In the Matter of: Madison K.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 25, 2010
IN THE MATTER OF: MADISON K.
Direct Appeal from the Juvenile Court for Madison County
No. 47-42, 980 Christy R. Little, Judge
No. W2010-00183-COA-R3-PT - Filed September 27, 2010
This is a termination of parental rights case. Father/Appellant appeals the trial court’s
termination of his parental rights to the minor child on grounds of: (1) abandonment by
willful failure to support and willful failure to visit, as defined at Tenn. Code Ann. § 36-1-
102(1)(A)(i); and (2) persistence of conditions as set out at Tenn. Code Ann. §36-1-
113(g)(3). Finding that there is clear and convincing evidence in the record to support these
grounds, as well as clear and convincing evidence that termination of Appellant’s parental
rights is in the best interests of this child, we affirm.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Juvenile Court Affirmed
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Melissa A. Downing, Jackson, Tennessee, for the appellant, Chris K.
Lanis L. Karnes, Jackson, Tennessee, Guardian Ad Litem.
OPINION
On March 25, 2008, the Tennessee Department of Children’s Services (“DCS”) filed
a petition, alleging that the minor child at issue in this case, Madison K. (d.o.b. March 25,
2007) was dependent and neglected. Specifically, DCS averred that the child’s father, Chris
K. (“Appellant”), was unable to provide a suitable home for the child due to his unstable
living situation and that Mr. K. had an active warrant against him. At the dependency and
neglect hearing, an attorney was appointed for Mr. K. Lanis L. Karnes (“Appellee”) was
appointed guardian ad litem for the child. At this hearing, the parties stipulated to an
adjudication of dependency and neglect, and an order was entered on June 3, 2008. This
order indicated the agreement that Mr. K.’s residence was not suitable for a young child and
that Mr. K. had been served with an eviction notice. The child was placed in the temporary
custody of the maternal grandmother and step-grandfather. Mr. K. was awarded visitation
with the child, which was required to take place at CASA.
A review hearing was held on July 1, 2008. At that hearing, temporary custody of the
child was changed from the maternal grandmother and step-grandfather to foster parents Rita
and Wilmer T. Mr. K. was not present at this hearing, although the record indicates that
notice was sent to his last known address. The court further ordered that Mr. K.’s visitation
would be suspended until Mr. K. showed some compliance with the permanency plan. The
court also indicated that, before visitation could resume, Mr. K. would have to submit to, and
pass, a drug test. There is no indication in the record that Mr. K. complied with these
mandates.
On March 23, 2009, Ms. Karnes, the guardian ad litem, filed a petition for termination
of Mr. K.’s parental rights.1 As grounds, Ms. Karnes asserted: (1) abandonment pursuant to
Tenn. Code Ann.§ 36-1-102(1)(A)(i), (ii); (2) failure to substantially comply with the
requirements of the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and (3)
persistence of the conditions that led to the removal of the child, pursuant to Tenn. Code.
Ann. § 36-1-113(g)(3).2
An initial hearing was held on June 29, 2009. At that time, a new attorney was
substituted as counsel for Mr. K. On July 13, 2009, Mr. K.’s attorney filed an answer to the
petition to terminate parental rights. The petition to terminate parental rights was tried to the
court on September 6, 2009. An order terminating Mr. K.’s parental rights was entered on
December 9, 2009. The order provides, in pertinent part:
Upon proper notice, parties, testimony given and the
entire record as a whole, upon the hearing of this cause, the
Court finds on the basis of clear and convincing evidence:
* * *
1
Tenn. Code Ann. §36-1-113(b) specifically provides that the guardian ad litem has standing to file
a petition to terminate parental rights.
2
Although Ms. Karnes alleged numerous grounds for termination of Mr. K’s parental rights, we note
that clear and convincing evidence of only one of the statutory grounds is sufficient to terminate parental
rights. Tenn. Code Ann. § 36-1-113(c).
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12. The following grounds have been proven by clear and
convincing evidence:
a. As set forth in T.C.A. § 36-1-11[3](g)(1), abandonment [] of
[the minor child] has occurred in that for a period of four (4)
consecutive months immediately preceding the filing of this
termination proceeding, Mr. K. has willfully failed to visit and
willfully failed to support or make reasonable payments toward
the support of [the minor child]. In the four month period prior
to the filing of the termination petition, Mr. K. did not visit the
child, did not call the child, did not send any letters, cards, or
gifts to the child, and did not provide any financial support for
the child. The various court orders mention child support, but
Mr. K. has paid no support although he stated he has $5,000.00
saved.
b. As set forth in T.C.A. § 36-1-113(g)(3), the child has been
removed from the home of the Respondent by Order of Court
for a period of greater than six (6) months and the conditions
which led to the child’s removal, or other conditions which in all
reasonable probability would cause [the minor child] to be
subjected to further abuse or neglect, and prevent her safe return
to the care of the Respondent[] still exist; there is little
likelihood that these conditions will be remedied at an early date
so that [the minor child] may be safely returned to the
Respondent[] in the near future and the continuation of the
parent and child relationship greatly diminishes [the minor
child’s] chances of successful integration into a safe, stable and
permanent home. Mr. K. has shown no pattern of stability
although he now has a job. Mr. K. does not have his own home.
