In Re Leilynn S.

03/16/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 4, 2021
IN RE LEILYNN S.
Appeal from the Chancery Court for Warren County
No. 713-A Larry B. Stanley, Jr., Judge
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No. M2020-00576-COA-R3-PT
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This appeal involves the termination of a father’s parental rights. Following a trial, the
Chancery Court for Warren County (the “Trial Court”) entered an order terminating the
father’s parental rights to the child based on the statutory ground of abandonment by failure
to support and upon its finding that termination was in the child’s best interest. Upon
review of the record and the parties’ briefs, we affirm the termination of the father’s
parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Sheila F. Younglove, Sparta, Tennessee, for the appellant, Corey S.
Billy K. Tollison, III, McMinnville, Tennessee, for the appellees, Jontyler B. and Leia B.
OPINION
Background
Leia B. (“Mother”) and Jontyler B. (“Stepfather”) filed a petition in April 2019,
seeking to terminate the parental rights of Corey S. (“Father”) to the minor child, Leilynn
S. (“the Child”). In the petition, Mother and Stepfather (collectively, “Petitioners”) sought
to terminate Father’s parental rights on the statutory ground of abandonment by failure to
financially support the Child. Father filed an answer denying that grounds existed to
terminate his parental rights and that termination of his parental rights was in the Child’s
best interest.
The Trial Court conducted a trial in March 2020, during which the Trial Court heard
testimony from Father; Jimmy A. (“Maternal Grandfather”); Mother; Stepfather; Demetra
A. (“Maternal Grandmother”); Becky S. (“Paternal Grandmother”); and Elizabeth P., a
friend and former neighbor of Father and Paternal Grandmother. The Child was nine years
old at the time of trial.1 During trial, Petitioners entered as exhibits several court orders
relevant to child support and contempt proceedings. An order of parentage established
Father as the biological and legal father of the Child, set forth guidelines for Father to pay
child support, and set retroactive support in the amount of $6,997, to be paid $25 per week.
A subsequent petition for contempt stated that Father had been required to pay $295
per month in child support for the Child. The contempt petition was filed in November
2016 by the State of Tennessee on behalf of Mother due to Father’s unpaid child support,
requesting that the Trial Court enforce the child support order and that Father “be found to
be in willful criminal and/or civil contempt and punished accordingly.” The January 2017
order concerning the contempt action ordered Father to pay $270 per month in current
support for the Child and $20 per month toward his child support arrearage of $11,241.45
as of December 31, 2016. The issue of contempt was reserved. The record reflects that
the Trial Court also ordered that a wage assignment would be issued to Father’s employer.
Subsequent orders reflected an $11,709.18 arrearage as of February 28, 2017, a $12,464.35
arrearage as of May 31, 2017, and a $12,854.35 arrearage as of July 31, 2017.
In January 2018, a second contempt petition was filed with the Trial Court. The
Trial Court entered an order leaving Father’s child support payments unchanged and found
that Father had a child support arrearage of $13,995.58 as of February 28, 2018. The Trial
Court reserved the issue of contempt. Subsequent orders as part of this contempt action
reflected that Father’s child support arrearage was $14,199.62 as of April 30, 2018,
$17,615.75 as of September 30, 2019, and $17,719.59 as of January 31, 2020.
Father also was ordered as part of the child support litigation to provide health
insurance for the Child when available at a reasonable cost. Father testified that he had
provided health insurance for the Child while he worked at Yorozu but that he had not
otherwise provided health insurance for the Child. Father also acknowledged that he had
not paid any medical bills for the Child.
During trial, Petitioners also entered as an exhibit a list of the child support
payments Father had made since 2013. The list of payments included a payment on August
1
Although the Child wanted to testify during trial, the Trial Court denied that request finding that it was
too traumatic for the Child.
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20, 2018 for $21.89, with the next payment occurring almost one year later on August 19,
2019 for $66.92. Father does not dispute that he had not paid Child support for that year.
Court records reflecting Father’s criminal history and the orders of protection
entered against him were also admitted as exhibits at trial. Father was arrested for resisting
arrest in April 2011, to which he pled guilty. Also in April 2011, Mother filed a petition
for an order of protection against Father in the Trial Court.2 The Trial Court subsequently
issued an order of protection for a period of one year against Father. On March 4, 2012,
Father was arrested for a second offense of driving under the influence.3 On March 29,
2012, Father was again arrested for another second offense of driving under the influence.
Father pled guilty to both charges of driving under the influence in September 2012. In
June 2012, Father was arrested for possession of a handgun while under the influence of
alcohol, to which he pled guilty. Father was arrested in September 2013 for resisting arrest,
to which he had pled guilty. Additionally, Father admitted to being convicted of assault
two years prior to trial.
Father testified that he had three or four convictions for driving under the influence.
His most recent conviction led to his incarceration in October 2018. Father’s incarceration
began on October 18, 2018. As a result of this conviction, his license was suspended for
six years. He remained incarcerated until Christmas Eve, when he was granted a furlough
to attend a rehabilitation program at Buffalo Valley. According to Father, he stayed at the
facility for thirty or thirty-two days. Father explained that they dropped him off at the jail
and he went to probation, where they told him he needed to come and speak to the judge
in court the next day. Father appeared before the judge the next day, and he had to go back
to jail for another month before he was released on February 16, 2019.
After Father was released from incarceration, he was employed for about a week in
February 2019. Later toward summer, he became employed at Kirchhoff for
approximately a month. Father testified that when he is employed, his child support is
garnished from his wages.
In April 2019, M.B., the mother of another of Father’s children, filed an order of
protection against Father. The Trial Court found that Father had abused or threatened to
abuse M.B. and had stalked her. The Trial Court, therefore, issued an order of protection
against Father requiring Father to have no contact with M.B.
According to Father, he lives with Paternal Grandmother because he cannot afford
his own home. Father has two other children, one of which stays at his home often. When
2
At the time of the petition for an order of protection, Mother was a minor. Therefore, the petition was
filed by Maternal Grandfather on Mother’s behalf.
3
Prior to the Child’s birth, Father was arrested in August 2008 for underage driving while impaired, to
which Father later pled guilty.
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the Child visits, she stays at Paternal Grandmother’s home. Although the Child has her
own room at the home, she usually sleeps with Paternal Grandmother. Father testified that
Mother had not allowed the Child to come visit him on his scheduled weekends and that
he has a good relationship with the Child when he gets to see her. Father testified that he
still drinks occasionally but does not drink and drive anymore. Father further testified that
he did not drink or party around the Child but that he may still drink occasionally while
she is present without getting drunk.
Maternal Grandfather testified that he was a friend of Father and that they had
discussed the termination action filed against Father. According to Maternal Grandfather,
Father had contemplated allowing Stepfather to adopt the Child if they had provided Father
with $10,000 and agreed to forgive the child support arrearage. However, Maternal
Grandfather testified that Father changed his mind because he would not be able to see the
Child.
Mother testified that child support for Father was established in 2012. In addition
to paying child support, Father was ordered to provide health insurance for the Child and
to split the Child’s medical expenses. According to Mother, Stepfather currently had
insurance on the Child and the Child was recently diagnosed with Crohn’s disease. Mother
testified that Father had provided insurance for the Child for only a small period of time
when she was around three years old. Mother further testified that she had provided several
of the Child’s medical bills to Father but that he had never paid or offered to pay any of
the medical expenses for the Child.
Additionally, Mother testified that she observed Father alone with the Child while
drunk in 2017 despite their parenting plan prohibiting alcohol use around the Child. At
that time, she observed a twenty-four case of beer laying by the trash can. Mother stated
that Father appeared to be under the influence and she could smell the alcohol. According
to Mother, Father admitted that he had been drinking and acknowledged that the empty
beer cans were his.
Mother testified that Father had an ongoing issue with alcohol and had been abusive
to her around the Child. Mother detailed an incident in 2011 when Father and Paternal
Grandmother had been “stalking [her] around town.” According to Mother, Father tried to
take the Child out of Mother’s car while he was drunk and had pushed Mother to the
ground. This occurred in the parking lot of a McDonalds, and an employee had called law
enforcement. Mother was granted an order of protection. Mother further testified that the
day the order of protection was granted, Father tried to run Mother off the road while the
Child was in the vehicle with her.
According to Mother, Father has never taken the Child to school, picked the Child
up from school, or offered to do so. He never attended the Child’s medical appointments
or attended school activities. Mother acknowledged that the Child had a room at Paternal
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Grandmother’s home where Father lived but stated that Father stayed in the Child’s room
when he was there so the Child had to sleep with Paternal Grandmother. According to
Mother, the Child and Father did not have a relationship. Mother testified that the Child
was scared of Father at times because she had seen Father drunk, punch a wall, and get
violent with Paternal Grandmother. Mother acknowledged that the Child had a good
relationship with Paternal Grandmother and testified that she would allow the Child to
decide whether she wanted to continue a relationship with Paternal Grandmother. Mother
also testified that she would continue to allow the Child to have a relationship with Father’s
other two children.
Mother explained that she had allowed the Child to choose whether to go to Father’s
visitation at Paternal Grandmother’s home and had not pressured the Child either way.
Mother testified that Father had contacted her only once asking why the Child was not at a
visit. When Father was incarcerated, Mother would allow the Child to visit Paternal
Grandmother during his visitations. The Child had been at Paternal Grandmother’s home
two or three times in the three months prior to trial. According to Mother, the Child was
visiting to see her brother and Paternal Grandmother and that Father normally was not there
when the Child visited. Although Father is allowed to call the Child under the parenting
plan when she is at Mother’s home, Father never calls the Child on the telephone. Mother
stated that Father had called Mother only once to check on the Child after a medical
procedure which had occurred after the termination petition was filed.
Mother further testified that the Child and Stepfather had a close relationship and
that Stepfather had provided support for the Child. According to Mother, Stepfather took
the Child to school, picked her up from school, attended medical appointments for the
Child, and had spent time with the Child doing various activities.
Stepfather testified during trial that he and Mother had been together for seven
years, from when the Child was two years old. Mother and Stepfather also have a five-
year-old child together. Stepfather further testified that he has a “wonderful relationship”
with the Child and that the Child comes to him with any problems she may have.
According to Stepfather, he is able to support the Child financially and is willing to take
on the responsibility that comes with adopting the Child.
Maternal Grandmother testified that she had observed Father intoxicated around the
Child in 2017. She explained that Father had tried to take the Child home with him because
it was his visitation weekend, but she would not let him drive with the Child in the car
because he was intoxicated. According to Maternal Grandmother, Father was stumbling
and slurring his words, and she opined that he should not have been driving in his condition.
She or her husband ultimately took Father and the Child home.
Paternal Grandmother testified during trial that she had been an active part of the
Child’s life since she was born. She further testified that the Child had a relationship with
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Father and that Father had painted the Child’s nails, watched movies with the Child,
cuddled with her, and taken her shopping and driving around. Paternal Grandmother stated
that the Child and her brother would fight about who would get to sit next to Father.
According to Paternal Grandmother, the Child did not want anything to do with her when
Father was around. Paternal Grandmother denied that she had ever observed Father
intoxicated around the Child. However, she stated that Father had gotten drunk and came
home late but that the Child was already in bed most of the time. She further stated that
most of the time, he would not drink when the Child was present. Paternal Grandmother
testified that Father had gotten treatment and had slacked off on his drinking but that he
was not completely better.
Elizabeth P. testified that she was a friend of Father and had been a neighbor of
Father and Paternal Grandmother.4 According to Elizabeth, she observed Father with the
Child, and they seemed to have a “pretty good relationship as far as father and daughter.”
From her observation, Elizabeth believed Father to be a good dad and that he had spent as
much time with the Child as he could.
Following trial, the Trial Court entered an order in March 2020 terminating Father’s
parental rights. In its judgment, the Trial Court made the following findings of fact and
conclusions of law:
Upon the petition, the evidence presented, arguments of counsel,
exhibits, and the entire record, from all of which the Court finds by clear and
convincing evidence that the Petition to Terminate the Rights of [Father]
should be GRANTED and relief granted thereunder.
The Court found all of the allegations in the petition to terminate to
be accurate.
The Court finds that the Petitioners have proven by clear and
convincing evidence that grounds for termination of parental rights exist
based upon the following:
FINDINGS OF FACT
1. The [Child] was born to the marriage of [Mother] and [Father].
2. An Order of Parentage was entered on March 25, 2013, declaring [Father]
the biological and legal father of [the Child].
4
We will refer to Elizabeth P. by her first name for ease of reading. No disrespect is intended.
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3. There are no other persons or party to this proceeding who has legal or
physical custody of [the Child].
4. The putative father registry was consulted within 10 working days before
the filing of the Petition for Termination.
5. [Father] willfully failed to support [the Child] for four months immediately
preceding the filing of the petition.
6. [Father] was incarcerated during the four consecutive months prior to the
filing of this petition. The father was in jail from October 18, 2018 until
February 16, 2019. The father made a child support payment on August 20,
2018 and the next payment was August 19, 2019. The proof showed the
father had a total of 127 days out of jail before this proceeding was filed and
failed to pay support during those 127 days. Therefore, the father abandoned
the child during the appropriate period to measure for abandonment in which
he was not incarcerated by failing to support her financially during this time.
7. The father failed to provide a stable and suitable home for the child. No
suitable home is available from the father and unlikely to be remedied. The
father is unemployed, has a history of alcohol use and violence. He will not
be able to get a driver’s license for five (5) years. His visit[s] with the minor
child have been sporadic.
8. All other allegations in the Petition to Terminate are accurate.
9. The child would be at a substantial risk of harm if returned to the father.
10. It is in the child’s best interest to terminate the rights of the father. Full
custody, control and guardianship of the child should be awarded to the
Mother and step father and the child shall be able to be adopted by the step-
father.
CONCLUSIONS OF LAW
The Court concludes that the evidence shows by clear and convincing
evidence that the parental rights of the father should be terminated. In making
this conclusion the Court has examined the following:
Whether the father has made adjustments of circumstances,
conduct, or conditions as to make it safe and the children’s best interest
to be in the home of the father.
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The Court has examined the adjustments of the father’s living
[arrangements] and the stability of his life and finds that the child is more
stable with the mother and step-father.
Whether the father has maintained regular visitation with the
child.
The Court finds the father’s visits have been sporadic.
Whether a meaningful relationship with the children has been
established in other ways.
The Court find it has not.
Whether the physical environment of the father’s home is healthy
and safe, whether there is criminal activity in the home, or whether there
is such use of alcohol, controlled substances or controlled substance
analogues as may render the parents consistently unable to care for the
children in a safe or stable manner.
The Court finds the father does not have a home. He is unemployed,
has a history of alcohol use and violence.
Whether the father has paid child support consistent with the
child support guidelines promulgated by the department pursuant to
T.C.A. §36-5-101.
The Court finds he has not.
Therefore, it is ordered that based upon the petition, the evidence
presented, arguments of counsel, exhibits, testimony of witnesses and the
entire record, from all of which the Court finds by clear and convincing
evidence that the Petition to Terminate the Rights of [Father], is well taken
and should be GRANTED and relief granted thereunder.
Father timely appealed to this Court.
Discussion
Although not stated exactly as such, Father raises the following issues for our review
on appeal: (1) whether the Trial Court erred in finding by clear and convincing evidence
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that termination of Father’s parental rights was in the Child’s best interest and (2) whether
the Trial Court erred by making findings of fact and conclusions of law that were not
enumerated in the termination petition.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clauses of the federal and state constitutions.5 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388.
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, 102 S.Ct. 1388 (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, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d
5U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
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640 (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, 102 S.Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental 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).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
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.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds6 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is separate
from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
Although several factors relevant to the best interests analysis are statutorily
enumerated,7 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
6
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
7
Tenn. Code Ann. § 36-1-113(i).
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court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). 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
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convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97. The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion
of law, which appellate courts review de novo with no presumption of
correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). In combination with a best interest finding, clear and convincing evidence
supporting any single ground will justify a termination order. E.g., In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002).
Our Supreme Court has instructed “that in an appeal from an order terminating
parental rights the Court of Appeals must review the trial court’s findings as to each ground
for termination and as to whether termination is in the child’s best interests, regardless of
whether the parent challenges these findings on appeal.” In re Carrington H., 483 S.W.3d
at 525-26 (footnote omitted). Therefore, although Father does not raise an issue for review
concerning the statutory ground utilized for termination of his parental rights, we
nonetheless will review the Trial Court’s findings concerning statutory grounds for
termination of parental rights as directed by our Supreme Court in In re Carrington H., 483
S.W.3d 507 (Tenn. 2016).
Father presents an issue for our review concerning whether the Trial Court erred by
making findings of fact and conclusions of law that were not enumerated in the termination
petition. However, Father has failed to present an argument on this issue. Father mentions
in the statement of the case that the Trial Court found the ground of failure to provide a
suitable home for the Child and in the statement of facts that “[t]he grounds of failure to
provide a stable suitable home, unemployment, history of alcohol use and violence,
Father’s inability to get a driver’s license, and sporadic visits with the child were not
alleged in the Petition and therefore, should not have been considered by the Trial Court.”
However, Father does not develop an argument concerning this issue in the argument
section of his brief.
As relevant to this issue, the Trial Court found in its findings of fact section as
follows:
The father failed to provide a stable and suitable home for the child. No
suitable home is available from the father and unlikely to be remedied. The
father is unemployed, has a history of alcohol use and violence. He will not
be able to get a driver’s license for five (5) years. His visit[s] with the minor
child have been sporadic.
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We note that the Trial Court’s findings do not include all the requirements to establish the
ground of abandonment by failure to provide a suitable home, pursuant to Tennessee Code
Annotated § 36-1-102(1)(A)(ii).8 In these findings, the Trial Court did not mention the
term “abandonment” by Father. Although they could be relevant to the ground of
abandonment by failure to provide a suitable home, these findings by the Trial Court
certainly are relevant to the best interest analysis. Upon review, it appears that several of
these findings are included in the Trial Court’s best interest analysis. Additionally, we note
that in its order, the Trial Court stated that its decision to terminate Father’s parental rights
was “based upon the petition, the evidence presented, arguments of counsel, exhibits,
testimony of witnesses and the entire record (emphasis added).” The termination petition
in this matter alleged only one ground for the termination of Father’s parental rights, which
suggests that the Trial Court intended to terminate Father’s parental rights based only on
the one ground alleged in the petition. Based on the relevance of the findings to the best
interest analysis and the Trial Court’s reliance on the petition, we disagree that the Trial
Court terminated Father’s parental rights based on the ground of abandonment by failure
to provide a suitable home.
We next address the ground for termination specifically alleged in the petition,
abandonment by failure to financially support the Child, and found by the Trial Court.
Tennessee Code Annotated § 36-1-113(g)(1) (Supp. 2020) provides abandonment by a
8
Tennessee Code Annotated § 36-1-102(1)(A)(ii) provides as follows as relevant to the ground of
abandonment for failure to provide a suitable home:
(a) The child has been removed from the home or the physical or legal custody of a parent
or parents or guardian or guardians by a court order at any stage of proceedings in which a
petition has been filed in the juvenile court alleging that a child is a dependent and
neglected child, and the child was placed in the custody of the department or a licensed
child-placing agency;
(b) The juvenile court found, or the court where the termination of parental rights petition
is filed finds, that the department or a licensed child-placing agency made reasonable
efforts to prevent removal of the child or that the circumstances of the child's situation
prevented reasonable efforts from being made prior to the child's removal; and
(c) For a period of four (4) months following the physical removal, the department or
agency made reasonable efforts to assist the parent or parents or the guardian or guardians
to establish a suitable home for the child, but that the parent or parents or the guardian or
guardians have not made reciprocal reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears unlikely that
they will be able to provide a suitable home for the child at an early date. The efforts of
the department or agency to assist a parent or guardian in establishing a suitable home for
the child shall be found to be reasonable if such efforts equal or exceed the efforts of the
parent or guardian toward the same goal, when the parent or guardian is aware that the
child is in the custody of the department[.]
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parent as a ground for the termination of parental rights. Since Father was incarcerated
during the four months prior to the termination petition being filed, the relevant statute
defining abandonment is Tennessee Code Annotated § 36-1-102(1)(A)(iv) (Supp. 2019).
The relevant statute in effect at the time the petition was filed provided as an affirmative
defense that the parent’s failure to visit or support was not willful. See Tenn. Code Ann. §
36-1-102(1)(I) (Supp. 2019). To prove this defense, a parent must establish his or her lack
of willfulness by a preponderance of the evidence. Id.Father has not raised an issue concerning the statutory ground found by the Trial
Court; however, we will review the Trial Court’s findings concerning this ground as our
Supreme Court has instructed. See In re Carrington H., 483 S.W.3d 507 (Tenn. 2016).
During trial, the Trial Court correctly determined that Tennessee Code Annotated § 36-1-
102(1)(A)(iv) applied in this case. In determining the relevant four-month period, the Trial
Court aggregated Father’s nonincarceration time prior to the filing of the petition. See
Tenn. Code Ann. § 36-1-102(1)(A)(iv) (Supp. 2019). Upon its determination that the
aggregated period applied, the Trial Court found that Father had not paid any child support
in the 127 days that he had been out of jail prior to the petition’s filing. Father
acknowledged during trial that he made a child support payment on August 20, 2018 and
that he had not made another payment until August 2019. The evidence presented does
not preponderate against the Trial Court’s finding that Father had not financially supported
the Child during the aggregated four-month period prior to the filing of the petition. Upon
review of the record and the Trial Court’s order, we affirm this ground for the termination
of Father’s parental rights.
The final issue we address is whether termination of Father’s parental rights is in
the Child’s best interest. The factors to be considered by courts in determining whether
termination of parental rights is in a child’s best interest are set forth in statute as follows:
(i) In determining whether termination of parental or guardianship rights is
in the best interest of the child pursuant to this part, the court shall consider,
but is not limited to, the following:
(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
interest 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 visitation or other
contact with the child;
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(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, controlled substances or controlled substance
analogues 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) (Supp. 2020).
With regard to making a determination concerning a child’s best interest, our
Supreme Court has instructed:
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory 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 interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at 861). “After making
the underlying factual findings, the trial court should then consider the
combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interest[s].”
Id. When considering these statutory factors, courts must remember that
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“[t]he child’s best interests [are] viewed from the child’s, rather than the
parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. Indeed, “[a]
focus on the perspective of the child is the common theme” evident in all of
the statutory factors. Id. “[W]hen the best interests of the child and those of
the adults are in conflict, such conflict shall always be resolved to favor the
rights and the best interests of the child. . . .” Tenn. Code Ann. § 36-1-101(d)
(2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the
circumstances of a particular child and a particular parent, the consideration
of one factor may very well dictate the outcome of the analysis.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
The Trial Court conducted a best interest analysis considering the relevant factors
in Tennessee Code Annotated § 36-1-113(i). On appeal, Father raises as an issue whether
the Trial Court erred in finding by clear and convincing evidence that termination of
Father’s parental rights was in the Child’s best interest. Concerning this issue, Father
argues that his parental rights should not be terminated when the statutory ground found
by the Trial Court “was based on a technicality” due to Father not paying child support for
127 days “and the parameters set by statute of four months” making the four months
aggregated instead of consecutive. According to Father, “[t]echnicalities should not
prohibit the parent and child relationship from remaining intact, especially when proof
[was] presented during the trial that Father had a good relationship with the minor child.”9
9
We note that these “technicalities” Father complains of are the statutes themselves.
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However, the Trial Court found that Father’s visits with the Child had been sporadic
and that a meaningful relationship had not been otherwise established. Father testified that
Mother had refused to let the Child visit on his weekends, and Mother stated that she had
permitted the Child to make her own decisions about when she visited Father. Although
Father testified that he had a good relationship with the Child, Mother testified that the
Child had no relationship with Father and was sometimes fearful of Father. Mother further
stated that when the Child visited at the Paternal Grandmother’s home where Father lived,
the Child was visiting in order to see her brother and Paternal Grandmother. Mother
testified that Father usually was not present during the Child’s visitation at Paternal
Grandmother’s home. According to Mother, Father never called to speak with the Child
and only called to check on the Child once while she was at Mother’s home. The evidence
presented did not preponderate against the Trial Court’s findings that Father’s visits with
the Child were sporadic and that he had not established a meaningful relationship with the
Child.
Father further argued that although he was incarerated at various times, he had paid
child support when he was released from incarceration. The Trial Court, however, found
that Father had not paid child support for the Child consistent with the child support
guidelines. The Trial Court’s finding is consistent with two contempt actions filed against
Father due to his increasing child support arrearage. The Trial Court’s most recent order
in the contempt action reflected that Father had a child support arrearage for the Child of
$17,719.59 as of January 31, 2020. The evidence does not preponderate against the Trial
Court’s finding in this regard.
Concerning whether Father had made an adjustment in his circumstances, conduct,
or conditions such to make it safe and in the Child’s best interest to be in Father’s home,
the Trial Court found that Father did not have a stable or suitable home for the Child and
that the Child was more stable with Mother and Stepfather. The Trial Court further found
that Father’s inability to provide a suitable home for the Child was unlikely to be remedied.
Additionally, the Trial Court found that Father did not have a job and that he had a history
of alcohol use and violence. Father testified that he was unable to afford a home of his
own. Furthermore, it is clear from the record that Father has an extensive history with
alcohol use, which had resulted in multiple alcohol-related convictions. Although he had
attended rehabilitation programs for alcohol use, he acknowledged that he still drank beer
and liquor occasionally. Mother also testified concerning Father’s actions toward her that
resulted in the Trial Court granting her an order of protection against Father after he had
pushed her to the ground in front of the Child. According to Mother, Father appeared
intoxicated at the time. There was further evidence in the record that another order of
protection was granted against Father after the Trial Court found that Father had stalked
and abused or threatened to abuse M.B., the mother of another of his children. The
evidence presented does not preponderate against these findings by the Trial Court.
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After its consideration of the relevant statutory factors, the Trial Court found that
termination of Father’s parental rights was in the Child’s best interest. Upon a review of
the record, we find and hold that the evidence presented does not preponderate against the
Trial Court’s findings concerning the best interest analysis, and those factual findings by
the Trial Court are clear and convincing evidence that the termination of Father’s parental
rights is in the Child’s best interest. Therefore, we affirm the Trial Court’s conclusion
regarding the best interest analysis.
Conclusion
Based on the foregoing, we affirm the Trial Court’s judgment terminating Father’s
parental rights. This cause is remanded to the Trial Court for collection of the costs
assessed below and for enforcement of the Trial Court’s order terminating Father’s parental
rights to the Child. The costs on appeal are assessed against the appellant, Corey S., and
his surety, if any.
s/ D. Michael Swiney_______________
D. MICHAEL SWINEY, CHIEF JUDGE
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