IN RE ALEXANDER B.

06/03/2026 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs March 5, 2026 IN RE ALEXANDER B. Appeal from the Chancery Court for Claiborne County No. 20282 Elizabeth C. Asbury, Chancellor ___________________________________ No. E2025-01580-COA-R3-PT ___________________________________ In this case involving termination of a mother’s parental rights, the trial court determined that clear and convincing evidence supported termination as to two statutory grounds: abandonment by failure to visit and persistence of the conditions that led to the child’s removal. The trial court did not find clear and convincing evidence to support the alleged ground of failure to manifest an ability and willingness to assume legal and physical custody of or financial responsibility for the child. The trial court further determined that termination of parental rights was in the child’s best interest. The mother has appealed, contesting the termination of her parental rights and additionally arguing that the adoptive father lacked standing to file the petition due to his criminal history and the fact that he is not legally related to the child. Upon review, we determine that the adoptive father had standing to file the termination petition because he had maintained physical custody of the child for nearly a year before filing the termination petition. As to termination of the mother’s parental rights, we reverse the trial court’s determination that the petitioners had failed to establish the statutory ground of failure to manifest an ability and willingness to assume legal and physical custody of the child. Accordingly, we find that statutory ground also supports termination of the mother’s parental rights. In all other respects, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part; Case Remanded THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CARMA DENNIS MCGEE and JEFFREY USMAN, JJ., joined. Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellant, Aliyah H. Aaron J. Chapman, Morristown, Tennessee, for the appellees, Brittany A. and Ronald A.  OPINION I. Factual and Procedural History This matter involves a Petition to Terminate Parental Rights and Adopt (“the Termination Petition”) filed on July 29, 2024, by Ronald A. (“Adoptive Father”) and Brittany A. (“Adoptive Mother”) (collectively, “Petitioners”) in the Claiborne County Chancery Court (“trial court”). In the Termination Petition, Petitioners sought termination of the parental rights of Aliyah H. (“Mother”) and Alexander B. (“Father”) to Alexander B. (“the Child”), who was born in August 2020.1 Petitioners additionally sought to adopt the Child. The facts leading to the filing of the Termination Petition are largely undisputed. On February 7, 2022, Mother and Father were arrested for disorderly conduct following a domestic violence incident between them. On that same day, the Tennessee Department of Children’s Services (“DCS”) was advised of the parents’ arrests by Claiborne County Sheriff’s Deputy Randy Wilmoth. Deputy Wilmoth reported that the Child was the “victim of improper supervision.” DCS case manager Brianna Greene responded to the deputy’s report and interviewed each parent regarding the incident and the Child’s well-being. According to Ms. Greene’s report, both Father and Mother had informed her that they were homeless. Mother told Ms. Greene that she and Father had a “history of domestic violence,” and that the Child would be staying with Mother’s paternal grandmother while Mother was incarcerated. On the day following the parents’ arrests, February 8, 2022, DCS filed a “Petition to Transfer Temporary Legal Custody and For Ex Parte Order” in the Claiborne County Juvenile Court (“juvenile court”), requesting that the juvenile court find the Child dependent and neglected and seeking placement of the Child with Father’s aunt and uncle, Joseph L. and Jacqueline L. The juvenile court found that because both parents were presently incarcerated and homeless, there existed probable cause that the Child was dependent and neglected pursuant to Tennessee Code Annotated § 37-1-102(b). In turn, the juvenile court placed the Child in the temporary legal custody of Joseph L. and Jacqueline L. and appointed Misty Kennedy as guardian ad litem (“GAL”). On May 3, 2022, the Claiborne County General Sessions Court (“general sessions court”) dismissed the disorderly conduct charge against Mother. On May 25, 2022, the juvenile court conducted a review hearing regarding the dependency and neglect allegations. The review hearing order reflected that Mother had 1 Father did not appear in the proceedings below and has not filed an appeal contesting the trial court’s order terminating his parental rights. Accordingly, this Opinion addresses Mother’s arguments