                                                                                                        05/14/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      April 17, 2018 Session

                                IN RE: SAMUEL R.,1              ET AL.

                      Appeal from the Chancery Court for Shelby County
                         No. CH-14-1417    Jim Kyle, Chancellor


                                 No. W2017-01359-COA-R3-PT


This appeal involves the termination of a father’s parental rights to his two children. The
father suffers from paranoid schizophrenia. The trial court terminated his parental rights
on the grounds of mental incompetence and abandonment by willful failure to visit and/or
support. We reverse the trial court’s findings regarding abandonment but otherwise
affirm the termination of parental rights.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J., joined.

William Ray Glasgow, Memphis, Tennessee, for the appellant, David R.

Adam Noah Cohen, Memphis, Tennessee, for the appellees, Nicholas C. and Julie C.

Laurie Winstead Hall, Memphis, Tennessee, for the appellees, David R. and Nancy R.

                                              OPINION

                              I. FACTS & PROCEDURAL HISTORY

       David (“Father”) and Julie (“Mother”) were married in 2004. They had two
children (“Son” and “Daughter”), who were born in 2006 and 2007. Father was
1
 In cases involving minor children, it is this Court’s policy to redact names in order to protect the
children’s identity. In this case, in order to preserve both clarity and the anonymity of the children, we
will redact the names of individuals sharing the children’s surname and will refer to those individuals by
their given name and the first letter of their surname.
physically abusive to Mother on many occasions during the marriage. He was arrested
for assaulting Mother in 2007. Father’s paranoia and violence escalated in late 2009. In
December 2009, Father choked Mother on two occasions until she became numb and
disoriented. In early January 2010, Father allegedly brought a rifle into the home and
directed Mother to change Son’s diaper “for the last time.” Father asked if Mother
preferred to be shot “up close or far away” and described how he intended to dispose of
her body. Father pointed the gun at Mother and instructed her to turn and walk away.
Mother slowly walked away as instructed, expecting Father to shoot her. After a few
minutes, Father simply put the gun down and sat down on the couch. However, Mother
was terrified and left with the children the next morning while Father was asleep.


        Mother reported the incident to police, and Father was arrested and charged with
aggravated domestic assault. Mother filed a complaint for divorce days later, on January
19, 2010. An order of protection was entered prohibiting Father from contacting Mother
or the children. Father was admitted to a mental health institute for an evaluation of his
competence to stand trial and mental state at the time of the offense. Father was
examined by professionals who certified that Father was, in their opinion, mentally ill,
that he posed a substantial likelihood of serious harm, and that he was in need of care and
treatment in a mental hospital. Father was diagnosed with schizoaffective disorder.
Based on the evaluation, the criminal court entered an order finding that Father was
incompetent to stand trial because of mental illness and that he met the relevant statutory
criteria for commitment and judicial hospitalization at the mental health institute. The
criminal charge against Father was dismissed.


        After further evaluation and treatment, the staff at the mental health institute
determined that Father no longer met the standards for judicial commitment, and he was
released into the custody of his father (“Grandfather”) around June 2011. Father lived
with his parents thereafter. The final decree of divorce was entered on or about July 5,
2012. Father had not seen the children since Mother left the marital home with them in
January 2010. Father and Mother entered into an agreed parenting plan, which provided
that if Father’s primary psychologist, Dr. John Leite, provided written assurance that
Father was in an appropriate mental state to exercise supervised parenting time with the
children, Father would be allowed “two hours of supervised parenting time per week”
over the course of twelve sessions at the Exchange Club. If Father successfully exercised
this supervised parenting time, his parents would supervise thereafter, and parenting time
could be expanded as the court deemed appropriate.




                                            2
       On August 21, 2012, Dr. Leite wrote a letter stating that he was working with
Father in individual psychotherapy and felt quite comfortable that Father was in an
appropriate mental state to exercise supervised parenting time. Father’s supervised visits
at the Exchange Club began on October 20, 2012. By that time, the children were ages
six and five, and they had not seen Father in nearly three years. The visits did not go
well. Father was late for the first one-hour visit. He made comments that the supervisor
deemed inappropriate and negative. When the supervisor attempted to discuss the issue
with Father, their conversation continued to the point that security stopped the visit and
escorted Father out of the building. Additional supervised visits were scheduled for one
hour every other week.2 Father did not show up for the second visit, although Mother
and the children were there. He failed to show up for another scheduled visit in February
2013. Father attended six more supervised visits between November 2012 and April
2013 without incident, but he was late to four of those six one-hour visits.


       Father’s eighth and final supervised visit took place on April 20, 2013. Again,
Father was late. During the visit, Son asked for a red drink, and Father gave him one.
Daughter said that Son was not supposed to have red drinks because they make him
hyper. According to Exchange Club records, Father stated that was “the stupidest thing
he had ever heard.” When Daughter repeated herself, Father “raised his arms” and told
the children that they were with their dad and could do what they want. Father told the
children they were being brainwashed. The supervisor intervened, but Father continued
to make snide and sarcastic remarks. Father started to argue with the supervisor, who
asked Father to change the subject. Then, Father asked the children what they hated most
about Mother. The supervisor immediately ended the visit. As the supervisor and the
children were walking toward the elevator, Father continued to direct questions to the
children and complain about not getting his money’s worth out of the visit. Both children
were visibly upset. According to Exchange Club records, Father was argumentative,
sarcastic, and had an overall negative attitude, raising his voice and using “intimidating
body language.”


       A few days later, the Director of Visitation Services at the Exchange Club
contacted Father to discuss the incident and the children’s perception of his behavior.
She informed Father that the children reported to their therapist that Father was mean
during the visit and said they should hate things about Mother. According to the
2
 Mother testified that the visits did not occur as often as described in the parenting plan because the
Exchange Club was so busy that it could not accommodate scheduling weekly two-hour visits for twelve
weeks. The Exchange Club’s Director of Visitation Services could not recall precisely why the visits
were scheduled as they were, but she testified that the Exchange Club had a very heavy caseload at that
time and that appointments were scheduled based on availability.
                                                  3
Director, Father was unable to comprehend how his behavior was negative or how the
children were affected by his behavior. When asked if he was willing to apologize to the
children, Father responded that he saw no reason to do so and that he would not be
returning to visit with them at the Exchange Club. The Director encouraged Father to
understand how his children experienced the visit and to continue visiting, but Father was
adamant and insisted that he would not continue visiting at the Exchange Club.


