                                                                                                          08/30/2017
                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                  Assigned on Briefs July 3, 2017

                                  IN RE MIRACLE M. ET AL.

                      Appeal from the Juvenile Court for Shelby County
                            No. AA6223 Dan H. Michael, Judge
                          ___________________________________

                                No. W2017-00068-COA-R3-PT
                            ___________________________________

This is a termination of parental rights case. The trial court terminated Appellant Father’s
parental rights to two minor children. The trial court found that clear and convincing
evidence supported termination based on the statutory grounds of abandonment by willful
failure to support, abandonment by willful failure to visit, and persistence of the
conditions that led to the children’s removal to state custody. The trial court also found,
by clear and convincing evidence, that termination of the Father’s parental rights was in
the children’s best interests. Father appeals.1 As to the ground of persistence of
conditions, we conclude that the Department of Children’s Services (“DCS”) has not met
its burden of proof, and therefore we reverse termination of Father’s parental rights on
this ground. The Court affirms the juvenile court’s termination of Father’s parental rights
on the grounds of abandonment by willful failure to support and abandonment by willful
failure to visit.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                Reversed in Part, Affirmed in Part, and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

James Franklin, Jr., Memphis, Tennessee, for the appellant, Jeremiah M.

Herbert H. Slatery, III, Attorney General and Reporter; and Jordan K. Crews, Assistant
Attorney General, for appellee, Tennessee Department of Children’s Services.




       1
           The children’s mother’s parental rights were also terminated; however, she has not appealed.
                                          OPINION

                 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      Jeremiah M. (“Father”) is the legal father of Jerenikkia M. (d.o.b. October 2009)
and the putative father of Miracle M. (d.o.b. July 2012) (together with Jerenikkia, “the
Children”). 2

       On August 5, 2014, Tonya M. (“Mother”) brought Jerenikkia and Miracle to the
hospital for immunizations. Mother reported that Jerenikkia had not been to a doctor
since 2010, and Miracle had not been to a doctor since she was born. Medical staff
reported that Jerenikkia was severely underweight, severely developmentally delayed,
behind in immunizations, and suffering from a reflux issue that had not been addressed.
Mother also reported that, since January 2014, she had neglected to give Jerenikkia eye
drops prescribed to treat the child’s glaucoma. Jerenikkia also required a leg brace due to
a deformity in her leg; Mother reported the child had not worn the brace in two years.
Miracle was also severely underweight and developmentally delayed. Furthermore, the
Children were dirty, smelled of urine, and were covered in insect bites.

        On August 13, 2014, the juvenile court removed the Children from Mother’s home
due to medical neglect, malnourishment, and suspected child abuse. Father was
incarcerated when the girls were initially placed into foster care and has an extensive
arrest record dating back to 1984. Among other things, he has been arrested for domestic
violence, burglary, malicious mischief, multiple DUIs, aggravated assault and battery,
violation of child restraint laws, and felon in possession of a handgun. He currently has
an income of $735.00 a month from Social Security disability.

        The Children have remained in DCS custody since August 2014. Although Father
was incarcerated when DCS originally took custody of the Children, Family Service
Worker Tramaine Lewis contacted Father and sent him a letter informing him that the
Children had been taken into protective custody. Ms. Lewis did not receive a response. It
was not until February of 2015, at a Child and Family Team Meeting, that Ms. Lewis met
Father. Thereafter, Ms. Lewis testified that she attempted to contact Father through his
sister, and she wrote him letters in an effort to update him on the case.

       In April 2015, the Children were adjudicated dependent and neglected due to
environmental neglect, lack of supervision, nutritional neglect, and medical maltreatment.
Father had a conference call with Ms. Lewis on July 9, 2015 to discuss a new
permanency plan. Father testified that Ms. Lewis specifically informed him that his
parental rights could be terminated if he did not exercise visitation with the Children

       2
        In termination of parental rights cases, it is the policy of this Court to abbreviate the
names of minor children and other parties in order to protect their identities.
                                              -2-
during the next four months. Despite Ms. Lewis’ admonition, Father still did not seek
visitation with the Children. In fact, he repeatedly ignored Ms. Lewis’ letters. While
Father did attend some of Jerenikkia’s medical appointments, he did not interact with the
Children through therapeutic visitation. Nor did he provide any financial support. Indeed,
Father admits that he has never provided financial support for the Children.

