### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON AUGU ST 29, 20 01 Session SCARL ETT MA RIE SP ENCER & PAT RICK M ENEES S PENCE R v. JAMES JUSTIN AYD LOTTE Direct Appeal from the Chancery Court for Gibson County No. 14944; The Honorable George R. Ellis, Chancellor

No. W2001-00995-COA-R3-CV - Filed December 28, 2001

This is a suit for the termination of parental rights. The Appellants filed a pe tition in the Chancery Courtof Gibson

County to termina

te the Appellee’s parent al righ ts to his ch ild. Follo wing a h earing, the trial court entered an order deny ing the Appe llants’ petition. The Appellants appeal the trial court’s order deny

ing the Appellants’ pe

tition to te

rminate the Appellee’s parental rights. For the reasons stated herein, we affirm the trial c ourt’s decision. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS , J., delive red the o pinion of t

he court , in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRBY L ILLARD , J., joined.
L. L. Har rell, Jr. , Trenton , TN, for

Appellan ts Jeffrey A. Smith, Trenton, TN, for Appellee
OPINION I. Facts and Procedural History
The Appellant, Scarlett Marie Spencer (“Mrs. Spence r”), and the A ppel lee, JamesJustin Ay dlotte (“Mr. Aydlotte” ), are the natur al pare nts of James L

andon Ay dlotte (“Land

on”), bo rn April 5, 1996. Mrs. Spenc er and Mr . Ay dlotte were never married, and L andon was legitimated by action of the Juvenile

Co urt of Gibson County on April 16, 1996. On April 23, 1999, Mrs. Spencer married the Appellant, Patrick Menees Spencer ( “Mr. Spencer”).1 Upon lea rning that an ord er ha d pr evio usly b een enter ed fin ding M r. Ay dlotte to be the father of Landon , Mr.

Ay dlotte d ismiss ed th e petitio n by an ag reed ord er en tered on Ju ly 25 , 200 0. -2- On June 20, 200 0, Mr. Ay dlotte fil ed a petition in the Juv enile Court of Gibson County

to establish parentage and for spec ific visitation. 1 On June 21, 2000, Mr. and Mrs. Spencer filed a petition to termina

te pare ntal rig hts and fo r Mr. Spencer toadopt

Landon. The petition allege d that Mr. Aydlotte abandone d Landon in that, for a period of four months immediately preceding the filing of the petition, Mr. Aydlotte w illfully failed to visit or support L andon. On July 14, 2000, Mr. Ay dlotte filed a motion for specific visitation in the Juvenile Court of Gibson County. On Augu st 2, 2000, Mr. Aydlotte filed a re sponse to the petition to terminate parental rights and for adoption. Mr. Aydlotte admitted that he had fail ed to visit

or suppor t Lan don for th

e four mo nths immedi ately preceding the filing

of the pe tition. Mr. Ay dlotte cla

imed, how ever, th at Mrs. Sp encer refused to allow Mr. Aydlotte to visit L andon and refused to accept child support. On August 7, 2 000, the Juvenile Court of Gibson County entered an or der transferring the motion for spec ific visita

tion to the Chancery

Court of Gibson County for consolidation with the hearing on the petition to

terminat e parental rights and for adoption.
The hearing

on the pet

ition to ter

minate pa

rental r ights and for adoption was held on November 21, 2000. On December 28, 2000, the trial court entered an order deny ing the petition. The trial court stated that while Mr. Ay dlotte “has not pursued his parental rights as aggressively as he should hav e, the Pla

intiffs ha ve faile d to show by

clear a nd convin cing ev

idence t hat James Just

in Ay dlotte has engaged in conduct that e vinces a settled pur

pose to forego all parental duties and relinquis h all parental claims to the child.” The tria l court a lso found t

hat it did not have jurisdiction to hear the motion for specific visitation. This appeal followed.
II. Standard of Review
Parents have a fundamental right to the care , custody, and control of the ir children. See Stanley v. Ill inois , 405 U.S. 64 5, 651 (19 72). This r ight is not absolu

te, however, and

parenta l rights may be terminated upon a finding by clear and convincing evidence that the grounds for termination of parental rights have been established a nd that termination is in the best interest of the child. See T ENN
. C ODE A NN . § 36-1- 1 13(c) ( 2000). Cle ar and c onvincing evidenc e is e v idence which “eliminates any serious or substantial doubt conc erning the correctness of the c onclusion to be drawn from the evidence. It should produce in the factfinder’s mind a firm belief or conviction with regard to the truth

of the allegations sought to be established.” O’Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995) (citations omitted).
Under this heightened standard of review, we must first r

