IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 27, 2015

IN RE MALAYSIA C.

Appeal from the Chancery Court for Williamson County

No. 1619A James G. Martin, III, Chancellor

No. M2014-01019-COA-R3-PT - Filed February 10, 2015

This is a termination of parental rights case brought by Appellees, who are the prospective

adoptive parents. Although Mother/Appellant initially joined in the petition to terminate her

parental rights and for adoption, she later withdrew her consent. Appellees moved forward

with the termination of Mother’s parental rights on their own petition, which the trial court

granted. Mother now appeals the trial court’s termination of her parental rights on the

ground of abandonment by willful failure to support the child. Mother also appeals the trial

court’s finding that termination of her parental rights is in the child’s best interest. Because

there is clear and convincing evidence in the record to support both the ground for

termination of Mother’s parental rights and the trial court’s finding that termination is in the

child’s best interest, we affirm and remand.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Raquel Avina Abel, Franklin, Tennessee, for the appellant, M.C.

1

W. I. Howell Acuff, Cookville, Tennessee, for the appellees, S.J.J.G. and K.R.G.

 We note that Ms. Abel did not represent Mother in the trial of this matter. 1

1
OPINION

I. Background

The child at issue in this case, M.J.C., was born in December 2010 to Appellant M.C.

(“Mother”). Mother has one older child who is currently in Mother’s custody. Custody of

2

the older child is not at issue in this appeal. M.J.C.’s biological Father, M.L.’s, parental

rights were terminated by the same order that terminated Mother’s parental rights. However,

he did not appeal the termination of his parental rights and is not a party to this appeal.

Accordingly, our discussion will address only the facts, procedure, and findings relevant to

termination of Mother’s parental rights.

The prospective adoptive parents, S.J.J.G. and his wife, K.R.G. ( together “Appellees”) first

met the child in June 2012. At that time, Appellees had completed a home study, and were

hoping to adopt a child. Appellees have two biological children. S.J.J.G. is the founder of

a software company, and he works primarily from home, traveling once or twice a week.

K.R.G. does not work outside the home.

In January 2012, Mother was evicted from public housing for fighting. Mother testified that

she moved from place to place in the months following her eviction. Due to these unstable

circumstances, sometime before June 2012, Mother placed the child with Mother’s cousin,

I.M.

I.M. and Appellees were acquaintances, who had mutual friends. K.R.G. and I.M. were

also friends on Facebook. I.M. posted on Facebook that she was caring for the child, and that

it was difficult because I.M. was also caring for her own children. K.R.G. contacted I.M. and

suggested that Appellees take the child for a few days to provide a “break” for I.M., and I.M.

agreed. Between June 2012 and August 2012, the child stayed with Appellees on two or

three occasions, and a bond began to develop between Appellees and the child. I.M. sent

Mother photos of the child in the Appellees’ home, and this is how Mother came to know

that the child was staying with Appellees. In August 2012, K.R.G. called Mother to say that

the Appellees were willing to take custody of the child. Mother agreed to the arrangement,

and, on August 28, 2012, the child came into Appellees’ home, where she has remained since

that time.

 In cases involving minor children, it is the policy of this Court to redact the parties’ 2

names so as to protect their identities.

2
In September 2012, Appellees and their attorney met with Mother to discuss Appellees’

desire to adopt the child. There is some dispute in the record as to where this meeting

occurred. Also, as discussed in greater detail below, there is some dispute as to whether

Mother understood that the discussion involved more than just a temporary custody

arrangement. Regardless, on September 12, 2012, Mother signed a petition for termination

of her parental rights and petition for adoption in favor of the Appellees. The petition

specifically states that:

[Mother] joins in this Petition for the purpose of providing her

consent to the adoption and for purposes of terminating her

parental rights to [the child].

. . .[Mother] understands that the entry of an order confirming

parental consent, without revoking the parental consent prior to

entry of such order, will terminate her parental rights to the child

forever and she will have no legal rights to the custody, control,

or to visitation with the child in the future.

Mother’s signature on the petition was notarized, and the document was filed in the

Williamson County Chancery Court. On September 21, 2012, Appellees filed a motion for

partial guardianship. The trial court granted their motion by order entered on September 26,

2012.

