                                                                                                            12/21/2018
                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                Assigned on Briefs October 1, 2018

                                         IN RE: MIKKO B.1

                      Appeal from the Chancery Court for Knox County
                  No. 192363-2      Clarence E. Pridemore, Jr., Chancellor
                          ___________________________________

                                  No. E2018-00521-COA-R3-PT
                              __________________________________

A mother and her husband petitioned the court to terminate the biological father’s
parental rights to his son on the grounds of abandonment by failure to visit and failure to
support. After a trial, the court terminated Father’s rights on those grounds and upon its
holding that termination of Father’s rights would be in the best interest of the child.
Father appeals. Upon our review, we affirm the judgment in all respects.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.

Edith A. Brady, Sevierville, Tennessee, for the appellant, Damian B.

Mital D. Patel, Knoxville, Tennessee, for the appellees, Ronald K. and Kelli K.

                                                 OPINION

I. FACTUAL AND PROCEDURAL HISTORY

      Mikko B. (“Child”) was born to Kelli C. (“Mother”) and Damian B. (“Father”) in
December 2009 in Asheville, North Carolina.2 Mother, Father, and Mikko lived together
in North Carolina until 2012, when Mother relocated to Knoxville, Tennessee, with
Mikko.

1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
2
    Kelli C. married in July 2016; she is now Kelli K.
       In 2013, Mother initiated proceedings in the Juvenile Court of Knox County to
establish Father’s parentage of Mikko and to set a parenting plan and child support. An
order was entered on June 20, 2013, stating that “[t]he parties agree that the Father of the
subject child is Damian [B.]. The agreed parenting plan designates Mother as the
primary residential parent and awards Father 84 days of parenting time per year, to be
exercised every other weekend. Father’s monthly child support obligation was set at
$355.00.3

       In April 2016, Mother filed an “Emergency Petition for Custody or in the
alternative Emergency Petition for Modification” alleging inter alia that Father “was
bringing the Minor Child to stay the weekend with him in a home from which he was
selling illegal drugs”; that Father had been charged in September 2015 with Felony
Trafficking in Marijuana, Felony Possession of Schedule VI Controlled Substance,
Felony Maintaining a Dwelling for Keeping and Selling Controlled Substances, and
Misdemeanor Possession of Marijuana Paraphernalia; and that Father did not notify
Mother of the charges. An Expedited Order Directing Agency Supervised Visitation was
entered on May 5, 2016, ordering that Father’s visitation be supervised, and that it take
place at “Parent Place” in Knoxville based upon the availability of the facility and the
finances of the parties.

        In July 2016, Mother married Ronald K., (“Step-father”); the couple had
previously had a son in May 2016. On September 15, Mother and Step-father filed the
instant petition in Knox County Chancery Court, seeking to terminate Father’s parental
rights and for step-parent adoption. As grounds for termination, the petition alleged that
Father had abandoned Mikko by willfully failing to visit and support him; the petition
also alleged that termination of Father’s rights was in Mikko’s best interest.4
3
 The parties both testified that they attempted to mediate a new parenting plan in October 2015 due to
Father’s desire to have more time with Mikko and Father’s decision to establish a residence in Knoxville.
There is no order adopting a subsequent plan in the record.
4
    The petition also alleges the following:

                   16. Mother avers that father has extensive involvement in the trafficking of
          controlled substances, i.e. the drug trade, exposing the minor child to dangerous
          situations and persons and that father’s persistence of conditions (i.e. his continued
          involvement in these illegal activities) constitutes a wanton disregard for the child’s
          welfare.
                   17. Accordingly, Petitioners aver that placing custody of the child in the
          Respondent’s legal and physical custody will pose a risk of substantial harm to the
          physical and/or psychological welfare of the minor child as such is defined under
          Tennessee law, specifically Tennessee Code Annotated §§37-1-113 (7) [sic] and §§37-1-
          113[g](9)(A)(iv) and (v) (2014).

The trial court made no findings with regard to these grounds, and no issue is raised with respect to them
on appeal. The grounds are inapplicable to the facts of this case, inasmuch as there is no proof that Mikko
                                                    2
       Father answered the petition, and the court appointed a guardian ad litem. The
case proceeded to trial on November 17, 2017, and January 23 and February 6, 2018;
eight witnesses testified. An order terminating Father’s parental rights was entered on
March 1, terminating Father’s rights on the grounds of abandonment by willful failure to
pay support, abandonment by willful failure to visit, and upon its conclusion that
termination of Father’s rights would be in Mikko’s best interest.