on appeal only. -2- continued “to fail drug screens for marijuana” and that she had “no housing.” Mother admitted that she had manipulated drug tests and expressed a desire to return to Michigan to live with her mother. At that time, Mother was visiting the Child regularly two days per week and had provided “some financial support.” Mother relocated to Michigan to live with her mother shortly after the May 25, 2022 review hearing. At a subsequent review hearing conducted on June 29, 2022, DCS closed the case upon determining that both parents had relocated to Michigan and that Mother had “no job, no stable home, no transportation, and ha[d] not provided any proof of clean drug screens.” The juvenile court entered an order determining that the Child should remain in the custody of Joseph L. and Jacqueline L. In August 2022, Mother traveled from Michigan to Tennessee to visit with the Child on his second birthday. This was the final in-person visit between Mother and the Child. On August 25, 2023, Joseph L. and Jacqueline L., together with Adoptive Mother as co-petitioner, filed a petition for change of custody (“Custody Petition”), requesting that the juvenile court transfer custody of the Child to Adoptive Mother. Adoptive Mother is Jacqueline L.’s sister, and is married to Adoptive Father, who is the Child’s biological grandfather.2 The proponents of the Custody Petition explained therein that Adoptive Mother had “maintained a relationship” with the Child during the custodial period and had “already been assisting with daily care” of the Child “since the custodial episode began.” The petitioners further averred in the Custody Petition that Adoptive Mother had “appropriate housing,” a “valid driver’s license[],” and “sufficient income to care for the [C]hild.” DCS and the GAL conducted home visits at Adoptive Mother’s residence and concluded that the home was “appropriate” such that Adoptive Mother could assume custody of the Child. The juvenile court conducted a hearing relative to the Custody Petition on October 25, 2023, and subsequently granted the petition on November 8, 2023. On July 29, 2024, Petitioners filed the Termination Petition in the trial court, seeking termination of Mother’s and Father’s parental rights and adoption of the Child. Petitioners alleged the following statutory grounds for termination: (1) conduct prior to Mother’s and Father’s incarceration exhibiting a wanton disregard for the welfare of the Child, (2) abandonment by failure to visit the Child, (3) persistence of the conditions that led to the Child’s removal, and (4) failure to manifest an ability or willingness to assume legal and physical custody of or financial responsibility for the Child. In addition, Petitioners alleged that termination of Mother’s and Father’s parental rights was in the best interest of the Child. 2 Father is Adoptive Father’s biological son, but Father himself was adopted when he was a child by his step-father, M.B., after Adoptive Father relinquished his parental rights to Father. Adoptive Mother testified that when she, Jacqueline L., and Joseph L. filed the petition for change of custody, she was married to Adoptive Father but had not yet taken his last name. Therefore, Adoptive Mother’s surname on the change of custody petitions does not match her surname on the Termination Petition or the proceedings thereafter. -3-  The trial court conducted a hearing on the Petition on June 5, 2025, and July 16, 2025, during which it considered testimony from Adoptive Mother; Adoptive Father; friend of Petitioners, Amanda Farmer; medical assistant, Amanda Leach; Adoptive Mother’s sister, Jacqueline L.; Adoptive Mother’s mother, Renae C.; Mother; and the maternal grandmother, Angela B. On August 21, 2025, the trial court entered a memorandum opinion terminating Mother’s and Father’s parental rights. After setting forth several pages of findings of fact, the trial court determined that clear and convincing evidence supported two grounds for termination as to both parents: (1) abandonment by failure to visit the Child and (2) persistence of the conditions that led to the Child’s removal. The trial court also determined that clear and convincing evidence supported a finding that termination was in the Child’s best interest. On September 9, 2025, the trial court entered a “Final Judgment of Termination and Guardianship” in which the court incorporated its findings of fact and ruling from the August 21, 2025 order, terminated Mother’s and Father’s parental rights to the Child, and placed the Child under the permanent guardianship of Petitioners. Mother timely appealed. II. Issues Presented Mother presents the following issues on appeal, which we have restated slightly: 1. Whether the trial court erred by failing to find that Adoptive Father lacked standing to seek adoption of the Child. 