### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 9, 2000 Session
BRADLEY J. BROWN v. MICKEY JOE ROGERS
Appeal from the Circuit Court for Rutherford County

No. 33086 Don R. Ash, Judge

No. M2000-01277-COA-R3-CV - Filed February 5, 2001

The biological fathe

r appeals the ter

minati on of his parental rights which allowed the adoption of his two children by the stepfathe rafter the mother’s death. Although the evidence that the father abandoned

his children was clear and convincing, the proo f, when s upplemented with post-judgment facts, was insufficient to determine whether termination of parental rights was in the best interests of the children. W

e remand for a he

aring on the childr

en’s best intere

sts. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Vacated and Remanded

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which W ILLIAM C. K OCH , J R ., and W ILLIAM B. C AIN , JJ., joined.
David Goad, Murf

reesboro, Tenne

ssee, for the app

ellant, Mickey Joe

Rogers.
Daryl M. South, Murfreesboro, Tennessee, for the appellee, Bradley J. Brown.

OPINION
Mickey Rogers, the appellant, and his then-wife, Lisa (no w deceased) had two children, a son, born May 1990, and a daughter , born May 1992. The family lived in Kentucky when the paren ts separated, and the mother brought the children to Tennessee, where her fa the r an d stepmother

lived. Mr. Rogers moved to Virginia. The mother obtained a divorce and custody of the children in 1994. After the divorce was final, Bradley Brow n, the appellee, move d in with t he mother and the children. Mr. Brown married the mother in 1996 and they had a son who was three yearsold at the time of the hearing in t his matter. Mr. Rogers also remarried and started a new fam ily. His wife was in the U.S. Navy. She was transferred to San Diego in August or September of 1996. Mr. Rogers visited his family in Tennessee on his way to California and s

pent some time withhis children then. After moving to California, Mr. Rogers was not employed, choosing to stay at home with his two y

ounger childre

n because of his

wife’s absence

s due toher naval assig

nments and because of the high cost of day care

.-2-

On February 24, 1999, Lisa (Roge rs) Brown died of pneumonia. Some time later Mr. Brown called Mr. Rogers to inform him of the death, and Mr. Rogerscame to Tennessee for the children. The record is unclear what, if any, contact Mr. Roge rs hadwith the children at that point. On March 15, 1999, Mr. Rogers

filed a peti

tion asking immediate return to him of his minor children. An emergency

hearing was held later that day. A few minutes befor e the heari ng Mr. Brown fi l ed a petition seeking to termi

nate Mr. Rogers ’ s parental rights so he, the stepfather, could adopt the children. After the emergency hearing , Mr. Brown was awarded temporary custody , pending a final hearing. Mr. Rogers was g ranted visitation o

n specific dates and additi onal telephonic visitation pending another hearing . Mr. Rogers was also ordered to pa

y previously

ordered child sup

port. The trial court consolidated the two petitions. After another hearing, Mr. Rogers was given additional specific dates of daylong visitation.
Mr. Rogers rema

ined in Tennessee

, got a job, visited

with his children who are the subject of this action, and paid the support ordered by the cour t. His si ster-in-law cared for his younger children. The final hearing on both petitions was held April 14, 1999.
Although the testimony

was disputed on a number of specific issues, it is undisputed that Mr. Rogers did not make chil d support payments after September 1996. Conflicting testimony w as presented as to whether regular payments were made before then, but

the father admitted

he had not
ma de support payments since 1996, when he left his employment. His re ason for not paying the support was that he had not worked for the past two years, after moving to San Diego, beca use he
was caring for the

children of his se

cond marria

g e. He said that he did not attempt to modify the child support order based on his reduced income because he could not afford counsel.

