IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 06, 2013

 IN RE MARK A. L.

Appeal from the Chancery Court for Coffee County

No. 2012CV363 Vanessa Jackson, Judge

No. M2013-00737-COA-R3-PT - Filed October 4, 2013

The Coffee County Chancery Court terminated the parental rights of the father on two

grounds: 1) abandonment by willful failure to support pursuant to Tennessee Code

Annotated § 36-1-102(1)(A)(i) and 2) abandonment by willful failure to visit the child

pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(i); and upon the determination that

termination of the father’s rights was in the best interest of the child. Father appeals. Finding

the evidence clear and convincing, we affirm.

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

FRANK G. CLEMENT,JR.,J., delivered the opinion of the Court, in which ANDY D. BENNETT

and RICHARD H. DINKINS, J.J., joined.

Robert A. Croy, Manchester, Tennessee, for the appellant, Jeffrey L.

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Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellees, Charles B. and Martha

B.

OPINION

Jeffrey L. (“Father”) filed a Petition for Visitation in the Juvenile Court of Coffee

County on September 27, 2012. One month later, on October 23, 2012, Martha B. (“Mother”)

and her husband Charles B. (“Step-Father”) countered by filing a Petition for the Termination

of Parental Rights of Father and for Step-Parent Adoption (“Petition”) in the Chancery Court

of Coffee County. Thereafter, Father’s petition for visitation was transferred to the chancery

court and the two petitions were joined into one action.

This court has a policy of protecting the identity of children in parental termination cases by 1

initializing the last names of the parties.
The petitions were tried in the chancery court on January 9, 2013. The principal

witnesses were Mother and Father; also testifying were Step-Father and Russell H., who is

Father’s step-father. The evidence established that Father and Mother are the unmarried

parents of one child, Mark L., born in June 2006 and they resided in Thomasville, Georgia

when the child was born. The parties separated in June 2008, at which time Mother moved

to Manchester, Tennessee; Father continued to reside in Georgia. By agreement of the

parents, on July 14, 2008, temporary custody of the child was given to the paternal

grandmother, Christy H. (“Grandmother”) who resides across the street from Father in

Thomasville, Georgia.

In January 2009, Mother married Charles B. (“Step-Father”) and obtained physical

possession of the child in February 2009. Mother gained exclusive legal custody of the child

by order of the Juvenile Court of Thomas County, Georgia, in April of 2009.

Father testified he was employed but admitted that he did not pay child support in the

four months preceding the filing of the October 23, 2012, petition to terminate his parental

rights. He stated he did not pay support because he was saving money to pay his attorney to

file the petition for visitation; however, this was contradicted by Russell H. who testified that

he loaned Father the money to pay the attorney’s fees.

Father admitted he did not pay child support in the years 2009, 2010, or 2012, despite

being gainfully employed for all but one of those months. Father was employed with Martell

Marine from April 2009 until September 2012, when his employment was terminated; one

month later, Father obtained employment with Woodhaven Home Furnishings and continues

to work for that firm. Father’s income for the years 2009, 2010, and 2011 averaged more than

$21,000. Father stated that he provided some support in 2011 and produced documentation

of three money orders representing child support payments of $50 each made in late 2011.

Mother acknowledged receiving two of the money orders, but denied receiving any other

support in 2011 or 2012. Father also stated that he offered to provide child support but his

offers were rejected by Mother; Mother stated she never excused Father from support.

Evidence of Father’s visitation with the child was less clear. He visited with the child

approximately eight times between February 2009, when the child moved to Tennessee, and

2012. In 2009, the child stayed in Georgia for a few weeks during the summer. The child

would reside at Grandmother’sresidence mostly during the week, which was acrossthe street

from Father, and would reside with Father the rest of the time. Grandmother stated she

visited the child in Mother’s Tennessee home on numerous occasions since 2009. Although

Grandmother made multiple trips to Tennessee to visit the child in 2009, 2010, and 2011,

Father rarely drove with Grandmother to pick up the child, nor to return the child. Father

traveled with Grandmother once to visit the child in Tennessee; on two or three other times

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Father traveled with Grandmother to pick up the child to take him back to Georgia for an

extended visit. Father stated that his failure to visit was due to Mother refusing visitation and

a lack of money to travel to Tennessee.

In 2010, the child stayed in Georgia for winter break with the Father and

Grandmother. In the summer of 2011, Grandmother drove to Tennessee to pick up the child

and brought the child to Georgia where the child stayed for three weeks. During this three

week visit, the child stayed with Grandmother, Father or the child’s paternal

great-grandmother; also during this visit the family took the child to Disney World for one

week.

