06/21/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                        May 29, 2018 Session

                                         IN RE: KYLEA K.1

                    Appeal from the Chancery Court for Washington County
                         No. 43983    John C. Rambo, Chancellor


                                   No. E2017-02097-COA-R3-PT


This appeal involves the termination of a father’s parental rights. The trial court found
that grounds existed to terminate parental rights based on a prior adjudication of severe
child abuse and abandonment by willful failure to visit and support. The trial court also
found, by clear and convincing evidence, that termination was in the best interest of the
child. The father appeals. We vacate the trial court’s finding regarding one ground for
termination but otherwise affirm the order terminating parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in
                     part, Affirmed in part, and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and D. MICHAEL SWINEY, C.J., joined.

Adam J. Haselsteiner, Johnson City, Tennessee, for the appellant, Michael M.

Harry Curtis Williams, Johnson City, Tennessee, for the appellee, Crystal S.

Michelle Lee Caggiano, Johnson City, Tennessee, Guardian ad Litem.

                                                 OPINION

                                I. FACTS & PROCEDURAL HISTORY

      Kylea was born in Tennessee in September 2015. Her parents were unmarried and
had recently moved to Tennessee from Chicago. Due to drug exposure in the womb,


1
  In cases involving a minor child, it is this Court’s policy to redact names in order to protect the child’s
identity.
Kylea was born with neonatal abstinence syndrome and went through drug withdrawals
after birth.


       Kylea’s father (“Father”) was in jail during most of the pregnancy and when Kylea
was born, after he pled guilty to possession of methamphetamine, possession of Schedule
IV controlled substances, possession of drug paraphernalia, and joyriding or unauthorized
use of an automobile. Father was released from jail when Kylea was about two weeks
old. According to Father, Kylea still remained hospitalized at that time because she was
born drug-exposed and required medication. According to Father, he became very close
with Kylea and stayed in the hospital with her and Kylea’s mother as Kylea went through
the period of withdrawal.


        At some point, Kylea was discharged from the hospital and lived with both parents
for about one month. Around November 2015, Father moved out of the home because
his relationship with Kylea’s mother deteriorated. According to Father, he continued to
visit Kylea and provide her mother with diapers, formula, and baby supplies.


       On December 1, 2015, when Kylea was two months old, Father accepted a
position as a technician with a company that required him to travel to various locations
around the country for the construction of cell phone sites and antenna systems. He spent
the next several months in Orlando. Kylea remained in Tennessee with her mother.
Father earned $25 per hour plus overtime pay, and his employer also provided him with
hotel accommodations and per diem compensation. He continued to send money and
packages to Kylea’s mother from Orlando.


       In February 2016, the Tennessee Department of Children’s Services filed a
petition seeking to have Kylea adjudicated dependent and neglected. According to the
petition, DCS had received a referral alleging a drug exposed child after a domestic
dispute between Kylea’s mother and grandmother. Mother left the home where she was
residing and moved into a homeless shelter. Kylea was reportedly found at another
home, which smelled of marijuana, and various relatives at the home either tested
positive for drugs or admitted to using them.


      DCS attempted to locate other suitable relatives and eventually contacted a second
cousin of Kylea’s mother (an unmarried female in her twenties) who agreed to care for
five-month-old Kylea. Although Father had not taken any steps to establish paternity of
Kylea, DCS contacted him in Orlando via telephone. Father verbally agreed for the
cousin (“Cousin”) to have temporary custody of Kylea. According to Father, Kylea’s
                                           2
mother was supposed to enter rehabilitation, and he expected that Kylea would be
returned to her thereafter. On February 25, 2016, the juvenile court of Washington
County entered a protective custody order placing temporary custody of Kylea with
Cousin. On March 9, 2016, a hair follicle drug screen was administered to Kylea, and the
test indicated that Kylea had been exposed to THC and cocaine within the last ninety
days.


       Father called Cousin at least three times while Father continued to work in
Orlando. He sent Cousin one money order for $100 to buy diapers. Father returned to
Tennessee on March 15, 2016. He spoke with Cousin one or two more times by
telephone and exchanged text messages with her, but he did not have any visits with
Kylea or send additional support.