       Three months went by with no contact between Father and the children. In July
2013, Grandfather and his wife (“Grandmother”) jointly filed a petition to appoint a
conservator for Father in probate court. A copy of the petition was mailed to the children
at Mother’s residence. Grandparents’ petition alleged that Father was unable to manage
his day-to-day affairs due to mental infirmity. They alleged that Father was diagnosed
with paranoid-type schizophrenia and had become “continually more delusional and
unreasonable” in his actions. According to the petition, Father was still residing with
Grandparents and refused to be examined by a physician or take his medication as
prescribed. Grandparents alleged that Father’s situation had recently become much
worse and that they were concerned for their safety due to Father’s verbal abuse and
“increasingly delusional state of mind.” They claimed that Father’s ability to reason and
handle his affairs was non-existent.


       During the conservatorship proceeding, Dr. Leite submitted an affidavit stating
that Father was not competent to manage or control himself and his affairs, as he was
exhibiting delusions of persecution and conspiracy with significantly impaired judgment
and insight. The probate court entered an order in October 2013 appointing Grandparents
as co-conservators of the person and the estate of Father, finding that Father was a
disabled person by reason of mental illness. The order removed from Father and
transferred to Grandparents “[t]he right to prosecute and to defend lawsuits; [and] the
right to advance [Father’s] rights to visitation, or parenting time, with his minor
children.”


       In their capacity as conservators, Grandparents obtained the records from the
Exchange Club regarding Father’s supervised visitation. However, they did not file any
petition or ask Mother to reinstate Father’s visitation. In November 2013, Grandfather
wrote a letter to Mother advising her of the conservatorship and their authority to act on
Father’s behalf regarding the parenting plan. Regarding Father, the letter stated,


      It certainly seems evident at this point that [Father] will be disabled for the
      foreseeable future because of his illness, however, we plan to attempt to get
                                            4
           him the medical attention he needs to become more functional and
           hopefully maintain a relationship with [Son] and [Daughter] in the coming
           years.
           ....
           . . . At this time we don’t feel [Father] is well enough to visit with them for
           even a short period of time and we won't allow him to visit them without
           your consent or if we feel he is not well enough for a visit. . . .
           . . . I would also ask that you or your family refrain from contacting or
           conversing with [Father] due to his illness, any contact will only increase
           stress on him and may cause unnecessary issues for us. If something needs
           to be discussed regarding [Father] or the children please, contact
           [Grandmother] or myself and if you need proof of the conservatorship we
           will be glad to provide that.


Around this time, Mother remarried.


        The lack of visitation or contact continued into 2014. In May 2014, Father was
arrested for a disturbance in the parking lot of a fast food restaurant. Father refused to
leave the premises after requests by the store manager and by police officers, leading to a
physical altercation between Father and several officers. Father was charged with
disorderly conduct, criminal trespass, resisting arrest, and simple assault. After spending
about three months in jail, Father was admitted to another mental health institute in
August 2014 for a court-ordered evaluation of his competency to stand trial. Father was
“selectively mute” and uncooperative during his evaluation, but he did not evidence any
behavior that indicated an imminent threat of harm to self or others or suggest that he was
unable to appreciate the wrongfulness of his actions. Accordingly, Father did not meet
the criteria for commitment, and he was discharged back to jail on September 9, 2014.
Soon after, Father got out of jail and returned to live with Grandparents.


        On September 23, 2014, Mother and her husband (“Stepfather”) filed a petition for
termination of Father’s parental rights and for adoption by Stepfather.3 By this time, the
children were ages eight and seven, and they had not seen Father since the last supervised
visit at the Exchange Club seventeen months earlier. The petition alleged that grounds
existed to terminate Father’s parental rights due to willful abandonment and mental
incompetence. The petition further alleged that termination of Father’s parental rights

3
    The petition states that Mother joined in the petition for the purpose of consenting to adoption.
                                                        5
was in the best interest of the children. The trial court appointed an attorney for Father
and a guardian ad litem for the children.


       One week later, on September 30, 2014, Father was arrested and charged with
driving under the influence because he admittedly drove after drinking several margaritas
at a restaurant. On May 31, 2015, police officers responded to a report of a suspicious
person and found Father trying to get inside the locked doors of a nursing home. Father
was delusional and believed he was in danger from “a radiation bomb.” The police
officers returned Father to Grandparents’ home. Later that night, Father jumped in
Grandparents’ car and drove away on his own. He was found by a sheriff’s deputy two
hours away at a farm owned by Grandparents in Hardin County, Tennessee. Father was
barefoot and walking down the middle of a road at 4 a.m. Father told the sheriff’s deputy
about the radiation bomb, and he was taken to jail. The next day, Father was again
admitted to a mental hospital. Grandfather insisted that Father be required to abide by a
mandatory outpatient treatment (“MOT”) agreement upon release. Pursuant to that
agreement, Father was required to receive his medications monthly by injection or else he
would be picked up by the police and returned to the mental hospital. Upon his release,
Grandparents arranged for Father to reside alone at a house they owned near their farm.


        Meanwhile, Grandparents were permitted to participate in the parental termination
case in their roles as co-conservators with their own attorney in order to assist Father in
defending the lawsuit, even though an attorney was also appointed for Father. Mother
filed a motion to require Father to submit to a mental examination pursuant to Tennessee
Rule of Civil Procedure 35.01, citing his most recent release from the mental hospital and
history of mental illness. A consent order was entered providing that a forensic custodial
evaluation was necessary and that Dr. Paul Leonard, Ph.D., was appropriate to perform
such services.


