IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 29, 2018 Session

IN RE APEX R.

Appeal from the Circuit Court for Knox County

No. 1-401-16 Kristi M. Davis, Judge

No. E2017-02230-COA-R3-PT

This appeal arises from the termination of a father’s parental rights. John C. and Kellee 

C. (“Petitioners”), uncle and aunt respectively of Apex R. (“the Child”), filed a petition in 

the Circuit Court for Knox County (“the Trial Court”) seeking to terminate Dustin R. 

(“Father”)’s parental rights to the Child. After a trial, the Trial Court entered an order 

terminating Father’s parental rights on the grounds of willful failure to visit and support. 

The Trial Court found also that termination of Father’s parental rights is in the Child’s 

best interest, all by clear and convincing evidence. Father appeals, arguing among other 

things that the Trial Court lacked subject matter jurisdiction to decide the case under the 

Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”) because the 

Juvenile Court for Jefferson County, Alabama (“the Alabama Court”) made the initial 

custody determination, the Child’s mother remained in Alabama, and the Alabama Court 

never relinquished its exclusive and continuing jurisdiction. We hold that the Trial Court 

had subject matter jurisdiction to adjudicate the termination petition. We hold further 

that grounds for termination were proven by clear and convincing evidence and that 

termination of Father’s parental rights is in the Child’s best interest. We affirm the 

judgment of the Trial Court.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR. and BRANDON O. GIBSON, JJ., joined.

Shelley S. Breeding and Stephanie L. Prager, Knoxville, Tennessee, for the appellant, 

Dustin R.

N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, John C. and Kellee C.

06/29/2018
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OPINION

Background

The Child was born out of wedlock to Father and Laura C. (“Mother”) in Florida 

in October of 2014. Father was identified as the Child’s father on his birth certificate. 

Father and Mother never married. Indeed, Mother was married to someone else at the 

time of the Child’s birth. Mother had driven to Florida a few days before the Child was 

born because Father had insisted Mother come to Florida for the birth of the Child. 

Mother and Father lived with the Child in Florida for several weeks. Mother later took 

the Child with her to live in Alabama. 

In March 2015, Father filed a complaint for paternity and child support in the 

Alabama Court. Father also filed a petition for dependency and custody. In April 2015, 

the Alabama Department of Human Resources (“DHR”) filed a petition for dependency 

regarding Mother. The Child was placed in temporary custody. Various issues cropped 

up in effecting service upon Mother for her court appearances. While this was underway, 

Father moved from Florida to Alabama to be closer to the proceedings. Father eventually 

returned to Florida. In May 2015, the Alabama Court awarded physical custody of the 

Child to Petitioners, who live in Tennessee. Mother and Father were granted supervised 

visitation. DHR filed a petition for child support against Mother. In March 2016, upon 

DHR’s motion, the case was closed. Legal custody of the Child was awarded to 

Petitioners. An order stemming from the March 3 proceedings featured a handwritten 

statement: “DHR’s motion to close is granted, over [Father’s] objection. Custody of [the 

Child] is hereby placed with [Petitioners] per approved ICPC.”

1

 Another order states: 

“[Father] is not the legal father. Petition is hereby dismissed.” 

Father and Petitioners maintained a deeply antagonistic relationship throughout, 

blame for which is disputed. In August 2016, Petitioners filed a petition in the Trial 

Court seeking termination of Father’s parental rights. In October 2016, Petitioners filed 

an amended petition. Along with the amended petition, Mother submitted an oath 

consenting to adoption and surrender of her parental rights. Father filed a response in 

August 2017. In September 2017, DNA confirmation that Father was indeed the Child’s 

biological father was submitted to the Trial Court. This matter was tried in October 

2017. The evidence at trial focused chiefly on Father’s failure to visit or support the 

Child, and his explanations for this failure. Father testified to his efforts:

Q. Well, let me ask you this: You claim you want to establish a relationship 

with your child, and we set up visits and you don’t have them, we set up 

 

1

Interstate Compact on the Placement of Children (“ICPC”).
-3-

visits and you cancel them, and then you get mad and you call my client a 

piece of shit. And then how are you supposed to develop a relationship 

with your child with that kind of behavior?

A. I was upset and frustrated at the time, sir.

Q. How were you supposed to set up a relationship with that kind of 

behavior?

A. How about the resistance I was getting from [Petitioners] as well?

Q. What resistance was there to the Father’s Day?

A. (Pausing.)

Q. What resistance was there to the next visit that you cancelled?

A. Okay, you want these --

Q. What resistance was there --

A. These are text messages, you don’t know. There was also follow-up 

conversations that --

***

Q. Alright. Suffice it to say there were no more visits that were tried to be 

planned after October the 15th by mutual agreement; you agree with that?

A. No, sir.

Q. Alright. They had given you their address on two different occasions. 

After this last attempted visit on October the 14th of 2015, let me ask you 

this: What did you do to try to schedule any further visits?

A. I sent text messages on multiple occasions; every holiday, my birthday, 

Valentine’s Day, Christmas, Thanksgiving, my grandmother’s birthday --

Q. Over what period of time?

A. Over a year.

***

Q. Alright, so your testimony is, the only thing you did was send texts, and 

that you thought they were just ignoring you for eight months?

A. Yes.

Q. You didn’t write any letters --

A. No.

Q. -- to the post office box they gave you; is that correct?

A. That’s correct.

Q. You didn’t file anything in court asking to be granted visitation in 

Tennessee with the child; is that correct?

A. That’s correct.
-4-

***

Q. Okay, alright. So after the depositions, you sent, for the first time ever, 

$250 to Mrs. [C.]; is that right?

A. It is. As soon as they mailed me the paperwork that stated that I was the 

biological father.

Q. So, is it your position that you would’ve not paid child support without 

the DNA testing?

A. If it’s not my son why would I pay for him?

Q. Well, I mean, because previously, as we saw in your message to them, 

you said, “Can I have your address to send some money to help with my

child?” You were going to do that?

A. Yeah, I was going to as well.

Q. And you didn’t?

A. That’s correct.

Continuing his testimony, Father testified regarding child support:

Q. So prior to the petition to terminate, you hadn’t sent a penny, had you?

A. No, ma’am.

Q. Not a birthday card, not a Christmas card, not a stuffed animal for 

Christmas. You have not sent one red anything before the petition to 

terminate was filed, had you?

A. That’s correct.

Q. And then, even after the petition to terminate was filed, you did not send 

anything until a year in, you’ve asked for DNA testing; is that correct?

A. Um-hum. (Moving head up and down.) I wanted 100% proof that he’s 

my boy.

Father testified also as to his improved financial situation, and why at one point in 

the case he moved to Alabama:

Q. Alright. Okay, so because of the death of your father and now the death 

of your brother, you’re saying that you came into a significant amount of 

money?

A. Yeah.

Q. My recollection in the deposition was you said that was about $675,000?

A. Well, in stock.

Q. In stock in a company?

A. Correct.
-5-

***

Q. You said that your income changed, according to your affidavit, July 1, 

2017. So since July 1, 2017 up through today, you’ve had at least $6,300 a 

month in income; is that right?

