In Re Jessica v.

06/12/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 2, 2020

IN RE JESSICA V., ET AL.

Appeal from the Chancery Court for Hardin County

No. AD-443 William B. Acree, Senior Judge

No. W2019-01700-COA-R3-PT

The trial court terminated a father’s parental rights to his children on the grounds of (1)

abandonment by willful failure to visit, (2) abandonment by willful failure to support, (3)

abandonment by engaging in conduct prior to incarceration that exhibits a wanton

disregard for the children’s welfare, and (4) failure to manifest an ability and willingness

to personally assume custody of or financial responsibility of the children. The trial court

also found that termination of the father’s parental rights was in the best interest of the

children. Finding clear and convincing evidence in support of the trial court’s

determinations, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which J. STEVEN

STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.

Joe L. Brown, Savannah, Tennessee, for the appellant, Daniel V.

Katie P. Hagenbrok, Savannah, Tennessee, for the appellees, Ronnie D. and Kimberly D.

Melissa G. Stewart, Guardian ad litem.

OPINION

I. BACKGROUND

Twin sisters Jessica V. and Julianna V. (“the Children”) were born to Lana V.

(“Mother”) and to Daniel V. (“Appellant”) in 2008.1 Mother and Appellant were married

to each other at the time of the Children’s birth. Ronnie D. and Kimberly D.

(“Appellees”) are the Children’s maternal aunt and uncle.

In December 2008, when the Children were four months old, Mother and

Appellant had a physical altercation while the Children were in the home. Appellant

claims that Mother assaulted him with a knife, but Appellant pleaded guilty to domestic

assault in connection with the incident.

In February 2009, Appellant moved to Texas for work. He travelled back and

forth between Texas and Tennessee during most of 2009, then remained in Texas from

December 2009 to November 2010. During this time, Appellant and Mother were having

disagreements. Soon after returning to Tennessee in November 2010, Appellant was

arrested and charged with aggravated burglary. The Children were two years old at the

time. Appellant was convicted, sentenced to nine years in prison, and incarcerated from

September 5, 2011, until May 10, 2016, when he was granted parole.

Upon his release from prison until September 2016, Appellant lived in a halfway

house and began working. At the time, he did not attempt to regain custody of or visit the

Children. Appellant then sought visitation with the Children in October 2016. During

the fall and winter of 2016, Appellees facilitated visitation by transporting the Children to

Appellant, and allowed him to see the Children whenever he requested. The weekend

visitation between the Children and Appellant ceased in April 2017. Despite the

Children’s reluctance, Appellee Kimberly D. drove the Children to see Appellant on July

4, 2017. This was the last time Appellant saw the Children. Appellant was arrested

again on November 7, 2017, and has been incarcerated ever since. Thus, Appellant has

been incarcerated for the majority of the Children’s lives.

Appellees have been involved in the Children’s lives since their infancy. During

the time between Appellant’s residency in Texas in 2009 and his arrest in 2011, Appellee

Kimberly D. picked up the Children and kept them in her home every weekend. In

December 2010, Mother and Appellee Kimberly D. consented to the entry of a joint

custody order.2 In 2013, Mother had a car accident while the Children were in the car,

1

Mother is not a party to this appeal.

2

This order was entered by the Juvenile Court of Wayne County, Tennessee.

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resulting in charges of reckless endangerment and driving under the influence.3 In

February 2014, the Children were five years old, Appellant was still incarcerated, and

temporary custody of the Children was transferred to Appellee Kimberly D. In its

corresponding order, the Wayne County Juvenile Court found that there was a substantial

risk of harm if the Children were to be placed in Appellant’s custody.

Appellees had legal and physical custody of the Children until August 2014, at

which time they returned the Children to Mother’s physical custody to allow her to

reestablish a relationship with them. In May 2015, Mother lost her home and went to jail

to serve time for previous convictions, so the Children were returned to Appellees’

physical custody. Appellee Kimberly D. began taking the Children to counseling in

August 2017 due to behavioral problems that manifested after the Children received

telephone calls from Mother and Appellant. The Children were diagnosed with post-

traumatic stress disorder.

The proceedings underlying this appeal began on December 6, 2017, upon

Appellees’ filing of a Petition for Adoption by Relatives and for Termination of Parental

Rights (“the petition”). Mother did not answer the petition or otherwise participate in the

case, except for filing an affidavit in which she waived the right to notice of the

proceedings and affirmatively agreed that adoption by Appellees served the Children’s

best interest. Appellant filed four answers to the petition: the first pro se, the second

through appointed counsel, and the third and fourth through newly appointed counsel.