        Father appeals, stating the following issues:

        I. The Trial Court erred in finding that the Petitioners had proven that
        grounds existed to terminate the father’s parental rights by clear and
        convincing evidence.
            a. The proof does not show abandonment by failure to provide support
            by clear and convincing evidence.
            b. The proof does not show abandonment by failure to visit by clear and
            convincing evidence.

        II. The Trial Court erred in using a preponderance of the evidence standard
        as opposed to the clear and convincing evidence standard when analyzing
        whether a termination of Father’s parental rights would be in the child’s
        best interest. Further, even if analyzed using a clear and convincing
        evidence standard, the facts set forth by the Court would not justify a
        finding that it was in the child’s best interest for Father’s parental rights to
        be terminated.

II. 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 Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s
rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one
ground need be proved, so long as it is proved by clear and convincing evidence. In the
Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

was removed from Father’s custody by court order (section 36-1-113(g)(3)(A)), or that Father was
incarcerated during a part of the four months preceding the filing of the petition (sections 36-1-113(g)(1)
and -102(1)(a)(iv)).
                                                    3
        Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).

III. ANALYSIS

     A. Whether Clear and Convincing Evidence Supported the Grounds of
Abandonment by Failure to Visit and Failure to Support

       Abandonment is identified as a ground for termination in Tennessee Code
Annotated section 36-1-116(g)(1) and defined in section 36-1-102(1)(A), which reads in
pertinent part:

       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[.]

                                             4
Tenn. Code Ann. § 36-1-102(1)(A) (2016). In In re Audrey S., 182 S.W.3d 838 (Tenn.
Ct. App. 2005), this Court discussed willfulness in the context of termination 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. . . . 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. The parental
       duty of visitation is separate and distinct from the parental duty of support.
       Thus, attempts by others to frustrate or impede a parent’s visitation do not
       provide justification for the parent’s failure to support the child financially.

       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.

Id. at 863-64 (citations and footnotes omitted).

              1. Failure to Support

      The trial court held that Father willfully failed to support Mikko in the four
months preceding the filing of the petition.5 The pertinent portion of the order reads:


5
  The petition was filed on September 15, 2106; consequently, the pertinent period is May 14 to
September 14.

                                              5
         By clear and convincing evidence, pursuant to Tennessee Code Annotated
         §36-1-113 and §36-1-102; it is clear to this court that:
                a. there is a grounds for Termination of Parental Rights based on
         abandonment due to a parent willfully failing to make reasonable payments
         toward the support of the child because the father willfully failed to support
         the minor child by failing to pay child support of any kind, except for the
         token amount of $100.00 during the four (4) month relevant period of time
         and a total of $165.00 from October 2016 until the present date. The court
         find[s] this to be token support.[6]

       Father does not challenge the finding that he did not pay support, other than $100,
during the period, and the testimony of Father and Mother supports the finding. We thus
turn to a consideration of Father’s arguments that his failure to support Mikko was not
willful.

       Father concedes that he was aware of his duty to pay support; he asserts that his
failure to pay support was not willful and that this ground was not proven as “there is
only confusing evidence as to the amount [of his income]”; that he did not have enough
income to meet his expenses; that “minimal evidence was submitted as to what Father’s
actual expenses were during the requisite time”; and that he “had been charged with
criminal activities that resulted in his reduced ability to obtain employment.” Father also
argues that “[w]hen Mother chose to leave [North Carolina] with the minor child, Father
did not continue his pursuit for higher education … [and] lost the money associated with
scholarships, grants and student loans.” In support of his argument, Father cites his
testimony that his driver’s “license is suspended right now”7; that he pled guilty in May
2016 to the felony of manufacturing marijuana; and that he makes $13,000 per year from
the business that does “automotive customizations and general service” that he has owned

6
 Tennessee Code Annotated section 36-1-102(1)(B) defines “token support” as “support [that],
under the circumstances of the individual case, is insignificant given the parent’s means.”
7
    Father’s explanation for his license being suspended was as follows:

                 Q You just testified -- when was the last time you had a valid license? Did
         you tell me that?
                 A I don’t know exactly the date was that it was -- my North Carolina
         driver’s license was valid until I went to go have it reinstated and there was a hold
         on it from Tennessee. So I had to pay a fee to them, which I did, to get it
         reinstated and then they said that I wouldn’t be able to go through until I had it
         taken care of here, at which time Ms. Wilford[, Father’s attorney,] had filed a
         motion. This was when the child support modifications was supposed to be to
         allow for arrears to be paid and my license to be reinstated, so I’m sorry, I don’t
         remember exactly the date.