       On November 17, 2015, DCS filed a petition to terminate Father’s parental rights.
The trial court heard the petition on December 8, 2016. By order of December 16, 2016,
the trial court terminated Father’s parental rights on the grounds of abandonment by
willful failure to support, abandonment by willful failure to visit, and persistent of the
conditions that led to the Children’s removal to state custody. The trial court also found
that termination of Father’s parental rights was in the Children’s best interests. Father
appeals.

                                         II. ISSUES

       Father raises the following issues on appeal, which we restate as follows:

       1. Whether sufficient statutory notice was provided for the grounds of
       abandonment for failure to support and failure to visit?

       2. Whether the trial court erred in finding persistence of conditions when the
       children were not removed from Father’s home?

       The Tennessee Supreme Court has directed this Court to consider the sufficiency
of the trial court’s findings with regard to each ground for termination and as to whether
termination is in the child’s best interest regardless of whether the parent challenges those
findings on appeal. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016). Therefore,
in addition to addressing Father’s specific issues, we will also review the trial court’s
findings as to each of the grounds for termination.

                               III. STANDARD OF REVIEW

        “A biological parent’s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the Due Process Clauses
of the federal and state constitutions.” Carrington H., 483 S.W.3d at 522. Although
constitutionally protected, parental rights are not absolute. Id. at 522. Tennessee law
upholds the State’s authority to terminate parental rights when necessary to prevent
serious harm to children. Id. A decision terminating parental rights is final and
irrevocable. See Tenn. Code Ann. § 36-1-113. Therefore, parents are constitutionally
entitled to fundamentally fair procedures in termination proceedings. See Carrington H.,
483 S.W.3d at 522.

                                            -3-
       In order to ensure fundamental fairness in termination proceedings, Tennessee law
imposes a heightened standard of proof—clear and convincing evidence—for the parent’s
benefit. See Tenn. Code Ann. § 36-1-113(c)(1); Carrington H., 483 S.W. 3d at 522. The
clear-and-convincing-evidence standard ensures that the facts supporting the statutory
grounds for parental rights termination are highly probable before the State terminates a
parent’s fundamental rights. Carrington, 483 S.W. 3d at 522.

       A court may terminate a person’s parental rights only if the party seeking
termination establishes: (1) the existence of at least one statutorily enumerated ground
and; (2) that termination of parental rights would be in the best interest of the child. See
Tenn. Code Ann. § 36-6-113(c). DCS bears the initial burden of establishing the
statutorily enumerated grounds for termination by clear and convincing evidence. See
Tenn. Code Ann. § 36-1-113(c)(1); In re Angela E., 303 S.W.3d 240, 251 (Tenn. 2010).
Second, DCS must prove, by clear and convincing evidence, that the termination of the
parent’s rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); Angela
E., 303 S.W.3d at 251.

       An appellate court applies the standard mandated by Tennessee Rule of Appellate
Procedure 13(d) when reviewing a trial court’s findings in termination proceedings. See
Carrington H., 483, S.W.3d at 523; Angela E., 303 S.W.3d at 246. First, we review the
trial court’s specific factual findings de novo on the record with a presumption of
correctness unless the evidence in the record preponderates otherwise. Tenn. R. App. P.
13(d); In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013). In light of the heightened
burden of proof in termination proceedings, a reviewing court must then make its own
determination as to whether the trial court’s findings amount to clear and convincing
evidence that the elements necessary to terminate parental rights have been established.
Taylor B.W., 397 S.W.3d at 112. Whether the facts are sufficient to support termination
of parental rights is a conclusion of law, which this Court reviews de novo with no
presumption of correctness. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007) (citing In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002)).

