                                                                                                            09/18/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                     September 5, 2018 Session

                                        IN RE JAYLAN W.1

                 Appeal from the Chancery Court for Williamson County
                     No. 1992A Joseph A. Woodruff, Chancellor
                        ___________________________________

                                No. M2018-00628-COA-R3-PT
                            ___________________________________

A father appeals the termination of his parental rights to his son on the grounds of
abandonment by failure to visit and failure to support. Upon our review, we reverse the
court’s holding of abandonment by failure to visit; in all other respects, the judgment is
affirmed.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and BRANDON O. GIBSON, JJ., joined.

Raquel A. Abel, Franklin, Tennessee, for the appellant, John W.

Kathryn L. Yarbrough, Franklin, Tennessee, for the appellees, Robert and Kelly H.


                                                OPINION

I. FACTUAL AND PROCEDURAL HISTORY

        Mary G. (“Mother”) gave birth to Jaylan in January 2013 while she was
incarcerated. Before Jaylan was born, Mother had met Robert and Kelly H.
(“Petitioners”) through Jonah’s Journey, an organization that facilitates the placement of
the children of incarcerated parents with volunteers, rather than in the State’s foster care
system, until the parent’s release. Mother executed a power of attorney allowing the
Petitioners to take physical custody of Jaylan after his birth. Mother was released from

1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
prison in March 2014 and moved in with the Petitioners at their home in Williamson
County; she lived there for approximately a month, with the Petitioners helping her care
for Jaylan, before she and Jaylan moved out of the Petitioners’ home.

      Jaylan’s father is John W. (“Father”), whose paternity was established in May
2014 when the State sought child support from Father on Mother’s behalf. Father was
ordered to pay $50 per month for child support.

       On April 4, 2015, Mother was involved in an automobile accident with Jaylan in
the car. Mother was charged with Driving Under the Influence and Child Endangerment,
which resulted in a violation of her parole and a return to the correctional system.2
Mother called Kelly H. from the scene of the accident to take Jaylan. The Petitioners
filed a “Petition for Dependency and Neglect” in the Juvenile Court of Williamson
County, Tennessee on April 7. Father also filed a Petition for Dependency and Neglect,
in which he stated “that he is capable and willing to take full custody of his son and that
he can provide for him financially and emotionally.”

        After a preliminary hearing on the petitions, the court placed Jaylan in the
temporary legal and physical custody of the Petitioners. An adjudicatory hearing was
held on the petitions, and an order was entered on August 4, 2015, holding that, due to
Mother’s incarceration and Father’s failure to support the child or establish a meaningful
relationship, Jaylan was dependent and neglected as to both parents.3 The order held that
“due to [Father’s] angry and disrespectful statements to the Court and those present at the
time of the announcement of the Court’s decision in this matter, the Court finds that
visitation with Father is currently not in the child’s best interests.” The dispositional
hearing was held on November 4, and the dispositional order entered on November 20,
2015, permitting Father to have weekly phone calls and up to two hours of unsupervised
visitation with Jaylan on the third Saturday of each month. The order permitted Father to
seek additional visitation provided that he completed an anger management program and
specified that, prior to visitation taking place at his home, a home visit by a Court

2
    Mother later pled guilty to the charge of DUI, and the charge of child endangerment was dismissed.
3
    Hearings in dependent and neglect proceedings are conducted in accordance with Tenn. R. Juv. P. 27(b):

          Hearings in juvenile matters shall be conducted in two separate phases, the adjudicatory
          hearing, and the dispositional hearing, which may be continuous. The court shall first
          conduct an adjudicatory hearing to determine if the allegations of the petition are
          sustained. If the allegations of the petition are not sustained the petition shall be
          dismissed. If the allegations of the petition are sustained, the court may proceed
          immediately or at a later hearing to the dispositional phase of the proceeding. Pending
          disposition, the court may enter such order of protection and assistance as the court
          deems necessary under the circumstances, in the best interest of the child and for the
          protection of the public.