A. Give or take. I mean, I’ve taken a lot of time off, too, to be traveling, so 

I haven’t had another $2,000 from my job. We can deduct that as well 

because I’ve been traveling back forth to here.

***

Q. When you moved to Alabama, the change of address forms we looked 

at, was there a period of time that you were going back and forth between 

Florida and Alabama?

A. Yes, multiple times.

Q. And eventually, you moved to Alabama, did you live with your mother?

A. I did, yes.

Q. Why did you move to Alabama?

A. I moved to Alabama because I exhausted all of my funds. I had flown 

up to file and I had to fly back. And because she was married, I didn’t have 

a birth certificate, so I had to fly back down to Vital Statistics, flew back 

up, filed again. And at that point, I had nothing left. And I [had] no choice, 

it was more economic for me to be in Alabama to be going to the Jefferson 

Courthouse every other week.

Q. You moved to Alabama because of the court proceedings there; is that 

correct?

A. Yes, yes.

Mrs. C., a Petitioner and the Child’s aunt, testified as to her perspective on 

communications with Father:

Q. Based on what happened with the texts that were sent to you, what did 

you do?

A. I ended up blocking him from my cellphone.

Q. Did you block him from anything other than your cellphone?

A. Not -- I blocked him from Facebook but not Facebook Messenger.

Q. And why did you do that?

A. Because I was tired of receiving just the irate texts, and the profanity of 

the messages that were sent.

Q. Were the messages abusive to you?
-6-

A. I felt like they were.

Q. Was the reason that you blocked your phone number and the Facebook 

page in order to interfere with his visitation?

A. No.

***

Q. What led you to decide to pursue adoption of the child?

A. After having [the Child] for a year and-a-half, I mean, we fell in love 

with him. I mean, he’s, we just melt over him. And we decided that we 

haven’t seen any, um, we haven’t heard from or had any interaction 

anymore with [Father]. So, we, I called you and asked you how to go about 

getting him adopted.

Q. Alright. Describe the relationship that you and this child have.

A. It’s definitely a mother/son relationship. He knows us as his parents, um

--

Q. What does he call you?

A. Mommy.

Q. And what does he call your husband?

A. Daddy.

When pressed on communication and cooperation with Father, Mrs. C. testified:

Q. But you couldn’t drive an extra twenty minutes for him to see his father; 

correct? You were unwilling to do that?

A. It’s not that I was unwilling, I didn’t want to meet at the Aquarium. And 

he was getting irate. I think I was bending over backwards to even drive to 

meet him, the mother came all the way to Knoxville.

Mrs. C. testified that her sister, Mother, “lives in Birmingham, or the outskirts.” 

Mrs. C. states that the Child believes Mother is his aunt.

In November 2017, the Trial Court entered an order terminating Father’s parental 

rights to the Child. The Trial Court found that the grounds of willful failure to visit and 

willful failure to support were proven by clear and convincing evidence. The Trial Court 

also found by clear and convincing evidence that termination of Father’s parental rights is 

in the Child’s best interest. The Trial Court found, in part, as follows:

The minor child was born in Florida to co-petitioner [Mother] on 

October 13, 2014. [Mother] was married to but estranged from her 

husband, co-petitioner, Teddy M. [Mother] was romantically involved with 
-7-

Respondent [Father], and he is listed as the father on the child’s birth 

certificate. Petitioners John C. and Kellee C. are the maternal uncle and 

aunt of the child, Kellee being [Mother’s] sister.

[The Alabama Proceedings]

***

[Mother] and the child stayed with [Father] in Florida for a few 

weeks after the child’s birth. At some point, [Mother] left with the child. 

According to [Father], he was not certain where [Mother] went, although he 

was aware of her living with friends for a period of time and also with 

[Father’s] mother in Alabama for a period of time. According to [Father], 

[Mother] had a substance abuse problem. On March 2, 2015, [Father] filed 

a complaint for paternity and child support in Jefferson County, Alabama, 

alleging that “mother is an endangerment.” That case bears docket number

CS-2015-87. On April 6, [Father] filed a Petition in the same court, 

alleging that [Mother] “has a history of drug use, and I found syringes in 

purse with blood on 3.24.15 when she was at my grandfather’s house. I

also found (3) — (4) other types of pills in her purse and took pictures. 

Multiple felon in AL/TN/FL for drugs. I am seeking custody of my son.” 

That case bears docket number JU2015-652.01.

On April 9, 2015, the Alabama Department of Human Resources 

(“DHR”), filed a Dependent Petition, alleging that the child was dependent 

and had been placed in protective custody due to mother being arrested on 

drug-related charges. That case bears docket number JU2015-652.02. On 

April 10, 2015, a hearing was held, and legal custody of the child was 

vested in the DHR. On April 22, 2015, [Petitioners] filed a Dependency 

Petition, docket number JU2015-652.03, seeking custody of the child.

An initial hearing took place on April 24, 2015 in cases JU2015-

652.01, .02, and .03. All parties were present, except Teddy M. The 

Court’s Order reflects that [Mother] stipulated to a general need for 

services. The Order provides that custody of the child remained vested with 

the DHR and allowed [Mother] to have supervised visitation of the child. 

A second hearing took place on May 15, 2015. Again, all parties were 

present, and [Father] was represented by counsel at this hearing. No 

transcript of the hearing has been provided, but the Court’s Order reflects 

that physical custody of the child was vested with the [Petitioners]. 

[Mother] and [Father] were allowed supervised visitation “as agreed to and 

arranged by the parties.”
-8-

Regarding [Father’s] petition in case number CS-2015-87, a hearing 

was scheduled for July 20, 2015. [Father] appeared, but [Mother] had not 

yet been served in that case. Accordingly, the case was re-set to August 6, 

2015. This Court was not provided with any documentation regarding 

what, if anything, occurred on August 6, 2015. Subsequently, the State of 

Alabama filed its own petition for support against [Mother] on September 

25, 2015. That case bears docket number CS-2015-901135.00.

To summarize the pleadings, three dependency petitions were 

pending-one filed by [Father] (JU2015-652.01), one filed by the Alabama 

DHR (JU2015-652.02), and one filed by [Petitioners]. (JU2015-652.03). 

Two support petitions were pending-one filed by [Father] (CS-2015-87), 

and one filed by the State of Alabama (CS-2015-9011135.00).

In the dependency cases, another hearing took place on October 22, 

2015. Again, all parties were present.2 At this hearing, the Court 

maintained physical custody of the child with [Petitioners] and legal 

custody with the DHR. The Order references [Father’s] support petition, 

CS2015-87. The Order further provides [Mother], but not [Father], with 

supervised visitation of the child.

No activity occurred in either set of proceedings until February 22, 

2016, when the DHR filed a motion to close dependency cases JU2015-

652.02 and .03. In the two support cases, [Father’s] lawyer filed a motion 

to consolidate the cases. On March 2, 2016, [Father’s] lawyer filed a 

motion to continue the dependency cases in light of the pending support 

cases. The motion asserts that [Mother] was just served in case number 

CS-2015-87 on February 27, 2016.