       Kylea’s mother was homeless and relapsed into drug use, and she stipulated that
Kylea was dependent and neglected. Father initially participated in the dependency and
neglect proceeding with an appointed attorney, but Father failed to appear at the
adjudicatory hearing on July 21, 2016. His attorney moved to withdraw due to Father’s
failure to maintain contact with him. According to the juvenile court’s adjudicatory
order, DCS caseworkers and service providers testified that Father refused to provide
DCS with his contact information, refused to take drug screens, and failed to cooperate
with DCS or service providers. Based on the evidence presented, including the positive
drug test recently administered to Kylea, the juvenile court found that Kylea was a
dependent and neglected child and that Father and Kylea’s mother had perpetrated severe
child abuse upon Kylea by knowingly exposing the child to and knowingly failing to
protect her from abuse and neglect, including exposure to such high levels of cocaine that
she was metabolizing the substance in her body. The order placed full legal custody of
Kylea with Cousin.


       Two days before Kylea’s first birthday, on September 12, 2016, Father was
arrested after he was reportedly found “passed out” in a stolen vehicle with additional
stolen property from a local business. Father was charged with burglary and theft over
$10,000. Father pled guilty and remained in jail for several more months.


       On October 20, 2016, Cousin filed a petition to terminate the parental rights of
Father and Kylea’s mother and to adopt Kylea. According to the petition, Kylea’s mother
had returned to Chicago and was believed to be homeless. Father remained in jail. The
petition alleged that grounds for termination existed based on a prior adjudication of
severe child abuse and abandonment by willful failure to visit and/or support. Kylea’s

                                            3
mother was served by publication, her parental rights were terminated on various
grounds, and she is not a participant in this appeal, so we will not discuss the proceedings
relating to her for purposes of this opinion.


        The trial court appointed an attorney for Father and a guardian ad litem for Kylea.
The termination trial was held on September 8, 2017, just days before Kylea’s second
birthday. Father had been released from jail about two weeks earlier, and he testified at
trial. Cousin and her fiancé also testified. On September 11, 2017, the trial court entered
an order terminating Father’s parental rights on the grounds of a prior adjudication of
severe child abuse and abandonment by willful failure to visit and support. The trial
court found by clear and convincing evidence that it was in the best interest of Kylea to
terminate Father’s parental rights. Father timely filed a notice of appeal.


                                  II. ISSUES PRESENTED

       Father lists the following issue for review on appeal: Did the Chancery Court of
Washington County err as a matter of law in finding by clear and convincing evidence
that grounds for termination of parental rights exist and that such termination is in the
best interest of the child? Both Cousin and the guardian ad litem argue, in their
respective briefs, that Father has waived consideration of any issues on appeal for failure
to comply with the briefing requirements of this Court. Cousin also asks this Court to
award her attorney’s fees for defending against a frivolous appeal. For the following
reasons, we vacate the trial court’s finding regarding one possible ground for termination
but otherwise affirm the trial court’s order terminating parental rights and remand for
further proceedings.


            III. STANDARDS APPLICABLE TO TERMINATION PROCEEDINGS

       In Tennessee, proceedings to terminate parental rights are governed by statute. In
re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code Annotated section
36-1-113 “sets forth the grounds and procedures for terminating the parental rights of a
biological parent.” Id. at 546. Pursuant to the statute, parties who have standing to seek
termination of parental rights must prove two elements. Id. at 552. First, they must prove
the existence of at least one of the statutory grounds for termination listed in Tennessee
Code Annotated section 36-1-113(g). Id. Second, the petitioner must prove that
terminating parental rights is in the child’s best interest, considering, among other things,
the factors listed in Tennessee Code Annotated section 36-1-113(i). Id.

       Because of the constitutional dimension of the rights at stake in a termination
                                             4
proceeding, the petitioner must prove both of these elements by clear and convincing
evidence. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann.
§ 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). “Clear and convincing evidence” has been
defined as “‘evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” In re Adoption of Angela E.,
402 S.W.3d 636, 640 (Tenn. 2013) (quoting In re Valentine, 79 S.W.3d at 546). It
produces a firm belief or conviction in the fact-finder’s mind regarding the truth of the
facts sought to be established. In re Bernard T., 319 S.W.3d at 596.