                                                      2
Appointed Special Advocate would need to be conducted and a report submitted to the
court.

        On behalf of Kelly H., the State filed a petition to set child support, and the court
entered an order on January 29, 2016, setting child support at $267 per month each for
Mother and Father, beginning February 1. On September 30, Father was held in
contempt for failing to pay child support and sentenced to 30 days in jail, which the court
stayed “provided Respondent pays as ordered”; a $1,667.55 judgment was entered
against him for the arrearage. On October 28, Father was again held in contempt for
failing to pay child support; a judgment of $1,718.52 was entered against him.

       Petitioners filed the petition to terminate Father’s parental rights in Williamson
County Chancery Court on November 17, 2016, alleging that each parent had abandoned
Jaylan and that termination of their rights was in Jaylan’s best interest. With respect to
Father, the petition alleged that Father had abandoned the child, as defined in Tennessee
Code Annotated section 36-1-102(1)(A)(i) by willfully failing to maintain regular contact
with Jaylan and willfully failing to pay the court-ordered child support in the four months
prior to the filing of the petition. In due course, each parent was appointed an attorney,
and each parent answered the petition.4

       The Chancery Court record contains a handwritten letter from Father file-stamped
December 19, 2016, that states that he is “trying to file a motion to dismiss this motion
for adoption that the H[.]s are trying to file on me” and that he is “asking for a change of
venue.” Father also filed a Petition for Change of Custody on December 19, 2016, in the
Juvenile Court proceeding. In it, Father stated that he “is employed full time, has family
support, and is concerned of the child’s well being” and that he felt “he can provide a safe
and stable environment for Jaylan.” A juvenile court magistrate held a hearing on
4
    In his Answer Father stated the following:

                    13. Father admits that he has been unable to exercise every visitation and phone
          call, as set forth in paragraph 13, but affirmatively asserts that there have been significant
          obstacles to his visitation with the minor child, including but not limited to employment
          schedules that conflicted with the limited court ordered visitation and transportation
          constraints. Father admits that he was unable to seek greater visitation with the minor
          child, before Petitioners filed the petition to terminate his parental rights, because of the
          obstacles he faced in obtaining the home studies and anger management class. However,
          Father affirmatively asserts that he did complete the requirements without assistance
          from any social service agency.

                  14. Father admits in part and denies in part the allegations set forth in paragraph
          14. Father admits that child support was ordered to be paid by both Respondents and that
          he was found in contempt, and affirmatively asserts that he has paid $1,1116.48 in child
          support to Petitioners to date ($694.00 of which has been paid since he was found in
          contempt). Father also affirmatively asserts that he has paid more than $1,885.24 to
          Mother for support of the minor child.
                                                        3
Father’s petition for change of custody on February 7, 2017. Father did not appear at the
hearing, and the magistrate dismissed the petition on the basis of there being no material
change in circumstances and due to the existence of the pending termination proceeding
in Chancery Court.

       A trial on the petition to terminate and for adoption was held on July 28 and
August 14, 2017. The following witnesses testified: Mother; Debra D., Mother’s mother;
Karen W., foster parent of Mother’s second child; Father; Katherine Sullivan, case
manager for Williamson County Child Support Enforcement Services; Kelly H.; and
Keirra F., the mother of three of Father’s children.

        The trial court entered an order on March 12, 2018, terminating both parents’
rights to Jaylan on the ground of abandonment and upon a finding that termination was in
Jaylan’s best interest. Father appeals, raising the following issues for our review:

   1. Whether there is clear and convincing evidence to support the termination of
      parental rights for abandonment for failure to support the child?
   2. Whether there is clear and convincing evidence to support the termination of
      parental rights for abandonment for willful failure to visit the child?
   3. Whether the Trial Court made the necessary findings of fact and conclusions of
      law necessary to support a termination of parental rights.
   4. Whether the termination of parental rights was in the best interest of the child.

II. STANDARD OF REVIEW

        Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s
rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one
ground need be proved, so long as it is proved by clear and convincing evidence. In the
Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

       Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
                                             4
convincing evidence, that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).