The father testified that helast visited the children in 1996 while on his way to San Diego. He testified that he called the children every Sunday for a year or

more after that, but then his former wife began

obstructing his efforts to contact the children. The father did not disp

ute his failure to visit the children, but asserted

that he was prevented from doing so by his former wife, the children’s mother. Mr. Rogers admitted that he had spent time in Tennessee visiting his mother a nd othe r fam ily, but said that the ch ildren’s mother w

ould not allow him to vi

sit the children, threa

tening to have him arrested if he attempted to see them. The stepfather denied that the mother had ever prevented the father from calling or visiting the children. Similarly, the stepfather testified that the biological father did not sen d gifts or cards

to the children fo

r Christmas or their

birthdays, al though the father’s family

brought gifts o

n occasion; Mr. Rogers claimed he had sent gifts and cards on hol ida ys and birthdays, and that, on occasion, he sent gifts through his family , asking that they not reveal that he w

as the source of t

he gifts.

The trial court found Mr. Rogers had abandoned the children and ordered that Mr. Rogers’s parental rights be terminated. The court held a later hearing on Mr. Brown’s pe

tition toadopt the children. The petition was granted, and that order, although not the transcript, appears in the record on appeal. Mr. Rog

ers appeals the t

ermination of his pa

rental rights.1 Tenn. Co de Ann. § 3 6-1-102 d efines “abando nment” as fo llows:
(continu ed...)
-3- I. Standard of Review

Termination of a person’s rights as a parent is a grave and final decision, irrevocably altering the lives of the pare

nt and child

involved and “severing forever all legal rights and obligations” of the parent. Tenn. Code Ann. § 36-1-113( l )(1). Because of its consequences, which affect fundamental constitutional rights, courts appl y a hig her standard of proof when adjudicating termination cases. See O'Daniel v. Messier , 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995). To justify the termination of parental rights, the grounds for termination, and the fact that termination is in the best interests of the child, must be established by clear and convincing evidence. See Tenn. Code. Ann. § 36-1-113(c) (

Supp. 2000); State De

p’t of Hum an Servs. v. Defriece , 937 S.W.2d 954, 960 (Tenn. Ct. App. 1996). "This heightened standard serves to prevent the unwarranted termination
or interference

with the biological

parents' rights to

their children." In re M.W.A. , 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

The “clear and convincing evidence” stan

dard defies pre

cise definition. Whi

le it is
more exacting thanthe preponderance of the evidence standard,it does not require such certainty as the beyond a r ea son able doubt standard. Clear and convincing evidence elimina tes any seri ous or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence. It should pr oduce in the fact-finder’s mind a firm belief or c

onviction with reg

ard to the truth of

the allegations

sought to be established.

O’Daniel , 905 S.W.2d at 188 (citations omitted).

Under this heightened

standard of review, we must first review the trial court’s fin

dings in accordance

with Tenn. R. App. 13(d). That review is de novo , with a presumption of correctness for the trial court ’s findings of fact, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d). The

n, we must

determine whether the fac ts make out a clea

r and convincing

case in favor of terminating the parents’ parental rights. See In re Drinnon , 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988).

II. Grou nds for Terminati

on of Parental Rig

hts

Parental rights may

be terminate

d in only a limited number of statutorily defined circumstances.

In order to te

rminate a parent’s rights, one or more of the asserted statutory g rounds must be proved by clear and convincing evidence. See Tenn. Code Ann. § 36-1-113(c).

The ground for ter

mination in

this case was aba

ndonment, which re

quires a showing of either willful failure to visit or willful failure to support. 1 The trial court found, by clear and convincing1 (...continued) (1)( A) "Abando nment" m eans, for purpo ses of terminating the parental or guard ian rights of parent(s) or guard ian(s) of a c hild to that ch ild in order to mak e that child a vailable fo r adoptio n, that:

(i) For a peri od of four (4) consecutive mon ths immediately preceding the filing of a proceeding or pleading to termina te the parent al right s of the par

ent(s) or guardian(s ) of the chi

ld who is the subje

ct of the petiti

on for termina

tion of parental rights or ado ption, that parent(s) or gu ardian(s) either ha ve willful

ly fail ed to visi

t or havewillfully failed to suppor t or mak e reasona ble paym ents toward the supp ort of the ch ild;

*** (F) Abandonment may not be repente d of by resuming visitati on or support s

ubsequent to the fil

ing of any petitio n seeking to terminate parental or guardians

hip right s or seeki

ng the adoption of a child

. . .

