                                                                                           04/09/2020
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                             December 3, 2019 Session

                                         IN RE ZAYLEE W.

                     Appeal from the Chancery Court for Cannon County
                          No. A17-06     Barry R. Tidwell, Judge


                                   No. M2019-00342-COA-R3-PT


A father appeals the trial court’s decision to terminate his parental rights based on the
grounds of (1) abandonment by willful failure to support, (2) substantial noncompliance
with the permanency plan, and (3) failure to manifest an ability and willingness to
personally assume legal and physical custody or financial responsibility of the child. He
further challenges the trial court’s finding by clear and convincing evidence that
termination of his parental rights was in the best interest of the child. We affirm the trial
court’s termination of the father’s parental rights but vacate the court’s judgment
regarding two of the grounds for termination.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                                in Part, Vacated in Part

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Heather G. Parker, Murfreesboro, Tennessee, for the appellant, Eric W.

Catherine T. Mekis, Murfreesboro, Tennessee, for the appellee, Phyllis D.

Matthew D. Cowan, Woodbury, Tennessee, Guardian Ad Litem.

                                                OPINION

                             FACTUAL AND PROCEDURAL BACKGROUND

      Eric W. (“Father”) and Anndreya1 W. (“Mother”) are the biological parents of
Zaylee W., born in June 2010. At the time of Zaylee’s birth, both parents had substance

1
    Mother’s name also appears in the record spelled as “Andrea.”
abuse issues and their lives were unstable. Consequently, when Zaylee was three weeks
old, Mother left her in the care of the child’s maternal great aunt, Phyllis D.
(“Petitioner”), who has maintained physical custody of Zaylee since that time.

       After Zaylee had resided with her for approximately three and a half years,
Petitioner filed a petition in the Juvenile Court for Cannon County requesting that the
child be declared dependent and neglected. On June 24, 2014, the juvenile court entered
an agreed order executed by both parents that adjudicated the child dependent and
neglected due to the parents’ financial and residential instability. The court ordered that
the child remain in Petitioner’s custody but granted Father visitation with the child every
other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m. The court also ordered
Father to pay child support in the amount of $25 per week and $1,500 towards the child’s
outstanding $3,000 dental bill.

       On July 28, 2017, Petitioner filed a petition to terminate Father’s parental rights
and to adopt the child. The trial court heard the matter on February 26, 2018, and entered
an order on July 12, 2018, terminating Father’s parental rights after determining that
three grounds for termination had been proven by clear and convincing evidence: (1)
abandonment by willful failure to support, (2) substantial noncompliance with the
permanency plan, and (3) failure to manifest an ability and willingness to assume legal
and physical custody or financial responsibility of the child. The trial court further
determined that there was clear and convincing evidence that termination of Father’s
parental rights was in the best interest of the child.2 On August 6, 2018, Father filed a
motion pursuant to Tenn. R. Civ. P. 59.04 requesting that the trial court alter or amend
the judgment based on newly discovered evidence. The trial court denied the motion, and
Father timely appealed.

        On appeal, Father presents the following issues: (1) whether the trial court erred
in finding by clear and convincing evidence that grounds existed to terminate his parental
rights, (2) whether the trial court erred in determining that termination of his parental
rights was in the best interest of the child, and (3) whether the trial court erred in denying
his motion to alter or amend the judgment.

                                        STANDARD OF REVIEW

       Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d
674, 678 (Tenn. 1994)). Although this right is fundamental, it is not absolute and may be

2
 The trial court terminated Mother’s parental rights in a separate proceeding, and she is not a party to this
appeal.
                                                   -2-
terminated in certain situations. In re Angela E., 303 S.W.3d at 250. Our legislature has
identified “‘those situations in which the state’s interest in the welfare of a child justifies
interference with a parent’s constitutional rights by setting forth grounds on which
termination proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568
(Tenn. Ct. App. 2013) (quoting In re W.B., IV., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)).

       Tennessee Code Annotated section 36-1-113 provides the grounds and procedures
for terminating parental rights. First, a petitioner seeking to terminate parental rights
must prove that at least one ground for termination exists. Tenn. Code Ann. § 36-1-
113(c)(1); In re Angela E., 303 S.W.3d at 251. Second, a petitioner must prove that
terminating parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-
113(c)(2); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

        The termination of a parent’s rights is one of the most serious decisions courts
make because “[t]erminating parental rights has the legal effect of reducing the parent to
the role of a complete stranger,” In re W.B., IV, 2005 WL 1021618, at *6, “and of
‘severing forever all legal rights and obligations of the parent or guardian.’” Id. (quoting
Tenn. Code Ann. § 36-1-113(l)(1)). Consequently, a parent has a constitutional right to
fundamentally fair procedures during termination proceedings. In re Hannah C., No.
M2016-02052-COA-R3-PT, 2018 WL 558522, at *2 (Tenn. Ct. App. Jan. 24, 2018)
(citing In re Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016)).