In 2012, Father visited with the child on two occasions. In July 2012, Father and his

girlfriend traveled to Tennessee on one occasion, and Mother permitted the child to spend

the night with them in a hotel room; the child was returned to Mother the next day. In

December 2012, after the petitions were filed, the court granted Father supervised visitation,

and Father visited with the child at Mother’s home.

Upon the conclusion of the one-day trial, the trial court took the matter under

advisement. On February 23, 2013, the court entered an order in which it found that Mother

and Step-Father had presented clear and convincing evidence establishing grounds for

termination based on abandonment for willful failure to support and willful failure to visit.

The court also found that termination of Father’s rights was in the best interest of the child

based, in part, on the stable environment provided by Mother and Step-Father as well as the

positive relationship between the minor child and Step-Father who had supported the child

over the past four years.

Father filed a timely notice of appeal and he presents three issues for our review. He

contends the trial court erred in finding: (1) the ground of abandonment for willful failure

to support the child under Tennessee Code Annotated § 36-1-102(1)(A)(i); (2) the ground

of abandonment for willful failure to visit the child under Tennessee Code Annotated § 36-1-

102(1)(A)(i); and (3) that termination of Father’s parental rights is in the best interest of the

child.

STANDARD OF REVIEW

To terminate parental rights, a court must determine by clear and convincing evidence

the existence of at least one of the statutory grounds for termination and that termination is

in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of Angela E.,

402 S.W.3d 636, 639 (Tenn. 2013) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn.

2002)). When a trial court has made findings of fact, we review the findings de novo on the

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record with a presumption of correctness unless the preponderance of the evidence is

otherwise. Tenn. R. App. P. 13(d); In re Adoption of Angela E., 402 S.W.3d at 639 (citing

In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013)). We next review the trial court’s order

de novo to determine whether the facts amount to clear and convincing evidence that one of

the statutory grounds for termination exists and if so whether the termination of parental

rights is in the best interests of the children. In re Adoption of Angela E.,402 S.W.3d at 639

(citing In re Taylor B.W., 397 S.W.3d at 112). Clear and convincing evidence is “evidence

in which there is no serious or substantial doubt about the correctness of the conclusions

drawn from the evidence.” Id. (citing In re Valentine, 79 S.W.3d at 546 (quoting Hodges v.

S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)) (internal quotation marks omitted).

We must now consider the statutory grounds at issue for termination: abandonment

by failure to support the child, abandonment by failure to visit with the child, and whether

the evidence clearly and convincingly establishes one or more of these grounds.

ANALYSIS

I. ABANDONMENT

Abandonment is defined as the willful failure to visit, to support, or to make reasonable

payments toward the support of the child during the four-month period preceding the filing

of the petition to terminate parental rights. Tenn. Code Ann. § 36-1-102(1)(A)(i). To prove

the ground of abandonment, a petitioner must establish by clear and convincing evidence that

a parent who failed to visit or support had the capacity to do so, made no attempt to do so,

and had no justifiable excuse for not doing so. In re Adoption of Angela E., 402 S.W.3d at

639 (citing In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005)). Whether a parent

failed to visit or support a child is a question of fact. Whether a parent’s failure to visit or

support constitutes willful abandonment, however, is a question of law. Id. (citing In re

Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). We review questions of law de

novo with no presumption of correctness. Id. (citing In re Adoption of A.M.H., 215 S.W.3d

at 810).

In this case, the trial court found that Father abandoned his child in two ways: willful

failure to support and willful failure to visit during the four-month time period preceding the

filing of the Petition. Parental rights may be terminated upon the findings of grounds on

either failure to support or failure to visit, or both. See In Re M.L.P., 281 S.W.3d 387, 393

(Tenn. 2009). Thus, we shall discuss each ground of abandonment separately.

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A. ABANDONMENT BY FAILURE TO SUPPORT

Tennessee Code Annotated § 36-1-113(g)(1) establishes a ground for termination of

parental rights based upon abandonment as defined in Tennessee Code Annotated § 36-1-

102. The definition of abandonment set forth in Tennessee Code Annotated § 36-1-

102(1)(A)(i) reads:

“For a period of four (4) consecutive months immediately preceding the filing

of a proceeding or pleading to terminate the parental rights of the parent(s) or

guardian(s) of the child who is the subject of the petition for termination of

parental rights or adoption, that the parent(s) or guardian(s) have willfully

failed to visit or have willfully failed to support or have willfully failed to

make reasonable payments toward the support of the child . . . .”