                                                  6
for three and a half years. In addition to his testimony, the record contains an unsigned
affidavit prepared by Father and attached as an exhibit to his discovery responses setting
forth his income and expenses,8 and a signed affidavit of indigency filed in the case under
penalty of perjury. As we review the evidence and Father’s arguments, we are mindful of
the court’s adverse credibility determination:

          The Court would further state that it found most of the testimony to be
          credible with the exception of [Father] who the Court found to woefully
          lack credibility, that [Father] testified over the course of two days and wove
          a series of lies and deceit that this Court can barely make heads or tails out
          of.

        Father’s unsigned affidavit states that his net monthly income from his automotive
repair business is approximately $2,065.40; in the affidavit of indigency, however, Father
states that he made $13,000 per year; he also testified that he netted “maybe [$]27[,000]”
in 2017. Father also testified that he earned income giving tours of Asheville architecture,
doing work for friend, working for Elf Racing, and from rent received from tenants living
in his home. With respect to his expenses, the unsigned affidavit shows total monthly
expenses, including child support, of $4,245. Despite his assertion that he does not drive
since he has a suspended license, the unsigned affidavit reports that he spends $350.00
per month in gas and vehicle maintenance; the affidavit also states that he spends $250
per month on “entertainment” which he specifies as “restaurants, movies, child activities,
etc.” Father also testified that he has legal expenses relating to his criminal charges and
this termination proceeding; that he borrowed money from “mostly friends” and family to
pay for his attorneys; and that he hired an attorney for his criminal charges rather than
pay child support.9 While Father contends in his brief that he “filed to modify his child
8
 The interrogatory responses and affidavit were introduced in the course of the cross-examination of
Father and admitted over his objection; the court held that the documents went to Father’s credibility.
9
    Father acknowledged that he had the ability to pay in the following testimony:

          Q You had the ability to pay. Will you agree with me that you had the ability to pay
          $355 a month to child support?
          A Given that decision, correct.
          Q That you did have the ability to pay?
          A Correct.
                  THE COURT: So you’re saying that you had the ability to pay but you chose to
          spend the money on an attorney instead of child support?
                  THE WITNESS: That’s correct.
          ***
          Q You realize it is very important to pay your child support?
          A Yes.
          Q But you were not willfully not paying
          A Yeah.
          Q -- true?
                                                      7
support,” there is no motion in the record before us, and the only proof in the record to
which we are cited in support of this contention is testimony that is not clear.10

       The record contains clear and convincing evidence that Father knew of his duty to
support, was capable of working and earning money; that he has held numerous jobs and
owns his own company; that he did not pay support during the relevant time period; and
that he had no justifiable excuse for failing to pay support. The evidence establishes that
Father abandoned Mikko by willfully failing to support him, and we affirm the trial
court’s holding that this ground was established by clear and convincing evidence.

                   2. Failure to Visit

           The court’s conclusion regarding Father’s willful failure to visit is as follows:

                   By clear and convincing evidence, pursuant to Tennessee Code
           Annotated §36-1-113 and §36-1-102; it is clear to this court that: . . .
                   b. there is a grounds for Termination of Parental Rights based on
           abandonment due to a parent willfully failing to visit. That the Juvenile
           Court ordered visitation at Parent Place [on] May 5, 2016, and the father
           only made two token visitations between May 5, 2016 and September 15,
           2016. Father made excuses that he did not know how to request more
           visitation, but the Court finds that he had hired attorneys privately for his
           criminal matters and was represented by Ms. Metcalf in 2015, when he
           requested the Court to modify the 2013 Parenting Plan and when he entered
           into a mediated Parenting Plan in October, 2015. Thus, [Father] is well
           aware of how attorneys operate.

        The parenting plan entered in the Juvenile Court in June of 2013 provided that
Father would have unsupervised visitation with Mikko on alternate weekends; as noted
earlier in this opinion, on May 5, 2016, the Juvenile Court entered an order requiring
Father’s visitation be supervised and take place at Parent Place in Knoxville. The
visitation records from Parent Place show that Father visited Mikko on two occasions in
the four months preceding the filing of the petition, August 31 and September 14. In his


           A Correct.
10
     Father cites to his following testimony:

           . . . there was a hold on [my North Carolina driver’s license] from Tennessee. So I had to
           pay a fee to [North Carolina], which I did, to get it reinstated and then they said that I
           wouldn’t be able to go through until I had it taken care of here, at which time Ms.
           Wilford[, Father’s attorney,] had filed a motion. This was when the child support
           modifications was supposed to be to allow for arrears to be paid and my license to be
           reinstated.
                                                       8
brief on appeal, Father contends that he was unable to visit Mikko between May and
August because Mother interfered with his visitation by not working with Parent Place to
set up visitation.

       Father testified as follows with respect to his efforts to secure visitation through
Parent Place:

                Q.     So you were not represented in May of 2016 when the first
        order went down saying you get supervised visitation?
                A.     No, I was not.
                Q.     Okay. So in May when the order went down you had three
        months over the summer, three months, to hire an attorney to do something
        to get before the court to get some time with your son. What did you do?
                A.     I filed with Parent Place. I didn’t know that I was going to
        need an attorney to do that. I filed paperwork immediately, maybe the
        second day, after I received two -- maybe second or third – second day after
        I received the notification of the emergency custody I filed with Parent
        Place.[11] I supplied them with my availability, which was completely open.
        And they said that they were waiting on the other party to submit their
        availability, which that was – I’m not an attorney, that’s -- I never dealt
        with this before, that’s all I knew to do.

        ***

                Q.     So a couple of weeks after you were given supervised
        visitation at Parent Place and you realized, goodness, I still haven’t seen my
        son, it’s been three weeks or it’s been four weeks, maybe it’s been five
        weeks, I still haven’t seen my son, you didn’t think at that point it’s time to
        get an attorney?
                A.     I didn’t no. No. I didn’t know there was any -- as far as I
        knew, I did everything I could. I filed the paperwork. I would call Parent
        Place, ask if there had been any change. Kind of hard to get through on the
        telephone sometimes, but when I would speak to anybody, they said they
        still hadn’t received the – Kelli’s availability.
                Q.     Did you call every single day --
                A.     Not --
                Q.     -- for three months?
                A.     No, because I -- I didn’t call every single day.
                Q.     Would you have called every other day?
                A.     Every few days, probably. I didn’t want to -- in my

11
  Father’s testimony is contradicted by that of Mandy Davis from Parent Place, who testified that Father
completed an intake on June 14, 2016.
                                                   9
          experience it seems like if you badger somebody, they’re going to be less
          likely to do things sometimes.

        Mother testified that Mikko had been diagnosed with autism spectrum disorder, as
a result of which he requires a structured environment and regimented schedule,
including school attendance, a weekly counseling session, and a consistent bedtime.
Mother testified that when she was contacted by Parent Place, she completed the
necessary paperwork within one or two days; that she sought a two hour time period from
4:00 to 6:00 p.m. for visitation in order to accommodate Mikko’s schedule, but the time
slots that were available, from 2:00 to 4:00 p.m. and 6:00 to 8:00 p.m., conflicted with
Mikko’s schedule. She also testified that when a 4 p.m. to 6 p.m. time slot became
available, she was willing to make Mikko available. Mother testified that the Parent
Place representative told her she would contact Mother when an earlier time slot became
available, but Mother did not hear back from Parent Place. Mother testified that the
guardian ad litem contacted Parent Place in August and set up one hour visits until a two
hour time slot became available, and that she made Mikko available for those one-hour
visits.

        From our review of the record, we discern no actions on the part of Mother that
amount to a restraint of or interference with Father’s efforts to exercise visitation with
Mikko. To the contrary, Father took no action to exercise his visitation after completing
the paperwork required by Parent Place and making calls to determine when the visitation
would take place; as noted by the trial court, Father did not attempt to engage counsel or
otherwise seek to enforce the Juvenile Court order giving him visitation or alternative
means to exercise visitation. Again mindful of the adverse determination made by the
trial judge regarding Father’s credibility, the evidence clearly shows that Mother did not
interfere with Father’s visitation and that his failure to visit was willful within the
meaning of section 36-1-102.

          B. Best Interest

        Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is in the best interest of the child for the
parent’s rights to be terminated, again using the clear and convincing evidence standard.
In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of factors at
Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the
child’s best interest.12 The list of factors in the statute “is not exhaustive, and the statute
12
     The factors at Tennessee Code Annotated section 36-1-113(i) are:

          In determining whether termination of parental or guardianship rights is in the best
          interest of the child pursuant to this part, the court shall consider, but is not limited to, the
          following:

                                                        10
does not require every factor to appear before a court can find that termination is in a
child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-
PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue
we are also mindful of the following instruction in White v. Moody:

      [A]scertaining a child’s best interests in a termination proceeding is a fact-
      intensive inquiry requiring the courts to weigh the evidence regarding the
      statutory factors, as well as any other relevant factors, to determine whether
      irrevocably severing the relationship between the parent and the child is in
      the child’s best interests. The child’s best interests must be viewed from
      the child’s, rather than the parent’s, perspective.

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).

       As an initial matter, we address Father’s contention that the trial court used the
preponderance of the evidence standard, rather than the clear and convincing evidence
standard in determining that termination of his parental rights was in Mikko’s best
interest. He premises his argument on the court’s reference to the preponderance of the


      (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, 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.

                                                  11
evidence standard in the concluding paragraph, quoted above.13 We disagree with his
contention.

        The Tennessee Supreme Court has instructed that the facts relating to the factors
of the best-interest analysis are to be proven by a preponderance of the evidence, not by
clear and convincing evidence, and once those factual findings are made, the trial court is
then to 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. In re
Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). In the order terminating Father’s rights,
after making findings largely related to the procedural history of the case, the court states
that its conclusions are made “by clear and convincing evidence, pursuant to Tennessee
Code Annotated § 36-1-113 and § 36-1-102.” In our review of the order in its entirety, it
is apparent that the court employed the clear and convincing standard as to both the
grounds for termination and best interest; taken in context, the reference to the
preponderance standard in the concluding paragraph is mistaken language rather than a
statement of the nature of the court’s best interest analysis. Accordingly, we proceed to
review the best interest determination.

       The court held that termination of Father’s parental rights would be in the best
interest of Mikko, stating:

               By clear and convincing evidence, pursuant to Tennessee Code
        Annotated §36-1-113 and §36-1-102; it is clear to this court that:
               ***
               c. As to the best interest analysis of Tennessee Code Annotated §36-
        1-113, the Court finds as follows:
                       i. The first factor is whether the parent or guardian has made
        such an adjustment of circumstances, 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. It is clear to the Court that [Father] has never really made any
        adjustments. The Court still has doubts as to whether he is still growing
        marijuana. He still has a lifestyle he is supporting somehow on $12,000.00
        a year. The Court does not believe he took responsibility for his marijuana
        growing operation and does not believe he made any adjustments
        necessary. Therefore, the Court finds that this factor also weighs in favor of
        the best interest of the child is to terminate [Father]’s parental rights.
                       ii. The second factor is whether the parent or guardian has
        failed to effect the lasting adjustment after reasonable efforts by social

13
  Father also asserts that the court relied upon the preponderance standard in its oral ruling, but as that
ruling is not expressly incorporated into the court’s order, we do not consider it. “Tennessee law is clear
that the trial court speaks through its written orders, not the transcript.” In re Navada N., 498 S.W.3d 579,
594 (Tenn. Ct. App. 2016) (citing Williams v. City of Burns, 465 S.W.3d 96, 119 (Tenn. 2015)).
                                                    12
services. This factor is irrelevant to this case. DCS has not been involved in
this matter or with these parties.
               iii. The third factor is whether the parent or guardian has
maintained regular visitation or other contact with the child. Since May
2016, the only contact that [Father] has had with the child are these token
visitations at Parent Place, which the Court does not consider that it
constitutes regular visitation such that it would be in the best interest of the
child to continue. Therefore, the Court finds that this factor also weighs in
favor of the best interest of the child is to terminate [Father]’s parental
rights.
               iv. The fourth factor is whether a meaningful relationship has
otherwise been established between the parents or guardian and the child.
Relying upon the testimony of the expert witness in this case, Nan Butruff,
LCSW, who has been treating the minor child, the Court finds that no
meaningful relationship has been established between [Father] and the
minor child. Therefore, the Court finds that this factor also weighs in favor
of the best interest of the child is to terminate [Father]’s parental rights.
               v. The fifth factor is the effect a change of caretakers and
physical environment is likely to have on the child’s emotional,
psychological and medical condition. Mikko has some medical conditions
such that it would be in the child’s best interest to have stability with
someone that is there on a full-time basis and not someone that has token
visitation and someone that does not want to take responsibility for his
actions. Therefore, the Court finds that this factor also weighs in favor of
the best interest of the child is to terminate [Father]’s parental rights.
               vi. The sixth factor is whether the parent or guardian or other
person residing with the parent or guardian has shown brutality, physical,
sexual, emotion[al,] or psychological abuse or neglect towards the child or
another child or adult in the family or household. It is clear to this Court
there has been both physical and psychological abuse to [Mother] when she
was living with [Father]. The Court heard of numerous instances of
physical abuse, [Father] putting a gun to [Mother]’s eyeball, verbal abuse,
[Father] putting his hands on her neck trying to choke her, throwing her to
the floor over this issue about her commenting about his sister passing
away or committing suicide. All these are inexcusable, both psychological
and physical and emotion[al] abuse. Therefore, the Court finds that this
factor also weighs in favor of the best interest of the child is to terminate
[Father]’s parental rights.
               vii. The seventh factor is whether the physical environment of
the parents or guardians home is healthy and safe, whether there is criminal
activity in the home or whether there is such use of alcohol, controlled
substances as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner. The Court has great concerns
                                         13
      regarding [Father]’s testimony and whether or not he is still growing
      marijuana or conducting a drug dealing operation from his home.
      Therefore, the Court finds that this factor also weighs in favor of the best
      interest of the child is to terminate [Father]’s parental rights.
                     viii. The eighth factor is whether the parents or guardians
      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. There is no question from the testimony that
      [Father] had some kind of unstable emotional issues regarding violence and
      abuse to both, [Mother] and some previous lady, because there was an
      agreed order of protection taken out in 1999. The Court believes it would
      be unsafe for the minor child to return to [Father] based on his domestic
      violence and his mental instability regarding violent outbursts. Therefore,
      the Court finds that this factor also weighs in favor of the best interest of
      the child is to terminate [Father]’s parental rights.
                     ix. The ninth factor is whether the parent or guardian has paid
      child support consistent with the child support consistent with the child
      support guidelines promulgated by the Department pursuant to Tennessee
      Code Annotated §36-5-101, and the Court finds that it has been almost 28
      months since October, 2015, since [Father] has paid any child support
      absent token payments of $165.00 (only $100.00 of which was during the
      relevant four month period of time immediately preceding the filing of the
      Petition in this cause). Therefore, the Court finds that this factor also
      weighs in favor of the best interest of the child is to terminate [Father]’s
      parental rights.

      IT IS THEREFORE ORDERED, that by clear and convincing evidence
      there are grounds for both abandonment by willful failure to support and by
      willful failure to visit and that it is in the best interest of the child by a
      preponderance of the evidence pursuant to Tennessee Code Annotated §36-
      1-113 to have the respondent, [Father]’s, rights terminated.

       The record, specifically the testimony of Mother, Father and Ms. Nan Butruff, a
licensed clinical social worker who is employed as a therapist at Behavioral Strategies
and has been Mikko’s therapist since May of 2106, provides clear and convincing
evidence in support of the court’s factual findings. We have reviewed the findings in
light of the testimony cited by Father in his brief on appeal that he contends was not
considered by the court and his argument as to the weight the court afforded all the
testimony, the testimony cited by Mother in response, and the entire record, and conclude
that the evidence cited by Father does not preponderate against the court’s findings.
Further, the record establishes that Mother and Step-father have provided a safe and
stable home wherein Mikko’s need for a structured environment is being met. Upon our

                                           14
review, the combined weight of the factual findings is clear and convincing evidence that
termination of Father’s parental rights is in Mikko’s best interest.

IV. CONCLUSION

     For the foregoing reasons, we affirm the termination of Father’s parental rights to
Mikko.



                                                 ________________________________
                                                RICHARD H. DINKINS, JUDGE




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