2 The statut

e requires

failur e to support

for at l east the four months immediat ely precedi

ng the fil

ing of the petition. See Tenn. C ode An n. § 36-1 -102(1 )(A). Th us, the sup port paid by Mr . Rogers p ending the final hea ring in this matter cannot

be used to show he “ repented of” his pri

or failur e to support

for purposes

of determini

ng aband onme nt, because that suppo rt was paid after the fil ing of the petition. See Tenn. Code An n. § 36-1-102(1)(F). The trial co urt did no t consider it.
-4- evidence, that Mr. Rogers abandon ed his children on both bases. Specifically, the court found, by clear and convincing e

vidence, that Mr.

Rogers was will fully under employed, n

ot financially disabled, and by his own testimony confirm ed that he h ad failed to support the children. The evidence does no

t preponderate a

gainst these fin

dings; it supports th

em.
On appeal, Mr. Rog

ers asserts that t

he trial court impr

operly app

lied the willfulnes s require ment, in contravention of the Tennessee Supreme Court’s holding in Tennessee Baptist Children’s Home v. Swanson , 2 S.W.3d 180 (Tenn. 1999). In that case, the courtstruck down a definitional section of the failure to suppor t statute which, in e

ffect, eliminate

d the courts’ abil

ity to determine actual willfulne ss, or intent,on an individualized consideration of the facts of a particular
case. See Swanson , 2 S.W.3d at 188. At the hearing in the case before us, the trial court and counsel diddiscuss the standards declared unconstitutional in Swanson ; howeve r, our read ing of the trial court’s ruling does not support an argument that the court relied upon or applied that standard. To the contrary, the court determined that Mr. Rogers ha d not supported his c hildren because

of his voluntary underemployment. In other words, the court examined the facts of the particular situation presented and a

pplied a standard

requiring willf

ulness.

Mr. Rogers, the father, continues to assert that his un employment,

admittedly vo

luntary so that he could

stay home wit

h his younge

r children, rend

ered him unable to pay the s upport, th u s making hi s failure to suppor t the older childre

n not willful. In ess

ence, Mr. Rogers

attempts to convince this court that he was entitled to nurture his second family at the expe

nse of hisfirst. We

are not persuaded and

find no error in th

e trial court’s de

cis ion. Mr. R ogers did not supp ort his children, and his financial inability to do so was of

his own making, a willful and voluntary choice. We affirm the tria

l court’s finding

of willful failure

to support. 23 The fail ure to vi sit i ssue is

somewhat c om plicated, becau se the statute requires failure to visi t for four consecutive months immediately preceding the fili ng of the termination petit ion. The evidence indicates that Mr. Rogers

came to Tennessee upon learning of his former w ife’s death in order to retrieve his chil dren. The record does not tell us how much con tact and visitation he had with the m at that time. It is clea r that his efforts w ere opposed by Mr. Brown. Having been obstructed i n his eff orts, Mr. Rogers f

iled his petit

ion seeking an order requiring Mr. Brown to give physi cal custody of the children to him. Only after notice of t his petition did Mr. Brown file h is petition to term inate Mr. R ogers’s parental righ ts. But see Tenn. Code Ann. § 36-1-102(1 )(C) (defining “token visi tation”).
-5- The failure to suppor

t finding is suffic

ient t o est ablish abandonment. However, the trial court additionally

found, by clear and convincing evidence, that Mr. Rogers’s “visitation with his children, if any, was only token in nature” a nd spec ifically

found Mr. Roger

s’s testimony

regarding hi

s attempts to contact the children and the thwarting of those attempts by the children’s mother no t credible. The cou rt w ent on to find, by clear and convincing proof, that Mr. Roger s had not participated

in the children’s lives for a long time and had a “conscious disregard or indifference” to the responsibilitie

s of both support and visitation. 3 The trial court’s finding regarding the failure to visit is not raised

by Mr. Roge

rs on appeal; thus,

we need not addr

ess it.