The paternal grandfather said that the child was “welcome to
visit” but did not say welcome to live at his home where the
father periodically lives. The maternal grandmother testified
that she called the paternal grandfather regarding assistance with
the child, and he stated that the minor child was not welcome
there. No early date has been provided as to when Mr. K. will
have a suitable home, and the child cannot wait forever for
permanency.
* * *
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14. Termination of all Respondent Father’s parental rights is in
the best interests of [the minor child]:
a. The Respondent Father has failed to make such an
adjustment of circumstances, conduct or conditions as to make
it in the child’s best interests to return to [his] home in the
future.
b. The child is medically fragile, being diagnosed with food
allergies and fetal alcohol syndrome....
* * *
e. The child has bonded with the [foster family].
f. [The minor child] has resided consistently with the [foster
family] since she was 1 year of age, and for a period greater than
six (6) months.
g. [The minor child] knows [Mr. T. and Mrs. T.] to be her
mother and father.
h. [Mr. and Mrs. T.] agree to allow [the minor child] to see her
siblings.3
i. [Mr. and Mrs. T.] have marital and financial stability and
health and dental insurance. [The child’s] allergies are regularly
monitored. Any medical bills which insurance did not cover, the
[foster family] have paid. They are properly providing for [the
child’s] education....
j. Termination of all Respondent Father’s parental rights is in
the best interests of [the minor child]. Mr. K. has failed to effect
a lasting adjustment after reasonable efforts by available social
services agencies for such duration of time that lasting
adjustment does not reasonably appear possible.
3
The child’s mother, Amy K., had three children with Mr. K. Two of the children are not involved
in the instant appeal.
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k. Termination of all Respondent Father’s parental rights is in
the best interests of [the minor child]. Mr. K. has not
maintained regular visitation or other contact with the child.
Mr. K., by his own admission, has not seen [the minor child] for
one and a half years.
l. Termination of all Respondent Father’s parental rights is in
the best interests of [the minor child]. A meaningful
relationship has not been established between Mr. K. and [the
child].
m. Termination of all Respondent Father’s parental rights is in
the best interests of [the minor child]. A change of caretakers
and physical environment is likely to have a negative effect on
[the minor child’s] emotional, psychological and medical
condition.
n. Termination of all Respondent Father’s parental rights is in
the best interests of [the minor child]. The physical environment
of Mr. K.’s home is not healthy or safe.
In addition to the foregoing findings concerning the grounds for termination and the
best interests of the minor child, the trial court also made specific findings concerning the
credibility of the witnesses:
p. The Court finds the testimony of the witnesses credible
except that of Mr. K. and the paternal grandfather.
q. The Court finds that the father and paternal grandfather
discussed the case and the testimony during the lunch break and
they had similar testimony and used very similar language about
certain issues.
Mr. K. appeals, raising two issues for review as stated in his brief:
1. Whether the trial court’s finding of statutory grounds for
termination of the Appellant’s parental rights is supported by
clear and convincing evidence.
2. Whether termination of parental rights is in the best interests
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of the child.4
Under both the United States and Tennessee Constitutions, a parent has a fundamental
right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.1996). Thus, the state
may interfere with parental rights only if there is a compelling state interest. Nash-Putnam,
921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination
statutes identify “those situations in which the state's interests in the welfare of a child
justifies interference with a parent's constitutional rights by setting forth grounds on which
termination proceedings can be brought.” In re W.B., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing
Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove
both the existence of one of the statutory grounds for termination and that termination is in
the child's best interests:
(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.
Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003); In re
Valentine, 79 S.W.3d 539, 546 (Tenn.2002).
Because of the fundamental nature of the parent's rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination
and the best interests inquiry must be established by clear and convincing evidence. Tenn.
Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing
evidence “establishes that the truth of the facts asserted is highly probable ... and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App.2004). Such evidence
“produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts
sought to be established.” Id. at 653.
