                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    April 17, 2002 Session


                   STATE OF TENNESSEE, DEPARTMENT OF
                       CHILDREN'S SERVICES v. C.H.H.
                               In re: A.N.R.

                       Appeal from the Juvenile Court for Knox County
                           No. J6139     Carey E. Garrett, Judge

                                     FILED MAY 21, 2002

                                 No. E2001-02107-COA-R3-CV




The State of Tennessee, Department of Children’s Services (“DCS”) filed a petition seeking to
terminate the parental rights of C.H.H. (“Father”), the biological father of the minor child, A.N.R.
(“Child”). The Trial Court granted DCS’ petition to terminate Father’s parental rights. Father
appeals. We affirm as modified and remand.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.


Lawrence M. House, Knoxville, Tennessee, for the Appellant, C.H.H.

Paul G. Summers and Douglas Earl Dimond, Nashville, Tennessee, for the Appellee, State of
Tennessee, Department of Children's Services.
                                                    OPINION

                                                   Background

                 This matter involves the termination of the parental rights of C.H.H. as the biological
father of the Child. Father had a long-term, extramarital affair with M.J.R. (“Mother”).1 During
their affair, Mother gave birth to the Child in June 1994, and to twins in October 1995. A DNA
paternity test taken by Father in 1999 showed he was the biological father of the Child but not the
twins. Only the Child is the subject of this appeal.

                Father claimed he was in Mother’s home up to 2 times per week on average and that
the three children believed he was their father. Father testified that, sometimes, Mother told him all
three of the children were his. Other times, Mother told him he was the biological father only of the
Child. On still other occasions, Mother denied Father was the biological father of any of the three
children. Father testified Mother’s answer to the question of paternity regarding the three children
depended upon how Father and Mother were getting along. At any rate, Father testified he provided
baby supplies, food and money to Mother, at a total value of approximately $7,000, plus rent.2
Although Father provided no documentation of such support at trial, Father claimed he began
keeping receipts and check stubs, when possible, for purchases he made for Mother and the three
children. Father testified he began collecting documentation after Mother threatened to take him to
court.
                 The record shows Mother had a drinking problem, and Father knew about her alcohol
abuse. Father, however, denied Mother’s drinking interfered with her ability to care for the children.
Father also claimed he never saw the children in a neglected or hungry condition. Father testified
Mother only had parties when Father was not going to be around and Mother would clean up her
home when she knew Father was coming for a visit. Father testified he would call the Child, who
was then approximately 3 years old, to check on whether the family needed groceries and if Mother
was “being good.” Father claimed he called the Child to double-check the information Mother gave
him because the Child, three years old, was smart. Father further testified that during one of his
visits to Mother’s home, he discovered the Child’s hands had been burned and the Child reported
to him that hot water had caused the burns. In addition, the proof in the record shows that in 1997,
and from January through April, 1998, DCS received 9 referral calls regarding Mother’s alleged
abuse or neglect of the children.

               Father has been married to B.L.H. (“Wife”) for over 30 years. While Father and
Wife, who are both in their 50's, continue to reside together, they maintain separate bedrooms. Wife
testified she had known about her husband’s affair for approximately 5 years, beginning when


         1
           The length of Father’s and Mother’s affair is unclear as the record shows its duration to be somewhere from
7 to 12 years. Mother is unmarried.

         2
           The record shows that in 1996, Mother began living in rent-free public housing. Father testified he was not
aware of this fact until A pril 19 98.

                                                         -2-
Mother started making harassing telephone calls to Wife while Mother was drunk. Wife testified
she noticed Father’s frequent, overnight absences but assumed he was working. Wife testified she
did not believe she and Father had a bad marriage and that the affair and the birth of the Child could
not be changed. Wife testified she previously kept the three children in her home, and on one
occasion, Father dropped off the children and left Wife to babysit them.

               Father is retired and receives disability income in the amount of $1,200 per month
for Meniere’s Disease which causes him to suffer from dizziness. Father and Wife also currently
own a used car business. Wife has another job from which she earns approximately $26,000 per
year. Although Father denied receiving any income from the used car business, the couple’s tax
returns from 1994-99 show their combined yearly incomes totaled between approximately $61,000
and $71,000, with Father’s individual yearly income ranging between $35,000-$45,000 for those
years.

