               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             November 18, 2015 Session

                              IN RE: KYAH H., ET AL.

                    Appeal from the Juvenile Court for Knox County
                           No. 71452   Tim Irwin, Judge


            No. E2015-00806-COA-R3-PT-FILED-DECEMBER 23, 2015


Marshall H. (“Father”) appeals the judgment of the Juvenile Court for Knox County (“the
Trial Court”) terminating his parental rights to the minor children, Kyah H., Marshall C.,
and Jhazaria T. (collectively “the Children”), on the grounds of abandonment by wanton
disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), and
severe child abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4). We find and hold that
the evidence does not preponderate against the Trial Court‟s findings made by clear and
convincing evidence that grounds for termination were proven and that termination was
in the best interest of the Children, and we affirm.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J. and THOMAS R. FRIERSON, II, J., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Marshall H.

Herbert H. Slatery, III, Attorney General and Reporter; and Jason I. Coleman, Assistant
Attorney General for the appellee, State of Tennessee Department of Children‟s Services.


                                       OPINION

                                      Background

      The Department of Children‟s Services (“DCS”) filed its petition seeking to
terminate Father‟s parental rights to the Children in November of 2014. Kyah and
Marshall have the same biological mother. Jhazaria has a different biological mother.
Neither of the biological mothers is involved in this suit, which was filed solely to
terminate Father‟s parental rights to Kyah, Marshall, and Jhazaria. The case proceeded to
trial in April of 2015.

       Kendrise Colebrooke, the DCS family services worker assigned to the Children‟s
case, testified at trial. Ms. Colebrooke testified that she began working on the case in
February of 2014 and continued to work on the case to the time of trial. The Children
have been in State custody during this entire time period.

        Ms. Colebrooke testified about a custody incident, which occurred in 2005, with
regard to Kyah and Marshall. Ms. Colebrooke stated that a non-relative petitioned for
custody of these two children and that a petition for emergency removal also was filed at
that time by a guardian ad litem. Ms. Colebrooke explained that the parents fled to New
Jersey with the two children, and the case was closed and dismissed due to an inability to
locate the children.

       In 2006, New Jersey requested that Tennessee place Marshall in the custody of
Tennessee. At that time, Marshall was in a hospital in Pennsylvania with a right humerus
fracture and water intoxication. Kyah was living in Tennessee at that time. Ms.
Colebrooke testified that the request made by New Jersey was denied by the State of
Tennessee, but the placement occurred anyway.

       Ms. Colebrooke testified that the next custody incident involved Jhazaria and Roy,
a half-brother of Jhazaria‟s by a different father. DCS alleged that these children were
dependent and neglected due to their mother‟s drug use and incarceration. Father
attended the preliminary hearing in that case in 2010. DCS requested a trial home
placement, and Father was granted full custody of Jhazaria and Roy. At that time, Father
also had Kyah, Marshall, and three other children living with him, for a total of seven
children living in Father‟s home. The three other children are the children of Father‟s
wife, Kacey H.1

       Allegations of severe physical abuse involving a child in Father‟s home were
brought to the attention of DCS in 2013. A restraining order was put into place to protect
the children in Father‟s home, and others, from Father who was the abuser. An order was
entered on March 18, 2014 finding two of the children in Father‟s home to have been
severely abused by Father. Father did not appeal this order.

     The Children were taken into State custody when Kacey H., Father‟s wife, with
whom the Children had been living, brought them to DCS because her home was being


1
 Kacey H.‟s first name is spelled several different ways within the record on appeal including as „Kacey,‟
„Kasey,‟ „Kacie,‟ and „Casey.‟ We are unable to determine from the record now before us the correct
spelling.

                                                    2
foreclosed upon, and she was unable to care for Father‟s children2. Ms. Colebrooke
testified that Father‟s incarceration caused Kacey H. financial instability because the
house was in Father‟s name.

       At the time of trial, Kyah and Marshall were in a relative placement with Father‟s
aunt in New Jersey. They have been in this placement since January of 2015. Ms.
Colebrooke testified that Father‟s aunt is in a position to adopt Kyah and Marshall should
they become available for adoption. Father has had no contact with Kyah or Marshall
since the entry of the restraining order in 2013.

       At the time of trial, Jhazaria was living in a foster home in Tennessee along with
her brother Roy. Ms. Colebrooke testified that the foster home is a possible adoptive
home for Jhazaria should she become available for adoption. She also testified that
Jhazaria‟s mother was working toward possible reunification with her children. Ms.
Colebrooke stated: “So we have a plan A and B for those two children.”