III. ANALYSIS

        A. Adequacy of the Trial Court’s Findings and Conclusions

        We first address the third issue Father raises: “Whether the Trial Court made the
necessary findings of fact and conclusions of law necessary to support a termination of
parental rights.” While the issue, as stated, appears to assert that the order failed to make
the specific findings of fact and conclusions of law required by Tennessee Code
Annotated section 36-1-113(k), upon our review, the order fully complies with the
statute.5 From our review of Father’s arguments relative to this issue and the way in
which he has organized his brief, it is clear that he is challenging the sufficiency of the
evidence to support the court’s conclusions. The order contains the necessary findings of
fact and conclusions of law.

        B. Abandonment

       Father’s rights were terminated on the ground of abandonment by willful failure to
visit and willful failure to support. Abandonment is identified as a ground for
termination in Tennessee Code Annotated section 36-1-116(g)(1); pertinent to this
appeal, “abandonment” is defined at section 36-1-102(1)(A) as:



5
  In pertinent part, Tennessee Code Annotated section 36-1-113(k) requires that the court “enter an order
that makes specific findings of fact and conclusions of law within thirty (30) days of the conclusion of the
hearing.” The order terminating both parents’ rights is 24 pages and is clearly of the court’s own
creation; it devotes five pages alone to its findings related to the grounds for termination of Father’s
rights.
                                                     5
        For purposes of terminating the parental or guardian rights of a parent or
        parents or a guardian or guardians of a child to that child in order to make
        that child available for adoption, “abandonment” means 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 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). In this case, because the petition for termination was
filed on November 17, 2016, the pertinent time period was July 17 to November 16.

       Father’s argument relative to this ground causes us to examine the sufficiency of
the evidence of willfulness, a requirement this Court explained in In re Audrey S.:

        . . . Conduct is “willful” if it is the product of free will rather than coercion.
        Thus, 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.

        Failure to visit or support a child is “willful” when a person is aware of his
        or her duty to visit or support, has the capacity to do so, makes no attempt
        to do so, and has no justifiable excuse for not doing so. Failure to visit or to
        support is not excused by another person’s conduct unless the conduct
        actually prevents the person with the obligation 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. . . .

        The willfulness of particular conduct depends upon the actor’s intent. Intent
        is seldom capable of direct proof, and triers-of-fact lack the ability to peer
        into a person’s mind to assess intentions or motivations. Accordingly,
        triers-of-fact must infer intent from the circumstantial evidence, including a
        person’s actions or conduct.

182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations omitted).6

6
  Petitioners bore the burden at trial of establishing by clear and convincing evidence that Father’s failure
to visit and support was willful. Tenn. Code Ann. § 35-1-113(c); In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). As this Court recently noted in In re Gabriel B.:
                                                     6
               1. Abandonment by Failure to Support

       The petitioner has the burden of proving a parent’s income and ability to pay when
establishing willful failure to support. In re Anna B., No. M2016-00694-COA-R3-PT,
2017 WL 436510, at *7 (Tenn. Ct. App. Feb. 1, 2017) (no perm. app. filed). This can be
established through evidence showing the parent was able to support the child. In re
Noah B.B., E2014-01676-COA-R3-PT, 2015 WL 1186018 at *9 (Tenn. Ct. App. Mar.
12, 2015) (no perm. app. filed).

       In this regard, the trial court found as follows:

              Father is 33 years of age. He has obtained a GED certificate. In
       addition to Jaylan, Father has thirteen other children by seven different
       women. At the time of trial, Father had lived in Clarksville, Tennessee for
       eight months. Father is employed full time by Trane Corporation earning an
       hourly wage of $14.14. He lives in a double-wide, three-bedroom mobile
       home for which he pays monthly rent of $575.