                 In April 1998, Mother failed to pick up the Child and the twins from daycare.
Thereafter, DCS filed a Petition for Temporary Custody of the three children. Father testified that
once he heard the children had been left at daycare and taken into emergency DCS custody, he, for
the first time, admitted the affair to Wife and told her he may be the biological father of the three
children. Thereafter, Father and Wife filed a petition seeking custody of the three children. In their
petition for custody, Father and Wife described the “Circumstances of the Petitioner” as follows:
“[Father] knows the children, likes and loves them wish [sic] for them to be in a better environment.”
Father and Wife, in response to questions on the petition form regarding the biological father of the
children, stated that the information was “unknown.” The record further shows that Mother, DCS
employees, and the Child’s guardian ad litem reported that Father told them he could not be the
biological father of the children because he previously had a vasectomy. At trial, Father denied
making this statement.

                In May 1998, the Trial Court entered an Interim Order finding the three children to
be dependent and neglected and placing them into the temporary custody of DCS. In December
1998, the Trial Court ordered Father to undergo DNA testing, at his expense, to determine paternity
of the Child and the twins. The record shows Father previously had discussed paternity testing with
a DCS employee, but Father did not pursue the test and asked if DCS would cover the cost. In
February 1999, Father received the results of the DNA test which, as discussed, showed he was the
biological father of only one of the three children, the Child.

              Thereafter, Mother voluntarily surrendered her parental rights to the Child. In May
1999, DCS filed a petition seeking termination of Father’s parental rights of all three children.3 DCS


         3
           Although in February 1999, the DNA paternity test results showed Father was the biological father of the
Child but not the twins, DCS’ petition to terminate Father’s parental rights covered all three children. Although the
record does not show that this petition was am end ed, D CS, therea fter, filed a petition to term inate th e parental rig hts
of another male regarding just the twins. The Trial Court entered an order term inating this m an’s p arental rights to the
                                                                                                               (con tinued...)

                                                             -3-
listed several grounds for their request to terminate Father’s parental rights, including: (1)
termination of Father’s parental rights is in the best interest of the children; (2) Father failed to file
a timely petition to establish paternity once he received notice of paternity; (3) Father failed to pay
child support; and (4) a risk of substantial harm to the children’s physical and psychological welfare
exists if Father were awarded custody of the children.

                In April and May 1999, the Trial Court Referee held a hearing on the petitions for
custody. In its Order (“Custody Order”), the Trial Court Referee dismissed Father’s and Wife’s
petition for custody, holding, in pertinent part, as follows:

                              The Court finds that [Father] failed to take appropriate steps
                     to protect these children from the risks their [Mother] presented due
                     to her on-going alcohol abuse. The Court finds [Father’s] testimony
                     that he was totally unaware of [Mother’s] problems incredible in light
                     of his testimony, and hers, that he spent almost every Saturday night
                     with her and that he was in her home briefly several times during the
                     week consistently from 1982 or 1983 until about three months prior
                     to the children’s removal. The triangulation between [Father, his
                     Wife, and Mother] has not been resolved. While [Father] testified
                     that he has not had sexual relations with [Mother] since
                     approximately three months prior to the children’s removal, he is still
                     involved with her, is still talking with her regularly and providing her
                     support and money. [Father’s Wife] had no real involvement with
                     these children prior to the filing of this petition [for custody]. Despite
                     [Father’s] testimony of long-term, active involvement with these
                     children, [the Child’s] play, as observed by [the Child’s] therapist,
                     failed to demonstrate any active father figure in [the Child’s] life.
                     Raising these children will require teamwork, which is totally lacking
                     in [Father’s] household. [Father] also has serious health problems
                     which would affect his ability to provide proper care and supervision
                     for these young, active children.

The Trial Court Referee further found that the three children should remain in foster care and ordered
DCS to develop a permanency plan for the children with the goal of adoption.

               In August 1999, Father filed a Complaint to Establish Paternity regarding all three
children and asked the Trial Court to enter an order of child support.4 The record, however, is not
clear when Father began making child support payments. Father testified he voluntarily made child

         3
             (...continued)
twins.

         4
              Father later amended his complaint to seek paternity of only the Child.

                                                           -4-
support payments beginning in October 1998, in the amount of $225, which he had calculated to be
21% of his income. During her examination of Father at trial, counsel for DCS stated to the Trial
Court that Father began making payments in October 1999, in the amount of $212 per month.