       Ms. Colebrooke testified that the restraining order provided a list of things for
Father to do in order to regain contact with the Children including have a mental health
assessment, attend anger management treatment, attend domestic violence classes, obtain
stable and appropriate housing, and pass random drug screens. Ms. Colebrooke testified
that Father never has provided DCS with any documentation or proof that he has taken
any of these steps.

       When asked if the Children have asked about Father, Ms. Colebrooke testified that
they only asked when they first came into custody in February of 2014. She testified that
they expressed concern at that time for the safety of their mother from Father. The
Children told Ms. Colebrooke about the incident where Father assaulted their mother.
Ms. Colebrooke explained that the Children were referring to Kacey H., with whom the
Children were living at the time of the incident.

        Ms. Colebrooke testified that Father was incarcerated at the time of trial serving
two three-year concurrent sentences for aggravated burglary and aggravated assault
resulting from his breaking into Kacey H.‟s home and assaulting her with a baseball bat.
Ms. Colebrooke testified that she believes that it is in the Children‟s best interest for
Father‟s parental rights to be terminated. Ms. Colebrooke was asked about her last
contact with Father, and she stated that she received a letter from Father in December of
2014 in which Father stated that he was enrolling in anger management classes and
alcohol and drug treatment and that he had completed domestic violence classes. Ms.
Colebrooke stated that she attempted to make contact with Father through his case
manager, but had been unable to do so.

2
 In addition to the Children, Kacey H. also brought Jhazaria‟s brother Roy to DCS. Although Roy was in
Father‟s custody, he is neither Father‟s nor Kacey H.‟s child.

                                                  3
       Jhazaria‟s foster father (“Foster Dad”) testified at trial. Foster Dad was asked
about his intent regarding a placement for Jhazaria, and he stated:

       Originally our intent was to give her a safe place while the best interest of
       her was determined. That went on month to month and she‟s been with us
       now five months. And at this point we‟re uncertain of her future, so we
       decided to offer our home as another offer to adopt her.

        Foster Dad testified that there are five people living in his home, him and his wife,
Jhazaria and her brother Roy, and the foster parent‟s older son who is almost nineteen
years old and living with them until he leaves for the military in August of 2015.
Jhazaria and her brother are not the first foster children to live with Foster Dad and his
wife. Foster Dad explained that he and his wife have been foster parents for
approximately five years, and that they adopted the nineteen year old he spoke about
earlier and another boy when the boys were in their late teens. Foster Dad testified that
he and his wife adopted the two boys about three years prior to trial. Since adopting the
two boys, Foster Dad and his wife have had one other placement, but those children were
moved from their home to be closer to medical care because one was medically fragile.

      Foster Dad testified that Jhazaria, who is in the sixth grade, is doing well in his
home. He stated:

       Overall she‟s doing well. She‟s a very sweet girl, she doesn‟t have a mean
       bone in her body. She‟s eager to please, she want [sic] to do things that
       make us happy. Everything is going along well. She helps in the house.
       She has three A‟s and a C right now, we‟re helping her with math.

        Foster Dad admitted that just days before trial an incident occurred which caused
him and his wife concern about Jhazaria remaining in the placement with them. They
notified DCS and by the time of trial the situation had been resolved. Prior to trial Foster
Dad and his wife revoked the thirty day removal notice they gave to DCS when the
incident arose. Ashley Watson, one of Jhazaria‟s foster care counselors, testified about
this incident and explained:

       Jhazaria had struggled with some lying recently, whether that would be
       about, you know, drawing on things, her behavior in school, things of that
       nature. And her lying has made the Foster Parents question whether or not
       she wanted to be in their home. And it‟s not a change of their heart
       wanting her in their home but they were concerned that she no longer
       wanted to be living there and she was trying to sabotage the placement and
       she was trying to be removed from their home.


                                             4
Ms. Watson was asked what was done to resolve the situation, and she stated that she, her
supervisor, and Jhazaria‟s current foster care counselor talked to the family and then the
current foster care counselor went to the home for a family session. Ms. Watson felt that
the matter had been resolved.