2. Whether the trial court erred by failing to find that Petitioners were required by law to submit to a home study pursuant to Tennessee Code Annotated § 36-1-116(a)(1) upon finding that Petitioners were, in fact, not related to the Child. 3. Whether the trial court erred in finding, by clear and convincing evidence, that the conditions that led to the removal of the Child from Mother’s custody persisted. 4. Whether the trial court erred in finding, by clear and convincing evidence, that Mother had abandoned the Child by failing to visit. 5. Whether the trial court erred in finding, by clear and convincing evidence, that termination of Mother’s parental rights was in the Child’s best interest. Petitioners raise the following additional issue: 6. Whether the trial court erred by determining that Petitioners had failed to prove the ground of failure to manifest an ability or willingness to -4-  assume legal and physical custody of or financial responsibility for the Child by clear and convincing evidence. III. Standard of Review In a termination of parental rights case, this Court has a duty to determine “whether the trial court’s findings, made under a clear and convincing standard, are supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). “Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our Supreme Court has explained: The parental rights at stake are “far more precious than any property right.” Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of parental rights has the legal effect of reducing the parent to the role of a complete stranger and of [“]severing forever all legal rights and obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating parental rights is “final and irrevocable”). In light of the interests and consequences at stake, parents are constitutionally entitled to “fundamentally fair procedures” in termination proceedings. Santosky, 455 U.S. at 754; see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27 (1981) (discussing the due process right of parents to fundamentally fair procedures). Among the constitutionally mandated “fundamentally fair procedures” is a heightened standard of proof—clear and convincing evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of unnecessary or erroneous governmental interference with fundamental -5-  parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and- convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). *** In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. In re Bernard T., 319 S.W.3d at 596- 97. In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental] rights must prove all the elements of their case by clear and convincing evidence,” including statutory grounds and the best interest of the child. See In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). IV. Standing Mother contends that Adoptive Father lacked standing to file the Termination Petition and to seek adoption of the Child because Adoptive Father had previously relinquished his parental rights to Father, who is Adoptive Father’s biological son and the father of the Child in the instant case. Mother argues that by giving up his parental rights to Father, Adoptive Father had lost his “legal capacity” to adopt the Child. Mother additionally posits that when Mother and Father were arrested, the juvenile court initially did not allow Adoptive Father to assume physical custody of the Child because Adoptive Father had a criminal history, including that he was a “convicted felon.” Mother contends that because Adoptive Father was not granted custody of the Child when the Child was removed from the parents’ home, he therefore did not qualify to join in the Termination Petition as a prospective adoptive parent. Mother additionally avers that Adoptive Mother intentionally “deceive[d]” the juvenile court by using a different surname to disguise the fact that she was married to Adoptive Father when she sought transfer of custody of the Child. Mother initially raised the issue of standing before the trial court in the form of a motion for a directed verdict, arguing that due to his criminal history, Adoptive Father -6- could not qualify as a “prospective adoptive parent” as defined in Tennessee Code Annotated § 36-1-113(b), and therefore was not among the category of individuals who could file a petition for termination of parental rights. Tennessee Code Annotated § 36-1- 113(b)(1) (West July 1, 2024 to current) provides in relevant part: The prospective adoptive parent or parents, including extended family members caring for a related child, a licensed child-placing agency having physical custody of the child, the child’s guardian ad litem, or the department have standing to file a petition