In Re Evella S.

06/24/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 5, 2021 Session
IN RE EVELLA S. ET AL.
Appeal from the Chancery Court for Warren County
No. 696-A Larry B. Stanley, Jr., Judge
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No. M2019-02075-COA-R3-PT
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Grandparents sought to terminate the parental rights of a mother and a father to their two
children on the statutory ground of abandonment. The trial court found clear and
convincing evidence that Mother had abandoned the children by failure to visit or support
them during the four months preceding the filing of the termination petition. The court
also found clear and convincing evidence that Father had abandoned the children by
exhibiting wanton disregard for their welfare. And the court ruled that termination of both
parents’ rights was in the children’s best interest. Because Mother proved that her failure
to visit was not willful and her support under the circumstances was not “token,” we reverse
the termination of Mother’s parental rights. But the record contains clear and convincing
evidence that Father abandoned the children by exhibiting wanton disregard for their
welfare and that termination is in the children’s best interests. So we affirm the termination
of Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
in Part and Affirmed in Part
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and J. STEVEN STAFFORD, P.J., W.S., joined.
Tammy H. Womack, McMinnville, Tennessee, for the appellant, Jesse S.
Billy K. Tollison, McMinnville, Tennessee, for the appellant, Jazmine S.
Mary Little Pirtle and Quentin Scott Horton, McMinnville, Tennessee, for the appellees,
Ellen W. and Tim W.
OPINION
I.
A.
Jesse S. (“Father”) and Jazmine S. (“Mother”) gave temporary custody of their two
children, Evella and Jesse Jr., to the maternal grandparents (“Grandparents”) on June 13,
2018. A few weeks later, Grandparents filed a petition in juvenile court seeking temporary
emergency custody of the children. In a sworn affidavit, they claimed that the children
lacked proper food, nutrition, medical care, and housing and were exposed to
methamphetamine while in the parents’ care. They also disclosed that Father was evading
arrest on drug charges.
On July 9, 2018, the Warren County Juvenile Court awarded Grandparents
temporary custody of the children. The court also issued an ex parte restraining order,
precluding the parents from “coming about the persons or places of the minor children
including [Grandparents] pending further orders of the court.”
While the juvenile court proceedings were ongoing, Grandparents filed a petition to
terminate parental rights in the Warren County Chancery Court. But the court dismissed
the petition on technical grounds.
Grandparents filed another petition to terminate on January 22, 2019. This petition
alleged that both parents had abandoned the children by failing to visit or provide support
for the children during the four months preceding the filing date. Father was incarcerated
when the petition was filed. At the outset of trial, Grandparents announced that they
intended to rely on abandonment by wanton disregard as an additional ground for
terminating Father’s parental rights. Father did not object.
After considering all the proof, the chancery court found that Grandparents had
established, by clear and convincing evidence, grounds for terminating the parental rights
of both parents. The court ruled that Mother had abandoned the children by willful failure
to support or visit them for the four months preceding the filing of the termination petition.
With respect to Father, the court ruled that he had abandoned the children by exhibiting
wanton disregard for their welfare prior to his incarceration. The court also concluded that
termination of parental rights was in the children’s best interest.
B.
At trial, Father admitted that he had been using illegal drugs “for a long time.” And
he avoided full-time employment, content to work the occasional “side job.” Any income
he earned was used to support his daily drug habit. When funds were short, he also sold
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illegal drugs. A few months after Evella was born, Father sold methamphetamine to an
undercover detective in front of the family’s home. A short time later, Mother and Father
abandoned the home and moved to Georgia for six months.
Grandparents were shocked at the horrid conditions they discovered when they
visited the home a few weeks later. They had a friend take photographs. The entire
residence was filthy. Unwashed dishes filled the kitchen sink. There was a dead rat on the
floor. Cleaning supplies, antifreeze, and rat poison were unsecured. Cigarette butts and
empty pill bottles littered the floor and the furniture. The bathroom sink was badly clogged.