Text messages sent between Mother and K.R.G. in October 2012 (which were admitted as

Trial Exhibit 4) indicate Mother’s desire to have the child remain in Appellees’ home:

[From Mother to K.R.G.] I’m not gone [sic] change my mind[.]

I know [the child is] in good hands with [K.R.G. and S.J.J.G.].

And I know your kids love her as well. . . .

I just want her to[] come visit and stay the night with me

sometimes. . . .

However, sometime in December 2012, Mother contacted Appellees, asking that the child

be returned to her custody. Appellees denied Mother’s request, and the relationship between

Mother and Appellees deteriorated.

On December3, 2012, Appellees filed an amended petition for termination of parental rights

and petition for adoption. Although Mother is listed as a “Co-Petitioner,” she did not sign

the amended petition, which contains only the signature of Appellees’ lawyer.

3
On January 14, 2013, the trial court entered an order, appointing a guardian ad litem to

represent the child. On March 14, 2013, the guardian ad litem filed a motion requesting that

the trial court review the status of the case. Therein, the guardian ad litem specifically

requests that the court “assure that all statutory requirements have been met and due process

measures have been made. . . .” The guardian ad litem further explained:

[O]n October 2, 2012, an order of partial guardianship was

entered ex parte with the legal effect of taking the mother. . .out

of any further legal proceedings, and leaving her without legal

recompense for a failure to provide statutory notice of a consent

hearing; failure to receive the time or notice of her right to

revoke her consent to such proceedings prior to her participation

in a consent hearing; failure of her being questioned in chambers

or in court regarding her understanding of her parental consent

in this matter; failure of her waiver of counsel of her waiver of

her right to receive social counseling with regards to her

parental consent; failure of her waiving her right to such notice,

hearing, and revocation time frame; and without her ever

presenting herself before the Court in this matter at any time.

The mother claims she never received a copy of the ex parte

order, and she was not certified in the order as having been

provided a copy of it. The legal effect of the partial

guardianship order took the mother out of having standing to

contest any further proceedings, and the time frame to appeal the

partial order of guardianship has long expired.

The guardian ad litem also noted that Mother had not consented to the amended petition to

terminate her parental rights. Thereafter, a uniform affidavit of indigency was entered on

behalf of Mother; on April 8, 2013, a lawyer was appointed to represent Mother in these

proceedings.

On May 2, 2013, Mother, through her lawyer, filed a petition to revoke her consent for

adoption and a petition for custody and parenting time with the child. In her petition, Mother

avers that she “did not freely or voluntarily sign the consent for adoption, nor was it signed

with full knowledge of its consequences.” Furthermore, Mother’s petition indicates that she

“revokes her consent to the adoption of her minor child. . . .” On July 1, 2013, Appellees

filed an answer to Mother’s petition, wherein they aver, in relevant part, that:

[Mother] met with [Appellees] and their counsel prior to the

petition for termination of parental rights and petition for

4
adoption being drafted. At that meeting[, Mother] was informed

that [Appellees], at their expense, would provide he[r] with her

own legal counsel if she had any concerns about the adoption.

She declined to have counsel retained for her. At that meeting,

with [Mother’s] agreement, it was decided that she would join

in the petition and not surrender her rights until the final

hearing, thus protecting her rights in the event, and only in the

event, that the rights of the birth-father could not be terminated.

The next week, [Mother] again met with [Appellees’] counsel,

this time at the courthouse, to review and sign the petition for

termination of parental rights and for adoption, counsel again

explained that termination of her rights would not be addressed

until the birth-father’s rights had been terminated, but that the

child would be with the [Appellees] in the meantime. Counsel

provided her the original of the petition to review and allowed

her time to read it through carefully. When she had finished

reviewing the document, counsel asked if she had any questions

or concerns. She affirmed that she was in agreement with the

document. She then signed the petition for termination of

parental rights and petition for adoption before a notary.

Concurrent with their answer, Appellees filed a cross-petition for termination of parental

rights and petition for adoption, in which they aver that Mother has “abandoned the child .

. . [in that she] has provided no support for this child, or in the alternative has provided no

support since August of 2012.” Appellees further aver that termination of Mother’s parental

rights is in the child’s best interest. On July 26, 2013, Mother filed an answer to the crosspetition for termination of her parental rights, wherein she specifically denies that she has

abandoned the child by willful failure to pay support.