pursuant to this part or title 37 to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child[.] Tennessee Code Annotated § 36-1-102 defines “prospective adoptive parents” as, inter alia, “nonagency person[s] who have filed a petition for termination or for adoption[.]” In response to Mother’s motion for a directed verdict, Petitioners countered that the definition of “prospective adoptive parent,” as found in Tennessee Code Annotated 36-1- 102, includes a “person who has filed a petition for termination” and that because Adoptive Father had filed the Termination Petition with Adoptive Mother, he was therefore included in the statutory definition of “prospective adoptive parent.” After hearing the parties’ arguments, the trial court agreed with Petitioners and determined that Adoptive Father was a “prospective adoptive parent within the meaning of [§ 36-1-102]” because Adoptive Father had filed the Termination Petition “seeking ultimately to adopt.” On appeal, Mother does not contest the trial court’s application of the statutory definition of “prospective adoptive parent,” and we find no reason to disturb the trial court’s determination in that regard. Instead, Mother asserts that Adoptive Father lacked standing to file the Termination Petition because at the time of the Child’s removal from Mother’s custody, DCS had refused to place the Child with Petitioners due to Adoptive Father’s “criminal background[.]” Mother points to testimony during trial revealing that when Mother and Father were arrested, DCS could not “clear” Adoptive Father to receive physical custody of the Child due to Adoptive Father’s “felony record.” Mother argues that Adoptive Father thus did not have the required “right to receive physical custody” of the Child. Petitioners do not dispute that Adoptive Father had a criminal record or that DCS initially declined to place the Child with Petitioners because of Adoptive Father’s felony convictions. However, the juvenile court later granted legal custody of the Child to Adoptive Mother—who was married to and living with Adoptive Father—by an order entered in August 2023. Notably, DCS and the GAL conducted home visits of Petitioners’ residence at that time to ensure that Petitioners’ home was suitable for the Child. Thus, despite DCS’s earlier reservations concerning Adoptive Father when the Child was first removed into protective custody, DCS, the GAL, and the juvenile court all appear to have -7- agreed by August 2023 that it was proper for the Child to reside in Adoptive Father’s home despite Adoptive Father’s past criminal record. The Child had resided with Petitioners exclusively and continuously thereafter. Mother relies on language from this Court’s decision in In re Joseph F., 492 S.W.3d 690 (Tenn. Ct. App. 2016) to argue that because Adoptive Father was not permitted initially to receive physical custody of the Child, he lacked standing to file a petition for termination of parental rights as a prospective adoptive parent. The relevant portion of In re Joseph F. provides as follows: Tennessee Code Annotated section 36-1-115(b) imposes the following requirements for persons filing an adoption petition: The petitioners must have physical custody or must demonstrate to the court that they have the right to receive custody of the child sought to be adopted as provided in § 36- 1-111(d)(6) [statute regarding surrender/parental consent] at the time the petition is filed, unless they are filing an intervening petition seeking to adopt the child. Thus, a person or persons filing for adoption must have physical custody of the child or the right to receive physical custody pursuant to a valid surrender. Tenn. Code Ann. § 36-1-111(d)(6); see In re Adoption of M.J.S., 44 S.W.3d 41, 49 (Tenn. Ct. App. 2000) (discussing adoption statutes). In re Joseph F., 492 S.W.3d at 697 (quoting In re Sonya M., No. M2015-00064-COA- R3-PT, 2015 WL 4381567 at *2-3 (Tenn. Ct. App. July 16, 2015)) (emphasis added). The In re Joseph F. Court concluded: Upon a careful review of the termination/adoption provisions found in Title 36 as a whole, along with applicable precedent, we conclude that “physical custody” means physical possession of a child, as granted by a parent, guardian, child-placing agency, or court. We therefore conclude that because the [adoptive parents] had physical possession and therefore physical custody of the Children at the time of the petition’s filing, they have standing to seek termination of Mother’s parental rights pursuant to Tennessee Code Annotated § 36-1-115. In re Joseph F., 492 S.W.3d at 701. Adoptive Father lived with and cared for the Child as a parental figure from August 2023 until July 2024, pursuant to an order of the juvenile court. Thus, Adoptive Father -8- maintained “physical custody” of