A hearing was held on March 3, 2016. The Order reflects that the 

Court granted the DHR’s motion to close cases 652.02 and .03 over 

[Father’s] objection, denied his motion to continue, and dismissed his 

dependency petition (652.01) because he was not the legal father of the 

child. The Order so reflecting was filed on March 9, 2016. No appeal from 

this Order was filed by [Father]. This Court has not been provided with 

evidence of any further activity on [Father’s] Alabama support case (CS2015-87). [Petitioners] filed the present Petition to adopt the child and 

terminate parental rights on August 30, 2016.

[Willful Failure to Visit and Willful Failure to Support]

***

 

2

It is unclear why [Father] did not have [Mother] served at this hearing with his petition in case number 

CS-2015-87.
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The Court will first address the allegation of abandonment by willful 

failure to visit. The relevant time period is April 29 through August 30, 

2016. It is undisputed that [Father] did not visit the child during that time 

period. [Father] contends, however, that his failure to visit was not willful 

because the conduct of [Petitioners] thwarted his visitation, both early in 

the proceedings when he claims they would not work with him on 

scheduling visitation, and later when, unbeknownst to him, Kellee blocked 

his text messages. [Father] relies primarily upon the case of In re Lyric J., 

2014 WL 7182075 (Tenn. Ct. App. Dec. 16, 2014). In that case, the Court 

of Appeals reversed the Trial Court’s finding of willful failure to visit. The 

Court of Appeals noted that the father, who lived in another state, had 

called the child’s grandmother, who had physical custody of the child, once 

per month to set up visitation; however, the grandmother always told the 

father that visitation was not a good idea at the time. In addition, the 

grandmother testified that she was afraid to let the father visit the child 

because she feared the father would take the child. The Court of Appeals 

held that a parent who has tried to visit his or her child but has been 

“‘thwarted by the acts of others and circumstances beyond his [or her] 

control’ has not willfully failed to visit.” Id. at *5 (quoting In re Adoption 

of A.M.H., 215 S.W.3d 798, 810 (Tenn. 2007) (emphasis added)). The

Court determined that a parent’s failure to visit may be excused by a third 

party’s conduct if the conduct “actually prevents the person with the 

obligation from performing his or her duty, or amounts to a significant 

restraint of or interference with the parent’s efforts to support or develop a 

relationship with the child.” Id. (quoting In re Audrey S., 182 S.W.3d 838, 

864 (Tenn. Ct. App. 2005)). The Court went on to note that it had deemed 

the following actions to be a significant restraint or interference with a 

parent’s efforts to develop a relationship with a child: “(1) telling a man he 

is not the child’s biological father, (2) blocking access to the child, (3) 

keeping the child’s whereabouts unknown, (4) vigorously resisting the 

parent’s efforts to support the child, or (5) vigorously resisting a parent’s 

efforts to visit the child.” Id. (citation omitted).

First, the Court notes that cases involving termination of parental 

rights are always fact specific. It is, therefore, somewhat difficult to equate 

the fact pattern of one case to another when trying to determine whether a 

failure to visit was willful. [Father] contends that his situation is directly 

analogous to that in In re Lyric J. Although there are some similarities, the 

Court finds that there are several important distinguishing facts. First, 

unlike the grandmother in In re Lyric J., [Petitioners] were not afraid to 

allow [Father] to visit, nor did they make scheduling visitation difficult. 
-10-

The evidence shows that from May to October of 2015, [Father] made six 

attempts to see the child. In May, he requested to see the child on Father’s 

Day, and the C.’s agreed. On May 31, he requested to see the child the 

following weekend, and the C.’s agreed. Both visits were either cancelled 

or were not followed up on by [Father]. On July 15, [Father] requested to 

see the child because he would be in Cleveland for a whitewater rafting 

trip, but Kellee objected based on the last-minute nature of the request and 

the fact that the family already had plans. The Court does not find Kellee’s 

decision unreasonable. In August, [Father] requested dates for visitation, 

and the C.’s informed him that August was wide open for scheduling a 

visit. This, of course, ultimately resulted in the disagreement between the 

parties about the location of the visit, which culminated in [Father] refusing 

to travel to Cleveland for a visit, stating to Kellee that “karma is karma and 

we shall engage in court,” and announcing on social media that the C.’s 

were all “POS.” [Father] requested an airport visit for October 14 and 

another visit on October 27, to which the C.’s did not respond. Kellee 

blocked [Father’s] cell phone number because of the derogatory and 

threatening nature of his texts and social media posts. From October 2015 

to the filing of the petition in August 2016, [Father’s] only attempts at 

communication, other than the Facebook message sent to John, calling him 

a “POS,” were via text. Those text messages cannot be construed as a 

legitimate attempt to schedule a visit with the child. Instead, the messages 

are insulting and threatening. The Court notes that during this entire time, 

[Father] never attempted to call John, call the C.’s landline, write the C.’s, 

or try any other form of communication other than texting Kellee. [Father]

did not petition any court for visitation. In sum, the proof simply does not 

support [Father’s] contention that the C.’s thwarted visitation with the 

child. The C.’s did quite the opposite. [Father] cannot behave in such a 

way that Kellee had to block his text messages, then complain that he could 

not communicate with Kellee via text to schedule a visit. In short, any 

difficulty [Father] had communicating with the C.’s was a problem of his 

own making.

With respect to willful failure to support, the law is clear that 

“biological parents must, as a general matter, support their children until 

they reach the age of majority.... The parent’s obligation to support, as well 

as the child’s right of support, exist regardless of whether a court order 

exists, and regardless of whether the parents were ever married.” Tenn. 

Code Ann. §36-1-102(1)(H). It is again undisputed that [Father] did not 

pay any money for the support of the child during the four months 

preceding the filing of the petition. [Father] offers various reasons for his 

failure to provide support. First, [Father] contends that he was not required 
-11-

to provide support until paternity was confirmed. [Father] also contends 

that he was financially unable to provide support. In his deposition, 

[Father] testified that he did not pay support because the C.’s “were 

keeping my kid and not working with me at all. So, they were not being 

flexible on any dates for me to see my son, at all, and I don’t trust what 

they were gonna do with the money.” Finally, [Father] testified in his 

deposition that he did not pay support because “the courts have not told me 

to pay anything to them at this time.” The Court finds these excuses to be 

disingenuous.

First, [Father’s] contention that he did not want to pay support until 

confirmation of paternity is inconsistent with his previous statements and 

behavior. On two occasions, [Father] asked [Petitioners] for their address 

so that he could send money and gifts to the child. [Father] never did. In 

addition, [Father] told the C.’s several times, forcefully via text, that the 

child was his child. [Father] cannot now come before this Court and use 

the lack of paternity confirmation as an excuse for his failure to support the 

child. Furthermore, [Father] did not actively seek paternity confirmation 

after [Mother] was served or once the Alabama proceedings concluded. 

Even when the present petition was filed, [Father] waited for a year before 

seeking paternity testing. Again, [Father] cannot wait until the eve of trial 

to obtain paternity confirmation, then use the lack of such confirmation as 

an excuse for two years of failure to support.