We agree with the trial court that, because he willfully failed to support them, Mr. Ro gers abandoned

his children, as that ground is defined by statute, that such abandonment was shown by clear and convincing evidence, and, therefor e, that grounds for

termination of his p

arental rights exist.

III. Best I nterest of the Children

Termination of

pa rental rights requires, in addition to grounds, a showing, by clea r and convincing evidence, that the termination is in the best interest of the child. See Tenn. Code Ann. § 36-1-113(c)(2). “It is therefore beyond question that before a parent’s rig hts can be terminated, t here must be a s howing that the pa rent is unfit or tha

t substantial harm t

o the child will res

ult if parental rights are not terminated.” Swanson , 2 S.W.3d at 188. The best interest analysis hasbeen considered the equivalent of a determination of whether substantial harm w

ill result to the child i

f parental rights are not

terminated. See State

v. Pruitt, No. M2000

-00416-CO

A-R3-CV,

2000 WL 827957 at *11 (Te nn. Ct. App. June 27, 20 00) (no Tenn. R. Ap

p. P. 11 application

filed) (best interests of child require

d termination bec

ause substantial harm w

ould result

otherwise); Bryant v. Bryant , No. M1999-01280-COA-R3-CV, 2000 WL 1483217 at *6 (Tenn. Ct. App. Oct. 10, 2000) (no Tenn. R. App. P. 11 application filed) (“parental rights may be terminated

only when continuing the parent-child relationship poses a substantial threat of harm to the child”).

Because the law requires

both grounds and

a determination of best

interest, it cannot be presumedthat the existence o f grounds n

e cessarily leads to the concl

usion that terminat

ion is warranted. Termination of a person’s constitutionally-protected rights to parent a child requires an individualized consideration ba sed on the facts

of a particular situation, including an individualized determination of a child’s best interest. Our legislature has listed some, but not a ll, of the factors

a court is to conside

r when determinin

g whether term

ination is in the best

interest of the ch

ild:-6-

(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 theparent or guardian has maintained regular visitation or other contact with the child; (4) Wh eth er 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, physi cal, 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 andsafe, whether there is criminal activity in the home, or whether

there is such use of alcohol or

controlled substa

nces as may rend

er the parent or

guardian consiste

ntly unable to care for the child in a safe and stable manner; (8) Whether the par

ent's or guardian

's mental and/or e

mo tional 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 par

ent or guardian h

as paid child

support consistent

with the child support guidelines promulgated by the department pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i).

This list reflects the concerns present in the situation where a child has been removed from the parent’s custody because of neglect, abuse , or other problems. In such situations , when it becomes obvious that a child will not be able to sa

fely retu rn to a parent’s custody, that child’s interest may indeed be best ser

ved by terminating the rights of the parent so that the child may be adoptedinto a stable and nurturing home. That wa s not the sit uation in the case before us. After their mother’s death, M

r. Brown, the ste

pfather, sough

t to terminate

Mr. Rogers’s pa

rental rights so that he could adopt the children. Evidence at trial indicated that Mr. Brown had taken an active role in parenting the children while their mother was alive.

While one might assume

that remaining with the stepfather provided the greatest oppor

tunity for stability in the children’s lives, there was no evidence rega rding the effect of a potential return to the father’s custody. Mr. Rogers came to Tennessee to get his children after helearned that his former wife had died. The record does not r eflect what, if a

ny, contac

t the children had

with their father when he returned . H e filed a petition asking for physical custody of his children, premised
on the belief

he had legal custody as their surviving parent, becaus

e Mr. Brown ref

used to allow him4 At the argument of this matter, counsel informed t his court t

hat certai

n post-judgment events had take n place which this court

should consider.

After severa

l post-argu

ment fili ngs by both parti

es, we declin

e to consider

most of the content as post-judgment facts under Tenn. R. App. P. 14. However , we do take not ice of the

certif ied copy of t

he juvenile court’s order.
-7- to remove the children. After filing his petition, he was allowed regular visitation with the children, and the testimony indicates these visits reestablished or repaired the parent-child re lationship.