the Child during that period, as that term is understood and defined in In re Joseph F. See id. Therefore, in keeping with the determination set forth by the In re Joseph F. Court, we determine that Adoptive Father had standing to file the Termination Petition and to seek adoption of the Child. See id. Regarding Mother’s claim that Adoptive Mother intentionally hid her marriage with Adoptive Father from the juvenile court by using a different surname when seeking the transfer of custody, we find no evidence to support this assertion. When questioned about use of her prior last name on the Custody Petition, Adoptive Mother explained that she and Adoptive Father were married at the time she filed the petition but that she had not yet assumed Adoptive Father’s last name. Mother did not present any countervailing testimony or proof to contradict this explanation. Furthermore, DCS and the GAL would have known that Adoptive Mother and Adoptive Father were married and residing together when they conducted the home inspections at that time. We therefore find Mother’s argument on this point unavailing. V. Home Study Requirements for Adoption Pursuant to § 36-1-116 Mother argues that because Petitioners were not related to the Child, the trial court erred in “not finding that [Petitioners] were required by law to submit a home study pursuant to [Tennessee Code Annotated] § 36-1-116(a)(1).” Section 36-1-116(a)(1) (West July 1, 2024 to current) requires that “prior to filing a petition for the adoption of a child, the prospective adoptive parents shall . . . request a home study . . . concerning the suitability of their home and themselves as adoptive parents[.]” Such requirement may be waived if the child is “to be adopted by related persons.” Tenn. Code Ann. § 36-1- 116(a)(1). Here, Petitioners filed for termination and “to adopt,” requesting that the trial court waive the home study requirement. However, in the alternative, Petitioners requested that the trial court “enter an appropriate order of reference for a home study and enforce an appropriate waiting period should the court not declare the Petitioners to be related [to the Child] under law.” Upon review, we determine that Petitioners’ request in the alternative for a home study order complies with the requirements of § 36-1-116(a)(1). Significantly, the trial court did not order that the Child be adopted by Petitioners. The trial court stated from the bench that a home study “is going to be required” before Petitioners would be cleared to adopt the Child “if we get to that point.” In the order terminating parental rights, the trial court ordered that the Child “shall be placed in the full guardianship of the Petitioners.” For the foregoing reasons, we find no error in the trial court’s judgment respecting this issue. -9-  VI. Statutory Grounds for Termination of Parental Rights Tennessee Code Annotated § 36-1-113 (West July 1, 2021, to current)3 lists the statutory requirements for termination of parental rights, providing in relevant part: (a) The chancery and circuit courts shall have concurrent jurisdiction with the juvenile court to terminate parental or guardianship rights to a child in a separate proceeding, or as a part of the adoption proceeding by utilizing any grounds for termination of parental or guardianship rights permitted in this part or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4. *** (c) Termination of parental or guardianship rights must be based upon: (1) A finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and (2) That termination of the parent’s or guardian’s rights is in the best interests of the child. The trial court concluded that the evidence clearly and convincingly supported two statutory grounds to terminate Mother’s parental rights: (1) persistence of the conditions that led to the Child’s removal from the parents’ custody and (2) abandonment by failure to visit the Child. The trial court determined that the evidence did not clearly and convincingly support Petitioners’ alleged ground of failure to manifest an ability or willingness to assume legal and physical custody of or financial responsibility for the Child, and Petitioners have challenged that ruling on appeal. We will address each statutory ground in turn.4 3 Unless otherwise noted, throughout this Opinion, all citations to any section within Tennessee Code Annotated §§ 36-1-113 and 36-1-102 shall be made in reference to the version that was effective on the date the Termination Petition was filed and not to any other version of the statute. See, e.g., In re Zakary O., No. E2022-01062-COA-R3-PT, 2023 WL 5215385, at *4, n.6 (Tenn. Ct. App. Aug. 5, 2023). In some instances, such as this one, the subsection that was in effect at the time the Termination Petition was filed has not changed and therefore remains current. 