               ***

              On January 29, 2016, Father and Mother were each ordered to pay
       child support to Petitioners in the monthly amount of $267 beginning
       February 1, 2016. At no time prior to the filing of the Petition did Father
       make a single payment of child support in the full amount required. On
       October 28, 2016, Father appeared on the child support enforcement docket
       in the Juvenile Court of Williamson County responding to a Petition for
       contempt. Father waived his right to a hearing and admitted three
       violations. Specifically, Father admitted he “had the ability to pay child
       support on the date payments were due and willfully failed to pay as
       ordered” and was sentenced to confinement for ten days for each violation
       to run consecutively for an effective thirty-day sentence. The Juvenile


       The statute defining “abandonment” was amended effective July 1, 2018, and as
       amended, Tenn. Code Ann. § 36-1-102(1)(A) no longer includes the term “willful” in its
       definition of “abandonment.” Instead, Pub. Ch. 875, § 2, codified at Tenn. Code Ann. §
       36-1-102(1)(I), makes the absence of willfulness an affirmative defense to abandonment
       for failure to visit or support. The parent (or guardian) will have to prove by a
       preponderance of the evidence that the failure to visit or support was not willful. Because
       this change is substantive rather than procedural or remedial, however, the amended
       statute will not be applied retroactively to this case. In re D.A.H., 142 S.W.3d 267, 273
       (Tenn. 2004).

No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 (Tenn. Ct. App. July 23, 2018).

                                                   7
       Court stayed Father’s sentence on the condition Father paid child support as
       ordered. A judgment of $1,667.55 was entered against Father for child
       support arrears as of September 30, 2016. Father was ordered to make
       payments of $50 per month toward the judgment beginning October 1,
       2016. On November 1, 2016, an income withholding Order was entered and
       issued to Trane to effectuate a monthly wage assignment of $327
       representing $267 for current support and $60 for past-due support. Similar
       income withholding Orders were issued to Trane for the months of
       December 2016 and January 2017.

              On March 31, 2017, Father was again before the Juvenile Court
       child support docket to answer a Motion to impose his sentence. Father’s
       case was continued to May 12, 2017, and he was expressly ordered to pay
       his child support personally if his employer failed to implement the wage
       assignment. On May 12, 2017, Father failed to appear in Juvenile Court.
       The Court issued an attachment and lifted the stay on Father’s sentence of
       confinement for contempt.

              Based upon the foregoing facts, including especially Father’s
       admissions as documented in court Orders, the Court finds by clear and
       convincing evidence Father’s failure to support Jaylan was willful.
       Petitioners have carried their burden to prove by clear and convincing
       evidence that grounds exist for terminating Father’s parental rights.

(Footnotes omitted.)

        With respect to this ground, Father does not dispute that he was aware of his duty
to support or that he only paid $59.62 in support during the relevant time period; he
argues that the evidence does not support a finding of willful failure to support because
Petitioners failed to introduce evidence of his income and expenses during the relevant
time period. He argues that “internal errors” in the Child Support Office “caused
repeated cancellations of wage assignments” and “were a significant interference with
[his] efforts to support [Jaylan].”

       As noted earlier, Father’s child support for Jaylan had been set at $267 per month
by order entered January 26, 2016. Kelly H. testified that, during the period of July 17 to
November 16, Father made one support payment of $59.62 in October; she also testified
that Father did not provide Jaylan with any clothing, food, or other necessities during this
period.

       Father testified that he has worked at Trane Company in Clarksville since July 28,
2016, and worked 40 hours a week, plus overtime, that his initial pay rate was $9.25 per
hour and that he had recently received an increase to $14.14 per hour.
                                             8
        Much of Father’s testimony as to his expenses was conflicting and contradictory.
As to his living expenses, he testified that he stayed with his aunt for four or five months,
starting “around July 20, 2016” and that he was currently living in a three-bedroom
mobile home, which he had been renting for the past eight months, and that his rent was
$575 per month.7 Petitioners attempted to question him about his support of his other
children, but as was the case with much of Father’s testimony, he did not give specific,
clear answers.8 He testified that he receives no government assistance and that when his
children need something, he “always will go half on it.” When pressed by Petitioners’
counsel for an amount that he expends on his children, Father testified that he “just really
can’t just say . . . [b]ut I send money on a regular basis.” In light of Father’s testimony
that he was gainfully employed during all but the first two weeks of the pertinent four-
month period, that he lived in his aunt’s home during that time, that his paycheck was
enough to cover his children’s expenses, and that his children “all have got clothes and
shoes, and they’re not really wanting for anything,” we conclude that Father had the
ability to pay support.