        Foster Dad testified that Jhazaria and her brother Roy get along very well. He
stated that the two have little contact with his nineteen year old son simply because they
have little in common and the nineteen year old works a lot and is rarely home. Since
Jhazaria came to live in the foster home, she has had two visits with Kyah and Marshall,
which occurred before Kyah and Marshall were relocated to New Jersey. Since the
relocation to New Jersey, the Children have spoken on the phone. Ashley Watson
testified that they have been in contact with Kyah‟s and Marshall‟s foster home and that
the foster parents plan to bring the Children halfway during the summer to have some
face-to-face visits.

        After trial, the Trial Court entered its detailed Termination of Parental Rights and
Final Decree of Guardianship order terminating Father‟s parental rights to the Children
after finding and holding, inter alia:

       [T]he Court finds the following by clear and convincing evidence.

                                            ***

          1. The Department of Children‟s Services (DCS) first became involved with
       this extended family in 2005 when a non-relative petitioned the Juvenile Court
       for custody of [Kyah] and [Marshall]. The relevant pleadings related to this
       custody episode are contained in Exhibit #3. The relevant TFACTS (the
       official database for the entry of case recordings by DCS workers) recordings are
       contained in Exhibit #4. Gail Howell, the Guardian ad litem appointed to
       represent the best interests of the children in the 2005 incident, after her
       investigation of the circumstances of the children and of the petitioner, filed a
       Petition for Emergency Removal of Children. Based on the allegations in the
       petition the Court entered a probable cause finding regarding those children
       and ordered that they be placed in the temporary custody of the State of
       Tennessee, Department of Children‟s Services, effective July 19, 2005.
       The Department, in attempting to obtain the physical custody of those
       children, ascertained that the mother and father had left the State of
       Tennessee with the children before the entry of the Order placing the
       children in the custody of the Department, and were believed to be residing
       in the State of New Jersey. Based on the inability of the Department to
       successfully locate the children, the matter was dismissed.

              In July, 2006 the Department received a request originating in the

                                              5
State of Pennsylvania to do a courtesy interview with [Father] regarding the
circumstances of the child, [Marshall]. The child was taken to Geisinger
Medical Center in Pennsylvania with diagnoses of water intoxication and a
broken right humerus. The father, [Father], who was then living in
Knoxville, TN, denied knowledge of the circumstances surrounding
[Marshall‟s] injuries. [Father] was then living with [Kacey H.] and her
three children, [J‟Vonta], [J‟Kwan] and [J‟Andre].           The TFACTS
recordings for this incident were entered into evidence as Exhibit #5.

      In December, 2007, New Jersey sent Tennessee a request pursuant to
the Interstate Compact for the Placement of Children (ICPC) asking
Tennessee to make a determination of the appropriateness of the home of
[Father] for custody of [Kyah] and [Marshall]. The Tennessee Department
of Children‟s Services investigated the circumstances of [Father] and
denied the request from New Jersey to approve [Father‟s] home for the
placement of [Kyah] and [Marshall]. See Exhibit #5.

      In December, 2008, New Jersey made the placement of [Kyah] and
[Marshall], with [Father] despite the Department‟s denial of the ICPC
request. At that time five children ([J‟Vonta, J‟Kwan and J‟Andre], [Kyah]
and [Marshall]) were living in the home with [Father] and [Kacey H.]. See
Exhibit #5.

       Pursuant to Exhibit #6, on May 7, 2010, the Department of
Children‟s Services filed a Petition for Temporary Legal Custody and Ex
Parte Order asking for the Court to place [Jhazaria] and [Roy] in the
custody of the State of Tennessee, Department of Children‟s Services. The
mother, [Alicia G.], appeared on May 17, 2010, and waived and reserved
her right to a preliminary hearing within three days. [Father] also appeared
for the hearing and asserted that he was the biological father of Jhazaria.
The Court advised that, upon DNA evidence that he was the father, he may
return and request appointed counsel in the matter. On July 26, 2010, based
on DNA evidence that [Father] was the biological father of Jhazaria, and
based on a finding that the children were dependent and neglected due to
the mother‟s substance abuse and homelessness and the incarceration of
[Roy W.‟s father], the children, [Jhazaria] and [Roy], were placed in the
home of [Father] and [Kacey H.], (misnamed as Casey [H.]), on a trial
home placement.

