### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Februar y 11, 2 005 Session
I N RE 

### F.R. R., III Appeal from the Juvenile Court for Williamson County

No. 13526 Alfred Nations, Judge

No. M2004-02208-COA-R3-PT- Filed March 1, 2005

This appeal involves the terminationof a biological father’s rig hts to his non-marital child. When the child was almost five years old, his mother and her husband filed a petition in the Williamson County Juvenile Cou

rt seekin g to ter minate the

biologic al fathe

r’s par ental rig hts and to adopt the child. Following a bench trial, the juvenile court deter mined that the bi ological father had abandoned

the child by

willfully failing to visit him and that terminating the biological father’s parentalrights would be in the child’s best interests. Accordingly , the court terminat ed th e biological father’s parent a l rights and approved the adoption. The biological fa ther has appealed. We have determined that the record contains cle ar and convincing evidence that the biological father aban doned the child

and that t

erminati ng the f ather’ s parent

al righ ts would be

in the chi ld’s best interests. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
W IL LI AM C. K OCH , J R ., P.J., M.S., delivered the opinion of the court, in which F RANK G. C LEMENT , J R ., J. , joined. W IL LI AM B. C AIN , J., concur red in the results. Gary W. Wicks, Sr. , Frank

lin, Tenne ssee, for the app ellant, F .R.R. Deana C. Hood, Franklin, Tennessee, for the appellees, M.A.G. and G.F.G.
Robert H. Plummer, Franklin, Tenness ee, Gua rdian ad Litem

. OPINION

I.
M.A.G. gave birth to F.R.R., II I on May 21, 1999. F.R.R. is the child’s biologic al father, but he and M.A.G . never married . M.A.G. r etained phy sic al cust ody of the child af ter he was born. F.R.R. saw his son

regula rly for seve ral wee ks immedia

tely following

the bir th, bu t he stopped visiting when M.A.G. went on vacation with G.F.G ., her n ew boyfr iend. M.A.G. married G.F.G. approxima

tely seven months later

a nd moved to

Chapel Hi ll, Tenne ssee. I n 2003, the

couple relocated with the child to Spring Hill, Tennessee.1 Th is right exist s notwi thst anding t he marit al status of the chil d’s biological parents where a biological parent has establish ed o r is attemp ting to establish a relatio nship w ith the child

. Lehr v. Robert son , 463 U.S. 248, 262, 103 S. Ct. 298 5, 29 93-9 4 (1 983 ); In re D.A .H. , 142 S.W .3d 2 67, 2 74 ( Te nn. 20 04) ; Jon es v. G arrett , 92 S. W.3d 835, 840 (Tenn. 200 2); In re Sw anso n , 2 S.W .3d 1 80, 1 88 n.12 (Tenn . 1999 ). The right also exten ds to ado ptive paren ts. Simmons v. Simmons , 900 S.W .2d 682, 684 (Tenn. 1995 ).

2 U.S. Cons t. amend. XIV, § 1; Tenn. Cons t. art . I, § 8.
-2- OnFebruary

2, 2000, the Obion County Juvenile Court determined that F.R.R. was F.R.R., III’sbiologic al fathe

r and ord ered F .R.R. to begin pay

ingchild support of $164.66 per month. On August 31, 200 1, followi ng the commencement of child support enforce ment proceedings in the Marshal l County

Juvenile Cou

rt, F.R.R. filed a pro se pet ition to set

visitation with th e child. On October 31, 2001, the Marshall County Juvenile Cou rtentered an order setting four da tes for visitation in the months of November and December 2001. F.R.R. attended a t least three of the four scheduled visitation s, and spoke with his child on several occasions in January 2002. With the exceptionof one telephone call to the child on his birthday in May

of 2003, F.R.R. made no further attempt to visit or t

o communic ate with h

is child be

tween Janu

ary 2002 and M ay

2004. F.R .R. did pay the court-ordered child support fairl y consist ently, bu t he acc umul ated a s ignifi cant ar rearage over time.
OnMay 7, 2004, M. A.G. and