In light of the heightened standard of proof in termination of parental rights cases, a
4
During the pendency of these proceedings, the child’s mother, Amy K., voluntarily surrendered
her parental rights to [Mr. and Mrs. T.]. The mother is not a party to this appeal.
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reviewing court must modify the customary standard of review set as forth in Tenn. R. App.
P. 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002). When the
resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge
who has had the opportunity to observe the witnesses and their manner and demeanor while
testifying is in a far better position than this Court to decide those issues. See McCaleb v.
Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker, 957 S.W.2d 834,
837 (Tenn. Ct. App.1997). The weight, faith, and credit to be given to any witness' testimony
lies in the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959
(Tenn.1997).
Grounds for Termination of Parental Rights
The trial court terminated Mr. K.’s parental rights pursuant to Tenn. Code Ann. § 36-
1-113(g), upon a finding, by clear and convincing evidence, of the following grounds: (1)
abandonment by willful failure to support and willful failure to visit as defined at Tenn. Code
Ann. § 36-1-102(1)(A)(i); and (2) persistence of conditions. We will examine each of these
grounds to determine whether, in fact, clear and convincing evidence exists in the record to
support the trial court’s findings.
Abandonment
Tenn. Code. Ann. § 36-1-113(g) provides, in relevant part, that:
(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this subsection.
The following grounds are cumulative and non-exclusive, 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 term “abandonment,” as used in the termination of parental rights statutes, is defined at
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Tenn. Code Ann. § 36-1-102(1)(A). This statute provides, in relevant part, as follows:
(1)(A) For purposes of terminating the parental or guardian
rights of parent(s) or guardian(s) of a child to that child in order
to make that child available for adoption, “abandonment” means
that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the
parental rights of the parent(s) or guardian(s) of the child who
is the subject of the petition for termination of parental rights or
adoption, that the parent(s) or guardian(s) either have willfully
failed to visit or have willfully failed to support or have willfully
failed to make reasonable payments toward the support of the
child;
Abandonment by willful failure to visit
The hearing on the petition to terminate Mr. K.’s parental rights was held on October
6, 2009. At that time Mr. K. admitted that he had not seen the child since March of 2008.
The maternal grandmother testified that, during the time that the child lived with her
(approximately March, 2008 until July, 2008), Mr. K. saw the child only twice–once when
he accompanied the child’s mother to the grandmother’s house for a brief visit, and once
when the grandmother invited Mr. K. to eat with them for the child’s birthday. The foster
mom, Rita T., testified that Mr. K. had made no contact whatsoever with her since the child
came into the her custody in approximately July, 2008.
Although Mr. K. excuses his lack of contact with the child by testifying that the
grandmother and Rita T. denied him access to the child, there is no evidence in the record
to support this allegation. Moreover, Mr. K. testified that he was aware that he had a court-
appointed attorney, whom he could contact at any time, and that he did not attempt to contact
his attorney concerning any visitation problems. While the child was in the grandmother’s
custody, Mr. K. apparently petitioned, and was granted, visitation through CASA. However,
according to Joyce Williams, the CASA case manager, in the four months preceding the
filing of the petition to terminate parental rights, CASA had no contact from Mr. K. Despite
Mr. K.’s protestations that he was given the “run around” by the various social agencies, the
preponderance of the evidence weighs against his assertion. Rather, it appears that Mr. K.
took no proactive steps to implement his visitation. Although he freely admits that he knew
that he could avail himself of the services of his attorney, the courts, and the social agencies,
the record indicates that he did not do so. From the totality of the circumstances, we
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conclude that there is clear and convincing evidence in the record to support the trial court’s
finding of abandonment by willful failure to visit.
Abandonment by willful failure to support
From our review of the record, it is clear that one of the primary concerns with Mr.
K.’s ability to care for this child is his inability to hold a job. At the time of the hearing in
this case, Mr. K. testified that he had been able to maintain a position at Ceco Doors for
“probably about five months.” Mr. K. further testified that he was “making $9.50 to $9.75
an hour,” and admitted that he was “making enough to support [himself] and [his] daughter.”
In fact, Mr. K. testified that he had been able to save approximately $5,000. Despite the fact
that Mr. K. has allegedly been employed for five months, has been working “40 hours a week
plus overtime,” at a rate of $9.50 to $9.75 per hour, and has managed to save $5,000, there
is no indication in the record that Mr. K. has paid any support whatsoever for this child.
Although he testified that he had “offered” to purchase Christmas presents, and to support
the child, the grandmother testified that, at most, Mr. K. had bought “one package of
diapers.” Rita T.’s testimony is similar. She states that, since the child came into her
custody, Mr. K. has paid nothing toward her care and support; he has sent no gifts, and has
not made contact with her concerning any needs the child might have.
Mr. K. tries to negate the fact that he has not supported his child by arguing that he
was not aware of any court-ordered obligation to do so. He protests that he would have been
glad to support the child if he knew how to get the money to her; yet, he has made no steps
toward this end. Regardless, it is a well-settled legal maxim that the parents of a child are
liable for that child’s support and maintenance. This is true regardless of whether there is
a court order on support. This is true regardless of whether another party states that the
support is not welcome or needed. If a parent has the means to support the child, then the
parent has the duty to do so. See, e.g., Smith v. Gore, 728 S.W.2d 738, 750 (Tenn. 1987);
C.J.H. v. A.K.G., No. M2001-01234-COA-R3-JV, 2002 WL 1827660, *3-4 (Tenn. Ct. App.
Aug. 9, 2002).
It appears that Mr. K. had the means to support this child. However, despite having
the ability to support, the record reveals that Mr. K. made no effort to do so. From the
totality of the circumstances, we conclude that there is clear and convincing evidence in the
record that, despite having the means to support this child, Mr. K. willfully abandoned her
by failing to do so.
Persistence of Conditions
Tenn. Code Ann. § 36-1-113(g)(3) provides, in pertinent part:
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(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this subsection.
The following grounds are cumulative and non-exclusive, so
that listing conditions, acts or omissions in one ground does not
prevent them from coming within another ground:
* * *
(3) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child's safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned
to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child's chances of early
integration into a safe, stable and permanent home;
The order, finding the child to be dependent and neglected, was entered on June 3,
2008. There is no dispute in the record that this order was reached by agreement of the
parties. From our review of the record, and from the DCS records, and the testimony of DCS
case worker, Marilyn McCloskey, it appears that the conditions that led to the child’s
removal from Mr. K.’s custody were: (1) lack of consistent employment, and (2) lack of
consistent, safe, and clean housing.
There is no dispute in the record that Mr. K. has held myriad jobs in a relevantly short
time period. When asked to explain his lack of consistency in the job market, Mr. K. blames
Amy K., her mother, and his bosses. At no point does he take any responsibility for his
numerous terminations.
At the time of the hearing, Mr. K. testified that he had been employed by Ceco Door
Company for approximately five months. However, from our reading of the record, it
appears that this is a temporary job, procured through a temporary staffing service. Although
we applaud Mr. K.’s efforts to stay on this job, in light of his previous employment history,
it would be remiss for us to conclude that a five-month period of employment indicates a
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significant change. There is simply not enough in this record to conclude that Mr. K. has
shown the ability not only to get a job, but also to keep that job for any significant period of
time.
Concerning housing, the child’s mother, Amy K., testified that she and Mr. K. had
been together since 2004, had married in 2006, and had separated in 2008. At the time of
the hearing, Amy K. was still married to Mr. K., although both concede that the marriage is
at an impasse. Although both expressed a desire to divorce, both cite financial issues as the
reason for delaying such proceedings. At any rate, Ms. K. testified that, during the time that
she and Mr. K. were together, they had lived in no less than ten locations. She testified that
they were forced to move each time by eviction, or by immediate threat of eviction. In fact,
Ms. K. stated that, for a few months, they were actually homeless, and were forced to live
in their vehicle. Mr. K. admits that the couple moved many times, although he blames Ms.
K.’s lack of housekeeping skills for the tenancy problems.
In photos taken by the CASA volunteer, Joyce Williams, and made part of the record,
it appears that, when the K.s were able to procure housing, they were unable to keep the
residence clean and safe for a baby. In Ms. Williams’ photos, the house appears in disarray,
with mounds of clothing on the floor. Dirty dishes and spoiled food are seen in the kitchen.
There are dirty dishes and used ashtrays scattered throughout the house. There are several
cats in the photos. Ms. Williams testified that the cats had urinated on the clothing and rugs,
and that the smell in the house made it untenable.
At the time of the hearing, Mr. K. was living with his father and step-mother in his
step-mother’s home. Although the social workers indicated that this house is clean and
otherwise suitable for a child, the problem is that it is not owned or rented by Mr. K. In fact,
the record indicates that Mr. K. makes no significant contribution to the household budget.
In the absence of his father and step-mother’s largess, there is no indication that Mr. K.
would be able to provide a suitable home for this child. Moreover, although Mr. K.’s father
testified that the child would be welcome in the home, there is no indication that the welcome
would extend beyond an occasional visit.
Given the evidence of the previous nomadic lifestyle and, frankly, unkempt nature of
those living conditions, this Court would be remiss to return the child to a situation that is
still not stable–a situation where the child’s father is the one being supported. During the
pendency of these proceedings, Mr. K. has had sufficient time to prove that he can provide
adequate housing for this child, but he has not taken steps to do so. Concerning reasonable
efforts on the part of social agencies, Mr. K.’s transient lifestyle has made it difficult, if not
impossible, for the agencies to locate Mr. K. According to the testimony, Mr. K. has been
provided an attorney, and has been asked to participate with the agencies in the reunification
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of the family. DCS and CASA have made efforts to help Mr. K. achieve his purported goal
of having his child back, and yet it does not appear that he has availed himself of these
services. In fact, it appears that he has thwarted and evaded any efforts offered by these
agencies. The reunification of a parent and child after court-ordered removal is a two-way
street. Social agencies can only do so much within their somewhat limited means and in light
of the many cases they handle. Consequently, cooperation on the part of the parent is
paramount to the success of the endeavor. See, e.g., State of Tennessee Dept. of Children’s
Serv. v. Stinson, No. W2006-00749-COA-R3-PT, 2006 WL 3054604, *15 (Tenn. Ct. App.,
Oct. 30, 2006), perm. app. denied (Tenn. Feb. 5, 2007). The record here reveals a complete
lack of cooperation on the part of Mr. K., who, rather than taking the necessary steps to be
reunited with the child, chooses instead to assert that the agencies and the court are in
“kahoots [sic]” and are conspiring to “steal his child.” Neither of these allegations finds
support in the record.
Based upon the foregoing discussion, there is clear and convincing evidence in the
record that Mr. K. has not adequately remedied these problems so as to properly provide for
this child. There is no dispute that the child has been removed from Mr. K.’s home since
early 2008. Rita T. testified that the child has adapted well to her home, and that she and her
husband considered the child to be their own. Rita and Wilmer T. stand ready to adopt the
child, pending the outcome of this appeal. In contrast, Mr. K. admits that he had not seen the
child since March, 2008. In the face of Mr. K.’s inability to prove that he can provide for
this child, this Court cannot delay the child’s chances of integration into the T.’s safe, loving,
and stable home by giving Mr. K. more time to show that he is capable of providing even the
basic needs of the child.
Best Interests
Tenn. Code Ann. § 36-1-113(i) provides a list of factors the trial court is to consider
when determining if termination is in the child's best interests. The statutory factors are as
follows:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child's best interests to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
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visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child's emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent's or
guardian's home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol or
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent's or guardian's mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i). We note that this list is not exhaustive, and the statute does
not require the court to find the existence of every factor before concluding that termination
is in a child's best interests. State v. T.S.W., No. M2001-01735-COA-R3-JV, 2002 WL
970434 (Tenn. Ct. App. May 10, 2002). The best interests of a child must be determined
from the child's perspective and not the parents. White v. Moody, 171 S.W.3d 187, 194
(Tenn. Ct. App.2004).
We have reviewed the record and we conclude that there is clear and convincing
evidence in record to support the trial court's finding that termination of Mr. K.’s parental
rights is in the best interests of this child. Mr. K. has failed to make the necessary
adjustments of circumstance, conduct, or conditions so as to make it in the child's best
interests to be in his home. In fact, as noted above, Mr. K. currently lives in his father’s
home where he provides no significant contribution toward the household expenses. Despite
the efforts made by the social agencies, Mr. K. has failed to avail himself of any opportunity
to visit or support his child. From the totality of the circumstances, a lasting adjustment on
the part of Mr. K. does not reasonably appear possible.
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In addition, Mr. K. has no visitation history with this child, and there does not appear
to be any meaningful relationship between Mr. K. and the child. Rather, the evidence clearly
demonstrates that the child has bonded with the T. family, and they with her. The Court also
notes that the child suffers from numerous allergies, and has a suspected diagnosis of fetal
alcohol syndrome. These issues necessitate regular doctor’s visits and special services to
combat any developmental delays. Mrs. T. testified that the child is currently receiving these
services while under the T.’s care. We have been provided with no reasons to disrupt the
stability that the child has found in the T.’s home, which could be devastating to the child’s
progress and her long-term emotional, psychological, and medical well-being.
From the totality of the circumstances, we conclude that there is clear and convincing
evidence to support the trial court’s termination of Mr. K.’s parental rights on grounds of
abandonment and persistence of conditions. Moreover, there is clear and convincing
evidence to support the trial court’s finding that termination of Mr. K.’s parental rights is in
the best interests of this child. Consequently, we affirm. Costs of this appeal are assessed
against the Appellant, Chris K., and his surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
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