Numerous items, such as clothes and toiletries, were piled in the floor and on the bed.
The parents acknowledged that they may have left the home “a little bit dirty.” But
they denied that the photographs accurately depicted their living conditions with four-
month-old Evella.
When the family returned from Georgia, their situation went from bad to worse.
They either lived with Father’s mother or in various hotel rooms. And Father began using
intravenous drugs, mostly heroin. In May 2018, Father contracted a serious infection at
his injection sites and was admitted to the hospital for nine days.
Mother asked Grandparents to take care of the children while Father was in the
hospital. Evella was then twenty months old, and Jesse Jr., almost six months. When
Grandmother arrived at the hotel, she found Evella in dirty, outgrown clothes. She had no
shoes. Jesse appeared to have a cigarette burn on his arm. And the family had no food,
formula, diapers, or wipes. Concerned about the children’s living conditions, Grandmother
contacted DCS.
A DCS investigator interviewed the parents shortly after Father was discharged.
The investigator found no evidence of illegal drug use at that time. Both parents passed a
urine drug screen. But she was concerned about the family’s lack of food. On her return
visit the next day, the family had acquired food for the children. So she took no further
action.
At this same time, a grand jury issued an indictment against Father for selling
methamphetamine. When the police officer came to execute the arrest warrant, he
discovered Father needed ongoing medical treatment. So the officer gave Father a two-
week reprieve.
To avoid arrest, Father fled to South Carolina, taking his family. Father later
admitted that he made a bad decision. They left with $400 and whatever personal
possessions they could fit in the car. They quickly ran out of money. As Mother explained,
“[n]othing happened the way we wanted it to” in South Carolina.
3
Mother called Grandmother again, this time asking her to keep the children just
“until I g[e]t on my feet.” When Grandparents arrived, they found the children, hot, dirty,
and hungry, sitting in the car. The parents had no diapers or wipes and only one jar of
moldy baby food. According to Grandmother, the few clothes and baby equipment the
parents provided were so filthy she had to throw them away.
Two days later, Grandmother took the children to Evella’s former pediatrician,
Dr. Amy Rogers. Evella had last been seen in early 2017 for her four-month visit. Now
almost two, Evella was behind on her immunizations and showed signs of developmental
delay. She spoke only a few words. She could not name colors or body parts. And she
was unfamiliar with basic items, such as cups and spoons. As for Jesse, he had a severe
diaper rash and needed multiple immunizations. He was also behind on his childhood
milestones. He could not roll over and had problems using his legs.
Dr. Rogers recommended speech therapy for Evella and both occupational and
physical therapy for Jesse. And she referred Jesse to several specialists for evaluation,
including a urologist. Because the children were significantly delayed, they were also
eligible for in-home therapy through Tennessee’s early intervention services.
A few weeks later, Grandparents sought custody of the children in juvenile court.
Grandmother told Mother about the juvenile court proceedings. But the parents did not
immediately return to Tennessee. Mother claimed that they lacked money for the return
trip. They were homeless and unemployed. While they made some money panhandling,
Father used those funds to buy methamphetamine.
The parents were officially served with copies of the juvenile court’s custody order
on August 21. At that point, Mother realized that “there [was] nothing I could do for [the
children] if I was out of state.” When they returned in early September, Father was
arrested. He remained in jail until his release on supervised probation on March 9, 2019.
With Father incarcerated, Mother concentrated on regaining custody of the children.
Grandparents questioned her interest in the children, pointing out that between June 13,
2018, and January 22, 2019, Mother only visited the children once. And her visit lasted
one hour.
Mother responded that she contacted Grandmother almost daily while she was in
South Carolina. She continued to reach out after her return to Tennessee. But
Grandparents denied her permission to visit. Grandmother even told her that “all this
harassment has been turned into the authorities and reported to my lawyer. I will text you
once a day on how the children are.”