                                      IV. ANALYSIS

                                SUFFICIENCY OF NOTICE

       As an initial matter, Father alleges that DCS did not satisfy the notice
requirements of Tennessee Code Annotated section 37-2-403(2)(B)(i), which provides, in
pertinent part:

       (2)(A) The permanency plan for any child in foster care shall include a
       statement of responsibilities between the parents, the agency and the
       caseworker of such agency. Such statements shall include the
       responsibilities of each party in specific terms and shall be reasonably
                                          -4-
related to the achievement of the goal specified in subdivision (a)(1). The
statement shall include the definitions of “abandonment” and
“abandonment of an infant” contained in § 36-1-102 and the criteria and
procedures for termination of parental rights. Each party shall sign the
statement and be given a copy of it. The court must review the proposed
plan, make any necessary modifications and ratify or approve the plan
within sixty (60) days of the foster care placement. The department of
children's services shall, by rules promulgated pursuant to the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5, part 2,
determine the required elements or contents of the permanency plan.

      (B)(i) The parents or legal guardians of the child shall receive notice
      to appear at the court review of the permanency plan and the court
      shall explain on the record the law relating to abandonment
      contained in § 36-1-102, and shall explain that the consequences of
      failure to visit or support the child will be termination of the parents'
      or guardians' rights to the child, and the court will further explain
      that the parents or guardians may seek an attorney to represent the
      parents or guardians in any termination proceeding. If the parents or
      legal guardians are not at the hearing to review the permanency plan,
      the court shall explain to the parents or guardians at any subsequent
      hearing regarding the child held thereafter, that the consequences of
      failure to visit or support the child will be termination of the parents'
      or guardians' rights to the child and that they may seek an attorney to
      represent the parents or guardians in a termination proceeding.

      (ii) If the parents or guardians of the child cannot be given notice to
      appear at the court review of the permanency plan, or if they refuse
      or fail to appear at the court review of the permanency plan, or
      cannot be found to provide notice for the court review of the
      permanency plan, any agency that holds custody of the child in
      foster care or in any other type of care and that seeks to terminate
      parental or guardian rights based upon abandonment of that child
      under § 36-1-102, shall not be precluded from proceeding with the
      termination based upon the grounds of abandonment, if the agency
      demonstrates at the time of the termination proceeding:

             (a) That the court record shows, or the petitioning party
             presents to the court a copy of the permanency plan that
             shows that the defendant parents or legal guardians,
             subsequent to the court review in subdivision (a)(2)(B)(i), has
             signed the portion of the permanency plan that describes the
             criteria for establishing abandonment under § 36-1-102, or
                                    -5-
                      that the court record shows that, at a subsequent hearing
                      regarding the child, the court made the statements to the
                      parents or legal guardians required by subdivision
                      (a)(2)(B)(i);
                      (b) By an affidavit, that the child's permanency plan
                      containing language that describes the criteria for establishing
                      abandonment under § 36-1-102 was presented by the agency
                      party to the parents or guardians at any time prior to filing the
                      termination petition, or that there was an attempt at any time
                      to present the plan that describes the criteria for establishing
                      abandonment under § 36-1-102 to the parents or guardians at
                      any time by the agency party, and that such attempt was
                      refused by the parents or guardians; and

                      (c) That, if the court record does not contain a signed copy of
                      the permanency plan, or if the petitioning agency cannot
                      present evidence of a permanency plan showing evidence of
                      such notice having been given or an affidavit showing that the
                      plan was given or that the plan was attempted to be given to
                      the parents or guardians by the agency and was refused by the
                      parents or guardians, and, in this circumstance, if there is no
                      other court record of the explanation by the court of the
                      consequences of abandonment and the right to seek an
                      attorney at any time, then the petitioning agency shall file
                      with the court an affidavit in the termination proceeding that
                      describes in detail the party's diligent efforts to bring such
                      notice required by subdivision (a)(2)(B)(i) to such parent or
                      guardian at any time prior to filing the agency's filing of the
                      termination petition.

Tenn. Code Ann. § 37-2-403.

        In the first instance, Father did not timely raise the notice argument in the trial
court. It is well established that issues not raised in the trial court cannot be raised for the
first time on appeal. See, e.g., Correll v. E.I. DuPont de Nemours & Co., 207 S.W.3d
751, 757 (Tenn. 2006) (quoting Simpson v. Frontier Mmty. Credit Union, 810 S.W.2d
147, 153 (Tenn. 1991)).

        However, even if we assume, arguendo, that Father properly raised this issue in
the trial court, the evidence does not support his contention. At the hearing on the petition
to terminate his parental rights, Father was asked, “Did [Ms. Lewis] tell you that if you
didn’t get a visit in four months that your parental rights could be terminated?” Father
responded, “Yes, she told me that [at the hearing in July 2015].” Father’s position is
                                            -6-
plainly contradicted by his own testimony. Accordingly, we conclude, even if the issue
was not waived, Father, by his own testimony, received sufficient notice under the
statute.

            GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

       A.     Abandonment by Willful Failure to Visit and Willful Failure to
              Support

       The trial court found, by clear and convincing evidence, that Father's parental
rights should be terminated on the ground of abandonment by willful failure to pay
support and willful failure to visit pursuant to Tennessee Code Annotated Section 36-1-
113(g)(1) and Tennessee Code Annotated Section 36-1-102(1)(A)(i). 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 non-exclusive, so that listing conditions, acts or
       omissions in one ground does not prevent them from coming within another
       ground:

       (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred;

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part, as follows:

       (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:

       (i) For a period of four (4) consecutive months immediately preceding the
       filing of a proceeding or pleading to terminate the parental rights of the
       parent or parents or the guardian or guardians of the child who is the
       subject of the petition for termination of parental rights or adoption, that the
       parent or parents or the guardian or guardians either have willfully failed to
       visit or have willfully failed to support or have willfully failed to make
       reasonable payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i). In this case, the petition for termination of parental
rights was filed on November 17, 2015. Therefore, the relevant period for purposes of
abandonment is the four-month period immediately preceding the filing of the petition.
Tenn. Code Ann. § 36-1-102(1)(A)(i).
                                         -7-
       In In re Audrey S., this Court discussed willfulness in the context of termination of
parental rights cases:

       The concept of “willfulness” is at the core of the statutory definition of
       abandonment. A parent cannot be found to have abandoned a child under
       Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either
       “willfully” failed to visit or “willfully” failed to support the child for a
       period of four consecutive months.... 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-
       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. 2005) (internal citations and
footnotes omitted).

       1.     Abandonment by Willful Failure to Support

       Willful failure to support or to make reasonable payments towards support “means
the willful failure, for a period of four (4) consecutive months, to provide monetary
support or the willful failure to provide more than token payments toward the support of
the child.” Tenn. Code Ann. § 36-1-102(1)(D). Parents over the age of eighteen are
presumed to be aware of their duty to support their children. Tenn. Code Ann. § 36-1-
102(1)(H). For purposes of Tennessee Code Annotated Section 36-1-102(1)(A)(i), “token
support” means support that, under the circumstances of the individual case, is
insignificant given the parent’s means. Tenn. Code Ann. § 36-1-102(1)(B). A parent
willfully fails to support his or her child when he or she has the capacity to make a
payment but makes no attempt to do so and does not possess a justifiable excuse. Angela
E. 402 S.W.3d at 641; see also In re J.J.C., 148 S.W.3d 919, 926 (Tenn. Ct. App. 2004)
(quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524,
at *5 (Tenn. Ct. App. Nov. 25, 2003)). A parent who has failed to make payments due to
forces beyond his or her control has not abandoned his or her child. Id. Any attempt of a
parent to rectify abandonment by resuming payments once a petition for termination has

                                           -8-
been filed does not preclude DCS from seeking termination of parental rights. Tenn.
Code Ann. 36-1-102(1)(F).

       DCS has the burden to prove, by clear and convincing evidence, that, during the
relevant period, Father: (1) had the ability to pay support; (2) did not pay more than token
support and; (3) did not have a justifiable excuse for non-payment. Angela E., 402
S.W.3d at 640. It is undisputed that Father has made no payments toward the support of
the Children during the relevant time period. The question, then, is whether Father had
the means to pay support. The record shows that, during the relevant period, Father had
income of at least $735.00 per month. Accordingly, it appears that Father could have paid
some amount of support. Concerning why he did not, Father testified, that he has never
provided financial support for the Children because of “all of the stuff going on with bills
and stuff like that.” The record shows that he does have money to support his smoking
habit. He admitted that he purchases a pack of cigarettes every two days. In view of the
fact that Father has income sufficient to support his habit, we conclude, as did the trial
court, that he has no justifiable excuse for failing to make child support payments.
Accordingly, we conclude that the record contains clear and convincing evidence to
support the trial court’s finding that Father abandoned the Children by willful failure to
support.

       2.     Abandonment by Willful Failure to Visit

        The trial court also found that Father abandoned the Children by willfully failing
to visit them during the four months preceding the filing of the petition to terminate his
parental rights. A parent willfully abandons his or her children by failing to visit them if
he or she does not engage in visitation with the children for the four (4) months preceding
the filing of the petition to terminate parental rights. Tenn. Code Ann. § 36-1-
102(1)(A)(i). “Token visitation” means visitation that, under the individual circumstances
of the 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). A parent does not willfully
abandon his or her children by failing to visit them if his or her failure is excused by
forces beyond their control. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007). However, the parent—not DCS—has the duty to make every reasonable effort to
arrange and insist on visitation with his or her children. See In re S.Y., 121 S.W.3d 358,
369 (Tenn. Ct. App. 2003).

       The trial court found that, during the relevant statutory period, Father willfully
abandoned the Children by failing to visit them. By his own testimony, which was
corroborated by several witnesses, Father admitted that he had not visited the Children
during the relevant time period. Father asserts that his attendance at Jerenikkia’s doctors’
appointments constitutes visitation. However, Ms. Lewis repeatedly attempted to contact
father through calls and letters. At most, we conclude, that Father’s engagement at the
                                           -9-
doctor’s appointments was sporadic and cannot constitute more than token visitation. The
Children’s foster mother also testified that she gave Father her contact information and
told him to call anytime to schedule a visit. During his testimony, Father admitted that
Ms. Lewis told him specifically, at the hearing in July 2015, that if he did not visit the
Children in the next four months his parental rights could be terminated. Nonetheless,
Father failed to make any effort to spend time with the Children until after the petition to
terminate his parental rights was filed. As noted above, “[a]bandonment may not be
repented of by resuming visitation or support subsequent to the filing of any petition
seeking to terminate [parental rights].” Tenn. Code Ann. § 36-1-102(1)(F). From our
review of the record, and in view of the totality of the circumstances, we conclude that
there is clear and convincing evidence in the record to support the trial court’s finding
that Father abandoned the Children by willful failure to visit.

        B.    Persistence of Conditions

       Tennessee Code Annotated Section 36-1-113(g)(3) defines persistence of
conditions as follows:

       (3) The child has been removed from the home of the parent or guardian by
       order of a court for a period of six (6) months:

       (A) The conditions that led to the child's removal or other conditions that in
       all reasonable probability would cause the child to be subjected to further
       abuse or neglect and that, therefore, prevent the child's safe return to the
       care of the parent(s) or guardian(s), still persist;

       (B) There is little likelihood that these conditions will be remedied at an
       early date so that the child can be safely returned to the parent(s) or
       guardian(s) in the near future; and

       (C) The continuation of the parent or guardian and child relationship
       greatly diminishes the child's chances of early integration into a safe, stable
       and permanent home.

       The purpose behind the “persistence of conditions” ground for terminating
parental rights is “to prevent the child's lingering in the uncertain status of foster child if a
parent cannot within a reasonable time demonstrate an ability to provide a safe and caring
environment for the child.” In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010),
overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). “[A]s a
threshold requirement for applicability of the ground of persistence of conditions in
termination of parental rights cases, the child must not only have been adjudicated
dependent and neglected, but he or she must also have been removed from the defendant
parent's home.” In re Damien G. M, No. E2016-02063-COA-R3-PT, 2017 WL 1733867
                                              - 10 -
(Tenn. Ct. App. May 3, 2017) (citing Tenn. Code Ann. § 36-1-113(g)(3) (“The child has
been removed from the home of the parent ....”) (emphasis added)). From the record, it is
clear that the Children were not, in fact, living in Father's home at the time they were
removed to state custody. Father was incarcerated at that time, and all evidence indicates
that the Children were removed from Mother's custody. In In re Maria B.S., this Court
was presented with a situation similar to the case at bar. In Maria B.S., father's parental
rights were terminated on a finding of persistence of conditions; however, the children
had not, in fact, been removed from father's home because he was incarcerated at the
time. In reversing the ground of persistence of conditions, we explained:

              We next address whether the Trial Court erred in finding and
       holding that clear and convincing evidence existed to terminate Father's
       parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-
       113(g)(3). Father argues that this ground could not be applied to his case as
       the Children were not removed from his home by order of a court. “The
       child has been removed from the home of the parent or guardian by order of
       a court....” Tenn. Code Ann. § 36-1-113(g)(3).

              We agree with Father as to this issue. Father was incarcerated at the
       time of the Children's birth. No one removed the Children from Father-he
       never had the Children in the first place. There is case precedent to support
       Father's position that, without removal from that parent's home, the ground
       of persistent conditions is inapplicable. See In re T.L., No. E2004–02615–
       COA–R3–PT, 2005 WL 2860202, at *7 (Tenn. Ct. App. Oct.31, 2005),
       Rule 11 appl. perm. appeal denied Feb. 17, 2006; In re D.L.B., No. W2001-
       02245-COA-R3CV, 2002 WL 1838147, at *9 (Tenn. Ct. App. Aug.6,
       2002), rev'd on other grounds, 118 S.W.3d 360 (Tenn. 2003); In re B.P.C.,
       M2006-02084-COA-R3-PT, 2007 WL 1159199, at *7 (Tenn. Ct. App.
       April 18, 2007).

In re Maria B.S., No. E2012-01295-COA-R3-PT, 2013 WL 1304616, at *11 (Tenn. Ct.
App. March 4, 2013).

       Based on the foregoing authority, we hold that the statutory ground of persistence
of conditions is not applicable to Father under the facts presented here insomuch as the
record contains no evidence to suggest that the Children were residing in Father's home at
the time of their removal.

       Although we reverse the trial court's finding as to the ground of persistence of the
conditions that led to the Children’s removal, in order to terminate parental rights, the
moving party need only establish one of the statutory grounds for termination. Tenn.
Code Ann. § 36-1-113(c). Because we have affirmed the remaining grounds that the trial
court relied on in terminating Father's parental rights, i.e., abandonment by willful failure
                                           - 11 -
to visit and support, we proceed to a review of the trial court’s finding that termination of
Father's parental rights is in the Children's best interests.

                             BEST INTEREST ANALYSIS

       When at least one of the statutory grounds for termination of parental rights has
been established by clear and convincing evidence, the petitioner must next prove, by
clear and convincing evidence, that termination of the parent’s rights is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c)(2); In re Angela E., 303 S.W.3d at 251. Once
the court has determined that the parent is unfit based on clear and convincing evidence
that one or more of the grounds for termination exists, the interests of the parent and child
diverge, and the interests of the child become the court’s paramount consideration. In re
Audrey S., 182 S.W.3d at 877. Because not all parental misconduct is irredeemable, the
statutes governing termination of parental rights in Tennessee recognize that terminating
the parental rights of an unfit parent will not always serve the best interests of the child.
Id. If the interests of the parent and the child conflict, however, the court must always
resolve the conflict in favor of the rights and best interests of the child. Tenn. Code Ann.
§ 36-1-101(d).

        Tennessee Code Annotated section 36-1-113(i) sets forth a list of factors a court
may consider when determining a child’s best interest in parental rights termination
proceedings. These factors include whether the parent has maintained regular visitation
with the child, whether a meaningful relationship has otherwise been established, and
whether the parent paid child support in the past. Tenn. Code Ann. § 36-1-113(i).
Although courts should consider the statutory factors to the extent that they are relevant
to the particular facts and circumstances of the case, the 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 at 667. Depending on the circumstances of the case,
the consideration of a single factor, or facts outside the statutory factors, may dictate the
outcome of the court’s analysis. In re Audrey S., 182 S.W.3d at 878.

       Here, the trial court made the following best interest findings:

       1.    The children have been living in their pre-adoptive home since
       August 2014 and have considerably improved both developmentally and
       physically.

       2.     The testimony indicated it would be detrimental to remove the
       children from their foster mother.

       3.     The parents have not made adjustments to make it safe or in the
       children’s best interest to be returned; the parents have not maintained
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       regular visitation; a meaningful relationship has not otherwise been
       established; the conditions of the parents’ homes are not healthy and safe
       for the children.

        At trial, Father testified that he wants custody, but he admitted that he is concerned
about his own ability to care for the children. Due to a lack of contact, it is clear that
Father has no meaningful relationship with the Children. In fact, both the Children’s
foster mother and Ms. Welsh, the resource coordinator at Omnivision, testified that the
Children are upset and stressed after they see their Father. Specifically, the foster mother
testified that Miracle “shuts down” after her visits with Father and reverts to “babbling”
instead of speaking like a child her age. Ms. Welsh supervised a visit with Father and the
Children on October 19, 2016. She testified that he was late and brought cupcakes,
which he knew Jerenikkia was not allowed to eat because of digestive problems. Despite
the social worker’s objections, Father allowed Jerenikkia to eat six cupcakes, which
caused the child to soil herself. Father laughed when Ms. Welsh told him not to give
Jerenikkia so many cupcakes and sent Jerenikkia to the bathroom with his adult daughter
when she soiled herself. When the social worker left the room, she returned on multiple
occasions to find Jerenikkia hitting her head against the wall and Father ignoring her.

        Furthermore, Father has not demonstrated that he has the ability to properly care
for Children. As discussed in detail above, he has never paid support. Furthermore, when
in light of the fact that he has no driver’s license, Father was asked how he would get the
children to medical appointments, he stated that he has been “working on it” (i.e. getting
a license) for eight years, and that he had been driving without one. Father ultimately
responded that he would try to get a ride from relatives or catch the “Medicaid Cab.” At
trial, Father did not know the names of the Children’s doctor, the name of their school,
their grades, or the correct year of Jerenikkia’s birth.

       The record shows that the children have a strong emotional bond with their foster
mother who intends to adopt them as soon as possible. The foster mother takes care of
the children and ensures they attend all necessary medical appointments. A change of
caretakers and physical environment would likely have a negative effect on the children’s
emotional, psychological, and medical conditions. Tenn. Code Ann. § 36-1-113(i)(5).
From the record, we conclude there is clear and convincing evidence to support the trial
court’s findings that termination of Father’s parental rights is in the Children’s best
interests.

                                      V. CONCLUSION

       For the forgoing reasons, we reverse the trial court’s termination of Father’s
parental rights on the ground of persistence of the conditions that led to the Children’s
removal to state custody. We affirm the trial court’s termination of Father’s parental
rights on the grounds of abandonment by willful failure to visit and support and its
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determination that termination of Father’s parental rights is in the Children’s best
interests. The case is remanded for such further proceedings as may be necessary and are
consistent with this opinion. Costs of the appeal are assessed against the Appellant,
Jeremiah M. Because Jeremiah M. is proceeding in forma pauperis in this appeal,
execution for costs may issue if necessary.


                                                  _________________________________
                                                  ARNOLD B. GOLDIN, JUDGE




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