On September 19, 2013, the trial court entered an “Interim Order,” which states, in relevant

part that Mother’s revocation of her consent to the adoption of the child “is well taken . . .

and all portions of the petition for termination of parental rights and petition for adoption

containing her consent are hereby voluntarily withdrawn and dismissed due to the revocation

of her consent for the adoption.” The order places temporary custody of the child with

Appellees, and allows Mother supervised visitation. All other matters were reserved for full

hearing.

The cross-petition to terminate parental rights was heard on March 12 and 13, 2014. On

April 29, 2014, the trial court entered its memorandum and order. Therein, the court

terminated Mother’s parental rights on the ground of abandonment by willful failure to

5
provide support for the child, and upon its finding that termination of Mother’s parental

rights was in the child’s best interest. Mother filed a timely notice of appeal. Based upon

the adjudication of indigency, a lawyer was appointed to represent Mother in this appeal.

II. Issues

Mother raises five issues for review as stated in her brief:

1. Whether there is clear and convincing evidence to support

the termination of parental rights for abandonment by willful

failure to support?

2. Whether the Court can terminate parental rights for

abandonment for willful failure to support the child where the

parent never received notice that she had a duty to pay support

and that the failure to support could result in the termination of

parental rights?

3. Whether the aggregate of the evidence supports a finding of

willful failure to pay support where the parent has significant

limitations that affected her testimony and her ability to

understand the legal process?

4. Whether the Court can terminate parental rights for a willful

failure to pay support where the prospective adoptive parents

obtained custody by an invalid order of parental guardianship,

refused to acceptsupport and then sought to terminate for failure

to support?

5. Whether clear and convincing evidence supports the trial

court’s determination [that termination] of Mother’s parental

rights was in M.C.’s best interest[]?

III. Standard of Review

Under both the United States and Tennessee Constitutions, a parent has a fundamental right

to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651

(1972); Nash–Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may

interfere with parental rights only when a compelling interest exists. Nash–Putnam, 921

S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination

6
statutes identify “those situations in which the state’s interest in the welfare of a child

justifies interference with a parent’s constitutional rights by setting forth grounds on which

termination proceedings can be brought.” In re W.B., Nos. M2004-00999-COA-R3-PT,

M2004–01572–COA–R3–PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)

(citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must

prove both the existence of one of the statutory grounds for termination and that termination

is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360,

367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Because of the fundamental nature of the parent’s rights and the grave consequences of the

termination of those rights, courts must require a higher standard of proof in deciding

termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination

and that termination of parental rights is in the child’s best interest must be established by

clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79

S.W.3d at 546. Clear and convincing evidence “establishes that the truth of the facts asserted

is highly probable . . . and eliminates any serious or substantial doubt about the correctness

of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct.

App. 2004). Such evidence “produces in a fact-finder’s mind a firm belief or conviction

regarding the truth of the facts sought to be established.” Id. at 653.

In light of the heightened standard of proof in termination of parental rights cases, a

reviewing court must modify the customary standard of review in Tennessee Rule of

Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo with

a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P.

13(d). We must then determine whether the facts, as found by the trial court or as supported

by the preponderance of the evidence, clearly and convincingly establish the elements

necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

When the resolution of an issue in a case depends on the truthfulness of witnesses, the trial

judge who has had the opportunity to observe the witnesses and their manner and demeanor

while testifying is in a far better position than this Court to decide those issues. See

Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); McCaleb v. Saturn

Corp., 910 S.W.2d 412, 415 (Tenn.1995). The weight, faith, and credit to be given to any

witness’s testimony lies in the first instance with the trier of fact, and the credibility accorded

will be given great weight by the appellate court. See Whitaker, 957 S.W.2d at 837;

McCaleb, 910 S.W.2d at 415; Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

IV. Procedural and Due Process Issues

A. Petition to Terminate Parental Rights and for Adoption

7
Mother first contends that the Appellees did not comply with certain statutory requirements

when they presented Mother with the original petition to terminate her parental rights and for

adoption. Specifically, Mother argues that the Appellees: (1) failed to advise her of her right

to revoke her consent, the beginning and ending period for revocation of surrender, or the

procedures for revoking as required by Tennessee Code Annotated Section 36-1-111(e); (2)

failed to advise Mother of her right to social counseling regarding her decision to surrender

her rights; and (3) failed to attach a certificate of satisfaction or withdrawal of Mother’s right

to receive legal or social counsel as required by Tennessee Code Annotated Section 36-1-

111(d)(4). Mother contends that these procedural shortcomings deprived her of essential

information, and constituted an abuse of due process.