       Father challenges the trial court’s reliance on the October 2016 order of the child
support magistrate in which Father admitted that he had the ability to pay child support,
arguing that the trial court should not rely “upon a form order, signed by a parent with
less than a high school education and without the benefit of counsel.” We are
unpersuaded by this argument. Other evidence in the record shows that Father was
employed during the pertinent period and, as noted above, that he had the ability to pay
support. Various orders relating to child support contained in the record of the juvenile
court proceedings show that Father was represented by counsel in some of the
proceedings and not in others. There is nothing in the record to show, and Father does
not set forth a cogent argument to support, the contention that Father was unaware of his
responsibility or was disadvantaged by signing the order acknowledging his ability to pay
support.

       Father argues that what he asserts are internal errors of the Child Support Office
substantially interfered with his efforts to pay support. Katherine Sullivan, the child
support enforcement officer, testified the wage garnishments were being correctly set up
but “closed out” due to an error in another county’s child support office.

       Father testified that he checked his payment records online after starting work at
Trane, and saw that “it said child support garnishment[, . . . so I] thought it was coming

7
    He testified that he moved from Jackson, Tennessee, to Clarksville on July 16.
8
  For example, he testified that he was living in Gallatin, working at Nissan when he met Mother but later
testified that they were introduced by a friend in West Tennessee. He testified that he had no child
support orders relative to his other children, but that his “DNA was in the database already . . . because of
his other children” and that he owes $6,500 in child support arrearages. He testified that he started
working at Trane in July 2016, and later testified that he “didn’t come with Trane until December.”
                                                      9
out, but it was coming out for my son I have custody of right now. . .When I seen [sic]
garnishment, I thought it was all of them – both of these cases, but it wasn’t, come to find
out.” Contrary to Father’s testimony, Ms. Sullivan testified as follows:

       Q. Now, according to your phone records, in August of -- August 31st,
       2016, [Father] contacted you; correct?
       A. Yes.
       Q. And you told him that a wage assignment was in place?
       A. Yes, but no monies have come in yet.
       Q. Okay. And in September 23rd, 2016, he called you?
       A. Yes.
       Q. And he -- what was he asking you there?
       A. “Received a phone call. He wanted to know if we received the
       payments. Told him that we are not and that he needs to send them in.”
       ***
       Q. But you also told him there was a wage assignment in place; correct?
       A. [Witness referred to her notes] received a phone call from him and told
       him that we -- he wanted to know if we were receiving payments. I told him
       that we are not and that he needs to send them in.

        Father concedes in his brief that “the Williamson County Child Support Office’s
internal errors did not prevent Father from paying child support as ordered, [but] the
Child Support Office’s inability to recognize and fix the internal errors that caused the
repeated cancellations of wage assignments were a significant interference with Father’s
efforts to support his son.” We are not persuaded that the delay in the wage assignments
becoming effective constituted a substantial interference with Father’s attempts to
support his child or is evidence that his failure to pay support was not willful. Father was
informed in August and September that his child support for Jaylan was not being
withheld from his paycheck and that he needed to pay support; notwithstanding this
knowledge, he failed to pay the support directly.

        The record contains clear and convincing evidence that Father was aware of his
duty to support Jaylan, had the capacity to pay support, and had no justifiable excuse for
his failure to pay support. We affirm the trial court’s holding that termination of Father’s
rights was warranted on this ground.

