IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 22, 2018 Session

IN RE ABAGAIL D.

1

Appeal from the Chancery Court for White County

No. 2016-CV-72 Ronald Thurman, Chancellor

No. M2017-02557-COA-R3-PT

This action involves the termination of a mother’s parental rights to her minor child. 

Following a bench trial, the court found that clear and convincing evidence existed to 

support the statutory grounds of abandonment for failure to visit and to support and that 

termination was in the best interest of the Child. We vacate the order and remand for 

additional findings of fact. 

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

Vacated; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which RICHARD H.

DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S. joined.

John E. Hutson, Sparta, Tennessee, for the appellant, Amanda D.

Kelsy Miller, Cookeville, Tennessee, for the appellees, Michael G. and Shannon G.

OPINION

I. BACKGROUND

Abagail D. (“the Child”) was born to Amanda D. (“Mother”) and Michael G. 

(“Father”) in April 2011. The Child resided with Mother in Kentucky until August 2014, 

when she and her two half-siblings were removed based upon allegations of drug and 

alcohol abuse. The Child was placed with Father in Tennessee, and visitation and child 

support were addressed pursuant to a court order in Kentucky. 

 

1

This court has a policy of protecting the identity of children in parental rights termination cases by 

initializing the last name of the parties. 

09/13/2018
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Mother was provided visitation via Skype each Wednesday between 7:30 p.m. and 

8:30 p.m. and overnight visitation in Cookeville, Tennessee, subject to certain limitations. 

She was not permitted to leave Cookeville during visitation and was required to show 

proof of a hotel reservation in the area for the visitation period. Mother failed to provide 

such proof and did not utilize her overnight visitation or remit child support. 

Father and his wife, Shannon G. (“Stepmother”) (collectively “the Petitioners”), 

filed a petition for termination and adoption on August 29, 2016, alleging, as pertinent to 

this appeal, abandonment for failure to visit and to support. Mother conceded that she 

had not visited or remitted support but claimed that her failure to do so was not willful. 

She explained that she was in a rehabilitation program from September 27, 2015, through 

August 27, 2016. She claimed that she never failed a drug screen while in the program 

and that she is ready and able to care for the Child as evidenced by her suitable home and 

stable employment. She alleged that her repeated requests for visitation via Skype were 

denied and that her offers to help with the Child’s expenses were rebuffed.

The case proceeded to a hearing on the termination petition. The hearing was 

recorded; however, the court reporter’s files were lost due to a faulty hard drive. The trial 

court entered a statement of the evidence for the purposes of this appeal. Father testified 

that Mother’s alcohol and drug abuse resulted in their divorce and that the Child was 

ultimately removed as a result of Mother’s addiction. Mother’s other two children were 

also removed and placed with their respective father. He claimed that from August 2014 

through September 2016, Mother “rarely called or visited” and that Mother had no 

contact with the Child and paid no support during the four months preceding the filing of 

the petition. He claimed that he and his current wife “made no effort to thwart” visitation 

but that they simply required Mother to follow the stipulations contained in the order. He 

claimed that the Child had no relationship with Mother but had bonded with Stepmother. 

Stepmother confirmed Father’s testimony and testified concerning her loving 

relationship with the Child. She claimed that the Child is thriving and also enjoys a 

healthy relationship with the other children in their home. She asserted that the Child 

was “withdrawn and always hungry” prior to her placement with them, that Mother’s 

home was “always very dirty,” and that there were many unrelated guests in the home. 

She noted that Mother and the Child were also homeless at one point. 

Shawn R. testified that he was in a relationship with Mother for six years and 

fathered two of her sons. He received custody of them in 2014. He recalled that Mother 

would drink to the point of passing out and leaving the children unsupervised. He 

asserted that she attended rehabilitation programs but always relapsed. He claimed that 

she provided no support and only sought visitation after he sought termination. 
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Mother testified that she currently resides in Kentucky and lives in a rented home 

with her fiancé, a recovered heroin addict. She conceded that she had not visited the 

Child or remitted child support during the relevant time period. She claimed that she 

could not visit the Child because she did not have transportation. She asserted that 

Stepmother would also not allow her to visit the Child, but she later conceded that she 

made no effort to enforce the court order providing for visitation even though she had the 

ability to comply with the stipulations of the order. 