                The record shows that in November 1999, at Father’s request, an independent home
study of Father’s and Wife’s home was conducted by Pam Wolfe, a licensed clinical social worker
who is the director of an adoption agency. Wolfe testified she concluded Father and his Wife were
not qualified to adopt in the state of Tennessee due to the couple’s strained and distant relationship.
Wolfe further testified Father did not have any remorse for his long-term extra-marital affair with
Mother and that Wife characterized the affair as “just something that happened and that’s the way
it is.” Wolfe’s impression was Father and Wife could not work together as a team to raise the Child
and that the couple’s negative relationship would be harmful to the Child.

                 Wolfe also testified she had concerns about Father’s health since he had Meniere’s
Disease which, according to Father, caused him to suffer from dizziness and would interfere with
his ability to care for the Child while Wife was at work during the day. Wolfe also related she had
concerns about Father’s lack of understanding about the Child’s need for stability and her attachment
to her foster parents and siblings. According to Wolfe, Father threatened that if he did not prevail
in his efforts to obtain custody of the Child, he would “do everything he could to disrupt [the
Child’s] placement [with the foster parents].”

                DCS’ Petition to Terminate Parental Rights and Father’s Complaint to Establish
Paternity were consolidated for trial which was held in October 2000. At the time of trial, the Child
was 6 years old and had been living with the same set of foster parents for approximately 2.5 years.
The Trial Court entered a Termination of Parental Rights and Final Decree of Guardianship (“Final
Decree”) granting DCS’ Petition to Terminate Parental Rights and dismissing Father’s Complaint
to Establish Paternity. The Trial Court, as grounds to terminate Father’s parental rights to the Child,
found as follows:

               (1) Father failed to file a petition to legitimate the Child within 30
               days of notice of alleged paternity. See Tenn. Code Ann. § 36-1-
               113(g)(9)(A)(vi);

               (2) Father abandoned the Child by willfully failing to support or
               make reasonable payments toward the support of the Child for the 4
               consecutive months preceding the filing of DCS’ Petition to
               Terminate Parental Rights. See Tenn. Code Ann. §§ 36-1-113(g)(1);
               36-1-102(1)(A).

               (3) Father “failed, without good cause or excuse, to make reasonable
               and consistent payments for the support of the [C]hild in accordance
               with the child support guidelines. . . .” See Tenn. Code Ann. § 36-1-
               113(g)(9)(A)(ii).

                                                 -5-
                (4) An award of legal and physical custody to Father “would pose a
                risk of substantial harm to the physical or psychological welfare of
                the [C]hild. . . .” See Tenn. Code Ann. § 36-1-113(g)(9)(A)(v).

               Furthermore, the Trial Court, in its Final Decree, found that Father and Wife are not
suitable parents to adopt any child “for the reasons set out in the home study conducted by [Pam
Wolfe], the reasons noted in this Court’s [Custody Order] dismissing their custody petition, and the
testimony of various witnesses describing the history of their relationship. . . .” Moreover, the Trial
Court further found, in the Final Decree, that terminating the parental rights of Father would serve
the Child’s best interests.

                Father appeals. We affirm as modified and remand.

                                              Discussion

               On appeal and although not exactly stated as such, Father raises the following issues:
(1) whether the Trial Court erred in failing first to grant Father’s Complaint to Establish Paternity
before deciding DCS’ Petition to Terminate Parental Rights; (2) whether the Trial Court erred in
terminating Father’s parental rights where DCS failed to establish grounds for termination by clear
and convincing evidence; (3) whether the Trial Court erred in finding that Father had abandoned the
Child as one of the grounds to terminate Father’s parental rights; and (4) whether the Trial Court
erred in determining that Father was not a fit parent to adopt the Child where that issue was not
before the Trial Court. DCS raises no additional issues on appeal.

                A review of the findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                 As a preliminary matter, we first address Father’s argument that the Trial Court erred
in failing to grant his Complaint to Establish Parentage before it decided DCS’ Petition to Terminate
Parental Rights. Since neither party disputes that Father is the biological father of the Child, we find
this issue is moot.

               The predominant question before this Court is whether the Trial Court erred in
terminating Father’s parental rights to the Child. Father contends the Trial Court erred in finding,
as a ground for termination of his parental rights, that Father abandoned the Child. Father also
argues the evidence was insufficient to warrant termination of his parental rights on any ground
because DCS did not carry its burden of establishing grounds for termination by clear and
convincing evidence.