G.F.G. f iled a peti tion in the Williamson Co unty Juvenile Courtseeking

to termina

te F.R.R. ’s pare

ntal rig hts and toallow G.F.G. to adopt F.R.R., II I. M.A.G. and G.F.G. c laimed tha

t F.R.R. ha

d abandoned the c

hild by willfully failing to visit him or pay more thantoken suppo rt dur ing th e four m onth s prece ding t he fil ing o f the petition. At the subsequent bench trial, it was undisputed that F.R.R. had notvisited or attempted to visit F.R.R., III in the four months preceding the filing of the petition and that F .R.R. had made approximately one-third of the required support payments during that time. F.R.R. admitted that M.A.G. and G.F.G. had never prevented him from visiting the child.
The juvenile court

entered an order terminating F .R.R.’s parental rights on August 16, 2004. The trial court rejected the arg ument that F.R.R.’s support payments in the

four months preceding the filing of the petition constituted only toke n support. However, the trial court found clear a nd convincingevidence that F.R.R. was guilty of abandon ment bec ause he had willfu lly f ailed to visit F.R.R., III during the four

months preceding the filing of the petition. The trial court also found clear and convincing evidence that it would be in t he best inter ests of F.R.R., II I for F.R.R.’s pare

ntal rights to be terminated. F.R.R. appealed.

II.

T HE S TAND ARDS F OR REVIE WING T ERMINATI ON O RDERS
Abiological parent’s right 1 to the care and custody of his or he r child is among the oldest of the judicially recog

nized liberty interests protected by the Due Process Clauses of the federal and state constitutions

. 2 Troxel v. Granville , 530 U.S. 57, 65, 120 S. Ct. 2054, 2059-60 (2000); Hawk v. Hawk , 855 S.W.2d 5 73, 578-7 9 (Tenn. 1993); Ray v. Ray , 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001). While this r

ig ht is fundamental and superior to the claims of other persons and the3 The statut ory grounds for terminat ing parental ri ghts ar e found inTenn. Code Ann. § 36-1- 113(g) (Supp.

2004).

4 The factors to be considered in a “best int erests” analy sis are f ound in Tenn. Cod e Ann. § 36-1-113(i).
-3- gover nment, it is not abs olu te. State v. C. H.K. , ___ S.W.3d ___, ___, 2004 WL 1813277, at *2 (Tenn. Ct . Ap p. 2 004 ). It continue s without in terrupti on only

as long as a parent has not relinquished it, abandoned it, or engage d in conduct requiring its limitation or termination. Blair v. Badenhope , 77 S.W. 3d 137, 141 (Ten n. 2002); In re S.M. , 149 S.W.3d 6 32, 638 (T enn. Ct. Ap p. 2004); In re M.J.B. , 140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004).
Terminationproceedings in Tennessee ar e governed by

statute. Parties who have standing to seek the termination of a biological parent’s pa rental ri g hts must prove two things. First, they must prove the existence of at least one of the statutory grounds for termination. 3 Tenn. Code Ann. § 36-1-113 (c)(1) ; In re D.L.B. , 118 S.W.3d 360, 367 (Tenn. 2 003); Jones v. Garre tt , 92 S.W.3d at 838. Second, they must prove that ter minating the parent’s pa

re ntal rig hts is in the

child’s b est interests. 4 Tenn. Cod

e Ann. § 36 -1-113( c)(2); In r e A. W. , 114 S.W.3d 5 41, 545 (T enn. Ct

. App. 2003); In r e C. W.W. , 37 S.W.3d 467 , 475-76 (Tenn. Ct. A pp. 2000) ; In re M.W