The case proceeded to a final hearing on June 5, 2019. Appellees, Appellant, and

the Children’s stepbrother, Nicholas D., testified.4 At the time of trial, the Children were

almost eleven years old, and a guardian ad litem represented their interests. Appellant

was still incarcerated and awaiting trial on charges of aggravated burglary and theft. By

order entered August 20, 2019, the trial court granted the petition and terminated

Mother’s and Appellant’s parental rights. Appellant’s parental rights were terminated on

the grounds of (1) abandonment by willful failure to visit, (2) abandonment by willful

failure to support, (3) abandonment by engaging in conduct prior to incarceration that

exhibits a wanton disregard for the Children’s welfare, and (4) failure to manifest an

ability and willingness to personally assume custody of or financial responsibility of the

Children. The court found that termination of Mother’s and Appellant’s parental rights

was in the best interest of the Children. Within its final order, the trial court entered a

Final Decree of Adoption declaring the Children to be the adopted children of Appellees

and changing the Children’s surnames to that of Appellees. This appeal followed.

3

Mother has a history of addiction to alcohol and prescription pain medication.

4

The testimony will be outlined in greater detail below as relevant to the issues on appeal.

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II. ISSUES

A. Whether clear and convincing evidence supports the trial court’s

finding that Appellant abandoned the Children by willful failure to visit.

B. Whether clear and convincing evidence supports the trial court’s

finding that Appellant abandoned the Children by willful failure to support.

C. Whether clear and convincing evidence supports the trial court’s

finding that Appellant engaged in conduct prior to incarceration that

exhibits a wanton disregard for the welfare of the Children.

D. Whether clear and convincing evidence supports the trial court’s

finding that Appellant failed to manifest an ability and willingness to

personally assume custody of or financial responsibility of the Children.

E. Whether clear and convincing evidence supports the trial court’s

finding that termination was in the best interest of the Children pursuant to

Tennessee Code Annotated section 36-1-113(i).

III. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children.

Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn.

Ct. App. 1988). This right “is among the oldest of the judicially recognized liberty

interests protected by the Due Process Clauses of the federal and state constitutions.” In

re M.J.B., 140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s

rights as a parent is a grave and final decision, irrevocably altering the lives of the parent

and child involved and ‘severing forever all legal rights and obligations’ of the parent.”

Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. §

36-1-113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of

natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.

Kramer, 455 U.S. 745, 787 (1982)).

Although parental rights are superior to the claims of other persons and the

government, they are not absolute and may be terminated upon appropriate statutory

grounds. See In Re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Blair v. Badenhope,

77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence

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of the existence of the grounds for termination. In re Drinnon, 776 S.W.2d at 97. A

parent’s rights may be terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best interest[]

of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing

evidence proves not only that statutory grounds exist [for the termination] but also that

termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.

2002). The existence of at least one statutory basis for termination of parental rights will

support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,

473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d

838 (Tenn. Ct. App. 2005).

The heightened burden of proof in parental termination cases minimizes the risk of

erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,

622 (Tenn. Ct. App. 1998). “Evidence satisfying the clear and convincing evidence

standard 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 Audrey S., 182 S.W.3d at 861 (citations omitted). It produces in a fact-

finder’s mind a firm belief or conviction regarding the truth of the facts sought to be

established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83

S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

In 2016, the Tennessee Supreme Court provided guidance to this court in

reviewing cases involving the termination of parental rights:

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). 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 light of the heightened burden of proof in

termination proceedings, however, the reviewing court must make its own

determination as to whether the facts, either as found by the trial court or as

supported by a preponderance of the evidence, amount to clear and

convincing evidence of the elements necessary to terminate parental rights.

The trial court’s ruling that the evidence sufficiently supports termination

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of parental rights is a conclusion of law, which appellate courts review de

novo with no presumption of correctness. 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 Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also

In re Gabriella D., 531 S.W. 3d 662, 680 (Tenn. 2017).

