Father testified that Mother had 

visited the Child “three or four times.” Finally, Mother testified that she had visited the 

Child “several” times following her move from the Grandparents‟ residence. The full 

summary of each of these parties‟ respective testimony is presented in the statement of 

the evidence as follows: 

[Grandmother] testified that she and her husband have had physical 

custody of the minor child essentially since birth, but that [Mother], had 

lived with them off and on, until November, 2012, when she was asked to 

leave the family home due, in large part, to [Mother‟s] drug use. 

[Grandmother] testified that [Mother] had allowed the child to remain 

living with the [Grandparents] and that [Mother] had visited the child two 

times that she could recall since leaving the home of the [Grandparents]; 
9

that [Mother] had been provided transportation to these visits and that 

[Mother] had been welcomed to the home during those visitations; that 

[Mother] had never supported the child financially; that the child was not 

bonded to [Mother] in the way that a child bonds with a parent; that the 

child really doesn‟t know [Mother]; and that in fact [Grandmother], had 

bonded with the child as a parent normally would. [Grandmother] further 

testified that the one time they were advised, during the pendency of this 

action, to take the child to [Mother] for visitation, that the child got 

extremely upset and did not want to stay with [Mother]. [Grandmother] 

further testified that she felt that changing the child‟s placement now would 

have a detrimental effect on the emotional well-being of the child, because 

the minor child had never known any home but that of the [Grandparents]; 

and that she and her husband had provided and have the ability to continue 

providing for the child emotionally and financially.

[Father] testified: That he was willing to voluntarily terminate his 

parental rights to allow his parents to adopt the child and that same is in the 

best interests of the minor child; that he currently lives with the 

[Grandparents] in their home, with the minor child; that he and [Mother] 

had used drugs together in the past but that he is now clean, with the 

assistance of a physician and the prescription drug suboxone; that [Mother] 

had visited with the child, in the home of the [Grandparents] only 3-4 times 

since moving out in November, 2012, despite the willingness of his parents 

to allow such visitation and even to provide transportation to her for such 

visitations.

[Mother] testified: That the [Grandparents] had, in fact, acted as the 

primary caretakers for the minor child following the child‟s birth; that she 

([Mother]) had been drug addicted through July, 2013; that she had lived 

with the [Grandparents] until approximately November, 2012; that, 

following that move, she had visited the [Grandparents‟] home on “several” 

occasions, but that she had stopped visiting because the [Grandparents] 

stopped coming to pick her up for those visitations and that she had no 

means of transportation at the time; that she had not paid any money for 

support of the child to the [Grandparents] but that she had tried to give 

them some clothes “and other items” to the [Grandparents] but those items 

were refused. [Mother] testified also that she was unemployed, although 

not disabled and that she was currently relying on support provided by her 

mother. [Mother] also testified that she was now living with [C.R.] who is 

the father of her youngest child. [C.R.] has a significant criminal and drug 
10

history, but [Mother] indicated that he was doing much better and that they 

were both currently drug-free.

Having carefully reviewed the statement of the evidence together with Mother‟s 

assertion regarding disputed testimony, we determine that the statement of the evidence 

presents the disputed testimony as Mother describes it. In other words, Mother has not 

explained how her testimony allegedly differed from that presented in the statement of 

the evidence, nor has she asserted how the testimony of any other witness differed from 

its presentation in the statement of the evidence. We stress that the trial court‟s 

determinations as to witness credibility are afforded great deference on appeal. See

Jones, 92 S.W.3d at 838. We therefore conclude that the evidentiary record before us, 

including testimony summarized through a statement of the evidence, constitutes a rare 

occasion in which a record containing no verbatim transcript is sufficiently complete for 

appellate review in a parental rights termination case. See In re Austin, 2014 WL 

4261178 at *5 (“What is required in appeals of parental termination cases is an 

evidentiary record of sufficient completeness to permit proper appellate review of the 

parent‟s claims.”) (underlined emphasis added).

However, in reaching this conclusion, we must emphasize that “the best way to 

proceed in a termination of parental rights case is by providing the appellate court with a 

complete transcript of all evidence.” See id. at *4. Moreover, we further emphasize that 

if the trial court has determined that the parent is indigent, “then the trial court must 

ensure that such a record is created and made available to a parent who seeks to appeal.” 

