### IN THE COURT OF APP EALS OF TENNESS EE AT NAS HVILLE A ssi gne d on Br ie fs N ove m be r 2, 200 4

IN R E A D OP TI ON OF JO HN A LL EN KL ES HI N SK I AND



### KEV IN R AY KLES HINS KI

C HI R LE N A JE A N KL ES HI N SK I AND 

### JOHN EDWA RD KLES HINS KI
v. JULIA ELIZ ABE TH KLE SHIN SKI

An Appeal f

romthe Chancer y Court for Lincoln County No. A-186 J. B. Cox, Chancellor

No. M2004- 00986-COA-R 3-CV - F iled May 4, 2005

This is a termination of par ental rig hts c ase. The mother and fathe r wer e mar ried, a nd two sons were born during the marriag e. The father phy sically

abused themother during the marriag e. I n 1996, the p ar t i es divorce d. L ater in 1996, a conse nt order w as ente red g iving the f ather custody of the children. The order di d not require the m other to pay child support. Both parties rema rried, and the mother moved to A labama. The mother exercised visitation with the childre n until the early part of 1999. Around that ti me, t he mot her stopped visit ing the children e ntirely . The father c laimed that he did not know why

the mother stopped visiting, a nd the mother said that the f at h er and his new wife thre atene d her w ith phy sical harm if she attempted to see her sons. About four a nd a half y ear s afte r the mother’ s last attempt to visi t with the children, the f ather and his new wif

e filed this petition to terminate the mother ’s par ental rig hts and to permit the father’s new wife to adopt t he childre n. The father and his new wife asse rted that the mother had abandoned the c hildren by willfullyfailing t o s u p p o r t o r v i s i t t h e m

. T h e tr i a l c o u r t t e r m i n a t e d t h e m o t h e r ’ s p ar e n t a l r i g h t s b u t de c lin e d to permit the adoption at that time. The mother now appe als. W e re v er s e t h e finding of the w illful failure to support and af firm the finding of willful fail u re to visit. Howeve r, we vacate the t er m i n at i o n o f p ar en t al ri gh t s o n t h e b as i s t h at t h e t ri al co u rt fa i l ed t o m ak e s p ec i fi c w ri t t en fi n d i n gs reg arding the best intere st of the childre n, and re mand for f urther pr ocee dings on this issue.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cha nc e r y C our t i s V ac at e d and Rem anded

H OL L Y M. K I RBY , J ., delivere d the opinion of the Court, in which D AVI D R. F ARMER , J ., joined. A L AN E. H I G H ERS , J ., filed a se parate conc urring opinion.

Sus a n E . M c Cow n, F a y e tte vil le , T e nn e sse e , f or the app e lla nt, Julia

El iza be th K le sh ins ki.-2-

N. Andy Myrick, Jr., Fay etteville, Tenne ssee, f or the appellee s, Chirlena J ean Kleshinski and J ohn Ed wa rdKl e sh ins ki.

OP IN ION

This c ase involves the unsettling afte rmath of a n abusive mar riag e. Petitioner/Appellee J ohn Edwar d Kleshinski (“F ather ”) a nd Respondent/Appellant Jul ia Elizabe t h (Kleshinski) Posey (“ Mo the r” ) w e re marrie d in 1989 a nd are the natur a l pa re nts of the min or

c hil dr e n in vo lve d in thi s action, John All en Kleshinski (born O ctober 9, 1990) and Kevin Ray Kleshinski ( born Oc tober 8, 1994). They

lived primarily in F ay etteville, L incoln County , Tenne ssee. Mother has a ninth-g rade education and had wor

ked in minimum wage jobs, mostly at factories. F ather works for

a blasting company , reg ularly wo rk i n g signific ant overtime and making a substantial income. F ather was ph y sic a lly

abu siv e tow ard s Mo the r during the app ro xima te ly se ve n- y e ar m arria g e . M oth e r f ina lly le ft the mari ta l ho me , a nd the pa rt ie s div or c e d o n M arc h 1 1, 19 96 . In th e fi na l de c re e , b y c on se nt, Father wa s awa

rded c ustody

of John, and Mother was a war ded custody of Ke vin.

Mother wa s unemploy ed whe n she left the ma rital home, and initially had diffic ulty finding a job. She lived in a variety of plac es, first with a f

riend, for a short whi l e in a motel, for se vera l months in a trailer with a boy friend, and then with a cousin. As a result, in Dec ember

1996, Mother signe d a conse nt order g iving F ather custody of Ke vin as well as John. Kevin an d J ohn wer e approximately two and five y ear s old, respe ctively , at t he ti me. Under the order, M other was g iven
rea sonable visitation to be established by Father in his discretion. The consent order did not require Mo the r t o p a y

c hil d s up po rt

.
Father re marrie d in November 1996 to Chirlena J ean K leshinsk i (“ Stepmother”). T hey continued to re side in Fa y etteville, Lincoln County , Tenne ssee, with Stepmother’s son from a prior marria g e. Some of Mother ’s re latives, including her sister, c ontinued to live in the same ar ea. At some point during this time, Mother moved to Ala bama. F or a co u p le of y ear s, she exercised r eg ular visitation with both children. This ended on a pproxi mately

New Y ear ’s Eve 1998, for r easons that the pa

rties dispute. She had no visitation with them after that time.

Mother marri e d M yr o n Po s e y ( “ M r

. Po s e y ” ) in A p r il 1 9 9 9 , a n d f o r a t l e a s t th e n e xt f

our y ear s, she and he r new husband continued to live at the same addre ss in Alabama. Mr. Posey had been e mploy ed at a meat marke t prior to the ir marria g e, but af ter seve ral surg erie s on his legs w as unable to continue working

. Mother had reg ular c ommunication with her sister, Sheila Nix (“Nix ”). Nix lived in the same a

rea as Father and S tepmother and was in contac t with them as well. Father’s mother, Ann Jones (“Gr andmother” ), also re mained in contac t with Mother.

On Fe bruary

18, 2003, Father and Stepmother filed a pe tition t o terminate Mother ’s par ental rig hts as to both children, and to pe rmit St epmother to a dopt them. As g rounds for te rmination, the pe tit ion a lle g e d th a t M ot her had “w ill fu lly faile d to vis it, su pp ort, o r m ake re a so na ble pa y me nts toward the sup port of [the children] for a period of 4 months pre ceding the filing of this petition-3-

and/or eng ag ed in conduct that exhibi ted a wanton dis reg ard for t he welfare of t he children.” The petition also alleg ed that termination of Mother’s rig hts was in the best intere st of the childre n. The pe tition for adoption all ege d t hat Father ha d attempted to determine Mother’s wh e re abo uts a nd“ dr ov e to A la ba ma to s e arc h fo r [Mothe r] a t he r la st kn ow n a dd re ss, bu t w a s u na ble to locate he r.” B ased on the claim by Father and Stepmother that their ef forts to locate Mother we re
unsucce s s ful, the petitioner soug ht to serve pr ocess on Mother by publication in the Elk Valley Times in L incoln County , Tenne ssee.

A frie nd of Nix ’s apparently saw the publication in the Elk Valley Times and told Nix , who in turn notified Mother. Af ter learning of t he petiti on to terminate he r par ental rig hts, on March 17, 2003, Mother sent a

letter pro s e to the Cour t Clerk, objecting to the termination of her pare ntal rig hts and asserting that she had bee n unable to visit the children be cause Father a nd Stepmother ref used to allow such c ontact and thr eate ned her with bodilyharm whe n she at t em p t ed to see the children . Mother filed a n aff idavit of indige ncy

and counse l was appointed to re prese nt her. The trial was se t for Jul y

8, 2003.

I n the ensuing trial, the trial judg e hea rd testimony from sever al witnesses. The witnesses offe red w idely diverg ent vi ews of the m arriag e between Mother and Father , and the circumstance s
un de r w hic h M oth e r c a me to l os e a ll c on ta c t w ith he r s on s. As the petitioners, Father and Stepmother prese nted their proof. Father testified f irst, giving sparse backg round on his ma rriag e to Mothe r and their 1996 divorce

. He noted that, initially , they ag ree d that he would have custody of their older son, J ohn, and that Mother would have custody of Ke vin , b u t s e v e r a l m o n t h s l a t e r , M o t h e r a g r e e d t o a l l o w F a t h e r t o h a v e p r i m ar y c u s t o dyof bo th children. F ather

said that, aft er he obtained custody of both boy s, Mother visited them only “[a] couple of times.” He claimed t hat he of fer ed to let Mother stay

in his and Stepmother’s home and visit the children there, but that she did not take adva ntag e of that offer . He then te stified as to an
oc c a sio n o n w hic h M oth e r h a d th e c hil dr e n, bu t th e y we re dis c ov e re d in the mid dle of the nig ht i n the ca re of two t eenag ers who ha d been drinking a nd passed out. When the childre n wer e found, the y we re dirty

a ndKe vin wa s in a

dia pe r that app e are d to ha ve no t be e n c ha ng e d fo r se ve ra l ho ur s.

Fa ther te s ti f ie d th a t M o th e r

la s t v is it e d th e c h il d r e n in F e b ru ar y 1 9 9 9 , th a t s h e h a d not attempted to ca ll him s ince that time, and that he had not r ece ived any letters from her. He did not testify as to any rea son for her failure to visit their sons. Father claimed that he and Stepmother tried to locate M o th e r b y d r iv in g to A la b a ma to lo o k f

o r h e r , b u t c o u ld n o t f

in d h e r

. F a th e r s aid that Mo the r h a d n e v e r p a i d a n y s u p p o r t f o r t h e c h i l d r e n s i n c e h e g a i n e d c u s t o d y o f b o t h of the m. Con tr ary to the a lleg a tio ns in M oth e r’ s le tte r t o th e Cou rt Cle rk , F a the r s ta te d, he ha d n e ve r t old Mother that she could not come see the children, a nd he had “ not ever threatened” Mother or in a ny way tried to preve nt her fr om seeing the childre n. Father testified that it would now be de trimental t o t h e ch i l d re n t o al l o w M o t h ert o co m e b ac k i n t o t h ei r l i v es af

t erh av i n g b ee n go n e f

o r s o l o n g. Father said that he and Stepmother ha d been ma rried f or seve n y ear s and have a g reat marriag e. He
asserted that Stepmother has a g reat relationship with the children a nd that she was the only mother-4-

they knew. Father said that the children do not ask about Mother, and that the y oung er boy , Kevin, do e s n ot r e me mbe r M oth e r at a ll. He ma int a ine d th a t he a ndSte pmo ther ha d th e fi na nc ia l a

bil ity t o c ar e f o r t h e c h i l d r e n , n o t i n g t h a th e w a s m ak i n g $ 1 5 a n h o u r w o rk i n g f

o r a b l a s t i n g c o m p a n y, wo rking su bs ta nti a l ov e rt ime . F a the r c on te nd e d th a t it wa s in the be st i nte re st of John a ndKe vin for Stepmother to adopt t hem s o that she would have custody in the event that something happene d to h im.

On cr oss-examination, F ather ag ain denied that he had eve r threatened Mother . Father wa s then aske d about phy sical abuse :
Q: You neve r beat her e ither, did y ou? A: Be at her ? Q: Be at her ? A: De fi ne be a t. Finally , Father a dmitted to h av i n g “hit” Mother during the ir marriag e, but claimed that he hit her “[n] o more than she hit me.” Father professed not to reme mber details; he allowed that he may have hit Mother “a couple of times” but did not reme mber whether he hit her in the he ad, and de nied eve r kicking or hi tting Mot her while she was preg nant. Father said that it had happened “a long time ag o” and cla imed, “I ’m a diff

ere nt person now.” Father a dmitted to having be en ar rested in J une 1996 for the ag g ravated assault of Stepmother’s former husband, but said that the cha rg es we re dr opped. Father a cknowledg ed that four or five y ear s ag o, Stepmother and Mother talked on the tele phone and “had w ords,” but cla imed that he did not know all that was sa id.

Father noted that Mother had ne ver p ai d ch i l d s upport. He de nied that she off ere d to pay
su c h s up po rt

in o rd e r t o g e t un imp e de d v isi ta tio n w ith he r s on s.

