In Re Arianna B.

05/11/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 30, 2022 Session

IN RE ARIANNA B. ET AL.

Appeal from the Chancery Court for Putnam County

No. 2019-38-A Ronald Thurman, Chancellor

___________________________________

No. M2021-00980-COA-R3-PT

___________________________________

In this termination of parental rights case, Appellant Father appeals the trial court’s

termination of his parental rights to the two minor children on the ground of abandonment

by failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv). Appellant

also appeals the trial court’s finding that termination of his parental rights is in the

children’s best interest. Discerning no error, we affirm.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN

and CARMA DENNIS MCGEE, JJ., joined.

Michael R. Giaimo and Casey D. Brown, Cookeville, Tennessee, for the appellant, Corey

B.1

Dana R. Looper, Cookeville, Tennessee, for the appellees, Elana H. and Joshua H.

OPINION

I. Background

Appellant Corey B. (“Father”) is the biological father of Arianna B. (d.o.b. January

2011) and Ashton B. (d.o.b. November 2014) (together, the “Children”). Elana H.

(“Mother”) is the Children’s mother. On August 31, 2018, Mother and Father were

divorced by order of the Chancery Court of Putnam County (“trial court”). Concurrent

1

In cases involving minor children, it is the policy of this Court to redact the parties’ names to

protect their identities.

with the divorce decree, the trial court entered a Permanent Parenting Plan (“PPP”) for the

Children. The PPP granted Mother sole custody of the Children. Due to concerns

regarding Father’s alcohol and drug use, and issues of domestic violence, he received

supervised visitation on Sundays from 12:00 p.m. until 4:00 p.m. and on Wednesdays from

4:00 p.m. until 8:00 p.m. Father was ordered to pay $300 per month in child support. On

October 12, 2018, Father was incarcerated for a DUI; he was released on June 18, 2019.

In January 2020, Father violated his probation when he tested positive for

methamphetamine. He was sentenced to 30 additional days in jail, and his probation was

extended for six months.

On February 23, 2019, Mother married Joshua H. (together with Mother,

“Appellees”). On July 25, 2019, Appellees filed a petition to terminate Father’s parental

rights. As grounds, Appellees averred: (1) abandonment by failure to visit and support,

Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A); and (2) failure to manifest an ability

and willingness to assume legal and physical custody of the Children, Tenn. Code Ann. §

36-1-113(g)(9)(a)(iv). On August 7, 2019, the trial court appointed a guardian ad litem for

the Children.

On December 5, 2019, Father filed an answer and counter-complaint, requesting

modification of the PPP to award him more visitation. On the same day, Father also filed

a motion for visitation. On January 7, 2020, Appellees filed an answer in opposition to

Father’s counter-complaint. Appellees also opposed Father’s motion for visitation. On

March 5, 2021, Father filed a “second and renewed” motion for visitation, which Appellees

opposed.

The trial court heard the case on June 2 and June 23, 2021. By order of July 28,

2021, the trial court terminated Father’s parental rights on the sole ground of abandonment

by failure to support and on its finding that termination of Father’s parental rights is in the

Children’s best interests. Father appeals.

II. Issues

We state the dispositive issues as follows:

1. Whether there is clear and convincing evidence to support the trial court’s

termination of Father’s parental rights on the ground of abandonment by failure to

support.

2. Whether termination of Appellant’s parental rights is in the Children’s best interests.

-2-

III. Standard of Review

The Tennessee Supreme Court has previously explained that:

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. 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.

In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In

Tennessee, termination of parental rights is governed by statute, which identifies

“‘situations in which the state’s interest 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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting

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))).

Thus, a party seeking to terminate a parent’s rights must prove: (1) the existence of one of

the statutory grounds; and (2) that termination is in the child’s best interest. 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).

Considering the fundamental nature of a parent’s rights and the serious

consequences that stem from termination of those rights, a higher standard of proof is

required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party

must prove statutory grounds and the child’s best interest by clear and convincing evidence.

Tenn. Code Ann. § 36-1-113(c); 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 evidence[,]” and “produces in a fact-finder’s mind a firm belief or conviction

regarding the truth of the facts sought to be established.” In re M.J.B., 140 S.W.3d 643,

653 (Tenn. Ct. App. 2004).

-3-

In termination of parental rights cases, appellate courts review a trial court’s factual

findings de novo and accord these findings a presumption of correctness unless the

evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483

S.W.3d at 523-24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re

M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re A.M.H., 215 S.W.3d 793, 809 (Tenn.