To find abandonment by failure to support, it must be established that the failure to

support was “willful.” In re R.L.F., 278 S.W.3d 305, 320 (Tenn. Ct. App. 2008). Failure to

pay support is “willful” if the parent “is aware of his or her duty to support, has the capacity

to provide the support, makes no attempt to provide support, and has no justifiable excuse

for not providing the support.” In Re J.J.C., 148 S.W.3d 919, 926 (Tenn. Ct. App. 2004)

(quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at

*5 (Tenn. Ct. App. Nov. 25, 2003)). The fact the parent was not under an order to pay

support is not dispositive of the question of whether the failure is willful; the obligation to

pay support exists in the absence of a specific order. Tenn. Dep’t of Children’s Servs. v.

Culbertson, 152 S.W.3d 513, 523-24 (Tenn. Ct. App. 2004). The foregoing notwithstanding,

a parent cannot be said to have abandoned a child when his failure to support is due to

circumstances outside his control. In re Adoption of Angela E., 402 S.W.3d at 640 (citing In

re Adoption of A.M.H., 215 S.W.3d at 810 (holding that the evidence did not support a

finding that the parents “intentionally abandoned” their child)).

Father contends his failure to support the child during the pertinent four-month period

was not willful because he was trying to save money to hire an attorney to file a visitation

petition. He also stated that he purchased the child a pair of shoes and other items during his

July 2012 visit. In addition, he testified to sending $300 worth of clothing to the child in

2012, but he did not produce any evidence of those purchases, and Mother denied receiving

any such items.

The trial court found Father lacked credibility, and we, as an appellate court, are

obliged to yield to credibility determinations made by the trial court. With regard to

credibility determinations, this court has stated:

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When a trial court has seen and heard witnesses, especially where issues of

credibility and weight of oral testimony are involved, considerable deference

must be accorded to the trial court’s factual findings. Further, “[o]n an issue

which hinges on the credibility of witnesses, the trial court will not be reversed

unless there is found in the record clear, concrete, and convincing evidence

other than the oral testimony of witnesses which contradict the trial court’s

findings.”

In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (quoting Galbreath v. Harris, 811

S.W.2d 88, 91 (Tenn. Ct. App. 1990)).

The record before us clearly supports the finding that Father was not a credible

witness. For one, the testimony of Russell H., Father’s step-father, directly contradicted

Father’s only justification for not paying support during the critical four-month period. Father

testified he was saving his money to hire an attorney; Russell H. testified that he loaned

Father the money to hire the attorney. Two, Father’s contention that he sent $300 worth of

clothing to the child in 2012 was both unsupported and undocumented and it was refuted by

Mother; she expressly denied receiving any such items.

We also find Father’s excuses for failing to pay support during the four-month period

and the preceding four-year period, except for the two undisputed $50 payments sent in 2011,

to be unconvincing. Father was gainfully employed for the majority of the four years

preceding the petition, and yet, he could only document sending three $50 money orders

during that time. Moreover, he provided no proof to substantiate his claim that Mother

refused to accept support at any time; to the contrary, Mother admitted receiving two of the

three $50 money orders Father said he mailed.

As for Father’s statement that he provided shoes and other items for the child during

his July 2012 visit within the four-month period, such gifts would constitute mere token

support, which is not sufficient to preclude a finding of a willful failure to support. Token

support is support that “under the circumstances of the individual case, is insignificant given

the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). In the context of token support, the

word “means” connotes both income and available resources for the payment of debt. In re

Adoption of Angela E.,402 S.W.3d at 641 (citing In re Z.J.S., No. M2002-02235-COA-R3-

JV, 2003 WL 21266854, at *11 n.24 (Tenn. Ct. App. June 3, 2003)).

In this case, the trial court found that Father had the ability to pay support during the

determinative four-month period upon the evidence of his gainful employment. Furthermore,

the trial court found that Mother never excused him from paying support. Based upon this

and other facts in the record, the trial court concluded that the evidence clearly and

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convincingly established that Father willfully failed to support his child during the fourmonth period. The record fully supports the trial court’s finding; thus, we affirm the finding

that Father abandoned his child by willfully failing to support the child during the four-month

period preceding the filing of the petition to terminate parental rights pursuant to Tennessee

Code Annotated § 36-1-102(1)(A)(i).

B. ABANDONMENT BY FAILURE TO VISIT

Parental rights may be terminated based upon the ground of abandonment for willfully

failing to visit the child, which is defined as when a parent “willfully failed to visit . . . the

child for the period of four consecutive months preceding the filing of the petition to

terminate that parent’s rights.” Tenn. Code Ann. § 36-1-102(1)(A)(i).

Failure to visit a child is “willful” when a parent is aware of his or her duty to visit,

has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not

doing so. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005). However, where the

failure to visit is not willful, a failure to visit a child for four months does not constitute

abandonment. R.G.W. v. S.M., No. M2009-01153-COA-R3-PT, 2009 WL 4801686, at *7

(Tenn. Ct. App. Dec.14, 2009) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.