F a the r c la ime d th a t, a ft e r the div or c e , M oth e r a g re e d to g ive him p e rm a ne nt c us tod y

of Ke vin by signing the nec essary

paper s draf

ted by his lawy er. He de nied telling Mothe r that it would be a temporary

custody arr ang ement, obser ving that the custody paper s she si g ned were a vailable f or her to rea d. Father a cknowledg ed that the f inal divorce decr ee pr ovided that Mother would ha ve
rea sonable visitation as determined by him. W hen aske d about the circ umstances on Ne w Yea r’s Eve of 1998, F ather initiallyclaimed that he did not reca ll the incident, and then state d that Mother was supposed to ha ve the children, but did not g et them from him. Father said that the f irst weeke nd in F ebrua ry 1999 was the last time he re membere d Mother exerc ising visitation with their children. When a sked about the oc casion on whic h he and Stepmother drove to Ala

bama to look for Mothe r three or four y ear s prior to the hearing, Father claimed that they did not f ind her. He denied that they d ro v e by M o t h er ’s h o u s e, s aw h er get o u t o f h ercar, an d y el l ed at h ert o “c o m e ge th eras s wh i p p i n g” and made an obsce ne g esture towa rd her

.
F a t h e r a d m i t t e d t o u s i n g m ar i

j u a n a “ [ y] e ar s a g o ” b u ts a i d t h a t h e h a d n o t d o n e s o r e c e n t l y. He de nie d e ve r u sin g c ra c k co c a ine , an d de nie d e ve r u sin g dr ug s a ro un d th e c hil dr e n. F a the r s a id “no, it’s not ever

been use d in my

home. We’ve g ot a drug -fr ee home .”-5-

Stepmother also testified. Stepmother said that she and F ather have a g ood relationship, and that he is a g reat pare nt to the c hildren. Stepmother said that she g ets along well with the childre n, tr e a t s t h e ma s h e r

o w n , a n d l o v e s t h e md e ar l y.

Ste pmo the r c or

ro bo ra te d F a the r’ s te sti mon y that Mo the r’ s la st v isi t w ith the c hil dr e n w a s in Fe bruary 1999. Prior to that visit , she cl ai m ed , i t h ad bee n about three months since Mother had tr i e d t o v i s i tw i t h t h e c h i l d r e n

. S h e s a i d t h a t M o t h e r h a d e x e r c i s e d h e r

v i s i t a t i o n w i t h t h e b o ys reg ularly until Mot her’ s mother died in September or Oc tober 1998. At that point , Stepmother claimed, whe n she tried to ca ll Mother to set up visitation, Mother’s husband told Stepmother to stop try ing to push the kids on Mother, and that Mother would contact Stepmother if she w anted to see the c hil dr e n. Ste pmo the r s a id that at one tim e sh e tr ie d to e nc ou ra g e vis itatio n th ro ug h c on ta c t w ith Mother’s sister, N ix , but later stopped trying to do so.
Stepmother explained that she had known Nix prior to her marria g e to Father, a nd said that Nix had been t o her home since Mother stopped visiting the childre n. Stepmother denied thre atening to beat or a ssault Mother if she tried to visit the children, but acknowle dg ed telling Nix that Mother “dese rved a n ass whipping .” S he said that her comment to Nix was made about a y ear afte r Mother stopped visiting the childre n and cla imed that she said it beca use s he wa s ang ry

at Mother f

or not exercising her visitation. Stepmother said that the children would cry beca use Mot her did not show up to g e t th e m, andthat sh e wa s le ft to m ake e xcu se s f

or he r. Ste pmo the r d e nie d ma kin g thr e a ts t o Mother over

the y ear s, either directly to Mother or throug h others. Stepmother c laimed that Mother ha d n e ve r c a lle d h e r h ou se , a ndde nie d th a t N ix ha d e ve r g ive n h e r M oth e r’ s te le ph on e nu mbe rs

. Stepmother said that, on more than one occa sion, she and F ather drove to Ala

bama to look for Mother , but claimed that they did not find her. She denied driving by Mother’s house , slowing down in front of the house, and y elling at her and making obscene g estures. Stepmother a sserted that
ne ith e r s he no r F a the r w a s a t f a ult fo r M oth e r’ s f

a ilu re to v isi t th e c hil dr e n in fo ur a ndha lf y e ars

. Stepmother ac knowledg ed that she w as aw are that Father’s mother , Ann J ones (“G randmother ”), planned t o meet with Mother’s lawy er about testify ing at trial. She denied telling Gra ndmother that she ha d better not g o to the lawy er’ s office , denied telling her that she had be tter not come to court, and denied thre atening to keep Gr andmother’ s big sc ree n television or kee p the boy s away from her if she appe are d in court to testify . Stepmother also denied he aring Father make
su c h th re a ts.

Ste pmo th er st ated that F a the r h a s n e ve r b e a te n h e r b e c a us e sh e wo uldno t st a ndfo r i t. Refer ring to Mother, Stepmother sa i d , “[ i] f y ou’re stupid enoug h to stay in a home whe re y ou’re being abused, the n that’s y our own fa ult.” When asked a

bout Fathe r’s fa

ult for t h e abuse , Stepmother conc eded it wa s “his fault, too.”
Stepmother denied ha ving e ver use d illega l drug s, and said that Father does not use illeg al drug s. She asserte d that she does not allow them in her home.-6-

When asked whe ther Mother had eve r paid support for the c hildren, Stepmother stated that Mother once boug ht J o h n a b ac k pack and school supplies, but that she had not paid any support since Fe bruary 1999. She said that she and Father did not attempt to g et child support from Mother be c a us e the y did no t nee d he r ch ild su pp ort. Ste pmo the r as se rt e d th a t it wo uldbe in the be st i nte re st of the c hil dr e n to te rm inate Mo the r’ s p are nta l r ig hts , a ndthat it wo uldbe ha

rm fu l to the c hil dr e n to allow Mother to come back into their lives at this poi nt.

Mo the r w a s c a lle d b y

F a the r andSte pmo the r t o te sti fy a s a host ile wi tne ss. I n r e sp on se to qu e sti on s fr om co un se l for F a the r andSte pmo the r, Mo the r s a id that sh e marrie d M r. Pos e y in A pril 1999, and that they

had lived at the sa me addr ess in Alabama since that time, appr ox imately four y ear s. Mother said that she ha s a ninth g rade education. She wa s unemploy ed whe n she sepa rate d from F ather , but manag ed to find full-time employ ment afte r that, mostly minimum -wa ge jobs at fac tories. Afte r the divorc e, she lived a few months with a friend, t hen with an e x -boy friend f or a period of t i m e. She lived in a motel for a couple of

wee ks while she wa s unemploy ed, and the n mov e d in wi th h e r c ou sin . A ft e r that, M oth e r m e t he r c ur re nt h us ba nd a nd be g a n to liv e wi th h im in Alabama. Mothe r said that she curr ently has a job at C.S. Flag Company earning $6.70 pe r hour. He r h us ba nd , M r. Pos e y , w a s u na ble to w or

k a ndwa s se e kin g dis abil ity be ne fi ts.

Mother ac knowledg ed that she voluntarily g ave c ustody

of Ke vin to Father

and Stepmother, but said that she thoug ht at the time that it wa s a tempora ry arr ang ement. When Father’s c ounsel showed Mother

the conse nt or d er , M o ther a dmitted that the order did not say that the g rant of custody to Fathe r wa s temporary . She said that she had r ead the parties’ ag ree ment, but claimed that there wer e some things in it that she did not under stand. Severa l months after she sig ned the c onsent
or de r, Mo the r l e arn e d f

ro m F a the r that th e or de r i n f a c t g a ve him

pe rm a nen t f

ull c us tod y

of bo th children. L ater , when she was de nied visitation, she called a bout eig hteen law y ers in Alabama and at least one lawy er in Te nnessee to try to obtain visit ation rig hts. Mother said that she did not have the money

to hire a lawy er, and could not f ind one who would work w ith her on payments. From her telephone conver sations w ith a ll of these attorney s, Mother conc luded that she c ould not affor d to hire a la wy er.

Mother admitted that she ha d not paid support for the pa st f our and a half y ear s. She claimed that she had of

fer ed support money

to Fathe r and Stepmother and that they reje cted he r off

er, say ing that th e y didno t w a nt h e r m on e y . M oth e r i nd ic a te d th a t she wa s st ill wi lli ng to p a y c hil d s up po rt

.
Mothe r a d mi tt e d a s w e ll th a t s h e h a d n o t s e e n h e r c h il d r e n f o r f o u r a n d a h a lf y e ar s

. She
a s s e r te d th a t s h e d id n o t v is it b e c a u s e F a th e r a n d St e p mo th e r “ h a d th r e a te n e d me , a n d I k n e w my e xhusband had be aten me, and I was sca red to g o afte r these thr eats.”

Mother re counted a n incident i n which S tepmother got i n her car and chase d Mother down the stre et

. M o t h er s aid t hat she tried to c all Father a nd Stepmother sometime in 1999 or 2000, may be a c ouple of y ear s prior to the trial, but that phone numbe r h ad b ee n d i s connec ted. Mother reiter ated that she was afra id to g o to their house beca use t hey had thre atene d her a nd beca use F ather had hit her be fore . When asked whe ther F ather or Stepmother had done anythi n g in the past y ear-7-

to keep Mother

from visiting, Mother

responde d that they

had not. Mother m ai n tained, howe ver, that she wa s “sca

red to g o and try

and see my

children be cause of the phy sical harm that they had threatened on me.” Mother conce ded that she did not know wher e the children went to school, since Father a nd Stepmother had moved. When asked why she had not contac ted t he school sy stem to ge t this information, Mother said that she wa s unawa re that she had a

rig ht to obtain the information.
Thoug h Mother maintained that Father was a bad pe rson during their marriag e, she sa id that he wa s not bad enoug h that she would not ag ree to give him c ustody of the c hildren. She explained, “he g ot better a fterw ards.” Mother ag ree d that “[h] e w as a g ood fathe r.” Mother said that she believes that the children a re be ing w ell taken c are of and that they are in a g ood home.

Whe n a sk e d w he the r the bo y s wou ld kno w he r af te r n ot h a vin g se e n h e r f

or fo ur a nda ha lf y e ars , M oth e r r e pli e d, “ I ho pe the y do .” Whe n a sk e d w he the r i t w a s in the c hil dr e n’ s b e st i nte re st for he r to re- enter

their lives, Mother said, “I think my children need to know their biolog ical mother, y es, I do.”

Mother wa s then examined by her ow n attorney

. Under direc t examination, s he desc ribed her ma rriag e with Father. Mother said that Father would g o out and drink, come home, and be at her

. The a buse beg an ea

rly in the marria g e: “He beat me on our first anniver sary beca use Iwas dre ssed up to go out a nd he come home drunk. . . . I took a sip of wine, wasn’t supposed to, he’s the one that told me to be rea dy

to go w hen he g ot – when he g ot home.” During the ir seven y ear s of marriag e, Mother said, F ather

hit her at lea st two or three times a wee k. She said that Father hit her sometimes with a closed f

ist, other times with an open hand, fre quently in the fac e and in the he ad. When she was pre g nant with their oldest son J ohn, she said, Father kicked her in the ribs and hit her. Mother said that Father told her that, if she filed c harg es or e ven if she w ent to the hospital for medic al attention, the conse quence s would be even worse. She testified t hat Father also used m arijuana and
cra ck; whil e she was preg nant wit h J ohn, a friend of Father’s lived w ith them and furnished F ather with cra ck.

Mo the r s a id that he r marria g e to F a the r g ot p art ic ula rl y ba d w he n th e c ou ple wa s li vin g in South C arolina a nd Father c heate d on her. She said that Father would spend time at a g irlfriend’ s house, and the n come ba ck to her home to visit wit h their son J ohn and slee p on the couch. He be at her e ven whe n they

wer e sepa

rate d, and thre atene d that if she we re to take J ohn out of the State of South C arolina, he would kill her

. She said that he threatened her in that w ay many times, and she believed the threats. Mother said that, just afte r the divorc e, she exercised visitation with the boy s reg ularly . She had custody

of the boy s every

other we ekend, and on other oc casions whe n Father ne eded he r t o keep the childre n. Mother was asked about the incident described by Father in which, w hile Mother had
wee kend visitation, the children we re f o und in her c ousin’s house in the custody of two drunk teena g ers. Mother

admitted to the incident, stating that she wa s living with her c ousin at the time. Mother cla imed she did not know wher e the tee nag ers obtaine d the liquor.Ind ee d , p ara gra p h 2 3 o f t he p eti t i o n to t erm i na t e M o t he r’ s p are ntal ri gh t s st ates that M o t he r wa s “l ast 1 b el i eved t o be l i vi ng i n Al a b a ma

. ” D espit e t hi s, co unsel fo r t he p et i t i o ners arr anged fo r s ervi ce b y pub l i cat i o n i n t he lo c a l ne w sp a p e r in L inc o ln C o u n ty, Tenn es s ee , wh er e Fat her an d St epm ot her l i ved. T hi s s eems t o be i nex pl i cabl e,
-8- Mo the r d e sc ri be d th e e pis od e on Ne w Y e ar’ s E ve 19 98 . Sh e sa id t hat F a the r a skedhe r t o keep t h e b o y s o n New Y ear ’s Eve be cause he had e x pensive ticke ts for an e vent and he and Ste pmo the r int e nd e d to g o o ut. Mo the r t oldF a the r that sh e a ndhe r h us ba ndha d a lr e a dy ma de plans

. She said that Father then told her that if she did not g et the kids rig ht then, he would not let her se e them any more.