Mother further contends that she did not understand that the petition indicated her consent

to termination of her parental rights. Mother testified that she thought the petition provided

only for the child’s “temporary” placement with Appellees. Mother asserts that it was always

her intention to take the child back into her custody once she “got back on her feet.”

As discussed in detail above, the court granted Mother’s petition to revoke the consent she

gave in the petition to terminate her parental rights and for adoption. Because Mother was

allowed to withdraw her consent, any procedural shortcoming affecting Mother’s rights or

having any impact on her knowledge of what she was signing, were cured when her consent

was withdrawn. In short, the disputed petition (insofar as Mother consented to it) was

rendered null and void. Importantly, Mother’s parental rights were not terminated upon

adjudication of either the original or the amended petition (which both contained consent

language vis Mother). Rather, the termination proceedings were based upon the crosspetition for termination and adoption that Appellees filed July 1, 2013. At this point, Mother

was represented by counsel. She filed an answer to the cross-petition, wherein she denied

the material allegations made in the cross-petition. Furthermore, Mother was given the

opportunity at the hearing to cross-examine witnesses, and to put on her own proof.

Accordingly, even if we allow arguendo that the original and/or amended petitions were

somehow procedurally flawed, or fraudulently executed, because neither of these petitions

formed the basis for the termination of Mother’s parental rights, and because she was

allowed to withdraw her consent, shortcomings in these petitions cannot form the basis of

reversal on appeal.

B. Order of Partial Guardianship

Mother argues that the ex parte order of partial guardianship entered on September 26, 2012

was an “invalid order.” As discussed in detail above, this case began with the agreement of

Mother and the Appellees that the child would remain in the Appellees’ care. Out of concern

that the rights of the birth-father may not have been subject to termination, Appellees and

8
Mother agreed that her surrender of parental rights would not take place until after the birthfather’s rights had been terminated. As a result of this agreement, Mother joined the initial

petition to terminate her parental rights and for adoption.

Both of the Appellees testified that adoption was always the goal, and that they would not

have kept the child in their home had Mother not agreed to that outcome. Regardless, there

can be no dispute that, at the time the court entered the order of partial guardianship, the

child was living in Appellees’ home, with the Mother’s consent. Accordingly, at that time,

there was need for the Appellees to have authority to make decisions for the child. The order

of partial guardianship accomplished that by giving Appellees the right, and imposing a duty

upon them, to “provide for the care, protection, training and education, and the physical,

mental, and moral welfare of the child.” The order also gave the Appellees the right to seek

medical treatment for the child, and to obtain information regarding the child’s medical

records. These were necessary rights and duties that the Appellees needed in order to

properly care for this child. In other words, the trial court was not addressing the surrender

of Mother’s parental rights; rather, the order of partial guardianship was merely a means of

allowing Appellees the legal authority to care for the child. Therefore, under the particular

circumstances of this case, we cannot conclude that the trial court erred in entering the order

of partial guardianship in favor of Appellees.

Nonetheless, Mother contendsthat the Appellees used this order to deprive her of any contact

with the child. The record does not support this contention. Rather, it was not until Mother,

sometime in December 2012, threatened to take the child from the Appellees’ home, and

further indicated that she was then living with the child’s birth-father, who has an alleged

history of criminal behavior, that the Appellees denied Mother access to the child. Appellees

testified individually that they were concerned for the child to be in Mother’s home during

this time, and that they denied her visitation based only on this concern. However, even if

we allow, arguendo, that the Appellees used the authority granted to them under the partial

guardianship order to keep Mother from seeing the child, this would only address the ground

of abandonment by willful failure to visit. As discussed below, the sole ground for

termination of Mother’s parental rights was abandonment by willful failure to support. In

short, it does not appear from the record that this ex parte order, even if it was obtained

without notice to Mother, had any bearing on the trial court’s decision to terminate Mother’s

parental rights.

Even if we concede that the better practice would have been to provide Mother with a copy

of the order of partial guardianship, any procedural concerns regarding the trial court’s

decision to enter this order were cured when the trial court, upon the guardian ad litem’s

motion, held a hearing on August 12, 2013 and then entered the “Interim Order,” placing

temporary custody of the child with Appellees. This ruling ostensibly rendered the ex parte

9
order of partial guardianship null. Mother has raised no issue concerning the “Interim

Order.”