                                                  -6-
                It is well-established that, under the Tennessee and United States Constitutions, a
parent has a fundamental right to the “custody and upbringing of his or her child.” In re Swanson,
2 S.W.3d 180, 187 (Tenn. 1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d
551 (1972); Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). This Court also has recognized
that the parental rights of a biological father of non-marital children “are entitled to the same
constitutional protection as the rights of married parents and divorced custodial parents, as long as
the biological father has established a substantial relationship with the child.” State ex rel. Cihlar
v. Crawford, 39 S.W.3d 172, 182 (Tenn. Ct. App. 2000). "However, this right is not absolute and
parental rights may be terminated if there is clear and convincing evidence justifying such
termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988).

                  Termination of parental or guardianship rights must be based upon a finding by the
court by clear and convincing evidence that: (1) the grounds for termination of parental or
guardianship rights have been established; and (2) termination of the parent’s or guardian’s rights
is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c). This Court discussed the “clear
and convincing evidence” standard in O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995),
as follows:

                       The “clear and convincing evidence” standard defies precise
               definition. Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App.
               1989). While it is more exacting than the preponderance of the
               evidence standard, Santosky v. Kramer, 455 U.S. at 766, 102 S. Ct.
               at 1401; Rentenbach Eng’g Co. v. General Realty Ltd., 707 S.W.2d
               524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as
               the beyond a reasonable doubt standard. Brandon v. Wright, 838
               S.W.2d 532, 536 (Tenn. Ct. App. 1992); State v. Groves, 735 S.W.2d
               843, 846 (Tenn. Crim. App. 1987).

                       Clear and convincing evidence eliminates any serious or
               substantial doubt concerning the correctness of the conclusions to be
               drawn from the evidence. See Hodges v. S. C. Toof & Co., 833
               S.W.2d 896, 901 n. 3 (Tenn. 1992). It should produce in the fact-
               finder’s mind a firm belief or conviction with regard to the truth of
               the allegations sought to be established. In re Estate of Armstrong,
               859 S.W.2d 323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright, 838
               S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct.
               App. 1985).

O’Daniel v. Messier, 905 S.W.2d at 188.

                 The grounds for termination of parental rights are set forth in Tenn. Code Ann. § 36-
1-113(g). While Tenn. Code Ann. § 36-1-113(g) list several grounds for termination of parental
rights, the establishment of any one of the grounds, by clear and convincing evidence, may warrant

                                                 -7-
a termination of parental rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000). The
Final Decree shows the Trial Court relied upon four grounds found at Tenn. Code Ann. §§ 36-1-
113(g)(1) and (9), which are as follows:

                    (g) Initiation of termination of parental or guardianship rights may
                  be based upon any of the following grounds:

                    (1) Abandonment by the parent or guardian, as defined in § 36-1-
                  102, has occurred;

                                                   ********

                    (9)(A) The parental rights of any person who is not the legal parent
                  or guardian of a child or who is described in § 36-1-117(b) or (c) may
                  also be terminated based upon any one (1) or more of the following
                  additional grounds: . . .

                    (ii) The person has failed, without good cause or excuse, to make
                  reasonable and consistent payments for the support of the child in
                  accordance with the child support guidelines promulgated by the
                  department pursuant to § 36-5-101; . . .

                    (v) Placing custody of 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; or

                    (vi) The person has failed to file a petition to establish paternity of
                  the child within thirty (30) days after notice of alleged paternity by
                  the child’s mother, or as required in § 36-2-318(j), or after making a
                  claim of paternity pursuant to § 36-1-117(c)(3).5

We must affirm the Trial Court’s termination of Father’s parental rights if the record shows that DCS
established, by clear and convincing evidence, that any one of these grounds exists and that
termination of Father’s parental rights would serve the Child’s best interests. See In re C.W.W., 37
S.W.3d at 474; Tenn. Code Ann. § 36-1-113(c).




       5
           Tenn . Code Ann . § 36-1 -113 (g)(9)(B )(ii) provides 1 of 2 definitions of “no tice” as follow s:

                  “Notice” also means the oral statement to an alleged biological father f ro m a
                  biological mother that the alleged biological father is believed to be the biological
                  father of the biological mother’s child.

                                                           -8-
                 We now address the Trial Court’s determination that grounds exist to terminate
Father’s parental rights due to his willful failure to provide child support. The Trial Court, in its
Final Decree, found that Father “has willfully failed to support or make reasonable payments toward
the support of the [C]hild for four (4) consecutive months immediately preceding the filing of the
petition in this cause. . . .” While the Trial Court did not specify upon which portion of Tenn. Code
Ann. § 36-1-113(g) it relied in making this determination, this finding correlates to the language of
Tenn. Code Ann. § 36-1-113(g)(1), which provides that termination of parental rights may be based
upon “[a]bandonment by the parent . . ., as defined in § 36-1-102. . . .” The definitions, found at
Tenn. Code Ann. § 36-1-102, pertinent to this matter are as follows:

               (1)(A) “Abandonment” means, for purposes of terminating the
               parental or guardian rights of parent(s) or guardian(s) of a child to
               that child in order to make that child available for adoption, that:

                  (i) For a period of four (4) consecutive months immediately
               preceding the filing of a proceeding or pleading to terminate the
               parental rights of the parent(s) or guardian(s) of the child who is the
               subject of the petition for termination of parental rights or adoption,
               that the parent(s) or guardian(s) either have willfully failed to visit or
               have willfully failed to support or make reasonable payments toward
               the support of the child.

(emphasis added).

                 The statute, Tenn. Code Ann. § 36-1-102(1)(D), provides a definition of “willfully
failed to support” or “willfully failed to make reasonable payments toward such child’s support.”
The Supreme Court, however, in In re Swanson, held that the current, statutory “willful failure to
support” definition of “abandonment” was unconstitutional because it created an “irrebuttable
presumption that the failure to provide monetary support for the four months preceding the petition
to terminate parental rights constitutes abandonment, irrespective of whether that failure was
intentional . . . .” In re Swanson, 2 S.W.3d at 188. Swanson further held that “[u]ntil otherwise
amended by our legislature, the definition [of abandonment] that was in effect under prior law shall
be applied.” Id. at 189. Thereafter, this Court, citing In re Swanson, used the prior statutory law
from 1994 for both of the above definitions of the term “abandonment,” holding as follows:

                  Under the law as it existed prior to In re Swanson, an “abandoned
               child” was defined as

                       [a] child whose parents have willfully failed to visit or
                       have willfully failed to support or make reasonable
                       payments toward such child’s support for four (4)
                       consecutive months immediately preceding institution


                                                  -9-
                       of an action or proceeding to declare the child to be an
                       abandoned child.

In re Adoption of Copeland, 43 S.W.3d 483, 488 (Tenn. Ct. App. 2000) (quoting Tenn. Code Ann.
§ 36-1-102(1)(A)(i) (Supp. 1994) (alterations in original). Copeland further held that due to the In
re Swanson decision, the 1994 law that is to be applied provides for an element of intent in both the
“failure to visit” and “failure to support” definitions of “abandonment.” Id.

               On appeal, Father argues the Trial Court’s termination of his parental rights on this
ground is constitutionally fatal because the Trial Court did not make a finding that Father’s failure
to pay child support was intentional. Father also contends the proof shows he provided financial
support to Mother and the three children and points to his testimony that he voluntarily made support
payments in the amount of $225 per month beginning in October 1998.

               A comparison of the constitutionally-permissible 1994 definition of “willful failure
to support” and the language used by the Trial Court in its Final Decree shows that the Trial Court
used the language found in the1994 statute. See In re Swanson, 2 S.W.3d at 189; In re Adoption of
Copeland, 43 S.W.3d at 488. Accordingly, Father’s argument that the Trial Court used
unconstitutional definitions of “abandonment” and “willful failure to support” fails.

                Moreover, the proof contained in the record on appeal shows that DCS carried its
burden of establishing this ground by clear and convincing evidence. The record on appeal shows
Father willfully failed to make reasonable payments for the benefit of the Child for the 4-month
period preceding the filing date of the Petition to Terminate Parental Rights. The evidence contained
in the record, however, does preponderate against the Trial Court’s finding, in its Final Decree, that
Father “provided no support whatsoever for this Child from her removal into foster care on April 14,
1998, until he began voluntary support payments in the amount of . . . ($212) per month in October
1999, eighteen months later.” The record shows Father testified he voluntarily made support
payments of $225 per month beginning in October 1998, and this testimony is not disputed. The
Trial Court’s determination that Father’s support payments began in October 1999, appears, from
the record, to be based solely upon the statements of DCS’ counsel during trial. Nevertheless, given
the level of Father’s actual income, which far exceeded his disability income of $1,200 per month,
the record shows Father’s voluntary support payments in the amount of $225 per month, based upon
21% of Father’s monthly disability income, were not reasonable. Moreover, the record on appeal
shows Father’s failure to make reasonable support payments was willful, or intentional, in light of
Father’s receipt of regular income. Accordingly, we hold that the record supports the Trial Court’s
determination that clear and convincing evidence showed that Father “abandoned” the Child as that
term is defined by the 1994 statute as a ground to terminate Father’s parental rights.

               We next review the Trial Court’s determination that Father’s parental rights should
be terminated based upon Tenn. Code Ann. § 36-1-113(g)(9)(A)(ii), finding that “[Father] has failed,
without good cause or excuse, to make reasonable and consistent payments for the support of the
[Child] in accordance with the child support guidelines. . . .” In light of our determination that the

                                                -10-
record on appeal shows that clear and convincing evidence established that Father willfully failed
to make reasonable child support payments for the 4-month period preceding the filing of the
Petition to Terminate Parental Rights and due to the fact that Father’s payments were well below the
Child Support Guidelines amount, we find no error in this determination by the Trial Court.

               Next, we consider whether the record supports the Trial Court’s finding that an award
of custody to Father would pose a risk of substantial harm to the physical or psychological welfare
of the Child. On appeal, Father argues that this finding is not supported by clear and convincing
evidence. Father contends the Trial Court based this determination upon the fact that the Child has
been with the same foster parents since April 1998, and that the removal of the Child from the foster
home would result in emotional harm to the Child. Father claims he did all he could do to obtain
custody of the Child by filing his petition for custody.

               In making this determination, the Trial Court, in its Final Decree, found that awarding
legal and physical custody of the Child to Father, thereby removing the Child from the foster parents
and the Child’s siblings, would result in substantial physical or psychological harm to the Child.
The Trial Court stated, in pertinent part, as follows:

                That awarding legal and physical custody of the [Child] to [Father]
                would pose a risk of substantial harm to the physical or psychological
                welfare of the [Child]; more specifically, the Court does not know
                why [Father] delayed taking action to claim this [Child], but the
                Court does know the results of this delay. This [Child] is now in a
                safe, secure and loving home with [the Child’s] family. [The] foster
                parents are prepared to adopt [the Child and the twins]. [The Child
                and the twins] have lived in this home since April 21, 1998, and this
                is the only family [the Child] now knows. [The Child] is bonded to
                [the] foster parents and sees them as [the Child’s]
                emotional/psychological parents. [The Child] is also securely
                attached to [the Child’s younger siblings]. To remove [the Child]
                from [the foster parents and siblings] would be cruel and would cause
                grave trauma to this [Child].

                The record on appeal supports the Trial Court’s determination that an award of
custody to Father would result in emotional harm to the Child. The evidence does not preponderate
against the Trial Court’s finding that after living with the same set of foster parents for two and a half
years, the Child has formed a bond with the foster parents and sees them as parents. Moreover, the
evidence does not preponderate against the Trial Court’s finding that the Child is attached to her
siblings with whom the Child has lived for most of her life. Pam Wolfe’s evaluation of Father,
however, shows Father has no regard for the strong bond the Child has with her siblings and with
the foster parents. The record on appeal shows that, due to the negative emotional consequences that
removal would have on the Child and due to Father’s callous disregard for the relationship the Child
has with the foster parents and siblings, an award of physical and legal custody to Father poses a risk

                                                  -11-
of substantial psychological harm to the Child. Accordingly, we find no error in the Trial Court’s
determination that this ground for termination of Father’s parental rights was established by clear
and convincing evidence.

                Next, we review the Trial Court’s determination that grounds exist for terminating
Father’s parental rights due to Father’s failure to file a petition to establish paternity within 30 days
of his receipt of notice of alleged paternity. See Tenn. Code Ann. § 36-1-113(g)(9)(A)(vi). Father
contends this finding is not supported by clear and convincing evidence and points to Mother’s
statements to Father and others that Father was not the biological father of the Child. The proof in
the record, however, shows that Father did not file a petition to establish paternity until August 1999,
6 months after he received the DNA paternity test results and long after the 30-day time limit
contemplated by Tenn. Code Ann. § 36-1-113(g)(9)(A)(vi).6