      On October 25, 2010, the trial home placement ended successfully,
and the children [Jhazaria] and [Roy], were placed in the full legal and
physical custody of [Father] and [Kacey H.]. At that time seven children,
[J‟Vonta, J‟Kwan and J‟Andre], [Kyah], [Marshall], [Jhazaria] and [Roy

                                     6
W.], resided in the home with [Father] and his wife [Kacey H.].

       On September 27, 2013, the Department of Children‟s Services filed
petitions regarding all seven children. Exhibit #7 is a pleading summary
related to [Kyah] and [Marshall], and Exhibit #8 is a pleading summary
related to [Jhazaria] and [Roy]. The Petition for Restraining Order filed in
these cases alleges physical abuse by [Father] against [J‟Andre] and [J‟Kwan].

       On February 25, 2014, by the Order Finding [J‟Andre] and [J‟Kwan]
Severely Abused by [Father] Pursuant To T.C.A. §37-l-102(b)(23)(A) [sic], all
seven children were determined to be dependent and neglected in the home of
[Father] and [Kacey H.], including the three children that are the subject of the
termination hearing, [Kyah], [Marshall], and [Jhazaria]. In that same Order,
two other children [J‟Andre] and [J‟Kwan] living in the home with the
children who are the subject of this termination, were found to be severely
abused by [Father]. [J‟Andre] and [J‟Kwan] are the biological children of
[Kacey H.] and [Father] is their step-father. The Order Finding [J‟Andre] and
[J‟Kwan] Severely Abused by [Father] Pursuant To T.C.A. §37-1-
102(b)(23)(A) [sic] appears in both Exhibit #7 and Exhibit #8.

       That Order was not appealed and is final. In the Order, the trial Court
[sic] made specific findings of fact as follows:

       On September 22, 2013, J‟Kwan was asked to go upstairs and clean
his room. [Father] went upstairs to check J‟Kwan‟s progress and became
upset when J‟Kwan was not cleaning his room. [Father] began pushing
J‟Kwan around the room. J‟Kwan told [Father] to stop pushing him and to
get away from him. [Father] punched J‟Kwan in the ribs and pushed J‟Kwan
against the door. [Father] put his hands around J‟Kwan‟s neck. Kyah, upon
witnessing the abuse by [Father], went downstairs to get [Kacey H.]. [Kacey
H.] came upstairs with J‟Andre and J‟Vonta following her. Upon entering
J‟Kwan‟s room, J‟Kwan was observed on the floor on his back, crying, with
[Father] standing over him. [Kacey H.] asked them what was going on and
separated [Father] from J‟Kwan.

        J‟Andre came into the room and began telling [Father] that he was
tired of [Father] picking on J‟Kwan and that J‟Kwan had not done anything.
[Father] jumped over [Kacey H.] as J‟Andre was heading down the hall in an
attempt to get to J‟Andre. [Father] grabbed J‟Andre in a chokehold in an
attempt to strangle him, causing them both to fall to the ground. J‟Andre had
his chin pushed down against his neck and his arms at his neck, underneath
[Father‟s] arms in an attempt to keep [Father‟s] chokehold from getting
tighter around his neck. However, J‟Andre was not strong enough to break
                                       7
out of [Father‟s] chokehold. [Kacey H.] pushed [Kyah] into her room to get
her out of the way and [J‟Vonta] went into another bedroom with Marshall
and Roy and shut the door. [Kacey H.] interceded and was able to separate
J‟Andre and [Father].

       [Father] went downstairs. [Father] then became physical with [Kacey
H.] and J‟Andre, upon witnessing the altercation between [Father] and [Kacey
H.], called the police. [Father] was walking through the house, baiting the
children by saying that he wished that they would “try me.” The police came
and arrested [Father].

       Both J‟Andre and J‟Kwan had marks around their neck following the
incident. J‟Andre also had several red marks/scratches on his back.

       All of the children were present at the time of the abuse and witnessed
various acts of abuse by [Father] to J‟Kwan and J‟Andre. Several of the
children were crying and very upset at what they observed, especially Jhazaria
and Marshall.

       [Father] had several previous incidents of inappropriate physical
discipline with the children. A few weeks prior to the incident between
[Father], J‟Andre, and J‟Kwan, [Father] hit J‟Kwan with a pillow when
J‟Kwan was crying. [Father] then told J‟Kwan to “shut up” and threw him to
the ground and put his knees on J‟Kwan‟s chest. [Father] had also
previously pushed [J‟Vonta] on the bed and sat on top of him.