        Due to the heightened burden of proof in parental termination cases, we adapt our
customary standard of review on appeal. In re Audrey S., 182 S.W.3d 838, 861 (Tenn.
Ct. App. 2005). First, we review the trial court’s factual findings de novo in accordance
with Tennessee Rule of Appellate Procedure 13(d), presuming each finding to be correct
unless the evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at
639. Then, we make our own determination regarding “whether the facts, either as found
by the trial court or as supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.” In re
Carrington H., 483 S.W.3d at 524 (citing In re Bernard T., 319 S.W.3d at 596-97). “The
trial court’s ruling that the evidence sufficiently supports termination of parental rights is
a conclusion of law, which appellate courts review de novo with no presumption of
correctness.” Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).

                                      IV. DISCUSSION

                                        A.   Waiver

       At the outset, we note the issues raised by both Cousin and the guardian ad litem
regarding the deficiencies in Father’s brief on appeal. Father’s brief does not contain a
single citation to the record on appeal, and, perhaps as a result, it contains numerous
misstatements of fact. Father’s brief cites a total of four cases, but only one case was
properly cited with a full case citation.


       Because of the fundamental parental rights at stake in parental termination cases,
the Tennessee Supreme Court has held that “in an appeal from an order terminating
parental rights the Court of Appeals must review the trial court’s findings as to each
ground for termination and as to whether termination is in the child’s best interests,
regardless of whether the parent challenges these findings on appeal.” In re Carrington
H., 483 S.W.3d at 525-26. The supreme court expressly stated that it had “no desire to
                                              5
encourage attorneys to raise frivolous issues in any appeal” or “to prolong the resolution
of parental termination proceedings.” Id. at 525. Interestingly, the supreme court also
added that “the Court of Appeals may adopt a rule requiring parents to brief these issues
in every appeal.” Id. at 526 n.16. At the same time, however, the court stated
unequivocally that “the Court of Appeals must review the trial court’s findings as to each
ground for termination and as to whether termination is in the child’s best interests,
regardless of whether the parent challenges these findings on appeal.” Id. at 525-26
(emphasis added).


       As a result, even when faced with woefully deficient briefs on appeal that fail to
comply with the Rules of this Court or the Rules of Appellate Procedure, this Court has
proceeded to perform a de novo review of trial court decisions terminating parental rights
as instructed by Carrington. See, e.g., In re Mya V., No. M2016-02401-COA-R3-PT,
2017 WL 3209181, at *3 (Tenn. Ct. App. July 28, 2017) (no perm. app. filed). We
proceed with such review in this appeal despite the deficiencies in Father’s brief.


                             B.        Grounds for Termination

                                  1.     Severe Child Abuse

      Tennessee Code Annotated section 36-1-113(g)(4) provides that a ground for
terminating parental rights exists if:


      The parent or guardian has been found to have committed severe child
      abuse as defined in § 37-1-102, under any prior order of a court or is found
      by the court hearing the petition to terminate parental rights or the petition
      for adoption to have committed severe child abuse against the child who is
      the subject of the petition or against any sibling or half-sibling of such
      child, or any other child residing temporarily or permanently in the home of
      such parent or guardian[.]


(Emphasis added.) The juvenile court’s 2016 order finding that Father committed severe
child abuse against Kylea, as defined by Tenn. Code Ann. § 37-1-102, was not appealed
and became a final order of the court.