                In addition, the Trial Court’s findings in the Final Decree show the Trial Court found
Father’s testimony regarding this issue not to be credible. These findings include the following:
Father’s frequent contact with Mother and the children and financial support thereof amounted to
the behavior of a person who believed he was the children’s biological father; Father began
documenting his financial support of Mother and the children in an effort to build a potential child
support defense; and Father’s failure to take a paternity test until he was court-ordered to do so in
February 1999, and his failure to file a petition to establish paternity until August 1999, “[have]
something to do with a legal obligation to pay child support at guidelines level.” It is apparent from
these findings that the Trial Court did not believe Father’s testimony that he did not receive notice
he was the Child’s biological father until he received the results of the DNA paternity test. The Trial
Court’s determinations regarding credibility are accorded deference by this Court. Davis v. Liberty
Mut. Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001). “[A]ppellate courts will not re-evaluate a trial
judge’s assessment of witness credibility absent clear and convincing evidence to the contrary.”
Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Accordingly, in light of the
deference we afford the Trial Court’s determinations of credibility, we find no error in the Trial
Court’s determination that grounds exist to terminate Father’s parental rights to the Child under
Tenn. Code Ann. § 36-1-113(g)(9)(A)(vi).

                Having affirmed that four statutory grounds for termination of Father’s parental rights
were proven by clear and convincing evidence, we now must determine whether the Trial Court erred
in holding that the termination of Father’s parental rights is in the best interests of the Child. Tenn.



         6
              We note that our Supreme Court recently granted a Rule 11 application for permission to appeal a prior
opinion of this Cou rt wh ich ad dressed this statutory ground for term ination of pa rental rights, Jon es v. G arrett, E2000-
00196-COA-R3-CV, 2001 Tenn. App. LEXIS 840 (Tenn. Ct. App. Nov. 9, 2001 ), appl. perm. app. granted 4/1/02.
As of the date of this opinion, our Suprem e Court had n ot yet decided the matter. The outcom e of the appeal of Jones
v. Ga rrett to the Supreme Court and its potential effect on T enn . Cod e Ann. § 36-1-113(g)(9)(A)(vi), however, will have
no effect on our decision in this matter since we have affirmed the three other grounds to terminate Father’s parental
rights.

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Code Ann. § 36-1-113(i) describes the standard for determining whether termination is in the best
interests of the child in such cases:

              (i)     In determining whether termination of parental or
                      guardianship rights is in the best interest of the child pursuant
                      to this part, 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;

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

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

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

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

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



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                       (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 § 36-5-
                               101.

Tenn. Code Ann. § 36-1-113(i).

                After careful consideration of the facts and circumstances contained in the record on
appeal, we find no error in the Trial Court’s conclusion that termination of Father’s parental rights
is in the Child’s best interests. At best, Father’s conduct regarding his acknowledgment of his
paternity of the Child, who is now nearly 8 years old, can be characterized as purposeful ignorance.
The record shows DCS established, by clear and convincing evidence, that Father and the Child do
not have a meaningful relationship; that the Child would suffer emotionally from a change of
caretakers after being in the care of the same set of foster parents with her siblings for what has now
been 4 years; that Father was neglectful of the Child and the twins while they were living with an
alcoholic Mother and failed to protect the children from the hazards of Mother’s alcoholism; and
that, as discussed, Father failed to pay child support consistent with the Child Support Guidelines
amount. See Tenn. Code Ann. §§ 36-1-113(i)(4), (5), (6) & (9). In addition, as Pam Wolfe testified,
the strained marriage of Father and Wife would not provide the Child with a stable, loving
environment. See Tenn. Code Ann. §36-1-113(i)(1). Accordingly, we find the record contains clear
and convincing evidence that termination of Father’s parental rights would be in the Child’s best
interests.

                Father’s final issue on appeal concerns the Trial Court’s determination that Father and
Wife were not suitable parents to adopt the Child. Father argues that adoption of the Child was not
at issue since no petition for adoption had been filed. We agree and hold that it was not necessary
for the Trial Court to make this determination. This portion of the Final Decree is vacated.

                                             Conclusion

                The portion of the Trial Court’s judgment regarding the fitness of Father and Wife
to adopt the Child at issue is vacated. All remaining portions of the Trial Court’s judgment are
affirmed, and this cause is remanded to the Trial Court for such further proceedings as may be
required, if any, consistent with this Opinion and for collection of the costs below. The costs on
appeal are assessed against the Appellant, C.H.H., and his surety.




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       ___________________________________
       D. MICHAEL SWINEY, JUDGE




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