       Tennessee law ensures fundamental fairness in termination proceedings by
requiring a heightened standard of proof—clear and convincing evidence. See Tenn.
Code Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d at 522. Before a parent’s
rights may be terminated, a petitioner must prove both the grounds and the child’s best
interest by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d at 546. “Clear and convincing evidence ‘establishes that the truth
of the facts asserted is highly probable, and eliminates any serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” In re Serenity B.,
No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21,
2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)).

        We review the trial court’s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re
Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we
must then make our 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 at 524.



                                             -3-
                                                 ANALYSIS

I. Grounds for Termination.

          A. Abandonment by failure to support.

       The trial court terminated Father’s rights to Zaylee pursuant to Tenn. Code Ann.
§ 36-1-113(g)(1), which provides that a parent’s rights may be terminated if the parent
abandons his or her child. For the purpose of terminating parental rights, Tenn. Code
Ann. § 36-1-102 provides five alternative definitions of “abandonment.” Under the
relevant statutory definition, “abandonment” means:

          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 or parents or the guardian or guardians of the child who is the
          subject of the petition for termination of parental rights or adoption, that the
          parent or parents or the guardian or guardians either have willfully failed to
          visit or have willfully failed to support or have willfully failed to make
          reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i) (2017).3 Thus, “‘[a]bandonment can be established
by showing that a parent either willfully failed to visit or willfully failed to support the
child during the relevant time period.’” In re Saliace P., No. W2015-01191-COA-R3-
PT, 2016 WL 304543, at *4 (Tenn. Ct. App. Jan. 26, 2016) (quoting In re Christopher
M., No. W2010-01410-COA-R3-PT, 2010 WL 4273822, at *10 (Tenn. Ct. App. Nov. 1,
2010)); see also In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). The
present case only involves a claim of willful failure to support, which is defined as “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) (2017). “Token support” is support that “is
insignificant given the parent’s means” in light of the circumstances of the case. Tenn.
Code Ann. § 36-1-102(1)(B) (2017). In this context, “the word ‘means’ connotes both
income and available resources for the payment of debt.” In re Adoption of Angela E.,
402 S.W.3d 636, 641 (Tenn. 2013).

       Under the law in effect when the termination petition was filed, the element of
willfulness was essential to determining whether abandonment had occurred. In re
Audrey S., 182 S.W.3d at 863.4 In termination proceedings, “‘willfulness’ does not

3
    The statute was amended effective July 1, 2018.
4
    Under the current version of Tenn. Code Ann. § 36-1-102, willfulness is an affirmative defense.
                                                      -4-
require the same standard of culpability as is required by the penal code.” Id. Instead, it
merely requires that a parent’s conduct consist “of acts or failures to act that are
intentional or voluntary rather than accidental or inadvertent.” Id. Abandonment does
not occur, however, when a parent’s “failure to visit or support is due to circumstances
outside his control.” In re Adoption of Angela E., 402 S.W.3d at 640. For instance, a
parent’s failure to visit or to support is excused when another person’s conduct prevents
the parent “from performing his or her duty, or amounts to a significant restraint of or
interference with the parent’s efforts to support or develop a relationship with the child.”
In re Audrey S., 182 S.W.3d at 864 (citations omitted).

       “To prove the ground of abandonment, a petitioner must 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 at 640. The question of whether a parent failed to support his
or her child presents a question of fact, whereas the question of whether a parent’s failure
to support his or her child constitutes abandonment presents a question of law. Id. We
review a trial court’s conclusions of law de novo without a presumption of correctness.
Id.

       In the present case, Petitioner filed the petition to terminate Father’s parental
rights on July 28, 2017. Thus, the relevant four-month period for determining whether
Father abandoned the child under Tenn. Code Ann. § 36-1-102(1)(A)(i) is March 28 to
July 27, 2017. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085,
at *6 (Tenn. Ct. App. Feb. 20, 2014) (holding that the applicable four-month time period
for determining whether a parent has willfully failed to support is “the four months
preceding the day the petition to terminate parental rights is filed but excludes the day the
petition is filed”). The trial court concluded that Father willfully failed to support the
child during the relevant four-month period because he merely provided token support.