With respect to ability pay, the Court first notes that [Father] did not 

provide any tax returns because, apparently, he has not filed any. This is 

because some jobs were worked “under the table,” according to [Father]. 

[Father] testified that he is currently enrolled in a helicopter academy and 

has been for some time. Tuition of $80,000 was paid up front from trust 

funds from his father’s death.3 Since May of 2015, [Father] has worked for 

JCM Performance as an apprentice technician, for MidSouth Aviation, T.T. 

Motosports, and SpeedStar Customs. He is a professional chassis 

technician, and he builds and races motorcycles. He provided an Affidavit 

of Income and Expenses from June 30, 2017 and prior, which reflects a net 

income of $2,933.33 and expenses of $2,924.05. His expenses include 

$755.00 for attorney’s fees.

The Court finds that [Father] had an ability to pay something toward 

the support of his child, even if only a meager amount. Examining the 

Affidavit of Income and Expenses and assuming it to be true,4[Father]

could have sent just $10.00 per month, which would have been better than 

 

3

Shortly before the hearing, [Father] came into a large sum of money from his father’s business. He now 

claims a monthly income of $6,300.00.

4 Again, no supporting documentation for either income or expenses is contained in the record.
-12-

nothing. To the extent [Father] contends that he could not afford to send 

support payments because of his attorney fees, this argument was rejected 

by the Tennessee Court of Appeals in In re Makenzie L., 2015 WL 3793788 

(Tenn. Ct. App. Feb. 24, 2015) (rejecting the argument that “when parents 

are compelled to redirect their finances to seek legal representation to 

protect their right to parent their child, the abandonment by failure to pay 

financial support is not grounds for termination.”). 

In conclusion, the Court finds that the petitioners have established by 

clear and convincing evidence that [Father] willfully failed to visit the child 

and willfully failed to support the child. [Father’s] efforts at visitation early 

on were half-hearted at best. When [Father] finally appeared ready to 

actually visit the child, he refused to do so because he did not like the 

location chosen by the petitioners. His subsequent actions resulted in 

Kellee having to block him from texting, and [Father] made no genuine 

effort at visitation since October of 2015. The same is true with respect to 

support. [Father] offered various excuses as to why he did not support the 

child, and the Court is persuaded by none of them. The Court’s overall 

impression of [Father] with respect to his efforts at a relationship with his 

child are that he talked a lot but did very little.

[The Trial Court’s Best Interest Analysis]

***

The Court finds that the following factors are relevant in this proceeding:

(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....

(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.

First, with respect to factors three and four, [Father] has not seen the child 

in over two years. [Father] has no relationship with the child. In his 
-13-

deposition, [Father] testified that he believed the child would recognize him 

because “I set there and talked to him while he was in the womb for months 

and months, we watched motorcycles, played with things. And when he 

was born and heard sounds I made he lit up, he knew exactly who I was.” 

At trial, however, [Father] acknowledged that he would be a stranger to the 

child. In his deposition, [Father] acknowledged that when he met with the 

guardian ad litem, she discussed therapeutic visitation.5 He denied that she 

instructed him to take steps to set up therapeutic visitation. He also denied 

that she discussed reactive attachment disorder with him. The Court finds 

that these denials are not credible. In his deposition, [Father] was asked 

whether he had taken any steps to get himself reacquainted with the child, 

and he testified that he did not know.

With respect to factor nine, [Father] did not make child support 

payments. Even when he came into money shortly before trial, he sent only 

$250.00 for two months.

With respect to factors five and seven, the Court first notes that the 

proposed physical environment of [Father’s] home appears to be healthy 

and safe. [Father] has recently moved to a larger home in Florida that 

would have ample space for the child, and he has worked with a friend to 

locate a pediatrician and daycare services. This factor weighs in [Father’s] 

favor. However, the Court must also consider that that [Petitioners] are the 

only parents this child has known, and the child knows them as “mom” and 

“dad.”6 [Petitioners] have two older daughters who interact with the child 

like a brother. [Petitioners] have provided the child with a safe, stable, and 

loving home since the child was approximately seven months old. They 

have paid for and provided the child with food, shelter, clothing, and doctor 

visits. If the child were removed from this home and placed with [Father], 

the Court finds that the possibility for significant emotional harm exists.

Having considered the foregoing factors, the testimony of the 

parties, and the record as a whole, and keeping in mind the significant 

consequences of severing the child’s ties with his biological father, the 

Court finds by clear and convincing evidence that it is in the child’s best 

interest to remain with [Petitioners] in the only home the child has known.

Conclusion. 

 

5 At trial, the guardian ad litem advocated for termination of parental rights and for custody to remain 

with [Petitioners].

6

[Petitioners] testified that if they were permitted to adopt the child, they would tell him of the adoption 

at the appropriate age.
-14-

In sum, the Court finds that [Father’s] parental rights should be 

terminated for abandonment based on clear and convincing evidence of 

willful failure to visit the child and willful failure to support the child. The 

Court further finds that it is in the child’s best interest to remain with 

[Petitioners] and that their adoption proceeding shall move forward.

(Footnotes in original but renumbered). Father appealed to this Court following entry of 

this order. Later in November 2017, the Trial Court entered its Final Order of Adoption, 

granting adoption of the Child to Petitioners and also changing the Child’s name.

Discussion

Although not stated exactly as such, Father raises the following issues on appeal: 

1) whether the Trial Court lacked subject matter jurisdiction under the UCCJEA to 

adjudicate the termination petition; 2) whether the Trial Court erred in entering the final 

order of adoption after Father perfected his appeal of the judgment terminating his 

parental rights; 3) whether the Trial Court erred in finding the ground of willful failure to 

visit; 4) whether the Trial Court erred in finding the ground of willful failure to support; 

and, 5) whether the Trial Court erred in finding that termination of Father’s parental 

rights is in the Child’s best interest.

As our Supreme Court has instructed regarding the standard of review in parental 

termination cases:

A parent’s right to the care and custody of her child is among the 

oldest of the judicially recognized fundamental liberty interests protected 

by the Due Process Clauses of the federal and state constitutions.7 Troxel v. 

Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley 

v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re 

Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female 

Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 

573, 578-79 (Tenn. 1993). But parental rights, although fundamental and 

constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 

250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors . 

. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae

 

7 U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, 

without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states 

“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or

outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the 

judgment of his peers or the law of the land.”
-15-

when interference with parenting is necessary to prevent serious harm to a 

child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 

425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 

745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 

S.W.3d at 250. “When the State initiates a parental rights termination 

proceeding, it seeks not merely to infringe that fundamental liberty interest, 

but to end it.” Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few 

consequences of judicial action are so grave as the severance of natural 

family ties.” Id. at 787, 102 S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 

102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). The parental rights at 

stake are “far more precious than any property right.” Santosky, 455 U.S. 

at 758-59, 102 S.Ct. 1388. Termination of parental rights has the legal 

effect of reducing the parent to the role of a complete stranger and of 

“severing forever all legal rights and obligations of the parent or guardian 

of the child.” Tenn. Code Ann. § 36-1-113(I)(1); see also Santosky, 455 

U.S. at 759, 102 S.Ct. 1388 (recognizing that a decision terminating 

parental rights is “final and irrevocable”). In light of the interests and 

consequences at stake, parents are constitutionally entitled to 

“fundamentally fair procedures” in termination proceedings. Santosky, 455 

U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of 

Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 

(1981) (discussing the due process right of parents to fundamentally fair 

procedures).