              2. Abandonment by Failure to Visit

       Father was allowed unsupervised visitation with Jaylan for up to two hours the
third Saturday of each month and telephone visitation each Saturday. The evidence
admitted at trial, including the testimony of Father and Kelly H., as well as a calendar for
the year 2016, established that during the pertinent four-month period, there were three
third Saturdays on which Father could have visited; Father visited on one of those
                                             10
Saturdays for 45 minutes. During the same period of time, Father called Jaylan 10 times.
Thus, Father exercised visitation in 11 of the 17 weeks in the four-month period.

       Failure to visit is “willful” when a person is aware of the duty to visit, has the
capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing
so. The proof establishes that, during the four-month period, Father was aware of his
duty to visit Jaylan, attempted to arrange rides to visit Jaylan, and had ten telephone calls
and an in-person visit with him. In light of the telephonic visitation Father exercised, as
well as the challenges that Father had to visiting Jaylan in person, the visitation he
exercised is more than token.9 Given our standard of review, the evidence does not
clearly and convincingly lead us to conclude that Father willfully failed to visit Jaylan;
accordingly, we reverse this ground of termination of Father’s rights.

          E. Best Interest

        We next review the court’s conclusion that termination of Father’s parental rights
is in the best interest of Jaylan, again using the clear and convincing evidence standard.
In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of factors at
Tennessee Code Annotated section 36-1-113(i)10 for courts to follow in determining a

9
  Tennessee Code Annotated section 36-1-102(1)(E) states that “‘willfully failed to visit’ means the
willful failure, for a period of four (4) consecutive months, to visit or engage in more than token
visitation”; section 36-1-102(1)(C) defines “token visitation” to “mean[] that the visitation, under the
circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of
such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact
with the child.”
10
     Section 36-1-113(i) provides:

                   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
                                                       11
child’s best interest. The list of factors in the statute “is not exhaustive, and the statute
does not require every factor to appear before a court can find that termination is in a
child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-
PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).

        The trial court made findings with respect to statutory factors (1), (3), (4), (5), (6),
(7), (8), and (9):

              Father has undergone a vasectomy procedure since the birth of his
       fourteenth child. This is a laudable change in Father’s circumstances. He
       lives in a double-wide mobile home which he rents. He is employed full
       time. Father testified he intended to pursue restoration of his driving
       privileges; however the record contains no evidence whether those efforts
       have been successful. Also, Father has made no adjustment in his visitation
       with Jaylan. Between the filing of the present Petition and the trial, Father
       only visited Jaylan once, on January 21, 2017.

       ***

              Father does not financially support any of his fourteen children to
       any reasonable degree. Petitioners have voluntarily undertaken to raise
       Father’s son, Jaylan, and to provide for his physical, medical, and,
       emotional needs. Father responded to Petitioners with an inappropriate
       display of hostility. . . . Father also criticized Petitioners for having sought
       medical care for Jaylan, who was diagnosed with attention deficit disorder.
       Father referred to Petitioners as “drugging” Jaylan. Father’s neglect of his
       child support obligations has entangled him in the justice system including
       a conviction for contempt. That has not resulted in any adjustment by
       Father in the performance of his financial support responsibilities.



             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.
                                                    12
       Neither Father nor Mother have maintained regular visitation or
contact with Jaylan. Father’s last contact visit with Jaylan was January 21,
2017. His last telephone visit was February 25, 2017. No meaningful
relationship has been established between Jaylan and Mother. The same
cannot be said of Jaylan’s relationship with Father. The evidence shows
Jaylan knows who Father is and he interacts with him in an age-appropriate
manner during telephone calls. On the other hand, Father’s relationship
with Jaylan cannot favorably compare in any way with the relationship
Jaylan has with Petitioners.

       Jaylan has been in Petitioners’ custody for 80% of his life. He was
only in Mother’s custody for less than twelve months, and Jaylan has never
been in Father’s sole, unsupervised custody. The only stable home
environment Jaylan has ever known is Petitioners’. Mr. and Mrs. H[.]
provide Jaylan with medical care for a diagnosed condition which Father
denies Jaylan has. He even criticizes Petitioners for having Jaylan treated.
Changing Jaylan’s caretakers and physical environment would have a
profound detrimental impact on Jaylan’s emotional, psychological, and
medical condition.