There afte r, Mother te stified she re ceive d information from se vera l diff e r e n t p e o p le

who wer e in c on ta c t w ith F a the r andSte pmo the r that if sh e we nt t o v isi t th e c hil dr e n sh e wo uld“ g e t th e a ss whipping I

deser ve.” E ven bef

ore the New Y ear ’s Eve in cident, Mother said, she felt thre atene d beca use fre quently

when she visited, there would be an ar g ument with Fathe r. Since Ne w Yea r’s Eve, she said, the t hreat of an “ass whipping” was the c onsistent response that she g ot anytime she attempted to see the childre n.

Mother said that she sent messag es t o Father and Stepmother throug h her sister, N ix , in an attempt to visit with the children, bu t Fa t h er and Stepmother would not allow that. She said the thr e a ts o f v iol e nc e ha d a lw a y s b e e n the re , a nd that sh e wa s ma de a wa re of the thr e a ts b y

Ni x as w e ll as Grandmother, F ather ’s mother. Mother said that she ca lled many l aw y er s i n Alabama

and Tenne ssee to try

to ge t visit ation with the boy s. She said that the l aw y er s told her that, since the consent orde r provided th at h er v i sitation was in Fathe r’s discr etion, Father c ould keep he r fr om
s e e i n g h e r s o n s

. M o t h e r a g a i n s a i d t h a t s h e t o l d F a t h e r a n d S t e p m o t h e r t h a t s h e wo uld pa yc hil d support, try ing to ke ep her v isitation, but that Father a nd Stepmother ref used to ac cept he r money beca use they did not want her to ha ve the right to visit with the children. Mother claimed that she did not know that she had the right to pay support to the court for

the childre n.

Mother said that she told F ather wher e she w as living in Ala bama whe n she moved ther e. She g ave him the name of the s tree t, but not the num ber, because she did not have it at t hat time. She described t he incident in which Father and S tepmother drove t o the house in Alaba ma that she share d with her husband f or four y ear s. She said that they drove b y wh i l e M o t h er w as in the driveway , blew the horn and throug h the open window, f lipped her the bird, and y elled at he r. She said that the ca

r passe d by her house two or three times that day . Mother said that she tried to g et them to stop so that she could ask them about the children. Father, howeve r, would not stop the car.

Ba sed on that incident, Mo ther said, it was c lear that Stepmother and F ather knew whe re Mother lived, contra

ry to the ir claim in his petition for adoption. Moreove r, Mother sa id, she has
a g oo d r e la tio ns hip wi th Gr a nd mothe r, F a the r’ s mothe r, a nd Gr a nd mothe r ha s stay e d in c on ta c t w ith her ove r the y ear s. Mother said that Gr andmother ha d written her sever al letters, a nd Mot h er ha d kept some of those letter s. Despite all of the se conta cts, Mother said, she learned of F ather ’s petition to terminate he r par en t al rights beca use Nix was informed about the notice in the Tenne ssee
ne ws pa pe r andtol d h e r a

bo ut i t. 1p art i cul arl y fo r an act i o n as ser i o us as t erm i nat i o n of p arent al ri ght s. M o reove r, t he p et i t i o n s t at es t hat Father and

S te p m o the r w e re in to u c h w ith M o the r’s fa m ily a n d the y w e re “u n a w a re o f he r lo c a tio n .” A s se e n b y N ix’s t esti m o ny, ev en a c urso ry i nv esti ga t i o n b y t he p eti t i o ne rs’ co un sel wo uld ha ve rev ea l ed M o t he r’ s ad d ress.
-9- Mother said that it is very difficult t o not see her children, and st ates that she cries eve ry night beca use she c annot see the children. She said that she had been taking “antidepr essants and ne rve pil ls t rying to d e a l w ith the hu rt ing of no t be ing able to se e my

kid s. ” Th e su mme r b e fo re the tr ia l, Mo the r s a id, sh e e ve n d ro ve to T e nn e sse e a ndsa t in the c ar do wn the str e e t f ro m F a the r’ s h ou se to
w a t c h h e r s o n s p l a y.

Mo the r a g a in w a s a sk e d w hy sh e ha d n ot t

ri e d to se e the c hil dr e n in the pa st s e ve ra l y e ars , and Mother re p l i ed t h at s h e wa s “sca red to g o to their house, and I didn’t have the money

for a n attorney , and they

had thre atene d me bef

ore.”
When asked why she di d not simply g o see the children a nd suffe r the c onsequenc es of be ing beate n by Father, Mother

replied that the children did not need to see that. She stated her be lief that Father wa s fully

capa ble of killing he r. Mot her said that the last threat she rec eived throug h a third party from F ather

and Stepmother wa s made less than a y ear prior to the hearing

. I n response to her
re qu e st, Mo the r s a id, Ni x pro mis e d to ta lk to Fathe r andSte pmo the r t o s e e wh e the r M oth e r c ou ld see he r sons. Nix reported bac k to Mother that “they said I could see my

kids when I come up ther e and g ot the butt whipping I deser ve.” Mothe r said that wa s the consistent response to every such i n q u i r y.

Th e tr ia l ju dg e a sk e d M oth e r s e ve ra l qu e sti on s a t tria l:

THE COURT: After that divorce decr ee but befor e thi s blowup that relates

in some fashion to t h e New Yea r’s Eve holiday , wer e ther e visitation periods when y ou had both boy s and whe n he had bo th b oy s? [MOTHER] : Yes, sir. TH E CO UR T: Wer e y ou able to vis it un mol e ste d wi tho ut the fe ar of thr e a t? [MOTHER] : Yes, sir.

* * * * THE C OURT: Well, Ithink the theme of y our t estimony has bee n y our fe ar

was that he was g oing to be at y ou. I want to know how long y ou exercised visitation betwee n the t ime of y our divorce and the time this new fea

r about him beating y ou develope d. [MOTHER] : May be a y ear or so. He ha d threatened , y ou know, on the phone and stuff

, but he had thre atene d. TH E CO UR T: So, y ou we nt fo r a pe ri od of a t le a st a y e a r ha vin g re a so na

ble visitation wit h this man that beat y ou all this ti me? [MO TH ER]: Ye s.-10-

THE COURT: And then it just blew up? [MO TH ER]: Ye s. TH E CO UR T: An d it ble w up ov e r Ne w Ye ar’ s Ev e vis itatio n be c a us e bo th

of y ’a ll h a d p la ns ? [MO TH ER]: Ye s. T H E CO U RT : And that w a s th e la s t r e a l ti me y ou’ve ha d meaning ful

re sid e nti a l sh ari ng wi th y ou r s on s? [MO TH ER]: Ye s. [THE COURT] : And that’s bee n more than f our y ear s ag o? [MO TH ER]: Ye s.

* * * * THE COURT: I ’m g oing to a sk y ou a hard question. Even if the threat was

conditi o nal, why

didn’t y ou do it over a f

our y ear period for the s ak e o f y o u r c h il d r e n e v e n if th e y w e r e g o in g to see something ba d? [MO TH ER]: Do wh a t? THE COURT: Why didn’t y ou g o visit with y our children even if there was

the potential for them to see something bad that y ou didn’t think that they

should see? Whydidn’t y ou at least step out and take the cha nce? [MOTHER] : I

was sca red. THE COURT: So, I understand y our order of priority in y our life is that y our

fe ar f or y ou r o wn ph y sic a l sa fe ty ou tw e ig he d y ou r d e sir e to see y our childre n? [MOTHER] : No. TH E CO UR T: Al l ri g ht. Expl a in that to the c ou rt

. Expl a in to me wh y it d id

no t. [MOTHER] : I

love my kids. I ’d do anything in this world to be a ble to see them, and I

– and I would then and I ’ll do it now. THE COURT: Did y ou hear the ans wer y ou just g ave? I love my kids and

I ’ll do anything in this world to se e them. That is not i n fac t true , is it?

When Mother was a sked whe ther she w as fe arf ul that the children wer e being abused as she had bee n, Mother said that she did not know, but she had not see n any bruises on the c hildren bef ore. The trial judg e asked Mother whether she had reac hed a point in her life wher e she ha d g iven up on seeing the childre n, and Mother r eplied that she ha d g otten to the point where she di d not know what else to do.

Nix also testified at the trial. Nix stated that she lives in Tenne ssee, a nd has a pr etty g ood relationship wit h Mother. She desc ribed Mother as a ve ry shy , q u i et per son who does not want tr ou ble . N ix sa id that sh e mai ntai ne d h e r r e la tio ns hip wi th M oth e r thr ou g ho ut h e r m arria g e to Father, a nd that she visited their hom e during the marria g e. Nix testified t hat s he is also a friend of-11-

Stepmother, and said that she had visited Father’s a nd Stepmother’s home since Father a nd Mother divorce d. She said that she had not talke d to F ather or Stepmother for seven or eig ht months prior to the tr ia l.

Ni x tes tif ie d th a t sh e wa s a wa

re du ri ng the ir

marria g e that F a the r a

bu se d M oth e r. She sa id that the couple lived with her for t hree to four months while t hey wer e mar ried. Nix described one
occa sion on which she witnessed suc h abuse: “ Well, J ulia [Mot her] left g rea se on th e d i s h es , and J ohn [Father] had called her over there, and J ulia said what is it, and he said look at the g rea se on the se dis he s, fe e l th is. Whe n s he did , h e sla pp e d h e r. ” Ni x sai d th a t sh e tol d Fathe r that sh e wo uld not tolerate him hitting Mothe r i n h er h o u s e. Nix said that, on another occ asion, she saw Mother with a black e y e. Mother m ad e ex cuses at the time but, after the y separ ated, Mother

told her that Father ha d hit her. Nix said that Mot her is sca red of Father a nd alway s has bee n.

Nix said that Father told he r he knew wher e Mother lived. She said that Father told he r that he a nd Ste pmo the r ro de by Mo the r’ s ho us e a nd “ fl ipp e d he r the bir d” a ndtr ie d to g e t he r t o c ome
ou tsi de . N ix sa id that F a the r kne w e xac tly ho w to g e t to Mo the r’ s ho us e ; us ing F a the r’ s d ir e c tio ns , Nix went to Alaba ma and sa w Mother.

Nix said that she wa s willing to be a g o-betwe en to ena

ble Mother to see her sons. At one point, Nix said, Mother a sked her to give Father and Stepmother he r telephone numbers, indicating that she wa nted them to call her about having visitation wit h the children. Nix g ave the telephone numbers to Stepmother, who then put the numbers on her ref rig erator. At that time, Nix claimed, “Chirlena [Stepmother] tol d me that J u l i a co u l d s ee the kids any time she wante d to but she was g oing to g et her butt whipped when she di d come to see them.” Nix ag ree d that these threats wer e
c on sis te nt anytim e sh e a tte mpt e d to w ork ou t a ny kin d o f v isi ta tio n o n b e ha lf of Mo the r. Ni x testified that she wa s sure ther e would be tr ouble if Mother attempted to visit the childre n.

Nix said that it had been t wo y ear s since she ha d talked with Father a nd Stepmother about permitting Mother

visitation wit h the childre n. She said that Mother ha d more re cently asked he r how the kids wer e doing, but she di d not pursue visi tation at t hat t ime. Nix said that Mother told her that she has not visited the childre n beca use she is scar ed of F ather and Stepmother. Nix say s that sh e is still f

ri e nd s w ith F a the r andSte pmo the r andthat th e y are g oo d p a

re nts to b othof

the bo y s. She said that the childre n treat Stepmother as their mother. N ix said that Mother had not g iven up on th e ch i l d re n , an d that she held out hope that someday she would be a

ble to see the m. She had asked N ix for pictur es of the c hildren, and N ix had sent he r some. Mandy Honea , Mother’s niec e, testified about an incident that indicated the abuse that Fathe r inflicted on Mother during their marria g e. She said that for a time she lived with Father a nd Mother when they lived in Tenne ssee, and that she vi sited them when they lived in South Carolina. During a time in Fa t h er ’s and Mother’ s marria g e in which F ather and Mother w ere living with Honea ’s pare nts, Fathe r thoug ht Honea w as Mother, a nd he slam m ed h er h ea d i n a door. She sa id he slammed the door on he r hea d so hard that he r head became s tuck i n the door a nd her husba nd had-12-

to help her g et out of it. Honea said that, when F ather

rea liz ed that she w as not Mother, he could not apolog ize enoug h. Honea added that she had see n Father smoking marijuana

.
Honea maintained a g ood relationship wit h Mother, and a lso had spoken to Fa t h er and Stepmother about permitti ng Mother to visit her sons. A little over a y ear befor e the tria l, Honea said, she had a

discussion with Father

and Stepmother a

bout Mother see ing the boy s. She said that both Fathe r and Stepmother told her that if Mother wanted to se e the children, “ she wa s g oing to g et her a ss whipped first.” When Honea was asked whethe r Mother w as sca red of Father, she r eplied, “She should be. Af

ter a ll the abuse that she took. . . .”