4
Grandmother acknowledged that Mother asked to see the children “a few times” in
early September 2018. She explained that she denied Mother’s initial visit requests after
discovering that Mother had lied about Father’s whereabouts.
According to Mother, after the text claiming harassment, she turned to the juvenile
court for relief. She found a job and hired an attorney with her initial earnings. And in
early November, her attorney moved to set visitation. Grandparents agreed to one visit
provided that Mother passed a hair follicle drug test. Mother complied with their request.
She maintained that her December 8 visit went well, and she was hopeful that the juvenile
court would award more visitation at the upcoming hearing. But her efforts to visit her
children were stymied when Grandparents filed their initial termination petition. The
juvenile court continued her motion, pending the outcome of the termination proceeding.
With few available options, Mother sent two written visitation requests to
Grandparents through her attorney—one on December 20 and one on January 14. But
Grandparents only allowed her a telephone call. And she sent multiple text messages
seeking updates on the children.
Grandparents also complained that Mother’s child support payments were too little
and too late. During the four months preceding the termination petition, she only sent two
payments, each for $100.
Mother explained that she was unemployed until October 1, 2018. And she did not
receive her first paycheck for three weeks. She used her initial earnings to hire an attorney
and lease an apartment. But, beginning in December, she sent Grandparents $100 from
each paycheck.
II.
A parent has a fundamental right, based in both the federal and state constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547
(Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at 250.
Our Legislature has identified those circumstances in which the State’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights. See Tenn.
Code Ann. § 36-1-113(g) (Supp. 2020).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
Parties seeking termination of parental rights must first prove the existence of at least one
of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-113(g).
Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for termination are
5
shown, they then must prove that terminating parental rights is in the child’s best interest.
Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest 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)).
This heightened burden of proof serves “to minimize the possibility of erroneous decisions
that result in an unwarranted termination of or interference with these rights.” Id. “Clear
and convincing evidence” leaves “no serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896,
901 n.3 (Tenn. 1992). 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.
We review the trial court’s findings of fact “de novo on the record, with a
presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 13(d).
We then “make [our] own determination regarding whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, provide clear and
convincing evidence that supports all the elements of the termination claim.” In re Bernard
T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de novo with no
presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).
A.
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). Statute defines “abandonment” in
multiple ways. Id. § 36-1-102(1)(A) (Supp. 2020). The court concluded that Mother had
abandoned the children under one definition and that Father had abandoned the children
under a separate definition applicable to incarcerated parents.
1. Failure to Visit
Under the first definition, a parent is deemed to have abandoned a child when, “[f]or
a period of four (4) consecutive months immediately preceding the filing of a [petition to
terminate parental rights], the parent . . . either ha[s] failed to visit or ha[s] failed to support
or ha[s] failed to make reasonable payments toward the support of the child.” Id. § 36-1-
102(1)(A)(i). Our primary focus is on Mother’s conduct between September 22, 2018, and
January 21, 2019, the day before the petition was filed. See In re Jacob C.H., No. E2013-
00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014).
6
In concluding that Mother had abandoned her children by failure to visit, the trial
court implicitly found that Mother’s December 8 visit was token. See Tenn. Code Ann.
§ 36-1-102(1)(E) (defining “failed to visit” as including the failure to “engage in more than
token visitation”). Token visits are “nothing more than perfunctory” or are so infrequent
or short “as to merely establish minimal or insubstantial contact with the child.” Id. § 36-
1-102(1)(C). Whether a visit is token “under the circumstances of the individual case” is
a particularly fact-intensive inquiry. See id. § 36-1-102(1)(C); In re Keri C., 384 S.W.3d
731, 748 (Tenn. Ct. App. 2010). We look at the “frequency, duration, and quality of the
visits that occurred.” In re Keri C., 384 S.W.3d at 750. We also consider any evidence of
“the parent’s conduct and the relationship between the child and the parent up to this point.”
Id. at 749.