        On January 2, 2014, [Father] broke a window and entered the home
where the children were present with their cousin. [Kacey H.] became
alarmed when she attempted to call from work to check on the children and
no one answered the phone. Upon her returning home, she found [Father]
sitting on the couch. She immediately called the police. A verbal
altercation ensued and [Father] picked up a baseball bat telling [Kacey H.]
that he was “going to jail anyway” and began chasing [Kacey H.], hitting her
with the baseball bat. The cousin intervened and was able to stop [Father]
from hitting [Kacey H.]. [Father] left the residence and began hitting [Kacey
H.‟s] car and the front door of the residence with the baseball bat. [Father]
left prior to the police arriving but returned after the police left to retrieve
items that he had left at the residence. Some of the children including
J‟Andre and [J‟Vonta] witnessed the physical altercation between [Father] and
[Kacey H.].

      After the entry of the Order Finding [J‟Andre] and [J‟Kwan]

                                       8
Severely Abused by [Father] Pursuant To T.C.A. §37-l-102(b)(23)(A) [sic],
[Kacey H.] notified the Court that she had lost her housing and would no
longer be able to provide for the appropriate care and supervision of the
children, [Kyah], [Marshall], and [Jhazaria].

       The temporary custody of [Kyah], [Marshall], and [Jhazaria] was
awarded to the State of Tennessee, Department of Children‟s Services, on
February 27, 2014, by Ex-Parte Bench Order - Custody to DCS
Dependency & Neglect, and by the Agreed Order of May 7, 2014, at the
final hearing; they have been in foster care continuously since that date.
That Order is contained in both Exhibit #7 and Exhibit #8.

       2. The termination petition with regard to the four [sic] children was
filed against [Father] on November 21, 2014. He was served with a
summons and copy of the petition by personal service on December 8,
2014.

                                     III

       1. The family services worker (FSW), Kendrise Colebrooke, testified
that the Orders entered in this case provide for the father to have no contact
with any of these four [sic] children. That information appears in the Ex
Parte Restraining Order entered by the Court on September 27, 2013, the
Order of Continuance arising from the hearing on October 1, 2013, and the
Order Finding [J‟Andre] and [J‟Kwan] Severely Abused by [Father]
Pursuant To T.C.A. §37-1-102(b)(23)(A) [sic] arising from the hearing on
February 25, 2014. The latter two Orders provide direction to the father on
the steps to take to modify those no-contact provisions. Ms. Colebrooke
also testified that the permanency plan which was developed also provided
[Father] direction on how to modify the no-contact provisions of the
Orders. The father has never provided any proof that he completed any of
the responsibilities identified. Therefore, the no-contact provisions remain
in place.

       2. The father pled guilty to the amended charge of misdemeanor
assault, which was originally charged as a felony aggravated assault
(strangulation) regarding the domestic violence incident which occurred on
September 22, 2013, and which was the subject of the Department‟s
September 27, 2013, Petition for Restraining Order, and which was the
subject of the severe abuse Order entered from the hearing on February 25,
2014. See collective Exhibit #9.

       Between the time of the filing of the Department‟s Petition for

                                      9
Restraining Order on all seven children on September 27, 2013, and the
hearing on February 25, 2014, the father, on January 2, 2014, entered the
mother‟s home, after which the mother returned home. Before the father
left, he picked up a baseball bat and stated that he knew he would be
arrested and he “should make it worth it.” He struck the mother twice in
the right side of the face and on the right leg with the baseball bat. The
children were present in the home when the incident occurred. The father
pled guilty, on April 17, 2014, to the Class C Felony charge of Aggravated
Assault and Aggravated Burglary, which arose from that incident. The
father was sentenced to incarceration and was incarcerated following the
guilty plea and remains incarcerated, having been transported to the
termination hearing from prison. See Exhibit #9.

      3.      Upon these facts, the Court finds, pursuant to T.C.A. 36-l-
113(g)(4), that [Father] has been found to have committed severe child
abuse against [J‟Andre] and [J‟Kwan], and that the children, [Kyah],
[Marshall], and [Jhazaria], resided in the home with [Father] and [J‟Andre]
and [J‟Kwan] at the time of the incident resulting in the severe abuse
finding. Thus the Department has met its burden of proof regarding the
severe abuse ground alleged.