Among the constitutionally mandated “fundamentally fair 

procedures” is a heightened standard of proof – clear and convincing 

evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard 

minimizes the risk of unnecessary or erroneous governmental interference 

with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 

596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder 

to form a firm belief or conviction regarding the truth of the facts, and 

eliminates any serious or substantial doubt about the correctness of these 

factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted). 

The clear-and-convincing-evidence standard ensures that the facts are 

established as highly probable, rather than as simply more probable than 

not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re 

M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

Tennessee statutes governing parental termination proceedings 

incorporate this constitutionally mandated standard of proof. Tennessee 

Code Annotated section 36-1-113(c) provides:
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Termination of parental or guardianship rights must be based 

upon:

(1) A finding by the court by clear and convincing evidence that 

the grounds for termination of parental or guardianship rights 

have been established; and

(2) That termination of the parent’s or guardian’s rights is in the 

best interests of the child.

This statute requires the State to establish by clear and convincing proof 

that at least one of the enumerated statutory grounds8for termination exists 

and that termination is in the child’s best interests. In re Angela E., 303 

S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is 

separate from and subsequent to the determination that there is clear and 

convincing evidence of grounds for termination.” In re Angela E., 303 

S.W.3d at 254. Although several factors relevant to the best interests 

analysis are statutorily enumerated,9the list is illustrative, not exclusive. 

The parties are free to offer proof of other relevant factors. In re Audrey S., 

182 S.W.3d at 878. The trial court must then determine whether the 

combined weight of the facts “amount[s] to clear and convincing evidence 

that termination is in the child’s best interest.” In re Kaliyah S., 455 

S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent 

receives the constitutionally required “individualized determination that a 

parent is either unfit or will cause substantial harm to his or her child before 

the fundamental right to the care and custody of the child can be taken 

away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

Furthermore, other statutes impose certain requirements upon trial 

courts hearing termination petitions. A trial court must “ensure that the 

hearing on the petition takes place within six (6) months of the date that the 

petition is filed, unless the court determines an extension is in the best 

interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must 

“enter an order that makes specific findings of fact and conclusions of law 

within thirty (30) days of the conclusion of the hearing.” Id. This portion 

of the statute requires a trial court to make “findings of fact and conclusions 

of law as to whether clear and convincing evidence establishes the 

 

8

Tenn. Code Ann. § 36-1-113(g)(1)-(13).

9

Tenn. Code Ann. § 36-1-113(i).
-17-

existence of each of the grounds asserted for terminating [parental] rights.” 

In re Angela E., 303 S.W.3d at 255. “Should the trial court conclude that 

clear and convincing evidence of ground(s) for termination does exist, then 

the trial court must also make a written finding whether clear and 

convincing evidence establishes that termination of [parental] rights is in 

the [child’s] best interests.” Id. If the trial court’s best interests analysis “is 

based on additional factual findings besides the ones made in conjunction 

with the grounds for termination, the trial court must also include these 

findings in the written order.” Id. Appellate courts “may not conduct de 

novo review of the termination decision in the absence of such findings.” 

Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn. 

Ct. App. 2007)). 

B. Standards of Appellate Review

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

termination proceedings using the standard of review in Tenn. R. App. P. 

13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at 

246. Under Rule 13(d), appellate courts review factual findings de novo on 

the record and accord these findings a presumption of correctness unless 

the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 

596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of 

A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened 

burden of proof in termination proceedings, however, the reviewing court 

must make its own determination as to whether the facts, either as found by 

the trial court or as supported by a preponderance of the evidence, amount 

to clear and convincing evidence of the elements necessary to terminate 

parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s 

ruling that the evidence sufficiently supports termination of parental rights 

is a conclusion of law, which appellate courts review de novo with no 

presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re 

Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions 

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

novo with no presumption of correctness. In re Angela E., 303 S.W.3d at 

246.

In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but 

renumbered). 

Clear and convincing evidence supporting any single ground will justify a 

termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Our Supreme 
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Court, however, has instructed “that in an appeal from an order terminating parental 

rights the Court of Appeals must review the trial court’s findings as to each ground for 

termination and as to whether termination is in the child’s best interests, regardless of 

whether the parent challenges these findings on appeal.” In re Carrington H., 483 

S.W.3d at 525-26 (footnote omitted). As such, we review each of the grounds for 

termination.

We first address whether the Trial Court lacked subject matter jurisdiction under 

the UCCJEA to adjudicate the termination petition. Father contends on appeal that the 

Trial Court lacked subject matter jurisdiction under the UCCJEA because the Alabama 

Court made the initial custody determination and never relinquished its exclusive, 

continuing jurisdiction. This issue was not raised below. However, it is well-established 

that subject matter jurisdiction may be examined at any point in a case. “The lack of 

subject matter jurisdiction is so fundamental that it requires dismissal whenever it is 

raised and demonstrated.” First American Trust v. Franklin-Murray, 59 S.W.3d 135, 141 

(Tenn. Ct. App. 2001). “[P]arties cannot confer subject matter jurisdiction on a trial or an 

appellate court by appearance, plea, consent, silence, or waiver.” Id. at 140-41. 

Concerning the multi-step analysis to be conducted under the UCCJEA, this Court has 

stated:

Under the UCCJEA, a court confronted with a petition to modify 

another state’s child custody determination must undertake a three-part 

threshold jurisdictional analysis. First, the court must decide whether the 

state that made the initial custody determination retains exclusive, 

continuing jurisdiction. Tenn. Code Ann. § 36-6-218(1)-(2). Second, the 

court must decide whether it would have jurisdiction to make an initial 

custody determination under the present circumstances. Tenn. Code Ann. § 

36-6-218. The court has subject matter jurisdiction to modify the other 

state’s child custody determination only if the other state has lost its 

exclusive, continuing jurisdiction or declined to exercise it and the court of 

the new state would have jurisdiction to make an initial custody 

determination under the present circumstances. Once a court determines 

that it has subject matter jurisdiction under the first two steps of the 

jurisdictional analysis, it must then proceed to the third step and determine 

whether it may or must decline to exercise its modification jurisdiction on 

one of the three grounds specified in the UCCJEA. Tenn. Code Ann. §§ 

36-6-221 to -223.
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Staats v. McKinnon, 206 S.W.3d 532, 547-48 (Tenn. Ct. App. 2006) (footnote omitted). 

Whether a court has jurisdiction under the UCCJEA is a question of law which we review

de novo with no presumption of the correctness of the ruling of the lower court. Staats, 

206 S.W.3d at 542.

Petitioners, for their part, argue that the UCCJEA does not even apply as this is an 

adoption case. According to Petitioners, the Child was placed with them in Tennessee 

under the terms of the ICPC and Alabama has nothing more to do with the case. 