.A., Jr. , 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

No civil act ion carries with it graver conseque nces than a petition to sever family ties irretri evably

and fore ver. Te nn. Code A

nn. § 36-1 -113(i) (1); M.L.B. v. S.L.J. , 519 U.S. 102, 119, 117 S. Ct. 555, 56 5 (1996); In re Knott , 138 Tenn. 349, 355, 1 97 S.W. 1097,1098 (191 7); In re D.D.K. , No. M2 003- 01016 -COA -R3- PT, 20 03 WL 23093929, at *8 (Tenn. Ct. App. Dec. 30, 2003) (No Tenn. R. App. P. 11 application filed). Becau se the sta kes are so profoundly hig

h, Tenn. Code Ann. § 36-1-11 3(c)(1 ) requir es persons seekin

g to ter minate a b iologic al pare

nt’s par ental rig hts to prove the statutory g

rounds for termination by clear and convincing evidence. This heig htened burden of proof minimizes the risk of erroneous decisions. In r e C. W.W. , 37 S.W.3dat 474; In re M.W.A., Jr. , 980 S .W.2 d at 62 2. Evi dence s atisf ying th e clear and convincing evidenc e standard establishes that

the truth of

the facts asserted is highly probable, State v. Demarr , No. M2002-02603- COA- R3-JV,2003 W

L21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003) (No Tenn. R. App. P. 11 applicationfiled), and eliminates any serious or substantial doubt about the correc tness of the conclusions drawn from the evidence. In re Valentine , 79 S.W.3d 53 9, 546 (Te nn. 2002) ; In re S.M. , 149 S.W.3d at 63 9; In re J.J .C. , 148 S.W.3d 919, 925 (Tenn. Ct. App. 2004). It producesina factfinder’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 59 2, 596 (Te nn. Ct . App. 2002); Ray v. Ray , 83 S.W.3d a t 733; In re C. W.W. , 37 S.W.3d at 474.

Because of the gravity

of their consequences, proceeding s to terminate parental rights require individualizeddecision making. In re Swanson , 2 S.W.3d at 188. Accordingly , Tenn. Code Ann. § 36-1-113 (k) explic itly

require s courts te

rminating parenta l rights t o “enter an order which

makes specific findings of fact and conclusions of law” whether

they have be en reque sted to do s o or not. In re S.M. , 149 S.W.3d at 639; In re M.J.B. , 140 S.W.3d at 653-54. These specific findings of fact and conclusions of law facilitate appellate review and promote just and

speedy resolution of appe als. Whena lower court has failed to comply with Tenn. Code Ann. § 36-1-113(k), the appe llate cou rts5 The se decisions draw a distinction between specifi c facts and the combined weight of these f acts. Tenn. R. App. P. 13 (d) re quire s us to d efer to th e trial co urt’s spe cific finding s of fact as long a s they are supp orted by a preponderance of the evidence . Howe ver, we are the o nes who m ust then det ermine wh ether the combine d weig ht of these facts provides cl ear and convincing evidence supporting the t rial court’ s ulti mate factual conc lusion. The Tennessee Supreme Co urt used thi s approach in In re Valent ine when it recog nize d the dif

fer ence be twee n th e conclusi on that a biol ogica l par ent had not com plied substa nti ally with her obli gati ons in a

permanency pl an and the fact s rel ied upon by the trial court to sup por t this conc lusion. In re Valent ine , 79 S. W.3d at 548- 49; see a lso Jo nes v . Ga rrett , 92 S.W .3d a t 838 -39.
-4- must remand the case wit

h direct ions to prepare the required findings of fact and conclusions of law. In re D.L.B. , 118 S.W.3d a t 367; In re

K.N.R. , No. M2003-01301-COA-R3-PT, 2003 WL 22999427, at *5 (Tenn. Ct. App. Dec. 23, 2003) (No Tenn. R. App. P. 11 application filed).
The heightened burden

of proof required by

Tenn. Code Ann. § 36-1-113(c)(1) require s us to adapt Te

nn. R. App. P. 13(d)’ s customa ry standar d of revi ew for c ases of t

his sort. First, we

must review the trial court’s specific finding s of fact de novo in accord ance wi th Tenn. R. App. P. 13(d). Thus, each of the trial court’s specific fa ctual findings will be presumed to becorrect unless the
ev idence preponderates otherwise. Second, we must determine w hether the facts, either a s foun d by the trial court or as supported by the preponderance of the evi dence, clearly and conv incingl y establish the elements required to terminate a biological parent’s parental rig hts. Jones v. Garrett, 92 S.W.3d at 83 8; In re Valentine , 79 S.W.3d at 548-49; In re S.M. , 149 S.W.3d a

t 640; In re M.J.B. , 140 S.W.3d at 654. 5

III.

T HE W ILLFULNESS OF F.R.R.’ S F AILURE TO V ISIT
F.R.R’s lawy

er conc eded dur

ing ora l argument that F.R.R. did not visit his son during the four months preceding the filing o f th e petition to termina

te his par ental rig hts. I n fact, i t is undisputed

that F.R. R. had no interaction with F.R.R., II I for approximately

thirty months before the filing of the termination petition, except for a single brief telephone call in May

2003. Neverthele ss, F.R.R. insists tha

t the juve nile cour t erred by t erminati ng his pa rental r ights be cause hi s failure

to visit F.R.R., III

was not “willful.” The concept

of “willfulness” is at the core of the statutory definition of aba ndonment. For the purpose of Tenn. Code Ann. § 36-1-102(1)(A)(i) ( Supp. 2004), a parent cannot be found to have abandoned

a child unless the parent either has “willfully ” failed to eng age in more than token visitation or has “willfully” f ailed to provide more than

token monetary support to the c hild for four consecutive months. “Willfully” is a word of many meanings, and so each use of the word must be interpreted

with reference to the statutory contex t in which i t appears. United Sta tes v. San chezCorcino, 85 F.3d 549, 552-53 (1 1th Cir.199 6); In re Adoption of Muir , No. M2002-02963-COA-R3- CV, 2003 WL 22794524, at *5 (Tenn. Ct . App. Nov . 25, 2003) (No Tenn . R. App. P. 11 application filed); G EORGE W. P ATTON , A T EXTBOOK ON J U RIS PRUDENCE 313 n.2 (4th ed.1972) (suggesting that use of the word should be avoided because of its ambig uities).

Inthe statutes governing

the termi nation of parenta l rights,“willfulness” does not require the
samestandard of culpability as is required by the pe nal code. G.T. v. Ad

option of A. E.T. , 725 So.6 A paren t wh o fai ls to s upport a chi ld bec ause he orshe is financ ially unab le to do so is no t willfully failing to support the child

. O’Daniel v. Messi er , 905 S.W .2d 1 82, 1 88 ( Te nn. Ct. A pp. 1 995 ); Pierc e v. B ech told , 60 Tenn. App. 478, 487 , 448 S.W .2d 425, 429 (1969).

7 See also Shorte r v. Reeves , 32 S .W .3d 7 58, 7 60 ( Ark. C t. App. 200 0); In r e B. S. R. , 965 S.W.2d 444, 449 (Mo. Ct. App . 199 8); In re E state of Teaschenko , 574 A.2d 649 , 652 (Pa . Sup er. Ct. 1 990 ); In re Adopti on of C. C.T. , 640 P. 2d 73, 7 6 (W yo. 19 82)

.

8 Conduct

tha t amounts to a signif icant rest raint or i nterference wit h a parent’s ef

forts t o support or deve lop a relation ship with

a chil d incl udes (1) t elling a man he i s not t he chil d’s bi ological

father, (2) blocking ac cess to t he chi ld, (3) keepi ng the chi ld’ s whe reabout s unk nown, (4) v igor ousl y re sis ti ng t he par ent’ s ef