See In re Adoption of J.D.W., 2000 WL 1156628 at *4.

V. Statutory Abandonment

Tennessee Code Annotated § 36-1-113 (2014) lists the statutory grounds for 

termination of parental rights, providing as follows:

(a) The chancery and circuit courts shall have concurrent jurisdiction 

with the juvenile court to terminate parental or guardianship rights to 

a child in a separate proceeding, or as a part of the adoption 

proceeding by utilizing any grounds for termination of parental or 

guardianship rights permitted in this part or in title 37, chapter 1, 

part 1 and title 37, chapter 2, part 4.

* * *
11

(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.

The trial court terminated Mother‟s parental rights on the ground that she 

abandoned the Child. Tennessee Code Annotated § 36-1-113(g)(1) (2014) provides in 

relevant 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; . . .

Tennessee Code Annotated § 36-1-102(1)(A)(i) (2014) defines abandonment, in relevant 

part, as:

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; . . .

Pursuant to the statute, the court must find that a parent‟s failure to visit or support was 

willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has 

previously explained:

The concept of “willfulness” is at the core of the statutory definition of 

abandonment. A parent cannot be found to have abandoned a child under 

Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either 
12

“willfully” failed to visit or “willfully” failed to support the child for a 

period of four consecutive months.

In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005).

Failure to visit or support a child is “willful” when a person is “aware of his or her 

duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no 

justifiable excuse for not doing so.” Id. at 864. Further, failure to visit or to support is 

not excused by another person‟s conduct “unless 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.” Id.

This Court further explained:

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, 

triers-of-fact must infer intent from the circumstantial evidence, including a 

person‟s actions or conduct.

Id. (citations omitted).

This Court has often held that a parent‟s demeanor and credibility as a witness 

play “an important role in determining intent, and trial courts are accordingly in the best 

position to make such determinations.” In re Adoption of Destiny R.D., No. M2011-

01153-COA-R3-PT, 2012 WL 1066496 (Tenn. Ct. App. Mar. 27, 2012) (citing In re 

D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003)). Further, as Tennessee Code Annotated § 36-

1-102(1)(G) expressly provides: “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.”

A. Willful Failure to Support

In its judgment terminating Mother‟s parental rights, the trial court found that 

Mother had provided only “token support” for the Child and “specifically no support 

during the four months immediately preceding the filing of the Petition.” The court 

further found that Mother had “willfully failed to make reasonable payments toward the 

support of the child” during the determinative period. The trial court did not, however, 

make any specific finding regarding Mother‟s ability to pay support. Having carefully 

reviewed the statement of the evidence and the record as a whole, we conclude that the 
13

evidence preponderates against a finding that Mother had the ability to pay child support 

during the determinative period. We therefore conclude that the evidence preponderates 

against a finding that Mother‟s failure to pay support was willful. See In re Audrey S., 

182 S.W.3d at 863 (“The concept of „willfulness‟ is at the core of the statutory definition 

of abandonment.”). 

It is undisputed that at the time of trial, the Grandparents had been the Child‟s 

primary caretakers since the Child‟s birth and that Mother had never paid any funds to 

the Grandparents for the Child‟s support. These facts alone, however, are insufficient to 

support a finding that Mother‟s failure to support the Child during the determinative 

period was willful. “„A parent who fails to support a child because he or she is 

financially unable to do so is not willfully failing to support the child.‟” In re R.L.F., 278 

S.W.3d 305, 320 (Tenn. Ct. App. 2008) (overruled on other grounds by In re Kaliyah S.

___ S.W.3d ___, 2015 WL 273659 (Tenn. Jan. 22, 2015)) (quoting In re M.J.M., Jr., No. 

M2004-02377-COA-R3-PT, 2005 WL 873302 at *8 n.17 (Tenn. Ct. App. Apr. 14, 

2005)). 