Relative to child support, Mother confirmed that she maintained employment from 

January 2016 through November 2016 as a server, with an approximate income of $20 to 

$40 per day and that she is currently working at a restaurant making $380 per week. She 

provided that she is responsible for rent in the amount of $400 per month and a car 

payment in the amount of $75 per week. She has also purchased tattoos and smokes 

approximately a half pack of cigarettes per day. 

The trial court granted the termination petition, holding that Mother had 

abandoned the Child by failing to visit and to remit child support. In so holding, the 

court found that Mother had willfully failed to provide support since the time of removal, 

despite a period of employment during the relevant time period in which she made 

approximately $20 to $40 per day at a restaurant. Relative to visitation, the court found 

that she had willfully failed to visit, despite testimony suggesting that the Petitioners did 

not allow visitation. The court noted that Mother failed to present phone records 

establishing that her calls were denied and that the Petitioners claimed that they did not 

impede overnight visitation but merely required Mother to comply with the specific 

restrictions of visitation pursuant to the court order. The court further found that 

termination was in the best interest of the Child. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues on appeal as follows: 

A. Whether clear and convincing evidence supports the court’s 

termination of Mother’s parental rights based upon a finding of 

abandonment for failure to remit child support pursuant to Tennessee Code 

Annotated section 36-1-102(1)(A)(i).

B. Whether clear and convincing evidence supports the court’s 

termination of Mother’s parental rights based upon a finding of 

abandonment for failure to visit pursuant to Tennessee Code Annotated 

section 36-1-102(1)(A)(i).
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C. Whether clear and convincing evidence supports the court’s finding 

that termination was in the best interest of the Child pursuant to Tennessee 

Code Annotated section 36-1-113(i).

III. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children. 

Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. 

App. 1988). This right “is among the oldest of the judicially recognized liberty interests 

protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 

140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a 

parent is a grave and final decision, irrevocably altering the lives of the parent and child 

involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. 

Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-

113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of 

natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. 

Kramer, 455 U.S. 745, 787 (1982)).

While parental rights are superior to the claims of other persons and the 

government, they are not absolute and may be terminated upon appropriate statutory 

grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process 

requires clear and convincing evidence of the existence of the grounds for termination of 

the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be 

terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best 

interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing 

evidence proves not only that statutory grounds exist [for the termination] but also that 

termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 

2002). The existence of at least one statutory basis for termination of parental rights will 

support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 

473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 

838 (Tenn. Ct. App. 2005).
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The heightened burden of proof in parental termination cases minimizes the risk of 

erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620, 

622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence 

standard establishes that the truth of the facts asserted is highly probable. State v. 

Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. 

Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the 

correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 

546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 

919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or 

conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 

S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 

2001); In re C.W.W., 37 S.W.3d at 474.

In 2016, the Tennessee Supreme Court provided guidance to this court in 

reviewing cases involving the termination of parental rights:

An appellate court reviews a trial court’s findings of fact in termination 

proceedings using the standard of review in Tenn. R. App. P. 13(d). Under 

Rule 13(d), appellate courts review factual findings de novo on the record 

and accord these findings a presumption of correctness unless the evidence 

preponderates otherwise. In light of the heightened burden of proof in 

termination proceedings, however, the reviewing court must make its own 

determination as to whether the facts, either as found by the trial court or as 

supported by a preponderance of the evidence, amount to clear and 

convincing evidence of the elements necessary to terminate parental rights. 

The trial court’s ruling that the evidence sufficiently supports termination 

of parental rights is a conclusion of law, which appellate courts review de 

novo with no presumption of correctness. Additionally, all other questions 

of law in parental termination appeals, as in other appeals, are reviewed de 

novo with no presumption of correctness. 

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

IV. DISCUSSION

A. & B.

In terminating Mother’s parental rights based upon the statutory ground of 

abandonment for failure to visit and remit support, the court considered the four months 

preceding August 29, 2016, the filing date of the termination petition. The relevant time 
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period was April 29, 2016, through August 28, 2016.

