### FILED May 19, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

BETHANY CH RISTIAN SERVICES, ) C/A NO. 03A01-9810-JV-00345 INC., ) ) HAMILTON JUVENILE Appellee, ) ) HON. S UZANNE BAILEY, v. ) JUDGE ) JONATHAN NATHANI EL JACKSON, )

) Appellan t. ) ) IN THE MATTER O F: ) AFFIRMED ) AND JACOB ELI

JAH MELTON. ) REMANDED

MIC HAE L S. JE NNIN GS, S AM PLES , JENN INGS & PIN EDA , P.L.L.C ., Chattanooga, for Appell ee. BAR BAR A L. BR OER SMA , Chattano oga, for A ppellant.

O P I N I

O N

Franks, J.

In this ter

mination of parent

al rights c ase, plaint

iff Bethany Chri stian Services, Inc ., sued the put ative father, Jonathan Nathanie l Jackson, and t

he Trial Judge terminated Jackson’s parental rights.

On December 1, 1997, Jacob Elija h Melton, was born to Jess ica Renee Melton. Jessica

identified t

he father as Jacks on, and on December 2, 1997, Jes sica entered into an agreem ent with pla intiff to surren der her par ental rights to th e child and to have the chil

d placed for adoption. This action a gainst Jackson was fi

led on December 10, 1997, allegi ng abandonment, and seeking custody for adopt ive placement. Plai

ntiff late r amended the Petit

ion adding alte

rnative grounds for2

termination of parental rights un der Tenn. Cod e Ann. § 36-1-1 13(g)(8)(A)(I), (ii), (iii), (iv), and (vi). (R. 1 8).

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

he had abandoned his child , requesti ng blood tests t

o determine paternity, visitation w ith the child pe nding the re sults of the tes ting, and req uesting, if paternity be establi shed, 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 convinci

ng evidence: That the p etition filed by B ethany Christia n Services , Inc., is well taken and should be sust ained and relie

f granted on the grounds of abandonment and other causes therein st

ated and as amended in that the respondent has will

fully fai led to visi

t and willfull

y failed t o make reasonable pay

ments toward the support of the child’s

mother during the four (4) months immediat ely precedi

ng the birth of t

he child; tha

t the responde nt has failed , without go od cause or excuse , to pay a reason able share of prenatal , natal, and postnatal expens es involving t he birth of the child in accorda

nce with his financial means promptly upon his receipt of notice of the chi

ld’s impending bi

rth; that the respondent has f

ailed, without good cause or excus e, to make reasonabl e and consistent payments fo r the suppo rt of the child in accorda nce with th e child support guideli

nes promulgated by

the department pursuant to 36-5-101; that the res

pondent has failed t

o seek reasonable vi sitati on with the child; that

the respondent has f

ailed to manifest an abilit y and willingness t

o assume legal and phy sical cust ody of the chil

d; that the responde nt 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 resul

ts finding Jonat

han to be the father

were released on March 18, 1998 . At the trial Jon athan testified that after the b aby was bo rn Jessica w ould see him at school and gi ve him derogatory

looks. She lat

er started s aying “hell

o” when he saw her. Sometime in Februar y of 1998, Jess ica approached him and sai d, “ple ase d on’t go to the c ourt , don ’t go , I wa nt th e bab y to go to an ado ptio n ag ency, whatever.” He said t

hat he told one of her

friends that

he wanted to see pict

ures, and that Jessica told the fri

end that she would not l et him see any. He also said that he was

not em ployed, b ut that he could g et a sum mer job at the po st offic e or a gr ocery stor e.1 At the time of trial, Ms. Melton was ag e 14 and Jackson was 16.

3 When asked if he is willi ng to accept custody

and if he would like t

o have custody,he said, “Correct .”

Except for fili

ng the counter-act

ion to get cust

ody of Jacob, he made no effort to see t

he child. He admitt

ed that Jessi

ca told him she was pregnant and that he was the father. He al so said that she called him someti mes, but that he was not allowed to speak to her . He knew that the baby was born in December because he saw Jessica at s chool. Though he knew the baby was bor n, he never att

empted to check on the bab y, and nev er offe red Jess ica any m oney to su pport th e 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 preponder ates otherwise.T.R.A.P. Rule 13(d). We conclude the evidence does not preponde rate against

the finding by

the Trial Court , by clear and convincing eviden ce, that Jackson aband oned his child and that the o ther factors justify ing terminati

on were present. I

t does not prepondera

te against t

he finding that termination a

nd adoption are in t

he best inter

ests of the chi

ld. 1 Tennessee Code Annotated provides that “[t]er

mination of parent

al or guardianship ri

ghts must be based upon: ( 1) A finding by the court by cl

ear and convincin g evidenc e that the gro unds for te rmination o f parental o r guardians hip rights have been established ; and (2) That termination o f the parent’s or guardian’s rights is in the best i

nterests of t

he child.” Tenn. Code Ann. § 36- 1-113(c) (Supp. 1998). The relevant

grounds for terminat

ion of parental r

ights in thi s case are: (1) Aban donmen t by the parent o r guardian, a s defined in §36-6 -102, h as occu rred; . . . (8)(A) The parental

rights of any

person who is not the l egal parent or guardi an of a child or who is des cribed in § 36-1-117( b) or (c) may al so be terminated ba sed upon any one (1) or more of4 the following additional grounds: (I) T he p erso n ha s fai led, w itho ut go od c ause or ex cuse , to pa y a reasonable share

of prenatal, natal, and post natal expenses involving the birth of the ch ild in accordance w ith the person’s financial means pr

omptly upon the per

son’s receipt

of notice of the child’s

impending birth; (ii) The person has failed, wit hout good cause or excuse,to make reasonab le and con sistent paymen ts for the sup port of the c hild in accordance with the chi ld support guidel

ines promulgated by

the department pursuant

to § 36-5-101; (iii) The per

son has failed t

o seek reasonable vi sitati on with the child, and if v isitation has be en granted , has failed to v isit altogether or

has engaged in only

token visit

ation, as defi

ned in § 36-1-102(1)(C); (iv) The person has failed to manifest an ability and willingness to assum e legal a nd physic al custo dy of the child; . . . (vi) The pe rson has fa iled to file a pe tition to establish paternity of the child withi

n thirty (30) days aft

er notice of al

leged paternity by the chil

d’s mother, or as

required in § 36-2- 318(j), or after making a claim o f paternity pursuant to § 36-1-11 7(c)(3). Tenn. Code Ann. § 36-1-11 3(g) (Supp. 1998 ).

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

ny conduct on the part of the pa

rent which evinces a s ettled purpos e to forego all pa rental duti

es and relinquish all parental claims to the c

hild. . . .” Ex Parte Wolfenden , 48 Tenn. App. 433, 441, 348 S.W.2d 751, 755 ( 1961). To prove abandonment, t he evidence had to show “an actual desertion, accompanied with an intention to entirely s ever, so far as it i s possible t

o do so, the parent

al relati onship and throw off all obligations growing out of the same.” Fancher v. Mann, 58 Tenn. App. 471, 476, 432 S.W.2d 63, 65 (19 68). In 1996, however, the Genera l Assembly changed t

his definit

ion of abandon ment, setting f orth in its place its own de finition. The General A ssembly explicitl y stated: “Abandonment” and “abandonment of an infant” do not have any other defin ition excep t that which is set forth in this section, it being the in tent of the g eneral assem bly to establish the only groun ds for a bando nmen t by statuto ry definitio n. Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all parental right

s and responsibil

ities in orde r for a d etermi nation of aban donm ent to be made

.5 Decision s of any co urt to the con trary are he reby legislativ ely overruled. ” Tenn. Code Ann. § 36-1-10 2(1)(G) (1996) (em phasis added).

The definition of abandonment as contained in the Code is as follows: (1)(A) “Abandonment” means, for pur poses of terminat

ing the parental or g uardian righ ts of paren t(s) or guardia n(s) of a ch ild to that chil

d in order to make tha

t child available for adopti on, that: (I) For a perio d of fou r (4) consec utive mon ths immed iately preceding the fi

ling of a proceedi

ng or pleading to t

erminate the parental righ ts of the pare nt(s) or guard ian(s) of the c hild who is the subject of t

he petition for

termination of

parental rights or adoption, th at the paren t(s) or guardia n(s) either ha ve willfully failed to visit or have will fully fai led to support or

make reasonable pay

ments toward the support of the child;

. . . (iii) A biologic al or legal fath er has either w illfully failed to visit or willfull

y failed t o make reasonable pay

ments toward the support of the chi

ld’s mother duri

ng the four (4) months immediately

preceding the bir

th of the child;

provided, that

in no instance shal

l a final order

terminating t

he parental ri

ghts of a parent as deter

mined pursuant to subdi vision (1)(

A)(iii) be entered un til at least thirty (30) days ha ve elapsed since the da te of the child ’s birth;

. . . (B) For purposes of thi s subdivision ( 1), “token support ” means that the supp ort, under the circumstan ces of the in dividual ca se, is insignificant given the parent’s means; (C) For purposes of thi s subdivision ( 1), “token vis itation” means that the vi sitati on, under the cir cumstances of the individual case, constitutes nothing m ore than perfunctory visitation or visitation of such an infrequ ent nature of such sh ort duration as t

o merely est

ablish minimal or

insubstantial contact with the ch ild; (D) For p urposes o f this subdiv ision (1), “w illfully failed to support” or “willfully failed to mak e reasonable paymen ts toward such child’s support” means that for a period of four (4) consecutive months,

no monetary support

was paid or that t

he amount o f support p aid is token s upport; (E) For pu rposes of th is subdivision (1), “willfully failed to visit” means that willf

ul failure,

for a period of four (

4) consecutive months, to visi

t or engage in more t

han token visit

ation; (F) Abandonment may not be repent ed of by resuming vi sitati on or suppor t subseque nt to the filing o f any petition se eking to terminate par

ental or guardi anship rights or seeking the adopt

ion of a child; Tenn. Code Ann. § 36-1-10 2 (Supp. 1998).6 Jackson argues that

he did not abandon the chi ld, but he rel

ies solely

on the definiti

on of abandonment in the court cases that were l

egislati vely overrul

ed by the statut ory defini

tion of abandonment. Apply ing the stat

utory defi

nition, as the

statute r equires, cl

ear and convincing evidence establis hes that Jackson di

d abandon his child

. It is undispute d that Jacks on made no suppo rt payments to J essica wh ile she was pregnant or aft er the baby was born.It is als o undisputed that Jackson made

no attem pt to visit J essica w hile she was p regnan t or visit th e child a fter he w as born

. Instead, Jac

kson avoided contact wit h Jessica by

refusing to ta

ke her phone calls and refusing to ta

lk to her at s chool. Since the re was no visitat

ion or support of Je ssica before the child was born, this i s clearly a situation that falls

within the defini

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

lure to visi

t or willful

failure to make r

easonable payments toward the support of the chi

ld’s mother for four

months immediately

preceding the bir

th of the child. Willful fail ure to visit

means minimal or insubstantial c ontact, and willful fail

ure to support means t

hat no monetary support, or only token support, was paid for a period of four consecutive months. Moreover, other grounds e xist for terminating t

he parental ri

ghts of Jackson. The st atute provides

six additi onal grounds for terminati

on of the rights of

a person who is not the l egal parent. These grounds apply to Ja ckson

. See Tenn. Code Ann. § 36-1-113(g)(8) (A). Any of these gr ounds constitu tes a bas is to term inate pa rental rig hts, but f ive are a pplicab le to Jack son. Gro und (I) st ates that t he “p erso n ha s fai led, w itho ut go od c ause or ex cuse , to pa y a reasonable share

of the prenatal , natal, and postnatal expens es involving t he birth of the child in accordance w ith the person’s financial mea ns promptly upon the pe rson’s receipt of noti

ce of the child’ s impending birt h.” Jackson was notif

ied of the7

pregnancy someti

me in April, 1997, a

nd the child was born December 1,1997. Jackson knew that the chi ld was born in December. Though he admit ted that he was in good physical

shape and could get a j ob, he made no attempt t o pay any of t

he expense s of the birth o f the child. H e cannot re ly upon Jessica ’s failure to co ntact him or provide him with bi

lls, becaus e he had the responsi bility to initi ate contact and gi ve suppo rt. Ground (ii) st ates that “t

he person has fail

ed, without good cause or excuse, to m ake reason able and c onsistent pa yments for the support of the child in accordance with the chi ld support guidel

ines . . . .” Granted, Jacks on was not employed, b ut he testified th at he was capable o f some type o f employm ent. The ch ild support gu idelines prov ide for imp uting incom e to person s who are voluntarily unemployed. Jacks on thus has no good excuse for fa iling to make some t

ype of support payments.

Ground (iii) provides tha t the “person has failed to seek reaso nable vis ita tio n wit h the chil d . . . .” Jack son h as never m ade a n att empt to s ee t he child . As of the time of tr

ial, when the chi

ld was almost five months old, Jackson had never seen the ch ild, and this fac tor is undispu tedly present.

Ground (iv) provide s that the “pe rson has fa iled to man ifest an ability and willingness t

o assume legal and phy sical cust ody of the chil

d.” Jackson was informed of the impending bi rth of his chil

d in April, 1997,and he knew the child was born in December, 1997. During t he pregnancy and aft

er the birt

h, he never init

iated any cont act with Jessica.

Lastly,ground (vi) provides that the “per son has failed t

o file a peti

tion to establi sh paternit

y of the chil

d within thir

ty (30) days after notice of alleged pate rnity b y the c hild ’s mo ther .” Jac kson did n ot fil e a pe tition to es tabli sh pa tern ity, and did not adm it the pate rnity until M arch, 19 98, wh en bloo d tests w ere retu rned.8

The statute, however, requires only notice of alleged

paternit y, not certa in patern ity. Under the terms of the statue, thi s ground for terminat ion of parental r

ights exist

s as well. We af firm the judgm ent of th e Trial C ourt in a ll respec ts.

Jackson has raised the issue of the constitut

ionality of T.C.A. §36-1-113 as applied to unbor

n children of unwed parents. This issue was not raised in t

he Trial Court, and the Tenn essee Sup reme Co urt has stated, “ It has long b een the ge neral rule that question s not raised in the trial court w ill not be enterta ined on ap peal and th is rule applies to an attemp t to make a constitutiona l attack upo n the validity of a statute for the first

time on appeal unles s the statut e involved is so obvi

ously unconst

itutional on its face as t

o obviate the neces sity for any discussi

on.” Lawrence v. Stanford , 655 S.W.2d 927, 929 (Tenn. 1983). Nor was the Attorney Genera l notified of a

ny challenge, as

required by Tenn. R. Civ. P. 24.04. Since the issue was not raised in t

he Trial Cou rt, and since th e statute is not so “uncons titutional on its fa ce as to obv iate the nec essity for a ny discus sion,” w e declin e to con sider this issue on appea l. Accordingly,we remand the case to the Trial Court with cost of the appeal assessed to the appellan t.

__________________________ Herschel P. Franks, J. CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ Charles D. Susano, Jr., J.