       4. The Court additionally finds, pursuant to T.C.A. 36-l-
102(l)(A)(iv), that the father was incarcerated at the time of the filing of the
Department‟s termination petition on November 21, 2014, and that he had
been incarcerated since at least April 17, 2014. Prior to his incarceration,
[Father] engaged in conduct that exhibits wanton disregard for the welfare
of the children. He attacked the children [J‟Kwan] and [J‟Andre] and was
found to have committed severe abuse as a result of that attack. Before the
February 25, 2014, hearing on the issue of severe abuse, the father entered
the mother‟s apartment with the children in the home and attacked the
mother with a baseball bat. He pled guilty to both offenses. Both incidents
amount to wanton disregard for the welfare of the children. Thus the
Department has met its burden of proof regarding the wanton disregard
grounds alleged.

      5. The Court heard testimony from the FSW that the foster home for
[Kyah] and [Marshall] is a placement in which the children have flourished
and in which the children can have a forever family should the Court
terminate parental rights to the children.

      6. The Court heard testimony from a Youth Villages representative
and the foster family for Jhazaria that, although that placement is only of
four months duration, and there has been one incident causing a re-

                                      10
examination of the placement, the foster home is an appropriate placement
willing to also be a forever home for Jhazaria, should she become available
for adoption.

      7. The Court received current photographs of all three children as
Exhibit #10.

                                     IV

       1. [Father] has not made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the children‟s best interest
to be in his home. Although mentioned in closing by [Father‟s] counsel
that [Father] participated in programs available in prison related to
alleviating the conditions that led to custody, such was not in the testimony
presented to the Court. [Father] has not visited with his children. He has
presented no proof to the Department that he had accomplished the tasks set
forth for him to have the no-contact provisions of prior orders modified to
allow contact.

       2. A change of caretakers and physical environment from their
respective foster home is likely to have a detrimental effect on the
children‟s emotional and psychological condition. As the father remains
incarcerated, he would be unable to provide any home for the children until
he is released from prison.

       3. [Father] has committed severe child abuse toward two children of
his spouse while he, the spouse, and seven children, including the victims,
lived in the same home. He has yet to provide a healthy and safe physical
environment for the children as he remains incarcerated.

       4. The Department of Children‟s Services has made reasonable
efforts toward achieving permanency for these children.

       5. The children are entitled to a safe, secure and loving home. They
need to know where they will lay their heads at night, to know and
understand that their parents will protect them and provide them with
consistent care and supervision. They now have the chance to achieve
permanency through adoption in such a home, with committed, loving
foster parents. The time in a child‟s life is short. It would be cruel to move
these children or to extend the limbo of foster care.

       6. It is, therefore, in the best interest of [Kyah], [Marshall], and

                                     11
        [Jhazaria], and the public that all of [Father‟s] parental rights to these
        children be terminated and the complete custody, control, and partial
        guardianship of the children be awarded to the State of Tennessee,
        Department of Children‟s Services, with the right to place them for
        adoption and to consent to such adoption in loco parentis.

Father appeals the termination of his parental rights.

                                              Discussion

       Although not stated exactly as such, Father raises three issues on appeal: 1)
whether the Trial Court erred in finding by clear and convincing evidence that grounds
existed to terminate Father‟s parental rights to the Children for abandonment by wanton
disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv); 2)
whether the Trial Court erred in finding by clear and convincing evidence that grounds
existed to terminate Father‟s parental rights to the Children for severe abuse pursuant to
Tenn. Code Ann. § 36-1-113(g)(4); and, 3) whether the Trial Court erred in finding by
clear and convincing evidence that it was in the Children‟s best interest for Father‟s
parental rights to be terminated.

      Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

                This Court must review findings of fact made by the trial court de
        novo upon the record “accompanied by a presumption of the correctness of
        the finding, unless the preponderance of the evidence is otherwise.” Tenn.
        R. App. P. 13(d). To terminate parental rights, a trial court must determine
        by clear and convincing evidence not only the existence of at least one of
        the statutory grounds for termination but also that termination is in the
        child‟s best interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)
        (citing Tenn. Code Ann. § 36-1-113(c)). Upon reviewing a termination of
        parental rights, this Court‟s duty, then, is to determine whether the trial
        court‟s findings, made under a clear and convincing standard, are supported
        by a preponderance of the evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).

              In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

        It is well established that “parents have a fundamental right to the care,
        custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97
        (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct.

                                                   12
      1208, 31 L. Ed. 2d 551 (1972)). “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.” Id. (citing
      Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
      (1982)).

             Termination of parental or guardianship rights must be based upon a
      finding by the court that: (1) the grounds for termination of parental or
      guardianship rights have been established by clear and convincing
      evidence; 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). Before a
      parent’s rights can be terminated, it must be shown that the parent is unfit
      or substantial harm to the child will result if parental rights are not
      terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A.,
      Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Similarly, before the
      court may inquire as to whether termination of parental rights is in the best
      interests of the child, the court must first determine that the grounds for
      termination have been established by clear and convincing evidence. Tenn.
      Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 WL
1660838, at *6 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear and
convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

      We first consider whether the Trial Court erred in finding by clear and convincing
evidence that grounds existed to terminate Father‟s parental rights to the Children for
abandonment by wanton disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and
36-1-102-(1)(A)(iv). As pertinent, Tenn. Code Ann. § 36-1-113(g)(1) provides:

      (g) Initiation of termination of parental or guardianship rights may be based
      upon any of the grounds listed in this subsection (g). The following
      grounds are cumulative and non-exclusive, so that listing conditions, acts or
      omissions in one ground does not prevent them from coming within another
      ground:

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

Tenn. Code Ann. § 36-1-113(g)(1) (2014). In pertinent part, Tenn. Code Ann. § 36-1-
102 provides:



                                           13
       (1)(A) 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:

                                           ***

       (iv) A parent or guardian is incarcerated at the time of the institution of an
       action or proceeding to declare a child to be an abandoned child, or the
       parent or guardian has been incarcerated during all or part of the four (4)
       months immediately preceding the institution of such action or proceeding,
       and either has willfully failed to visit or has willfully failed to support or
       has willfully failed to make reasonable payments toward the support of the
       child for four (4) consecutive months immediately preceding such parent‟s
       or guardian‟s incarceration, or the parent or guardian has engaged in
       conduct prior to incarceration that exhibits a wanton disregard for the
       welfare of the child; or

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014).

        We need not reiterate in full the Trial Court‟s detailed and specific findings with
regard to this issue, which are quoted more fully above, but we do note that with regard
to this issue the Trial Court specifically found and held:

       that the father was incarcerated at the time of the filing of the Department‟s
       termination petition on November 21, 2014, and that he had been
       incarcerated since at least April 17, 2014. Prior to his incarceration,
       [Father] engaged in conduct that exhibits wanton disregard for the welfare
       of the children. He attacked the children [J‟Kwan] and [J‟Andre] and was
       found to have committed severe abuse as a result of that attack. Before the
       February 25, 2014, hearing on the issue of severe abuse, the father entered
       the mother‟s apartment with the children in the home and attacked the
       mother with a baseball bat. He pled guilty to both offenses. Both incidents
       amount to wanton disregard for the welfare of the children. Thus the
       Department has met its burden of proof regarding the wanton disregard
       grounds alleged.

       The evidence in the record on appeal, as discussed more fully above, does not
preponderate against these findings made by the Trial Court by clear and convincing
evidence. We find no error in the Trial Court‟s determination that grounds were proven
to terminate Father‟s parental rights to the Children for abandonment by wanton
disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv).



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       We next consider whether the Trial Court erred in finding by clear and convincing
evidence that grounds existed to terminate Father‟s parental rights to the Children for
severe abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4). As pertinent, Tenn. Code
Ann. § 36-1-113(g)(4) provides:

      (4) The parent or guardian has been found to have committed severe child
      abuse as defined in § 37-1-102, under any prior order of a court or is found
      by the court hearing the petition to terminate parental rights or the petition
      for adoption to have committed severe child abuse against the child who is
      the subject of the petition or against any sibling or half-sibling of such
      child, or any other child residing temporarily or permanently in the home of
      such parent or guardian;

Tenn. Code Ann. § 36-1-113(g)(4) (2014). As pertinent to this issue, Tenn. Code Ann. §
37-1-102 provides:

      (21) “Severe child abuse” means:

      (A)(i) The knowing exposure of a child to or the knowing failure to protect
      a child from abuse or neglect that is likely to cause serious bodily injury or
      death and the knowing use of force on a child that is likely to cause serious
      bodily injury or death;

Tenn. Code Ann. § 37-1-102(b)(21)(A)(i) (2014).

