IN RE MIKKO B.

OPINION

RICHARD H. DINKINS, Judge.

A mother and her husband petitioned the court to terminate the biological father's parental rights to his son on the grounds of abandonment by failure to visit and failure to support. After a trial, the court terminated Father's rights on those grounds and upon its holding that termination of Father's rights would be in the best interest of the child. Father appeals. Upon our review, we affirm the judgment in all respects.

I. FACTUAL AND PROCEDURAL HISTORY

Mikko B. ("Child") was born to Kelli C. ("Mother") and Damian B. ("Father") in December 2009 in Asheville, North Carolina.2 Mother, Father, and Mikko lived together in North Carolina until 2012, when Mother relocated to Knoxville, Tennessee, with Mikko.

In 2013, Mother initiated proceedings in the Juvenile Court of Knox County to establish Father's parentage of Mikko and to set a parenting plan and child support. An order was entered on June 20, 2013, stating that "[t]he parties agree that the Father of the subject child is Damian [B.]. The agreed parenting plan designates Mother as the primary residential parent and awards Father 84 days of parenting time per year, to be exercised every other weekend. Father's monthly child support obligation was set at $355.00.3

In April 2016, Mother filed an "Emergency Petition for Custody or in the alternative Emergency Petition for Modification" alleging inter alia that Father "was bringing the Minor Child to stay the weekend with him in a home from which he was selling illegal drugs"; that Father had been charged in September 2015 with Felony Trafficking in Marijuana, Felony Possession of Schedule VI Controlled Substance, Felony Maintaining a Dwelling for Keeping and Selling Controlled Substances, and Misdemeanor Possession of Marijuana Paraphernalia; and that Father did not notify Mother of the charges. An Expedited Order Directing Agency Supervised Visitation was entered on May 5, 2016, ordering that Father's visitation be supervised, and that it take place at "Parent Place" in Knoxville based upon the availability of the facility and the finances of the parties.

In July 2016, Mother married Ronald K., ("Step-father"); the couple had previously had a son in May 2016. On September 15, Mother and Step-father filed the instant petition in Knox County Chancery Court, seeking to terminate Father's parental rights and for step-parent adoption. As grounds for termination, the petition alleged that Father had abandoned Mikko by willfully failing to visit and support him; the petition also alleged that termination of Father's rights was in Mikko's best interest.4

Father answered the petition, and the court appointed a guardian ad litem. The case proceeded to trial on November 17, 2017, and January 23 and February 6, 2018; eight witnesses testified. An order terminating Father's parental rights was entered on March 1, terminating Father's rights on the grounds of abandonment by willful failure to pay support, abandonment by willful failure to visit, and upon its conclusion that termination of Father's rights would be in Mikko's best interest.

Father appeals, stating the following issues:

II. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on termination of parental rights provide the only authority for a court to terminate a parent's rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one ground need be proved, so long as it is proved by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

Because the decision to terminate parental rights affects fundamental constitutional rights and carries grave consequences, courts must apply a higher standard of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court may terminate a person's parental rights only if (1) the existence of at least one statutory ground is proved by clear and convincing evidence and (2) it is shown, also by clear and convincing evidence that termination of the parent's rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then determine whether the facts, "as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements" necessary to terminate parental rights. Id. In this regard, clear and convincing evidence is "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence" and which "produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established." In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted).

III. ANALYSIS

A. Whether Clear and Convincing Evidence Supported the Grounds of Abandonment by Failure to Visit and Failure to Support

Abandonment is identified as a ground for termination in Tennessee Code Annotated section 36-1-116(g)(1) and defined in section 36-1-102(1)(A), which reads in pertinent part:

Tenn. Code Ann. § 36-1-102(1)(A) (2016). In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), this Court discussed willfulness in the context of termination cases:

Id. at 863-64 (citations and footnotes omitted).

1. Failure to Support

The trial court held that Father willfully failed to support Mikko in the four months preceding the filing of the petition.5 The pertinent portion of the order reads:

Father does not challenge the finding that he did not pay support, other than $100, during the period, and the testimony of Father and Mother supports the finding. We thus turn to a consideration of Father's arguments that his failure to support Mikko was not willful.

Father concedes that he was aware of his duty to pay support; he asserts that his failure to pay support was not willful and that this ground was not proven as "there is only confusing evidence as to the amount [of his income]"; that he did not have enough income to meet his expenses; that "minimal evidence was submitted as to what Father's actual expenses were during the requisite time"; and that he "had been charged with criminal activities that resulted in his reduced ability to obtain employment." Father also argues that "[w]hen Mother chose to leave [North Carolina] with the minor child, Father did not continue his pursuit for higher education . . . [and] lost the money associated with scholarships, grants and student loans." In support of his argument, Father cites his testimony that his driver's "license is suspended right now"7; that he pled guilty in May 2016 to the felony of manufacturing marijuana; and that he makes $13,000 per year from the business that does "automotive customizations and general service" that he has owned for three and a half years. In addition to his testimony, the record contains an unsigned affidavit prepared by Father and attached as an exhibit to his discovery responses setting forth his income and expenses,8 and a signed affidavit of indigency filed in the case under penalty of perjury. As we review the evidence and Father's arguments, we are mindful of the court's adverse credibility determination:

Father's unsigned affidavit states that his net monthly income from his automotive repair business is approximately $2,065.40; in the affidavit of indigency, however, Father states that he made $13,000 per year; he also testified that he netted "maybe [$]27[,000]" in 2017. Father also testified that he earned income giving tours of Asheville architecture, doing work for friend, working for Elf Racing, and from rent received from tenants living in his home. With respect to his expenses, the unsigned affidavit shows total monthly expenses, including child support, of $4,245. Despite his assertion that he does not drive since he has a suspended license, the unsigned affidavit reports that he spends $350.00 per month in gas and vehicle maintenance; the affidavit also states that he spends $250 per month on "entertainment" which he specifies as "restaurants, movies, child activities, etc." Father also testified that he has legal expenses relating to his criminal charges and this termination proceeding; that he borrowed money from "mostly friends" and family to pay for his attorneys; and that he hired an attorney for his criminal charges rather than pay child support.9 While Father contends in his brief that he "filed to modify his child support," there is no motion in the record before us, and the only proof in the record to which we are cited in support of this contention is testimony that is not clear.10

The record contains clear and convincing evidence that Father knew of his duty to support, was capable of working and earning money; that he has held numerous jobs and owns his own company; that he did not pay support during the relevant time period; and that he had no justifiable excuse for failing to pay support. The evidence establishes that Father abandoned Mikko by willfully failing to support him, and we affirm the trial court's holding that this ground was established by clear and convincing evidence.

2. Failure to Visit

The court's conclusion regarding Father's willful failure to visit is as follows:

The parenting plan entered in the Juvenile Court in June of 2013 provided that Father would have unsupervised visitation with Mikko on alternate weekends; as noted earlier in this opinion, on May 5, 2016, the Juvenile Court entered an order requiring Father's visitation be supervised and take place at Parent Place in Knoxville. The visitation records from Parent Place show that Father visited Mikko on two occasions in the four months preceding the filing of the petition, August 31 and September 14. In his brief on appeal, Father contends that he was unable to visit Mikko between May and August because Mother interfered with his visitation by not working with Parent Place to set up visitation.

Father testified as follows with respect to his efforts to secure visitation through Parent Place:

Mother testified that Mikko had been diagnosed with autism spectrum disorder, as a result of which he requires a structured environment and regimented schedule, including school attendance, a weekly counseling session, and a consistent bedtime. Mother testified that when she was contacted by Parent Place, she completed the necessary paperwork within one or two days; that she sought a two hour time period from 4:00 to 6:00 p.m. for visitation in order to accommodate Mikko's schedule, but the time slots that were available, from 2:00 to 4:00 p.m. and 6:00 to 8:00 p.m., conflicted with Mikko's schedule. She also testified that when a 4 p.m. to 6 p.m. time slot became available, she was willing to make Mikko available. Mother testified that the Parent Place representative told her she would contact Mother when an earlier time slot became available, but Mother did not hear back from Parent Place. Mother testified that the guardian ad litem contacted Parent Place in August and set up one hour visits until a two hour time slot became available, and that she made Mikko available for those one-hour visits.

From our review of the record, we discern no actions on the part of Mother that amount to a restraint of or interference with Father's efforts to exercise visitation with Mikko. To the contrary, Father took no action to exercise his visitation after completing the paperwork required by Parent Place and making calls to determine when the visitation would take place; as noted by the trial court, Father did not attempt to engage counsel or otherwise seek to enforce the Juvenile Court order giving him visitation or alternative means to exercise visitation. Again mindful of the adverse determination made by the trial judge regarding Father's credibility, the evidence clearly shows that Mother did not interfere with Father's visitation and that his failure to visit was willful within the meaning of section 36-1-102.

B. Best Interest

Once a ground for termination has been proven by clear and convincing evidence, the trial court must then determine whether it is in the best interest of the child for the parent's rights to be terminated, again using the clear and convincing evidence standard. In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of factors at Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the child's best interest.12 The list of factors in the statute "is not exhaustive, and the statute does not require every factor to appear before a court can find that termination is in a child's best interest." In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing Tenn. Dept. of Children's Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue we are also mindful of the following instruction in White v. Moody:

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).

As an initial matter, we address Father's contention that the trial court used the preponderance of the evidence standard, rather than the clear and convincing evidence standard in determining that termination of his parental rights was in Mikko's best interest. He premises his argument on the court's reference to the preponderance of the evidence standard in the concluding paragraph, quoted above.13 We disagree with his contention.

The Tennessee Supreme Court has instructed that the facts relating to the factors of the best-interest analysis are to be proven by a preponderance of the evidence, not by clear and convincing evidence, and once those factual findings are made, the trial court is then to consider the combined weight of those facts to determine whether they amount to clear and convincing evidence that termination is in the child's best interest. In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). In the order terminating Father's rights, after making findings largely related to the procedural history of the case, the court states that its conclusions are made "by clear and convincing evidence, pursuant to Tennessee Code Annotated § 36-1-113 and § 36-1-102." In our review of the order in its entirety, it is apparent that the court employed the clear and convincing standard as to both the grounds for termination and best interest; taken in context, the reference to the preponderance standard in the concluding paragraph is mistaken language rather than a statement of the nature of the court's best interest analysis. Accordingly, we proceed to review the best interest determination.

The court held that termination of Father's parental rights would be in the best interest of Mikko, stating:

The record, specifically the testimony of Mother, Father and Ms. Nan Butruff, a licensed clinical social worker who is employed as a therapist at Behavioral Strategies and has been Mikko's therapist since May of 2106, provides clear and convincing evidence in support of the court's factual findings. We have reviewed the findings in light of the testimony cited by Father in his brief on appeal that he contends was not considered by the court and his argument as to the weight the court afforded all the testimony, the testimony cited by Mother in response, and the entire record, and conclude that the evidence cited by Father does not preponderate against the court's findings. Further, the record establishes that Mother and Step-father have provided a safe and stable home wherein Mikko's need for a structured environment is being met. Upon our review, the combined weight of the factual findings is clear and convincing evidence that termination of Father's parental rights is in Mikko's best interest.

IV. CONCLUSION

For the foregoing reasons, we affirm the termination of Father's parental rights to Mikko.