4 Prior to the termination hearing, Petitioners withdrew the alleged ground of conduct prior to Mother’s and Father’s incarceration exhibiting a wanton disregard for the welfare of the Child. Accordingly, the trial court did not address that ground, and it is not a subject of this Opinion. - 10 -  A. Statutory Abandonment by Failure to Visit Concerning statutory abandonment, Tennessee Code Annotated § 36-1-113(g)(1) (West July 1, 2022, to current), provides as relevant to this action: (g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and nonexclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground: (1) Abandonment by the parent or guardian, as defined in § 36-1- 102, has occurred[.] The version of Tennessee Code Annotated § 36-1-102(1) (West July 1, 2024, to May 4, 2025) in effect when the Termination Petition was filed provided the following definition of abandonment as pertinent here: For purposes of terminating the . . . rights of a parent . . . of a child to that child to make that child available for adoption, “abandonment” means that: *** (A)(i) (b) If the child is less than four (4) years of age at the time of the filing of a petition for termination of parental rights, for a period of three (3) consecutive months immediately preceding the filing of a proceeding, pleading, petition, or amended or supplemental petition to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, the parent or parents or the guardian or guardians either have failed to visit or have failed to support or have failed to make reasonable payments toward the support of the child; *** (E) For purposes of this subdivision (1), “failed to visit” means the failure, for the applicable time period, to visit or engage in more than token visitation. That the parent had only the means or ability to make very occasional visits is not a defense to failure to visit if no visits were made during the relevant time period[.] - 11 -  Regarding the period applicable to the ground of abandonment by failure to visit, the trial court found: The Petition for Termination of Parental Rights and Adoption was filed on July 29, 2024. Generally, the relevant four (4) month period of time for abandonment purposes is from March 28, 2024 through July 28, 2024. However, this child was three (3) years old at the time the Petition was filed. Therefore, pursuant to T.C.A.§ 36-1-102 (2024) the relevant time period is three (3) months prior to the filing of the Petition. However, Petitioners referenced the four (4) month time period and the Court will analyze with a four (4) month period. (Paragraph numbering omitted.) The trial court set the period for calculating statutory abandonment from March 28, 2024, through July 28, 2024 (“the Determinative Period”).5 However, the trial court should have set the beginning date as March 29, 2024, rendering a statutorily determinative period spanning March 29, 2024, through July 28, 2024. See In re Joseph F., 492 S.W.3d at 702 (explaining that the applicable four-month statutory period preceding filing of the termination petition “began on March 8, 2011, and concluded on July 7, 2011, the day prior to the filing of the termination petition”) (citing In re Jacob C.H., No. E2013-00587-COA- R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014)). Because we find that this one-day difference in the beginning of the Determinative Period does not affect our analysis of this statutory ground, we conclude that the trial court’s inclusion of the extra day constitutes harmless error. See, e.g., In re Kierani C., No. E2020-00850-COA-R3-PT, 2021 WL 4057222, at *8 (Tenn. Ct. App. Sept. 3, 2021). At the outset, the trial court determined that Mother had waived the affirmative defense of lack of willfulness regarding this ground because she did not raise the defense in either her initial response or in her amended answer to the Termination Petition. Tennessee Code Annotated § 36-1-102(1)(I) provides: 5 Regarding the trial court’s use of the four-month period to analyze this ground rather than the correct three-month period, see Tenn. Code Ann. §36-1-102(1)(A)(i)(b), Petitioners alleged the ground of abandonment in the Termination Petition using a four-month determinative period and reiterated at trial that the court could “go with either one” in analyzing the allegation of abandonment. Neither party has raised an issue on appeal regarding the trial court’s use of the four-month Determinative Period. We note that the trial court’s reference to the four-month period encompassed the properly calculated three-month period. We therefore determine any error on the trial court’s part in using a four-month determinative period relative to this ground to be harmless. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.”). - 12 -  For purposes of this subdivision (1), it shall be a defense to abandonment for failure to visit or failure to support that a parent or guardian’s failure to visit or support was not willful. The parent or guardian shall bear the burden of proof that the failure to visit or support was not willful. Such defense must be established by a preponderance of evidence. The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure[.] Mother acknowledges that she “did not aver any affirmative defense” in her answer but contends that she instead denied the allegation of abandonment in its “entirety” “due to the actions and behavior of the [Petitioners].” Thus, Mother appears to be asserting that she did raise the affirmative defense of lack of willfulness even though she did not expressly present the argument as a separate affirmative defense in her amended answer. In paragraph nine of her amended answer to the Termination Petition, Mother responded to the statutory abandonment allegation by averring that she had maintained inconsistent contact with Petitioners [regarding the Child] due to the fact that the Petitioners have made it difficult, if not impossible, for her to video chat with [the Child] by their unreasonable time of Wednesdays at 7:00 a.m. for video calls and their refusal to answer video chat calls. Although Mother did not use the word “willful” or expressly designate this response as an affirmative defense to the allegation of abandonment, such failure to properly designate an affirmative defense is not necessarily fatal to the defense. See Tenn. R. Civ. P. 8.03 (“When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation.”). Moreover, at trial, Mother’s counsel argued that Mother’s failure to visit the Child during the Determinative Period was “not willful” because Mother had “tried to visit, and [Petitioners] ha[d] denied that each and every time.” Petitioners did not object to this argument. During her testimony, Mother explained that although she had attempted to contact the Child by telephone on numerous occasions, Petitioners had often refused to allow her to speak with the Child. In support, Mother provided a monthly calendar spanning October 2022 to February 2025. The calendar included, inter alia, Mother’s handwritten notes detailing her attempts to contact the Child by telephone or video call. Petitioners did not object to Mother’s testimony in this regard or to the entry of the calendar as an exhibit. In the context of an abandonment allegation, this Court has deemed lack of willfulness to have been tried by implied consent, pursuant to Tennessee Rule of Civil Procedure 15.02. See, e.g., In re Elijah F., No. M2022-00191-COA-R3-CV, 2022 WL 16859543, at *6 n.7 (Tenn. Ct. App. Nov. 10, 2022); In re Lauren F., No. W2020-01732- - 13 - COA-R3-PT, 2021 WL 5234712, at *8 (Tenn. Ct. App. Nov. 10, 2021). Even if we were to assume for purposes of argument that lack of willfulness was tried by consent, Mother still has failed to meet her burden. Regarding lack of willfulness, this Court has previously explained: Failure to visit or support a child is “willful” when a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so. Failure to visit or to support is not excused by another person’s conduct unless the conduct actually prevents the person with the obligation from performing his or her duty, or amounts to a significant restraint of or interference with the parent’s efforts to support or develop a relationship with the child. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (internal citations and footnotes omitted). Here, although the trial court determined that Mother had waived her opportunity to raise lack of willfulness as an affirmative defense, the court nonetheless addressed Mother’s claims in this regard in its analysis of the statutory ground of abandonment. Specifically, the court found: Mother admits that her last video chat with the child was on April 14, 2024. She claims to have made numerous attempts to speak with the child thereafter until February 20, 2025 and her requests were denied. However, the calendar supplied by Mother confirms a very small number of attempts at communicating with the child until March, 2024. Additionally, Mother’s calendar reflects that she planned to visit with the child in Tennessee in July, 2023 but she “failed due to financial shortcomings.” In October, 2023 she planned a trip to visit the child on October 24th but “was unable to visit due to lack of support.” At no point during the relevant four (4) month period did she make [any serious] effort whatsoever to visit with the child as reflected in her calendar. There was no proof that she tried to acquire a bus ticket or ask Petitioners to assist her in some way.