However, an examination of Tennessee statutes and cases appear to contradict 

Petitioners’ position. First, we look to the UCCJEA, codified in Tennessee law at Tenn. 

Code Ann. § 36-6-201 et seq. The UCCJEA’s purposes are laid out as follows:

This part shall be liberally construed and applied to promote its underlying 

purposes and policies. This part should be construed according to its 

purposes, which are to:

(1) Avoid jurisdictional competition and conflict with courts of other states 

in matters of child custody which have in the past resulted in the shifting of 

children from state to state with harmful effects on their well-being;

(2) Promote cooperation with the courts of other states to the end that a 

custody decree is rendered in that state which can best decide the case in 

the interest of the child;

(3) Discourage the use of the interstate system for continuing controversies 

over child custody;

(4) Deter abductions of children;

(5) Avoid relitigation of custody decisions of other states in this state; and

(6) Facilitate the enforcement of custody decrees of other states.

Tenn. Code Ann. § 36-6-202 (2017). A child custody proceeding under the UCCJEA is 

defined as:

[A] proceeding in which legal custody, physical custody, or visitation with 

respect to a child is an issue. “Child custody proceeding” includes a 

proceeding for divorce, separation, neglect, abuse, dependency, 

guardianship, paternity, termination of parental rights, and protection from 

domestic violence, in which the issue may appear. “Child custody 
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proceeding” does not include a proceeding involving juvenile delinquency, 

contractual emancipation, or enforcement under part 3 of this chapter;

Tenn. Code Ann. § 36-6-205(4) (2017) (emphasis added). 

Tennessee courts have applied the UCCJEA in parental rights termination cases a 

number of times. See In re Caleb F.N.P., No. M2013-00209-COA-R3-PT, 2013 WL 

5783141 (Tenn. Ct. App. Oct. 25, 2013), no appl. perm. appeal filed (analyzing the 

UCCJEA in a parental rights termination case and concluding Tennessee retained

exclusive continuing jurisdiction to decide the petition); In re Z.T.S., No. E2007-00949-

COA-R3-PT, 2008 WL 371184 (Tenn. Ct. App. Feb. 12, 2008), no appl. perm. appeal 

filed (concluding the trial court lacked jurisdiction under the UCCJEA to adjudicate a 

termination petition).

Meanwhile, with respect to the ICPC, “[t]he purpose of the Compact is to 

facilitate cooperation between states regarding the placement of children.” In re Isaiah 

R., 480 S.W.3d 535, 538-39 (Tenn. Ct. App. 2015). At oral arguments, the Guardian ad 

Litem cited the following ICPC retention of jurisdiction provision to support the case that 

the Alabama Court effectively had “discharged” the case and thus, its jurisdiction:

(a) The sending agency shall retain jurisdiction over the child sufficient to 

determine all matters in relation to the custody, supervision, care, treatment 

and disposition of the child which it would have had if the child had 

remained in the sending agency’s state, until the child is adopted, reaches 

majority, becomes self-supporting or is discharged with the concurrence of 

the appropriate authority in the receiving state. Such jurisdiction shall also 

include the power to effect or cause the return of the child or its transfer to 

another location and custody pursuant to law. The sending agency shall 

continue to have financial responsibility for support and maintenance of the 

child during the period of the placement. Nothing contained herein shall 

defeat a claim of jurisdiction by a receiving state sufficient to deal with an 

act of delinquency or crime committed therein.

Tenn. Code Ann. § 37-4-201 (2014).

We are unpersuaded that the ICPC resolves the jurisdictional issue. As articulated 

in one scholarly piece, “[t]he term ‘jurisdictional arrangements’ as used in the ICPC 

should not be confused with the concept of subject matter jurisdiction required of a court 

to make a custody determination.” Jurisdiction Over Children in Interstate Placement: 

The UCCJEA, Not the ICPC, Is the Answer, 41 Fam. L.Q. 145, 147 (Spring 2007). 

“Courts interpreting the ‘jurisdictional’ provisions of the ICPC have consistently held 
-21-

that the ICPC is not the appropriate interstate document by which to determine 

jurisdiction.” Id. at 151. Placement, as such, is not contested here. No one disputes the 

soundness of the Child’s placement. Rather, the question is whether a Tennessee court 

may make the ultimate modification to another state’s initial custody determination—that 

is, termination of a parent’s parental rights. Petitioners appear to overlook the fact that 

no adoption can take place while Father’s parental rights to the Child are intact, and the 

Alabama Court awarding custody of the Child to Petitioners in Tennessee in an ICPCapproved placement does not resolve the jurisdictional issue which is distinct from 

placement. We conclude that, given the plain language of the UCCJEA and Tennessee 

case law interpreting it, the UCCJEA is implicated in this parental rights termination case 

where the initial custody determination was rendered in Alabama. We therefore proceed 

to apply the UCCJEA to determine whether the Trial Court had subject matter 

jurisdiction to decide this case.

The Child and Petitioners live in Tennessee. Father lives in Florida. Alabama’s 

role in the case appears to have receded entirely. Father raises two points in support of 

his position: (1) Mother still lives in Alabama; and (2) Father’s complaint for paternity 

and child support remained pending in the Alabama Court at the time of trial. In Cliburn 

v. Bergeron, this Court explained:

The UCCJEA establishes a clear jurisdictional hierarchy to decide which 

court will have power to decide child custody and visitation cases. Like 

with the [Parental Kidnapping Prevention Act], at the top of the hierarchy is 

a court with exclusive continuing jurisdiction. If a court has entered a valid 

custody order . . . and one of the parties or the child continues to live in the 

state, that court has the exclusive right to decide if the order should be 

permanently modified. The court with exclusive continuing jurisdiction has 

what might be called “a right of first refusal.” Courts of other states may 

not modify an order (assuming a parent or child continues to live in the 

state that issued an order) unless the court that issued the order gives 

permission for another state to decide the issue. . . .

Cliburn v. Bergeron, Nos. M2002-01386-COA-R3-CV, M2001-03157-COA-R3-CV, 

2002 WL 31890868, at *8 (Tenn. Ct. App. Dec. 31, 2002) (quoting MATTHEW BENDER 

& CO., INC., MODERN CHILD CUSTODY PRACTICE § 3-10 &-12), no appl. perm. appeal 

filed.

Matters under the UCCJEA are complex and quite intricate. We deem it necessary 

to lay out several of the pertinent laws relevant to this case. Tenn. Code Ann. § 36-6-216 

provides:
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(a) Except as otherwise provided in § 36-6-219, a court of this state has 

jurisdiction to make an initial child custody determination only if:

(1) This state is the home state of the child on the date of the 

commencement of the proceeding, or was the home state of the child within 

six (6) months before the commencement of the proceeding and the child is 

absent from this state but a parent or person acting as a parent continues to 

live in this state;

(2) A court of another state does not have jurisdiction under subdivision 

(a)(1), or a court of the home state of the child has declined to exercise 

jurisdiction on the ground that this state is the more appropriate forum 

under §§ 36-6-221 or 36-6-222, and:

(A) The child and the child’s parents, or the child and at least one (1) parent 

or a person acting as a parent, have a significant connection with this state 

other than mere physical presence; and

(B) Substantial evidence is available in this state concerning the child’s 

care, protection, training, and personal relationships;

(3) All courts having jurisdiction under subdivision (a)(1) or (a)(2) have 

declined to exercise jurisdiction on the ground that a court of this state is 

the more appropriate forum to determine the custody of the child under §§ 

36-6-221 or 36-6-222; or

(4) No court of any other state would have jurisdiction under the criteria 

specified in subdivision (a)(1), (a)(2), or (a)(3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a childcustody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is 

not necessary or sufficient to make a child-custody determination.