fort s t o supp ort t he ch il d, or (5) vigor ously resisting a p arent’s e fforts to visit the ch ild. In re S. A.B. , 735 So.2d 523, 524 (Fla. Dist. C t. App . 199 9); In re Ado ption of C hildren b y G.P .B., Jr. , 736 A.2d 127 7, 12 82 ( N.J . 199 9); Pan ter v. Ash , 33 P. 3d at 1031.
-5- 2d 404, 409 (Fla. Dist. Ct. App. 1999). Nor does it requiremalevolence or ill will. In re Adoption of a Minor , 178 N.E.2d 264, 267 (Mass. 1961). Willful conduct consists of acts or failures to act that
are intentional or voluntary rathe r than accidental or inadvertent. In re Mazzeo , 131 F.3d 295, 299 (2d Cir. 1997) ; United States v. Phi ll ips , 19 F.3d 1 565, 1576 ( 11th Cir. 19 94); In re Adoption of Earhart, 190 N.E.2 d 468, 470 ( Ohio Ct. Ap p. 1961); Meyer

v. Skyline Mobile Homes , 589 P.2d 89, 97 (Idaho 1979). Conduct is “willfu l” if it is the product of free will rather than coerc ion. Thus, a person acts “wi llfully

” if he or she is a f ree agent, knows what he or she is doing, and intends to do what h e or sh e is do ing.
Failure to visit or supporta 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 just

ifiable e xcusefor not doingso

. 6 In re M.J.B. , 140 S.W.3d at 654. 7 Failure to visit or to support is not excused by another person’s conduct u

nless the conduct a

ctually prevents the person with the obl igation from performing

his or her duty, In re Adoption of Lybrand , 946 S.W.2d 946, 950 (Ark. 1997), or amounts to a significant restraint of or interference wi th the parent’s efforts to support or develop a relation ship with hisor her child. In re Ser re , 665 N.E. 2d 1185, 11 89 (Ohio Ct . C.P. 1996); Panter
v. Ash , 33 P.3d 1028, 1031 (Or. Ct. App. 2001). 8 Thus, atte mpts by others to frustra te or impede a parent’s visitation do notprovide justification for th e p ar en t’ s f

ai lu re to su pp or t t he ch il d f in an ci al ly. Bateman v. Futch , 501 S.E.2 d 615, 617 ( Ga. Ct. Ap p. 1998); In re Leitch , 732 So. 2d 632, 636 n.5 (La. Ct. App. 1999).
The willfulne ss of particu lar conduct depends upon the actor’s intent. I ntent is seldom capable of direct proof, and triers-of-fac t lack the ability to peer

into a person ’s mind to a ssess intentions or motivations. In re Adoption of S.M.F. , No. M2004 -00876-C OA-R9 -PT, 2004 W L 2804892, at *8 (Te nn. Ct. App. Dec. 6, 2004) (No Tenn. R. App. P. 11 application filed). Ac co rd in gl y, triers-of-fact must infer intent from the circumstantial evidence, including a pe rson’s actions or conduct. See Joh nson City v . Wolf e . 103 Tenn . 277, 282,52 S.W. 991, 9 92 (1899) ; Absar
v. Jones , 833 S.W.2d 86, 89-90 (Tenn. Ct . App. 199 2); State v. Washington , 658 S.W.2d 144, 146 (Tenn. Cr im. App. 19 83); see also I n re K.L.C. , 9 S.W.3d 768, 773 (Mo. Ct. App. 2000). Havingindependently re

viewed the record

on appea l, we have no diff

iculty concluding, as th e juvenile court did, that M.A.G. and G.F.G. established by clear and convincing evidence tha t9 The pare ntal relo cation statute req uires tha t if a parent desires t o move mor e than o ne hun dred miles fro m his
or her child’s other parent, “t he reloc ating p arent sh all send a notic e to the ot her parent

at t he other parent’ s las t known addr ess by regi ster ed or certifi ed mail.” The notice must contain a s tatement of i ntent to move, the l ocation of the proposed new residence, the r easons for the proposed relocation, and a stat ement tha t t he other parent

may f il e a pet it ion in opposition to the move within thirt y days of receipt

of the notice. Tenn. Cod e Ann. § 36-6-108(a)(1)-(4).