2007)). “A parent who attempted to visit and maintain relations with his child, but was

thwarted by the acts of others and circumstances beyond his control, did not willfully

abandon his child.” Id. (citing In re Swanson, 2 S.W.3d 180, 189 (Tenn. 1999)).

Tennessee Code Annotated § 36-1-102(1)(E) states that, “‘willfully 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]oken visitation,” is visitation “under the circumstances of

the individual case [which] 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).

Father contends he did not willfully fail to visit his child because he was actively

litigating a visitation and support petition which he filed in September 2012, one month

before the filing of the termination petition. He also contends he did not abandon his child

because he visited for two days in July 2012, which was during the determinative four-month

period. Father relies on In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007) and In re

Chelbie F., No. M2006-01889-COA- R3-PT, 2007 WL 1241252 (Tenn. Ct. App. Apr. 27,

2007). In that case the parents were actively pursuing visitation within the courts during the

pertinent four-month period and, importantly, the parents had continually visited and

maintained a relationship with their child while she was in temporary foster care. In re

Adoption of A.M.H., 215 S.W.3d at 798. The record before us reveals that Father did not

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actively or continually visit or maintain a relationship with the child at any time. Thus,

Father’s reliance on In re Adoption of A.M.H. is misplaced.

Moreover, Father’s reliance on Chelbie F. is also misplaced. In that case the father

failed to support or visit with his child for approximately seven years. In re Chelbie F., 2007

WL 1241252 at *1. However, the court found that despite this failure, the father did not

willfully abandon his child because he had actively sought visitation rights through the courts

for seven years. Id. at *6. In fact, the father had filed three petitions for visitation over the

seven year period after the mother had concealed the child’s whereabouts, discouraged his

efforts to visit the child, and spurned his efforts to provide financial support. Id. Moreover,

the mother admitted that she did not want the father to visit with the child or to provide

financial support. Id. For these reasons, the court found no abandonment. Id. Under the facts

of this case, Mother never excused payment of child support nor did she interfere with or

deny visitation, a fact clearly evident from the liberal visitation, including extended trips

granted to Grandmother. Although there is some testimony from the witnesses that indicates

a lack of communication, there was no outward denial or refusal to visit. Further, as noted

above, Father failed to accompany Grandmother on her frequent visits. Accordingly, Father’s

visitation was nothing more than token. Tenn. Code Ann. § 36-1-102(1)(C).

The trial court found that the petitioners proved by clear and convincing evidence that

Father failed to make any significant effort to visit the child or maintain a relationship with

him. Father admitted that, in the past four years, he has seen the child a mere six to eight

times. Moreover, Father made only one attempt to visit the child during the pertinent fourmonth period. As the trial court correctly noted, if it were not for Grandmother’s efforts,

Father would have had no contact with child during the past four years.

For the foregoing reasons, we affirm the finding that Father willfully failed to visit the

child during the determinative four-month period; thus, the ground of abandonment under

Tennessee Code Annotated § 36–1–113(g)(1) for willful failure to visit is affirmed.

II. BEST INTEREST OF THE CHILD

The General Assembly has provided a list of factors for the court to consider when

conducting an analysis of the best interests of the children. See Tenn. Code Ann. § 36-1-

113(i)(1)-(9). Those factors, which are well known and need not be repeated here, are not

exclusive or exhaustive, and the court may consider other factors. See In re M.A.R., 183

S.W.3d 652, 667 (Tenn. Ct. App. 2005). Moreover, not every statutory factor need apply; a

finding of but a few significant factors may be sufficient to justify a finding that termination

of the parent-child relationship is in the child’s best interest. Id. at 667. The child’s best

interest is to be determined from the perspective of the child rather than the parent. See State,

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Dep’t of Children’s Servs. v. L.H., No. M2007-00170-COA-R3-PT, 2007 WL 2471500, at *7

(Tenn. Ct. App. Dec. 3, 2007) (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.

2004)).

It is clear from the record that Mother and Step-Father have provided a stable and

nurturing home for the child. Step-Father has established a strong relationship with the child

and has financially supported the child since 2009 due to Father’s failure to provide support.

He is involved in the child’s church, sports, and school activities. Further, he is willing to

adopt the child as his own, and the child calls him “Daddy.”

There is also clear and convincing evidence that Father has abandoned the child by

willfully failing to pay child support and visit with the child. Father has made an insignificant

effort to establish or maintain a relationship with the child.

Considering these relevant factors from the perspective of the child, the evidence

clearly and convincingly established that it is in the child’s best interest that Father’s parental

rights be terminated.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of

appeal assessed against Father.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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