2 A parent’s willful failure to 

support “means the willful failure, for a period of four (4) consecutive months, to provide 

monetary support or the willful failure to provide more than token payments toward the 

support of the child.” Tenn. Code Ann. § 36-1-102(1)(D). Token support is “support, 

under the circumstances of the individual case, [that] is insignificant given the parent’s 

means.” Tenn. Code Ann. § 36-1-102(1)(B). A parent’s willful failure to visit “means 

the willful failure, for a period of four (4) consecutive months, to visit or engage in more 

than token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). Token visitation is 

“visitation, under the circumstances of the individual case, [that] constitutes nothing more 

than 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.” Tenn. 

Code Ann. § 36-1-102(1)(C).

This court has consistently held that the term willfulness as it applies to a party’s 

failure to visit or remit support must contain the element of intent. In re Swanson, 2 

S.W.3d 180, 188-89 (Tenn. 1999). The element of intent utilized in termination 

proceedings “does not require the same standard of culpability as is required by the penal 

code.” In re Audrey S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures 

to act that are intentional or voluntary rather than accidental or inadvertent.” Id. “[A] 

person acts ‘willfully’ if he or she is a free agent, knows what he or she is doing, and 

intends to do what he or she is doing.” Id. at 863-64.

Mother argues that her failure to remit child support or to visit was not willful

because she was in a rehabilitation program during the relevant time period. She claims

that her income was used to pay the cost of the rehabilitation program and that she was 

unable to visit while in the program. Mother also alleged in her response to the 

termination petition that her attempts to visit via Skype were denied. The record reflects 

that the court failed to consider the aforementioned facts in making its termination 

decision, instead focusing upon the fact that support was not remitted and overnight 

visitation had not occurred. Accordingly, we vacate the court’s finding of abandonment 

and remand for findings of fact concerning the willfulness of the alleged abandonment. 

C.

In the event of further appellate review, we must consider whether termination 

was in the best interest of the Child. In making this determination, we are guided by the 

following non-exhaustive list of factors:

 

2

“The applicable four month window . . . includes the four months preceding the day the petition to 

terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-

00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014).
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(i) In determining whether termination of parental or guardianship 

rights is in the best interest of the child . . . the court shall consider, but is 

not limited to, the following:

(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

(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 or controlled substances as may 

render the parent or guardian consistently unable to care for the child in 

a safe and stable manner;

(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

 

3

In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a termination proceeding, the extent of DCS’s efforts to 

reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a 

precondition to termination of the parental rights of the respondent parent.”).
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(9) Whether the parent or guardian has paid child support consistent 

with the child support guidelines promulgated by the department 

pursuant to [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not 

require a trial court to find the existence of each enumerated factor before it may 

conclude that terminating a parent’s parental rights is in the best interest of a child.” In re 

M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also 

stated that “when the best interest[] of the child and those of the adults are in conflict, 

such conflict shall always be resolved to favor the rights and the best interest[] of the 

child, which interests are hereby recognized as constitutionally protected.” Tenn. Code 

Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 

2004) (holding that when considering a child’s best interest, the court must take the 

child’s perspective, rather than the parent’s).

Here, the court’s findings focused primarily upon the period of time leading up to 

the removal and shortly thereafter. While we agree that Mother failed to maintain a 

relationship with the Child and had not visited the Child or remitted child support during 

the relevant time period, Mother testified concerning her completion of a rehabilitation 

program and the establishment of a home and continued stable employment. The record 

reflects that the court failed to properly consider these factors in its best interest analysis. 

With these considerations in mind, we vacate the order in its entirety and remand for 

additional findings of fact. 

V. CONCLUSION

The trial court’s order granting the termination petition is vacated, and the case is 

remanded for further proceedings consistent with this opinion. Costs of the appeal are 

taxed one half to the appellant, Amanda D., and one half to the appellees, Michael G. and 

Shannon G.

_________________________________ 

JOHN W. McCLARTY, JUDGE