10 Act of Apr. 22, 1998, ch . 901, 1998 Tenn. Pub. Act s 637. -6- F.R.R. willfully failed

to visit F.R.R., III

within the four months preceding the filing of the petition to terminat

e his parental rights. F.R.R. knew the child was his, fulfilled his duty to visit during the first few weeks after the child was born, suc ceeded in arr anging and atte nding te mporarycourtordered visitation in November and December of 2001, and admitted at trial that neither M.A.G. nor G.F.G. prevented him from visiting his child. F.R.R. knew at all times how to contact M.A.G., he
was notincarcerated or disabled, he owne d a car, and he knew how to obtain court-orde red visitation
even without the assistance of a lawy er. While F.R. R. ’s desire not to bec ome a tro

ublemake r to M.A.G. and her husband is admirable, it does not provide an excus e for hisfail ure to make good faith efforts to establish a relationship with his child.

IV. T HE A PPLICATION OF THE P ARENTAL RELOCATI ON S TATUTE
Fi na ll y, F.R.R. as serts that the ju venile c ourt shoul d not have found his t

hirty -month failure to visit his son willful because M.A.G. had fail ed to comp ly w iththe notification provisions in the parentalrelocation statute, Tenn. Code Ann. § 36-6-108(a) (2001), 9 when she and G.F .G. moved to Chapel Hilland

later to Spring Hill. F.R.R.’s reliance on the parental re location statute is misplaced for two reasons. First, he has failed to demonstrate that he was entitled to written notice unde r the statute. Second, he has failed to demonstrate how the lack of wr itten notice of M.A.G.’s relocations materially impaired his ability to visit F.R.R., III

regularly had he been inclined to do so.
Tenn. Code Ann. § 36-6-108 was enacted in 1998 10 in respon se to the T ennesse e Supreme Court’s decision in Aaby v. Strange , 924 S.W.2d 6 23 (Tenn . 1996). I ts purp ose is to provide a procedurefor add ressi ng dis putes arisi ng be tween divorced parents when a planned move by one parent will disrupt the parenting rights of the other pare nt. The statute is predicated on the assumptionthat both parents have legally enforceable visitation or custodial rights that could be adversely affected by

one parent’s decision to move.
The only relocation that was far enough to trigger Tenn. Code Ann. § 36-6-108 was M.A.G.’s
move in December 1999 to Chapel Hill. However, when thi s relocation occurred, F.R.R. had no legall y e nforce able visit

ation rig hts. F.R.R. obtained limited visitation rights more than two years later in October

2001 when the Marshall County Juvenile Court allowed him four visits during November

and Dec ember 20 01. Bec ause F. R.R. had no legall y enforc eable vi sitation r

ightsin 1999, M.A.G. was not required by Tenn. Code Ann. § 36-6-108 to givehim written notice that she planned to move to Chapel Hill

.-7-

We are unaware of any

authority, and F.R.R. has pointed us to none, suggesting that one parent’s failure to comply with the pa rental relocation st atute, when it is applicable, provides the other parent w ith an aut omatic de fense to

an action to terminate his orher par ental rig hts. At all relevant times, F.R.R. knew how to contact M.A.G. and his child. He conceded that he knew wher e M.A.G. and F.R .R. , II I we re li vi ng an d t ha t h e k ne w t he ir ho me te le ph on e n um be r. Ac co rd in gl y, we have no factual basis for concluding that F .R.R.’s lack of written notice o f their wherea bouts prevented him, as a practical matter, from visiting his child had he desired to do so.

V.
We affirm the trial court’s order terminating F .R.R.’s parental rightswith regard to F.R.R., III and remand the case for further proceedings consistent with this opinion. We tax the costs of this appeal to F.R.R. and his surety for which execution, if necessary, may issue.

______________________________ WIL LI AM C. KOCH,JR., P.J., M.S.