IV. DISCUSSION

A., B. & C.5

Abandonment

Parental rights may be terminated for abandonment, as defined in Tennessee Code

Annotated section 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). As applicable to

incarcerated parents, the statute defines “abandonment,” in pertinent part, as follows:

A parent or guardian is incarcerated at the time of the institution of an

action or proceeding to declare a child to be an abandoned child, or the

parent or guardian has been incarcerated during all or part of the four (4)

months immediately preceding the institution of such action or proceeding,

and either has willfully failed to visit or has willfully failed to support or

has willfully failed to make reasonable payments toward the support of the

child for four (4) consecutive months immediately preceding such parent’s

or guardian’s incarceration, or the parent or guardian has engaged in

conduct prior to incarceration that exhibits a wanton disregard for the

welfare of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(iv).6 In the context of abandonment:

5

Appellant does not raise the ground for termination stated in issue C. In such cases, our Supreme Court

instructs: “[I]n 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 (internal citation and footnote omitted). Accordingly, we will review all of the trial

court’s findings.

6

Under the law in effect when the petition was filed, the element of willfulness was essential to

determining whether abandonment had occurred. In re Audrey S., 182 S.W.3d at 863. Under the current

version of Tennessee Code Annotated section 36-1-102, willfulness is an affirmative defense.

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Failure to visit or support a child is “willful” when a person is aware of his

or her duty to visit or support, has the capacity to do so, makes no attempt

to do so, and has no justifiable excuse for not doing so. Failure to visit or

to support is not excused by another person’s conduct unless the conduct

actually prevents the person with the obligation from performing his or her

duty, or amounts to a significant restraint of or interference with the

parent’s efforts to support or develop a relationship with the child[.]

In re Audrey S., 182 S.W.3d at 864 (citations omitted). Furthermore, the statute requires

that parents offer their children more than “token visitation,” defined as visitation that

“under the circumstances of the individual case, constitutes nothing more than

perfunctory visitation or visitation of such an infrequent nature or of such short duration

as to merely establish minimal or insubstantial contact with the child.” Tenn. Code Ann.

§ 36-1-102(1)(C). Parents are also expected to offer more than “token support,” which

“means that the support, under the circumstances of the individual case, is insignificant

given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B).

Here, Appellees filed the petition to terminate parental rights on December 6,

2017. Appellant was arrested on November 7, 2017, and has been incarcerated since.

Thus, the relevant time period to consider Appellant’s visitation with or support of the

Children was from July 7, 2017, through November 6, 2017, the day before the

incarceration date.7 See In re Matasia R., No. E2018-01834-COA-R3-PT, 2019 WL

4127392, at *4 n.5 (Tenn. Ct. App. Aug. 30, 2019).

The trial court found that Appellant last visited with the Children on July 4, 2017,

and deemed this a token visit. The trial court further found that prior to that date,

Appellant’s visitation with the Children “had been sporadic at best.” As to financial

support, the trial court recalled Appellant’s testimony “that he was gainfully employed up

until his incarceration began . . . yet he made no payments toward the support of the

children other than the one-time payment of $2,900 in January or February of 2017,

7

In its order terminating Appellant’s parental rights, the trial court stated that “[Appellant’s] incarceration

began on November 15, 2017.” Appellant testified that he was arrested on November 7, 2017 for

criminal impersonation, a violation of his parole. He confirmed that he was charged with aggravated

burglary on November 16, 2017. The criminal history report entered as a trial exhibit shows that

Appellant pleaded guilty to criminal impersonation on November 15, 2017. Appellant testified that he

was never released between the date he was arrested for criminal impersonation and the date he was

charged with aggravated burglary. Based on Appellant’s testimony read in conjunction with Appellant’s

criminal history report entered as a trial exhibit, we find that November 7, 2017 is the applicable

incarceration date. This factual discrepancy does not change our analysis because it is undisputed that

Appellant neither visited nor paid support for the Children during “the four (4) consecutive months

immediately preceding [his] incarceration,” regardless of whether the four months is calculated from

November 7 or November 15 of 2017. Tenn. Code Ann. § 36-1-102(1)(A)(iv).

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which [Appellant] testified was his tax refund.” The court found that this payment was

made outside of the relevant four-month period and met the definition of token support.

Finally, the court found that the evidence at trial demonstrated Appellant’s failure to visit

and failure to support the Children was willful.

The record fully supports the trial court’s findings. Appellant’s argument on these

issues consists only of excerpts from the trial transcript pertaining to matters outside the

relevant four-month period. The parties do not dispute that Appellant last saw the

Children on July 4, 2017. By that date, several months had passed since Appellant had

visited the Children. Appellant testified that Appellees allowed him to see the Children

whenever he requested and that they also transported the Children to him. Appellant

admitted that his weekend visits with the Children ceased in April 2017. He explained

that he did not want to stand in the way of the Children’s Saturday softball practice, but

this was his unilateral decision.

“Every parent who is eighteen (18) years of age or older is presumed to have

knowledge of a parent’s legal obligation to support such parent’s child or children.”

Tenn. Code Ann. § 36-1-102(1)(H). There is no dispute that Appellant failed to pay

support during the four-month period. The testimony established that Appellant made a

one-time payment of $2,900.00 to Appellees as support for the Children. This amount

was his income tax refund received by claiming the Children as his dependents, although

they were living with Appellees during the relevant tax year, and was made well outside

the relevant four-month period. The record shows that Appellant was aware of his duty

to support his Children and that he had the ability to pay some support. Appellant

confirmed that he was employed and working between six and seven days a week from

May 2016, when he was released on parole, until his arrest in November 2017.

Appellant’s brief cites testimony about items he purchased for the Children during their

visits from October 2016 through the spring of 2017. Even if these purchases had been

made during the four months immediately preceding Appellant’s incarceration, they

would amount to token support given the circumstances of this case.

We conclude that Appellees proved by clear and convincing evidence that

Appellant willfully failed to support and willfully failed to visit the Children during the

relevant four-month period.

In addition to the grounds of abandonment by failure to support and by failure to

visit, the trial court also found that Appellant abandoned the Children by wanton

disregard. Tenn. Code Ann. § 36-1-102(1)(A)(iv). “Wanton disregard” is not a defined

term, but this court has “repeatedly held that probation 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

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wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68

(citations omitted). The relevant pre-incarceration period for conduct exhibiting wanton

disregard referred to in section 36-1-102(1)(A)(iv) “is not limited to acts during the four-

month period immediately preceding the incarceration.” In re Jeremiah T., No. E2008-

02099-COA-R3-PT, 2009 WL 1162860, at *8 (Tenn. Ct. App. Apr. 30, 2009) (citing In

re Audrey S., 182 S.W.3d at 871).

In its order terminating parental rights, the trial court made the following findings:

[T]he evidence at trial supports a finding that [Appellant] engaged in

conduct prior to his incarceration that exhibits a wanton disregard for the

welfare of the children pursuant to Tennessee Code Annotated 36-1-

102(1)(A)(iv). Prior to [Appellant’s] most recent incarceration . . . [he] had

been incarcerated for all but three (3) years of his children’s lives. At the

time of trial, the children were almost eleven (11) years old, and had only

known [Appellant] for brief periods and through sporadic visitation.

[Appellant’s] willful failure to visit the children, willful failure to support

the children, history of consistent criminality and probation violations all

constitute conduct that exhibits a wanton disregard for the welfare of the

children.

Tennessee Code Annotated section 36-1-102(1)(A)(iv) represents the General

Assembly’s “commonsense notion that parental incarceration is a strong indicator that

there may be problems in the home that threaten the welfare of the child” and that

“[i]ncarceration severely compromises a parent’s ability to perform his or her parental

duties.” In re Audrey S., 182 S.W.3d at 866. “The actions 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). In this case, the record

exposes Appellant’s choice to be a career criminal. Before the Children were born,

Appellant collected multiple convictions for burglary and theft, as well as multiple

probation violations. The birth of his Children did not reform Appellant’s behavior.

Appellant pleaded “no contest” to a charge of making terroristic threats, and was later

convicted of aggravated burglary and sentenced to nine years in prison. He was released

on parole, but soon violated the terms of probation and was reincarcerated. The behavior

that caused Appellant to be incarcerated and awaiting trial on aggravated burglary

charges at the time of the parental termination hearing “is part of a broader pattern of

conduct that renders [him] unfit or poses a risk of substantial harm to the welfare of the

child[ren].” In re Audrey S., 182 S.W.3d at 866. The evidence clearly and convincingly

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supports the trial court’s finding that Appellant engaged in conduct prior to incarceration

that exhibits a wanton disregard for the welfare of the Children.

We conclude that there is clear and convincing evidence to support the trial court’s

determination that Appellant’s parental rights should be terminated on the grounds of

abandonment by willful failure to visit, abandonment by willful failure to support, and

abandonment by engaging in conduct prior to incarceration that exhibits a wanton

disregard for the welfare of the children.

D.

Failure to Manifest Ability and Willingness to Assume

Custody or Financial Responsibility.

The trial court found that Appellees had proven by clear and convincing evidence

that Appellant’s parental rights should be terminated pursuant to Tennessee Code

Annotated section 36-1-113(g)(14), which provides as follows:

A legal parent or guardian has failed to manifest, by act or omission, an

ability and willingness to personally assume legal and physical custody or

financial responsibility of the child, and placing the child in the person’s

legal and physical custody would pose a risk of substantial harm to the

physical or psychological welfare of the child.

Tenn. Code Ann. § 36-1-113(g)(14). This ground requires the petitioner to prove two

elements by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14).

First, a petitioner must prove that the parent failed to manifest “an ability and willingness

to personally assume legal and physical custody or financial responsibility of the

child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). Second, a petitioner must prove that

placing the children in the parent’s “legal and physical custody would pose a risk of

substantial harm to the physical or psychological welfare of the child[ren].” Id.

There is a split in authority regarding the proof required to establish the first

element, specifically, whether parental rights can be terminated under section 36-1-

113(g)(14) if a parent has manifested a willingness, but not an ability. Compare In re

Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App.

May 31, 2018), with In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280,

at *12-15 (Tenn. Ct. App. June 20, 2018). In cases like this one where the parent has

manifested neither a willingness nor an ability to assume custody or responsibility, we

have upheld termination of parental rights on this ground. See, e.g., In re J’Khari F., No.

M2018-00708-COA-R3-PT, 2019 WL 411538, at *15 (Tenn. Ct. App. Jan. 31, 2019)

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(noting both In re Ayden S. and In re Amynn K. but ultimately concluding that the

petitioner presented sufficient evidence that “Mother was not able or willing to assume

physical or legal custody of or financial responsibility for the Child”); In re Colton B.,

No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *9-10 (Tenn. Ct. App. Oct. 29,

2018) perm. app. denied (Tenn. Jan. 22, 2019) (noting the split in authority but holding

that it was unnecessary to adopt one approach because the parent had manifested neither

an ability nor a willingness to assume custody or financial responsibility).

As to the second element, whether placing the child in the parent’s custody “would

pose a risk of substantial harm to the physical or psychological welfare of the child,” we

have explained:

The courts have not undertaken to define the circumstances that pose a risk

of substantial harm to a child. These circumstances are not amenable to

precise definition because of the variability of human conduct. However,

the use of the modifier “substantial” indicates two things. First, it connotes

a real hazard or danger that is not minor, trivial, or insignificant. Second, it

indicates that the harm must be more than a theoretical possibility. While

the harm need not be inevitable, it must be sufficiently probable to prompt a

reasonable person to believe that the harm will occur more likely than not.

In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct.

App. Oct. 11, 2018) (quoting Ray, 83 S.W.3d at 732).

Here, the trial court found that the evidence established the first element because

Appellees have had exclusive physical custody of the Children since May 2015,

Appellant had not attempted to become their custodian, and Appellant had not taken

financial responsibility for the Children, save the one-time payment made in January or

February of 2017. Clear and convincing evidence supports the trial court’s finding that

Appellant failed to manifest an ability and willingness to assume custody or financial

responsibility of the Children. Appellant testified that he was employed and working

between six and seven days a week from May 2016, when he was released on parole,

until his arrest in November 2017. When asked why he did not “try to get custody of

[his] children back,” Appellant answered, “When I first got out of prison, I was trying to

take care of myself. If I can’t take care of myself, I can’t take care of them and I’m not

going to put them in a situation that I’m just barely making it and then put them through

that. That’s not right.” This demonstrates an unwillingness to personally assume custody

of the Children. Also, making only one payment toward the Children’s support in so

many years, despite gainful employment, demonstrates Appellant’s unwillingness to

assume financial responsibility. At the conclusion of his testimony, Appellant addressed

the trial court as follows:

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Regardless if I stay in prison or I get out, I’m not trying to take my children

away from the [Appellees]. I’m not trying to get custody of them because I

know when I get out, there is no way I can take care of them like they

deserve to be taken care of by them. I will have to work up to that. I don’t

have a problem with them being in the [Appellees’] custody. That’s not a

problem. What I do have a problem with is taking my parental rights from

me when I’ve never done anything wrong to them or [Appellees] adopting

them and changing their name.

The trial court drew the proper conclusion from this testimony in finding that Appellees

proved the first element of Tennessee Code Annotated section 36-1-113(g)(14) by clear

and convincing evidence.

As to the second element, the trial court found that Appellant “has a lengthy

criminal history and has been incarcerated for most of the children’s lives. [Appellant’s]

convictions include, among others, domestic assault against Mother, aggravated burglary,

and making terroristic threats.” As the trial court recognized, “placing a child with a

parent who had knowingly engaged ‘in repeated criminal conduct that necessitated [the

parent’s] re-incarceration’ would place the child at risk of physical or psychological

harm.” In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *15

(Tenn. Ct. App. June 20, 2018) (quoting In re Ke’Andre C., No. M2017-01361-COA-R3-

PT, 2018 WL 587966, at *11 (Tenn. Ct. App. Jan. 29, 2018)). The trial court also noted

the Wayne County Juvenile Court’s earlier finding that there was a substantial risk of

harm if the Children were to be placed in Appellant’s custody. The trial court further

found that the Children had received “counseling to overcome their intense fear of being

returned to their parents’ care and custody,” and credited Appellees’ testimony that the

Children’s behavior markedly changed for the worse after communication or interaction

with either parent.

Appellant’s Tennessee criminal history report, considered alongside the Children’s

counseling records and the trial testimony, illustrate why placing the Children in

Appellant’s custody would pose a risk of substantial harm to their physical or

psychological welfare. We conclude that the evidence of record clearly and convincingly

supports the trial court’s decision to terminate Appellant’s parental rights pursuant to

Tennessee Code Annotated section 36-1-113(g)(14).

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E.

Best Interest of the Children

Having concluded that there was clear and convincing evidence supporting at least

one statutory ground of termination, we must consider whether termination was in the

best interest of the Children. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182

S.W.3d at 860. In making this determination, we are guided by the following non-

exhaustive list of factors:

(i) In determining whether termination of parental or guardianship

rights is in the best interest of the child . . . 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;

(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;

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(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 [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not

require a trial court to find the existence of each enumerated factor before it may

conclude that terminating a parent’s parental rights is in the best interest of a child.” In re

M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also

stated that “when the best interest[] of the child and those of the adults are in conflict,

such conflict shall always be resolved to favor the rights and the best interest[] of the

child, which interests are hereby recognized as constitutionally protected.” Tenn. Code

Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.

2004) (holding that when considering a child’s best interest, the court must take the

child’s perspective, rather than the parent’s).

Concerning the first factor, the trial court found that Appellant does not have a

home at present and that, given his “status as a Range III offender, if [he] is convicted of

the charges for which he is currently awaiting trial, he may be incarcerated for ten (10)

years or more, during which time the children will reach the age of majority.” Tenn.

Code Ann. § 36-1-113(i)(1). The trial court found that Appellant did not maintain regular

visitation or other contact with the Children, so he does not have a meaningful

relationship with them. Tenn. Code Ann. § 36-1-113(i)(3), (4). Appellant was mostly

absent from the Children’s lives because he spent a significant amount of time

incarcerated or living in Texas. Id. We credit the trial court’s finding that the Children

have been in Appellees’ custody since May 2015 and are thriving in their care. The

Children should continue permanency and stability in the home of Appellees, their

adoptive parents. Tenn. Code Ann. § 36-1-113(i)(5). The trial court found that

regardless of whether Appellant or Mother was the aggressor in the 2008 domestic

assault with a knife, to which Appellant pleaded guilty, there was physical violence in the

home while the Children were in Appellant’s care. Tenn. Code Ann. § 36-1-113(i)(6).

The trial court further found that Appellant could not provide a healthy and safe home

environment for the Children because he was incarcerated. Tenn. Code Ann. § 36-1-

113(i)(7). Finally, the court found that Appellant has not paid child support consistent

with the child support guidelines. Tenn. Code Ann. § 36-1-113(i)(9).

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Appellant’s brief is devoid of facts or reasons supporting his conclusion that the

trial court erred in the best interest analysis. The evidence in the record does not

preponderate against the trial court’s factual findings. Based on these facts and the

record as a whole, we conclude that clear and convincing evidence supports a finding that

termination of Appellant’s parental rights is in the Children’s best interest. Accordingly,

we affirm the trial court.

V. CONCLUSION

The judgment of the trial court is affirmed. The case is remanded for such further

proceedings as may be necessary and consistent with this Opinion. Costs of the appeal

are taxed to the appellant, Daniel V., for which execution may issue if necessary.

_________________________________

JOHN W. McCLARTY, JUDGE

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