The record contains the trial court‟s September 30, 2013 order finding Mother 

indigent and appointing counsel to represent her. The court‟s order appears on the same 

form and directly below the notarization of Mother‟s affidavit of indigency, also dated 

September 30, 2013. This affidavit and order were therefore entered approximately one 

month following the filing of the termination petition, or one month after the close of the 

determinative period. Mother was twenty-three years old at that time. According to her 

affidavit, she was unemployed, owned personal property limited in value to 

approximately $400, and received no income from any source. She indicated that her 

2011 federal income tax return was the one most recently filed and listed her net income 

on that return as $300. According to the statement of the evidence, Mother confirmed 

through her testimony that she was unemployed. She stated that she relied on her mother 

for financial support. The maternal grandmother corroborated this testimony and also 

explained that she resided in New Jersey and had sent funds from there to help support 

Mother in Tennessee. 

It is apparent from the record that Mother has three children in all. Mother in her 

affidavit of indigency named her eldest child, C.B., as a dependent. C.B. was born to 

Mother‟s previous relationship with R.B., who testified on Mother‟s behalf. Noting that 

he now believed Mother to be “drug-free,” R.B. stated that he was “allowing” Mother “to 

exercise court-ordered visitation” with C.B. The Child at issue in this action is Mother‟s 

second child. Mother testified that at the time of trial, she was residing with her 

paramour, C.R., and her “youngest child.” The age of Mother‟s youngest child appears 

only in a pleading Mother filed in November 2013, stating that the child‟s birthdate was 

in October 2013. On appellate review, we cannot accept a mere assertion in a pleading as 
14

fact. See Tenn. R. App. P. 13(c). However, we note that Mother‟s affidavit of indigency, 

accepted by the trial court in its order granting her indigent status in September 2013, 

does not mention the youngest child. The record thus indicates that the youngest child 

was born after September 30, 2013, and before the final hearing held March 31, 2014. 

We can therefore surmise from the record that Mother was expecting a child during the 

determinative period and was at some point thereafter at least partially financially 

responsible for the care of an infant. 

In summary, the record demonstrates that during the determinative period, Mother 

was unemployed, dependent on her own mother for financial support, expecting the birth 

of her third child, and to some degree financially obligated to support her eldest child as 

well as the Child at issue. Moreover, the only documented income attributed to Mother 

in the record is the $300 net income she claimed to have reported on her 2011 federal 

income tax return, approximately two years before the determinative period. The 

Grandparents failed to present any evidence that Mother had the ability to pay child 

support during the period at issue.

Regarding the trial court‟s finding that Mother had provided token support at 

some point in time prior to the determinative period, Mother testified that she had 

attempted to give some clothes and “items” for the Child to the Grandparents. See Tenn. 

Code Ann. § 36-1-102 (1)(B) (defining “token support” to mean that “the support, under 

the circumstances of the individual case, is insignificant given the parent‟s means”). The 

statement of the evidence contains no clarification regarding whether Mother offered 

these items during the determinative period, and Mother does not assert on appeal that 

she provided any more specific information during her testimony. Having concluded that 

the evidence does not support a finding that Mother had the ability to pay support, we 

further conclude that any issue regarding whether these items constituted only token 

support is pretermitted as moot.

The trial court erred by terminating Mother‟s parental rights based upon the 

ground of abandonment through willful failure to support the Child. We reverse the trial 

court‟s finding on this statutory ground.

B. Willful Failure to Visit

In its judgment, the trial court specifically found that Mother had “willfully failed 

to visit with the minor child . . . for a period of four (4) consecutive months immediately 

preceding the filing of the Petition to Terminate parental rights in this case.” The court 

further found that the Grandparents had “exercised the role of primary caretakers and 

guardians of the minor child throughout the child‟s life” and that Mother had “exercised 

only „token visitation.‟” Upon a thorough review of the record, we conclude that these 
15

findings, made under a clear and convincing evidence standard, are supported by a 

preponderance of the evidence.

As noted above, the statement of the evidence summarizes Mother‟s testimony 

regarding her visitation with the Child following November 2012, inclusive of the 

determinative period, as follows: 

[Mother] testified . . . that following [the November 2012] move, she

had visited the [Grandparents‟] home on “several” occasions, but that she 

had stopped visiting because the [Grandparents] stopped coming to pick her 

up for those visitations and that she had no means of transportation at the 

time . . . .”

On appeal, Mother does not specify any way in which her testimony at trial differed from 

this summary. She does assert as facts that she had “never learned to drive” and that her 

ability to visit the Child was “limited and dependent on others, including the 

[Grandparents] for transportation assistance.” These assertions comport with Mother‟s 

testimony regarding her reason for ceasing visits with the Child as summarized in the 

statement of the evidence.

In contrast, Grandmother testified that she and her husband had transported 

Mother to their home to visit the Child twice since November 2012. Noting that the trial 

court is afforded great deference as to witness credibility, see Jones, 92 S.W.3d at 838, 

we still have no means of determining whether these two purported visits occurred during 

the determinative period, April 25 through August 26, 2013, or prior to that period. In 

the absence of proof regarding the specific dates of the visits, for purposes of analysis on 

appeal, we will assume that Mother visited the Child at the Grandparents‟ home at least 

twice during the determinative period. See, e.g., In re Keri C., 384 S.W.3d 731, 748 

(Tenn. Ct. App. 2010) (summarizing testimony regarding the frequency of the mother‟s 

telephone calls to the child and assuming for purposes of analysis on appeal that “a 

couple” occurred during the determinative period). The question then becomes whether 

the evidence supports the trial court‟s finding that Mother‟s two visits with the Child 

during the determinative period represented only token visitation.

Tennessee Code Annotated § 36-1-102(1)(C) defines token visitation as 

“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.” See also In re 

Keri C., 384 S.W.3d at 748 (“Whether visitation is „token‟ under this definition is a factintensive inquiry to be decided on a case-by-case basis.”). We conclude that the record is 

sufficient to support the trial court‟s finding that Mother‟s two visits with the Child 

during the determinative period (or even, arguendo, “several” visits during the nine-
16

month period preceding filing of the termination petition) constituted only token 

visitation. See, e.g., id. at 751 (concluding that visitation during the determinative period 

of “once-a-month half-hour contacts” with the two-year-old child “at large family 

gatherings [could] not be viewed as a reasonable attempt to forge a meaningful 

relationship with the child” and were thus token in nature); In re Christopher J.B., Jr., 

No. E2014-00489-COA-R3-PT, 2014 WL 5044442 at *7 (Tenn. Ct. App. Oct. 9, 2014) 

(“[W]e conclude that Mother‟s sole visit during the requisite time period amounted to 

nothing more than token visitation because the visitation was of such an infrequent 

nature.”); In re Jamontez S., No. M2013-00796-COA-R3-PT, 2013 WL 5302503 at *5 

(Tenn. Ct. App. Sept. 17, 2013) (concluding that the evidence supported the trial court‟s 

“finding that the two visits in the four months preceding the filing of the termination 

petition were token.”); but see In re E.M.P., No. E2006-00446-COA-R3-PT, 2006 WL 

2191250 at *5 (Tenn. Ct. App. Aug. 3, 2006) (determining that given the “sparse record 

on appeal and the lack of a transcript,” the record did not contain clear and convincing 

evidence that Mother‟s one visit to the child in four months could be characterized as 

token). 

As to the willfulness of Mother‟s failure to visit, she asserted in testimony and 

now states in the facts section of her brief that she was forced to stop visiting the Child 

because the Grandparents stopped providing transportation. This assertion is unavailing. 

See In the Matter of M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (“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.”). 

Mother fails to address on appeal the trial court‟s finding of token visitation. In 

her brief, Mother‟s argument related to this issue is limited to a repeated assertion that the 

evidence presented in the statement of the evidence is insufficient to support the trial 

court‟s findings. We disagree as to this statutory ground. Upon our careful and thorough 

review of the record, we conclude that the evidence does not preponderate against the 

trial court‟s finding, under a clear and convincing standard, that Mother abandoned the 

Child by engaging in only token visitation during the determinative period. We 

determine that the trial court did not err in terminating Mother‟s parental rights based 

upon this statutory ground.

VI. Best Interest of the Child

When a parent has been found to be unfit by establishment of a statutory ground 

for termination of parental rights, as here, the interests of parent and child diverge, and 

the focus shifts to what is in the child‟s best interest. In re Audrey S., 182 S.W.3d at 877. 

Tennessee Code Annotated § 36-1-113(i) (2014) provides a list of factors the trial court is 
17

to consider when determining if termination of parental rights is in the child‟s best 

interest. This list is not exhaustive, and the statute does not require the court to find the 

existence of every factor before concluding that termination is in a child‟s best interest. 

In re Audrey S., 182 S.W.3d at 878 (“The relevancy and weight to be given each factor 

depends on the unique facts of each case.”). Further, the best interest of a child must be 

determined from the child‟s perspective and not the parent‟s. White v. Moody, 171 

S.W.3d 187, 194 (Tenn. Ct. App. 2004).

Tennessee Code Annotated § 36-1-113(i) lists the following factors for 

consideration:

(1) Whether the parent or guardian has made such an adjustment of 

circumstance, conduct, or conditions as to make it safe and in the 

child‟s best interest to be in the home of the parent or guardian; 

(2) Whether the parent or guardian has failed to effect a lasting 

adjustment after reasonable efforts by available social services 

agencies for such duration of time that lasting adjustment does not 

reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation or 

other contact with the child; 

(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child; 

(5) The effect a change of caretakers and physical environment is likely 

to have on the child‟s emotional, psychological and medical 

condition;

(6) Whether the parent or guardian, or other person residing with the 

parent or guardian, has shown brutality, physical, sexual, emotional 

or psychological abuse, or neglect toward the child, or another child 

or adult in the family or household; 

(7) Whether the physical environment of the parent‟s or guardian‟s 

home is healthy and safe, whether there is criminal activity in the 

home, or whether there is such use of alcohol, controlled substances 

or controlled substance analogues as may render the parent or 

guardian consistently unable to care for the child in a safe and stable 

manner; 
18

(8) Whether the parent‟s or guardian‟s mental and/or emotional status 

would be detrimental to the child or prevent the parent or guardian 

from effectively providing safe and stable care and supervision for 

the child; or 

(9) Whether the parent or guardian has paid child support consistent 

with the child support guidelines promulgated by the department 

pursuant to § 36-5-101. 

In analyzing the best interest factors, the trial court in its judgment terminating 

Mother‟s parental rights stated in pertinent part:

[T]he termination of parental rights of [Mother] and adoption by the 

[Grandparents], is in the best interests of the minor child in question, based 

upon the following factors:

a) A meaningful relationship has not been established between the 

minor child and [Mother] due to her infrequent contact with the 

minor child.

b) That a change in the caretakers and the physical environment of the 

child would have a negative impact upon the child‟s emotional 

and/or psychological well-being.

c) That both during the four (4) months preceding the filing of the 

Petition and after, [Mother] has failed to pay child support consistent 

with the child support guidelines promulgated by the department 

pursuant to Tenn. Code Ann. § 36-5-101[.]

d) That the [Grandparents] have assumed primary parental 

responsibilities for the minor child since the child‟s birth, and in 

doing so, have exhibited the willingness and ability to support the 

minor child in all respects.

The trial court therefore concluded by clear and convincing evidence that it was in the 

Child‟s best interest to terminate Mother‟s parental rights. We agree.

Mother‟s sole argument regarding the best interest analysis is that the statement of 

the evidence does not indicate the trial court‟s finding. She therefore asserts that the 

“evidence is insufficient” to support the court‟s determination regarding best interest. 
19

We disagree. The absence of a transcript containing the court‟s verbatim ruling on the 

day of trial does not prevent this Court from reviewing the trial court‟s findings of fact 

and conclusions of law presented in its written judgment. As this Court has previously 

explained, a trial court speaks through its written orders, and the appellate courts review 

only the trial court‟s written orders. See In re Conservatorship of Alexander v. JB 

Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011). Despite Mother‟s lack of 

substantive argument regarding the best interest analysis, we will review the trial court‟s 

consideration of the statutory factors due to the significance of this analysis. See In re 

Arteria, 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010) (overruled on other grounds by In re 

Kaliyah S. ___ S.W.3d ___, 2015 WL 273659 (Tenn. Jan. 22, 2015)).