C. Mother’s Disability and Alleged Failure to Understand the Proceedings

According to her own testimony, Mother has bi-polar disorder. In its order

terminating her parental rights, the trial court found:

While [Mother] is disabled because of her mental condition, the

Court does not find that her condition, per se, necessarily

prevents [Mother] from providing safe and stable care and

supervision for [the child]. However, [Mother] contends that

her mental condition does impair her memory, and the Court

finds that, to some extent, it may have impaired [Mother’s]

ability to testify accurately to the facts and circumstances giving

rise to her signing the petition for termination of her parental

rights and consent for adoption and as to other facts in this case.

In addition, at the time of the trial, [Mother] was not taking the

medication prescribed to treat her bipolar condition and

depression. She needed to go to. . . the place from which she

received mental health treatment, for a new prescription and had

not done so. It is important for a parent to be consistent in the

position that they take with children. To the extent [Mother] is

incapable of recalling what she says and does from time to time,

such incapacity can clearly impair her ability to be consistent in

parenting [the child].

From our review of the transcript, we agree with the trial court that, although Mother may

have had some difficulty recalling events, there is no indication that Mother did not

understand the proceedings concerning termination of her parental rights. Although we

sympathize with Mother’s mental condition, we further agree with the trial court that it is

incumbent upon Mother to ensure that she is taking her medications properly. Her unilateral

failure to do so cannot provide the basis for reversal of the trial court’s decision to terminate

her parental rights. This is especially true in light of the fact that Mother was represented by

a court-appointed lawyer during all relevant proceedings.

Nonetheless, in her appellate brief, Mother avers that

[Appellees] took a poor, uneducated, desperate and homeless

mother and offered to take care of her daughter. They provided

10
her with paperwork to sign that consented to the termination of

her parental rights and consented to the adoption of her daughter

by the [Appellees]. Represented by counsel, when she had

none, the [Appellees] violated the very statutory protections that

the legislature put in place to protect the constitutional rights of

the parents to raise their children. . . . They took their invalid

and improper paperwork that failed to give Mother essential

notice of her rights, and they used it to get an invalid, ex parte

Order of Partial Guardianship. They then withheld Mother’s

child from her and refused to accept her offers of assistance,

setting the stage for their Petition to Terminate Parental Rights

on July 1, 2014, where they alleged that Mother had failed to

visit and failed to pay support from March 31, 2014 to July 1,

2014.

In light of the actual circumstances and record in this case, Mother’s excoriation of Appellees

is somewhat hyperbolic. Although Mother has only an 11 grade education, there is no

th

indication that she did not fully understand that Appellees’ intention was to adopt M.J.C.

The initial petition, which Mother testified she read and signed, clearly states that it is a

“petition for termination of parental rights and petition for adoption.” Mother testified that

she can read, but that she has difficulty understanding “big words.” The word “adoption”

is widely used in common parlance, and we cannot conclude that Mother, given the level of

education she has, would have had any difficulty understanding what that term meant.

Although Mother testified at the hearing that she did not understand that the petition

contemplated adoption, this testimony was impeached with the conflicting testimony Mother

gave in her discovery deposition. Therein, Mother was asked whether she understood that

the Appellees “were looking to adopt;” Mother replied “Yeah.” K.R.G.’stestimony indicated

that during all of the conversations with Mother, Appellees had no indication that Mother did

not understand that Appellees were seeking adoption and permanent custody of this child.

Although there is some dispute in the record concerning Mother’s memory of the events

surrounding her execution of the original petition in this case, and concerning the question

of whethershe fully understood that adoption was the end goal, we have previously discussed

the fact that any errors in the original or amended petitions to terminate her parental rights

and for adoption were cured when Mother was allowed to withdraw her consent.

Furthermore, as discussed above, the “Interim Order” did not give Appellees any right or

power to keep Mother from providing support for this child; rather, as discussed below, even

if Appellees had refused Mother’s help, this fact should not have kept Mother from paying

funds into the court for the child. There is no indication that Mother took any initiative, even

after she was represented by counsel, to provide such support.

11
V. Ground for Termination of Mother’s Parental Rights

Mother’s parental rights were terminated on the sole ground of abandonment by willful

failure to pay support pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) and

Tennessee Code Annotated Section 36-1-102(1)(A)(I). In pertinent part, Tennessee Code

Annotated Section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights

may be based upon any of the grounds listed in this subsection

(g). The following grounds are cumulative and non-exclusive,

so that listing conditions, acts or omissions in one ground does

not prevent them from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in § 36-

1-102, has occurred;

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines

“abandonment,” in relevant part as follows:

(1)(A) For purposes of terminating the parental or guardian

rights of a parent or parents or a guardian or guardians of a child

to that child in order to make that child available for adoption,

“abandonment” means that:

(I) For a period of four (4) consecutive months immediately

preceding the filing of a proceeding or pleading to terminate the

parental rights of the a [sic] parent or parents or a guardian or

guardians of the child who is the subject of the petition for

termination of parental rights or adoption, that the parent or

parents or a guardian or guardians . . .have willfully failed to

support or have willfully failed to make reasonable payments

toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(I). Further, “token support” means that the support,

under the circumstances of an individual case, is not significant considering the parent’s

means. Tenn. Code Ann. § 36-1-102(1)(B).

In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), this Court discussed willfulness

in the context of termination of parental rights cases:

12
The concept of “willfulness” is at the core of the statutory

definition of abandonment. A parent cannot be found to have

abandoned a child under Tenn. Code Ann. § 36-1-102(1)(A)(I)

unless the parent has either “willfully” failed to visit or

“willfully” failed to support the child for a period of four

consecutive months.... In the statutes governing the termination

of parental rights, “willfulness” does not require the same

standard of culpability as is required by the penal code. Nor does

it require malevolence or ill will. Willful conduct consists of

acts or failures to act that are intentional or voluntary rather than

accidental or inadvertent. Conduct is “willful” if it is the product

of free will rather than coercion. Thus, 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....

The willfulness of particular conduct depends upon the

actor's intent. Intent is seldom capable of direct proof, and

triers-of-fact lack the ability to peer into a person's mind to

assessintentions or motivations. Accordingly, triers-of-fact must

infer intent from the circumstantial evidence, including a

person's actions or conduct.

Id. at 863–64 (internal citations and footnotes omitted). This Court has held that 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)).

Mother first contends that she could not have willfully abandoned this child because there

was no order entered requiring her to pay support. We disagree. In Tennessee, “[a] parent’s

obligation to support his or her child exists regardless of a court order requiring the parent

to pay support.” In re Jacobe M.J., 434 S.W.3d 565, 572 (Tenn. Ct. App. 2013) (quoting

Tenn. Code Ann. § 36-1-102(1)(H)). Furthermore, “[e]very parent who is eighteen (18) years

of age or older is presumed to have knowledge of a parent’s legal obligation to support such

parent's child or children.” Id. Accordingly, Mother’s argument in this regard, is not

persuasive.

Mother further contendsthat the Appelleesrefused to accept any supportshe offered to them.

Mother specifically testified that, after the child first came into the Appellees’ custody, she

offered K.R.G. diapers and a car seat for the child, but that K.R.G. had indicated that she did

13
not need these items. Importantly, the relevant time period for failure to provide support in

this case is dictated by statute as the four month period immediately preceding the filing of

the petition to terminate parental rights. Tenn. Code. Ann. § 36-1-102(1)(A)(I). Here, the

cross-petition for termination of parental rights was filed on July 1, 2013; accordingly, the

relevant four month period would be from March 1, 2013 through June 30, 2013. The

foregoing incident concerning the car seat and the diapers did not occur during the relevant

period. As discussed below, there is no indication that Mother made any offers of support

during the relevant statutory period.

In its April 29, 2014 order, the trial court made the following, relevant findings concerning

the ground of abandonment by willful failure to support:

The Court finds by clear and convincing evidence that [Mother]

did not provide financial support for the [child] during the

period from March 1, 2013 to July 1, 2013. . . and that her

failure to do so was willful. [Mother] knew that she had an

obligation to support [the child]. That knowledge comes from

both the provisions of Tenn. Code Ann. §36-1-102(1)(H) and

[Mother’s] life experiences. She wasreceiving child support for

her older child. . . . She filed a petition to seek child support

[for M.J.C.] from [the biological father]. She gave money, on

at least two occasions, to [the older child’s grandmother] to help

support [that child]. She acknowledged at trial that she had

money left over each month that she could have used to provide

support for [the child]. That money came from various forms of

government assistance, the child support she received for [the

older child], money she earned babysitting and doing hair, and

gifts that she received from various members of her family.

Further, even though [Mother] receives SSI, she is capable of

working. During the time thatshe was pregnant with [the child],

she worked cleaning houses with her aunt. . . .

[Mother] justifies her failure to provide any support for

[the child] based on her belief. . .that the [Appellees] would not

accept support from her. While such a belief does not excuse

[Mother’s] failure to provide support for [the child] prior to

December 3[], 2012, certainly after that date it can offer no

basis, whatsoever, for nonsupport.

The trial court further found that, after Mother changed her mind about allowing Appellees

14
to adopt the child, and after a lawyer had been appointed to represent Mother,

she could have requested that the Court set child support for her

to pay the [Appellees] pending the final hearing in this case.

She could have paid money into the office of the Clerk and

Master for the support of [the child], assuming offers of support

would have been declined by [Appellees] after January 1, 2013.

[Mother] made no such efforts and took no such steps.

Supporting [the child] was simply not something that [Mother]

had in mind at any time after [the child] went to live with [I.M.]

in June 2012. Her decision was willful.

Turning to the record, there is no evidence that Mother made any offers of support during the

relevant statutory period, i.e., in the four months before the Appellees filed their petition.

Both Appellees testified separately that Mother had not offered any means of support during

the pertinent time period, and that Mother had not given the child any gifts for birthdays or

Christmas. Mother specifically testified:

Q [to Mother]: [A]t any time did you set aside money for [the

child]?

A. No.

Q. You didn’t set up any savings accounts?

A. No.

Q. Stash any cash for her.

A. Nothing.

Q. Did you ever, after August of 2012, pay any bills for [the

child]?

A. No.

The evidence clearly and convincingly supports the trial court’s finding that Mother did not

provide any support for this child during the statutory period. Concerning the willfulness of

Mother’s failure to support, Mother testified that she had money left over after she paid her

15
bills each month:

A. When I pay my bills, I have like money to do whatever or

buy the kids stuff of. . .

Q. And why didn’t you give that to the [Appellees]?

A. Because they didn’t want it.

As discussed earlier, the fact that the Appellees may have refused Mother’s efforts does not

excuse her from making those gestures, or from petitioning the court to hold money for the

child. However, from the record, it does not appear that Mother made any efforts in this

regard. After her initial offering of diapers and a car seat, there is no clear testimony that

Mother ever actually offered any support for M.J.C. From the totality of the circumstances,

we conclude that clear and convincing evidence in the record supports the trial court’s

conclusion that Mother abandoned this child by willful failure to support.

V. Best Interest

When at least one ground for termination of parental rights has been established, the

petitioner must then prove by clear and convincing evidence that termination of the parent's

rights is in the child's best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.

App.1994). When a parent has been found to be unfit (upon establishment of ground(s) for

termination of parental rights), the interests of parent and child diverge. In re Audrey S ., 182

S.W.3d at 877. The focus shifts to the child’s best interest. Id. at 877. Because not all

parental conduct is irredeemable, Tennessee’s termination of parental rights statutes

recognize the possibility that terminating an unfit parent’s parental rights is not always in the

child’s best interest. Id. However, when the interests of the parent and the child conflict,

courts are to resolve the conflict in favor of the rights and best interest of the child. Tenn.

Code Ann. § 36–1–101(d). Further, “[t]he child's best interest must be viewed from the

child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at 194.

The Tennessee Legislature has codified certain factors that courts should consider in

ascertaining the best interest of the child in a termination of parental rights case. These

factors include, but are 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;

16
* * *

(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;

* * *

(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

(9) Whether the parent or guardian has 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 Court has noted that “this list [of factors] 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 rights is in the best

interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending

on the circumstances of an individual case, the consideration of a single factor or other facts

outside the enumerated, statutory factors may dictate the outcome of the best interest

analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:

Ascertaining a child’s best interests does not call for a rote

examination of each of Tenn. Code Ann. § 36-1-113(i)’s nine

factors and then a determination of whether the sum of the

factors tips in favor of or against the parent. The relevancy and

weight to be given each factor depends on the unique facts of

each case. Thus, depending upon the circumstances of a

17
particular child and a particular parent, the consideration of one

factor may very well dictate the outcome of the analysis.

White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

In its April 29, 2014 order, the trial court first noted Mother’s lack of visitation with the

child:

Between August 28, 2012 and December 31, 2012, [Mother]

saw [the child] on four occasions. She did not see her on her

birthday in December 2012, nor did she see her at Christmas

2012. She was invited to attend [the child’s] birthday party in

December 2012, but did not do so. [Mother] did not see [the

child] again until August 2013, when she began exercising

supervised parenting time for an hour each Monday.

Based, in part, upon the lack of visitation and contact with the child, the trial court concluded

that there was no meaningful relationship between Mother and M.J.C.:

[Mother] does not have a meaningful relationship with [the

child]. She has had very little contact with [the child] beginning

in June 2012. When she saw [the child] in September 2012. .

.she encouraged [the child] to refer to [Appellees] as “mommy

and daddy.” She admits that her relationship with [the child] is

“poor.” At one of her Monday morning visits in 2014,

[Mother]. . . tried to tell [the child] that she was [her] mother.

[Mother’s] conduct was very upsetting to [the child]. By

January 2014, [the child] no longer wanted to go to [visitation

with Mother]. . . . After the Monday morning visits, [the child]

displayed uncharacteristically negative behavior which took a

while to subside and was of sufficient concern to the

[Appellees] that they sought professional counseling for [the

child]. The evidence in this case supports the Court’s finding,

and the Court does find that [Mother’s] relationship with [the

child] has a negative impact on [the child] and is not meaningful

in a positive sense.

The evidence supports the trial court’s findings regarding both the lack of visitation and the

lack of a meaningful relationship between Mother and the child. From the record, it is clear

that M.J.C. views Appellees as her mother and father, and that she has a significant bond

with the Appellees’ biological children. K.R.G. testified, and her testimony was corroborated

18
both by S.J.J.G. and a friend who lived with Appellees for some period of time after the child

came into their home, that the child suffered from emotional issues, and was withdrawn when

she first arrived at Appellees’ home, but that the child has made marked improvements in

both of these areas. Based upon this testimony, which was not disputed in the record, the

trial court found that:

[The child] was emotionally disturbed when she went to live

with [Appellees]. . . . [Appellees] have invested an enormous

amount of time and energy in helping [the child] modify her

behavior. They have succeeded in doing so. [The child] has a

place in their home and feels that she is a member of their

family. Her portrait hangs with the portraits of [Appellees’

biological children]. Her height chart is on the wall next to that

of [the biological children]. She is depicted in the Christmas

greeting as a member of the [Appellees’] family.

The evidence in the record suggests only that the Appellees see M.J.C. as their own child,

and that she sees them as her parents, and Appellees’ biological children as her siblings. No

difference is made between the three children in the Appellees’ home. The evidence further

indicates that, since arriving at Appellees’ home, M.J.C.’s vocabulary has improved, and her

interaction with others has improved drastically. Based upon this evidence, the trial court

specifically found that:

To change [the child’s] caretaker and place her in the physical

and emotional environment offered by [Mother] is likely to have

a serious negative emotional and psychological impact on [the

child]. When asked why she wanted [the child] returned to her

custody, [Mother] could only say that she wanted to “take her to

school and take care of her.” As instructed by the legislature,

when the best interests of the child [are] in conflict with that of

an adult, the conflict is to be resolved in favor of the child. . . .

We agree with the trial court’s assessment. The evidence suggests only that M.J.C. is

thriving in the Appellee’s home. Given the fact that the child’s last consistent contact with

Mother was before June 2012, when the child was less than two years old, M.J.C. has no

concept that Appellant is her mother. The only parents she has known are the Appellees.

And although there is ample evidence to suggest that M.J.C. considers the Appellees’

biological children to be her siblings, there is no indication that she has any significant bond

with Mother’s older child. To remove this child from the only home she has ever known,

would likely cause irreparable harm at this age.

19
VI. CONCLUSION

For the foregoing reasons, we affirm the order of the trial court, terminating Mother’s

parental rights. The case is remanded for such further proceedings as may be necessary and

are consistent with this opinion. Costs of the appeal are assessed against the

Appellant/Mother, M.C.. Because Mother is proceeding in forma pauperis in this appeal,

execution may issue for costs if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

20