Mother does not claim that her visitation during the relevant period was more than
token. Instead, she argues that her failure to visit was not willful.1 As our supreme court
has explained, “a parent who attempt[s] to visit and maintain relations with [her] child, but
[i]s thwarted by the acts of others and circumstances beyond [her] control, [does] not
willfully abandon [her] child.” In re Adoption of A.M.H., 215 S.W.3d at 810. The juvenile
court’s restraining order precluded Mother from “coming about” the children or
Grandparents “pending further orders of the court.” The order, issued on July 9, 2018, was
never modified or rescinded. Mother risked court sanctions if she intentionally violated
the order. So she reached out to Grandparents, who repeatedly denied her visit requests.
And she actively pursued her legal remedies. Grandparents thwarted her juvenile court
efforts as well by filing their initial termination petition.
Grandparents complain that Mother could have done more. We are not sure what
that might have been, but Mother did enough to establish that her failure to visit was not
willful. See Tenn. Code Ann. § 36-1-102(1)(I); cf. In re Drako J.M., No. M2012-01404-
COA-R3-PT, 2012 WL 6634335, at *8 (Tenn. Ct. App. Dec. 18, 2012) (holding failure to
engage in more than token visitation was not willful when grandparents took action to limit
mother’s access to the children); In re C.M.C., No. E2005-00328-COA-R3-PT, 2005 WL
1827855, at *6 (Tenn. Ct. App. Aug. 3, 2005) (“In light of the trial court’s no contact order
. . . , we can hardly agree that Mother willfully failed to visit her children . . . .”).
2. Failure to Support
In concluding that Mother had abandoned her children by failure to support, the trial
court explicitly found that Mother’s two $100 payments during the relevant period were
token. See Tenn. Code Ann. § 36-1-102(1)(D). Support is token if it is “insignificant given
the parent’s means.” Id. § 36-1-102(1)(B). A parent’s means includes “both income and
available resources for the payment of debt.” In re Adoption of Angela E., 402 S.W.3d
1Mother raised lack of willfulness as an affirmative defense in her answer. See Tenn. Code Ann.
§ 36-1-102(1)(I).
7
636, 641 (Tenn. 2013); In re L.J., No. E2014-02042-COA-R3-PT, 2015 WL 5121111, at
*6 (Tenn. Ct. App. Aug. 31, 2015) (noting that living expenses may be considered when
analyzing a parent’s means).
The evidence preponderates against the court’s finding that Mother made only token
support payments. According to her affidavit of income and expenses, Mother earned $800
biweekly. And most of that income was used to pay her monthly expenses, such as rent,
utilities, transportation, and food. On cross-examination, Grandparents established some
discrepancies in Mother’s expense calculations. Still, Mother had only limited resources
during the relevant time period. She was homeless and destitute in September. And her
affidavit did not include some of the additional costs she incurred during that time period,
such as the security deposit, utility hookups, and other fees outlined in her lease. Nor did
it include the various items she needed to buy to establish her own household.
Again Grandparents complain that Mother could have done more. But Mother’s
payments during the relevant period were not insignificant given her limited means. See
In re Adoption of Alexander M.S.F., No. M2012-02706-COA-R3-PT, 2013 WL 4677886,
at *6 (Tenn. Ct. App. Aug. 27, 2013) (finding father’s payment of 1/3 the required amount
not token under the circumstances). We conclude that the evidence is less than clear and
convincing that Mother abandoned her children by failure to support.
3. Wanton Disregard
The court found Father had abandoned the children under a separate definition
applicable to incarcerated parents. See Tenn. Code Ann. § 36-1-102(1)(A)(iv). At the time
this petition to terminate was filed,2 the incarcerated or formerly incarcerated parent was
deemed to have abandoned a child if he:
either ha[d] failed to visit or ha[d] failed to support or ha[d] failed to make
reasonable payments toward the support of the child for four (4) consecutive
months immediately preceding such parent’s . . . incarceration, or [the
parent] . . . ha[d] engaged in conduct prior to incarceration that exhibit[ed] a
wanton disregard for the welfare of the child.
