                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                              Assigned on Briefs February 23, 2015

                                            IN RE AYRIS R.1

                  Appeal from the Juvenile Court for Washington County
                       No. 14385 Hon. Robert G. Lincoln, Judge



                   No. E2014-01950-COA-R3-PT-FILED-APRIL 23, 2015


This is a termination of parental rights appeal brought by the putative father. The trial
court found clear and convincing evidence to support termination of the putative father’s
parental rights because he failed to establish paternity. The court also found that
termination of the putative father’s parental rights was in the best interest of the child.
The putative father appeals the best interest finding. We affirm.


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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, Jonathan L.

Herbert H. Slatery, III, Attorney General and Reporter; Andree S. Blumstein, Solicitor
General; and Kathryn R. Baker and Alexander S. Rieger, Assistant Attorneys General,
Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children’s
Services.




1
 This court has a policy of protecting the identify of children in parental rights termination cases by
initializing the last name of the parties.
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                                                  OPINION

                                            I. BACKGROUND

       Ayris R. (“the Child”) was born to Amber R. (“Mother”) and Jonathan L.
(“Putative Father”) in September 2013. Putative Father was incarcerated at the time of
the Child’s birth. The Child was born at home and then transported to Johnson City
Medical Center, where it was discovered that she had been exposed in utero to Subutex,
THC, and Cocaine. The Child, who was born with a cleft palate, had difficulty eating,
and was diagnosed with Pierre Robin Syndrome, was placed in the neonatal intensive care
unit. The Tennessee Department of Children’s Services (“DCS”) took custody of the
Child following her release from the hospital in October 2013. She was later adjudicated
as severely abused as a result of Mother’s drug use during pregnancy. Mother and
Putative Father (collectively “the Parents”) later stipulated that the Child was dependent
and neglected, as evidenced by Mother’s drug use and Putative Father’s incarceration.

        The Parents were not married at the time of the Child’s birth, and Putative Father’s
name was not listed on the birth certificate. He later took a DNA test, the results of which
were never disclosed to DCS. Other than taking the DNA test, he took no further steps to
establish his paternity of the Child. Once released in March 2014, DCS arranged
visitation between the Child and Putative Father on a weekly basis.

      DCS filed a petition to terminate Putative Father’s parental rights to the Child on
June 10, 2014.2 DCS alleged that termination of his parental rights was warranted
pursuant to Tennessee Code Annotated sections 36-1-117(c) and 36-1-113(g)(9) because
he had failed to establish his paternity. A hearing on the petition was held in September
2014. Putative Father was present but did not testify.

       The majority of the testimony presented at the hearing related to Mother’s struggle
with drug addiction. However, Katie Wilhoit, the DCS case manager assigned to the
Child’s case, testified that the Child was placed in a two-parent home with a stay-at-home
foster father. She believed that the Child had bonded with the foster parents, who had
addressed her unique medical needs.

        Ms. Wilhoit testified that the Parents lived together but were not married. She
recalled that Putative Father was not listed on the Child’s birth certificate but that Mother
identified him as the biological father. She stated that she searched the Putative Father
Registry before filing the termination petition and did not find any claims for paternity of
the Child. She related that Putative Father had not legitimated the Child or even filed a
petition for paternity. She opined that he had not manifested willingness and an ability to

2
    DCS also sought termination of Mother’s parental rights to the Child. She is not a party to this appeal.
                                                        2
take custody of the Child and that placing the Child with him would pose a substantial
risk of harm to the Child’s physical or psychological welfare. She conceded that his
home was physically safe, that he completed a parenting assessment, and that he had
passed four drug screens. However, she stated that he continued to abuse alcohol and that
he lived with Mother, who continued to abuse drugs.

       Ms. Wilhoit testified that Putative Father had not remitted child support, despite
having access to money. She recalled that he only visited the Child on six occasions from
March 19, 2014, until the hearing on September 29, 2014, despite her willingness to
arrange visitation on a weekly basis. She acknowledged that he brought clothing, diapers,
wipes, and toys for the Child when he visited her. She agreed that he was able to engage
the Child in play and that he was attentive to her physical needs.

       Ms. Wilhoit testified that Putative Father’s parental rights to the Child’s half-sister,
Emma J., had been terminated in May 2014. The order terminating his parental rights
reflected that Emma J. was adjudicated as dependent and neglected and that Putative
Father abandoned the child by failing to visit, that he failed to substantially comply with
the requirements of a permanency plan, that the conditions which led to removal
persisted, and that he failed to establish his paternity of the child.

       Following the presentation of the above evidence, the trial court held that DCS had
presented clear and convincing evidence that termination of Putative Father’s parental
rights was appropriate based upon his failure to establish his paternity of the Child. The
court further held that termination of his parental rights was in the best interest of the
Child. This timely appeal followed.


                                         II. ISSUE

       Whether clear and convincing evidence supports the court’s finding that
       termination of Putative Father’s parental rights was in the best interest of
       the Child pursuant to Tennessee Code Annotated section 36-1-113(i).

                             III. STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
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Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination of
the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be
terminated only upon

       (1)    [a] finding by the court by clear and convincing evidence that the
       grounds for termination of parental or guardianship rights have been
       established; and

       (2)    [t]hat termination of the parent’s or guardian’s rights is in the best
       interest [] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2010, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:
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       A reviewing court must review the trial court’s findings of fact de novo
       with a presumption of correctness under [Rule 13(d) of the Tennessee Rules
       of Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,]
       809 [(Tenn. 2007)]. In light of the heightened burden of proof in
       proceedings under [Tennessee Code Annotated section] 36-1-113, the
       reviewing court must then make its own determination regarding whether
       the facts, either as found by the trial court or as supported by a
       preponderance of the evidence, provide clear and convincing evidence that
       supports all the elements of the termination claim. State Dep’t of
       Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48 [(Tenn. Ct. App.
       2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct. App. 2006);
       In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004). Appellate
       courts conduct a de novo review of the trial court’s decisions regarding
       questions of law in termination proceedings. However, these decisions,
       unlike the trial court’s findings of fact, are not presumed to be correct. In re
       Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re Adoption of A.M.H.,
       215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).

                                     IV. DISCUSSION

        In this case, Putative Father does not challenge the trial court’s ruling concerning
the statutory ground for termination. Although we have reviewed the record and the
proof presented therein, we will not discuss the issue. It suffices us to say that this court
is satisfied that the trial court’s ruling as to the statutory ground for termination is
supported by clear and convincing evidence. Having concluded that there was clear and
convincing evidence supporting the statutory ground to terminate Putative Father’s
parental rights, we must consider whether termination of his parental rights was in the
best interest of the Child. In making this determination, we are guided by the following
non-exhaustive list of factors:

       (i)     In determining whether termination of parental or guardianship
       rights is in the best interest of the child . . . the court shall consider, but is
       not limited to, the following:

          (1) Whether the parent or guardian has made such an adjustment of
          circumstance, conduct, or conditions as to make it safe and in the child’s
          best interest to be in the home of the parent or guardian;


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            (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

            (3) Whether the parent or guardian has maintained regular visitation or
            other contact with the child;

            (4) Whether a meaningful relationship has otherwise been established
            between the parent or guardian and the child;

            (5) The effect a change of caretakers and physical environment is likely
            to have on the child’s emotional, psychological and medical condition;

            (6) Whether the parent or guardian, or other person residing with the
            parent or guardian, has shown brutality, physical, sexual, emotional or
            psychological abuse, or neglect toward the child, or another child or
            adult in the family or household;

            (7) Whether the physical environment of the parent’s or guardian’s
            home is healthy and safe, whether there is criminal activity in the home,
            or whether there is such use of alcohol or controlled substances as may
            render the parent or guardian consistently unable to care for the child in
            a safe and stable manner;

            (8) Whether the parent’s or guardian’s mental and/or emotional status
            would be detrimental to the child or prevent the parent or guardian from
            effectively providing safe and stable care and supervision for the child;
            or

            (9) Whether the parent or guardian has paid child support consistent
            with the child support guidelines promulgated by the department
            pursuant to [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,

3
 In re Kaliyah S., — S.W.3d —, No. E2013-01352-SC-R11-PT, 2015 WL 273659, at *18 (Tenn. Jan. 22,
2015) (“[I]n a termination proceeding, the extent of DCS’s efforts to reunify the family is weighed in the
court’s best-interest analysis, but proof of reasonable efforts is not a precondition to termination of the
parental rights of the respondent parent.”).
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such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).

        A number of the best interest factors weigh against Putative Father. He had not
made the adjustment of circumstances necessary to provide a stable home for the Child as
evidenced by his living arrangement with Mother. Tenn. Code Ann. § 36-1-113(i)(1). He
failed to engage in more than token visitation or to otherwise maintain a relationship with
the Child. Tenn. Code Ann. § 36-1-113(i)(3), (4). The Child resides in a safe and stable
foster home. Tenn. Code Ann. § 36-1-113(i)(5). Putative Father’s parental rights had
been terminated relative to another child based upon an initial finding of dependency and
neglect. Tenn. Code Ann. § 36-1-113(i)(6). Questions remain as to whether he can
provide a safe and stable home when he continued to live with Mother. Tenn. Code Ann.
§ 36-1-113(i)(7). He never remitted child support. Tenn. Code Ann. § 36-1-113(i)(9).

        We acknowledge that Putative Father visited the Child and that his visits consisted
of the same activities provided by the foster parents, namely engaging the Child in play
and taking care of her physical needs. However, he failed to take advantage of additional
opportunities for visitation and never bothered to establish his paternity of the Child. The
Child needs permanency and stability, which she can receive from the foster parents who
have successfully parented her while Putative Father allowed her to languish in custody.
With all of the above considerations in mind, we conclude that there was clear and
convincing evidence to establish that termination of Putative Father’s parental rights was
in the best interest of the Child. Accordingly, we affirm the decision of the trial court.


                                          V. CONCLUSION

   The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Jonathan
L.


                                          ______________________________________
                                               JOHN W. McCLARTY, JUDGE




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