eview the trial cou rt’s find ings in accordanc e with s ection 13 (d) of the Tenne ssee Rule s of Appellate Proc edure. T hat revi ew is de
n ovo with a presumption of correctness as to the trial court’s factual findings, u nless th e prepo nderanceof the evidence is otherwise. See T ENN
. R. A PP
. P. 13(d). For issues of law, th e standardof revie

w is de novo , with no presumption of correctness. See Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 80 (Tenn. 1996). We must then determine whether the facts make out a c lear-3-

and convincing cas e in favor of terminating parental rights. See In re Drinnon , 776 S.W.2d 96, 100 (Tenn. Ct. App. 1988).
III. Law and Analysis
The sole issue presented for our review is whether the trial court erred

by deny ing the petition to terminat

e paren tal righ ts. In order to terminat e paren tal righ ts, the court must

find by clear

and conv inci ng evidence that grounds for termination, as set for th by section 36-1-113(g ) of the Tennessee Code, hav e been e stablishe d, and the court mus t determi ne that te rmination is in the be st interest of the child. See T ENN
. C ODE A NN
. § 36-1-113(c) (2000). As pertinent in the case at bar, sect ion 36 -1-113(g) of the Tennessee Code provides that a termination of parental rights may be basedupon the ground of abandonment pursuant to section 36-1-113(g)(1). See T ENN
. C ODE A NN
. § 36-1-113(g)(1) (2000). In the present case, th erefor e, we mus treverse the trial court’s judgment denying the petition to terminate parental rights if the record contains clear a nd convincing evidence to support abandonment and if termination is in the best interest of the child.
Under the provisions of section 36-1-113(g)(1), termination of pa rental rights may

be based upon a parent’s abandonment of his or her child. See T ENN
. C ODE A NN . § 36-1-113(g)(1). Section 36-1-102 of the Tennessee Code defines abandonment, for purposes of

terminating parenta

l rights, as: (1)(A) (i) For a period of four ( 4) conse cutive mo nths immedi ately preceding the filing of a pr oceeding or pleading to terminate the parenta l rights o f the par

ent(s) o r guar dian(s) of the ch

ild who is the subject of the petition for termination of parental rights or adoption, that the p arent( s) or gu ardian( s) either have willfully failed to visit or have willfully failed to support or make reasonable pay

ments toward the support of the child; (B) For purposes of this subdivision (1), “token support” means that the support, under the circumstances of the individual case, is insignif

icant g iven the p arent’ s means; (C) For purposes of this subdivision (1), “token visitation” means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely e stablish minimal or insubstantial contact with the child; (D) For purposesof this sub division (1 ), “willf ully failed to support” or “willf

ully failed to make re asonable

pay ments toward such child’s support” means that, for a period of four (4) consecu

tive months , no moneta

ry support w as paid-4- or that the

amount of

support pa

id is token

support; (E) For purposesof this sub division (1 ), “willf ully failed to visit” means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.
T ENN
. C ODE A NN . § 36-1-102(1)(A)-(E) (2000).
In In re Swanson , 2 S.W.3d 180 (Tenn. 1999), the Tennessee Supreme Court found the above definitions of “willf

ully failed to support” and “willfully failed to make reasonable pay

ments toward such child’s support” to be unconstitutional because they “in eff ect cre ate an ir

rebutta ble presumption that the failure to provide monetary support for

the four months preceding the petition to termi nate paren tal rights constitutes abandonment, irrespective of whether that failure was intentional.” Id. at 188. The Swanson court held tha t the definition as it existed under the prior statute should be ap

plied until

the legislature amends the statute. See id. at 189. “Under the prior statute, the definition of ‘abandoned child’ contained an element o f intent both in failu res to visit and failures to support.” Id. at 189 n.14 ( citi ng T ENN
. C ODE A NN . § 36-1-102(1)(A)(i) (Supp. 1994)).
Tennessee courts have defined abandonment as “any

conduct on the part of the parent which evinces a settled purpose to forego all parenta l duties and relinquish all parental claims to the child.” Ex parte Wolfenden , 348 S.W.2d 751, 755 (Tenn. Ct. App. 1961) (citations omitted). The evidence of abandon ment must

show “an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relationship and throw off all obligations growing out of the same.” Fancher v. Mann , 432 S .W.2d 63, 65 (Tenn. Ct. App. 1968) (citation omitted)

. Abandonment may be

found only when, g

iven the benefit of every

controverted

fact, an inference of abandonment follows as a matter of law. See id. at 66.
The case at bar is analogous to In re Ad option of Sel f , 836 S.W.2d 581 (Tenn. Ct. App. 1992). In Self