       Dr. Leonard performed a forensic psychological parental access evaluation. He
met with Father on two occasions in June and August 2016. Father partially completed a
questionnaire and answered questions during the interviews. However, Father flatly
refused to participate in the psychological tests that Dr. Leonard attempted to administer.
Dr. Leonard reviewed Father’s extensive mental health records and conducted interviews
of Mother, Stepfather, Grandparents, and the children. In his report, Dr. Leonard
ultimately concluded that Father met the diagnostic criteria for schizophrenia, paranoid-
type. Dr. Leonard found that Father was not in an appropriate mental state to exercise
supervised visitation after the divorce in 2012. He also found that while Father’s MOT
program currently ensured that he was medicated, this minimized but did not eliminate

                                            6
his paranoid delusions. Dr. Leonard further concluded that the mandated medication
regimen did not improve Father’s poor judgment or antisocial attitudes and tendencies.
Dr. Leonard found that Father’s behavior was not fully explained by his schizophrenia
and that he also met the diagnostic criteria for antisocial personality disorder. Dr.
Leonard noted Father’s twenty-year history of involvement with the police including
several violent incidents, disregard for authority across various settings, aggressiveness,
rationalization of hurting others, and lack of remorse. Because of these diagnoses and
Father’s criminal history, Dr. Leonard concluded that Father was not capable of parenting
at the present time. And, based on all the evidence, Dr. Leonard opined that Father was
not presently in an appropriate mental state to exercise either unsupervised or supervised
parenting time with the children, nor would he be in the foreseeable future. Dr.
Leonard’s report was dated September 12, 2016.


        The trial court conducted a two-day bench trial in May 2017. Father did not attend
the trial based on the advice of his psychologist, Dr. Leite. The trial court heard live
testimony from nine witnesses, including Dr. Leite, the Director of Visitation from the
Exchange Club, Grandmother, Grandfather, Mother, Stepfather, Mother’s sister,
Stepfather’s mother, and a neighbor. The trial court also received into evidence the
evidentiary depositions of Dr. Leonard and the therapist who treated the children, in
addition to numerous exhibits. By the time of trial, the children were ages 11 and 10.
They had not lived with Father in seven years, since Mother left the marital home in 2010
when the children were ages 3 and 2. During that seven years of separation, the children
had only seen Father during the eight supervised visits at the Exchange Club, which
totaled less than eight hours. The children had not had any contact with Father since
those visits ended in April 2013, four years before trial. Father had never paid child
support or sent gifts for the children. However, days before trial, Mother received a lump
sum check with retroactive disability benefits for the children based on Father’s
application.


        According to Dr. Leonard’s testimony from his evidentiary deposition introduced
at trial, Father was quite often delusional during his interviews for the forensic
psychological parental access evaluation. He denied objective facts, repeatedly blamed
Mother for keeping the children from him, and suggested that he was the victim in this
situation. With twenty-five years in practice, Dr. Leonard said, “In all the years I’ve been
evaluating people, he was probably at the top of the list of showing what’s called
‘pathological denial.’ ‘Not my fault. Her fault. His fault.’” According to Dr. Leonard,
Father exhibited frustration with his MOT program, the injections, and negative side
effects and debated whether he should continue with it. Dr. Leonard testified that Father
failed to recognize what would happen if he stopped taking his medication. Dr. Leonard
                                             7
was also very concerned about Father’s continued use of marijuana and alcohol. He said
that Father had “tenuous self-control” already and certainly did not need any less.


        Dr. Leonard believed that Father’s failure to follow the rules at the Exchange Club
reflected both his schizophrenia and his antisocial personality disorder. He explained that
sometimes Father does not acknowledge the rules by his delusions, but often times, he
chooses not to follow them. Even considering Father’s MOT program participation, Dr.
Leonard believed that restarting visits would be “a huge risk” due to the likelihood that
Father would “act out.” When Dr. Leonard was asked why supervised visitation would
be bad for the children, he said, “most importantly, [Father] showed no interest in
complying with the rules, making amends, restarting. And that was right from the horse’s
mouth.” According to Dr. Leonard, Father had “no present motivation,” giving Dr.
Leonard no reason to believe that supervised visitation would end any differently than it
did the first time. Father’s description of how he would conduct himself at visitation was
troubling to Dr. Leonard and a very important part of Dr. Leonard’s decision-making
process. Father did not believe he needed any oversight and did not seem to respect any
rules that would be imposed. Dr. Leonard opined that Father should not be allowed
supervised visits in part due to statements that he might make about Mother. Father made
it clear to Dr. Leonard that he was going to visit with his children “and say whatever I
want and do whatever I want.” Dr. Leonard said, “I think right now and in the immediate
future he doesn’t seem to be able or willing to have any kind of emotionally healthy
relationship with them.”


       Dr. Leonard acknowledged that during his interview with Son, Son repeatedly
expressed a desire to have contact with Father. However, Dr. Leonard also emphasized
that “what children want and what is good for them is not the same thing.” Daughter
indicated that she was scared and confused during her last visit with Father at the
Exchange Club, and Dr. Leonard believed she was afraid of Father and especially his
unpredictability.


        Dr. Leite, who is a clinical psychologist, testified that he first had contact with
Father in 2010, soon after Mother left the marital home. Dr. Leite was consulted and
diagnosed Father as paranoid schizophrenic. Dr. Leite explained that Father suffered
from delusions of persecution, believing that various family members and governmental
officials were actively trying to kill him. Since 2010, Dr. Leite had seen Father
“episodically,” at various times, and as an “ongoing consultant” for the family, but he had
not treated him consistently or conducted any formal evaluations of Father. Dr. Leite
testified that the primary treatment for schizophrenia is antipsychotic medication that

                                            8
unfortunately involves very negative side effects. Dr. Leite explained that stressors of
any kind can exacerbate the symptoms of schizophrenia and that Father’s coping abilities
are poor as a result of his illness.