       The Trial Court made detailed and specific findings with regard to this issue,
which we need not reiterate in full as they are quoted more fully above. We, however,
note that the Trial Court specifically found and held:

             The father pled guilty to the amended charge of misdemeanor
      assault, which was originally charged as a felony aggravated assault
      (strangulation) regarding the domestic violence incident which occurred on
      September 22, 2013, and which was the subject of the Department‟s
      September 27, 2013, Petition for Restraining Order, and which was the
      subject of the severe abuse Order entered from the hearing on February 25,
      2014. See collective Exhibit #9.

              Between the time of the filing of the Department‟s Petition for
      Restraining Order on all seven children on September 27, 2013, and the
      hearing on February 25, 2014, the father, on January 2, 2014, entered the
      mother‟s home, after which the mother returned home. Before the father
      left, he picked up a baseball bat and stated that he knew he would be
      arrested and he “should make it worth it.” He struck the mother twice in

                                           15
       the right side of the face and on the right leg with the baseball bat. The
       children were present in the home when the incident occurred. The father
       pled guilty, on April 17, 2014, to the Class C Felony charge of Aggravated
       Assault and Aggravated Burglary, which arose from that incident. The
       father was sentenced to incarceration and was incarcerated following the
       guilty plea and remains incarcerated, having been transported to the
       termination hearing from prison. See Exhibit #9.

             3.      Upon these facts, the Court finds, pursuant to T.C.A. 36-l-
       113(g)(4), that [Father] has been found to have committed severe child
       abuse against [J‟Andre] and [J‟Kwan], and that the children, [Kyah],
       [Marshall], and [Jhazaria], resided in the home with [Father] and [J‟Andre]
       and [J‟Kwan] at the time of the incident resulting in the severe abuse
       finding. Thus the Department has met its burden of proof regarding the
       severe abuse ground alleged.

       A careful and thorough review of the record on appeal reveals that the evidence,
which is discussed more fully above, does not preponderate against these findings made
by the Trial Court by clear and convincing evidence. We find no error in the Trial
Court‟s determination that grounds were proven to terminate Father‟s parental rights to
the Children for severe abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4).

        Finally, we consider whether the Trial Court erred in finding by clear and
convincing evidence that it was in the Children‟s best interest for Father‟s parental rights
to be terminated. When making a determination regarding best interest, a trial court is to
consider the list of non-exclusive factors contained in Tenn. Code Ann. § 36-1-113(i).

       With regard to this issue, the Trial Court specifically found and held:

              1. [Father] has not made such an adjustment of circumstance,
       conduct, or conditions as to make it safe and in the children‟s best interest
       to be in his home. Although mentioned in closing by [Father‟s] counsel
       that [Father] participated in programs available in prison related to
       alleviating the conditions that led to custody, such was not in the testimony
       presented to the Court. [Father] has not visited with his children. He has
       presented no proof to the Department that he had accomplished the tasks set
       forth for him to have the no-contact provisions of prior orders modified to
       allow contact.

              2. A change of caretakers and physical environment from their
       respective foster home is likely to have a detrimental effect on the
       children‟s emotional and psychological condition. As the father remains
       incarcerated, he would be unable to provide any home for the children until

                                             16
       he is released from prison.

              3. [Father] has committed severe child abuse toward two children of
       his spouse while he, the spouse, and seven children, including the victims,
       lived in the same home. He has yet to provide a healthy and safe physical
       environment for the children as he remains incarcerated.

              4. The Department of Children‟s Services has made reasonable
       efforts toward achieving permanency for these children.

              5. The children are entitled to a safe, secure and loving home. They
       need to know where they will lay their heads at night, to know and
       understand that their parents will protect them and provide them with
       consistent care and supervision. They now have the chance to achieve
       permanency through adoption in such a home, with committed, loving
       foster parents. The time in a child‟s life is short. It would be cruel to move
       these children or to extend the limbo of foster care.

              6. It is, therefore, in the best interest of [Kyah], [Marshall], and
       [Jhazaria], and the public that all of [Father‟s] parental rights to these
       children be terminated and the complete custody, control, and partial
       guardianship of the children be awarded to the State of Tennessee,
       Department of Children‟s Services, with the right to place them for
       adoption and to consent to such adoption in loco parentis.

       The evidence in the record on appeal, as discussed more fully above, does not
preponderate against these findings made by the Trial Court by clear and convincing
evidence. We find no error in the Trial Court‟s determination that termination of Father‟s
parental rights to the Children is in the Children‟s best interest.

                                       Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Marshall H.




                                                 _________________________________
                                                 D. MICHAEL SWINEY, JUDGE



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