       At trial, Father testified that he was employed during the relevant four-month
period and earned approximately $1,750 per month. After paying $700 towards bills,
Father had approximately $1,000 in discretionary income each month. Despite having
the ability to pay some child support, Father admitted that he failed to make a single
support payment or to pay his portion of the child’s $3,000 dental bill during the relevant
four-month period. He testified that he offered to pay child support to Petitioner several
times, but she refused to accept the money and told him that “[s]he just wanted [him] to
take care of Zaylee or stuff she needed for school supplies.” Petitioner, on the other
hand, adamantly denied ever telling Father to buy necessities for the child in lieu of
paying child support. She stated that she has been the sole provider for the child’s
financial needs since birth. Other than gifts for birthdays and Christmas, Petitioner stated
that Father had provided nothing for the child. Father stated that he spent approximately
$25 per week on clothes and other necessities for the child during the relevant time


                                            -5-
period but admitted that he kept those items at his home rather than sending them with
the child to Petitioner’s home.

        The trial court considered Petitioner’s testimony on the support issue to be more
credible than Father’s. Because trial judges “are ‘uniquely positioned to observe the
demeanor and conduct of witnesses,’” appellate courts afford considerable deference to a
trial court’s assessment of witness credibility. Kelly v. Kelly, 445 S.W.3d 685, 692
(Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). An appellate
court will decline to re-evaluate a trial court’s credibility determination unless there is
“‘clear and convincing evidence to the contrary.’” Id. (quoting Wells v. Tenn. Bd. of
Regents, 9 S.W.3d 779, 783 (Tenn. 1999)). A thorough examination of the record reveals
no evidence that clearly and convincingly contradicts the trial court’s credibility
determination, so we leave that determination undisturbed. We conclude, therefore, that
Petitioner proved by clear and convincing evidence that Father willfully failed to support
the child during the relevant four-month period. Thus, the trial court did not err in
concluding that Petitioner established the existence of this ground by clear and
convincing evidence.

      B. Substantial Non-compliance with the Permanency Plan.

       The trial court also terminated Father’s parental rights pursuant to Tenn. Code
Ann. § 36-1-113(g)(2), which provides that a parent’s rights may be terminated where
“[t]here has been substantial noncompliance by the parent . . . with the statement of
responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.” In making
its determination, the trial court considered the June 24, 2014 agreed order as a
permanency plan and concluded that Father substantially failed to comply with its
requirements that he pay $25 per week in child support and $1,500 towards the child’s
outstanding dental bill. Father asserts that the trial court improperly relied upon the
agreed order because the order did not constitute a properly created permanency plan.
For reasons discussed below, we agree with Father’s argument.

       This case involves a private petition to terminate parental rights rather than a
termination petition brought by the Department of Children’s Services (“DCS”).
Generally, substantial noncompliance is a termination ground relied upon by DCS, but a
private party may also rely on it in situations where the child was placed in DCS
protective custody and where DCS developed a proper permanency plan. In re Michael
W., No. E2019-00107-COA-R3-PT, 2020 WL 405473, at *8 (Tenn. Ct. App. Jan. 23,
2020) (citing In re Kaleb N.F., No. M2012-00881-COA-R3-PT, 2013 WL 1087561, at
*21 (Tenn. Ct. App. Mar. 12, 2013), and In re Kah’nyia J., No. M2017-00712-COA-R3-
PT, 2018 WL 2025217, at *8 (Tenn. Ct. App. Apr. 30, 2018)). The child in this case was
never placed in DCS custody, and the record contains no permanency plans created by
DCS. Moreover, DCS was not involved in any way with the creation of the June 24,
2014 agreed order relied on by the trial court. In fact, the record contains no evidence

                                           -6-
that DCS has ever been involved in this case. Additionally, we note that Tenn. Code
Ann. § 37-2-403(a)(2) requires that a permanency plan include the definitions of
“abandonment” provided in Tenn. Code Ann. § 36-1-102 and the criteria and procedures
for terminating a parent’s rights. The June 24, 2018 order contains neither of these.
Because Father had no stated responsibilities under a properly created permanency plan,
we must conclude that Tenn. Code Ann. § 36-1-113(g)(2) may not serve as a ground for
terminating Father’s parental rights. We, therefore, vacate the trial court’s ruling as to
this ground.