Id. § 36-1-102(1)(A)(iv)(a), (c).
The trial court focused on the second half of this definition of abandonment, finding
that Father had “engaged in conduct prior to incarceration that clearly showed a wanton
2
The Legislature amended this definition of “abandonment” in 2020. 2020 Tenn. Pub. Acts 43.
We apply the version of the statute in effect at the time Grandparents filed this petition to terminate. See
In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).
8
disregard for the welfare of his children.” Father argues that this ground for termination
was never pled. And he lacked sufficient notice that his parental rights could be terminated
on this basis.
a. Notice and Implied Consent
Parental rights can only be terminated on grounds that were alleged in the
termination petition. See In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). Notice
is “a fundamental component of due process.” In re W.B., M2004-00999-COA-R3-PT,
2005 WL 1021618, at *13 (Tenn. Ct. App. Apr. 29, 2005) (citing Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950); State v. Pearson, 858 S.W.2d 879, 884 (Tenn.
1993)). In the context of parental termination, due process requires that the parent be
notified of the alleged grounds for termination. In re Jeremiah N., No. E2016-00371-COA-
R3-PT, 2017 WL 1655612, at *8 (Tenn. Ct. App. May 2, 2017).
We agree that this ground for termination was not pled. “Abandonment by wanton
disregard is a distinct ground for termination of parental rights.” In re Johnny K.F., No.
E2012-02700-COA-R3-PT, 2013 WL 4679269, at *7 (Tenn. Ct. App. Aug. 27, 2013). The
termination petition alleged only that Father had abandoned the children by willful failure
to visit or support them before the petition was filed. The petition never alleged that Father
was incarcerated, much less that his pre-incarceration conduct evidenced wanton disregard
for the children’s welfare. See In re Landon H., No. M2011-00737-COA-R3-PT, 2012
WL 113659, at *6 (Tenn. Ct. App. Jan. 11, 2012) (concluding that the petition failed to
give father notice that his parental rights could be terminated based on his pre-incarceration
conduct).
Even so, an unpled ground for termination may be tried by implied consent. In re
Adoption of Angela E., 402 S.W.3d at 640 n.3; In re Alysia S., 460 S.W.3d 536, 564 (Tenn.
Ct. App. 2014). We will find implied consent when a parent “knew or should reasonably
have known of the evidence relating to the [unpled ground], did not object to this evidence,
and was not prejudiced thereby.” Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888,
890 (Tenn. 1980).
We conclude that the ground of abandonment by wanton disregard was tried by
implied consent. Father did not object when Grandparents announced that they were
proceeding against Father on this ground. See In re Anari E., No. M2020-01051-COA-
R3-PT, 2021 WL 1828500, at *14 (Tenn. Ct. App. May 7, 2021) (finding implied consent
when father did not object to petitioner’s stated intent to proceed on unpled grounds); In re
Jeremiah N., 2017 WL 1655612, at *10 (finding unpled ground was tried by implied
consent when father had notice “from at least the opening statement”). Nor did he voice
any objections when Grandparents presented evidence in support of this ground. See In re
Allyson P., No. E2019-01606-COA-R3-PT, 2020 WL 3317318, at *9 (Tenn. Ct. App. June
17, 2020) (noting that “at no point during the trial did Mother object to any testimony or
9
other proof offered with respect to [the unpled ground]”). And Grandparents’ proof
consisted of much more than a simple account of Father’s failure to visit or support the
children. Father’s belated objection during closing argument was simply too late. See In
re Adoption of E.N.R., 42 S.W.3d 26, 31-32 (Tenn. 2001).
b. Evidence of Wanton Disregard
Having determined that abandonment by wanton disregard was tried by implied
consent, we consider whether the evidence supports a finding of wanton disregard by
Father. “Wanton disregard” is not a defined term. “[A]ctions that our courts have
commonly found to constitute wanton disregard reflect a ‘me first’ attitude involving the
intentional performance of illegal or unreasonable acts and indifference to the
consequences of the actions for the child.” In re Anthony R., No. M2014-01753-COA-R3-
PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015). “[P]robation violations,
repeated incarceration, criminal behavior, substance abuse, and the failure to provide
adequate support or supervision for a child can, alone or in combination, constitute conduct
that exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d
838, 867-68 (Tenn. Ct. App. 2005).