Tenn. Code Ann. § 36-6-216 (2017).

The term “home state” is defined as follows:

(7) “Home state” means the state in which a child lived with a parent or a 

person acting as a parent for at least six (6) consecutive months 
-23-

immediately before the commencement of a child custody proceeding. In 

the case of a child less than six (6) months of age, “home state” means the 

state in which the child lived from birth with any of the persons mentioned. 

A period of temporary absence of any of the mentioned persons is part of 

the period;

Tenn. Code Ann. § 36-6-205(7) (2017).

Regarding exclusive and continuing jurisdiction, Tenn. Code Ann. § 36-6-217 

provides:

(a) Except as otherwise provided in § 36-6-219, a court of this state which 

has made a child-custody determination consistent with this part has 

exclusive, continuing jurisdiction over the determination until:

(1) A court of this state determines that neither the child, nor the child and 

one (1) parent, nor the child and a person acting as a parent have a 

significant connection with this state and that substantial evidence is no 

longer available in this state concerning the child’s care, protection, 

training, and personal relationships; or

(2) A court of this state or a court of another state determines that the child, 

the child’s parents, and any person acting as a parent do not presently reside 

in this state.

(b) A court of this state which has made a child-custody determination and 

does not have exclusive, continuing jurisdiction under this section may 

modify that determination only if it has jurisdiction to make an initial 

determination under § 36-6-216.

Tenn. Code Ann. § 36-6-217 (2017).10

Tenn. Code Ann. § 36-6-218 provides:

Except as otherwise provided in § 36-6-219, a court of this state may not 

modify a child-custody determination made by a court of another state 

 

10 Alabama has an almost identical statute under its own UCCJEA codification at Ala. Code § 30-3B-202. 

We note that the Alabama comment to that statute states: “This section follows Section 202 of the 

Uniform Child Custody Jurisdiction and Enforcement Act except that the language ‘exclusive, continuing 

jurisdiction’ has been changed to ‘continuing, exclusive jurisdiction’ so as to be consistent with the 

Uniform Interstate Family Support Act (UIFSA).”
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unless a court of this state has jurisdiction to make an initial determination 

under § 36-6-216(a)(1) or (2), and:

(1) The court of the other state determines it no longer has exclusive, 

continuing jurisdiction under § 36-6-217 or that a court of this state would 

be a more convenient forum under § 36-6-221; or

(2) A court of this state or a court of the other state determines that the 

child, the child’s parents, and any person acting as a parent do not presently 

reside in the other state.

Tenn. Code Ann. § 36-6-218 (2017).

Finally, Tenn. Code Ann. § 36-6-221 states:

(a) Except as otherwise provided in § 36-6-219, a court of this state may 

not exercise its jurisdiction under this part if, at the time of the 

commencement of the proceeding, a proceeding concerning the custody of 

the child has been commenced in a court of another state having 

jurisdiction substantially in conformity with this part, unless the proceeding 

has been terminated or is stayed by the court of the other state because a 

court of this state is a more convenient forum under § 36-6-222.

(b) Except as otherwise provided in § 36-6-219, a court of this state, before 

hearing a child custody proceeding, shall examine the court documents and 

other information supplied by the parties pursuant to § 36-6-224. If the 

court determines that a child custody proceeding has been commenced in a 

court in another state having jurisdiction substantially in accordance with 

this part, the court of this state shall stay its proceeding and communicate 

with the court of the other state. If the court of the state having jurisdiction 

substantially in accordance with this part does not determine that the court 

of this state is a more appropriate forum, the court of this state shall dismiss 

the proceeding.

(c) In a proceeding to modify a child custody determination, a court of this 

state shall determine whether a proceeding to enforce the determination has 

been commenced in another state. If a proceeding to enforce a child 

custody determination has been commenced in another state, the court may:
-25-

(1) Stay the proceeding for modification pending the entry of an order of a 

court of the other state enforcing, staying, denying, or dismissing the 

proceeding for enforcement;

(2) Enjoin the parties from continuing with the proceeding for enforcement; 

or

(3) Proceed with the modification under conditions it considers appropriate.

Tenn. Code Ann. § 36-6-221 (2017).

The Alabama Court rendered the initial custody determination, therefore 

cementing its exclusive, continuing jurisdiction until one of the statutory conditions 

necessary to lift it occurred. Also, Mother continues to live in Alabama, which appears to 

prevent a court of another state from exercising jurisdiction on the basis that all relevant 

parties left Alabama. All circumstantial evidence in the record, including the testimony 

of Kellee C., Mother’s sister, indicates that Mother never has moved out of the State of 

Alabama. Finally, there is evidence that Father still has a pending action in Alabama for 

paternity and child support. All of these facts tend, superficially at least, to bolster 

Father’s argument. However, a closer inspection reveals Alabama’s continued 

jurisdictional grasp of the case to be far less sure.

First, the record contains orders from the Alabama Court granting DHR’s motion 

to close and dismissing Father’s dependency petition. Second, while Mother continues to 

live in Alabama, Mother also has submitted an oath reflecting her desire to surrender her 

parental rights to the Child. Mother has stated her position unequivocally and going 

forward will have no legal interest in proceedings regarding the Child upon finalization 

of her bid to surrender. That would be equally true either in Tennessee or Alabama. 

Finally, as to Father’s pending action in Alabama for paternity and child support, Father’s 

paternity already has been established conclusively by DNA testing. There is nothing 

new that the Alabama Court can glean in that area. 

Alabama’s connection to this case is now so tenuous as to be non-existent. The 

only parent remaining in Alabama wishes to surrender her parental rights. Father only 

moved to Alabama in the first place to be closer to the legal proceedings there but no 

longer lives in Alabama. The relationship between Mother and the Child now is so 

attenuated that there is no longer any significant connection to or substantial evidence in 

Alabama. To be clear, Mother could not stipulate to subject matter jurisdiction. Instead, 

we hold that the fact of Mother’s consent to termination and adoption nullifies her 

continued residence in Alabama as a barrier to the Trial Court’s exercise of subject matter 

jurisdiction. There is no prospect here of the kind of jurisdictional competition between 
-26-

states the UCCJEA was designed to prevent. We conclude that Alabama no longer 

retains exclusive and continuing jurisdiction in this case.