       The only argument Father raises on appeal regarding this ground for termination
relates to whether he knowingly exposed Kylea to drugs, when he was working out of
                                               6
town at the time, so as to constitute severe child abuse. Essentially, he seeks to relitigate
the issue of severe child abuse and argues that the trial court erred in relying on the
juvenile court’s prior adjudication of severe child abuse instead. However, “‘[o]nce there
has been a finding of severe child abuse in a final order, the doctrine of res judicata
prevents parents from re-litigating the issue of whether they committed severe child
abuse in a subsequent proceeding to terminate their parental rights.’”2 In re C.D., No.
M2016-00275-COA-R3-PT, 2016 WL 4548042, at *5 (Tenn. Ct. App. Aug. 30, 2016)
(quoting In re Joshua C., No. E2016-00081-COA-R3-PT, 2016 WL 4069288, at *3
(Tenn. Ct. App. July 28, 2016)). This Court has repeatedly applied the doctrine of res
judicata to prevent a parent from re-litigating whether he or she committed severe child
abuse in a termination of parental rights proceeding when such a finding has already been
made in a previous dependency and neglect action. See, e.g., In re Heaven L.F., 311
S.W.3d at 439; In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012).


       “It is well settled that a trial court may rely on a prior court order finding severe
child abuse as a ground for termination and is not required to re-litigate the issue of
severe abuse during the termination trial, so long as the prior order is final.” In re
Neamiah R., No. E2017-02000-COA-R3-PT, 2018 WL 2331868, at *6 (Tenn. Ct. App.
May 23, 2018) (citing In re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL
2651097, at *5 (Tenn. Ct. App. July 7, 2011); State, Dep’t of Children’s Servs. v. M.S.,
No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10 (Tenn. Ct. App. Mar. 8,
2005)).


        The most serious consequence of a finding that a parent has committed
        severe child abuse is that such a finding, in and of itself, constitutes a
        ground for termination of parental rights. . . . The ground itself is proved by
        a prior court order finding severe child abuse, and the issue of whether
        abuse occurred is not re-litigated at the termination hearing.


In re Samaria S., 347 S.W.3d 188, 201 (Tenn. Ct. App. 2011) (quotation omitted). “[I]f
there is a finding of severe child abuse, . . . one ground for termination of the parent’s
parental rights is effectively established.” Id. Because the juvenile court’s 2016
unappealed final order found that Father committed severe child abuse against Kylea, this
ground for terminating Father’s parental rights has been established.

2
  Under the doctrine of res judicata, “‘an existing final judgment rendered upon the merits, without fraud
or collusion, by a court of competent jurisdiction, is conclusive of the rights, questions and facts in issue
as to the parties and their privies, in all other actions in the same or any other judicial tribunal of
concurrent jurisdiction.’” In re Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App. 2010) (quoting
Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn. Ct. App. 1990)).
                                                      7
       The termination statute provides that termination of parental rights “may be based
upon any of the grounds listed in [ ] subsection (g).” Tenn. Code Ann. § 36-1-113(g). In
other words, “the existence of any one ground for termination is enough.” In re
M.A.A.K., No. E2010-01318-COA-R3-PT, 2010 WL 4342154, at *4 (Tenn. Ct. App.
Nov. 3, 2010). However, due to the supreme court’s instruction in Carrington, we must
also review the other grounds that were at issue in this case.


                                         2.    Abandonment

        Pursuant to the termination statute, another ground for termination exists if
“[a]bandonment by the parent or guardian, as defined in § 36-1-102, has occurred.”
Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102
provides five alternative definitions of abandonment. A specific definition applies if the
parent “is incarcerated at the time of the institution of an action” or “has been
incarcerated during all or part of the four (4) months immediately preceding the
institution of such action[.]” Tenn. Code Ann. § 36-1-102(1)(A)(iv). Father was
incarcerated at the time the petition was filed. Accordingly, we apply the definition in
subsection (iv), which provides that abandonment occurs if the parent “either has
willfully failed to visit or has willfully failed to support or has willfully failed to make
reasonable payments toward the support of the child for four (4) consecutive months
immediately preceding such parent’s [] incarceration.” Tenn. Code Ann. § 36-1-
102(1)(A)(iv).3


       Father began his period of incarceration on September 12, 2016. Therefore, the
relevant four-month period spanned from May 12 to September 11, 2016.4 To briefly
recap, Kylea went to live with Cousin on February 18, 2016, when DCS became involved
after the domestic dispute between her mother and grandmother, when Father was
working in Orlando. Thereafter, Father sent one money order to Cousin for $100 around
the end of February, but nothing else. Father was earning $25 per hour during that time,
in addition to receiving per diem compensation and employer-provided hotel lodging.



3
  We note that the petition for termination alleged that Father was in jail but referenced the statutory
definition of abandonment for non-incarcerated parents, regarding willful failure to visit or support during
the four month period preceding the filing of the petition. No one mentioned this discrepancy on appeal,
and we conclude that the proper definition of abandonment was applied by the trial court after trial by
consent. See In re D.H.B., No. E2014-00063-COA-R3-PT, 2015 WL 1870303, at *5 (Tenn. Ct. App.
Apr. 23, 2015).
4
  See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20,
2014) (explaining the calculation of the four-month period).
                                                    8
       Father returned to Tennessee on March 15, 2016. Father testified at trial that the
juvenile court would not permit him to visit with Kylea because he had not established
paternity. Father testified that he tried to contact Cousin to send her money after
returning to Tennessee but that Cousin was “giving me a hard time about returning phone
calls.” Father’s phone records reflected one successfully placed phone call from Father
to Cousin during the four-month period at issue, and a second call marked “Abnormal
Completion.” Cousin testified that she did respond to Father’s phone calls, except during
her work hours when she was not allowed to be on her phone. Cousin also testified that
when Father did call her, he was more concerned with asking about the whereabouts of
Kylea’s mother and “didn’t ask about Kylea that often.” The trial court found that Father
made one phone call to Cousin during the relevant four-month period but that his contacts
with Cousin focused on asking about Kylea’s mother, and he did not show any detailed
interest in Kylea. The trial court found that “Father was unpersuasive that [Cousin] was
difficult to contact or that she made it difficult for him to provide her with money.”


         Father apparently remained employed after returning to Tennessee, as he testified
at trial that he declined to take a drug test when DCS visited his residence because he was
running late for work. He also testified that before Cousin filed the termination petition,
he “was out of town working a lot and my income was good.” However, the details of
his employment during the critical four-month period from May to September 2016 are
surprisingly sparse. Aside from these isolated references to Father “working” after he
returned to Tennessee, we have no details in the record regarding where Father was
employed, the amount of money he earned, the number of hours he was working, the
expenses and obligations Father had, or the assets that were available to him. Father
testified that the juvenile court appointed an attorney for him in the dependency and
neglect proceeding that was pending when he returned to Tennessee.


        Defining abandonment as the mere non-payment of support, irrespective of intent,
would be unconstitutional. See In re D.L.B., 118 S.W.3d at 367. As such, the “financial
ability, or capacity, of a parent to pay support must be considered” when determining an
element of willfulness. In re Envy J., No. W2015-01197-COA-R3-PT, 2016 WL
5266668, at *14 (Tenn. Ct. App. Sept. 22, 2016), perm. app. denied (Tenn. Dec. 16,
2016). “If failure to support [] is due to circumstances outside of a parent’s control, then
he or she cannot be said to have willfully abandoned the child.” In re Malaki E., No.
M2014-01182-COA-R3-PT, 2015 WL 1384652, at *7 (Tenn. Ct. App. Mar. 23, 2015)
(citing In re Adoption of Angela E., 402 S.W.3d at 640).


      The relevant statutes require a willful failure to support or to make reasonable
payments toward the child’s support, meaning, a willful failure to provide monetary
                                             9
support or more than token payments toward the support of the child. Tenn. Code Ann. §
36-1-102(1)(D). Token support is support that “under the circumstances of the individual
case, is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). A
finding that support was “insignificant” in light of the parent’s “means” cannot be made
without evidence regarding both a parent’s actual financial support of the child and a
parent’s “means.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at
*10 (Tenn. Ct. App. June 3, 2003); see also In re Malaki E., No. M2014-01182-COA-
R3-PT, 2015 WL 1384652, at *7 (Tenn. Ct. App. Mar. 23, 2015) (“The court must
review a parent’s means[.]”). In this context, “the word ‘means’ connotes both income
and available resources for the payment of debt.” In re Adoption of Angela E., 402
S.W.3d at 641 (citation omitted).


        The Tennessee Supreme Court’s decision in In re Adoption of Angela E., 402
S.W.3d at 641, is instructive on the issue of willful failure to support. In that case, the
Tennessee Supreme Court found that the petitioners failed to provide clear and
convincing evidence of willful failure to support when there was no evidence presented
concerning the defendant-father’s monthly expenses, even though he was employed as a
physician earning an annual income of $150,000 and owned lien-free property worth at
least $300,000. Id. The supreme court found the evidence regarding the father’s income
and expenses “limited at best” and deemed the evidence insufficient. Id. The court
reiterated that, in order to prove the ground of abandonment for failure to support, the
petitioner “must prove by clear and convincing evidence that the [parent who failed to
support] had the capacity to pay support but made no attempt to do so and did not possess
a justifiable excuse.” Id. Thus, In re Adoption of Angela E. illustrates “the significance
of evidence concerning a parent’s income and expenses when the ground of abandonment
by willful failure to support is alleged.” In re Navada N., 498 S.W.3d 579, 594 (Tenn.
Ct. App. 2016).


       Here, the trial court found that Father had construction skills that allow him to
make money and that he was earning $25 per hour as recently as February 2016 (prior to
the four-month period). The trial court found “no explanation” for why Father was not
supporting the child during the summer of 2016 and no proof that he was unable to work.
However, the burden was not on Father to demonstrate an inability to work or pay. The
burden to prove abandonment by willful failure to support rests on the petitioner. “[W]e
cannot fault a parent for the absence of evidence regarding his or her financial situation.”
In re James V., No. M2016-01575-COA-R3-PT, 2017 WL 2365010, at *5 (Tenn. Ct.
App. May 31, 2017) (no perm. app. filed). In a termination case, “[t]he burden is not on
the parent to demonstrate an inability to pay; the burden is on the petitioner to prove by
clear and convincing evidence that the parent had the capacity to pay, made no attempt to
do so, and had no justifiable excuse for not doing so.” Id. (citing In re Adoption of
                                            10
Angela E., 402 S.W.3d at 641). The burden is on the petitioner “to illicit lucid and
intelligible evidence regarding [the parent’s] ability to pay support and whether [his or]
her failure to do so was justified so as to remove any ‘serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.’” In re Destiny H., No.
W2015-00649-COA-R3-PT, 2016 WL 722143, at *10 (Tenn. Ct. App. Feb. 24, 2016) (no
perm. app. filed) (quoting In re Valentine, 79 S.W.3d at 546). “A trial court cannot be
left to speculate about this important element of failure to support.” In re L.J., No.
E2014-02042-COA-R3-PT, 2015 WL 5121111, at *7 (Tenn. Ct. App. Aug. 31, 2015).


       Having reviewed the evidence presented and the trial court’s findings, we
conclude that the record contains insufficient evidence to demonstrate, clearly and
convincingly, that Father had the capacity to pay child support during the relevant period
and willfully failed to do so. We have no proof to establish Father’s employment,
income, expenses, or resources during the critical four-month period. Given the issues at
hand, this is a critical gap in the evidence that we cannot overlook. “Without such
evidence, a finding of willfulness cannot be sustained.” In re Navada N., 498 S.W.3d at
600. “[A] court can only determine willfulness of a parent’s failure to support where
there is sufficient evidence regarding the parent’s ability to pay.” In re Jamie G., No.
M2014-01310-COA-R3-PT, 2015 WL 3456437, at *15 (Tenn. Ct. App. May 29, 2015)
perm. app. denied (Tenn. Aug. 28, 2015); see, e.g., In re Destiny H., 2016 WL 722143, at
*10 (“[the] evidence concerning Mother’s employment does not provide sufficient insight
into her total income earned or her expenses during the relevant four-month period so as
to provide clear and convincing evidence that any failure to support was willful”). We
hereby vacate the trial court’s finding regarding failure to support.


        As noted above, abandonment can also be demonstrated by willful failure to visit.
Failure to visit is willful when a parent knows of his or her duty to visit, has the capacity
to do so, makes no attempt to do so, and does not have a justifiable excuse for not doing
so. In re Audrey S., 182 S.W.3d at 864. In the case at bar, Father did not visit Kylea
during the relevant four-month period. Father testified that the juvenile court did not
grant him visitation with Kylea because he had not established paternity. He testified that
the juvenile court informed him that DNA testing would be performed but that DCS
never told him when or where to go. Cousin testified that she took Kylea for the DNA
test and that her caseworker informed her that Father never showed up. The adjudicatory
order from juvenile court stated that Father refused to provide his contact information to
DCS, failed to maintain contact with DCS, and did not cooperate with them. The trial
court found that Father’s paternity was only confirmed after Cousin paid for a paternity
test at her own expense, during this proceeding, and that Father “was unresponsive and
disinterested in making the effort to prove his paternity prior to this case.” The trial court
found that Father never proactively attempted to establish paternity, which would have
                                             11
triggered visitation for him, and “willingly [forewent] his opportunity to assume fatherly
responsibilities.” The trial court also discredited Father’s testimony that Cousin was
difficult to contact. Giving due deference to the trial court’s credibility determinations,
we cannot say that the evidence preponderates against the trial court’s factual findings.
We conclude that the evidence clearly and convincingly shows that Father willfully failed
to visit Kylea during the relevant four-month period prior to his incarceration. Therefore,
grounds for termination existed based on abandonment by willful failure to visit.


                                     C.    Best Interest

       Because the trial court properly found at least one ground for termination, we must
review the trial court’s finding that termination of parental rights is in the best interest of
Kylea. Tennessee Code Annotated section 36-1-113(i) provides a list of factors that are
relevant when deciding what is in a child’s best interest. However, the list is not
exhaustive, and the court is not required to find the existence of every factor before
concluding that termination is in a child’s best interest. In re Joseph F., 492 S.W.3d 690,
706 (Tenn. Ct. App. 2016). “The child's best interests must be viewed from the child’s,
rather than the parent’s, perspective.” White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct.
App. 2004). “[W]hen the interests of the parent and the child conflict, courts are to
resolve the conflict in favor of the rights and best interest of the child.” In re Jacobe
M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013) (citing Tenn. Code Ann. § 36-1-
101(d)).


        On appeal, Father argues that the record contains no evidence to support a finding
that the child’s best interest would be served by terminating his rights. He claims that his
actions “were never inconsistent with that of a fit parent, except during the period he was
incarcerated.” He insists that there is “no evidence to suggest criminal activity or
substance abuse in [his] home.” Father claims that he “has not yet had the opportunity to
parent the child for a period of time significant enough to demonstrate that he is an unfit
parent.” He argues that because Kylea is only two years old, “[she] is young enough that
a change in environment would not be detrimental to her emotional, psychological, or
medical health.” The record, however, simply does not support Father’s assertions
regarding the best interest of the child.


      Kylea was five months old when she was placed with Cousin, and she was days
away from her second birthday at the time of trial. When Kylea was initially placed with
Cousin, she was behind on her vaccinations and still suffering the effects of drug
withdrawal, with shaking and unusual crankiness. Kylea was initially determined to be
delayed but after participating in Tennessee Early Intervention Services she began
                                              12
meeting the necessary milestones. Despite these improvements, Kylea still had some
issues with shaking, nervousness, and possible night terrors. Kylea called Cousin “Mom”
and Cousin’s fiancé “Dad.” Cousin testified that Kylea was very closely bonded with her
family and believed that it would be detrimental to place her with Father -- essentially a
stranger to Kylea. Father had not seen Kylea since before he left for Florida when she
was two months old. While Kylea was residing with Cousin, Father was uncooperative
with DCS and continued to engage in criminal activity. As the trial judge put it, Father
was “unresponsive and disinterested in making the effort to prove his paternity prior to
this case” and failed to make “reasonable efforts to provide a home for [Kylea].” Father
was released from jail most recently about two weeks before trial, and he conceded at
trial that he had been in jail for about half of Kylea’s life. Father mentioned the idea of
taking Kylea “up North” and raising her with a sister there, but he admitted that his
parental rights to the sister had been terminated and that she had been adopted. We agree
with the trial court that Father has not demonstrated any propensity to care for a child.
Despite Father’s argument to the contrary, a change of caretakers at this point would
likely have detrimental effects on this two-year-old girl. We conclude that the evidence
clearly and convincingly demonstrates that termination of Father’s parental rights is in
the best interest of Kylea.