       C. Failure to Manifest an Ability and Willingness to Personally Assume Custody.

       The trial court found that Petitioner had proven by clear and convincing evidence
that Father’s parental rights should be terminated pursuant to Tenn. Code Ann. § 36-1-
113(g)(14). A court may terminate a parent’s rights based on this ground if the parent

       [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). This ground requires a party to prove two elements
by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, a
party must prove that the parent failed to manifest “an ability and willingness to
personally assume legal and physical custody or financial responsibility of the
child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). Second, a party must prove that
placing the children in the parent’s “legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child[ren].” Tenn. Code
Ann. § 36-1-113(g)(14).

       There is a split in authority regarding the proof required to establish the first prong
of the analysis. In In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280,
at *12-15 (Tenn. Ct. App. June 20, 2018), a panel of this Court addressed the first prong
by engaging in a complicated use of statutory construction and grammar rules to
essentially conclude that the General Assembly’s use of “and” in the phrase “an ability
and willingness” actually means “or.” Some panels of this Court have followed the
decision in In re Amynn K. and concluded that a party is not required to prove a failure to
manifest both a willingness and an ability to assume responsibility of the child. See In re
Jayda H., No. E2019-00855-COA-R3-PT, 2019 WL 6320503, at *9 (Tenn. Ct. App.
Nov. 25, 2019) (stating that “consistent with the discussion in the In re Amynn K.
decision, we do not view a parent’s demonstration of ‘willingness’ as fatal to this ground
when accompanied by a failure to manifest the requisite ‘ability’”); see also In re Nevaeh
B., No. E2019-01539-COA-R3-PT, 2020 WL 1527001, at *10-12 (Tenn. Ct. App. Mar.

                                            -7-
26, 2020); In re Serenity S., No. E2019-00277-COA-R3-PT, 2020 WL 522439, at *16
(Tenn. Ct. App. Jan. 31, 2020).

        In In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7
(Tenn. Ct. App. May 31, 2018), a panel of this Court interpreted “and” as requiring a
party to prove that a parent failed to manifest both an ability and a willingness. Under
this interpretation, if a party proves only the “ability” criterion or the “willingness”
criterion, the requirements of the statute are not met, and this ground may not serve as a
basis for terminating parental rights. Id. We believe the interpretation found in In re
Ayden S. is more consistent with the intent of the General Assembly.

        Applying the interpretation in In re Ayden S., Petitioner must prove by clear and
convincing evidence that Father failed to manifest both an ability and willingness to
personally assume legal and physical custody of the child or that he failed to manifest an
ability and willingness to personally assume financial responsibility for the child. When
evaluating ability, we focus “on the parent’s lifestyle and circumstances.” Id. “When
evaluating willingness, we look for more than mere words.” Id. Rather, a parent must
have demonstrated willingness “by attempting to overcome the obstacles that prevent
them from assuming custody or financial responsibility for the child.” Id.

        In regard to the second prong, Petitioner must establish by clear and convincing
evidence “that placing the child in Father’s custody would pose a risk of substantial harm
to the physical or psychological welfare of the child.” Id. at *6. This court has described
“substantial risk of harm” as follows:

       The courts have not undertaken to define the circumstances that pose a risk
       of substantial harm to a child. These circumstances are not amenable to
       precise definition because of the variability of human conduct. However,
       the 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).

        In its order terminating Father’s parental rights, the trial court made clear
conclusions of law regarding this ground for termination, but the only specific findings of
fact it made pertained to the second prong of the analysis. Nowhere in its order did the
trial court make any findings of fact regarding Father’s ability and willingness to assume
legal and physical custody child or his ability and willingness to assume financial
responsibility of the child. Tennessee Code Annotated section 36-1-113(k) requires a
trial court to “enter an order which makes specific findings of fact and conclusions of