Clear and convincing evidence supports the court’s finding that Father’s pre-
incarceration conduct exhibited wanton disregard for the children’s welfare. Father
consistently placed his own welfare above that of his children. He exposed his children to
illegal drugs. He sold methamphetamine out of the family’s home when Evella was a baby.
By the time he was incarcerated, he had been unemployed for over two years. Mother
confessed that she did not know why Father chose not to work when he knew the family
needed money. Any income he earned, legal or otherwise, went to feed his drug habit, not
his children. According to Grandmother, he also traded the family’s food stamps for
cigarettes. See In re Kandace D., No. E2017-00830-COA-R3-PT, 2018 WL 324452, at
*4-5 (Tenn. Ct. App. Jan. 8, 2018) (concluding that father showed wanton disregard for his
child by exposing the child to poor living conditions and malnutrition).
And, as a “textbook example of wanton disregard,” Father prioritized his own
freedom over the children’s welfare when he took the family to South Carolina. See In re
Jaydin A., No. M2018-02145-COA-R3-PT, 2019 WL 6770494, at *4 (Tenn. Ct. App. Dec.
12, 2019) (finding wanton disregard in part because parent “put his desire to escape justice
for his crimes ahead of his duty to parent his child”). He had no job, no housing, and barely
enough money for food. In less than a week, the family was destitute. The children had
nothing to eat but one jar of moldy food.
B.
Because we agree that clear and convincing evidence supports at least one ground
for termination of Father’s parental rights to both children, we next consider whether
10
termination of Father’s parental rights is in the children’s best interests. Tenn. Code Ann.
§ 36-1-113(c)(2). Tennessee Code Annotated § 36-1-113(i) lists nine factors that courts
must consider in making a best interest analysis. The “factors are illustrative, not exclusive,
and any party to the termination proceeding is free to offer proof of any other factor relevant
to the best interest analysis.” In re Gabriella D., 531 S.W.3d 662, 681 (Tenn. 2017). In
reaching a decision, “the court must consider all of the statutory factors, as well as any
other relevant proof any party offers.” Id. at 682.
The focus of this analysis is on what is best for the child, not what is best for the
parent. In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005). Additionally, the analysis
considers “the impact on the child of a decision that has the legal effect of reducing the
parent to the role of a complete stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). Although “[f]acts relevant to a
child’s best interests need only be established by a preponderance of the evidence, . . . the
combined weight of the proven facts [must] amount[] to clear and convincing evidence that
termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d 507, 535
(Tenn. 2016).
After considering the statutory factors, the juvenile court determined that the
termination of parental rights was in the children’s best interest. Father takes issue with
the trial court’s analysis of factors one, three, four, five, six, and nine. We agree that the
evidence preponderates against some of the trial court’s findings. Still, we reach the same
conclusion as the trial court.
The first statutory factor focuses on whether the parent “has made such an
adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent.” Tenn. Code Ann. § 36-1-113(i)(1). Father
contends that the trial court ignored the recent changes in his life. Since Father was
released from jail, he had secured employment, housing, and transportation. And as a
condition of his probation, he attended Narcotics Anonymous meetings and submitted to
regular drug screens. Father had made a significant adjustment. So factor one did favor
Father.
The second factor considers the parent’s potential for lasting change. Id. § 36-1-
113(i)(2). Like the trial court, we are not convinced that Father had made a lasting change.
Given his history, seven months was too short a time period to determine whether this
change will last. This factor favors termination.