In this case, we hav

e a father who ha

s in the past f

ailed to live u p to his parental responsibilities,

but who acted immed

iately to do s

o when he learne

d his children’s mother had died. He came to Tennessee, brought his younger childre n here, got a job here, and paid support and regularly visited the ch ildren who are the subject of this action. Meanwhile, we have a stepfather who had undertaken a

nd largely fulfilled the responsibilities of parenting these children. He did not want to see the children taken ou t of his care. The

se children, who h

ad lost their mother, had two people stepping forward to provide homes for them. Unfortunately, in view of the children’s recent loss and their undoubtedly fragile emotional stat e, these two people could not reach a resolution which allowed the children the comfort offered by both. Consequently , the court was asked to make this difficult and agonizing decision , and de cided that termination was in the best interest of the children.

When making its decision, however, the tri al court did not hav

e the benefit

of information which has been presented to us after the argument in this appeal and which deals with events taking place after the trial court’s decision. 4 We have been provided with an order of the Juvenile Court of RutherfordCounty, entered October 19, 2000, finding the two children who a

re the subject of

this action and their younger brother to be dependent and neg lected and placing them in the custody of Lisa Brown’s father and stepmother. Mr. Brown was ordered to pay child support and was allowed only supervised visitation.

Whi le the evid ence at the Apri l 14, 1999 hearing

provided, in the tr

ial court’s judg

ment, sufficient evidence of the children’s best int erest , the trial court could not, of course, predict the future course of events. We are unable to ignore those events, what little we know of them, and cannot conclude that the evidence from the hearing, supplemented by the post-judgment

f acts recorded in the j uvenile court’s o rder, clearly

and convincingl

y establishes that

the children’s be

st interes tis served by termination of Mr. Rogers’s parental rights. Ther efore, we vacate t

he tria l court’s earlier judgment terminating Mr. Rogers’s parental rights and remand to the trial court for
a determina tion of whether the evidence now shows, by a clear and c onvincing standard, that te rm ination of the father’s parental rights is in the best interest of the two children who are the subject of this cause.-8- V. Conclusion

We vacate theorder terminating the parental rights of Mickey Joe Rogers and rema

nd this
case for findings rega

rding the childr

en’s best interest. Those best interests are to be determined on the facts as they

exist as of the date of t

he hearing. B ecause an adopt ion, in situations such as th

is, must be predicated on a termination of parental rights, the necessary result of our

decision is that the adoption by Mr. Brown is also vacated.

Because these children havebeen found depe ndent and negle

cted, the juvenile

court now has exclusive jurisdiction over matters involving their custody until they reach the age of majority. See Tenn. Code Ann. § 37-1-103(c). We do not, however, interpret this jurisdictional statute to remove jurisdiction from the trial court herein regarding the termination of parental rig

hts petition filed we

ll before t he juveni le court’s action. Thus, on remand, the circuit court shall conduct whatever proceedings may be necessary to dete rmine whether, b y clear an d convincing evi

dence, the best interests of these two children are served by termination of the parental rights of their father. The determination by the juven ile court is res judicata

as to the matters th

erein, and the tr

ial court should not allow inquiry into the validity of the juvenile court’s findings.
The sole issue before the trial court on remand is whether termination of Mr. Rogers’s parental rights is in the best interest of the children. We have aff irmed the court’s finding of grounds. Unless anduntil the trial cour t herein enters a

final order term

inating his righ

ts, Mr. Rogers shallbe considered by all courts, including the juv enile court, as the children’s father. Since the children are now under the jurisdiction of the juvenile court, that court shall make any deter mi nations regarding vi

sitation, temporar

y custody , and similar matte

rs.
Costs are taxed to the ap pellee, Bradle

y J. Brown, f

or which execution

may issue if
nece ssa ry.

___________________________________ PATRICIA J. COTTRELL, JUDGE