, this Court considered the issue whether the trial court erred by

terminating the parental rights of a father to his minor child. See id. at 582. The trial court found that thefathe r abandoned

the child based on his failur e to pay chil d support or exerc ise visita tion for f our years. See id. This Court reversed the trial court’s finding of aba ndonment based up on evidence in the record that the mother made it difficult for both the father and his parents to visit with the child. See id. at 583. The record also indicated that the mother refused to allow the father to exercise visitation due to his failure to pa y child support. See id. at 584. Th is Court not

ed that the testimon

y a s to visitation or attempted visitation was highly c ontroverted. See id. This Court c oncluded that t h e evidence of aband

onment wa s not clea

r and con vincing , and “[w]hi le the re cord is c lear tha t [th e father] has not been a good parent in many respects, it does not support a finding of abandonment as defined by

the courts in this state.” Id.
The record before us indicates that Mr. Aydlotte fa iled to pay child support since Nove mber 2, 1996 and failed to visit with Landon since April 6, 1998. The testimony at the hearing was-5-

controverted, however, as to whether Mrs. Spencer thwartedMr. Aydlotte from pay ing child support and visiting with Landon. Mrs. Spencer testified that she told Mr . Ay dlotte tha t he did not

have to pay child support if he thought she was using the money for her personal use. Mrs. Spencer testified that Mr. Ay dlotte stopped pa

yin g child s upport sho

rtly therea fter. Mr s. Spencer further testified that Mr. Aydlotte called he

r on December 26, 1998 and wanted to bring Christmas gifts to Landon. Mrs. Spenc er sta ted th e foll owing:

he ask ed when would be an ap propr iate t ime fo r him t o brin g Landon his gifts. And I

told him that there wasn’t going to be an appropriate time, that if he wanted to come and see the child and be a part o f the ch ild’s life, that h e coul d do t hat by cal ling and start sending child support again, and then we would work out something as far as visitation, but that he wasn’t going to show up on Christmas and birthdays.
Mrs. Spencer testified that she had no contact with Mr. Aydlotte following the D ecember 26, 1998 phone conversation.
Mr. Ay dlotte tes tified tha t Mrs. Spencer told

him she no l onger

wanted h

im to pay child support. Mr. Aydlotte testified, howeve r, that paying

child support was not mad e a condi tion of visiting Land

on by Mrs. Spenc er. Mr. A

ydl otte testified that

visitation with Landon took place at Mrs. Spencer ’s home. M

r. Aydlotte tes tified tha

t Mrs. Spencer refused to

allow him to take Landon to his home for visitation. Mr. Aydlotte further testified that, prior to April 6, 1998, Mrs. Spencer either refused his requests to visit with Landon or told Mr. Aydlotte that “they had something else to do.” Mr. Aydlotte testified that he never desire d to terminate his parental rights or abandon Landon.
Mr. Ay dlotte’s m

other, L ynn Elliot (“M s. Elliot”) , testifie d that Mrs. Spencer re fused Mr. Aydlotte’s request s to take L andon to his home for visitation. Ms. Elliot testified that Mrs. Spencer eventua lly refused to allow Mr. Ay dlotte to visit with Landon. Ms. Elliot testified that in order for Mr. Aydlotte to be allowed to visit with Landon, Mrs. Spencer said that h

e would have to pa

y child support.
From our review of the record, we a gree with the trial court’s statem ent that Mr . Ay dlotte “has not pursued his parental rights as agg ressively as he

should have.” Neverth

eless, Mr . Ay dlotte and Ms. Elliot testified at the hearing that Mrs. Spencer thwarted Mr. Ay dlotte’s contact with Landon by refusi ng child support pay ments and refusing visitation. Ms. Elliot testified that Mrs. Spenc e r made visitation conditional upon Mr. Aydlotte pay ing child s upport . Giving

Mr. Ay dlotte the benefit of every c ontroverted fact, we find that Mr. and Mrs. Spenc er failed to establish by clear and convinci ng evid ence tha

t Mr. Ay dlotte en gage d in condu ct “which evince s a settle d purpose to forego all pare

ntal dutie s and rel

inquish al l parent

al claims to the child.” The record fails to support a finding of abandonment as defined by the courts in thi s state. Accordingly , we affirm the trial court’s decision.-6- IV. Conclusion
For the fore going

reasons , the decision of the trial court is affirmed. Costs of this appeal are taxed against the Appellants, Scarlett Marie Spencer and Patrick Menee s Spencer, an d t he ir su re ty, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

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ALAN E. HIGHERS, JUDGE