                                                                                             08/07/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                             Assigned on Briefs June 1, 2020

                              IN RE NAKAYIA S. ET AL.

                  Appeal from the Juvenile Court for Jackson County
                   No. 2017-JV-11    Tiffany Gentry Gipson, Judge
                       ___________________________________

                            No. M2019-00644-COA-R3-PT
                        ___________________________________

This is the second appeal by a father of the termination of his parental rights to his two
minor children. The trial court determined that termination of the father’s rights was in the
best interest of the children after finding he failed to manifest an ability and willingness to
assume custody of the children and abandoned them by engaging in conduct that exhibited
a wanton disregard for their welfare. In the first appeal, we vacated the judgment of the
trial court because its findings of fact failed to comply with the mandate in Tenn. Code
Ann. § 36-1-113(k) and remanded for the trial court to make additional findings of fact on
two grounds—abandonment by wanton disregard and failure to manifest an ability and
willingness to assume custody of or financial responsibility for the children—and on
whether termination of the father’s parental rights was in the children’s best interests See
In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651, at *5–6 (Tenn. Ct.
App. Sept. 18, 2018). In this appeal, the father contends the court improperly based its
decision on one child’s out of court allegations of abuse, and he asserts that he manifested
ability and willingness to assume custody by complying with the permanency plan
requirements. We have determined that the child’s statements were properly admitted
under Tennessee Rule of Evidence 803, and the preponderance of the evidence is not
against the trial court’s findings, which amount to clear and convincing evidence of the
elements necessary to terminate the father’s parental rights. Accordingly, we affirm the
termination of the father’s parental rights.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.
Kayla Collins Cantrell, Gainsboro, Tennessee, for the appellant, Eric S.1

Amber L. Seymour, Assistant Attorney General, and Andree Kahn Blumstein, Solicitor
General, Nashville, Tennessee, for the appellees, Tennessee Department of Children’s
Services, and Veronica S.

                                              OPINION

                                           I. BACKGROUND

       In July 2015, Nevaeh and Nakayia S. (“the Children”) were placed in the custody
of the Tennessee Department of Children’s Services (“DCS”) after their mother, Veronica
S. (“Mother”),2 was arrested for driving under the influence with the Children in the car.
At the time, Father was incarcerated in Minnesota for domestic assault. Seven months later,
Father was released from prison and paroled to Indiana. The same month, the Children
were declared dependent and neglected and placed with a foster family.

       Father’s parole requirements prohibited him from leaving Indiana, but he promptly
contacted DCS and requested the Children be placed with him. Thereafter, Father
participated with DCS in developing two family-permanency plans for the Children.
Among other requirements, Father was required to obtain insurance, resolve outstanding
legal matters, and follow DCS’s recommendations regarding visitation. DCS
recommended that Father not have visitation with the Children, but the case manager
advised Father that he could hire an attorney to contest the recommendation.

       After conferring with Father, DCS requested approval to place the Children with
Father under the Interstate Compact on the Placement of Children (“ICPC”), Tenn. Code
Ann. §§ 37-4-201 to -207. However, Indiana denied the request because Father had an
outstanding arrest warrant in Putnam County, Tennessee, for theft under $1000. Thus,
when Father’s parole ended in September 2016, Father returned to Putnam County and
began serving a four-month sentence.

       In December 2016, while Father was incarcerated in Putnam County, DCS
developed a third permanency plan without Father’s participation or agreement. The third
plan included two new action steps for Father to complete: (1) submit to and follow the




        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
         The trial court also terminated the parental rights of Veronica S., the Children’s mother; she did
not appeal the termination of her parental rights.


                                                  -2-
recommendations of a psychological and parenting assessment; and (2) obtain and maintain
safe, appropriate housing.

       In February 2017, Father was released from jail and met with DCS case worker,
Sarah Halliburton. Father told Ms. Halliburton he did not have the money to get a new
apartment because he was unemployed. Ms. Halliburton explained that there were
affordable housing opportunities in Indiana and offered to help him look for housing in
Tennessee. After meeting with Ms. Halliburton, Father requested a second ICPC evaluation
and then returned to Indiana. The same month, DCS filed its petition to terminate Father’s
parental rights.

       For reasons unexplained by the record, the third permanency plan was not approved
by the juvenile court until April 2017—just over three months before the scheduled final
hearing in the termination proceedings. Around the same time, Indiana denied the second
ICPC request because Father was living in a one-bedroom apartment with another person.

       In early May 2017, Father obtained health insurance; in mid-June he had a
psychiatric evaluation. Two weeks later, Father called DCS caseworker Malissa Mayberry
and reported that he obtained housing and was living by himself. Father requested a third
ICPC evaluation, but Ms. Mayberry said that a team meeting would need to take place
before requesting a third ICPC evaluation. Ms. Mayberry also requested a copy of Father’s
lease. By the time of the final hearing, Father had not provided a copy of the lease, and
DCS had not submitted a third ICPC request.

           II. PROCEEDINGS IN THE TRIAL COURT PRIOR TO THE FIRST APPEAL

        The case went to trial on July 18, 2017. DCS presented the testimony of the
Children’s foster mother, Lisa M., who testified that the Children had been living with her
family for nearly two years. Lisa testified that her family had bonded with the Children and
were willing to adopt them. This testimony was corroborated by Ms. Halliburton, who
stated that the Children had bonded with Lisa and referred to her as “mommy.”

       On the other hand, Ms. Halliburton testified that Father had not seen the Children
in over two years, and Ms. Mayberry testified that she never heard the Children inquire
about Father. When the Children were told that they had a letter from “dad,” Neveah
thought it was from the foster father.

       In January 2017, Nevaeh was referred to Amanda Wentz, a Licensed Masters Social
Worker, for behavioral issues related to trauma. Ms. Wentz testified that Nevaeh suffered
from, inter alia, inattentiveness, emotional sensitivity, and nightmares. Her symptoms
were diagnosed as Attention-Deficit-Hyperactivity Disorder (“ADHD”) and unspecified
anxiety disorder.



                                           -3-
        Ms. Wentz testified that Neveah disclosed that Mother and Father would fight when
they lived together. On one occasion, Neveah drew a picture of Father and told Ms. Wentz
that Father would “show out his body.” Without being prompted, Neveah stated that Father
was mean and had slapped her. In addition to behavioral therapy, Ms. Mayberry testified
that Neveah received occupational therapy and speech therapy, as well as physical therapy
for a hip injury.

       Based on the foregoing and other evidence, the juvenile court entered an order on
July 25, 2017, terminating Father’s parental rights to the Children on five grounds:
(1) abandonment by willful failure to support; (2) abandonment by willful failure to visit;
(3) substantial noncompliance with the permanency plan; (4) engaging in conduct
exhibiting a wanton disregard for the welfare of the Children; and (5) failure to manifest
an ability and willingness to assume custody.

                                      III. FIRST APPEAL

        In the first appeal, DCS conceded the grounds of abandonment by failure to visit
and failure to support. In re Nakayia S., 2018 WL 4462651, at *3. Thus, our analysis was
confined to the three remaining grounds: (1) substantial noncompliance with the
permanency plan; (2) abandonment by wanton disregard; and (3) failure to manifest an
ability and willingness to assume legal and physical custody. Id.

       As for noncompliance with the permanency plan, we determined that the additional
requirements in the third plan were “unreasonable” because they were not approved by the
juvenile court until April 2017:

       Because Father did not agree to the third permanency plan, Father had no
       obligation to complete the requirements until the juvenile court ratified it on
       April 4, 2017. Thus, we find it was unreasonable to expect Father to comply
       with these requirements before the final hearing. Consequently, Father’s
       noncompliance with the housing and psychological-assessment requirements
       is irrelevant to the substantial noncompliance determination. For this reason,
       we disagree with the juvenile court’s finding that clear and convincing
       evidence existed for terminating Father’s parental rights for substantial
       noncompliance with the permanency plan’s statement of responsibilities.

Id. at *5.

       Additionally, we determined that our review of the remaining grounds, as well as
the children’s best interests, were precluded by a lack of findings of fact in the final order.
Id. Thus, we remanded the case for the trial court to make additional findings of fact and
conclusions of law as required by Tenn. Code Ann. § 36-1-113(k). Id.



                                             -4-
                        IV. FINAL JUDGMENT FOLLOWING REMAND

       On March 12, 2019, the juvenile court entered its revised final judgment. The court
concluded that Father failed to manifest an ability and willingness to assume custody of or
financial responsibility for the Children based on these findings:

       By his being incarcerated, then not having the ability to come to Tennessee,
       then failing to notify the Department eventually of his intention to come to
       Tennessee, failing to notify them when he arrived, and failing to take any
       substantive action pertaining [to] the children while here, he clearly failed to
       manifest an ability and willingness to assume legal and physical custody of
       his minor children.

                                           .    .    .

       . . . . [Father] was told how to inquire about affordable housing opportunities
       in Indiana, and he was provided the resources for such an inquiry, but
       [Father] simply did not secure it. He was told of affordable housing options
       here in Tennessee, and was told of the different programs that were offered
       by the Cookeville Housing Authority.

       [Father] availed himself of neither of these options, failed to secure housing
       for he [sic] and his minor children, and offered no explanation as to why he
       would not. By his failure to do so, he yet again, clearly failed to manifest an
       ability and willingness to assume legal and physical custody of his minor
       children.

       . . . . [Father] made no further inquires [sic] after being advised that the
       children’s therapist did not recommend visits, nor did he take any legal action
       to secure visitation, either supervised or therapeutic, despite being told by
       DCS that he would need to contact his attorney in order to do so.

       [H]ad [Father] appeared at a single court hearing, or even made the request
       via his telephone appearances, he could have made his concerns about
       visitation or custody known, if he did in fact have such concerns, and the
       Court could have addressed these barriers to visitation. Alas, he did not.
       Therefore, once again, he clearly failed to manifest an ability and willingness
       to assume legal and physical custody of his minor children.

      In addition, the trial court found a substantial risk of harm would exist if the Children
were placed with Father:

       Neveah has special needs, physical therapy and speech therapy to address
       educational delays, and still suffers from inattentiveness, emotional


                                               -5-
      sensitivity, nightmares, and related issues. She is also receiving mental health
      treatment to address her behaviors and stressors. . . . .

                                          .    .    .

      [I]t was revealed that during treatment that Neveah disclosed prior abuse or
      neglect by [M]other and [Father]. She would describe how they would
      allegedly fight with one another in her presence . . . .

      Also, during treatment, Neveah drew a picture that included [Father] and
      disclosed to Ms. Wentz that [Father] would “show out his body” and stated
      “Eric is mean” and that “Eric slapped me.”

                                          .    .    .

      In this matter, although [Father] indicated to the case manager that he had
      obtained suitable housing some months after the termination petition was
      filed, he was unable to provide the requested necessary confirmation. To
      assume that he was being truthful is mere speculation . . . . In addition, he
      took no action to indicate that even if he did, [in] fact, obtain “a physically
      sound structure,” that the children would not be subjected to any further
      domestic trauma, or that he would be in a position to understand the particular
      needs of his children, and ensure that these needs would be met through the
      necessary therapy and counseling sessions they required. Again, he has not
      shown that he has the ability and willingness to provide either a physically
      sound structure, nor any indication that he could protect and parent his
      children in the event that he did.

      For all of these reasons, it is this Court’s opinion that placing these children
      in the physical and legal custody of [Father] would undoubtedly and
      unquestionably pose a risk of substantial harm to the physical or
      psychological welfare of these children.

       The trial court then found DCS proved by clear and convincing evidence that
Father’s conduct exhibited a wanton disregard for the Children’s welfare because he
engaged in a pattern of physical abuse:

      By engaging in physical violence toward the children’s mother, and Neveah
      herself, and then ultimately serving an extended period of incarceration for
      domestic abuse, there is clear and convincing evidence that [Father] refused
      to show concern for his children’s mental or physical health, and there exists
      a broader pattern of conduct that renders him unfit or poses a risk of
      substantial harm to the welfare of the children.



                                              -6-
       Finally, the trial court found that termination of Father’s parental rights was in the
Children’s best interests based on a number of factors, including Father’s failure to make
an adjustment of circumstances, the lack of a bond between Father and the Children, and
the significant bond between the Children and their foster family. The trial court’s specific
findings on this issue include:

       1. [Father] has not made an adjustment of circumstances, conduct or
          conditions as to make it safe and in the children’s best interest to be in his
          home. As the Court has already elaborated above, [Father] has been
          unable, at any point since the inception of these proceedings, to confirm
          the existence of housing that would be adequate to accommodate the
          minor children, either by way of an appropriate physical home that could
          be examined through the ICPC process, by way of a plan that would keep
          the children safe from displays of physical and mental abuse, or by way
          of a plan that would meet the therapeutic needs of the children.

       2. [Father] has failed to effect a lasting adjustment after reasonable efforts
          by available social agencies for such duration of time that lasting
          adjustment does not reasonably appear possible. [Father] has not made
          changes in his conduct or circumstances that would make it safe for the
          children to go home. He refuses to take the necessary or meaningful
          actions that would demonstrate that he was able to provide an
          environment that could meet the minor children’s needs.

       3. [Father] has not maintained regular visitation or other contact with the
          children. [Father] has not laid eyes on his children at all since their being
          in custody, and for an undetermined amount of time prior to their being
          in custody. [Father] was provided the recommendation of the counselor
          that did not recommend visitation, but did not inquire further as to
          therapeutic visitation, or any method of removing the barriers to his
          visitation. There were no motions filed before the Court requesting any
          visitation, as to either Nakayia or Neveah. He did not stay in Tennessee
          to work with their counselor, nor did he provide any insight as to how he
          would meet their needs in Indiana.

       4. A meaningful relationship between Nevaeh and Nakayia [] has not
          otherwise been established between the children and [Father]. The
          children do not indicate they miss him, nor do they ask about him. Quite
          simply, [they] do not have a bond with their father.


       5. A change of caretaker and physical environment is likely to have a
          negative effect on the children’s emotional, psychological and/or medical

                                             -7-
            condition. Navaeh has special needs, physical therapy and speech therapy
            to address educational delays. She is also receiving mental health
            treatment to address her behaviors and stressors. Nakayia has receive[d]
            mental health therapy to address her anxiety. The environment they are
            currently in is conducive to their continued progress and development.
            To change their caretaker to someone who has not seen them since 2015
            [is] likely [to] have a devastating impact on their emotional and
            psychological wellbeing.

        6. [Father] has made lifestyle choices that prevent him from being able to
           parent these children or to provide a home for these children. [Father] has
           consistently been in and out of jail, and as such [has] been unable to
           provide a safe and stable environment that would meet the needs of these
           children.

        7. The children are placed in a foster home that wishes to adopt the children
           and have established a strong bond with the foster parents. The foster
           parents are called “mom and dad” by the children, and engage in daily
           routines that provide normalcy and stability. The foster parents also
           ensure that the physical, emotional and mental health needs of the
           children are met.

        8. The children’s mental health counselor has opined that it is in the
           children’s best interest to establish permanency for the children as soon
           as possible through adoption.

        9. The children need to be released from the stigma of being foster children.
           They have been in foster care long enough, and this Court finds they are
           desperately in need of their forever home.

This appeal followed.

       Father contends the trial court erred in finding that grounds existed for terminating
his rights and that terminating his parental rights is in the Children’s best interests.3



        3
           Father also presents a third issue—whether the evidence preponderates against the trial court’s
ruling that DCS made reasonable efforts to reunite him with the Children. Because “the extent of DCS’s
efforts to reunify the family is weighed in the court’s best-interest analysis,” In re Kaliyah S., 455 S.W.3d
533, 555 (Tenn. 2015), we will consider this issue in our analysis of the Children’s best interests.




                                                   -8-
                                  STANDARD OF REVIEW

       “To terminate parental rights, a court must determine that clear and convincing
evidence proves not only that statutory grounds exist but also that termination is in the
child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code
Ann. § 36-1-113(c)). Clear and convincing evidence “establishes that the truth of the facts
asserted is highly probable, and eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from evidence,” and “[i]t produces in a fact-finder’s
mind a firm belief or conviction regarding the truth of the facts sought to be established.”
In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted).

       We review a trial court’s findings of fact de novo upon the record “accompanied by
a presumption of the correctness of the finding, unless the preponderance of the evidence
is otherwise.” Tenn. R. App. P. 13(d). However, the heightened burden of proof in
termination proceedings requires this court to make its own determination “as to 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). A trial court’s
ruling regarding whether the evidence sufficiently supports termination is a conclusion of
law, which we review de novo with no presumption of correctness. See id.

                                         ANALYSIS

                              I. GROUNDS FOR TERMINATION

       The trial court found that two grounds for terminating Father’s parental rights had
been established: (1) failure to manifest an ability and willingness to assume custody of the
Children, see Tenn. Code Ann. § 36-1-113(g)(14); and (2) abandonment by engaging in
conduct that exhibited a wanton disregard for the Children’s welfare, see id. §
102(1)(A)(iv)(c) and § 113(g)(1). We will address each in turn.

           A. Failure to Manifest Ability and Willingness to Assume Custody

       Under Tenn. Code Ann. § 36-1-113(g)(14), a parent’s rights may be terminated if
the parent (1) “failed to manifest, by act or omission, an ability and willingness to
personally assume legal and physical custody or financial responsibility of the child;” and
(2) “placing the child in the [parent]’s legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child.” Each element must
be proven by clear and convincing evidence. In re Maya R., No. E2017-01634-COA-R3-
PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018).




                                            -9-
                              1. Ability and Willingness

       The juvenile court based its ruling on two principal findings: (1) Father did not seek
court-ordered visitation with the Children; and (2) Father failed to secure suitable housing,
despite DCS’s efforts to assist him. Father does not dispute these facts, but he contends
that he manifested ability and willingness to assume custody of the Children by complying
with the permanency plan requirements.

        In the first appeal, we interpreted Tenn. Code Ann. § 36-1-113(g)(14) as requiring
DCS to prove that Father failed to manifest an ability and failed to manifest a willingness
to assume custody of the Children. See In re Nakayia S., 2018 WL 4462651, at *5 (citing
In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App.
May 31, 2018)). Since then, this court has consistently interpreted § 113(g)(14) as requiring
the petitioner to prove the parent failed to manifest an ability or failed to manifest a
willingness to assume custody or financial responsibility. See, e.g., In re Jeremiah S., No.
W2019-00610-COA-R3-PT, 2020 WL 1951880, at *7 (Tenn. Ct. App. Apr. 23, 2020)
(citing In re Amynn K., No. 2017-01866-COA-R3-PT, 2018 WL 3058280, at *12 (Tenn.
Ct. App. June 20, 2018)). We found this approach to be more consistent with the Tennessee
Supreme Court’s interpretation of nearly identical language in another provision of the
same statute. In re Nevaeh B., No. E2019-01539-COA-R3-PT, 2020 WL 1527001, at *7
(Tenn. Ct. App. Mar. 31, 2020) (citing In re Bernard T., 319 S.W.3d 586, 604 (Tenn.
2010)). Even more recently, this court applied a consistent interpretation of the meaning of
the statute that was, however, based on the determination that the statute was ambiguous,
which afforded the court the opportunity to consider legislative intent. See In re Braelyn
S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *1 (Tenn. Ct. App. July 22,
2020). As this court explained in Braelyn,

       [t]he legislative history concerning the enactment of section 36-1-113(g)(h)
       is highly relevant. Not only did Ms. Collins testify as to the exact dispute at
       issue in this case, her testimony was expressly described as for the purpose
       of establishing the legislative intent. Thus, although the language ultimately
       used in section 36-1-113(g)(14) “lack[ed] precision,” Thompson, 38 S.W.3d
       at 512, its meaning can be readily derived from a review of the enactment’s
       legislative history. And that legislative history clearly shows that the intent
       of the statute was to provide a ground for termination if the petitioner proves
       “either inability or unwillingness” under section 36-1-113(g)(14). Any
       ambiguity in the statute is therefore resolved by the legislative history in
       favor of the interpretation furthered by Amynn K. and its progeny.




                                           - 10 -
Id. at *17 (emphasis added). Accordingly, we will consider whether DCS proved by clear
and convincing evidence that Father failed to manifest an ability to assume custody of the
Children or failed to manifest a willingness to assume custody of the Children.4

        We have determined that the facts clearly and convincingly establish that Father
failed to manifest an ability to assume custody of the Children.5 Father was incarcerated
from the time the Children were placed into DCS custody in July 2015 until his release in
January 2016. After being released, Father was confined to Indiana on probation. During
that time, Indiana denied the transfer of the Children under the ICPC due to Father’s
outstanding warrant in Putnam County. After his parole, Father was incarcerated in
Tennessee until February 2017. Upon his release, Father chose to return to Indiana—which
meant that a second ICPC request was necessary. That request was denied because Father
had inadequate housing. There was evidence that Father obtained new housing shortly
before trial. However, the fact remained that Father still needed approval from Indiana
before he could assume custody of the Children. In summary, Father was physically and
legally unable to assume custody of the Children from July 2015 through the date of the
final hearing.

       Based on the foregoing, we have determined that the preponderance of the evidence
is not against the trial court’s findings, which, together, constitute clear and convincing
evidence that Father failed to manifest an ability to assume legal and physical custody of
the Children.

                                   2. Risk of Substantial Harm

       Having found clear and convincing evidence that Father failed to manifest an ability
to assume legal and physical custody of the Children, we must next consider whether there
was clear and convincing evidence of the second element, that “placing the child in the
[parent]’s legal and physical custody would pose a risk of substantial harm to the physical


        4
            After the filing of the notice of appeal and briefs in this matter, the Tennessee Supreme Court
granted a Rule 11 application for permission to appeal in In re Neveah M., No. M2019-00313-COA-R3-
PT, 2020 WL 1042502, at *1 (Tenn. Ct. App. Mar. 4, 2020), appeal granted (June 15, 2020). In that case
this court held, in pertinent part, that “[i]f a party proves only the ‘ability’ criterion or the ‘willingness’
criterion, the requirements of the statute are not met, and this ground may not serve as a basis for terminating
parental rights.” Id. at *16 (citing In re Ayden S., 2018 WL 2447044, at *7). We surmise that the Supreme
Court took the case to resolve a conflict of opinion within the Court of Appeals on the interpretation of this
ground for termination of parental rights.

        5
         Because the trial court based its decision on Father’s ability to assume custody, we have not
addressed Father’s contention that DCS failed to prove he failed to manifest an ability and/or willingness
to assume financial responsibility for the Children.




                                                    - 11 -
or psychological welfare of the [Children].” Tenn. Code Ann. § 36-1-113(g)(14).
Substantial harm “connotes a real hazard or danger that is not minor, trivial, or
insignificant,” and “it indicates that the harm must be more than a theoretical possibility.”
Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001). In other words, “[w]hile the harm
need not be inevitable, it must be “sufficiently probable to prompt a reasonable person to
believe that the harm will occur more likely than not.” Id.

       The juvenile court found placing the Children with Father would create a risk of
substantial harm to the Children’s physical or psychological welfare because of Nevaeh’s
special needs and Father’s history of domestic violence.6 Father does not dispute that
Nevaeh has special needs, but he argues that the trial court should not have placed weight
on Nevaeh’s statements concerning domestic violence because Ms. Wentz admitted that
she never asked Neveah “whether or not she specifically remembered [abuse] at the hands
of [Father] or whether it was told to her by another person.”

        In parental termination proceedings, out of court statements by a child regarding
abuse or neglect are admissible unless the “circumstances indicate lack of trustworthiness.”
Tenn. R. Evid. 803(25), cmt. “[T]he determination of trustworthiness is a matter for the
trial court to decide and [its] decision will not be disturbed on appeal unless there is a
showing of abuse of discretion.” State, Dept. of Human Services v. Purcell, 955 S.W.2d
607, 609 (Tenn. Ct. App. 1997).

       Here, Father had an opportunity to cross-examine Ms. Wentz about the context of
Neveah’s statements. Ms. Wentz testified that Neveah made the statement spontaneously,
and the trial court found Ms. Wentz’s testimony was credible. Further, Neveah’s statement
was corroborated by Father’s admission to DCS that he was incarcerated in relation to a
charge of domestic assault—a fact that Father does not challenge on appeal. Thus, we find
Ms. Wentz’s failure to probe Neveah further on the source of her knowledge does not
undermine the trial court’s finding on this issue.

       Based on the foregoing, we agree that the facts, either as found by the trial court or
as supported by a preponderance of the evidence, amount to clear and convincing evidence
that placing the Children in Father’s legal and physical custody would pose a risk of
substantial harm to their physical or psychological welfare.




        6
          The court also found a risk of substantial harm based on the impact of removing the Children
from their long-term foster parents. But, as Father correctly points out, “[r]emoval of a child from foster
parents that the child has been living with for a long time and may have bonded with does not constitute
substantial harm.” See In re Alysia S., 460 S.W.3d 536, 576–77 (Tenn. Ct. App. 2014).


                                                  - 12 -
                         B. Abandonment by Wanton Disregard

       Under Tenn. Code Ann. § 36-1-113(g)(1), a parent’s rights may be terminated if a
parent “abandoned” the child. In cases where the parent was incarcerated when termination
proceedings were instituted, or for all or part of the immediately preceding four months,
“abandonment” includes engaging “in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child.” See id. § 102(1)(A)(iv)(c) (2016 Pub. Acts, c. 919,
§§ 1, 2, eff. July 1, 2016, to June 30, 2018). Thus, it is not the incarceration itself that
constitutes wanton disregard but the conduct before incarceration. See In re Audrey S., 182
S.W.3d 838, 866 (Tenn. Ct. App. 2005) (stating that incarceration alone does not constitute
wanton disregard). A parent’s incarceration is simply “a triggering mechanism that allows
the court to take a closer look at the child’s situation to determine whether the parental
behavior that resulted in incarceration is part of a broader pattern of conduct that renders
the parent unfit or poses a risk of substantial harm to the welfare of the child.” Id.

       Conduct exhibiting a wanton disregard for a child’s welfare has been described as
“the intentional performance of illegal or unreasonable acts and indifference to the
consequences of the actions for the child,” In re Anthony R., No. M2014-01753-COA-R3-
PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015), and is found when “a parent’s
poor judgment and bad acts . . . affect the children,” In re William B., No. M2014-01762-
COA-R3-PT, 2015 WL 3647928, at *3 (Tenn. Ct. App. June 11, 2015) (citation omitted).

       In this case, the trial court found that Father exhibited a wanton disregard for the
Children’s welfare before incarceration by engaging in physical violence, domestic abuse,
toward Mother and Neveah, as well as other illegal or unreasonable acts. The trial court
found that Father admitted he was incarcerated in Minnesota on charges related to domestic
assault, and Father does not contest this finding on appeal. Father, however, again relies on
Ms. Wentz’s alleged failure to confirm the trustworthiness of Nevaeh’s statement by not
asking whether Nevaeh “specifically remembered [abuse] at the hands of [Father] or
whether it was told to her by another person.” As stated, we find no merit in this argument.

       Based on the foregoing, we have determined that the preponderance of the evidence
is not against the trial court’s findings, which, taken together, establish clear and
convincing evidence that Father exhibited a wanton disregard for the Children’s welfare
before his incarceration.

                           II. THE CHILDREN’S BEST INTERESTS

        Having found the existence of at least one ground for terminating Father’s parental
rights, we must consider whether DCS presented “clear and convincing evidence that
terminating the parent’s rights [was] in the best interests of the [Children].” In re Bernard
T., 319 S.W.3d at 606; Tenn. Code Ann. § 36-1-113(c). While the combined weight of the
evidence must meet the clear and convincing standard, facts considered in the best-interest
analysis need be proven only “by a preponderance of the evidence, not by clear and

                                           - 13 -
convincing evidence.” In re Kaliyah S., 455 S.W.3d at 555. “The child’s best interests must
be viewed from the child’s, rather than the parent’s, perspective.” In re Audrey S., 182
S.W.3d at 878. “When the best interests of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interests of the
child . . . .” Tenn. Code Ann. § 36-1-101(d).

       The best-interest analysis “is guided by a consideration of the factors listed in Tenn.
Code Ann. § 36-1-113(i),” In re Bernard T., 319 S.W.3d at 606, but not a rote examination
of each factor followed by “a determination of whether the sum of the factors tips in favor
of or against the parent.” White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
Instead, “[t]he relevancy and weight to be given each factor depends on the unique facts of
each case.” Id. “Thus, depending upon the circumstances of a particular child and a
particular parent, the consideration of one factor may very well dictate the outcome of the
analysis.” Id.

       Tennessee Code Annotated § 36-1-113(i) includes nine factors for courts to consider
“[i]n determining whether termination of parental or guardianship rights is in the best
interest of the child,” three of which particularly apply to this case:

       (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; [and]

       (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 . . . .

Id. Additionally, “the extent of DCS’s efforts to reunify the family is weighed in the court’s
best-interest analysis.” In re Kaliyah S., 455 S.W.3d at 555.

       While the bond between a child and the child’s foster parents is inappropriate to
consider when determining whether a ground for termination exists, see In re Alysia S.,
460 S.W.3d at 576–77, the bond may be considered in the best-interest analysis, see, e.g.,
In re Heaven L.F., 311 S.W.3d 435, 441 (Tenn. Ct. App. 2010) (“The record showed that
the children were in a stable, loving environment in their current foster home, that the foster
family wished to adopt them, and that the children were doing well there.” (citing Tenn.
Code Ann. § 36-1-113(i)(5)).

      Father challenges the trial court’s finding that termination of his parental rights is in
the Children’s best interests on several fronts. He contends the evidence preponderates

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against the court’s finding that DCS made reasonable efforts to reunite Father with the
Children because the 2017 permanency plan requirements were unreasonable. We find
Father’s argument is inapposite. Whether the permanency plan requirements were
“reasonable” is not the same as whether DCS made “reasonable efforts.”7 The trial court
based its decision on these findings:

        In this matter, the Case Manager for the Department provided [Father] with
        her contact information and the state “on call” contact information; provided
        him information pertaining to local transportation and housing; provided him
        with resources in the state of Indiana to contact about affordable housing;
        provided a letter from the child’s therapist stating contact between the parent
        and child was not within the child’s best interest; attempted to gather
        [Father]’s criminal charges and convictions and medical records; obtained
        releases of information from [Father] to receive information from his
        probation officer; and attempted to maintain contact with [Father] by sending
        him letters, text messages, and phone calls when he was out of jail[.]

      The preponderance of the evidence is not against the trial court’s findings.
Accordingly, we affirm the trial court’s determination that DCS made reasonable efforts.

        Father also contends the evidence preponderates against the trial court’s findings
because Father “completed most, if not everything, asked of him by DCS in order to create
a safe and stable home for his children.” The trial court based its decision on, inter alia,
the following findings:

        4. A meaningful relationship between Nevaeh and Nakayia . . . has not
           otherwise been established between the children and [Father]. The
           children do not indicate they miss him, nor do they ask about him. Quite
           simply, [they] do not have a bond with their father.

        5. A change of caretaker and physical environment is likely to have a
           negative effect on the children’s emotional, psychological and/or medical
           condition. Navaeh has special needs, physical therapy and speech therapy
           to address educational delays. She is also receiving mental health
           treatment to address her behaviors and stressors. Nakayia has receive[d]
           mental health therapy to address her anxiety. The environment they are
           currently in is conducive to their continued progress and development.
           To change their caretaker to someone who has not seen them since 2015


        7
          In the first appeal, we found two requirements in the 2017 permanency plan were “unreasonable”
because the plan wasn’t ratified until two months after the petition was filed. That decision, however, was
limited to the specific elements required to prove substantial noncompliance with a permanency plan. See
In re Nakayia S., 2018 WL 4462651, at *3.


                                                  - 15 -
          [is] likely [to] have a devastating impact on their emotional and
          psychological wellbeing.

                                       .      .      .

       7. The children are placed in a foster home that wishes to adopt the children
          and have established a strong bond with the foster parents. The foster
          parents are called “mom and dad” by the children, and engage in daily
          routines that provide normalcy and stability. The foster parents also
          ensure that the physical, emotional and mental health needs of the
          children are met.

       8. The children’s mental health counselor has opined that it is in the
          children’s best interest to establish permanency for the children as soon
          as possible through adoption.

       9. The children need to be released from the stigma of being foster children.
          They have been in foster care long enough, and this Court finds they are
          desperately in need of their forever home.

See Tenn. Code Ann. §§ 36-1-113(i)(3) to (5).

       The Children have not seen Father since 2015 and have no meaningful relationship
with him. We recognize that the permanency plan limited Father’s ability to communicate
with the Children; however, “[f]rom the child’s point of view, the reasons for the lack of
interaction matter little.” White v. Moody, 171 S.W.3d at 194. It is also undisputed that the
Children have lived with the same foster family since 2016 and have developed a strong
bond. Accordingly, the preponderance of the evidence is not against the trial court’s
determination that a change of caretaker and physical environment is likely to have a
negative effect on the Children’s welfare.

       Accordingly, we find the facts, either as found by the trial court or as supported by
a preponderance of the evidence, amount to clear and convincing evidence that termination
of Father’s parental rights is in the Children’s best interests.

                                     IN CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed, and this matter
is remanded with costs of appeal assessed against Eric S.


                                                    ________________________________
                                                    FRANK G. CLEMENT JR., P.J., M.S.



                                           - 16 -