       Both Mother and Father have been previously adjudicated to having
neglected Jaylan. Mother has exposed Jaylan to risk of physical injury.
Otherwise, the evidence does not support a conclusion that parents have
committed any acts of brutality, sexual, psychological, or emotional abuse
of Jaylan.

***

       Father’s physical environment is much better than Mother’s. Father
rents a double-wide mobile home in Clarksville, Tennessee. Father has a
history of frequent relocations associated with job changes. He also has a
history of misdemeanor offenses, and Father does not have a license to
drive a motor vehicle. Father’s ability to care for Jaylan in a safe and stable
manner is adversely impacted by the fact he cannot lawfully drive.

        . . . Father certainly does not present the same host of mental and
emotional issues as Mother. Nevertheless, Father has a history of anger
management issues and does not appear to consider Jaylan’s diagnosed
attention deficit disorder as a legitimate problem.

      Neither Mother nor Father has paid child support consistent with the
Child Support Guidelines promulgated by the Department pursuant to
T.C.A. § 36-5-101.
                                  13
                 Jaylan, who turned five years old on January 15, 2018, has lived all
          but 12 months of his entire life in the home provided to him by Mr. and
          Mrs. H[.]. Petitioners are not strangers to Jaylan. They are the people
          Mother chose to care for Jaylan months before he was born in prison. They
          are the people Mother called and to whom she again entrusted Jaylan when
          she drove intoxicated and wrecked her car with Jaylan riding as a
          passenger. Petitioners have devoted considerable energy and treasure into
          Jaylan’s care and nurture. They have actively facilitated efforts to foster a
          relationship between Jaylan and his maternal half-siblings by taking Jaylan
          to Jackson, Tennessee for contact visits with Nathan, and welcoming
          Nathan to reciprocal visits in their home. Mrs. H[.] testified credibly she
          and her husband believe it is in Jaylan’s best interests to have a relationship
          with his half-siblings. She also credibly professed a willingness to foster a
          relationship between Jaylan and his biological parents so long as the
          surrounding circumstances were safe for Jaylan.

                 Jaylan has not formed a meaningful attachment or relationship with
          Father. . . . Changing Jaylan’s caregivers from Petitioners to either Mother
          or Father would have a detrimental effect on Jaylan’s emotional, medical,
          and psychological condition and wellbeing. Since April 4, 2015, when
          Mother placed Jaylan in Petitioners’ custody at the scene of her car
          accident, Jaylan has been well cared for and appropriately nurtured. His
          medical needs have been identified and treated. He has formed strong
          attachments to Petitioners. His environment has been stable, healthy and
          free from exposure to criminal activity, alcohol abuse, and use of illegal
          drugs.

                 . . . Father completed an anger management class on February 2,
          2017. Father has also adjusted his lifestyle by having a vasectomy. This
          ensures he will not face the prospect of increased support obligations
          beyond his existing duty to support his fourteen children. Nevertheless,
          Father has abandoned Jaylan by willfully failing to visit him and to pay
          child support.

                 From all of the foregoing, the Court concludes that termination of
          Mother’s and Father’s parental rights is clearly and convincingly in
          Jaylan’s best interests.

      Father does not argue that the evidence preponderates against the court’s findings
or suggest that there was evidence overlooked by the court. Upon our review, we
conclude that the factual findings are supported by clear and convincing evidence.11

11
     Father argues that the trial court “suggested that Father had a history of anger management issues” and
                                                     14
       Father asserts that the evidence should have led the court to conclude that
termination was not in Jaylan’s best interest because Father has made an adjustment of
circumstances, maintained regular contact with Jaylan such that a meaningful relationship
was fostered between them, and established a home that is healthy and safe. Father also
argues that the evidence does not support a conclusion that changing Jaylan’s caretakers
and physical environment will have a negative effect on Jaylan.