                                            -8-
law” in all termination of parental rights cases. If a trial court fails to comply with this
requirement, we must remand the case for preparation of the necessary findings of fact
and conclusions of law. State v. McBee, No. M2003-01326-COA-R3-PT, 2004 WL
239759, at *6 (Tenn. Ct. App. Feb. 9, 2004). Because the trial court failed to make
sufficient findings of fact regarding Father’s ability and willingness, we must vacate this
ground for termination. As discussed above, however, at least one other ground exists to
terminate Father’s parental rights. Moreover, as discussed below, we affirm the trial
court’s conclusion that it is in the child’s best interest to terminate Father’s parental
rights. Consequently, a finding that clear and convincing evidence exists to support the
ground of failure to manifest and ability and willingness to assume physical and legal
custody or financial responsibility of the child is unnecessary to uphold the trial court’s
termination of Father’s parental rights. In light of the foregoing, remanding the case for
reconsideration on this ground would merely prolong these proceedings without changing
the end result. We, therefore, decline to remand this issue for reconsideration. See In re
Abbigail C., No. E2015-00964-COA-R3-PT, 2015 WL 6164956, at *14 (Tenn. Ct. App.
Oct. 21, 2015) (declining to remand for reconsideration when the appellate court had
affirmed both the existence of other grounds for termination and the trial court’s best
interest determination).

II. Best Interest.

        Having determined that clear and convincing evidence of at least one statutory
ground exists to terminate Father’s parental rights, we must next consider whether the
trial court properly determined that termination of Father’s parental rights is in the best
interest of the child. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d
at 860. After a court finds that clear and convincing evidence exists to support a ground
for termination, the child’s interests diverge from those of the parent and the court
focuses on the child’s best interests. In re Audrey S., 182 S.W.3d at 877. A court must
view the child’s best interest from the perspective of the child, not that of the parent. Id.
at 878. A finding that at least one ground for termination of parental rights exists does
not necessarily require that a parent’s rights be terminated. Id. at 877. Because some
parental misconduct is redeemable, our termination of parental rights statutes recognize
that “terminating an unfit parent’s parental rights is not always in the child’s best
interests.” Id. The facts a court considers in its best interest analysis must be proven by
“a preponderance of the evidence, not by clear and convincing evidence.” In re Kaliyah
S., 455 S.W.3d 533, 555 (Tenn. 2015). Once a court makes the underlying factual
findings, it should “consider the combined weight of those facts to determine whether
they amount to clear and convincing evidence that termination is in the child’s best
interest.” Id.

       When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court is to consider the following non-exclusive factors:


                                            -9-
       (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, controlled substances or controlled substance
       analogues 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 §
       36-5-101.

Tenn. Code Ann. § 36-1-113(i). A trial court is not required to find that each of the
enumerated factors exists before concluding that it is in the best interest of the child to
terminate a parent’s rights. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Although in some circumstances “the consideration of one factor may very well dictate
the outcome of the analysis,” In re Audrey S., 182 S.W.3d at 878, a court is still obligated


                                           - 10 -
to consider “all the factors and all the proof.” In re Gabriella D., 531 S.W.3d 662, 682
(Tenn. 2017).

      Here, in its order terminating Father’s parental rights, the trial court made detailed
findings of fact regarding the best interest factors. The trial court found that Father had
made such an adjustment of circumstance, conduct, or conditions as to make it safe for
the child to be in his home. See Tenn. Code Ann. § 36-1-113(i)(1). Father testified that,
upon learning that he was the child’s father, he began improving his life by earning a
GED, obtaining a valid driver’s license, gaining both stable employment and housing,
and covering Zaylee under his insurance.
        The trial court also found that Father maintained regular visitation with the child.
See Tenn. Code Ann. § 36-1-113(i)(3). Both Petitioner and Father testified that he
consistently visited with the child every other weekend as permitted by the June 24, 2014
agreed order. Although Father maintained regular visitation with the child, the trial court
found that a meaningful relationship had not been established between him and the child.
See Tenn. Code Ann. § 36-1-113(i)(4). Father admitted that he did not routinely call the
child during the two weeks between visits. He testified that he attempted to call the child
one to three times but “couldn’t get through.” Petitioner, however, testified that she had
never had any missed calls from Father. The trial court found Petitioner more credible on
this issue, and Father presents no evidence clearly and convincingly contradicting this
determination. The proof showed that Father did not participate in the child’s education.
He acknowledged that he had not attended a single parent/teacher conference and did not,
in fact, know who the child’s teacher was. In seven years, he only attended two or three
of the school and church activities in which the child participated. He neither took the
child to any of her medical appointments nor did he ever inquire as to her health. As the
trial court noted, Father was more like a “fun uncle” than a parent who provided care for
the child.

         Next, the trial court found that a change of caretakers and physical environment
was likely to have a negative effect on the child’s emotional, psychological, and medical
condition. See Tenn. Code Ann. § 36-1-113(i)(5). Petitioner testified that the child had
resided with her since she was three weeks old. She was the child’s primary caregiver
and actively participated in the child’s education, extracurricular activities, and church
activities. Petitioner stated that the child was making good grades in school and had
several friends.

       The trial court also found that Father had shown neglect toward the child. See
Tenn. Code Ann. § 36-1-113(i)(6). Father testified that he voluntarily agreed to the June
24, 2014 order adjudicating the child dependent and neglected by both parents and that he
relinquished his superior parental rights.

     The trial court found that Father’s home was not safe for the child. See Tenn.
Code Ann. § 36-1-113(i)(7). The court based this finding on Petitioner’s testimony that

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Father offered alcohol to Zaylee and another child and that he once held a knife to a
girlfriend’s throat while in the child’s presence. Father denied both incidents. The court
acknowledged that no tangible proof was offered regarding the veracity of these
accusations but still considered them pertinent because Petitioner was a credible witness.
On appeal, Father presents no evidence contradicting the trial court’s determination.

       Finally, the trial court found that Father failed to pay child support consistent with
the child support guidelines. See Tenn. Code Ann. § 36-1-113(i)(9). The proof showed
that Father failed to make a single child support payment and did not pay his half of the
child’s outstanding dental bill.
       In light of the foregoing, we conclude that there is clear and convincing evidence
to establish that termination of Father’s parental rights is in the best interest of the child.

III. Motion to Alter or Amend the Judgment.

        Father next argues that the trial court erred in denying his motion to alter or amend
the judgment pursuant to Tenn. R. Civ. P. 59.04. The purpose of a Rule 59.04 motion is
to allow trial courts “an opportunity to correct errors before a judgment becomes final.”
Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998). A court may grant a
Rule 59.04 motion “(1) when the controlling law changes before a judgment becomes
final, (2) when previously unavailable evidence becomes available, or (3) when, for sui
generis reasons, a judgment should be amended to correct a clear error of law or to
prevent injustice.” Id. A court should not grant a Rule 59.04 motion, however, if it
merely seeks “to relitigate matters that have already been adjudicated.” Id. We review a
trial court’s ruling on a Rule 59.04 motion under an abuse of discretion standard.
Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). An abuse of discretion
occurs when a trial court “‘applie[s] an incorrect legal standard, or reache[s] a decision
which is against logic or reasoning that cause[s] an injustice to the party complaining.’”
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999)). Under the abuse of discretion standard, we may not substitute
our judgment for that of the trial court. Id. An appellate court will not reverse a trial
court’s discretionary decision “‘so long as reasonable minds can disagree as to propriety
of the decision made.’” Id. (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000)).

       In his Rule 59.04 motion, Father requested that the trial court alter or amend the
judgment based on newly discovered evidence. Specifically, he sought to admit receipts
he claimed proved that he spent approximately $25 per week on necessities for the child.
He also sought to admit evidence of returned mail he claimed contained money orders he
sent to Petitioner but she rejected. The trial court denied Father’s motion based on a
finding that this evidence was not newly discovered. Newly discovered evidence is
evidence that “was not known to the moving party prior to or during trial and . . . could
not have been known to him through exercise of reasonable diligence.” Seay v. City of
Knoxville, 654 S.W.2d 397, 399 (Tenn. Ct. App. 1983). Father stated in his appellate

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brief that he gave this “new” evidence to his attorney prior to trial; this shows that Father
clearly knew of the evidence prior to and during trial. Thus, the evidence was not newly
discovered. We conclude, therefore, that the trial court did not abuse its discretion in
denying Father’s Rule 59.04 motion.5

                                              CONCLUSION

        We affirm the trial court’s termination of Father’s parental rights based on the
ground of abandonment by failure to support the child. We vacate the trial court’s
decision terminating Father’s parental rights based on the grounds of substantial
noncompliance with the permanency plan and failure to manifest an ability and
willingness to assume financial responsibility. We affirm the trial court’s conclusion that
it is in the best interest of the child to terminate Father’s parental rights to the child.
Costs of appeal are assessed against the appellant, Eric W., for which execution may
issue if necessary.


                                                            ________________________________
                                                            ANDY D. BENNETT, JUDGE




5
  Father asserts that he should receive a new trial because his attorney’s failure to submit into evidence the
receipts and returned mail rendered the termination hearing fundamentally unfair. Father’s argument is
essentially a claim of ineffective assistance of counsel. The Tennessee Supreme Court has held that a
parent is unable to collaterally attack an order terminating parental rights based on ineffective assistance
of counsel. In re Carrington H., 483 S.W.3d at 535. This argument is without merit.
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