        Although Dr. Leite wrote the letter in 2012 saying he was quite comfortable that
Father was in an appropriate mental state to exercise supervised parenting time, in
hindsight, Dr. Leite opined that the supervised visitation was probably extremely difficult
for Father because of his difficulties with medication management at that time. Dr. Leite
suggested that visitation should have occurred in a therapeutic setting with a therapist
present. Dr. Leite had observed gradual improvement with Father since he had been on
the mandated medication program and believed that he would continue to improve.
However, Dr. Leite still recommended against Father attending the termination trial
because it would be an incredible stressor for him and upset him. Dr. Leite explained that
Father was not presently experiencing active delusions and that he was “functional at a
level that does not require hospitalization,” but that he was still impaired. Like Dr.
Leonard, Dr. Leite opined that Father could not presently exercise unsupervised parenting
time with the children. Unlike Dr. Leonard, however, Dr. Leite believed that Father was
ready to start working toward a “family therapy interaction” with the children. Dr. Leite
suggested beginning with individual therapy aimed at prepping Father for the interaction,
followed by a very gradual and limited reintroduction with therapeutic observation,
intervention, and supervision, family therapy, and a variety of other parameters. This
would have to be successful before Dr. Leite would even consider the possibility of
unsupervised parenting time. Dr. Leite testified that it was unlikely that Father would be
capable of unsupervised parenting time in the next year or in the near future. He said that
unsupervised parenting time would be a possibility “in the next years” but reiterated that
“it’s just that,” a possibility.


       Dr. Leite also acknowledged that Father continued to use marijuana and alcohol
and that both substances negatively impact his medications and mental condition. Dr.
Leite testified that it would be important to condition Father’s contact with the children
on ending his marijuana and alcohol use and becoming sober in order to determine
whether Father was motivated to address his issues and be a part of the children’s lives.
Dr. Leite said, “His motivation and willingness to engage in that kind of a program would
tell me a lot about what kind of advancement he might be able to make.” If Father was
unwilling to participate in such a program, “that would certainly be a cause for concern in
terms of any prognosis for him.” In sum, Dr. Leite testified that there were a lot of “ifs”
that would need to occur in order for Father to ever have unsupervised parenting time.



                                            9
       Dr. Leite had never met the children and could not testify as to what would be best
for them. Mother testified that the children were doing very well, making As and Bs in
school and getting along very well with Stepfather and the siblings in their blended
family. Stepfather testified about coaching the children’s sports teams and said he had
never missed a parent-teacher meeting at their school. The children call him “daddy.”
The children had been in counseling since the divorce proceeding five years earlier.
During her evidentiary deposition, the children’s therapist testified that the children have
very secure attachments to Mother and Stepfather and are emotionally healthy “as much
as they can be.” Early on, Son had struggled with anger issues and physical violence
toward Mother, and the children had experienced some mixed emotions about Father and
the concept of adoption. Ultimately, however, the therapist had no concerns about the
adoption and described both children as very happy, thriving, and well-adjusted children.


       Mother testified that her motivation for pursuing adoption was to provide the
children with stability and assurances regarding their future. Mother was concerned that
if something were to happen to her, the children would be embroiled in a custody battle
between her family and Father’s family. Mother was not in favor of beginning
supervised visitation due to the past experience at the Exchange Club. She questioned
whether Father would even been willing to try supervised visitation, noting that during
his deposition in this case, Father said he was unwilling to continue with additional
supervised visitation. Mother testified that the children were very upset by the Exchange
Club visitation and especially after the last visit. She described it as an emotional roller
coaster for the children and said they were relieved when they did not have to return.


        Grandmother described delusional and troubling behavior exhibited by Father
while he was living in her home. She believed that Father’s mental condition
deteriorated during the period of supervised visitation at the Exchange Club because he
was very agitated about the parameters of visitation, which in his mind were very
restrictive. She explained that any demonstration of authority seemed to make Father
overly anxious and upset. According to Grandmother, Father believed that he was being
asked to apologize to the visitation supervisor at the Exchange Club after the final visit,
not the children. However, even after she and Grandfather were appointed as co-
conservators, they did not seek supervised visitation for Father because they did not feel
that he had the capacity to participate at that time. Grandmother explained that if Father
was unable to deal with his own daily routine, he did not need to have visits with the
children. Grandmother conceded that Father had been verbally abusive to her and
somewhat physically abusive “if you count pushing.” Grandmother believed Father had
improved since he was placed on the MOT program and testified that he had begun


                                             10
helping Grandfather by working on his farm. However, she agreed that Father still was
not mentally capable of caring for the children on his own.


       Grandfather also testified about Father’s delusional behavior and arrest history.
Grandfather conceded that he had at times been in fear for his safety because of Father’s
extremely delusional and totally irrational behavior. At the time of trial, Father was still
residing alone near Grandfather’s farm, but Grandfather visited Father nearly every day
and paid for all of Father’s financial needs. Father had been subject to the MOT program
for one year and nine months. Grandfather explained that Father has such dislike for the
mental hospital that it serves as a huge incentive for him to comply with the MOT
program because he will be escorted by police back to the hospital in the event of
noncompliance. Grandfather believed that Father’s schizophrenia was presently
controlled by the mandated medication, but he acknowledged that Father still was not
employable and not in a position to attend the termination trial. Grandfather believed that
Father would be “extremely stressed” by visiting the children in a normal situation but
that he could visit with the children with proper preparation under the circumstances
described by Dr. Leite. But, Grandfather acknowledged that Father would not be able to
resume caring for the children in the near future.


        On June 8, 2017, the trial court entered a written order terminating Father’s
parental rights on the ground of mental incompetence. See Tenn. Code Ann. § 36-1-
113(g)(8). Because this single ground for termination had been proven, the trial court
deemed it unnecessary to rule on the other ground alleged – abandonment by willful
failure to visit and/or support. Father filed a notice of appeal. This Court entered an
order directing the parties to obtain a final judgment resolving the remaining ground for
termination. As a result, the trial court entered an amended order terminating Father’s
parental rights on the grounds of mental incompetence and abandonment by willful
failure to visit and support.


                                 II. ISSUES PRESENTED

       Father presents the following issues, as slightly reworded, for review on appeal:

       1.     Whether the trial court erred in ruling that Father abandoned his
              children by willfully failing to pay child support and/or willfully
              failing to visit;


                                             11
       2.     Whether the trial court erred in finding clear and convincing
              evidence that Father’s parental rights should be terminated due to his
              mental disability;
       3.     Whether clear and convincing evidence supports the finding that
              termination of Father’s parental rights is in the best interest of the
              children.