The third factor looks at whether the parent has maintained regular contact with the
child. See id. § 36-1-113(i)(3). Father blamed Grandparents for his lack of contact with
the children. But he never sent the children notes or cards while he was in jail. And he
waited almost two weeks after his release to reach out to Grandparents. After a year
without any contact, he had three one-hour visits. This factor favors termination.
11
The fourth factor addresses the quality of the parent’s relationship with the child,
whether it is “meaningful.” Id. § 36-1-113(i)(4). The evidence does not preponderate
against the trial court’s finding that the children do not have a meaningful relationship with
Father. Father relies on evidence of his previous relationship with the children. But any
relationship Father might have had in the past is no longer evident. Evella calls Father
“him” and describes him in negative terms. Jesse Jr. does not even know who he is. And
while Father claims his visits with the children went well, Grandparents disagreed. Evella,
in particular, has had a strong adverse reaction to Father’s visits. The trial court evidently
believed Grandparents. See Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733-34
(Tenn. 2002) (“[F]indings with respect to credibility and the weight of the evidence . . .
may be inferred from the manner in which the trial court resolves conflicts in the testimony
and decides the case.”). We find no basis in this record to overturn that credibility finding.
See Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
The evidence also does not preponderate against the court’s finding that the fifth
factor favors termination. This factor considers the effect a change in caregivers would
have on the child’s emotional, psychological, and medical condition. Tenn. Code Ann.
§ 36-1-113(i)(5). The children have a strong bond with Grandparents. For over a year,
Grandparents have provided them with a safe, stable home. The children have made
tremendous strides in development. A change in caregivers would have an adverse impact
on the children’s emotional and psychological development.
The sixth factor asks whether the parent or a person residing with the parent “ha[d]
shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the
child, or another child or adult in the family or household.” Id. § 36-1-113(i)(6). The
evidence does not preponderate against the trial court’s finding that these children were
neglected. Dr. Rogers, the children’s pediatrician, opined that the children had been
neglected to the point of abuse. Father questions Dr. Rogers’s credibility. But even if we
discount Dr. Rogers’s testimony, we find abundant evidence in this record to support the
court’s neglect finding. The children lacked adequate food and supplies. They missed
critical immunizations and medical examinations. As a result, the children needed multiple
types of therapy to address significant areas of delayed development.
The seventh and eighth factors focus on the parent’s ability to be a safe and stable
caregiver. The seventh factor looks at the parent’s home environment and whether the use
of alcohol or other controlled substances would prevent the parent from properly caring for
the child. Id. § 36-1-113(i)(7). The eighth factor evaluates whether the parent’s mental or
emotional status precludes proper parenting. Id. § 36-1-113(i)(8). There was no evidence
that Father’s current home environment is unsafe. And his recent drug screens have been
negative. But Father has shown remarkably poor judgment as a parent. While he has
expressed remorse for his past actions, this record lacks evidence that Father has the ability
to parent these children.
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The ninth factor examines the parents’ child support history. Id. § 36-1-113(i)(9).
Father concedes he did not made payments consistent with the child support guidelines.
But he points out he began making payments as soon as he was financially able to do so.
Father’s recent changes are commendable. But our focus is on what is best for the
children. In re Marr, 194 S.W.3d at 499. The combined weight of the proven facts
amounts to clear and convincing evidence that termination of Father’s parental rights is in
each child’s best interest. For over a year, Grandparents have provided the children with
food, medical care, and stability. The children are thriving in their current environment.
They have no relationship with Father. Evella appears to be afraid of him. It would be
detrimental to both children to remove them from the only stable home they have ever
known.
III.
Mother proved that her failure to visit her children during the four months preceding
the filing of the petition to terminate parental rights was not willful. And her support of
the children during the same period was not “token” given her means. So we reverse the
termination of Mother’s parental rights. But the record contains clear and convincing
evidence that Father abandoned the children by exhibiting wanton disregard for their
welfare. The record also contains clear and convincing evidence that termination of
Father’s parental rights is in the children’s best interest. So we affirm the termination of
Father’s parental rights.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
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