                                  D.    Attorney’s Fees

        Finally, we consider Cousin’s request for attorney’s fees on appeal. She argues
that this appeal was frivolous and that it provides a basis for granting her attorney’s fees
pursuant to Tennessee Code Annotated section 27-1-122, which provides:


       When it appears to any reviewing court that the appeal from any court of
       record was frivolous or taken solely for delay, the court may, either upon
       motion of a party or of its own motion, award just damages against the
       appellant, which may include but need not be limited to, costs, interest on
       the judgment, and expenses incurred by the appellee as a result of the
       appeal.


Tenn. Code Ann. § 27-1-122. “A frivolous appeal is one that is devoid of merit or has no
reasonable chance of success.” Selitsch v. Selitsch, 492 S.W.3d 677, 690 (Tenn. Ct. App.
2015). “The decision to award damages for the filing of a frivolous appeal rests solely in
the discretion of this Court.” Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App.
2009). “In considering a request for attorney’s fees on appeal, we consider the requesting
party’s ability to pay such fees, the requesting party’s success on appeal, whether the
appeal was taken in good faith, and any other equitable factors relevant in a given case.”
                                            13
In re Estate of Morris, No. M2016-02557-COA-R3-CV, 2017 WL 5304464, at *7 (Tenn.
Ct. App. Nov. 13, 2017), perm. app. denied (Tenn. Mar. 15, 2018) (citing Moran v.
Wilensky, 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010)). We exercise our discretion to
award such fees “sparingly so as not to discourage legitimate appeals.” Eberbach v.
Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017) (quotations omitted). At the same time,
however, the frivolous appeal statute “reflect[s] the view that successful parties should
not have to bear the costs and vexation of baseless appeals,” nor should appellate courts
“be saddled with such cases.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn.
2010) (quotations omitted). In sum, “imposing a penalty for a frivolous appeal is a
remedy which is to be used only in obvious cases of frivolity and should not be asserted
lightly or granted unless clearly applicable—which is rare.” Id.


       In In re M.L.D., 182 S.W.3d 890, 898 (Tenn. Ct. App. 2005), this Court stated,


       The determination of whether a parent’s rights to his/her child should be
       terminated is the most serious and grave issue to be addressed by this
       Court. Accordingly, we are loathe to consider an appeal of a trial court’s
       judgment terminating a parent’s rights to be frivolous.


We went on to award frivolous appeal damages in that case, however, where the
appellant was the petitioner rather than the parent, and the appellant failed to provide an
adequate record for review on appeal. Id.


        At trial, Cousin testified that Father sent her a text message calling the court
proceeding “a chess game” for which he was planning his next move. Noting this
testimony, the guardian ad litem suggests that Father similarly pursued this appeal in an
effort to harass Cousin and delay permanency for the child. Notably, Father pursued an
appeal to this Court despite the fact that the trial court based its decision to terminate his
parental rights, in part, on the ground of a prior adjudication of severe child abuse.
Father’s argument regarding the ground of severe child abuse was totally devoid of merit
and had no reasonable chance of success. And, only one ground is necessary to support
termination of parental rights. Still, we cannot say that Father’s argument regarding the
best interest of the child was so utterly devoid of merit as to be frivolous. We
respectfully decline to award Cousin her attorney’s fees on appeal.




                                             14
                                   V. CONCLUSION

      For the aforementioned reasons, the decision of the chancery court is hereby
vacated in part and affirmed in part and remanded for further proceedings. Costs of this
appeal are taxed to the appellant, Michael M. Because Michael M. is proceeding in
forma pauperis in this appeal, execution may issue for costs if necessary.




                                               _________________________________
                                               BRANDON O. GIBSON, JUDGE




                                          15