For the following reasons, we reverse the trial court’s finding regarding abandonment but
otherwise affirm the trial court’s order terminating Father’s parental rights.


                               III. STANDARD OF REVIEW

       “In Tennessee, proceedings to terminate parental rights are governed by statute.”
In re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code Annotated section
36-1-113 “sets forth the grounds and procedures for terminating the parental rights of a
biological parent.” Id. at 546. Pursuant to the statute, parties who have standing to seek
termination of parental rights must prove two elements. Id. at 552. First, they must prove
the existence of at least one of the statutory grounds for termination listed in Tennessee
Code Annotated section 36-1-113(g). Id. Second, the petitioner must prove that
terminating parental rights is in the child’s best interest, considering, among other things,
the factors listed in Tennessee Code Annotated section 36-1-113(i). Id.

       Because of the “constitutional dimension of the rights at stake in a termination
proceeding,” the petitioner must prove both of these elements by clear and convincing
evidence. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann.
§ 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). “Clear and convincing evidence” has been
defined as “‘evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” In re Adoption of Angela E.,
402 S.W.3d 636, 640 (Tenn. 2013) (quoting In re Valentine, 79 S.W.3d at 546). It
produces a firm belief or conviction in the fact-finder’s mind regarding the truth of the
facts sought to be established. In re Bernard T., 319 S.W.3d at 596.

       Due to the heightened burden of proof in parental termination cases, we adapt our
customary standard of review on appeal. In re Audrey S., 182 S.W.3d 838, 861 (Tenn.
Ct. App. 2005). First, we review the trial court’s factual findings de novo in accordance
with Tennessee Rule of Appellate Procedure 13(d), presuming each finding to be correct
unless the evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at

                                             12
639. Then, we make our own determination regarding “whether the facts, either as found
by the trial court or as supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.” In re
Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016) (citing In re Bernard T., 319 S.W.3d
at 596-97). “The trial court’s ruling that the evidence sufficiently supports termination of
parental rights is a conclusion of law, which appellate courts review de novo with no
presumption of correctness.” Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn.
2009)).

                                      IV. DISCUSSION
                                A.    Mental Incompetence

       Pursuant to Tennessee Code Annotated section 36-1-113(g)(8)(B)(i), one ground
for terminating parental rights exists if clear and convincing evidence establishes that:


       The parent [] of the child is incompetent to adequately provide for the
       further care and supervision of the child because the parent’s [] mental
       condition is presently so impaired and is so likely to remain so that it is
       unlikely that the parent [] will be able to assume or resume the care of and
       responsibility for the child in the near future[.]


No willfulness in the failure of the parent to establish an ability to care for the child need
be shown. Tenn. Code Ann. § 36-1-113(g)(8)(C). “[T]he General Assembly has
determined that a parent’s inability to adequately care for and supervise a child
constitutes a just basis for termination of parental rights, even though such inability is not
the result of willful conduct by the parent.” In re M.E.W., No. M2003-01739-COA-R3-
PT, 2004 WL 865840, at *7 (Tenn. Ct. App. Apr. 21, 2004).


        Father’s brief on appeal states, “There is no debate on whether [Father] is mentally
disabled.” Through counsel, Father stipulates to his “mental incompetence.” Still, he
insists that the trial court failed to properly apply caselaw regarding the statutory ground
of mental incompetence and failed to properly interpret the statutory scheme when
terminating his parental rights. Father and Grandparents raise several related arguments
regarding this ground for termination.




                                             13
                              1. Ability to Assume “Care”

        First, Father questions whether it is necessary for him to be able to assume care of
the children. Father admits that he “has not progressed to the point that he is able to
independently provide care to his children if necessary.” However, Father argues that he
should not be required to demonstrate an ability to assume care of the children because
the children are in a stable home with Mother and their needs are currently being met by
Mother and Stepfather. Father suggests that the statutory language about whether he can
assume “the care of and responsibility for” the children would be relevant if his children
were in foster care but that it should not apply when the children are already being cared
for in a stable home. Essentially, Father suggests that his children are not in need of care
by him because they are in the care of Mother. Father claims that because the statute
references providing “further care,” it implies that care is currently being provided
unsuccessfully and that the child is in need of further care. According to Father, because
the children are in a good home, there is no need and “no requirement[] that he be able to
shoulder parental responsibility.” He suggests that providing “supervised care” should
suffice.


        This is simply a strained interpretation of the statute that is unsupported by the
statutory text. This ground for termination specifically requires consideration of whether
the parent “is incompetent to adequately provide for the further care and supervision of
the child” and whether the parent “will be able to assume or resume the care of and
responsibility for the child in the near future.” Tenn. Code Ann. § 36-1-113(g)(8)(B)(i).
(emphasis added). When applying this ground, Tennessee courts have consistently held
that “‘[a] parent’s continued incapacity to provide fundamental care for a child, whether
caused by mental illness, mental impairment, or some other cause constitutes sufficient
ground for termination of parental rights.’” In re Eric G., No. E2017-00188-COA-R3-
PT, 2017 WL 4844378, at *11 (Tenn. Ct. App. Oct. 25, 2017) (no perm. app. filed)
(quoting In re M.E.W., 2004 WL 865840, at *7). The statute “‘serves to protect children
from harm caused by a parent who is incapable of safely caring for them.’” In re Lena
G., No. E2016-00798-COA-R3-PT, 2017 WL 2304448, at *25 (Tenn. Ct. App. May 26,
2017) (no perm. app. filed) (quoting In re D.A.P., No. E2007-02567-COA-R3-PT, 2008
WL 2687569, at *5 (Tenn. Ct. App. July 9, 2008)). For instance, in In re Lillian D., No.
E2016-00111-COA-R3-PT, 2016 WL 4505691, at *5 (Tenn. Ct. App. Aug. 26, 2016), a
mother was successfully attending supervised visits, but her mental condition prevented
the supervisor from recommending unsupervised visitation. We affirmed termination of
the mother’s parental rights based on mental incompetence, as she was, pursuant to the
statute, “incompetent to adequately provide for the care and supervision of the Child” and
unlikely to be able “to assume care of and responsibility for the Child in the near future.”