2007)). The Tennessee Supreme Court has explained that

[t]he 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 [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 at 524.

As set out in context below, in its order terminating Father’s parental rights, the trial

court made specific findings that Appellees were credible witnesses. With regard to

credibility determinations, this Court has stated:

When a trial court has seen and heard witnesses, especially where issues of

credibility and weight of oral testimony are involved, considerable deference

must be accorded to the trial court’s factual findings. Further, “[o]n an issue

which hinges on the credibility of witnesses, the trial court will not be

reversed unless there is found in the record clear, concrete, and convincing

evidence other than the oral testimony of witnesses which contradict the trial

court’s findings.”

In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair

Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)). Accordingly, where issues

of credibility and weight of testimony are involved, this Court will accord considerable

deference to the trial court's factual findings. Id.

IV. Grounds for Termination

The trial court found, by clear and convincing evidence, that Father’s parental rights

should be terminated on the ground of abandonment by failure to support. In pertinent

part, Tennessee Code Annotated section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights may be based

upon any of the grounds listed in this subsection (g). The following grounds

are cumulative and nonexclusive, so that listing conditions, acts or omissions

-4-

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;

Tenn. Code Ann. § 36-1-113(g)(1). As noted by the trial court, Father was incarcerated in

the months immediately preceding the filing of the petition to terminate his parental rights.

As such, the definition of “abandonment” set out at Tennessee Code Annotated section 36-

1-102(1)(A)(iv) applies. At the time of the filing of the petition to terminate Father’s

parental rights, Tennessee Code Annotated section 36-1-102(1)(A)(iv) provided, in

relevant part:

(1)(A) For purposes of terminating the parental or guardian rights of a parent

or parents or a guardian or guardians of a child to that child in order to make

that child available for adoption, “abandonment” means that:

***

(iv) 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 failed to visit or has failed to support or has 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. If the four-month period

immediately preceding the institution of the action or the four-month period

immediately preceding such parent’s incarceration is interrupted by a period

or periods of incarceration, and there are not four (4) consecutive months

without incarceration immediately preceding either event, a four-month

period shall be created by aggregating the shorter periods of non-

incarceration beginning with the most recent period of non-incarceration

prior to commencement of the action and moving back in time. Periods of

incarceration of less than seven (7) days duration shall be counted as periods

of nonincarceration. Periods of incarceration not discovered by the petitioner

and concealed, denied, or forgotten by the parent shall also be counted as

periods of non-incarceration. A finding that the parent has abandoned the

child for a defined period in excess of four (4) months that would necessarily

include the four (4) months of nonincarceration immediately prior to the

institution of the action, but which does not precisely define the relevant four-

month period, shall be sufficient to establish abandonment.

-5-

***

(D) For purposes of this subdivision (1), “failed to support” or “failed to

make reasonable payments toward such child’s support” means the failure,

for a period of four (4) consecutive months, to provide monetary support or

the failure to provide more than token payments toward the support of the

child. That the parent had only the means or ability to make small payments

is not a defense to failure to support if no payments were made during the

relevant four-month period;

***

(F) Abandonment may not be repented of by resuming visitation or support

subsequent to the filing of any petition seeking to terminate parental or

guardianship rights or seeking the adoption of a child;

Tenn. Code Ann. §§ 36-1-102(1)(A)(iv), (1)(D), (1)(F).

Under Tennessee Code Annotated section 36-1-102(1)(I), the burden of proof to

show that a failure to support was not willful lies with the parent, to-wit:

For purposes of this subdivision (1), it shall be a defense to abandonment for

failure to visit or failure to support that a parent or guardian’s failure to visit

or support was not willful. The parent or guardian shall bear the burden of

proof that the failure to visit or support was not willful. Such defense must

be established by a preponderance of evidence. The absence of willfulness is

an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of Civil

Procedure . . . .

Tenn. Code Ann. § 36-1-102(1)(I). Concerning willfulness in the context of abandonment

for termination of parental rights purposes, this Court has stated:

In the statutes governing the termination of parental rights, “willfulness”

does not require the same standard of culpability as is required by the penal

code. Nor does it require malevolence or ill will. Willful conduct consists

of acts or failures to act that are intentional or voluntary rather than accidental

or inadvertent. Conduct is “willful” if it is the product of free will rather than

coercion. Thus, a person acts “willfully” if he or she is a free agent, knows

what he or she is doing, and intends to do what he or she is doing. . . .

The willfulness of particular conduct depends upon the actor’s intent. Intent

is seldom capable of direct proof, and triers-of-fact lack the ability to peer

into a person’s mind to assess intentions or motivations. Accordingly, triers-

-6-

of-fact must infer intent from the circumstantial evidence, including a

person’s actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. Aug. 25, 2005) (internal citations

and footnotes omitted). “Whether a parent failed to visit or support a child is a question of

fact. Whether a parent’s failure to visit or support constitutes willful abandonment . . . is a

question of law.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing

In re A.M.H., 215 S.W.3d at 810). As previously discussed, this Court reviews questions

of fact de novo with a presumption of correctness unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 523-24. We review

questions of law de novo with no presumption of correctness. In re Adoption of Angela

E., 402 S.W.3d at 640 (citing In re A.M.H., 215 S.W.3d at 810).

Turning to the record, in its order terminating Father’s parental rights, the trial court

found, in relevant part:

Based upon the testimony, [Father] was incarcerated from October 12, 2018

through June 18, 2019. Under the law, the “four months preceding” period

shall run during the four months preceding the incarceration, which in this

Case would be the four months prior to October 12, 2018.

***

As it relates to abandonment by willful failure to support, the Court does find

that the [Appellees] established by clear and convincing evidence that

[Father] did not pay support in the relevant four-month period. [Father] even

admits during his testimony that he did not pay support during that four-

month period. From the evidence and testimony presented, [Father] was

working during these times. [Father] testified about the various places that

he had worked during their marriage and afterwards. [Father] does not have

a disability or anything that prevents him from being able to work. During

the time that [Father] and [Mother] were married and through the relevant

time period for this case, [Father] worked [for five employers]. The Court

finds that [Father] had employment and the ability to pay support, but his

choice to not pay support was willful. Therefore, the Court finds that

Petitioners met their burden of proof by clear and convincing evidence on

this issue.

With the exception of periods of incarceration, the proof established that Father

maintained gainful employment. Aside from his regular paychecks, Father received two

“stimulus” checks during the COVID-19 pandemic, yet he conceded that he did not use

any of this money to pay child support:

-7-

Q [to Father]. You didn’t send any of that $1,200 stimulus check to [Mother],

did you?

A. No.

Q. And you didn’t send any of that $600 stimulus check to [Mother], did

you?

A. No.

In addition to the stimulus payments, Father also received a tax refund during the

relevant time period. Janet E., the Children’s maternal grandmother, testified that Crystal

L., the Children’s paternal grandmother, indicated that Father wanted to use his tax refund

to pay child support. However, Janet E. stated that she never received this money. Father

testified that he tendered the money, but Janet E. refused to take it. Janet E. disputes this

testimony. Indeed, Father testified that he gave Janet E. money towards child support on

several occasions. However, when asked about canceled checks or receipts for such

payments, Father testified that he paid in cash and that any receipts were lost:

Q. Okay. All right. Let’s talk a little bit about child support. Child support

was ordered in this divorce. Before [the petition to terminate parental rights]

was filed, did you pay any child support directly to [Mother]?

A. Hm? No.

Q. Okay. Did you pay any to [Janet E.]?

A. Yes.

Q. Okay. And when did you pay that and what form did it take?

A. It was in cash and she had given me receipts for the child support

payments, but they have been lost.

During her testimony, Janet E. disputed receipt of any payments from Father. As set out

in context below, the trial court did not find Father’s testimony credible. The trial court

specifically found Appellees’ testimony credible. As discussed above, where issues of

credibility and weight of testimony are involved, this Court will accord considerable

deference to the trial court’s factual findings. In re M.L.P., 228 S.W.3d at 143 (citations

omitted). Applying this standard, there is clear and convincing evidence in the record that,

despite having the means and ability to do so, Father failed to pay child support during the

relevant four-month period. It was only after the Appellees filed their petition to terminate

his parental rights, that Father made several child support payments. However, Father’s

attempts to provide support after Appellees filed the petition to terminate his parental

rights is ineffective to remedy the fact that he clearly failed to make any support payments

during the relevant four-month time period. Tenn. Code Ann. § 36-1-102(1)(F)

(“Abandonment may not be repented of by resuming . . . support subsequent to the filing

of any petition seeking to terminate parental . . . rights . . . .”). Therefore, we conclude

that there is clear and convincing evidence to support the trial court’s termination of

Father’s parental rights on the ground of abandonment by failure to support.

-8-

V. Best Interest

When at least one ground for termination of parental rights has been established, the

petitioner must then prove, by clear and convincing evidence, that termination of the

parent’s rights is in the child’s best interest. In re Bernard T., 319 S.W.3d at 606 (citing

In re Adoption of A.M.H., 215 S.W.3d 793 at 809). As the Tennessee Supreme Court

explained:

Facts considered in the best interest analysis must be proven by “a

preponderance of the evidence, not by clear and convincing evidence.” In re

Kaliyah S., 455 S.W.3d [533,] 555 [(Tenn. 2015)] (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 “[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).

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).

The Tennessee Legislature has codified certain factors that courts should consider

in ascertaining the best interest of the child in a termination of parental rights case. At the

time Appellees filed their petition to terminate Appellant’s parental rights, these factors

included, in relevant part:

(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;

-9-

***

(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). This list of factors is not exhaustive, nor does the statute

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

that terminating a parent’s rights is in the best interest of a child.” In re M.A.R., 183 S.W.

3d 652, 667 (Tenn. Ct. App. 2005). Each termination of parental rights case includes

different circumstances, and the consideration of a single factor or other factors outside

those enumerated in the statute, may dictate the outcome of the best interest analysis. In

re Audrey S., 182 S.W.3d at 877. As explained by this Court:

Ascertaining a child’s best interests . . . does not call for a rote examination

of each of Tenn. Code Ann. § 36-1-113(i)’s [] factors and then a

determination of whether the sum of the factors tips in favor of or against the

parent. The relevancy and weight to be given each factor depends on the

unique facts of each case. Thus, depending 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.

White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 1994).

In its order terminating Father’s parental rights, the trial court made the following

findings concerning the Children’s best interest:

a. Whether the parent or guardian has made an adjustment of circumstances,

conduct, or conditions as to make it safe and in the child’s best interest to be

in the parent’s home. From the testimony, [Father] has had a long history of

drug and alcohol abuse. However, the Court finds from the testimony that he

has corrected (for the most part) his behavior, so this factor weighs in his

favor.

b. Whether the parent or guardian has failed to effect a lasting adjustment

with reasonable effort. The Court doesn’t recall much proof on this factor.

- 10 -

Even after [Father’s] release from incarceration, he failed a drug screen.

c. Whether the parent or guardian has maintained visitation or contact with

the child. It is the opinion of the Court that this has not really happened.

d. Whether a meaningful relationship has otherwise been established

between the parent or guardian and the child. [Father] and his mother said

that they had a good relationship. [Appellees] and [Janet E.] testified that

there wasn’t really a relationship there, so the Court has two versions of what

is going on here. The Court notes that at the time the parties were divorced,

the last visitation with these [C]hildren were when they were three and seven.

It’s the Court’s opinion that [Father] has been out of the picture for several

years. The Court finds that the [Appellees’] testimony is more credible

regarding this factor, because [Father] has not been around these [C]hildren

for so long and because the [C]hildren were so young during his last contact

and visitation with them. The Court finds [Joshua H.] to be a very credible

witness. He testified that he loved the [C]hildren. He is involved in their

everyday activities. He coached their sports teams. He helped them with

homework, helped them with bathing, feeding, and the other things that a

father is supposed to do. The Court finds his testimony very credible and

finds that he has bonded with the [C]hildren.

e. The effect of a change of caretakers or physical environment is likely to

have on the [C]hildren’s emotional, psychological, or medical condition.

From the testimony, it sounds like both of these [C]hildren are well grounded

and have a good environment. They are doing well. It is the opinion of the

Court that based on that, if the Court were to uproot them right now and

change their situation, that would be a detriment to their wellbeing.

f. Whether the parent or guardian or other persons residing with the parent or

guardian has shown brutality, sexual, physical, emotional, or psychological

abuse or neglect toward the children or another child or adult in the

household. There is testimony that [Father] had a severe drug and alcohol

problem in the past. He cut his wrists on one occasion and there was

testimony presented about his abuse that led to the filing of the divorce. There

was testimony presented that the parties’ daughter still has nightmares as a

result of the abuse, so this factor weighs in favor of the [Appellees].

g. Whether the physical environment of the parent 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 that may render the

parent or guardian consistently unable to care for the child. The Court does

not find that there is any proof of that going on right now, but that was the

basis behind why [Mother] and [Father] divorced and the reason he was

incarcerated. Until and even after his incarceration, these activities were

there. The Court does not find that they are going on at this time.

h. Whether the parent or guardian’s mental or emotional status would be

detrimental. It causes the Court some concern that [Father] did cut his wrists,

- 11 -

by his own admission. This factor would weigh in the [Appellees’] favor.

i. Whether the parent or guardian has paid child support consistent with child

support guidelines. The credible testimony is that [Father] started paying

child support after this petition was filed and he has paid consistently now.

However, it is clear that he failed to pay prior to the petition being filed. This

factor weighs in favor of [Appellees].

7. Based upon the analysis of the best interest[] factors, the [Appellees] have

met their burden of proof by clear and convincing evidence that it is in the

best interests [of the Children] that [Father’s] parental rights be terminated.

The record supports the trial court’s findings. Mother testified to Father’s abuse of

drugs and alcohol during their marriage. Mother further testified concerning several

violent episodes in the home, including an incident where Father hit Mother with a chair,

and another incident where Father threatened Mother and the Children with a knife then

threatened to kill himself. Janet E. testified to an incident that occurred during a visitation

she was supervising where Father became angry and slammed his fist against the wall.

Father denies these events, but, as noted above, the trial court did not find his testimony

credible. The record indicates that Arianna has suffered from nightmares and fears

regarding Father. Mother, Joshua H., and Janet E. separately opined that these fears stem

from the fact that Arianna witnessed abuse perpetrated by Father against Mother. Arianna

is currently receiving therapy to address these issues. Therefore, in the absence of any

proof that Father has addressed his anger issues, there is concern that his emotional status

might pose a risk of harm to the Children.

There is also concern that Father has not seriously addressed his drug and alcohol

abuse. Father admitted to two DUIs within a three-month time period. Mother testified

that Father was also stopped on a college campus on suspicion of DUI when Arianna was

in the vehicle with him. No police report was filed as the incident was addressed by a

college safety officer, and Mother arrived to drive the vehicle. On another occasion, Father

admitted to “rolling” a vehicle, which he was operating under the influence. As noted

above, Father was incarcerated for DUI. Although he testified that he has not abused

alcohol or drugs since his release, Trial Exhibit 8 is his conviction for probation violation

for testing positive for methamphetamine. Father testified that he does not use

methamphetamine regularly and that his positive test resulted from a “one-time” use.

Crystal L. also opined that Father only used methamphetamine one time, but, again, the

trial court’s credibility findings weigh against this testimony. Regardless of whether

Father’s use of methamphetamine was a single event or a regular occurrence, the fact

remains that he did use methamphetamine while he was on probation for a DUI. Father’s

decision to use methamphetamine at all clearly supports a finding that he has not

sufficiently addressed his substance abuse issues. Father also admitted that, during his only

attempt at in-patient rehabilitation, he checked out within a week against medical advice,

and then incurred a DUI on the same day he left the facility.

- 12 -

Furthermore, there is no indication that either child has a bond with Father. The

testimony shows that Ashton “doesn’t know who [Father] is,” and refers to his step-father,

Joshua H., as “dad”. Arianna has shown fear when she is around Father, or thinks he is

present.

Father’s participation in the Children’s lives has been sparse and inconsistent.

Although Father has exercised some visitation, there is nothing to suggest that he has been

able to form a bond with the Children, see supra. Janet E., who supervised all visits,

testified to smelling alcohol on Father’s breath at visitations and, as discussed above,

testified that his behavior was sometimes erratic, which scared the Children and caused her

to end some visits early. Meanwhile, the Children have bonded with their step-father, and

he wishes to adopt them. The trial court found Joshua H.’s testimony to be very credible.

Joshua H. testified that he has assumed the role of father with the Children. He supports

them financially and emotionally, and is very active in their extracurricular activities.

During his testimony, Joshua H. expressed his love for the Children and for Mother and

indicated his intent to provide a loving, stable home. To remove the Children from this

environment would likely cause them emotional distress. This is especially so in view of

the lack of evidence that Father has addressed his anger and substance abuse issues.

Finally, Father has failed to provide any meaningful support for the Children.

Instead, this role has been assumed by Joshua H. As discussed above, Father’s only support

was tendered after the petition to terminate his rights was filed, and this fact does not cure

his previous decision to withhold support. From the totality of the circumstances, and the

record as a whole, there is clear and convincing evidence to support the trial court’s finding

that termination of Father’s parental rights is in the Children’s best interests.

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s order terminating Appellant’s

parental rights. The case is remanded for such further proceedings as may be necessary

and are consistent with this opinion. Costs of the appeal are assessed to the Appellant,

Corey B., for all of which execution may issue if necessary.

s/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

- 13 -