Contrary to Mother‟s assertion, the trial court‟s written findings indicate that it 

analyzed the factors contained in Tennessee Code Annotated § 36-1-113(i) in 

determining that termination was in the Child‟s best interest. In particular, the trial 

court‟s findings show that it weighed the following factors against preserving Mother‟s 

parental rights: (3) failure to maintain regular visitation or other contact with the Child; 

(4) lack of a meaningful relationship between Mother and the Child; (5) negative effect a 

change of caretakers and physical environment is likely to have on the Child‟s emotional, 

psychological, and medical condition; and (9) failure to pay child support. See Tenn. 

Code Ann. § 36-1-113(i). Mother does not dispute that the Grandparents had been the 

Child‟s primary caregiver since birth. Grandmother testified that the Child had not 

bonded with Mother, and Mother offered no proof to contradict this testimony. The GAL 

opined at trial that the best interest of the Child would be served by terminating both 

parents‟ rights to the Child and allowing the Child to be adopted by the Grandparents. 

Mother has paid no funds toward child support. Having previously concluded that the 

evidence does not preponderate against the trial court‟s finding that Mother abandoned 

the Child by willfully failing to visit her, we determine that the evidence does not 

preponderate against the trial court‟s findings as to these statutory factors.

Further, our review of the record reveals that the remaining statutory factors 

applicable to this action do not weigh in favor of maintaining Mother‟s parental rights. 

See Tenn. R. App. P. 13(c) (noting that this Court “may consider those facts established 

by the evidence in the trial court and set forth in the record. . . .”); see In re Dominique 

L.H., 393 S.W.3d 710, 716 (Tenn. Ct. App. 2012) (“We must then 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.”); 

White, 171 S.W.3d at 194 (taking notice of the appellate record in affirming trial court‟s 

best interest finding). The trial court did not directly address in its judgment allegations 

that Mother had struggled with substance abuse throughout the Child‟s life.
20

By Mother‟s undisputed admission, she had been “drug addicted” through at least 

July 2013, a month prior to the filing of the termination petition. She testified that at the 

time of trial in March 2014, she was “currently drug-free.” In Mother‟s summary of the 

facts on appeal, she states that she “has remained drug free since before the filing of this 

petition.” Her citation to the record for this assertion is to the summary of the maternal 

grandmother‟s testimony that she “had seen a remarkable improvement in her daughter 

since she had been through drug-rehabilitation.” Mother presented no documentation of 

a drug rehabilitation program. Mother also states in the facts section of her appellate 

brief that she underwent “numerous drug screens, including one ordered by the Trial 

Court in this case.” The citation to the record for this assertion is to the trial court‟s 

January 22, 2014 order directing that all parties undergo hair follicle drug testing. 

Mother presented no documentation of a completed hair follicle drug screen.2 Mother 

acknowledged at trial that her paramour, C.R., with whom she was residing, had a 

“significant criminal and drug history.” She did assert that C.R. was also “currently 

drug-free.” 

Although Mother presented testimony that she may have successfully turned a 

corner in her struggle with substance abuse immediately preceding the filing of the 

termination petition, the record cannot be said to weigh in Mother‟s favor regarding the 

following factors: (1) whether Mother “has made such an adjustment of circumstance, 

conduct, or conditions as to make it safe and in the child‟s best interest to be in the home” 

and (7) whether the “physical environment” of Mother‟s home is healthy and safe, 

including whether there is “criminal activity in the home” and whether there is such use 

of controlled substances “as may render the parent or guardian consistently unable to care 

for the child in a safe and stable manner.” See Tenn. Code Ann. § 36-1-113(i). We 

conclude that the record sufficiently supports the trial court‟s finding by clear and 

convincing evidence that termination of Mother‟s parental rights was in the Child‟s best 

interest.

VII. Conclusion

The decision of the trial court is affirmed in part and reversed in part. We reverse 

the trial court‟s finding that Mother abandoned the Child by willfully failing to support 

her. We affirm the trial court‟s judgment in all other respects. Costs on appeal are 

assessed equally to the appellant, Katie R., and the appellees, Johnny B. and Deborah B. 

This case is remanded to the trial court, pursuant to applicable law, for enforcement of

 

2We note that such documentation, if presented as an exhibit at trial, would have been included in the 

appellate record pursuant to Tennessee Rule of Appellate Procedure 24(a), regardless of the availability of 

a verbatim transcript. 
21

the trial court‟s judgment terminating parental rights and collection of costs assessed 

below.

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE