                                                                                                      10/03/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    August 22, 2018 Session

                                      IN RE KAYCEE M.1

                 Appeal from the Chancery Court for Lawrence County
                    No. 17-18001    Stella L. Hargrove, Chancellor


                                No. M2017-02160-COA-R3-PT



This action involves the termination of a father’s parental rights to his minor child.
Following a bench trial, the court found that clear and convincing evidence existed to
support the statutory grounds of abandonment for failure to support, abandonment based
upon his conduct prior to incarceration, substantial noncompliance with the permanency
plans, and failure to manifest an ability and willingness to assume custody or financial
responsibility of the child. The court further found that termination was in the best
interest of the child. We affirm.


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


JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which RICHARD H.
DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

John M. Schweri, Columbia, Tennessee, for the appellant, Brian M.

Herbert H. Slatery, III, Attorney General & Reporter, and Jordan K. Crews, Assistant
Attorney General for the appellee, State of Tennessee, Department of Children’s
Services.

Stacie Odeneal, Lawrenceburg, Tennessee, guardian ad litem for the minor, Kaycee M.



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

                                        I.       BACKGROUND

       Kaycee M. (“the Child”) was born to Jerrica L. (“Mother”) and Brian M.
(“Father”) in May 2014. The Child and her three-month-old baby brother (“baby
brother”) resided with Mother, who relocated out of Father’s residence because he no
longer had electricity. The Tennessee Department of Children’s Services (“DCS”)
removed the Child from Mother on February 25, 2016, following the death of the baby
brother. Mother reported that the baby brother had been sick in the days prior to his
death and that she gave him medicine and brought him into bed with her and the Child
after he awoke around 11:00 p.m. She found him unresponsive the next morning.
Mother tested positive for amphetamine, methamphetamine, benzodiazepine, opiates,
oxycodone, and THC, while Father tested positive for amphetamine, methamphetamine,
and THC. The Child, who completed a hair follicle screen, later tested positive for
amphetamine and methamphetamine.

       The Child was adjudicated dependent and neglected based upon the Parents’ drug
abuse, Father’s lack of suitable housing, and Father’s history of child abuse and neglect.2
The Child was placed with Father’s sister, who disavowed Father and his abuse of drugs.
Father participated in the development of several permanency plans, the first of which
required him to (1) complete an alcohol and drug assessment and follow
recommendations; (2) complete a mental health assessment and follow recommendations;
(3) maintain legal income; (4) maintain safe and stable housing; (5) resolve legal issues;
(6) complete random drug screens and pill counts; (7) participate in domestic violence
classes; (8) obtain safe and reliable transportation; and (9) participate in supervised
therapeutic visitation. The plan further provided that Father was required to remit child
support, payable through the child support office. Father signed the plan, dated March
24, 2016, but indicated that he did not agree with the plan’s requirements and wrote at the
bottom, “I agree with nothing!” The court, finding that the requirements were reasonable
and related to the conditions necessitating removal, ratified the plan after adding the
following requirements: (10) complete a psychological evaluation and follow
recommendations; (11) complete a parenting assessment and follow recommendations;
and (12) participate in family counseling. Father later signed the Criteria for Termination
of Parental Rights, explaining the statutory grounds upon which DCS could file for
termination.

      A second permanency plan was developed on September 1, 2016, with the added
goal of adoption. Father signed the second plan and indicated his agreement with

2
    The details of his alleged history of child abuse and neglect are unknown.
                                                       -2-
“everything . . . except for the domestic violence steps” and the goal of adoption with
anyone other than family. The court ratified the second permanency plan, noting that
Father was not in compliance with the plan as evidenced by his failure to remit child
support and his lack of completion of the requirements. A third and final permanency
plan was developed on March 31, 2017, with the same goals and responsibilities
contained in the prior two plans. Father participated in the development of the plan and
indicated his disagreement with the goal of adoption. The final plan was also ratified.

        DCS provided Father with contact information for several providers and programs,
offered to assist in scheduling appointments, and administered drug screens. While
Father completed some assessments and alcohol and drug counseling, he later failed
several drug screens and tested positive for methamphetamine in March and April 2016
and amphetamine and methamphetamine in June 2016, September 2016, and April 2017.
He then refused all drug screens administered by DCS, beginning April 10, 2017. He
later admitted methamphetamine use in March and September 2017 and that he last used
marijuana in September 2017. While Father attended visitation, he was combative with
the supervisor. He had also failed to maintain stable housing, to remit child support, and
to resolve his legal issues – Father was charged with failure to appear in June and July
2016, violation of probation in September and November 2016, and domestic assault and
vandalism in June 2017.

        DCS filed a petition to terminate his parental rights on April 13, 2017, alleging
grounds of severe child abuse, abandonment for failure to support; abandonment based
upon conduct prior to incarceration that exhibited a wanton disregard for the Child’s
welfare; substantial noncompliance with the permanency plans; and failure to manifest an
ability and willingness to assume custody or financial responsibility of the Child.3

        The case proceeded to a hearing on September 14, 2017. The hearing continued
on September 15 and was finally completed on October 4. Father failed to appear on the
morning of September 15. A well-check was performed at his residence, where Father
was discovered in his pajamas. He refused to come to court, claiming that he was “not
going because they were not going to give me the kids anyway.”4 Father appeared later
in the day after his mother retrieved him from his residence.

        As pertinent to this appeal, DCS presented numerous witnesses establishing
Father’s failure to complete the requirements of his permanency plan, his troubles with
visitation, and his continued drug abuse and inability to provide housing. DCS also
3
 DCS also sought termination of Mother’s parental rights. She ultimately executed a surrender of her
parental rights and is not a party to this appeal.
4
    Father’s reference to “the kids” rather than the one child at issue was confirmed by the trial court.
                                                       -3-
submitted evidence establishing that the Child was well-adjusted in her current home and
that her paternal aunt wished to adopt her.

       Roger Risner, employed by Overcoming Services, testified that he provided Father
with in-home alcohol and drug counseling from April 2016 through March 2017, with
some sessions occurring at the jail due to Father’s incarceration. Mr. Risner testified that
Father’s home was not suitable for the Child when he last visited in March 2017. He
agreed that Father passed two drug screens while receiving services but confirmed that
Father had since failed a screen in April 2017. He stated that Father also completed three
domestic violence sessions while receiving services but confirmed that Father had since
been arrested for domestic assault in July 2017.

       The Child’s family service worker, Christian Gray, and two employees of Health
Connect America, Samantha Butler and Tyanesha Campbell, testified concerning
Father’s visitation with the Child. Ms. Grey testified that she supervised a visit on May
26, 2017, during which Father advised the Child not to “fraternize with the enemy.” She
further claimed that she ended a supervised visit in August 2017 as a result of his
behavior. Ms. Butler claimed that she moved his visits to the DCS office because she felt
threatened or in fear as a result of his behavior, and Ms. Campbell claimed that Father
ignored her questions concerning his failure to complete alcohol and drug education.

       Father completed a mental health assessment administered by Centerstone but
never agreed with the diagnosis or suggested treatment. He also only completed 1 out of
24 required domestic violence classes, claiming that he completed some sessions with
Mr. Risner and was not an offender but was a victim of domestic violence.

       Father presented a different story, claiming that DCS failed to assist him, that he
was unable to work as a result of side effects from medication for depression, and that he
was the victim of a “conspiracy” to keep him away from the Child. He admitted that he
was self-employed in the construction business and that he advised the court in August
2017 that he planned to work for an individual doing construction. He confirmed that he
worked in August and September 2017 and ultimately received payment of $2,400. He
claimed that he was only able to work because he resumed his methamphetamine use. He
believed the methamphetamine provided him with the focus and energy needed to work.
He stated that he used the money to establish a home for the Child but agreed that he still
had not secured water and sewer services at the time of the hearing. He identified the
order setting child support of $240 per month, beginning August 2016, and claimed that
the approximately $5,000 he paid on his home should be considered child support.5

5
 While he did not remit support during the relevant time period, he submitted a $500 purge payment in
May 2017 to avoid further incarceration.
                                                 -4-
       The trial court granted the termination petition, sustaining all but one ground
alleged, namely severe child abuse. The court further found that termination was in the
best interest of the Child. This timely appeal followed.

                                       II.     ISSUES

       We consolidate and restate the issues on appeal as follows:

       A.    Whether clear and convincing evidence supports the court’s
       termination based upon a finding of abandonment for failure to remit child
       support pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i).

       B.     Whether clear and convincing evidence supports the court’s
       termination based upon a finding of abandonment related to Father’s
       conduct prior to incarceration pursuant to Tennessee Code Annotated
       section 36-1-102(1)(A)(iv).

       C.    Whether clear and convincing evidence supports the court’s
       termination based upon a finding of substantial noncompliance with the
       permanency plan pursuant to Tennessee Code Annotated section 36-1-
       113(g)(2).

       D.     Whether clear and convincing evidence supports the court’s
       termination based upon a finding that Father failed to assume custody or
       financial responsibility of the Child pursuant to Tennessee Code Annotated
       section 36-1-113(g)(14).

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

       F.     Whether Father should be held responsible for costs and attorney
       fees on appeal pursuant to Tennessee Code Annotated section 27-1-122.

                             III.   STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
                                             -5-
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

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

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

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

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

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

                                            -6-
      In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

        An appellate court reviews a trial court’s findings of fact in termination
        proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
        Rule 13(d), appellate courts review factual findings de novo on the record
        and accord these findings a presumption of correctness unless the evidence
        preponderates otherwise. In light of the heightened burden of proof in
        termination proceedings, however, the reviewing court must 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.
        The trial court’s ruling that the evidence sufficiently supports termination
        of parental rights is a conclusion of law, which appellate courts review de
        novo with no presumption of correctness. Additionally, all other questions
        of law in parental termination appeals, as in other appeals, are reviewed de
        novo with no presumption of correctness.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

                                        IV.     DISCUSSION

                                                 A. & B.

        Parental rights may be terminated if the parent has been incarcerated during all or
part of the four months immediately preceding the filing of the termination petition and
has either willfully failed to support the child for four consecutive months preceding the
incarceration or has engaged in conduct prior to incarceration which exhibits a wanton
disregard for the welfare of the child. Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-
102(1)(A)(iv). Here, Father was incarcerated for a portion of the four months preceding
the filing of the termination petition. The parties agreed that the applicable four-month
window was from July 2, 2016, through November 2, 2016.6




6
  Father’s last period of incarceration prior to the filing of termination petition began on November 3,
2016. “The applicable four-month window . . . includes the four months preceding the day the petition to
terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-
00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014). We reason the same holds
true for the start date of the parent’s incarceration.
                                                       -7-
                                             1.

        A parent’s willful failure to 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.” Tenn. Code Ann. § 36-1-
102(1)(D). Token support is “support, under the circumstances of the individual case,
[that] is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B).
This court has consistently held that the term willfulness as it applies to a party’s failure
to visit or remit support must contain the element of intent. In re Swanson, 2 S.W.3d
180, 188-89 (Tenn. 1999). The element of intent utilized in termination proceedings
“does not require the same standard of culpability as is required by the penal code.” In re
Audrey S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures to act that are
intentional or voluntary rather than accidental or inadvertent.” Id. “[A] person acts
‘willfully’ if he or she is a free agent, knows what he or she is doing, and intends to do
what he or she is doing.” Id. at 863-64.

       Father admits his failure to remit support but claims that such failure was not
willful when he allocated the money for home repairs necessary to establish a suitable
home for the Child. He explains that he would allocate the money differently now if
given the chance and claims that his failure to prioritize his support payments was a result
of his lack of understanding of a complex system with numerous requirements. We
sympathize with Father’s dilemma; however, the fact remains that he was advised of his
obligation to remit support as evidenced by the child support order, the parenting plans,
and his signing of the Criteria for Termination of Parental Rights. Further, “[e]very
parent who is [18] years of age or older is presumed to have knowledge of [his or her]
legal obligation to [remit] support.” Tenn. Code Ann. § 36-1-102(1)(H). Accordingly,
we conclude that there was clear and convincing evidence to establish that Father
abandoned the Child by willfully failing to remit support during the relevant time period.

                                             2.

       Tennessee Code Annotated section 36-1-113(g)(1) provides that parental rights
may be terminated where an incarcerated parent abandons a child by engaging in conduct
prior to incarceration that exhibits a wanton disregard for the welfare of the child. See
Tenn. Code Ann. § 36-1-102(1)(A)(iv). To prove this ground, DCS must establish that
(1) Father was incarcerated at the time the termination petition was filed or within the
preceding four-month period and that (2) he engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the child. Tenn. Code Ann. § 36-1-
102(1)(A)(iv); In re Kason C., No. M2013-02624-COA-R3-PT, 2014 WL 2768003, *5
(Tenn. Ct. App. June 17, 2014). Parental conduct exhibiting wanton disregard for a
child’s welfare may occur at any time prior to incarceration and is not limited to acts
                                             -8-
occurring during the four-month period immediately preceding the incarceration. State of
Tenn., Dep't. of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009).

       We have held on numerous occasions that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
867-68. Father incurred a number of charges prior to his last relevant period of
incarceration, namely he was charged with failure to appear in June and July 2016 and
violation of probation in September and November 2016. Further, he continued in his
drug abuse after the Child was removed as evidenced by his failed drug screens in March
2016, June 2016, and September 2016.

        Father claims that his actions did not evidence a wanton disregard when he was
only incarcerated briefly for various misdemeanor charges and has never been convicted
of a felony. This court has held that “[a] parent’s decision to engage in conduct that
carries with it the risk of incarceration is itself indicative that the parent may not be fit to
care for the child.” Id. at 866. Here, the Child languished in custody while Father
continued in his criminal behavior and continually failed to adequately address his
substance abuse issues. His actions only prolonged the Child’s quest for permanency and
stability and evidenced a wanton disregard for her welfare. With these considerations in
mind, we conclude that there was clear and convincing evidence to establish that Father
abandoned the Child by engaging in conduct prior to incarceration that exhibited a
wanton disregard for her welfare.

                                              C.

       Tennessee law requires the development of a plan of care for each foster child and
further requires that the plan include parental responsibilities that are reasonably related
to the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of
parental rights exists when a petitioner proves by clear and convincing evidence that
“[t]here has been substantial noncompliance by the parent or guardian with the statement
of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2). To
establish noncompliance, the trial court must initially find “that the requirements of the
permanency plans are reasonable and related to remedying the conditions that caused the
child to be removed from the parent’s custody in the first place.” In re M.J.B., 140
S.W.3d at 656; see In re Valentine, 79 S.W.3d at 547. Second, the court must find that
the parent’s noncompliance is substantial, In re M.J.B., 149 S.W.3d at 656, meaning that
the parent must be in “noncompliance with requirements in a permanency plan that are
reasonable and related to remedying the conditions that warranted removing the child
from the parent’s custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL
                                              -9-
21266854, at *12 (Tenn. Ct. App. June 3, 2003). To assess a parent’s substantial
noncompliance with a permanency plan, the court must weigh “both the degree of
noncompliance and the weight assigned to that particular requirement.” Id. at *12.
Conversely, “[t]erms which are not reasonable and related are irrelevant, and substantial
noncompliance with such terms is irrelevant.” In re Valentine, 79 S.W.3d at 548-49.

       In the case at bar, the permanency plans required Father to (1) complete an alcohol
and drug assessment and follow recommendations; (2) complete a mental health
assessment and follow recommendations; (3) maintain legal income; (4) maintain safe
and stable housing; (5) resolve legal issues; (6) complete random drug screens and pill
counts; (7) participate in domestic violence classes; (8) obtain safe and reliable
transportation; (9) participate in supervised therapeutic visitation; (10) complete a
psychological evaluation and follow recommendations; (11) complete a parenting
assessment and follow recommendations; and (12) participate in family counseling. We
agree with the trial court that these requirements, considering Father’s circumstances,
were reasonable and related to the conditions warranting the placement of the Child in
DCS custody.

       Father asserts that he evidenced compliance with the requirements by attempting
to establish a suitable home for the Child, passing several drug tests, and participating in
numerous evaluations, assessments, and counseling sessions. He concedes his failure to
remit child support but again explains that he was attempting to establish a suitable home
and has since resumed support payments. We acknowledge that Father completed
several assessments and participated in sessions; however, he simply failed to address the
most important aspects of the plan that would have resulted in his ability to care for the
Child, namely to resolve his legal issues and adequately address his drug abuse. Instead
of resolving his legal issues, he incurred additional criminal charges while the Child was
in custody and failed to remit child support until he was jailed and required to submit a
purge payment. He also repeatedly failed drug screens and later refused to submit to any
drug screens. With the above considerations in mind, we conclude that there was clear
and convincing evidence to establish that Father failed to substantially comply with the
requirements of the permanency plan.

                                            D.

       A parent’s parental rights may be terminated when the parent 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 when 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).

                                           - 10 -
       Father asserts that he evidenced his ability and willingness to assume legal and
physical custody of the Child by preparing a home for her, attending visitation, and
participating in counseling, evaluation, and treatment. While Father admittedly
completed requirements in the permanency plan by completing evaluations and
participating in counseling and treatment, his criminal behavior continued through June
2017, when he was arrested for domestic assault. He further failed to address his
substance abuse issues as evidenced by his admission at the hearing that he last used
methamphetamine and marijuana in the days before the hearing. His home was also not
yet suitable for the Child as evidenced by the lack of sufficient utilities at the time of the
hearing. With these considerations in mind, we conclude that there was clear and
convincing evidence to establish that Father failed to manifest an ability and willingness
to assume custody of the Child and that her placement in the home would pose a risk of
substantial harm to her physical or psychological welfare.

                                                     E.

      Having concluded that there was clear and convincing evidence supporting at least
one statutory ground to terminate Father’s parental rights, we must consider whether
termination was in the best interest of the Child. In making this determination, we are
guided by the following non-exhaustive list of factors:

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

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

            (2) Whether the parent or guardian has failed to effect a lasting
            adjustment after reasonable efforts by available social services agencies
            for such duration of time that lasting adjustment does not reasonably
            appear possible;7

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



7
  In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a termination proceeding, the extent of DCS’s efforts to
reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a
precondition to termination of the parental rights of the respondent parent.”).
                                                    - 11 -
          (4) Whether a meaningful relationship has otherwise been established
          between the parent or guardian and the child;

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

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

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

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

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

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).

       Father argues that termination was not in the best interest of the Child and asks
this court to remand the matter for him to evidence his continued compliance in his



                                             - 12 -
attempt to regain custody of the Child.8 Despite Father’s claim, a number of the best
interest factors weigh against him. He has not made the adjustment of circumstances
necessary to make it safe and in the Child’s best interest to return home. The record
reflects that he does not have suitable utility services and that he last used
methamphetamine and marijuana days before the start of the termination hearing. Tenn.
Code Ann. § 36-1-113(i)(1), (2). The Child resides in a safe and stable home that is
willing and able to adopt her. The Child was not residing with Father prior to her
removal, and she has since resided with her foster family for approximately 20 months
prior to the termination hearing. Removing her from her current home would likely
negatively affect her emotionally and psychologically. Tenn. Code Ann. § 36-1-
113(i)(5). Questions remain concerning his ability to care for her as evidenced by his
failure to address his substance abuse issues. He even failed to appear on the second day
of the hearing and only returned when retrieved by his mother. Tenn. Code Ann. § 36-1-
113(i)(7). He has also failed to remit child support. Tenn. Code Ann. § 36-1-113(i)(8).

       While we do not wish to discount Father’s love for the Child and any remaining
relationship that may still be intact, the Child is in need of permanency and a stable home
that Father has shown he cannot provide now or in the near future. With all of the above
considerations in mind, we conclude that there was clear and convincing evidence to
establish that termination of Father’s parental rights was in the best interest of the Child.
We affirm the decision of the trial court.9

                                                    F.

       Guardian asks this court to find Father’s appeal frivolous and a frustration of the
Child’s need for permanency and stability. She explains that Father failed to assert an
adequate basis upon which this court may afford relief when the trial court presented
thorough and sufficient findings adequately addressing each ground of termination.
Tennessee Code Annotated section 27-1-122 provides for an award of damages,

8
  Father further requests reversal of the court’s termination decision based upon the cumulative error
doctrine. He explains that his counsel’s failure to present proof on his behalf resulted in an unfair trial,
necessitating reversal of the decision. DCS responds that no Tennessee court has applied the doctrine in a
civil case and that Father failed to articulate how the failure to present proof constituted error. We agree
with DCS.
9
  Father submitted a letter “in hopes of informing the court of a few important matters” not addressed by
his attorney at oral argument. We acknowledge receipt of the letter; however, we must reiterate that we
decide cases based upon the record in the trial court, absent a properly filed motion requesting
consideration of post-judgment facts. See Tenn. R. App. P. 14 (“[This court] may consider facts
concerning the action that occurred after judgment.”). Here, Father offers explanations and arguments
concerning the court’s factual findings and does not request consideration of facts that occurred after
judgment.
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including attorney fees, when an appeal is determined to be frivolous. To find an appeal
frivolous, the appeal must be wholly without merit and lacking in justiciable issues. See
Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma
v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). An appellate court’s decision
on this issue is discretionary, and this court is generally reluctant to award such damages
because we do not want to discourage legitimate appeals. Whalum v. Marshall, 224 S
.W.3d 169, 180-81 (Tenn. Ct. App. 2006). Our Supreme Court provided the following
guidance on this issue in the context of a parental rights termination case:

      The determination of whether a parent’s rights to his/her child should be
      terminated is the most serious and grave issue to be addressed by this
      Court. Accordingly, we are loathe to consider an appeal of a trial court’s
      judgment terminating a parent’s rights to be frivolous.

In re M.L.D., 182 S.W.3d 890, 898 (Tenn. Ct. App. 2005) (finding the appeal frivolous
when the appellant failed to provide an adequate record for review and raised new issues
on appeal). We agree that this appeal is a frustration of the Child’s need for permanency
and stability; however, we do not wish to discourage future legitimate appeals, especially
in cases involving a decision concerning parental rights. Exercising our discretion in
such matters, we respectfully deny the request.

                                   V.     CONCLUSION

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


                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




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