       We have carefully considered the record in this case, which shows that Jaylan was
placed with the Petitioners when he was three days old; at the time of trial, he was four
and a half years old. He calls the Petitioners “Mom” and “Dad” and is well integrated
into their stable, loving family. Kelly H. testified that she would like to adopt Jaylan and
is financially, emotionally, and physically capable of providing Jaylan with the care and
support that he needs. A home study entered into evidence at trial supports her testimony
on this point.12 While in the care of the Petitioners, Jaylan has been able to attend soccer
camp, swim lessons, and be involved in the neighborhood and church of the Petitioners.
Jaylan attends a preschool program. Kelly H. testified that Jaylan has been diagnosed
with ADHD and “possibly some reactive attachment disorder.” She testified that Jaylan
is currently prescribed medication for the ADHD and that she and Jaylan participate in
parent-child interactive therapy. Kelly H. testified that she is fearful of Jaylan being in


that this was without factual foundation. The court’s holding, taken in context, states that “Father
certainly does not present the same host of mental and emotional issues as Mother. Nevertheless, Father
has a history of anger management issues and does not appear to consider Jaylan’s diagnosed attention
deficit disorder as a legitimate problem.” As noted by Father in his brief, the evidence pertinent to this
holding was an incident at one of the juvenile court hearings in which Father became upset at some
allegations made by Petitioners and rulings by the court, including the placement of Jaylan with
Petitioners; as a result of his outburst, in establishing Father’s visitation, the juvenile court held that “due
to [Father’s] angry and disrespectful statements to the court . . . visitation with Father is currently not in
[Jaylan’s] best interest.” In our analysis we have taken into account the trial court’s statement, which was
made in the context of its discussion of both parents’ mental or emotional status, together with clarity of
the circumstances giving rise to the statement; in so doing, we do not give this statement the weight
Father does and, in our review, do not consider it as evidence of any mental or emotional disability on the
part of Father. We agree that the record before us does not contain clear and convincing evidence that
Father’s mental or emotional status would be detrimental to the child, as contemplated by Tennessee
Code Annotated section 36-1-113(i).
12
  The testimony of Karen Wise, foster parent of another child of Mother’s, also attests to the positive
environment in which Jaylan currently resides:

        Q. Do you believe that the H[.]s are a stable family?
        A. Absolutely.
        Q. And have you been able to observe them with their other children?
        A. Yes.
        Q. Do you believe that the H[.]s are financially capable of taking care of Jaylan?
        A. Yes.

                                                      15
the complete care of Father, as Father “has not been a 24/7 parent, aside from all of the
mothers [of his other children] helping.”

       As we consider Father’s argument, we are mindful that in this phase of our
analysis, “[t]he child’s best interests must be viewed from the child’s, rather than the
parent’s, perspective.” White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
“[W]hen the interests of the parent and the child conflict, courts are to resolve the conflict
in favor of the rights and best interest of the child.” In re Jacobe M.J., 434 S.W.3d 565,
573 (Tenn. Ct. App. 2013) (citing Tenn. Code Ann. § 36-1-101(d)). While there are
factors that weigh in favor of and against a holding that termination of Father’s rights is
in Jaylan’s best interest, the trial court and this court must view the determination from
the child’s perspective and resolve conflicts in the child’s favor. Jaylan is thriving in his
current environment, and the record is clear and convincing that a change in caretakers
would be detrimental to this young child. Despite Father’s arguments to the contrary,
which we have carefully considered, the evidence clearly and convincingly leads us to the
conclusion that termination of Father’s rights is in Jaylan’s best interest.

IV. CONCLUSION

        In light of the foregoing analysis, we reverse the trial court’s determination that
Father willfully abandoned Jaylan by failing to visit him. We affirm the court’s holding
that termination was warranted on the ground of Father’s failure to support and upon its
determination that it is in the best interest of Jaylan that Father’s rights be terminated.




                                                  RICHARD H. DINKINS, JUDGE




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