Honea also re ca l l ed t he incident in which the two children w ere found in the ca re of two teena g ers whe n Mother had visitation. Honea said that her sister, under twe nty -one y ear s old at the t i m e, wa s b ab y s i t t i n g t h e c h i l d re n o n t h a t o c ca s i o n

. Ho n eas ai d t h at h ers i s t erh ad b ee n d ri n k i n g, but maintained that the childre n wer e not in an unsaf e envir onment. Ho n ea ca l led Father a nd Stepmother to let them know that Kevin’s diaper had not be en chang ed since he went to bed ea rlier that ni g ht.
Despite this, Hone a said, Father and Stepmother are g ood pare nts. She said that the children treat Stepmother as their mother, and that they know no other mother

.
F a the r’ s mo the r, Gr a nd mothe r, te sti fi e d a t the tr ia l on be ha lf of Mo the r. Gr a nd mothe r s a id that she had ma intained a good relationship with Mother since the divorce . Gra ndmother said that sh e kn e w o f o ne oc c a sio n d uring F a the r andMo the r’ s ma rria g e on wh ic h Fa the r h a d p hy sic a lly abused Mother :
Q: Okay . What do y ou know? A: I know that I

went over

there to see [ Mother] and [ Father], and the kids, and her w hole fa ce w as blac k and blue. And I asked he r what happene d, and she acte d like she wa s scar ed, and she told me that she’d r un into the refrige rator. L ate r s he tol d me that [F a the r] b e a t he r u p li ke that. Q: And did she tell y ou how often that happene d? A : S h e t o l d m e h e h i th e r a l m o s te v e r y d a y.

Gr a nd mothe r s a id that F a the r andSte pmo the r t oldhe r that th ey had dr ive n b y Mo the r’ s h ou se in Al aba ma a ndthat Moth e r wa s in the y ard

. Gr a nd mothe r al so sa id that Step mothe r tol d he r that if Mother tried to see the kids that she would “stomp her behind.” Gr andmother te stified that she had also hear d Father say that he would do the same thing to Mother’s husband. G randmother said that she believe s that Mother is afr aid of F ather and Stepmother, a nd she also believes that if Mother tried to see the c hildren, there would be trouble.

Gra ndmother ac knowledg ed that s h ew r ote letters to Mother e ncoura g ing Mothe r to continue having a re lationship with t he childre n. Gra ndmother re called se nding a letter to Mot her te lling her that she wa s sorry

that Stepmother and Father had “bra inwashed” the children, and predic ting that-13-

they would g et what they

deser ved for treating her t his way

. Gra ndmother t old Mother that F ather and Stepmother were “bra inwashing ” the children because Kevin had told Gra ndmother that all he
rem ember e d a

bo ut M oth e r w a s th a t sh e ha d y e llo w h a ir a ndthat sh e dr a nk

wi ne c oo le rs

. Gra ndmother surmised that, beca use Kevin was only

three y ear s old at the time he last saw Mother , he c ou ld n ot r e me mbe r that Mo the r drank wi ne c oo le rs un le ss F a the r an d St e pmo the r h a d to ld h im that. I n other letter s Grandmother wrote to Mother , she urg ed her to not give up on the children a nd
assure d Mother that she would let the childre n know that she c are d about them. She said that she
wr ote : “ Julia , o ne da y

the y wi ll co me hu nti ng y ou

. I wi ll tel l the m y ou lov e the m. Al so I wi ll t e ll them the re ason y ou don’t come to see them is beca use [ Stepmother] and [ Father] threaten[] to beat y ou up .

. . if y ou come up ther e. I n time I will tell them.” Grandmother testified that Fa

ther a sked her not to write Mothe r anymore, but she ne verthe less continued to do so.

Gra ndmother testified that, one Christmas, Mother was g oing to give he r some money to give to h e r s on s fo r Christ ma s. Gr a nd mothe r s a id that F a the r t oldhe r s he c ou ld n ot a c c e pt i t “ be c a us e he didn’t wa nt her g iving the kids nothing .” So she did not acc ept that money from Mother.

Gra ndmother said that she moved to T ennesse e a littl e over a y ear prior to the trial in orde r to be closer t o h er grandchildren. She commente d that she had be en unable to see the c hildren beca use her car was in disrepa ir and she c ould not visi t at will. She said that she occ asionally spent the nig ht with Father an d S tepmother, but she ha d not done so since the prior Dec ember . On one
occa sion, Grandmother

testified, Father a nd S t ep mother had a party and Gr andmother sa w Stepmother’s brother

on the couc h in Fathe r’s home smoking marijuana

.
Gra ndmother testified that she boug ht a set of bunk beds so that the childre n could spend the night with her , but sa id that the y had never been permitted to c ome over. Gra ndmother suspec ted that this was beca

use F ather and Stepmother wer e worrie d that she would permit Mother to see the children.

Gra ndmother testified that whe n she told Father and Stepmother that she had a n appointment with Mother’s attorne y , Father told her to call and canc el her appointment. Gra ndmother said that Father a nd Stepmother told her that they h ad “an ope n and shut ca se, and that they didn’t need witnesses.” When Gr andmother a sked F ather to bring her big scre en television set to her home, she
c la ime d, F a the r tol d he r that it de pe nd e d on ho w the he ari ng we nt a s to wh e the r h e wo uldbring it to her. Thus, Grandmother claimed t hat Father threatene d to keep her television set depe nding on her te stimonyat trial. Gran d m o t h er said that she testified de spite the threats because she wa s
conce rned about her gr andchildre n and believed that they oug ht to be able to see Mother, and that Mo the r o ug ht n ot b e pu t in fe ar i n o rd e r t o s e e he r s on s.

Father testified at trial a second time. He said that he did not threaten his mother, nor did he
a t t e m p tt o b r i b e h e r

i n a n yw a y r e g ar d i n g h e r

t e s t i m o n y.

At the conc lusion of the hearing, the trial court discusse d the proof and its assessment of the parties’ cre dibilit y . The trial c ourt stated:-14- Th e c ou rt is f a c e d w ith dif

fi c ult qu e sti on s o f c re dib ili ty

in thi s c a se , mo st d is tu r b in g a n d d if

f ic u lt q u e s ti o n s o f

c r e d ib il it y

inth is c a s e , a n d th e c o u r t be lieves that it sh ou ld b e dis tur

be d o n b othsid e s b a se d on tha t c re dib ili ty iss ue be c a us e
ne ith e r s ide ’s te sti mon y c omp le te ly wi ll fi t

–– wi ll fi t thr ou g h the str a ine r o f t ru th i n this case. I find it very unlikely that g iven the amount of information that Ms. — Mr. Kleshinski’s mother has of this situation that he did not know of the whe rea bouts of this lad y fo r t h i s period of time. I also find it equally

unlikely that this lady

who enjo y ed visitation wit h her sons post-divorc e but prior to some Ne w Yea r’s Eve br e aku p a nd fr om the n o n I ’m g oin g to w hip , p ard on the c ou rt ’s la ng ua g e , a ss i s equally unbelievable in this case

. Either the threats w ere and this man was threatenin g en tirely

throug hout the entire time a nd discourag ing visitation and continuing thr eats a nd making sure that he could – that s he could not see the c hildren
or he wa s no t. B y he r ow n a dmi ssi on sh e e njo y e d vis itatio n du ri ng a pe ri odof tim e p o s t

- d i v o r c e b e f

o r e t h i s b l o w u p o c c u rr e d

. T h a t d o e s n o t s tr a i n v e r y w e l l e i t h e r

. It is a most compelling e x cuse a g ainst willfulness, but it doesn’t hold water, and in that
re g ardthe c ou rt

do e s n ot kno w that it

e ve n h a s to re a c h it

. * * * The court also believes that the last meaning ful attempt at visitation occurr ed
mor e th a n t w o y e ar s p r i o r t o t h e f i l i n g o f t h e p e t i t i o n

. T h e c o u rt i s n o t a t a ll convince d that the willful standa rd that is statutorilymandated is to be taken by the court a s a subjective sta ndard and only to be relied upon by

the court in the mind of the per son whose rig hts are pote ntially to be terminated. The court believes that that standard f

or willfulness statutorily and other wise should be interpr eted a s an objective standa

rd and that objectively

her ina ction constitutes willful abandonment fo r that r e a so n a s w e ll.

The trial c ourt also conc luded that Mother’ s failure to financia lly support the childre n was willful, noting that her

obligation to support was not continge nt on se eing the childre n and ther efor e was not pre vented by any threats of phy sical harm. The trial court determined that Mother’s attempt to give money

to the children at Christm as wa s token support only

.
I n a dd iti on , th e tr ia l c ou rt ma de the fo llo wi ng fi nd ing s:

Th e c ou rt has con sid e re d in vie wi ng the sta nd ardthat [Mo the r] h a s a nin th g rade education. The court has consider ed that eve n g iven that ninth gr ade e ducation she took steps consistent with contact i n g 1 8 attorney s licensed in the State of Alabama and at lea st two attorney s licensed in the State of Tenne ssee in an attempt to do something a

bout her situation but that attempt occur red more than four months prior to the filing of t he petiti on for termination of parental rights. The court finds it highly unlikely that she would ha v e re ceived advice that she could not have addre ssed the court even if she could not have a ffor ded counse l give n the number of attorney s that she discussed the matt er wi t h

. And the proof that she may

have
rec eived that ty

pe of information is consistent with the fac t that Ms. Fr aley [one of-15-

the Tenne ssee attorney s], who i s not in thi s case , advised he r to inform the c ourt of her position in this case.

Th us , in its or a l ru lin g on the g ro un ds fo r te rm inatio n, the tr ia l c ou rt app e are d to no t e nti re ly
cre dit or discredit the testimony of F ather and Stepmother, on one hand, or Mot her on the other ha nd. I t discredited the a ssertion by Father a nd Stepmother that they did not know where Mother lived during her f

our or more y ear s in Alabama and when they filed the petition to terminate. I t found that Father wa s phy sically

abusive to Mother during their marria g e and note d Stepmother’s admission of the “ ass whipping” rema rk. The trial court f

ound “unbelieva

ble,” howe ver, Mother ’s contention that the threats were “continuing ” during the over four y ear s Mother did not vis i t t h ei r s o n s

. The trial court a

ppare ntly cre dited Mother’s testimony t h at , during the period of non-visitation, she contac ted numerous attorney s “in an attempt t o d o s o m et h i n g about her situation . . . .” I t found implausible, however , M o t her’ s testimonythat none of the se attorne y s advised her to contact the court direc tly even if she could not a ffor d an attorney

. The trial court also noted t h at M o t h er’s contac t with the attorney s did not occur within the pi votal four- month period prior to the fil ing of the pe tit ion to t e rm inate . T he tr ia l c ou rt e mph a size d th a t it

int e rp re te d “ wi llf

uln e ss” a c c or din g to an objec tive standard r ather than a subjective standard. Given all of the circ umstances surr ounding Mother’s non- visitation, t he trial co u rt concluded that Mother’s a ctions were insufficient, finding “that objec tively

her ina ction constitutes willful abandonment . . . .”

The trial court also found no justification for Mothe r’s failure to pay child support, finding that such payments were not p re v en t ed by threats of phy sical harm. Accor dingly , the trial court conclude d that Mother had a bandoned the children by willfullyfailing to visit and willfully failing to p a y su pp ort.

The trial c ourt did not make an e x plicit finding that the te rmination of Mother’ s pare ntal rig hts was in the best interest of the children. I ndeed, the trial court state d that it was not convince d that adoption would be in the childre n’s best intere st. The trial court rea soned:
[T] he court is not convinced cur rently that adoption is in the best i n t er es t of the minor children . . . . The re ha s b ee n by the admission of [Father ] i n this recor d of prior ac ts of phy sical violence a g ainst his former w ife. The re ha s been in this rec ord
a dmi ssi on by

[Ste pmo the r] that r e g ard le ss o f the situatio n s he ha s ma de e xtre me ly de ro g a tory

re mark s a

bo ut the bio log ic a l mo the r o f the se c hil dren, in c lud ing tho se
rema rks wher e she sa id she deser ved the prover bial ass whooping

. The court ne eds to determine w hether

it should based on the best intere st of these y oung men proc eed with the adoption and will waive no statutory require ments in this case.
The trial judg e obse rv ed t h at o ften times “it has to make decisions that it would not morally or otherwise a g ree with. This is one of those situations.”
On Aug ust 15, 2003, before the t rial court enter ed a final order i n the m atter, Mother filed a motion to reopen the proof ba sed on new ly discovere d evidenc e. The motion asserted that onT h e r ec or d i n cl u des on l y a ph ot og r aph of t wo mar i

j u an a pl an t s ma r k ed as Exh i bi t N o. 1 a t t h e M ar ch 2, 2 2 0 0 4 he a rin g

. -16- Aug ust 2, 2003, while the children w ere in the car e and c ustody of Stepmother’s mother , Cindy Stamper (“ Stamper”) , at her home n ex t d o o r to the home of F ather and Stepmother, Stamper w as
arr ested for possession of marijuana in the prese nce of the childre n. Mother’s motion further alleg ed that on Aug ust 3, 2003, St epmother w as ar rested a s well and char g ed with possession of marijuana , and that this occur

red in the pr esenc e of the children while the children wer e in Stepmother’s c are and custody . Mother noted that she had questioned the cre dib i l i t y of both Father a nd Stepmother at the trial, spec ifically wi t h re s pect to their dr ug use in and a

round the c hildren, and that the trial court ha d observe d in its oral r uling that cre dibilit y

was c entra l in determining the issues prese nted. Thus, in light of the new criminal charg es pending ag ainst Stepmother and Stamper, Mother reque sted that the trial court hold its final judg ment i n abey ancein order to c onsider evide nce reg arding the drug char g es, so as to protec t the best interest of the children.

On Au g us t 19 , 200 3, the tr ia l cou rt e nte re d a wr itt e n ord e r g ranti ng the pe tit ion to t e rm inate Mother’s parenta l rig hts. The order did not addre ss Mother’s motion to reopen theproof. The trial court c oncluded in the or der that Fathe r and Stepmother ha d proven b y cl ea r and c onvincing
e vid e nc e that Mo the r h a d a ba nd on e d the c hil dr e n by faili ng to vis it o r s up po rt the c hil dr e n w ith in a period of four months prior to the filing of

the petition. The trial court found that Mother did not visit or support the children for four and a half y ear s prec eding the fil ing of the petition, and that she made no e ffort to visi t for two y ear s prec eding the fil ing of the petit ion. The trial court found that the attempted payment of support throug h Gra ndmother around Christmas 2002 was token support
a t be st. Th e tr ia l c ou rt

did n ot mak e a n e xplic it f ind ing re g ard ing the c hil dr e n’ s b e st i nte re st. Neve rtheless, on those gr ounds, the trial court concluded that Fathe r and Stepmother “ have pr oven
a l l t h e n e c e s s ar y e l e m e n t s f o r t e r m i n a t i o n o f

s a i d p ar e n t a l r i g h t s

. ” A p p ar e n t l y su a s po nte , the trial court en j oined Father a nd Stepmother from de ny ing G randmother visitation wit h the childre n, though it is not appar ent i n the record that Gra ndmother ever requested such relief . The trial c ourt
c on tin ue d it s fin a l de te rm inatio n o f the re qu e st f or a do pti on pe nd ing the ho me stu dy , th e six- mon th waiting period, a nd the orde r of r efe renc e norma lly require d in adoption proce eding s.

On Octobe r 20, 2003, having never been he ard on her motion to reope n the proof, Mothe r filed a motion to alter or

amend the judg ment or, in the alternative, for a new trial. I n that motion, Mo the r r e qu e ste d tha t her pr e vio us mot ion be tr e ate d a s a mot ion to a lte r o r ame ndpu rs ua nt t o Ru le 59.02 of the T ennessee Rules of Civil Procedure . On Novembe r 26, 2003, the trial c ourt g rante d Mother’s motion “for

the limited purpose of de terming [si c] whether t h e criminal conduc t of [S te p mo th e r ] a n d [F a th e r ] a f f e c ts th e is s u e o f c r e d ib il it y o f th e w it n e s s e s [w h o ] te s ti f ie d at the hearing on July8, 2003.”

On Marc h 2, 2004, the tri al court held a hea ring and conside red a dditional evidence . The appellate rec ord includes no transcript of that hearing. On M arc h 15, 2004, the trial court entere d 2 an orde r of g uardia nship in favor of F ather and Stepmother. On A pril 12, 2004, t h e t ri al court enter ed an or der de ny ing Mothe r’s motion to alter or a mend, stating that “no a d d i t i onal proof ha sO n M ay 2 , 20 0 4 , t he t ri al co urt de cl ared M o t her t o be i nd i gent fo r purpo ses of t hi s ap p eal , and t he 3

re q u ire m e n t o f f

ili n g a n a p p e a l b o n d w a s w a ive d

.

T ha t st atute p ro vid es: 4

(c) T erm i nat i o n of p arent al or guardians hi p ri ght s m ust be ba sed up o n:

( 1) A f i n di n g by t h e cou r t by c l ea r a n d c on v i n ci n g e v i den ce t h at t h e g r ou n ds for t erm i nat i o n or p arent al or guardians hi p ri ght s have b een est ab l i shed; and ( 2) T h at t er mi n at i on of t h e par en t ’ s or g u ar di an ’ s r i g h t s i s i n t h e bes t i n t er es t s of t h e ch i l d.

T enn. C o d e A nn. § 3 6

- 1

- 1 1 3 (c) (Sup p

. 20 0 4 ).
-17- been pr esente d that would aff ect the c ourts [si c] judgment a s to the cre dibilit y of the Petitioners.” Thus, the t rial court held t hat t he termination of Mother’ s pare ntal rig hts as set out in the Aug ust 19, 20 03 or de r r e ma ine d in fu ll f or c e a nde ff

e c t. Fro m th a t or de r, Mo the r n ow app e a ls. 3

Mother ar g ues that the trial c ourt err ed in dete rm i n i n g t hat Father a nd Stepmother had established by

clea r and c onvincing evidenc e t h at grounds ex isted for termination of her pa renta l ri g hts . Sh e c on te nd s th a t th e e vid e nc e didno t sh ow that he r f a ilu re to su pp ort w a s w ill fu l, b e c a us e sh e wa s n e ve r o rd e re d b y a c ou rt to p a y su c h s up po rt , b e c a us e the c on se nt o rd e r in he r d ivo rc e did not require the payment of such s u p p o rt , an d beca use her offe rs to pay

support to Fathe r and Stepmother wer e re buffe d. I n addition, Mothe r arg ues that the evidenc e did not show that her f ailure to visit the childre n was willful, bec ause the threats of phy sical harm from both Fa ther a nd Ste pmo the r pr e ve nte d he r f ro m vi sit ing the c hil dr e n. F urthe rm or e , M oth e r n ote s, the tr ia l c ou rt did
no t ma ke sp e c if ic fi nd ing s o f f

a c t in de te rm ini ng the be st i nte re st o f the c hil dr e n. Ev e n if a be st interest finding is impl icit in the trial court’s or der, Mother arg ues, t he trial court err ed in conc luding that te rm inatin g he r rig hts wa s in the c hil dr e n’ s b e st i nte re st.

Parents have a fundame ntal rig ht to the car e, custody , and contr ol of their childre n. Stan ley
v . I llinoi s , 4 05 U. S. 6 45 , 6 51 -5 2 ( 19 72 ); In re Drinn on , 776 S.W .2d 96, 97 (Tenn. Ct. App. 1988). This rig ht “is among the oldest of the judicially reco gn i z ed li berty

interests protec ted by

the Due Process Clauses of

the fe dera l and state c onstitut ions.” In re M .J .B. , 140 S.W .3d 643, 652-53 (Tenn. Ct. App. 2004). “Te rmination of a person’ s rig hts a s a par ent is a g rave and fina l decision, ir re vo c ably a lte ri ng the liv e s of the pa re nt an d c hil d in vo lve d a nd‘s e ve ri ng fo re ve r a ll l e g a l r ig hts and obligations’ of

the par ent.” Means v. Ashby , 130 S.W .3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenne ssee Code A nnotated § 36-1- 113(l)(1) ). “F ew conseque nces of judicial action are so g rave as the seve ranc e of natural fa milyties.” M.L.B. v. S.L.J. , 5 1 9 U. S

. 1 0 2 , 1 1 9 (1 9 9 6 ) ( q u o t i n g Santosky v. Kram er , 455 U.S. 745, 787 (1982)).
By statute, one w h o seeks to terminate a biolog ical par ent’s par ental rig hts must establish two things. Te nn. Code Ann. § 36-1- 113(c) (Supp. 2004). First, the pe titioner must prove the existence 4 of one of the stat u t o ry g rounds for te rmination enumerated in Tenne ssee Code A nnotated § 36-1- 113(g ). Second, the petitioner mus t p ro v e t h at terminating the biologic al par ent’s rig hts is in t heT h e n on

- ex cl u s i v e l i s t of f ac t or s t o be c on s i der ed i n de t er mi n i n g w h et h er t er mi n at i on of pa r en t al or 5
g u a rd ia n sh ip rig h ts is i n the b e st inte re st o f t h e c h ild is as fo llo w s:

( 1) W h et h er t h e par en t or g u ar di an h as ma de s u ch a n a dj u s t men t of c i r cu ms t an ce , c on du ct , or
con di t i on s a s t o ma k e i t s af e an d i n t h e ch i l d’ s be s t i n t er es t t o be i n t h e h ome of t h e par en t or guardian; (2 ) W h e the r th e p a re n t o r g u a rd ia n ha s faile d to e ff e c t a la sting a dju stm e n t afte r re a so n a b le e ff o rts by a v ai l abl e s oci al s er v i ce s a g en ci es for s u ch du r at i on of t i me t h at l as t i n g a dj u s t men t doe s n ot

r eas onabl y appear poss i bl e; (3) W het her t he p arent or guardian has m ai nt ai ned regul ar vi si t at i o n or o t her contact wi t h t he ch i l d; ( 4) W h et h er a me an i n g f u l r el at i on s h i p h as ot h er wi s e bee n e s t abl i s h ed bet we en t h e par en t or g u ar di an a n d t h e ch i l d; (5 ) T h e e ff

e c t a c h a n g e o f ca re ta k e rs a n d p h ysic a l en v iro n m e n t i s like ly t o ha v e o n the c h ild ’s

em o t i o nal , psy cho l o gi cal and m ed i cal co nd i t i o n; ( 6) W het her t he pare nt or gu ar di an, or ot her per s on r es i di ng wi t h t he pare nt or gu ar di an, ha s s hown br u t al i t y , ph y s i ca l , s ex u al , e mot i on al or ps y ch ol og i ca l a bu s e, or n eg l ec t t owa r d t h e ch i l d, or
an ot h er c h i l d or a du l t i n t h e f ami l y or h ou s eh ol d; ( 7) W het her t he phy s i cal en vi r onment of t he pare nt ’ s or gu ar di an’ s home i s he al t hy an d s af e, whe t her t her e i s cr i mi nal ac t i vi t y i n t he home, or whe t her t her e i s s uch us e of al cohol or cont r ol l ed

su b sta n c e s a s m a y re n d e r th e p a re n t o r g u a rd ia n c o n siste n tly u n a b le to c a re fo r th e c h ild in a sa fe and s t ab l e m anner; (8) W het her t he p arent ’ s o r guar d i an’ s m ent al and / o r emo t i o nal s t at us wo ul d be de t ri m ent al t o t he chi l d or p revent t he p arent or guardian f rom ef fect i vel y pro vi d i ng s afe and s t ab l e care and

s u per v i s i on for t h e ch i l d; or (9) W het her t he p arent or guardian has pa i d chi l d s up p o rt co nsi st ent wi t h t he chi l d s up p o rt g u i del i n es pr omu l g at ed by t h e depa r t men t pu r s u an t t o § 36- 5- 101.

T enn. C o d e A nn. § 3 6

- 1

- 1 1 3 (i ) ( Sup p

. 20 0 4 ).

It i s uncl ear why t he co ncurrence i n t hi s case que st i o ns ap p l i cat i o n of t he “ cl ear and co nvi nci ng” st and ard 6 of pr oof t o t h e bes t i n t er es t a n al y s i s

. Fi r s t , i t w as n ot a n i s s u e i n t h e t r i al c ou r t be l ow, a n d i s n ot r ai s ed as a n i s s u e by eit he r p arty t o t his ap p ea l

. S ec o nd , w hil e the statut e m ay b e “so m ew ha t i na rtf ull y dra w n,” the b est i ntere st subsect i o n of t he st at ut e “ m ust be co nsi d ered al o ng wi t h t he p reced i ng s ub sect i o n whi ch d o es us e” t he “ cl ear and

c o n v inc ing ” lan g u a g e

. W hi t e v. M oody , N o . M 2 0 0 0 -1 0 7 7 8 -C O A -R 3 -C V , 2 0 0 1 W L 5 3 7 1 6 0 , at *1 n.1 (T e n n . C t. A p p

. M ay 1 8 , 20 0 1 ). T hi rd, t he T enness ee S up rem e C o urt has st at ed t hat t he “ cl ear and co nvi nci ng” evi d ent i ary
s t andar d app l i es t o t he bes t i nt er es t prong of t he t er mi nat i on s t at ut e:

T o t er mi n at e par en t al r i g h t s , a c ou r t mu s t de t er mi n e t h at c l ea r a n d c on v i n ci n g e v i den ce pr ov es n ot

on l y t h at s t at u t or y g r ou n ds e x i s t bu t a l s o t h at t er mi n at i on i s i n t h e ch i l d’ s be s t i n t er es t

. T en n

. Code Ann

. § 36- 1- 113( c)

. “ Cl ea r a n d c on v i n ci n g e v i den ce ” i s “ ev i den ce i n w h i ch t h er e i s n o s er i ou s or
s ubs t ant i al doubt about t he corr ect nes s of t he concl us i ons dra wn f r om t he evi dence

. ” H od ges v. S. C. Toof

& Co. , 83 3 S.W

. 2 d 89 6 , 90 1 n. 3 (T enn. 19 9 2 ).

I n r e Val en t i ne , 7 9 S .W .3 d 5 3 9 , 5 4 6 (T e n n . 2 0 0 2 ). T h is re a so n ing is no t i n the lea st un d e rm ine d b y the lan g u a g e in
-18- child’s best interest, considering the factors l isted in Tennessee Code Annotated § 36- 1-113(i). See 5 Tenn Code Ann. § 36-1-113( c)( 1), (2) (Supp. 2004). Be cause of the importanc e of the constitutional interests involved, the statute require s that both g rounds for termination and the be st interest of the child be prove n by

clea r and c onvi ncing evidenc e. See In re J.J.C. (State v. Calabretta) , 148 6I n r e D. L. B. , 11 8 S.W

. 3 d 36 0 , 36 8 (T enn. 20 0 3 ), ci t ed by t he co ncurrence, pa rt i cul arl y s i nce t he ap p l i cab i l i t y of t he

cl ear and co nvi nci ng s t and ard t o t he b est i nt erest anal y si s was not an i ss ue i n D

. L. B. Fi n al l y , a s a ck n owl edg ed by the c o n c u rr e n c e , t h e re is a lo n g li n e o f ca se s sta ting tha t t h e c le a r a n d c o n v inc ing e v id e n tiar y sta n d a rd a p p lies to b o th p ro ng s o f

t he t erm i na t i o n stat ute, and t he co nc urre nc e c i t es not one to the c o n tra ry. Se e, e . g. , St at e v. M

. S. , N o. M 2 0 0 3 -0 1 6 7 0 -C O A -R 3 -C V , 2 0 0 5 W L 5 4 9 1 4 1 , at *1 0 (T e n n . C t. A p p . M a r. 8 , 2 0 0 5 ); V. D

. v . N. M

. B. , N o. M 2003- 0 0 1 8 6 -C O A -R 3 -C V , 2 0 0 4 W L 1 7 3 2 3 2 3 , at *4 (T e n n . C t. A p p . Ju ly 2 6 , 2 0 0 4 ); I n r e D. L. L. , N o. M 2003- 02736- C O A -R 3 -P T , 2 0 0 4 W L 1 6 5 5 9 9 0 , at *4 (T e n n . C t. A p p . Ju ly 2 2 , 2 0 0 4 ); I n r e B. B. , N o

. M2 0 0 3

- 0 1 2 3 4

- C OA

- R 3

- P T, 2 0 0 4 W L 1 2 8 3 9 8 3 , at *9 (T e n n . C t. A p p . Ju n e 9 , 2 0 0 4 ); I n r e M. E

. W. , N o. M 2003- 01739- CO A- R3- PT , 2004 W

. L. 8 6 5 8 4 0 , at *1 8 (T e n n . C t. A p p . A p r. 2 1 , 2 0 0 4 ); I n r e D

. M. , N o. M 20 02

- 01 31 7- C O A

- R 3- JV , 200 3 W L 36 72 40 , at *3 (T e n n . C t. A p p . F e b . 2 0 , 2 0 0 3 ); S ta te v . D a n ie ls , N o

. M 2 0 0 1

- 0 0 6 2 4

- R 3

- JV , 20 0 2 W L 3 1 3 1 9 7 5 2 , at * 6 (T enn. C t. A p p . O c t. 1 6 , 2 0 0 2 ); I n r e C

. L

. H. , N o. M 2000- 02799- CO A- R3- JV, 2001 W L 605101, a t * 3 ( T en n

. Ct

. App. 2 0 0 1 ).
-19- S.W. 3d 91 9, 92 5 ( Te nn . Ct . A pp . 2 00 4) ; In re M. J. B. , 140 S.W .3d at 653. The statute se ts forth the

“ le g a l f rame wo rk ” fo r a

pe tit ion to t e rm inate pa

re nta l r ig hts :

The threshold issue in every termination case is whether the parent whose rights a re at stake ha s eng ag ed in conduc t that constitutes one of the g rounds for te rm i nation of par ental rig hts in Tenn. Code Ann. § 36-1- 113(g ). I f the a nswer is “ y es,” the trial court must then determine whether the chil d ’s i n t ere sts will be best served by te rm inatin g the pa

re nt’ s p are nta l r ig hts . I f t he a ns we r i s “ no ,” the c ou rt sh ou ld proce ed no further a nd should dismi ss the termination petition.

In re Muir , No. M2002-02963-COA- R3-CV, 2003 WL 22794524 at *11 (Tenn. Ct. App. Nov. 25, 2003).

Th e “ c le ar andc on vin c ing ” e vid e nc e sta nd ardis a he ig hte ne d s ta nd ardof

pr oo f, wh ic h is
mor e e xac tin g than th e “ pr e po nd e ranc e of the e vid e nc e ” sta nd ard , y e t do e s no t re qu ir e the c e rt a int y of the “ bey ond a re asonable doubt” standar d. Me ans , 1 3 0 S. W. 3 d a t 5 4

- 5 5

. I t “ e li mi n a te s any serious or substantial doubt conc erning the cor rec tness of the c onclusion to be d raw n from the evidenc e.” In re J. J. C. , 148 S.W .3d at 925 (qu o t i n g O’Da n i el v. Me ssier , 905 S.W .2d 182, 188 (Tenn Ct. App. 1995)) . Clear a nd convincing evidenc e produc es i n the mind of the fa ct-finde r a f irm conviction i n the t ruth of t he assertions soug ht to be established. In re A.D .A. , 84 S.W .3d 592, 596 (Tenn. Ct. App. 2002). “ This heig htened standard

. . . serve s to prevent the unw arr anted termination
or interfe renc e with the biologica l pa rents’ rig hts to their c hildren.” In re M .W .A. , J r. , 980 S.W .2d 620, 622 (Tenn. Ct. App. 1998).

I n a dd iti on , th e statut e re qu ir e s th e tr ia l c ou rt to “ e nte r an o rd e r w hic h ma ke s sp e c if

ic finding s of fa ct and conclusions of law” in order to fac ilitate appellate revie w and pr omote a just and sp e e dy re so lut ion of

a ny app e a l. Te nn

. Cod e An n. § 36 -1 -1 13 (k ) ( Sup p. 20 04 ); se e In re M. J. B. , 14 0 S. W.3 d at 653 -5 4. Whe n the tr ia l cou rt fails to c omp ly wi th the re qu ir e me nt t o in c lud e sp e c if ic finding s of fa ct in its order , the appellate court “must remand the c ase w ith directions to prepa re the require d finding s of fa ct and c onclusions of law.” In re M. J. B. , 1 40 S.W. 3da t 65 4; se e als o St ate v. McBee , No. M2003-01326-COA- R3-PT, 2004 WL 239759, at *8 (Tenn. Ct. App. F eb. 9, 2004) (re manding to trial court for specific finding s reg arding the childre n’s best intere st).-20-

I n light of the heig htened “cle ar a nd convincing ” standa rd of pr oof re quired at the trial court le ve l, the app e llate sta nd ardof re vie w i s mo dif

ie d:

Be cause of the he ighte ned burde n of proof require d by

Tenn. Code Ann. § 36 -1- 113(c) (1), we must a dapt Tenn. R. A pp. P. 13( d)’s customary standard of revie w for
case s of this sort. First, we must re view the trial court’s specific findings of fac t de novo in acc ordanc e wit h T en n

. R . App. P. 13(d). Thus, ea ch of the trial court’ s specific fac tual finding s will b e p re s umed to be cor rec t unless the evidenc e preponde rate s oth er wise. Second, w e must determine w hether the fa cts, either a s fo un d b y the tr ia l c ou rt

or a s su pp orte d b y

the pr e po nd e ranc e of

the e vid e nc e , c le arl y and convinc ingly

establish the eleme nts require d to terminate a biologica l pare nt’s pa re nta l r ig hts

.
In re M. J. B. , 140 S.W .3d at 654 (c iting ca ses). Thus, g iving a pprop ri at e defere nce to the trial jud g e ’s de te rm inatio ns of c re dib ili ty , the tr ia l cou rt ’s fi nd ing s of fa c t are pr e su me d c or re c t, u nle ss the evidenc e pre ponderates otherwise

. Id. ; se e In re L. J. C. , 124 S.W .3d 609, 619 (Tenn. Ct. App. 20 03 ) ( no tin g that tria l ju dg e ’s de te rm inatio n o n c re dib ili ty iss ue s mu st be g ive n c on sid e ra ble de fe re nc e ). Th e app e llate c ou rt “ mus t the n de te rm ine wh e the r the c omb ine d we ig ht of the se fa c ts provides cle ar a nd convincing evidenc e supporting the trial court’s ultimate f actua l conclusion.” In
re Muir , 2 0 0 3 W L 2 2 7 9 4 5 2 4 , at * 7 n

. 4 (c i t i n g In re V ale ntine , 7 9 S. W.3 d at 54 8- 49 ; Jones v. Ga rre tt , 92 S.W .3d at 838). Ea ch ca se must be decide d based on “individualized de cision making ,” considering the fa cts in that particular case

. In re Sw anson , 2 S.W .3d 180,188 (Tenn. 1999)

. At the outset, we should note that, unde r Tenne ssee Code A nnotated § 36-1- 113, Father doe s not have standing t o s ee k the termination of Mother ’s par ental rig hts. Se e Os bo rn v . M ar r , 127 S.W .3d 737, 740 (Tenn. 2004) . Thus, we mu s t d i s m i s s the petition insofar as F ather seeks suc h relief . Neve rtheless, s i n ce Stepmother has standing under the statute to seek the te rmination of Mo the r’ s p are nta l r ig hts , th is d oe s n ot a ff e c t ou r ana ly sis or

the ou tc ome of

theapp e a l.

I n the instant case , Mother’s pa renta l rig hts were terminated ba sed on the trial c ourt’s finding that she had a

bandoned the children. See Tenne ssee Code A nnotated § 36-1-113( g )(1) (Supp. 2004). Th e te rm

“ aba nd on me nt, ” is d e fi ne d in Te nn e sse e Cod e An no ta te d § 36 -1 -1 02 a s f oll ow s: (1)( A) “Aba ndonment” means, for purposes of terminating the par ental or g uardia n ri g hts of pa re nt( s) or g ua rd ia n( s) of a c hil d to that c hil d in or de r t o ma ke that c hil d
a va ila ble fo r a do pti on , th a t:
(i) F or a pe riod of four

(4) c onsecutive months immediately prec eding the fi lin g of

a pr oc e e din g or

ple a din g to t e rm inate the pa re nta l r ig hts of the pa rent(s) or g uardia n(s) of the child who is the subject of the petition for termination of pa renta l rig hts or adopti o n , that the pare nt(s) or g u ar d ian(s) e ither have will fully failed to visit or have-21- will fu lly fa ile d to sup

po rt or ha ve wi llf

ull y faile d to make re a so na ble pay ments toward the support of the child;
Tenn. Code Ann. § 36- 1-102(1) (A)( i) (Supp. 2004) (e mphasis added) . The re quirement that the failure to visit or support be “ willful” is both a statutory and a c onstitut ional require ment. Se e In re Swans on , 2 S.W. 3da t 18 8; se e als o I n re D. L. B. , 118 S.W .3d 36 0 , 3 6 7 (Tenn. 2003). “The
conce pt of ‘willfulness’ is at the core of the statutory definition of abandonme nt.” In re Muir , 2003 WL 22794524, at *4. I n the contex t of t he st atute governing termination of par ental rig hts, the term “does not require the s ame standard of culpability require d by the penal code .

. . [n] or does it re quire malevolenc e or ill will.” Id. a t *5 . T o b e “ wi llf ul, ” the c on du c t mus t be “ the pr od uc t of fr e e wi ll rathe r than c oerc ion;” a per son is de emed to act “w illfully ” if he is a “fr ee a g ent, knows what he or she is doing, and intends to do what he or she is doing.” Id.

We first addre ss Mother’s ar g ument that the trial court e rre d in determining that Stepmother had carrie d her burden of establishing by clea r and c onvincing evidenc e that Mother w illfullyfailed to support her c hildren during the four months prior to the petition f iled in this ca se. It is undisput ed, of cour se, that Mother made no pay ments toward support of the c hildren; howeve r, “simply proving that she did not support her c hildren i s not sufficie nt to car ry this burden.” In re M. J. B. , 140 S.W .3d at 655. A parent’s failure t o make pay ments toward the support of t heir child is “willful” whe n he
or sh e “ is a wa

re of his or he r d uty to s up po rt , h a s th e c apa c ity to s up po rt , ma

kes n o atte mpt

to provide support, a nd has no justifiable excuse for not providing the support.” Id. ; In re J. J. C. , 148 S.W .3d at 926 (e mploy ing the standard a s set out in In r e Muir ); se e als o In re S.M .F. , No. M2004- 00876-COA-R9-PT, 2004 W L 2804892, at *8 (Te nn. Ct. App. Dec. 6, 2004) (noting that the

“ wi llf uln e ss” a na ly sis in In re Muir has bee n employ ed in other cases)

. A par ent’s fa ilure to support his or her c hild be cause he or she is financ ially unable to do so does not constitute a w illful failure to support. In re Muir , 2 0 0 3 W L 2 2 7 9 4 5 2 4 , at * 5 n

. 7 (c i t i n g O’Daniel v. Messier , 905 S.W .2d 182, 188 (Tenn. Ct. App. 1995))

.
I n early Americ an common law, the duty of par ents to support their childre n arose out of a moral oblig ation, not a leg al one. Se e In re Jo ne s ( Jo ne s v . J

one s) , No. M2004-00173-COA- R3- CV, 2004 WL 2973752, at *5 (Tenn. Ct. App. Dec . 22, 2004). As the c ase la w deve loped over time, it became g ener ally rec og nized unde r the common law that pare nts ha ve a le g al obligation to support their childre n. I n Tenne ssee, biologica l pa rents are expected under the common law to understand,
e ve n in the abs e nc e of

a c ou rt or de r, that th e y hav e an ob lig a tio n u nd e r the la w t o s up po rt the ir
c h il d r e n if

th e y h a v e th e ability to do so. Smith v . Smith , 728 SW .2d 738 (Tenn. Ct. App. 1987) (re cog nizi ng that pare nts have a common law and st at u t o ry duty to support their children) ; Tenn. Code Ann. § 34-1- 102(a) (2004).

Howeve r, “w hen par ents no long er ha ve custody of their c hildren, the nature and e x tent of the ir du ty ma y

be de fi ne d a ndc on tr oll e d b y e xterna l f

a c tor s o the r tha n th e pa

re nts ’ a bil ity to support.” In re M. J. B. , 140 S

. W.3d at 655. I n such a c ase, the pare nts’ obligation to provide support can be define d in a court order or , when a chi l d has bee n place d in State custody , in a perma nency

plan. Id.-22-

I f the biolog ical par ents are divorce d, as in this case , their par ental rig hts and responsibilities
are impacted and fre quently apportioned by court orde r. Their

rig ht to acce ss their children may be limit ed, for

example, by

a divorc e dec ree which sets forth a re sidential pare n t i n g s chedule . The concomitant re sponsibili ties, including the responsibilityto fin an ci al l ysupport the childre n, may lik e wi se be a llo c a te d b e tw e e n th e tw o p are nts

.
Al though r efe rre d to freque ntly in the testimony , the divorce decr ee be tween F ather and Mother and the subsequent conse nt order g iving permane nt custody of bot h children to Father a re not incl u d ed i n t h e appellate re cord. From the testimony , howeve r, it is undisput ed that neither
re qu ir e Mo the r t o p a y

c hil d su pp ort to F a the r. Pe rh aps thi s wa s be c a us e Mo the r i s c le arl y fi na nc ia lly challeng ed, making bare ly subsistence wa g es at fa ctory jobs, or perha

ps it wa s because the c onsent order g ave Mothe r no standar d visitation, onl y “re asonab l e vis itation” in Fathe r’s discr etion. Whatever his re asons at the time, F ather clea rly wai v ed any

rig ht to rece ive child support from Mother.

Under these c ircumstance s, were this a lawsuit by Father to collec t back c hild support from Mother, we would likely

be constrained to hold that, in order to collect child support from Mother, Father would be require d to obtain modificatio n of the c onsent order . Even then, he would be expected to obtain at most prospec tive relief

.
Moreove r, there was not any testimony from Father, or from Stepmother, that e ither of them asked Mother to pay

child support. To the contra ry , the testimony

was that a ny

offe rs of money

and g if ts fr om Mo the r we re re bu ff e d by F a the r a nd Ste pmo the r, app are ntl y ba se d on th e wide ly -h e ld mis c on c e pti on that i f th ey accep te d a ny re mun e ratio n f

ro m Mo the r, sh e wo uldthe n b e e nti tle d to visitation. S e e I

n re M e n a r d ( M e nar d v . M e e ks ) , 29 S.W .3d 870, 874 (Tenn. Ct. App. 2000) (re versing termination for failure to support when the mother a nd her f amily ref used to ca sh a che ck
wr i t t en by the fathe r and “did every thing they possibly could to pr event him f rom” establishing a
re la tio ns hip wi th the c hil d) ; In re K.S. O. H. , 2001 WL 1173302, at *7 (a ffirming conclusion that the fathe r’s failure to support was not willful when the mother would not ac cept money offe red by

him).
Thus, under the unique circ umstances of this case, ther e has be en no showing that Mother in f a c t had a du ty to pa y c hil d su pp ort to F a the r fo r the ir tw o so ns

. I t wo uldbe ir on ic ind e e d if , in such a situation, Stepmother could then obtain the termination of Mother’s pa renta l rig hts for willful failu re to p a y

su c h c hil d s up po rt

to F a the r d uring the fo ur

mon ths , o r f

or that matte r the fo ur

y e ars , prec eding the petition. See Hickman v. Hickman , N o

. E 2 0 0 0 -0927-COA- R3

- CV , 2 0 0 0 WL 1449853, at *2 (Tenn. Ct. App. Sept. 28, 2000) (whe re mother was unde r no court order r equiring support, and father ne ver a sked her to pay support, mother’s failure to pay support was not willful). Th e re fo re , th e tr ia l c ou rt ’s c on c lus ion that Mo the r a ba nd on e d h e r c hil dr e n b y wi llf ull y faili ng to support them must be reve rsed.

Mother ne x t ar gues t hat t he trial court erre d in finding that Stepmother had established by clea r and c onvincing evidenc e that her failure to visit the children was will ful. I t is undisput ed that Mother did not visit t he children for well over the four- month statutory time period prior to the f

iling-23-

of the pe tit ion fo r t e rm inatio n. Ho we ve r, sh e c la ims that he r f a ilu re to v isi t w a s n ot w ill fu l, b e c a us e Fat h er and Stepmother pre vented he r fr om exercising he r visitation, and specific ally that they threatened he r with phy sical harm if she tried to do so.

The c onduct of the c ustodial parent or a third par

ty does n o t ex cu s e a biol og ical par ent’s failure to support or visit unless that conduct either pr events the pa rent from perf

orming his or her duty or amounts to a sig nificant re straint or interf ere nce w ith the pare nt’s eff ort to support or deve lop
a re l at ionship with t he child. In re Muir , 2 00 3 WL 22 79 45 24 , at *5 ; se e In re K.S. O. H. , No. E2001-00055-COA- R3-CV, 2001 WL 1173302, at *7 (Tenn. Ct. App. Oct. 4, 2001). I n In re Muir , the court set forth a none x haustive list of actions that amounted to a sig nificant re straint or interfe renc e with a parent’s efforts to develop a relationship wit h a child: (1) te lling a ma n he is not the c h i l d ’ s b i o l o g i c a l f

a t h e r ; ( 2 ) b l o c k i n g a c c e s s t o t h e c h i l d , ( 3 ) k e e p i n g t h e c h i l d ’ s w h e re a bo uts unknown; (4) vig orously resisting the parent’s efforts t o support the child; or (5) vigor ously resisting a par ent’s ef

forts to visit the child. Id. at 5 n

. 8 (c i t i n g In re S.A. B. , 7 35 So. 2d52 3, 52 4 ( F la . D ist

. Ct. Ap p. 19 99 ); In re G. P. B., Jr

. , 73 6 A .2 d 1 27 7, 12 86 (N .J. 1 99 9) ; Pa nte r v . As h , 33 P.3d 1028, 1031 (Or. Ct. App. 2001))

.
On the other

hand, this Court ha s held that, so long as the non-c ustodial parent ha s pare ntal ri g hts , it is the ob lig a tio n of the c us tod ia l par e nt, wh o ha s pri mary c on tr ol ove r the c hil d, to w or k to foster the relationship between the non- custodial pare nt and the childre n. In re Z.C.G. , No. M2000- 02939-COA-R3-CV, 2001 WL 1262609, at *7 (Tenn. Ct. App. Oct. 22, 2001). I n In re Z.C.G. , the mother, who ha d custody of t he parties’ child, took steps to obstruct t he father’s visitation with the parties’ son. At the time the petition f or termination of his parenta l rig hts was filed, the f ather had not visit ed with the parties’ child in seven months. The f ather claimed that his f

ailure to visit was due in part to the mother’s fa ilure to coope rate with h i m

. The trial c ourt conc luded that he ha d willfullyfailed to visit the child, rea soning that he did not “take the initiative a nd follow bac k up” with the mother af

ter making an unsucc essful telephone call to the mother. A t trial, the mother had
a dmi tte d to be ing “ le ss than c o- op e rativ e in w or kin g wi th” the fathe r. On tho se fa c ts, the app e llate court re verse d the termination of the f at h er ’s parental rig hts, determining that the mother ha d a responsibilityto foster the r elationship betwee n the father a nd the child. Id.

I n determining whe ther the tria l court’s findings of fac t are supported by a pre pondera nce of the evidenc e and whether those fac ts clear ly and convinc ingly

support a finding that Mother’s f ailure to visit was willful, se e In re M. J. B. , 140 S.W .3d 643, 654 (Tenn. Ct. App. 2004), w e adhe re to the following principle of r eview:
Unlike appe llate courts, trial courts are able to obse rve witnesses as they testify and to a sse ss the ir

de me a no r, wh ic h best s itu a te s tria l ju dg e s to e va luate wi tne ss
cre dibilit y

. Se e Sta te v . P rue tt , 7 88 S.W. 2d55 9, 56 1 ( Te nn . 1 99 0) ; Bowm an v. Bowm an , 836 S.W .2d 563, 566 (Tenn. Ct. App. 1991). T hus, trial courts ar e in the
mos t f a vo ra ble po sit ion to res ol ve fa c tua l di sp ute s h ing ing on c re dib ili ty determinations. See Te nn-Tex Propert i es v. Brow nell-Electro, Inc. , 778 S.W .2d 42 3, 42 5- 26 (T e nn . 1 98 9) ; Mit c he ll v . Ar

c hib ald , 971 S.W .2d 25, 29 (Tenn. Ct. App.-24-

1998). Acc ordingly, appellate courts will not re-e valuate a trial judge’s assessme nt of w itn e ss credi bil ity ab se nt c le ar an d c on v inc ing e v ide nc e to t he c on tra ry

. See Hum phr ey v. David With erspoon, Inc. , 734 S.W .2d 315, 315-16 (Te nn. 1987); Bin gham v. Dy ersburg Fabri cs Co., Inc. , 567 S.W .2d 169, 170 (Tenn. 1978)

.
We lls v . T e nn. B d. Of

Re ge nts , 9 S.W. 3d 77 9, 78 3 ( Te nn . 1 99 9) (e mph a sis a dd e d) ; se e als o I n re R.L.H. , No. M2002-01179-COA- R3-J V, 2003 WL 21266732, at *6 (Te nn. Ct. App. J une 3, 2003); Po we ll v . P

owe ll , 1 24 S.W. 3d10 0, 10 4- 05 (T e nn . Ct . A pp . 2 00 3) ; In re We ath e rf or d , No. W1999- 01 01 4- CO A- R3- CV , 2 00 0 WL 18 91 05 7, a t *4 (T e nn

. Ct. Ap p. De c . 2 9, 20 00 ); In re M.C.G. , No. 01A01-9809-JV-00461, 1999 WL 332729, at *8 (Te nn. Ct. App. May 26, 1999).

Th is C ou rt

ha s p re vio us ly

e xpre sse d it s re a so nin g fo r a dh e ri ng to thi s p ri nc ipl e of app e llate
re v i ew , s t at i n g:

One of the most tim e-honor ed principles of a ppellate r eview is that trial courts ar e best situated to dete rmine the c redibil i t y o f t he witnesses a nd to resolve factual disputes hinging on cre dibilit y determinations. Se e Sta te v . P rue tt , 788 S.W. 2d 55 9, 56 1 ( Te nn . 1 99 0) ; Tenn-Tex Prope rties v. Brown ell-Electro, Inc. , 778 S.W .2d 423, 425-26 (Te nn. 1989). Ac cording ly , appellate courts routinely decline to second-g uess a tria l court’s c redibility determination s u n l es s there is concre te, clea r, and convincing evidenc e to the contrary

. See Bingh am v. Dy ersburg Fabri cs Co., Inc. , 5 67 S.W. 2d16 9, 17 0 ( Te nn . 1 97 8) ; Thom pson v. Creswell In dus. S upply, Inc. , 936 S.W .2d 955, 957 (Tenn. Ct. App. 1996).

The most often c ited rea son for this principle ca n b e trac ed to the fa ct that trial judge s, unlike appellate judge s, have an opportuni ty to observe the manner and demea nor of the w itnesses while they are testify ing. See Bowm an v. Bowm an , 836 S.W .2d 563, 566 (Tenn. Ct. App. 1991).

Mit c he ll v . Ar

c hib ald , 971 S.W .2d 25, 29 (Tenn. Ct. App. 1998). A dditionally , at this stage of the pr oc e e din g s, we up ho ld the tr ia l court’ s le g iti ma te fi nd ing s w he n w arr a nte d, in o rd e r t o p re ve nt a flood o f appea ls seeking retria l of fac tual issues, maintaining the proper allocation of judicia l authority and avoid the duplication of eff ort by the courts of this state. Id.
Our job, howe ver, doe s not end there . I n light of the trial court’s de terminations of
cre dibilit y , we must look at the ag g reg ate of the evidenc e to a scertain whether its combined weig ht amounts to “clea

r and c onvincing ” evide nce. Se e In re Muir , 2 0 0 3 WL 2 2 7 9 4 5 2 4 , a t *7 n

. 4

. We look, then, at the fa cts found by the trial court and t he agg reg ate of the evidence before the trial court to determine w hether

its combined weig ht comprises cle ar a nd convincing evid en ce t h at Mother wi llf ull y aba nd on e d h e r s on s.

I n this case, the trial court noted that Fat h er h ad ab u sed Mother in the pa st, and that Stepmother’s “a ss whipping” rema rk wa s in fact made , but appar en t l y concluded that Mother’s-25-

claimed f ear of phy sical harm was not believable under the circ umstances Spec ifically , the court noted that no such threats w ere made during the statutory four- month pe riod prec eding the filing of the p e t i t i o n t o t e r m i n a t e

. W h i l e M o t h e r c o n t a c t e d n u m e r o u s a t t o r n e y s t o a t t e m p tt o r e

- e s t a bli sh visitation, Mot her did not conta ct the court directly or take any other lega l action to enfor ce her rig ht to visit . I n addition, Mother had no c ontact with attorne y s during the pivotal four- month period.
Appar ently , Mother’s efforts to talk to Father and Stepmother direc tly about visitation had
cea sed appr ox imately

two y ear s prior to the filing of the petition. Mother and he r witnesses testified that Mother aske d others, such as Nix , Honea , and Grandmother, to ta lk to Father and Stepmother
abo ut p e rm itt ing Mo the r t o v isi t he r s on s; this te sti mon y wa s n ot d isp ute d, a nd th e tr ial ju dg e did not comment direc tly

on this testim ony

. At any rate , Mother’s efforts with these int erme diaries we re f ru i t l e s s , a n d t h e r e w a s n o e v i d e n c e o f a n y s u c h e f f o r t s d u r i n g t h e s t a t u t o r y

f o u r

- m o n t h p e r i o d

. In he r t e sti mon y , M oth e r a c kn ow le dg e d th a t F a the r andSte pmo the r h a d ta ke n no d ir e c t a c tio n to impede her

visitation during the y ear prior to the filing of the pe tition.

There was no evidenc e of any phy sical abuse of Mother by Father a fter the parties’ divorce in 1996. By

all acc ounts Mother visited with the children fairly reg ularly until either D ece mber 1998 or F ebrua ry 1999. Mother’s e x planation of he r fa ilure to visit aft er t h at p o i n t was the thre at of phy sical harm. I t is undisputed, of course, t hat M other had not seen the children for over four y ear s prior to the filing of the pe tition.

I n t h e o v e r a l l c i r c u m s t a n c e s , F a t h e r ’ s p h y s i c a l ab u s e o f M o t h e r d u r i n g t h e i r ma rr ia g e is rele vant, since it is the bac kdrop for the trial court’s consideration of Mother’s c laim of fea r of phy sical abuse . The e vidence of Father’s sever e abuse of Mother is ve ry substantial. Mother testified that Father’s phy sical abuse of her d u ring the marriag e wa s fre quent and br utal, and this was
corr oborate d by

the other w itnesses, including Father’s ow n mother.

As noted above , so long as the non-custodial pare nt ha s pare ntal rig hts, it i s the obligation of the c ustodial parent to wor k to foster the r elationship betwee n the non-c ustodial parent a nd the children. I

n re Z.C.G. , 2 0 0 1 W L

1 2 6 2 6 0 9 , at * 7

. W h i l e “ m er e e ff o rt s t o fr u s tra t e o r d i s co u ra ge visitation or support do not nece ssarily justify ” the non-custodial parent’s inaction, however , such eff orts justify

the non-c ustodial parent’ s failure to visit or support only if they amount to a sig nificant restra int or interfe renc e. Se e V .D . v. N. M. B. , M2003-00186-COA- R3-CV, 2004 WL 1732323, at *6 (Tenn. Ct. App. July26, 2004). He re, Mother claims t h at Father a nd Stepmother wer e responsible for i n s t i l l i n g fea r and intimidation in her to keep he r fr om visit ing the children, by
makin g thr e a ts wh ic h wo uld play on Mo the r’ s fe ars in the wa ke of F a the r’ s a

bu se of he r d uring the ir marria g e. Howe ver, Mother admitted that neither Fathe r nor Stepmother took any steps to preve nt her visitation within the y ear prior to the petition for termination.

The trial court determined that Mother’s claims of fea r wer e not c redible. There is significa nt evidenc e in the re cord to support Mother ’s assertions that Fathe r an d S tepmother c ommunicated thr e a ts t o h e r, thr ou g h th ir d p art ie s a ndby drivi ng pa st h e r h ome in Al aba ma

. Ho we ve r, the re is a lso sufficie nt evi d en ce i n t he re cord to support the tria l court’s c redibility determinations reg arding-26-

Mother’s leve l of fea

r and, in turn, the t rial court’s finding that Mother willfully failed to visit her children. Mother

testified that, following her divorc e, she voluntarily g ave F ather

full custody

of Ke vin . D e sp ite the ins ta nc e s of ph y sic a l vio le nc e du ri ng the ir marria g e , s he c on tin ue d r e g ula rl y to visit t he childre n and intera ct with Father for approximately

two y ear s following her divorce from F a the r. Mo the r c ha

racteri z e d F a the r a s a

g oo d p are nt w ho pr ov ide d th e ir c hil dr e n w ith a

su ita ble home. Mother a dmitted that there we re no a cts o f v i o l en ce perpe trated a g ainst her by Father following their divorce . When questioned by the trial court con ce rn i n g her le vel of fe ar, Mother g ave answers that wer e at times c ontradictory

. Furthermore , Mother ac knowledg ed that F ather and Stepmother did nothing within the y ear prior to the hearing on this matter to thwa rt her visitation. The tr ial court, ha ving he ard a ll of the witnesses and obse rved the m as they testified, determined that, despite the testimony supporting Mothe r’s a ssertions, Mother’s testimony was “ unbelievable .” L o o k i n g at t h e r ec o rd as a w h o l e, t h er e i s s u ff i ci en tev i d en ce t o s u p p o rt th i s fa ct u al fi n d i n g.

I n light of the trial court’ s determinations of c redibility , we must now “de termine whe ther the combined we ight of

these fa cts p ro v ides clea r and c onvincing evidenc e supporting the trial
c ou rt ’s ult imate fa c tua l con c lus ion ,” that is, its co nc lus ion that Moth e r’ s fa ilu re to vis it w a s w ill fu l. In re Muir , 2003 WL

22794524, at *7 n.4. Given the trial court’s appare nt finding that Mother was
no t in fa c t in fe ar f

or he r sa fe ty du ri ng the fo ur -m on th pe ri od pr e c e din g the pe tit ion , we are le ft wi th littl e justification for Mothe r’s four -y ear failure to visit her sons. Unde r these c i rc u m s t an ces, we must conclude that the c ombined weig ht of the fa cts constitutes c lear and convincing evidenc e that Mother’s f

ailure to v i s i t wa s willful. Theref ore, w e af firm the trial c ourt’s finding of g rounds for te rm inatio n o f M oth e r’ s p are nta l r ig hts

.
Once one of the g rounds for termination has been established, we turn to the second pr ong
un de r the te rm inatio n s ta tut e , n a me ly , w he the r t e rm inatio n o f M oth e r’ s p are nta l rig hts is i n th e be st interest of the children. A s to this prong , the trial court did not make an expli cit finding that clea r and convinc ing e vidence supported the co n cl u s i on that terminating Mother’s rights wa s in the children’ s best interest. See Tenn. Code Ann.§ 36- 1-113(i). The trial court’ s Aug ust 19, 2003 order is silent on whether termination of Mother’s rig hts was in the best interest of the children. The trial court’s f ailure to e nter spec ific finding s in this reg ard violate d t he re quirement in Section 36-1- 113(k), whic h provides that “[t]he c ourt shall enter an orde r which makes spec ific finding s of fa ct and conc lusions of law within thirty (30) day s of the conc lusion of the hearing.” Tenn. Code Ann. § 36-1-113( k) (Supp. 2004).

Moreove r, the trial c ourt’s other f indings a r es o me w h at i n c o n s is tent with any implication that termination of Mother’ s pare ntal rig hts was in the best intere st of h er s o n s

. I n its ruling, the tria l court stated that it was “not convince d curr entl y that adoption is in the best interest of the minor child r e n

. ” T h e tria l c o u r t r e a s o n e d th a t F a th e r c o n c e d e d th a t h e h a d c o mm itte d a c ts o f v io le nce ag ainst Mother, and that Stepmother admittedly had made “extremely

derog ator y re marks” a

bout Mother in the pre sence of the c hildren, including the “a ss whooping” co m m en t

. The trial c ourt commented that it did not “morally or otherw ise ag ree with” the dec ision it had made

.-27-

As noted above , the best intere st of the childre n must also be proven by clea r and c onvincing evidenc e. Se e In re J. J. C. ( Sta te v . Ca lab re tta ), 48 S.W. 3d91 9, 92 5 ( Te nn . Ct . A pp . 2 00 4) ; In re M. J. B. , 140 S.W .3d at 653. Thus, g iving Mother the bene fit of every controve rted fa ct, the evide nce must produce in the mind of the f act- finder a

firm conviction that termination of Mother’ s pare ntal rig hts is in the best interest of her sons. Se e

, D e marr , 2 00 3 T e nn . A pp . L EX I S 56 9, a t *2 8; In re A.D .A. , 84 S.W .3d at 596. Her e, the rec ord has littl e evidence that termination of Mother’ s pare ntal rig hts was i n the best i ntere st of the two boy s. The evide nce e stablished that Mother had no history
o f s u b s t an ce ab u s e o r m en t al i l l n es s , an d t h at , d es p i t e l i t t l e e d u c a t i o n , M o t h erh ad s t ea d y t h o u gh meag er e mploy ment, supporting a disabled husband. The re w as no evidenc e that the childre n had
e ve r s uff ered il l eff

e c ts f ro m vi sit ing wi th M oth e r. F a the r andSte pmo the r o ff e re d o nly the ir
c on c lus ory

a sse rt ion that ha vin g Mo the r r e app e ar i n th e c hil dr e n’ s li ve s w ou ld b e un se ttl ing to the m. They proff ere d no evidenc e, fr om experts or otherwise, indicating that visiting w ith Mother and re

establishing a

relationship wit h her a fter t h e l en gt h y period of time of

no contac t would be psy cholog ically

or emotionally

damag ing to the children. Mother did not seek to re move her sons from the home they share d with F ather and Stepmother; she even char acte rized it a s a “g ood home” for the boy s despite Father’s a nd Stepmother’s ac tions towards her, and soug ht only to visit with her children, so the e ffe ct of a chang e of c are taker s on the children a ppear s inapplicable.

I n view of the trial court’ s failure to enter the require d specific finding s on whether terminating Mother’s pa

renta l rig hts was in the best interest of the children, we va cate the judg ment terminating Mother’s pa

renta l rig hts and rema nd the cause t o the trial court for written findings of fac t and conc lusions of l aw in acc ordanc e with Tennessee Code A nnotated § 36-1- 113(k). The trial court may , in its di scre tion, determine whe ther a dditional proof on this issue is appropriate.

T h e d ec i s i o n o f t h e tr i al co u rt i s v ac at ed an d t h e c au s e i s re m an d ed fo r f u rt h erp ro ce ed i n gs not inconsistent with thi s Opinion. Cost s on appea l are to be taxed half t o Plaintiffs/Appellees Chi rl e na Jea n K le sh ins ki andJohn Ed wa rdKlesh in sk i, an d h a lf

to D e fe nd a nt/Ap pe lla nt Jul ia E l i z ab e t h ( K l e s h i n s k i ) P o s e y, f o r w h i c h e x e c u t i o n m a y i s s u e , i f n e c e s s ar y.

___________________________________ HOLL Y M. KI RBY, JUDGE