Turning to the question of whether Tennessee may assert jurisdiction, it is 

undisputed that Tennessee is the home state of the Child. The Child has lived here for 

years now. Furthermore, we find no reason why the Trial Court should decline to decide 

the case. Having answered the three part threshold jurisdictional analysis as we have, we 

hold that the Trial Court properly exercised subject matter jurisdiction in adjudicating the 

petition to terminate Father’s parental rights.

We next address whether the Trial Court erred in entering the final order of 

adoption after Father perfected his appeal of the judgment terminating his parental rights. 

Father argues that because the Trial Court entered an adoption order while his appeal of 

the termination of his parental rights is pending, he may lose the right to contest the 

adoption if the appellate process is delayed. Father cites Tenn. Code Ann. § 36-1-122, 

which provides as relevant:

(b)(1) After the final order of adoption is entered, no party to an adoption 

proceeding, nor anyone claiming under such party, may later question the 

validity of the adoption proceeding by reason of any defect or irregularity 

therein, jurisdictional or otherwise, but shall be fully bound by the order, 

except for such appeal as may be allowed by law.

(2) In no event, for any reason, shall an adoption be overturned by any 

court or collaterally attacked by any person or entity after one (1) year from 

the date of entry of the final order of adoption by a court of competent 

jurisdiction. This provision is intended as a statute of repose.

Tenn. Code Ann. § 36-1-122 (2017).

As it stands, the Trial Court in two orders adjudicated all matters put before it as to 

the petition filed by Petitioners seeking to terminate Father’s parental rights and to adopt 

the Child. Father timely appealed. Father now is exercising fully his appeal as of right. 

The possible outcome he hypothesizes is a mere conjecture, and is one that, given our 

decision as to the termination of Father’s parental right, is now moot. We find no merit 

to this issue. 

We now turn to the grounds for termination of Father’s parental rights found by 

the Trial Court. The Trial Court found two grounds under abandonment against Father, 

which are established by statute as follows:
-27-

(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 nonexclusive, 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) (2017).

The two relevant grounds under abandonment are willful failure to visit and 

support:

(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 

parent or parents or the 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 the guardian or guardians either 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;

Tenn. Code Ann. § 36-1-102(1)(A)(i) (2017).

“A biological parent’s willful failure to support or visit is not excused by a 

custodial parent’s or third party’s conduct unless the conduct either actually prevents the 

parent from performing his or her duty to support or visit or amounts to a significant 

restraint or interference with the parent’s efforts to support or develop a relationship with 

his or her child.” In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 

22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003) (citation omitted), no appl. perm. appeal 

filed.

We now address whether the Trial Court erred in finding the ground of willful 

failure to visit. Father argues that Petitioners blocked him from enjoying visitation with 

the Child. The Trial Court made detailed findings as to this issue. The evidence does not 

preponderate against the Trial Court’s findings on this or any other issue. This is 

especially so given the Trial Court’s unfavorable credibility determination as to Father. 
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Like the Trial Court, we conclude that Father’s problems with communicating with 

Petitioners were of Father’s own making. Father behaved woefully and spitefully toward 

Petitioners. In spite of that, Petitioners left alternative means of communication open to 

Father, of which he did not avail himself. Father chose instead to quibble over 

arrangements to meet with Petitioners to visit the Child. In the four month period prior to 

the filing of the petition to terminate parental rights, Father could have and should have 

visited with the Child and yet did not. We find, as did the Trial Court, that the ground of 

willful failure to visit was proven against Father by clear and convincing evidence.

We next address whether the Trial Court erred in finding the ground of willful 

failure to support. Father did not pay any support for the Child during the four months 

leading up to the petition seeking to terminate Father’s parental rights. Father offers a 

range of explanations. On the one hand, Father argues on appeal that it never was 

established that he had the means during the relevant period to pay support. On the other 

hand, Father argues that it was reasonable for him to withhold support until he was 

certain he was the Child’s biological father. These alternative explanations are 

contradictory rather than complementary, as Father acknowledges he could pay but that 

he did not because he was uncertain he was the Child’s father.

“It is well settled in Tennessee that biological parents must, as a general matter, 

support their children until they reach the age of majority.” State ex rel. Hayes v. Carter, 

No. W2005-02136-COA-R3-JV, 2006 WL 2002577, at *2 (Tenn. Ct. App. July 6, 2006), 

no appl. perm. appeal filed. “The parent’s obligation to support, as well as the child’s 

right to support, exist regardless of whether a court order exists, and regardless of 

whether the parents were ever married.” Id. 

Initially, we, like the Trial Court, believe Father may not assert his paternity from

the very beginning of the case, even insisting that the Child be born in Florida, and then 

use a lack of absolute certainty about paternity to excuse his failure to support. 

Furthermore, it is more than clear and convincing from Father’s testimony that his basis 

for not sending money was his ever-present hostility toward Petitioners, not a lack of 

means. Finally, the Trial Court found that Father is a professional chassis technician, 

who could have and should have been able to pay support for the Child during the 

relevant four month period, even if his support was minimal. None of Father’s excuses

for failing to pay support hold any merit. We find, as did the Trial Court, that the ground 

of willful failure to support was proven against Father by the standard of clear and 

convincing evidence.

The final issue we address is whether the Trial Court erred in finding that 

termination of Father’s parental rights is in the Child’s best interest. The statutory factors 

to consider are as follows:
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(i) In determining whether termination of parental or guardianship rights is 

in the best interest of the child pursuant to this part, the court shall consider, 

but is not limited to, the following:

(1) Whether the parent or guardian has made such an adjustment of 

circumstance, conduct, or conditions as to make it safe and in the child’s 

best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment 

after reasonable efforts by available social services agencies for such 

duration of time that lasting adjustment does not reasonably appear 

possible;

(3) Whether the parent or guardian has maintained regular visitation or 

other contact with the child;

(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to 

have on the child’s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent 

or guardian, has shown brutality, physical, sexual, emotional or 

psychological abuse, or neglect toward the child, or another child or adult 

in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s home is 

healthy and safe, whether there is criminal activity in the home, or whether 

there is such use of alcohol, controlled substances or controlled substance 

analogues 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.
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Tenn. Code Ann. § 36-1-113(i) (2017).

We note, as did the Trial Court, that certain factors favor Father. Father, for 

instance, has inherited a large sum of money. Father has a large home in Florida. In 

material terms, Father could provide for the Child. However, the factors weighing in 

Father’s favor are outweighed heavily by those against. As found by the Trial Court, 

Father made no child support payments other than the $500.00 he made after he inherited 

this sum of money. Father, by his own actions as we have discussed above, has no 

relationship with the Child whatsoever. This contrasts sharply with Petitioners’ deep 

familial relationship with the Child. 

Father has made various attempts in this case to assert his fatherhood, like moving 

to Alabama to be closer to proceedings there, as well as filing various petitions. 

Nevertheless, Father failed to follow up in any meaningful way. We find no error in the 

Trial Court’s decision that termination of Father’s parental rights is in the Child’s best 

interest. We affirm the judgment of the Trial Court in its entirety. 

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the 

Trial Court for collection of the costs below. The costs on appeal are assessed against the 

Appellant, Dustin R., and his surety, if any. 

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE