                                                                                                            10/29/2019
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                        July 17, 2019 Session

                                         IN RE ALEXIS S.1

                    Appeal from the Circuit Court for Hamblen County
                       No. 17-AD-005       Alex E. Pearson, Judge
                        ___________________________________

                                 No. E2018-01989-COA-R3-PT
                            ___________________________________

This is an appeal from the trial court’s termination of a mother’s parental rights and
denial of the maternal grandmother’s petition for grandparent visitation. The court
terminated the mother’s rights on the grounds that she abandoned the child by willfully
failing to visit and support the child, and failed to manifest an ability or willingness to
assume personal custody of the child. The court also found that termination of the
mother’s rights was in the child’s best interest. The court awarded guardianship of the
child to her paternal grandparents and denied the maternal grandmother’s intervening
petition for visitation, finding that the risk of harm in permitting visitation was greater
than the risk of harm in denying it. The mother appeals the termination of her parental
rights, and the grandmother appeals the denial of her petition for visitation. Because the
trial court failed to make sufficient findings as mandated by Tennessee Code Annotated
§ 36-1-113(k), we reverse the trial court’s determination that the ground of abandonment
by willful failure to support the child was established and remand the issue for the trial
court to make the requisite findings and to enter judgment accordingly. We reverse the
court’s determination that the other two grounds for termination were proven because the
record fails to establish either ground by clear and convincing evidence. Because no
ground for termination has been proven, we also reverse the court’s determination
regarding the child’s best interests. Because the court terminated the father’s parental
rights, we affirm the court’s appointment of the paternal grandmother and her husband as
the child’s guardians, subject to the mother’s rights, which have not been terminated. We
also affirm the denial of the maternal grandmother’s petition for visitation. Therefore, the
judgment of the trial court is affirmed in part, reversed in part, the judgment terminating



        1
           This Court has a policy of protecting the identity of children in parental rights termination cases
by initializing the last names of the parties.
Mother’s parental rights is vacated, and this matter is remanded to the trial court for
further proceedings consistent with this opinion.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Aaron Chapman, Morristown, Tennessee, for the appellant, Amanda P.

Crystal Goan Jessee, Greeneville, Tennessee, for the appellees, Bill K. and Donna K.

C. Scott Justice, Jefferson, Tennessee, for the appellee, Vanessa T.

Michelle G. Green, Rogersville, Tennessee, Guardian ad Litem, for the minor child,
Alexis S.

                                        OPINION

       In December 2007, Alexis S. (“the Child”) was born to Amanda P. (“Mother”) and
Doug S. (“Father”) in Jefferson County, Tennessee. In December 2009, Mother and
Father voluntarily gave custody of the Child to her maternal grandmother, Vanessa T.
Mother continued to live in East Tennessee until she met her husband, Caleb P., in 2014.
Mother spent the next two years traveling with Caleb while he worked as a truck driver.

        In September 2014, Mother agreed to a new custody order that split custody of the
Child between Ms. T. and the Child’s paternal grandmother, Donna K. Under the new
order, Ms. T. had custody of the Child during the summer and on school holidays, and
Ms. K. had custody of the Child during the school year. Ms. T. and Ms. K. successfully
maintained this arrangement until August 2016, when Ms. K. filed a petition in the
Hamblen County Juvenile Court to terminate or severely restrict Ms. T.’s custody. The
petition alleged, inter alia, that Ms. T. smoked marijuana in front of the Child. Ms. T.
later filed a competing petition to terminate or restrict Ms. K.’s custody, alleging that Ms.
K. hit the Child.

        Meanwhile, Mother became pregnant and moved in with Caleb P.’s family in
Florida. Mother lived in Florida until she and Caleb P. moved back to Tennessee with
their new baby in April or May 2017. The couple lived with Ms. T. until October 2017,
when they moved into a trailer home nearby. Although Mother had no court-ordered
visitation of her own, she enjoyed informal visitation with the Child when she was with
Ms. T.
                                            -2-
        In November 2017, Mother filed a motion in the juvenile court matter to regain
custody of the Child. Mother argued that returning the Child to her would put an end to
the grandmother’s protracted litigation and provide the Child with stability. Mother’s
motion, however, was never adjudicated because Mr. and Ms. K. (“Petitioners”)
instituted the present action to terminate Mother and Father’s parental rights in the
Hamblen County Circuit Court on December 13, 2017.2

       On the same day, Ms. K. obtained an order of protection against Ms. T., which
effectively suspended Ms. T.’s custodial time with the Child. Because Mother’s visitation
with the Child depended on the Child visiting Ms. T., Mother started going to the Child’s
school twice a week for lunch.

       In March 2018, Ms. T.’s visitation resumed when the order of protection was
dismissed. On May 16, 2018, however, Ms. T. violated the court-ordered residential
schedule by picking up the Child from school. The next day, a Hamblen County Deputy
Sheriff went with Ms. K. to Mother’s house, and Mother denied knowing the location of
Ms. T. and the Child. The officer and Ms. K. then went to Ms. T.’s home, but Ms. T. and
the Child hid inside with the lights off. Ms. T. returned the Child to Ms. K. the next day.
Based on this incident, the trial court issued a no-contact order that prohibited Ms. T. and
Mother from contacting the Child.

       In June 2018, Mother filed a motion for visitation that asserted she was wrongfully
included in the no-contact order. The trial court, however, denied the motion due to
Mother’s lack of prior, court-ordered visitation and the pending termination hearing.
Around the same time, Ms. T. joined the termination proceedings by filing her own
petition to terminate Mother and Father’s parental rights and for adoption. Ms. T. also
requested grandparent visitation if Petitioners succeeded on their petition.

       On September 20, 2018, a final hearing was held on both termination petitions.
The court found that clear and convincing evidence supported the termination of Mother
and Father’s parental rights.3 As its ruling pertained to Mother, the trial court found that
Petitioners proved two grounds of abandonment based on the fact that Mother made only
token visits with the Child in the four months before December 2017, and never provided


        2
          The petition filed by Mr. and Ms. K. was joined in by Ms. K.’s son and the Child’s father, Doug
S., who stated that he would voluntarily surrender his rights if Mr. and Ms. K were successful in
terminating Mother’s rights.
        3
           Father does not appeal the termination of his parental rights; therefore, we have not discussed
the facts or grounds upon which his parental rights were terminated.



                                                  -3-
monetary support, despite having extra money available every month and being capable
of working. The court also found that an additional ground had been proven based on
Mother’s failure to manifest an ability and willingness to assume custody of the Child,
her role as a “friend” rather than a parent, and the improvement in the Child’s behavior
since Mother’s visits stopped. It concluded that placing the Child in Mother’s custody
would pose a risk of substantial harm because Mother, along with Ms. T., had exposed
the Child to “maladaptive behaviors.” Finally, the trial court found that termination of
Mother’s parental rights was in the Child’s best interest because of the time that had
passed since Mother had engaged in anything more than token visits. For these reasons,
Mother’s parental rights were terminated.

       As for Ms. T.’s request for grandparent visitation, the trial court acknowledged
that she had a significant relationship with the Child but found that the Child would
suffer less psychological harm from losing the relationship than continuing it. The court
relied on the testimony of the Child’s therapist, Clifford Miller, who opposed visitation
“given all the psychological harm that has occurred to [the Child]” when she was with
Ms. T.

       On January 22, 2019, the trial court entered a final judgment, terminating
Mother’s parental rights and placing “full guardianship” of the Child with Mr. and Ms. K.
This appeal followed.

      Mother raises five issues on appeal:

      (1)    Whether the trial court erred in relying on statements from Mother’s
             discovery deposition;

      (2)    Whether the trial court erred in finding that Mother willfully
             abandoned the Child by engaging in only token visitation;

      (3)    Whether the trial court erred in finding that Mother willfully
             abandoned the Child by willfully failing to support the Child or
             make reasonable payments to support the Child;

      (4)    Whether the trial court erred in finding that Mother 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 placing the child in Mother’s legal and physical custody
             would pose a risk of substantial harm to the physical or
             psychological welfare of the Child; and




                                             -4-
       (5)    Whether the trial court erred in finding by clear and convincing
              evidence that the best interests of the Child required termination of
              parental rights with respect to Mother.

      In addition, Ms. T. raises two issues on appeal: (1) whether the trial court erred in
denying Ms. T. grandparent visitation; and (2) whether the trial court erred by failing to
make findings of fact and conclusions of law regarding guardianship.

                                 STANDARD OF REVIEW

        Termination proceedings are tried to the court without a jury. In re Bernard T.,
319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113). “To terminate
parental rights, a trial court must determine by clear and convincing evidence not only the
existence of at least one of the statutory grounds for termination but also that termination
is in the child’s best interest.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)).
Furthermore, in termination proceedings, the trial court must make “specific findings of
fact and conclusions of law.” Tenn. Code Ann. § 36-1-113(k).

        We review the trial court’s findings of fact in termination proceedings using the
standard of review in Tenn. R. App. P. 13(d). In re Bernard T., 319 S.W.3d at 596 (citing
In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)). Under Rule 13(d), we review the
trial court’s findings of fact de novo on the record, and we will accredit the findings
unless the evidence preponderates otherwise. Id. (citing In re Adoption of A.M.H.,
215 S.W.3d 793, 809 (Tenn. 2007)). 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); In re
Bernard T., 319 S.W.3d at 596–97. 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. In re Carrington H., 483 S.W.3d at 524.

       If the trial court fails to comply with the statutory mandate to make “specific
findings of fact and conclusions of law,” appellate courts “must remand the case with
directions to prepare the required findings of fact and conclusions of law” and to enter
judgment accordingly. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); see
In re Jaylah W., 486 S.W.3d 537, 555 (Tenn. Ct. App. 2015).




                                           -5-
                                               ANALYSIS

                                I.   GROUNDS FOR TERMINATION

      The trial court found that Petitioners proved three grounds for termination of
Mother’s parental rights. We shall review each ground separately.

                          A. Abandonment: Willful Failure to Support

       Mother contends there is insufficient evidence in the record to support the trial
court’s finding that she abandoned the Child by willfully failing to contribute toward the
support of the Child. More specifically, she contends the only specific finding of fact
relied upon by the trial court concerning this ground is not in the record, and it only
appears in her discovery deposition, which was not introduced into evidence. Petitioners
counter that the error, if any, was harmless because other evidence in the record supports
the court’s findings on this ground.

       Abandonment is one of the grounds for termination of parental rights. Tenn. Code
Ann. § 36-1-113(g)(1). When this petition was filed on December 13, 2017, the statute in
effect at that time defined abandonment as the willful failure to visit, to support, or to
make reasonable payments toward the support of the child during the four-month period
preceding the filing of the petition to terminate parental rights. Tenn. Code Ann. § 36-1-
102(1)(A)(i) (2010).4 To prove the ground of abandonment as statutorily defined in 2017,


        4
         The petition at issue here was filed in 2017, at which time Tenn. Code Ann. § 36-1-102(1)(A)(i)
(2010) was in effect, and our decision is based on the statute in effect when the petition was filed. In
2018, the Tennessee General Assembly amended this subsection to remove the element of willfulness
from the definition of abandonment by failure to support or visit. Rather than include willfulness as an
element of the ground, Tenn. Code Ann. § 36-1-102(1) now provides that it is an affirmative defense:

        For purposes of this subdivision (1), it shall be a defense to abandonment for failure to
        visit or failure to support that a parent or guardian’s failure to visit or support was not
        willful. The parent or guardian shall bear the burden of proof that the failure to visit or
        support was not willful. Such defense must be established by a preponderance of
        evidence. The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of
        the Tennessee Rules of Civil Procedure[.]

Id. § 102(1)(I). We have previously held that this change may not be applied retroactively. See In re
Gabriel B., No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 n.7 (Tenn. Ct. App. July 23, 2018)
(“Because this change is substantive rather than procedural or remedial, however, the amended statute
will not be applied retroactively to this case.” (citing In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004))).
Therefore, the 2018 amendment does not apply in this case.



                                                   -6-
a petitioner was required to “establish by clear and convincing evidence that a parent who
failed to visit or support had the capacity to do so, made no attempt to do so, and had no
justifiable excuse for not doing so.” In re Adoption of Angela E., 402 S.W.3d 636, 640
(Tenn. 2013). Whether a parent failed to support a child is a question of fact and whether
a parent’s failure to support constitutes willful abandonment is a question of law. Id.

       “Willful failure to support or to make reasonable payments toward support means
‘the willful failure, for a period of four (4) consecutive months, to provide monetary
support or the willful failure to provide more than token payments toward the support of
the child.’” Id. (quoting Tenn. Code Ann. § 36-1-102(1)(D)). Significantly, however, a
parent has not abandoned her child when her failure to support is due to circumstances
outside her control. See In re Adoption of A.M.H., 215 S.W.3d at 810 (holding that the
evidence did not support a finding that the parents “intentionally abandoned” their child).

       The petition for termination of Mother’s parental rights was filed on December 13,
2017. Although the petition was later amended, the relevant period for purposes of
abandonment is the four-month period immediately preceding the filing of the original
petition. See In re Adoption of Angela E., 402 S.W.3d at 640 (citing Tenn. Code Ann.
§ 36-1-102(1)(A)(i); In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003)). Therefore, the
relevant four-month period is August 13, 2017, to December 12, 2017.

       In its October 19, 2018 Memorandum Opinion, which the court incorporated by
reference in its Final Judgment, the court set forth its findings of fact concerning each
ground for termination. The entirety of the trial court’s findings of fact pertinent to the
ground of abandonment for willfully failing to support the Child reads as follows:

       2.     The Court finds by clear and convincing evidence that [Mother] has
              willfully failed to support the minor child and has willfully failed to
              make reasonable payments toward the support of the minor child
              since birth including the last four months before the filing of this
              petition in December of 2017. The clear testimony from [Mother]
              establishes that she was and is fully capable of working to help
              support Alexis but simply has chosen from the time the child was
              born to not contribute any support for Alexis. [Mother] testified both
              during trial and at deposition that she was not disabled and was fully
              capable of working. [Mother] acknowledged that she operates a
              small business called Pink Zebra but is not really making much
              money through it. The Court considered the testimony of [Mother]
              that she bought “some clothes and stuff” for Alexis (Lexi) in
              conjunction with the rest of her testimony as well as the other proof
              at trial and finds such testimony unpersuasive. [Mother]
              acknowledged in her deposition that she had between $80.00 and

                                           -7-
             $100.00 per month in extra money available; however, she chose
             not to obtain employment outside of the home or provide any
             support for Alexis.

                                  .      .         .

      5.     The Court further finds for the same reasons provided in paragraph 2
             above that the intervening petitioners have established that [Mother]
             has willfully failed to make reasonable payments toward the support
             of the minor child. As discussed above, [Mother] has never paid
             child support for the minor child and there is no reason as to why she
             cannot work to provide support.

(Emphasis added).

       Other than the finding that “[Mother] acknowledged in her deposition that she had
between $80.00 and $100.00 per month in extra money available,” the trial court made no
specific finding of fact that supports the conclusion that Mother “willfully” failed to
support the Child. This is significant because Mother’s acknowledgment only appears in
her discovery deposition, and her deposition was not introduced into evidence.

       “Rule 32 of the Tennessee Rules of Civil Procedure governs the use of depositions
in court proceedings.” Estate of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 733 (Tenn.
Ct. App. 2001). Rule 32 allows the use of a deposition against any party who was present
or represented at the taking of the deposition in specific circumstances. Tenn. R. Civ. P.
32.01. Further, at trial, “any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness,” Tenn. R. Civ. P.
32.01(1), and “the deposition of a party, . . . may be used by an adverse party for any
purpose.” Tenn. R. Civ. P. 32.01(2); Dargi v. Terminix Int’l Co., L.P., 23 S.W.3d 342,
345 (Tenn. Ct. App. 2000). Thus, Petitioners could have used the deposition of Mother to
impeach her testimony or “for any purpose,” including as substantive evidence
independent of her testimony, but they did not.

       The trial court’s finding that Mother had “between $80.00 and $100.00 per month
in extra money available” was clearly significant to the trial court’s conclusion on this
ground because a failure to support is willful only when the parent “has the capacity to
provide the support.” State, Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513,
524 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-
CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). Proof of capacity
requires evidence of income and expenses. See In re Addalyne S., 556 S.W.3d 774, 789
(Tenn. Ct. App. 2018) (“Tennessee courts have noted that proof of employment and
earned wages is not sufficient to prove that parent has the capacity to provide support
                                             -8-
absent evidence of income and expenses.”), appeal denied (July 30, 2018). An admission
by Mother that she had extra money at the end of each month would constitute an
admission that her income was more than her expenses if the admission pertained to the
period at issue.

        However, although Mother acknowledged in her discovery deposition that she had
“between $80.00 and $100.00 per month in extra money available,” Mother did not
testify at trial that she had extra money available. Moreover, Petitioners did not introduce
the deposition into evidence and did not use the deposition to cross-examine Mother on
that important fact.5 Therefore, the acknowledgment from Mother’s deposition testimony
of having between $80.00 and $100.00 per month in extra money was not introduced as
evidence at trial. Moreover, the only evidence in the record of Mother’s income is her
trial testimony that she “earned” a total of $80 to $100 by selling crafts from a direct-
sales business called Pink Zebra; however, her testimony fails to identify when she
earned this money. Just as significant, there is no evidence of Mother’s expenses during
this unknown period, and the only relevant period is the four months preceding the filing
of the petition.

        It is well settled that a trial court’s decision must be grounded on the evidence
introduced. See Allen v. Albea, 476 S.W.3d 366, 374 (Tenn. Ct. App. 2015) (citing Patton
v. Rose, 892 S.W.2d 410, 413 (Tenn. Ct. App. 1994)). Moreover, a trial court’s decision
that is “based on something other than the evidence introduced at trial” should not be
allowed to stand. See id. (quoting Patton, 892 S.W.2d at 413). The trial court’s finding
that Mother had extra money and the ability to pay support, based on Mother having
“between $80.00 and $100.00 per month in extra money available,” was based on
something other than the evidence introduced. Consequently, the decision, to the extent it
was based on facts not in evidence, cannot stand.




       5
         At the beginning of trial, the trial judge and counsel discussed admitting the deposition of
Mother into evidence:

       [Counsel for Petitioners]: You also have the mother’s deposition, the original in the file. I will
       admit that in as an exhibit. You took it at the last hearing.

       [Counsel for Mother]: Oh, on the basis of the deposition, I object on the basis it’s a discovery
       deposition, and there was numerous objections made therein. I think it can be used for
       impeachment only at this point.

       [Counsel for Petitioners]: That’s fine. I’ll withdraw it at this time. . . .



                                                     -9-
        Moreover, because there is no competent evidence in the record to support a
finding that Mother had the ability to provide support during the relevant four-month
period, the evidence preponderates against the trial court’s factual finding that she had the
ability to provide support during the four months immediately preceding the filing of the
petition for termination. Admittedly, the trial court found that Mother was “fully capable
of working to help support” the Child but chose not to obtain a job outside of the home.
While the evidence does not preponderate against this specific finding, the finding does
not establish by clear and convincing evidence that Mother had the capacity to support
the Child during the relevant four-month period. See In re Addalyne S., 556 S.W.3d
at 788–89 (“In determining a parent’s capacity to pay support, it is not enough for a
petitioner to ‘simply prove that [the parent] was not disabled during the relevant
timeframe’ and therefore assume that he or she was capable of working and providing
support.” (quoting In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL 3209181,
at *4 (Tenn. Ct. App. July 28, 2017))).

       In concluding that Mother had the ability to pay support, the trial court failed to
consider that Mother had a toddler at home and she was functioning as a single parent
most of the time because her husband was an over-the-road truck driver. Moreover,
obtaining work outside of the home would necessitate arranging and paying for childcare,
and there is no evidence in the record upon which to find that Mother would have had
money left over after paying this additional expense. As we explained in In re Alysia S.,
“Simply finding that [a parent] worked and was compensated at some point during the
four-month period does not, by itself, mean that she had the ability to pay child support.”
460 S.W.3d 536, 570 (Tenn. Ct. App. 2014).

       For the reasons stated above, we conclude that Petitioners failed to establish by
clear and convincing evidence that Mother had the capacity to support the Child during
the relevant four-month period, made no attempt to do so, and had no justifiable excuse
for not doing so. See In re Adoption of Angela E., 402 S.W.3d at 640; see also In re
Audrey S., 182 S.W.3d at 864. Therefore, we reverse the trial court’s determination that
Petitioners proved the ground of abandonment by willfully failing to support the Child.6

       Having dispensed with the ground of abandonment by failure to support, we will
next consider the trial court’s conclusions that Mother abandoned the Child by failing to


        6
          Our decision is based on Tenn. Code Ann. § 36-1-102(1)(D) (2010), the version of the statute in
effect when the initial petition in this case was filed. As noted earlier, willfulness is no longer an element
of the ground; instead, willfulness is now an affirmative defense that must be pled. See Tenn. Code Ann.
§ 36-1-102(1)(D) (2018).



                                                   - 10 -
engage in more than token visitation and failed to manifest an ability and willingness to
assume custody or financial responsibility for the Child.

                        B. Abandonment: Willful Failure to Visit

       Mother contends there was “ample” evidence she visited with the Child during the
four months before the petition was filed. Our review of this ground, however, is
precluded by the lack of specific findings of fact that pertain to the relevant period.

         Tennessee Code Annotated § 36-1-113(k) requires trial courts to make “specific
findings of fact and conclusions of law” when ruling on a petition to terminate parental
rights. See In re Navada N., 498 S.W.3d 579, 594 (Tenn. Ct. App. 2016). Mere legal
conclusions are insufficient. Id. Failing to comply with this directive “fatally undermines
the validity of a termination order.” Id. (quoting In re S.M., 149 S.W.3d 632, 639 (Tenn.
Ct. App. 2004)). Without sufficient findings of fact, we must remand the matter to the
trial court with instructions to make specific findings of fact and conclusions of law. See
id. at 594–95.

        The underlying rationale for requiring specific findings is that the findings
facilitate appellate review by “affording a reviewing court a clear understanding of the
basis of a trial court’s decision.” Gooding v. Gooding, 477 S.W.3d 774, 782 (Tenn. Ct.
App. 2015) (citation omitted). “[F]indings of fact that are both sufficient and supported
by the record ‘enhance the authority of the trial court’s decision by providing an
explanation of the court’s reasoning.’” Id. (citation omitted). Otherwise, “this court is left
to wonder on what basis the court reached its ultimate decision.” Id. (citing In re Estate of
Oakley, No. M2014-00341-COA-R3-CV, 2015 WL 572747, at *10 (Tenn. Ct. App.
Feb. 10, 2015) (quoting Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013))). As we have
explained,

       While there is no bright-line test by which to assess the sufficiency of the
       trial court’s factual findings, the general rule is that “the findings of fact
       must include as much of the subsidiary facts as is necessary to disclose to
       the reviewing court the steps by which the trial court reached its ultimate
       conclusion on each factual issue.” In re Estate of Oakley, 2015 WL 572747,
       at *11 (quoting Lovlace, 418 S.W.3d at 35) . . . . [W]hen the trial court does
       not make specific findings of fact, no presumption of correctness arises
       because “there was nothing found as a fact which we may presume
       correct.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999).

Id. at 782.



                                            - 11 -
        “A parent may not be found to have abandoned the child unless the parent has
‘willfully’ failed to visit or support the child for the four consecutive months prior to the
filing of a termination petition.”7 In re Keri C., 384 S.W.3d 731, 745 (Tenn. Ct. App.
2010) (citing In re Adoption of Muir, M2004-02652-COA-R3-CV, 2005 WL 3076896, at
*4 (Tenn. Ct. App. Nov. 16, 2005)). This concept of “willfulness” is at the core of this
statutory definition. Id. To prove a parent’s failure to visit or support was willful, the
petitioner must prove by clear and convincing evidence that the parent “had the capacity
to do so, made no attempt to do so, and had no justifiable excuse for not doing so” during
the relevant four-month period. In re Adoption of Angela E., 402 S.W.3d at 640.

       Thus, the statutory definition of abandonment in Tennessee Code Annotated § 36-
1-102(1)(A)(1) requires the trial court “to focus on the parent’s conduct during this
four-month period.” In re Keri C., 384 S.W.3d at 749 (emphasis added). Nevertheless,
“the parent’s conduct and the relationship between the child and the parent up to this
point [are] relevant background and context for the necessarily fact-intensive evaluation
of whether the visitation during the four-month period was merely ‘token.’”8 Id.
(emphasis in original). Whether a parent failed to visit a child is a question of fact and
whether a parent’s failure to support constitutes willful abandonment is a question of law.
In re Adoption of Angela E., 402 S.W.3d at 640.

        As noted earlier, the trial court’s October 2018 Memorandum Opinion set forth its
ruling concerning each ground for termination. The entirety of the trial court’s findings of
fact and conclusions of law pertinent to the ground of abandonment for willfully failing
to visit the Child read as follows:

        The Court finds that the Petitioner has established by a preponderance of
        the evidence that [Mother] . . . has willfully failed to maintain visitation
        with the minor child for a period of at least four consecutive months
        immediately preceding the filing of this petition on December 13, 2017.
        The Court finds that [Mother] did engage in token visitation with the minor


        7
          Our decision is based on Tenn. Code Ann. § 36-1-102(1)(D) (2010), the version of the statute in
effect when the initial petition in this case was filed. As noted earlier, willfulness is no longer an element
of the ground. Instead, willfulness is now an affirmative defense that must be pled. See Tenn. Code Ann.
§ 36-1-102(1)(D) (2018).
        8
          “For example, the significance of facts such as the setting and the length of time of the visits
during the relevant time period is better assessed with an understanding of the parent’s prior efforts to
forge a relationship with the child, and whether a bond between parent and child had previously been
established.” In re Keri C., 384 S.W.3d at 749.



                                                   - 12 -
        child, but the Court cannot find from the proof introduced at trial that said
        visitation amounted to anything more than mere token visitation. The Court
        finds that [Mother] was aware of the ongoing juvenile court litigation but
        failed to exercise any efforts to obtain visitation until November 3, 2017.
        [Mother], by agreed order on September 2, 2014, gave primary legal
        custody to Petitioner [Ms. K.], and this followed a prior agreed order in
        which [Mother] gave primary custody of Alexis to [Mrs. T.] on December
        9, 2009. The Court finds from [Mother’s] own deposition testimony that
        since 2009 she has largely lived a very unstable life. In fact, [Mother]
        acknowledges that she only finally obtained stable housing after becoming
        involved with her current husband and this relationship did not result in
        stable housing until November of 2017 at the earliest. After becoming
        involved with her current husband, [Mother] for a period of time still did
        not have a home and traveled the road living in her husband’s semi-truck.
        Once [Mother] became pregnant with her son, [B.], she continued to ride
        with her husband until regulations or recommendations caused her to stop
        traveling on her husband’s runs with him. She then resided with his family
        in Florida from around August of 2016 until May of 2017. [Mother]
        acknowledged in her deposition that she did not obtain stable housing until
        November of 2017. [Mother] also acknowledged in her deposition
        testimony that she did not believe that her mother, Mrs. [T.], would ever
        allow her to regain custody of Alexis again because of her lack of stability
        and inability to support the child.

       As the Memorandum Opinion reveals, the trial court made no specific findings of
fact regarding the frequency, duration, or quality of Mother’s visits during the four
months before December 13, 2017.9 Admittedly, the trial court made the specific finding
of fact that Mother “was aware of the ongoing juvenile court litigation but failed to


        9
           Petitioners erroneously argue that there are “multiple four-month periods for the Court to take
into consideration” because they amended their complaint in July 2018 to add a claim of abandonment
during the four months prior to July 2018. As our Supreme Court explained in In re Adoption of Angela
E., “[T]he relevant period for purposes of abandonment is the four-month period immediately preceding
the filing of the original petition.” 402 S.W.3d at 640 (citations omitted).

         Although the statutory definition of “abandonment” was amended in 2018 to include
consideration of parent’s visits during the four months before an amendment, we find it unnecessary to
address the application of that change because the trial court based its decision on the four months prior to
the filing of the petition in December 2017, and Petitioners did not appeal the court’s failure to address
the other four-month period.



                                                   - 13 -
exercise any efforts to obtain visitation until November 3, 2017,” which was fourteen
days before the filing of the petition. However, the trial court did not address whether
Petitioners established by clear and convincing evidence that Mother “had the capacity
to [visit], made no attempt to do so, and had no justifiable excuse for not doing so.” In
re Adoption of Angela E., 402 S.W.3d at 640 (emphasis added).

       The trial court found that “the Petitioner has established by a preponderance of the
evidence that [Mother], mother of Alexis . . . , has willfully failed to maintain visitation
with the minor child for a period of at least four consecutive months immediately
preceding the filing of this petition on December 13, 2017.”10 This is a conclusion of law
and does not constitute a specific finding of fact. The trial court also found that Mother
engaged “in token visitation with the minor child”; however, this too is a conclusion of
law, not a finding of fact.

        Furthermore, the court’s remaining findings of fact pertain to matters other than
visitation during the relevant four-month period; specifically, the trial court’s findings
pertain primarily to the “instability” of Mother’s life between 2009 and 2016. For
example, the trial court found that Mother “lived a very unstable life” after giving up
custody of the Child because she traveled with her husband for two years; lived with her
husband’s family in Florida for six months; and did not obtain independent housing until
November 2017.

       Of additional significance, the trial court did not determine whether Petitioners
had established the ground by clear and convincing evidence, which is the requisite
burden when proving grounds for termination of parental rights. See In re Adoption of
Angela E., 402 S.W.3d at 640. Instead, the trial court stated that Petitioners had
established the ground “by a preponderance of the evidence,” which is a significantly less
stringent standard. “‘Clear and convincing evidence’ is ‘evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” In re Valentine, 79 S.W.3d at 546 (quoting Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992)). Whether the reference to the preponderance of the
evidence standard was inadvertent or intentional cannot be determined with this record.
Nevertheless, Mother’s parental rights may not be terminated based on the finding that
Petitioners established this ground “by a preponderance of the evidence.” Termination of
parental rights must be based upon, inter alia, “[a] finding by the court by clear and


       10
           As we discuss later, “the preponderance of the evidence” is not the standard by which
abandonment must be proven. The applicable standard is the more strenuous “clear and convincing”
standard of proof.



                                             - 14 -
convincing evidence that the grounds for termination of parental or guardianship rights
have been established.” Tenn. Code Ann. § 36-1-113(c)(1).

        Due to the trial court’s failure to make specific findings of fact regarding Mother’s
visits during the relevant four-month period, we are left to wonder what facts formed the
basis of its conclusion that she abandoned the Child by willfully failing to visit. See
Gooding, 477 S.W.3d at 782. Further, we may not “soldier on” to make our own findings
of fact relative to this ground. See In re Navada N., 498 S.W.3d at 594; see also In re
S.M., 149 S.W.3d at 639 (stating that the absence of specific findings “fatally undermines
the validity of a termination order”).

       Therefore, we will determine whether another ground for termination has been
proven by clear and convincing evidence. If so, we will then review the trial court’s
determination that termination of Mother’s parental rights is in the Child’s best interest. If
not, we must remand this matter to the trial court with instructions to make “specific
findings of fact and conclusions of law,” as Tenn. Code Ann. § 36-1-113(k) requires. See
In re Navada N., 498 S.W.3d at 594–95; see also In re S.M., 149 S.W.3d at 639.

                C.    Ability, Willingness, and Risk of Substantial Harm

       Mother contends that the trial court erred in finding that termination of her
parental rights was appropriate under Tenn. Code Ann. § 36-1-113(g)(14). Under this
ground, a parent’s rights may be terminated if he or she

       [1] has 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 person’s legal and physical
       custody would pose a risk of substantial harm to the physical or
       psychological welfare of the child.

Tenn. Code Ann. § 36-1-113(g)(14). We find the dispositive issue is whether there was
clear and convincing evidence that placing the Child in Mother’s custody would pose a
risk of substantial harm to the Child.

       The trial court concluded that Mother “likely” posed a risk of substantial harm to
the Child’s psychological welfare. The court based its conclusion primarily on
Mr. Miller’s testimony about Ms. T.’s “maladaptive behavior” and Mother’s admission
that she lied to law enforcement:

       Mr. Miller, the child’s therapist, testified about the maladaptive behaviors
       that he was concerned that [the Child] was being exposed to during the
       visits with Mrs. T. in which the mother was an occasional participant. The
       proof at trial established clearly that [the Child] functions better when she is
                                            - 15 -
       not exposed to the psychological stressors that occur during her visits with
       Mrs. T. and [Mother]. . . . [Mother] acknowledged she lied to law
       enforcement . . . during their attempt to serve an attachment to retrieve the
       child from Mrs. T. . . . . [Mother] was aware that Alexis was just down the
       road at Mrs. T.’s house but lied about it to law enforcement. Law
       enforcement then proceeded to Mrs. T.’s house where she and [the Child]
       hid in the bathroom while law enforcement repeatedly announced their
       presence and shined flashlights through the windows trying to locate [the
       Child].

      After a thorough review of the record, we respectfully find that the evidence
preponderates against the finding that Mother was an “occasional participant” in Ms. T.’s
“maladaptive behavior” and that the Child functioned better when not exposed to Mother.

        Mr. Miller testified that the Child’s mental health improved while Ms. T.’s
visitation was suspended. Likewise, the Child’s teachers testified that the Child’s school
performance improved during the spring semester of 2018, when Ms. T. was subject to an
order of protection. At that time, however, Mother was visiting the Child twice a week at
school for lunch. Accordingly, the evidence shows it was the Child’s interactions with
Ms. T. that caused psychological stress.

        Likewise, the record does not include evidence that Mother was an “occasional
participant” in the behavior that Mr. Miller characterized as “maladaptive.” Mr. Miller
testified that the Child was suffering from anxiety and depression due to the animosity
between Ms. K. and Ms. T. He attributed the Child’s struggles primarily to Ms. T., who
he said had exposed the Child to “maladaptive, dysfunctional behaviors, morals, and
values.” In particular, the Child reported that Ms. T. told her that Ms. K. did not love her;
instructed her to “act out” and “be bad” so Ms. K. would not want her anymore and she
would get thrown out of school; made threats to the safety of Mr. and Ms. K.; and told
the Child to report that Ms. K. hit her. Mr. Miller also testified that the May 2018
incident was traumatic for the Child because she thought Ms. T. did something wrong.
After the incident, the Child was scared that the police would take her away from Ms. K.
too.

        As for Mother, Mr. Miller conceded that no welfare concerns were reported to him
regarding Mother’s involvement with the Child. His sole concern about Mother came
from Mother’s lie to law enforcement during the May 2018 incident. Mr. Miller
speculated that Mother might repeat Ms. T.’s dysfunctional behavior, reasoning that, “[i]f
it is that easy for someone to lie to law enforcement, especially when they are not in any
trouble themselves, then one might assume it would be a behavior often present and a
behavior observed by a child or children parented by the individual.”


                                           - 16 -
      While we share the trial court’s disapproval of Mother’s action during the May
2018 incident, we cannot conclude this action, standing alone, constitutes clear and
convincing evidence that placing the Child in Mother’s custody poses a risk of substantial
harm to the Child’s psychological welfare. Previously, we have described the
circumstances that pose “a risk of substantial harm” in these terms:

       [T]he use of the modifier “substantial” indicates two things. First, it
       connotes a real hazard or danger that is not minor, trivial, or insignificant.
       Second, it indicates that the harm must be more than a theoretical
       possibility. While 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.

Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted); see In re
Serenity W., No. E2018-00460-COA-R3-PT, 2019 WL 511387, at *7 (Tenn. Ct. App.
Feb. 8, 2019) (“While a relapse was a theoretical possibility, DCS failed to prove that it
was a reasonable probability.”). Based on the evidence in the record, we find Petitioners
failed to prove more than a theoretical risk of harm. Therefore, we must reverse the trial
court’s termination of Mother’s rights on this ground as well.

                          II. THE BEST INTERESTS OF THE CHILD

       Tennessee Code Annotated § 36-1-113(c) provides that “termination of parental or
guardianship rights must be based upon: (1) A finding by the court by clear and
convincing evidence that the grounds for termination of parental . . . rights have been
established; and (2) That termination of the parent’s . . . rights is in the best interests of
the child.” See In re Valentine, 79 S.W.3d at 546; Matter of M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Thus, the statute requires the petitioner to establish by clear
and convincing proof that at least one of the enumerated statutory grounds for
termination exists and that termination is in the child’s best interests. See In re
Carrington H., 483 S.W.3d at 523 (“The best-interests analysis is separate from and
subsequent to the determination that there is clear and convincing evidence of grounds
for termination.” (quoting In re Angela E., 303 S.W.3d at 254)).

       We have reversed the trial court’s determination that Petitioners proved the
grounds of abandonment by failure to support and failure to manifest an ability and
willingness to assume custody. We have also determined that the trial court failed to
make the requisite findings of fact as mandated by Tenn. Code Ann. § 36-1-113(k).
Because no ground for terminating the parental rights of Mother has been established, we
do not reach the best-interests analysis. See In re D.L.B., 118 S.W.3d at 368; see also
Tenn. Code Ann. § 36-1-113(c) (requiring first a “finding by the court by clear and
convincing evidence that the grounds for termination of parental or guardianship rights
have been established” and then a finding that the “termination of the parent’s or
                                          - 17 -
guardian’s rights is in the best interests of the child”). Therefore, we reverse the trial
court’s determination that termination of Mother’s parental rights is in the Child’s best
interest.

       Additionally, acting under the authority in In re Audrey S., 182 S.W.3d at 861 and
In re Jaylah W., 486 S.W.3d at 555, we remand Petitioners’ claim that Mother abandoned
the Child by willfully failing to visit during the four months before the petition was filed,
with instructions for the trial court to make “specific findings of fact and conclusions of
law,” as required by Tenn. Code Ann. § 36-1-113(k). On remand, if the trial court
determines that the ground of abandonment by willfully failing to visit the Child has been
proven, then the trial court shall also determine, after making specific findings of fact and
conclusions of law, whether Petitioners have proven by clear and convincing evidence
that termination of Mother’s parental rights is in the Child’s best interest and enter
judgment accordingly.

       In order to expedite this case, the trial court’s judgment should be entered within
sixty days from the entry of this judgment. See In re D.L.B., 118 S.W.3d at 368 (citing
Tenn. Code Ann. § 36-1-124) (providing that contested terminations of parental rights
and adoptions shall be expedited).

                                    III. GUARDIANSHIP

      Ms. T. contends that the trial court’s placement of guardianship with Petitioners
should be reversed because the trial court failed to make sufficient findings of fact and
conclusions of law regarding this issue.

        “Upon termination of parental or guardian rights, the court may award
guardianship or partial guardianship to any prospective adoptive parent or parents with
the right to adopt the child . . . .” Tenn. Code Ann. § 36-1-113(m). This award is “subject
to the remaining rights, if any, of any other parent or guardian of the child.” Id. An order
of guardianship under Tenn. Code Ann. § 36-1-113 supersedes “prior orders of custody
or guardianship of that court and of other courts.” Id. § 113(n). Therefore, our reversal of
the judgment terminating Mother’s parental rights does not require us to vacate the award
of guardianship to Petitioners. Nevertheless, because Mother’s parental rights have not
been terminated, only Father’s, the appointment of Petitioners as guardians of the Child is
“subject to the remaining rights, if any, of any other parent or guardian of the child.”
Tenn. Code Ann. § 36-1-113(m).

      Tennessee Code Annotated § 36-1-113 does not outline a specific procedure for
awarding guardianship when there are two prospective, adoptive parents. But Tenn. Code
Ann. § 36-1-101(a)(3) provides that one purpose of the adoption statute is to ensure “that
the best interests of children in the adoptive process are protected.” Accordingly, our
Supreme Court has held that a comparative fitness analysis under § 36-6-106 was
                                           - 18 -
appropriate when considering competing petitions for adoption by two sets of
grandparents. See In re Sidney J., 313 S.W.3d 772, 776 (Tenn. 2010). Likewise, we find
the analysis in § 36-6-106 is appropriate for awarding guardianship under § 36-1-113(m).
Cf. Tenn. Code Ann. § 34-2-103 (providing that juvenile court decisions in actions for
guardianship are “[s]ubject to the court’s determination of what is in the best interests of
the minor”); In re R.D.M., 306 S.W.3d 731, 735 (Tenn. Ct. App. 2009) (applying best-
interest analysis in § 36-6-106 to action for guardianship).

        Tennessee Code Annotated § 36-6-106(a) provides fifteen factors for the court to
consider when determining the child’s best interest. When a trial court fails to make
sufficient findings in its application of these factors, a remand is required. See Stricklin v.
Stricklin, 490 S.W.3d 8, 18 (Tenn. Ct. App. 2015) (remanded a trial court’s ruling on a
custody agreement when “[t]he record [was] simply devoid of sufficient findings” as to
whether a custody agreement was in the child’s best interests). Here, however, the court
made sufficient findings when it denied Ms. T.’s request for grandparent visitation.11

       As is relevant, the best-interest analysis in Tenn. Code Ann. § 36-6-106(a)
requires the court to consider several factors:

        (2)     Each parent’s or caregiver’s past and potential for future
                performance of parenting responsibilities, including the willingness
                and ability of each of the parents and caregivers to facilitate and
                encourage a close and continuing parent-child relationship
                between the child and both of the child’s parents, consistent with
                the best interest of the child. In determining the willingness of each
                of the parents and caregivers to facilitate and encourage a close and
                continuing parent-child relationship between the child and both of
                the child’s parents, the court shall consider the likelihood of each
                parent and caregiver to honor and facilitate court ordered
                parenting arrangements and rights, and the court shall further
                consider any history of either parent or any caregiver denying
                parenting time to either parent in violation of a court order;

                                             .        .       .



        11
           We recognize that a decision under the grandparent visitation statute is subject to its own set of
factors. Compare Tenn. Code Ann. § 36-6-106(a) (providing factors for best-interests analysis) with
Tenn. Code Ann. § 36-6-307 (providing factors for best-interests analysis in grandparent visitation
matters). In the present case, the court’s findings are applicable under both statutes.



                                                   - 19 -
       (6)    The love, affection, and emotional ties existing between each parent
              and the child;

       (7)    The emotional needs and developmental level of the child;

       (8)    The moral, physical, mental and emotional fitness of each parent
              as it relates to their ability to parent the child. . . .;

                                      .      .      .

       (10)   The importance of continuity in the child’s life and the length of
              time the child has lived in a stable, satisfactory environment; [and]

                                      .      .      .

       (15)   Any other factors deemed relevant by the court.

       The trial court recognized that Ms. T. and the Child loved each other, but the court
found that the Child was “more stable and perform[ed] better at school and home during
times that the [C]hild is not exposed to [Ms.] T.” The court also agreed with Mr. Miller’s
recommendation that the Child not visit Ms. T. due to her “maladaptive behaviors” and
“the psychological harm that has occurred to [the Child] during times of visitation.” The
evidence does not preponderate against these findings.

       Based on the foregoing, we find the court made sufficient findings of fact to
support its conclusion that guardianship should be placed with Petitioners. Of course, as
noted above, the appointment of Petitioners as guardians of the Child is “subject to the
remaining rights, if any, of any other parent or guardian of the child.” Tenn. Code Ann.
§ 36-1-113(m).

                          III.   GRANDPARENT VISITATION

       Ms. T. also contends that the denial of her petition for grandparent visitation
should be reversed because the trial court applied the wrong standard in making its
decision.

       “Review of a trial court’s decision regarding visitation is governed by an abuse of
discretion standard.” Lovlace, 418 S.W.3d at 16. The abuse of discretion standard does
not permit reviewing courts to substitute their discretion for that of the trial court. Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Nevertheless, the abuse of
discretion standard of review does not “immunize a lower court’s decision from any
meaningful appellate scrutiny.” Id. “Discretionary decisions must take the applicable law
and the relevant facts into account. An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider the factors
                                          - 20 -
customarily used to guide the particular discretionary decision.” Id. In reviewing a trial
court’s discretionary decision, we are to determine

       (1) whether the factual basis for the decision is properly supported by
       evidence in the record, (2) whether the [trial] court properly identified and
       applied the most appropriate legal principles applicable to the decision, and
       (3) whether the [trial] court’s decision was within the range of acceptable
       alternative dispositions.

Id. at 524. In this process, we review the underlying factual findings using the
preponderance of the evidence standard in Tenn. R. App. P. 13(d) and the trial court’s
legal determinations de novo with no presumption of correctness. Id. at 525.

       Because the trial court’s award of guardianship superseded the prior order of
custody from the juvenile court, see Tenn. Code Ann. § 36-1-113(n), the award
terminated Ms. T.’s right to visitation with the Child. Foreseeing this possibility, Ms. T.’s
petition included an alternative cause of action for grandparent visitation under Tenn.
Code Ann. § 36-6-306(a), which provides,

       Any of the following circumstances, when presented in a petition for
       grandparent visitation . . . , necessitates a hearing if such grandparent
       visitation is opposed by the custodial parent or parents or custodian or if the
       grandparent visitation has been severely reduced by the custodial parent or
       parents or custodian:

                                       .      .      .

       (5)    The child resided in the home of the grandparent for a period of
              twelve (12) months or more and was subsequently removed from the
              home by the parent, parents, or custodian (this grandparent-
              grandchild relationship establishes a rebuttable presumption that
              denial of visitation may result in irreparable harm to the child); or

       (6)    The child and the grandparent maintained a significant existing
              relationship for a period of twelve (12) months or more immediately
              preceding severance or severe reduction of the relationship, this
              relationship was severed or severely reduced by the parent, parents,
              or custodian for reasons other than abuse or presence of a danger of
              substantial harm to the child, and severance or severe reduction of
              this relationship is likely to occasion substantial emotional harm to
              the child.


                                           - 21 -
       In her petition, Ms. T. contended that she was entitled to visitation because she
had a “significant relationship that existed for twelve (12) months or more immediately
preceding the severance of the relationship between the Petitioner and child.” The trial
court agreed that Ms. T. had a significant existing relationship, given the number of years
that Ms. T. was the Child’s primary custodian. Nonetheless, the court did not find
grandparent visitation was appropriate based on its finding that the Child would suffer
less psychological harm from denying visitation than continuing it.

        On appeal, Ms. T. first contends the trial court erred by applying subsection (a)(6)
instead of subsection (a)(5). Under Tenn. Code Ann. § 36-6-306(a)(5), a grandparent is
entitled to a presumption of irreparable harm when “[t]he child resided in the home of the
grandparent for a period of twelve (12) months or more.” Her petition, however, did not
plead this ground. Consequently, it is waived on appeal. See Fayne v. Vincent,
301 S.W.3d 162, 170 (Tenn. 2009).

       Ms. T. also contends that the trial court erred by failing to determine whether there
was a danger of substantial harm based on the cessation or severe reduction of her
relationship with the Child. Under Tenn. Code Ann. § 36-6-306(b)(1), a trial court must
find “a danger of substantial harm to the child.” This finding may be based upon one of
three circumstances:

       (A)    The child had such a significant existing relationship with the
              grandparent that loss or severe reduction of the relationship is likely
              to occasion severe emotional harm to the child;

       (B)    The grandparent functioned as a primary caregiver such that
              cessation or severe reduction of the relationship could interrupt
              provision of the daily needs of the child and thus occasion physical
              or emotional harm; or

       (C)    The child had a significant existing relationship with the grandparent
              and loss or severe reduction of the relationship presents the danger
              of other direct and substantial harm to the child.

Id.

       The trial court agreed with Mr. Miller’s testimony that the Child “would suffer
less psychological harm” if she had no visitation than if she continued having visitation.
(Emphasis added). Thus, contrary to Ms. T.’s contention, the trial court implicitly




                                           - 22 -
recognized that a denial of visitation would present a danger of substantial harm to the
Child.12

       Once a danger of substantial harm is established, the court must “determine
whether grandparent visitation would be in the best interests of the child based upon the
factors in § 36-6-307.” Tenn. Code Ann. § 36-6-306(c). As Ms. T. points out, the best-
interest analysis under § 307 is “a balancing analysis”:

       In determining the best interests of the child under § 36-6-306, the court
       shall consider all pertinent matters, including, but not necessarily limited to,
       the following:

               (1)     The length and quality of the prior relationship between the
                       child and the grandparent and the role performed by the
                       grandparent;

               (2)     The existing emotional ties of the child to the grandparent;

                                          .       .       .

               (4)     The effect of hostility between the grandparent and the parent
                       of the child manifested before the child, and the willingness
                       of the grandparent, except in case of abuse, to encourage a
                       close relationship between the child and the parent or parents,
                       or guardian or guardians of the child;

                                          .       .       .

               (9)     Whether the grandparent is seeing to maintain a significant
                       existing relationship with the child; [and]

               (10)    Whether awarding grandparent visitation would interfere with
                       the parent-child relationship . . . .

Tenn. Code Ann. § 36-6-307.




       12
           “[W]hen construing orders and judgments, effect must be given to that which is clearly
implied, as well as to that which is expressly stated.” Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595,
608 (Tenn. 2013) (citations omitted).



                                               - 23 -
Thus, while a child may suffer emotional harm if the child’s substantial, existing
relationship with a grandparent is severed, the denial of visitation may nonetheless be in
the child’s best interests.

       Ms. T. contends the trial court failed to determine the Child’s best interests. We
respectfully disagree. As stated earlier, the court recognized the existing emotional ties
between the Child and Ms. T. but also found that the Child was more stable and
functioned better when she was not exposed to Ms. T. The evidence does not
preponderate against this finding. There was ample evidence that Ms. T. was a negative
influence on the Child and caused the Child to feel torn between her two grandmothers.
This, in turn, affected the Child’s behavior at home and school. Ms. T.’s actions evinced
a hostility towards Mr. and Ms. K. and an unwillingness to foster a close relationship
between Mr. and Ms. K. and the Child. Thus, the court’s conclusion that the Child
“would suffer less psychological harm” if visitation were denied than if visitation were
continued represents a balancing of the “pertinent matters” that the statute requires courts
to consider. See Tenn. Code Ann. § 36-6-307.

      Based on the foregoing, we find no error in the trial court’s determination that
Ms. T. was not entitled to grandparent visitation.

                                     IN CONCLUSION

       The judgment of the trial court is affirmed in part, reversed in part, and the
judgment terminating Mother’s parental rights is vacated. Further, this matter is
remanded to the trial court for further proceedings consistent with this opinion. The costs
of appeal assessed among Mother, petitioners Bill & Donna K., and intervening petitioner
Ms. T., for which they are jointly and severally liable.



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




                                           - 24 -