                                             14
Id. at *12. Likewise, in In re B.L.S.C., No. M2008-02301-COA-R3-PT, 2009 WL
971286, at *8 (Tenn. Ct. App. Apr. 7, 2009), we found that a mother’s behavior during
supervised visitation was commendable, but that it “[did] not negate the clear and
convincing evidence that [she] cannot consistently care for her children in an
unsupervised, unstructured setting.”


       In State Dep’t of Children’s Servs. v. Oliver, No. M2007-00844-COA-R3-PT,
2007 WL 4553036, at *8 (Tenn. Ct. App. Dec. 26, 2007), the parents had “striven
mightily to overcome their obstacles to parenting competently” and visited their children
regularly. Despite those efforts, however, we affirmed termination because the parents
were simply unable mentally to care for their children. Id. We acknowledged that
sometimes “‘parents may recognize that they are unable to shoulder the responsibility of
caring for the child, but wish for a relationship with the child that does not require caring
for the child’s needs.’” Id. (citation omitted). However, the statutory purpose is to
determine whether the child would be able to safely live with the parents. Id.


       [T]he focus of the termination statute is on whether the child can safely live
       with the parent and have his, that is, the child’s, day-to-day needs met.
       Some of the grounds [for termination], such as abuse of the child, are
       reasons for which the parent can be faulted. Other reasons, such as a
       parent’s mental incompetence, are reasons for which the parent cannot be
       faulted, but the result nonetheless is that the child cannot safely live with
       the parent in such a way that the child’s needs will be met.


Id. (quotation omitted). “The legislative intent is not simply to establish a ‘meaningful
relationship’ between a child and his or her parents; it is much more than that. It is to
return the child to the care of his parents.” State Dep’t of Children’s Servs. v. D.G.B.,
No. E2001-02426-COA-R3-JV, 2002 WL 31014838, at *9 (Tenn. Ct. App. Sept. 10,
2002). Thus, the “key” issue is whether an early return to the care of the parent is
possible. Id. “[C]hildren need and deserve a parent who can take care of them.” State,
Dep’t of Children’s Servs. v. Mims, 285 S.W.3d 435, 449 (Tenn. Ct. App. 2008).


       Despite the arguments raised on appeal, the focus of this ground for termination is
not whether the children are currently well-cared for or the circumstances of that care. It
is on Father and his ability or inability to care for the children. We reject the assertion
from Father and Grandparents that Father should not be required to be able to provide
care for the children.

                                             15
                               2.   Stand-alone Ground

       Next, Father argues that the trial court misconstrued caselaw regarding this
statutory ground for termination. Father claims that the ground of mental incompetence
is not a ground that can “stand on its own” and that it must be “coupled with” another
ground for termination. Father claims that he was unable to find any caselaw or statutory
law providing for termination of parental rights solely on the ground of mental
incompetence.


      The termination statute provides that termination of parental rights “may be based
upon any of the grounds listed in [] subsection (g).” Tenn. Code Ann. § 36-1-113(g). In
other words, “the existence of any one ground for termination is enough.” In re
M.A.A.K., No. E2010-01318-COA-R3-PT, 2010 WL 4342154, at *4 (Tenn. Ct. App.
Nov. 3, 2010). This applies equally to the ground of mental incompetence. See, e.g., In
re Madison A., No. E2008-01261-COA-R3-PT, 2008 WL 5423999, at *5 (Tenn. Ct. App.
Dec. 30, 2008) (affirming termination where the only ground pursued at trial and
considered on appeal was mental incompetence); Mims, 285 S.W.3d at 449 (affirming
termination based solely on mental incompetence and declining to consider another
ground because only one ground was necessary to support termination). Father’s
argument to the contrary lacks merit.


                         3.   Persistent Conditions Analysis

       Next, Father argues that the ground of mental incompetence should be analyzed
like the ground of persistent conditions and in accordance with the reasoning of In re
Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005). The ground commonly referred to as
“persistent conditions” is a separate stand-alone ground in the termination statute. See
Tenn. Code Ann. § 36-1-113(g)(3). It applies when:


      (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 and:
             (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 or parents or the guardian or guardians, still persist;
                                           16
              (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 or parents or the guardian or guardians
              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[.]


Id. Notably, the ground of persistent conditions begins by stating a prerequisite that the
child at issue “has been removed from the home of the parent or guardian by order of a
court.” Id. In In re Audrey S., 182 S.W.3d at 872, this Court explained that additional
language used in the statute further limits the scope of this ground for termination.
Specifically, the statute goes on to reference the original “conditions that led to the
child’s removal” and other conditions that “would cause the child to be subjected to
further abuse or neglect.” Tenn. Code Ann. § 36-1-113(g)(3). Consequently, we
concluded that the persistent conditions ground is applicable “only where the prior court
order of removal was based on a judicial finding of abuse or neglect.” In re Audrey S.,
182 S.W.3d at 872.


        According to Father, “[t]his reasoning is applicable to the language found in the
mental incompetence statute” as well because the ground of mental incompetence
requires consideration of whether the parent can “assume or resume” the care of the
child. Father interprets this language to mean that the statute only applies in the case of a
prior removal from the parent based on abuse, dependency, or neglect. Like Father,
Grandparents argue that the statute “implicitly” requires an action brought by DCS in
which the child has been removed from the care of the parent and placed in state custody
because the mental incompetence ground references whether the parent “will be able to
assume or resume the care of and responsibility for the child in the near future.”
Grandparents claim that Tennessee cases applying this ground for termination have
involved petitions for termination filed by DCS and not step-parents. They argue that
this ground for termination “was never meant to apply to non-departmental petitions,
such as petitions filed by step-parents for termination and adoption.” Thus, Grandparents
and Father urge this Court to hold that the ground of mental incompetence is inapplicable
to this matter.


       Again, the statutory language, read in context, simply does not support this
interpretation. The ground of mental incompetence exists if:


                                             17
       The parent [] is incompetent to adequately provide for the further care and
       supervision of the child because the parent’s [] mental condition is
       presently so impaired and is so likely to remain so that it is unlikely that the
       parent [] will be able to assume or resume the care of and responsibility for
       the child in the near future.


Tenn. Code Ann. § 36-1-113(g)(8)(B)(i). Unlike the ground of persistent conditions, the
ground of mental incompetence does not contain a prerequisite of a prior court order
removing the child from the home of the parent, nor does it mention “conditions that led
to the child’s removal” or “further abuse or neglect,” phrases specifically included for the
ground of persistent conditions. Tenn. Code Ann. § 36-1-113(g)(3). The statutory text
provides no basis for reading those requirements into this statute.


       The language about assuming or resuming care does not compel that result either.
For the ground of mental incompetence, the petitioner bears the burden of demonstrating
both that the parent is presently unable to provide further care for the child and that it is
unlikely that the parent will be able to assume the care of the child in the near future
because of mental impairment. In re Tanya G., No. E2016-02451-COA-R3-PT, 2017
WL 2895935, at *3 (Tenn. Ct. App. July 7, 2017) (no perm. app. filed); In re La’Trianna
W., No. E2016-01322-COA-R3-PT, 2016 WL 7175288, at *5 (Tenn. Ct. App. Dec. 9,
2016) (no perm. app. filed). Simply put, we must consider the parent’s present ability to
care for the child and the likelihood that he or she can assume care in the near future.
However, nothing in the statute requires removal by DCS or a previous finding of
dependency and neglect or abuse, as suggested by Father and Grandparents. Contrary to
the arguments presented on appeal, Tennessee appellate courts have in fact affirmed
termination of parental rights based on the ground of mental incompetence in cases that
were filed by stepparents or private parties rather than DCS. See, e.g., In re Joseph F.,
492 S.W.3d 690, 693 (Tenn. Ct. App. 2016) (involving a termination petition filed by
individuals with physical custody of the children, not DCS); In re Erykah C., No. E2012-
02278-COA-R3-PT, 2013 WL 1876011, at *1 (Tenn. Ct. App. May 6, 2013) (involving a
termination petition filed by adoptive parents). We discern no merit in the arguments
raised on appeal regarding these issues.


                                 4.   Father’s Condition

       Finally, Grandparents argue that the trial court erred in finding clear and
convincing evidence that Father’s condition was so likely to remain impaired that it was
unlikely that he would be able to provide care to the children in the near future. They
                                             18
note the fact that Father’s condition was improving due to the MOT program.
Grandparents criticize the report of Dr. Leonard as “clearly erroneous” and insist that Dr.
Leite recognized “a possibility that in the next year, Father would be capable of
unsupervised parenting time.” However, this is a mischaracterization of Dr. Leite’s
testimony. The cited testimony was as follows:


       Q. Is there a possibility that in the next year [Father] would be capable of
       custodial care?
       A. If “custodial” means unsupervised 24/7 or 24/two or three days, I would
       say unlikely. I think it could certainly be something to work toward, but I’d
       want to see a progression from limited contact, supervised therapeutic
       contact, family therapy, a variety of things before I’d feel comfortable
       making a recommendation like that or seeing that as a possibility.
       Q. Is there a likelihood that in the next years [Father] would be capable of
       unsupervised parenting time?
       A. Possibility. But I’d say it’s just that.


And, once again, Dr. Leonard opined that Father’s mental condition was so impaired that
he could not assume care of the children in the near future. We perceive no basis for
discounting Dr. Leonard’s opinion.


        Tennessee courts have “rejected the argument that the ground of mental
incompetence is reserved only for parents who have a condition for which no amount of
intervention can assist.” In re Lena G., 2017 WL 2304448, at *25 (quoting State, Dep’t
of Human Servs. v. Smith, 785 S.W.2d 336, 337 (Tenn. 1990)). To the contrary, we have
“affirmed the termination of parental rights for mental disorders such as bipolar disorder,
adjustment disorder with anxiety and depressed mood, dependent personality disorder,
and schizophrenia disorder” when the parent’s mental condition impairs the parent to an
extent that he or she cannot adequately provide for the care and supervision of the child.
Id. The evidence in the record reflects that Father’s mental condition has been impaired
at least since Mother left the marital home in 2010 and that it was not likely to improve in
a short time, even with mandated medication, to the point that he could care for the
children. The evidence shows clearly and convincingly that Father’s impaired mental
condition presently prevents him from providing care for the children and would prevent
him from assuming the care of and responsibility for the children in the near future.
Accordingly, the record supports the trial court’s finding that the ground of mental
incompetence was proven by clear and convincing evidence.

                                               19
                                        B.    Abandonment

        Next, we turn to the issue of abandonment. According to the termination statute,
another ground for termination exists if “[a]bandonment 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 provides five alternative definitions of abandonment.
The first definition provides that abandonment occurs when the parent willfully failed to
visit or support the child “[f]or a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the parental rights of the
parent.” Tenn. Code Ann. § 36-1-102(1)(A)(i). However, a different definition applies if
the parent “is incarcerated at the time of the institution of an action” or “has been
incarcerated during all or part of the four (4) months immediately preceding the
institution of such action[.]” Tenn. Code Ann. § 36-1-102(1)(A)(iv).


       Here, the petition for termination asserted that Father had “willfully abandoned the
said minor children, as defined by T.C.A. § 36-1-102, for more than four (4) consecutive
months immediately preceding the filing of this petition.”4 At trial, counsel for Mother
and Stepfather said during opening statements,


       As your Honor knows and I’ve pointed out in the statute in my
       memorandum, that the operative timeframe is the four-month period
       preceding the filing of the petition for adoption. In this case, the petition
       for adoption was filed on September 23rd, 2014, which would make the
       operative timeframe the four-month period leading up to the filing. So that
       would be May of 2014 to September of 2014.


As the trial progressed, the testimony established that Father was arrested for the incident
at the fast food restaurant in May 2014 and spent the next few months in jail and being
evaluated at a mental health institute. He was released shortly before the termination
petition was filed. The fact that the petitioner was pursuing termination based on the
wrong four-month period apparently went unnoticed. During closing arguments, the trial


4
 Although the language in the termination petition was vague and did not specify a particular statutory
definition of abandonment, Stepfather and Mother state in their brief on appeal that they “did not base
their abandonment claim on the fact that Father was incarcerated” as they “did not even know that Father
had been incarcerated in the months leading up to the filing of their Petition.”
                                                  20
judge appeared to recognize the issue. After indicating that the dates of incarceration
were unclear to him, the trial judge said,


       My only question – what my request from each of y’all is, if you have proof
       or evidence as to when he was incarcerated and what -- in regards to the
       four-month period of time that is the serious time that we're talking about
       here, I’d like to know what it is. And if you can get that to me sometime in
       the near future, we’ll see what we can do.
       ....
       . . . . But if they’re incarcerated during that four-month period of time or
       during a portion of that four-month period of time, I have an interest in that.


The trial court’s final amended order ultimately terminated Father’s parental rights based
on abandonment by willful failure to visit and willful failure to support. The court found
that during the four-month period immediately preceding the filing of the termination
petition, Father was arrested and spent time in a mental health facility. As a result, the
court deemed that four-month period irrelevant and found that the termination statute set
forth a different relevant timeframe that applies under the facts of this case. The court
cited the definition of abandonment listed in subsection (iv) for incarcerated parents and
reviewed the four-month period prior to Father’s incarceration -- from January 8 to May
8, 2014 -- for purposes of determining whether abandonment occurred. The court found
that Father willfully failed to visit or support during that four-month period and
terminated Father’s parental rights on that basis.


        On appeal, Grandparents argue that the trial court erred in deciding sua sponte to
rely on the definition of abandonment in subsection (iv) for incarcerated parents, as it was
not mentioned in the termination petition or at trial. Grandparents argue that the trial
court cannot simply substitute one definition of abandonment for another when making
its ruling. We agree. We examined the effect of pursuing termination based on the
wrong four-month period in In re D.H.B., No. E2014-00063-COA-R3-PT, 2015 WL
1870303, at *4-5 (Tenn. Ct. App. Apr. 23, 2015). In that case, the original petition
alleged only “abandonment” of the children. When pressed for more specificity, the
petitioners amended the petition to allege abandonment during the four-month period
immediately preceding the filing of the petition. However, the proof at trial demonstrated
that the mother was incarcerated during that period, and the trial court applied the
definition applicable to incarcerated parents. The Court of Appeals explained that
“courts must strictly apply the procedural requirements in cases involving the termination
of parental rights.” Id. at *4 (citation omitted). The termination statute is very specific in
                                             21
defining the period applicable to incarcerated parents. Id. We also acknowledged
previous caselaw deeming a termination petition “deficient where the ‘wrong’ four-
month statutory period is pleaded.” Id. at *5 (quoting In re K.N.B., No. E2014-00191-
COA-R3-PT, 2014 WL 4908505, at *13 (Tenn. Ct. App. Sep. 30, 2014)). Because the
petition did not properly allege the relevant time period of four months preceding the
parent’s incarceration, we found it necessary to consider whether the ground of
abandonment by an incarcerated parent was tried by implied consent. Id. We concluded
that the alternative ground was tried by consent because the trial court “shifted its focus
to the ‘correct’ statutory period” during the trial, and the mother fully understood that the
unpled ground for termination was being tried. Id. at *8.


       We do not reach the same result under the facts of this case. No one appeared to
recognize that the wrong four-month period was being tried except the trial judge, and
that was during closing arguments. Even at that point, the attorneys did not appear to
recognize the issue. Because the ground of abandonment by an incarcerated parent was
neither properly pleaded nor tried by consent, we reverse the trial court’s judgment
terminating Father’s parental rights on this ground. See In re K.N.B., 2014 WL 4908505,
at *13; see also In re A.E.T., No. M2015-01193-COA-R3-PT, 2016 WL 4056467, at *4
(Tenn. Ct. App. July 26, 2016) (no perm. app. filed) (“Because of the fundamental nature
of parental rights, courts must take a very strict view of procedural omissions that could
put a parent at a disadvantage in preparing for trial.”).


                                     C.    Best Interest

        Tennessee Code Annotated section 36-1-113(i) provides a list of factors that are
relevant when deciding what is in a child’s best interest. However, the list is not
exhaustive, and the court is not required to find the existence of every factor before
concluding that termination is in a child’s best interest. In re Joseph F., 492 S.W.3d at
706. The child’s best interest must be viewed from the child’s perspective rather than
that of the parent. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).


       In its best interest analysis, the trial court found that the children were ages eleven
and ten, and it had been more than seven years since they resided with Father. During
that seven years, the children had eight brief interactions with Father. The trial court
found that “Father has not been a part of any facet of the children’s lives.” It also
concluded that it was not in the best interest of the children to inject Father into their
current environment. The court recognized the possibility that visitation might benefit
Father, but it found no credible proof that such visitation would in any way serve the best
                                             22
interest of the children. The trial court found that the nature, severity, and consequences
of Father’s mental illness led to the unmistakable conclusion that termination of his
parental rights was appropriate.


        From our careful review of the record, the evidence does not preponderate against
the trial court’s factual findings, and the combined weight of the facts amounts to clear
and convincing evidence that termination of Father’s parental rights is in the best interest
of the children. Any remaining bond between Father and the children, if one exists, is
outweighed by the safe and stable home environment the children now enjoy and the
serious hazards that would be involved in returning the children to Father’s care or even
resuming supervised visitation between him and the children.


                                     V. CONCLUSION

       For the aforementioned reasons, the decision of the chancery court is hereby
reversed in part and affirmed in part. The request for attorney’s fees on appeal made by
Mother and Stepfather is respectfully denied, as they cite no basis for such an award.
Any remaining issues are pretermitted. Costs of this appeal are taxed to the appellant,
David R., for which execution may issue if necessary.



                                                  _________________________________
                                                  BRANDON O. GIBSON, JUDGE




                                             23
