                                                                                                         05/23/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    February 22, 2018 Session

                                     IN RE NEAMIAH R. ET AL.

                      Appeal from the Juvenile Court for Knox County
                          No. 162925    Timothy E. Irwin, Judge



                                  No. E2017-02000-COA-R3-PT



In this action, the trial court terminated the respondent father’s parental rights to his
children, following its finding that clear and convincing evidence existed to establish the
statutory grounds of (1) severe child abuse, (2) substantial noncompliance with the
reasonable requirements of a permanency plan, and (3) failure to manifest an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the children. The court also determined by clear and convincing evidence that
termination was in the best interest of the children. The father has appealed solely the
best interest determination. Discerning no error regarding the statutory grounds for
termination found by the trial court or the court’s best interest analysis, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.

Matthew A. Robinson, Knoxville, Tennessee, for the appellant, Earl R.1

Herbert H. Slatery, III, Attorney General and Reporter, and Peako A. Jenkins, Assistant
Attorney General, for the appellee, State of Tennessee Department of Children’s
Services.




1
  We note that following the filing of the appellate brief, Mr. Robinson withdrew as attorney of record for
the appellant, who is now represented by Anna E. Corcoran.
                                        OPINION

                          I. Factual and Procedural Background

       On June 5, 2017, the Tennessee Department of Children’s Services (“DCS”) filed
a petition seeking to terminate the parental rights of Earl R. (“Father”) to his three
children: Neamiah, age five years; Major, age three years; and Mal’akhi, age nineteen
months (collectively, “the Children”). DCS sought to terminate the parental rights of the
Children’s mother, Jennifer F. (“Mother”), via a separate proceeding. In the June 5, 2017
petition concerning Father’s parental rights, DCS averred that it had been awarded
temporary custody of the Children on August 2, 2016, following the Children’s removal
from their parents’ custody due to nutritional and medical neglect, domestic violence,
substance abuse, lack of supervision, inappropriate care, and failure to abide by safe sleep
protocols. Specifically, DCS asserted that Mal’akhi had been hospitalized on May 26,
2016, after being diagnosed with severe failure to thrive. DCS further averred in the
petition that on the day the Children were taken into custody, Mal’akhi was found alone
on a bed in Mother’s apartment while Mother visited with a neighbor and Neamiah and
Major played outside unsupervised. Mother failed a drug screen administered on that
day. Father appeared at the apartment while Mother was being interviewed and was
arrested for domestic assault based on Mother’s allegation that Father had hit her.

       In the termination petition, DCS alleged that following a dependency and neglect
hearing conducted on February 14, 2017, the trial court entered an order determining that
Mal’akhi was the victim of severe abuse at the hands of both parents. DCS cited Father’s
testimony at the prior hearing, wherein Father reportedly stated that he was aware that
Mal’akhi was underweight but that he nonetheless trusted Mother to take care of
Mal’akhi. Father allegedly admitted that he failed to follow up on Mother’s compliance
with medical recommendations for Mal’akhi and that he “probably should have done
more.” Father reportedly acknowledged that he participated in the care of the Children
but stated that he did not attend Mal’akhi’s medical appointments.

       DCS also alleged in its termination petition that Father had failed to substantially
comply with the reasonable responsibilities set out in his permanency plan. According to
DCS, a permanency plan had been developed on August 24, 2016, with Father’s
participation, which required that Father: (1) complete an alcohol and drug assessment
and follow any resultant recommendations; (2) refrain from associating with drug users
or dealers; (3) pass random drug screens; (4) address domestic violence in therapy or
classes; (5) obtain and maintain safe, suitable housing; (6) complete parenting education
through therapeutic visitation and follow the therapist’s recommendations; and (7)
complete a mental health assessment and follow resultant recommendations. Father was


                                             2
also required to visit the Children regularly, maintain a legal source of income, pay child
support, avoid criminal charges, and maintain contact with the DCS case manager.

       With regard to these requirements, DCS acknowledged in the petition that Father
had visited the Children, albeit not consistently, and had completed both substance abuse
and mental health assessments. DCS asserted, however, that Father had failed to follow
through with other requirements, including the recommendations from his assessments,
and that he had recently tested positive for cocaine use.

       DCS further alleged in the petition that Father had failed to “manifest, by act or
omission, an ability and willingness to personally assume legal and physical custody or
financial responsibility of the children, and placing the children in [Father’s] legal and
physical custody would pose a risk of substantial harm to the physical and psychological
welfare of the children.” See Tenn. Code Ann. § 36-1-113(g)(14).

        Following a bench trial conducted on October 5, 2017, the trial court entered an
order terminating Father’s parental rights to the Children on October 18, 2017. In its
order, the court noted that it had previously entered an order determining that Mal’akhi
had suffered severe abuse at the hands of both parents, following Mal’akhi’s diagnosis of
severe failure to thrive while in the parents’ custody. The child’s condition necessitated
hospitalization. The court also stated that Father had testified during the dependency and
neglect hearing that he was aware of Mal’akhi’s low weight and that he should have done
more to address the issue. The court further relied upon the testimony of Dr. Marymer
Perales, an expert witness in the fields of pediatric emergency medicine and child abuse,
who testified at the dependency and neglect hearing regarding failure-to-thrive infants.
According to the court, Dr. Perales explained that malnutrition in infants carries many
risks, including frequent illness, delayed brain growth, learning disabilities, and other
mental health and cognitive issues. Dr. Perales also opined that improper monitoring of
children who failed to thrive could ultimately result in death.

       Based on these and other facts, the trial court determined that Father had
committed severe child abuse against Mal’akhi. In addition, the court found that (1)
Father had failed to substantially comply with the reasonable responsibilities of his
permanency plan and (2) Father had failed to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the children, and placing the children in Father’s legal and physical custody would pose a
risk of substantial harm to their physical and psychological welfare. As the court
elucidated:

             This case is remarkably simple. The severe abuse adjudication
      against [Father] is final and unappealed.    [Father] completed the
                                            3
       assessments required by the permanency plan but then did not follow any of
       the recommendations. He came to some visits but not regularly and missed
       half of the therapeutic visits provided to increase his parenting skills. He
       did not participate in any domestic violence treatment and attacked another
       woman after the children entered foster care, resulting in his current
       incarceration. He had the opportunity to participate in those programs that
       could have put him on the road to recovery, but he did not cooperate. The
       Court liked his closing speech and liked his attitude. The Court believes
       that [Father] would like to change, but there is no evidence so far to that
       effect. The Court wished he had made those changes when it counted. The
       Court also wished he had not subjected his child to severe abuse and the
       risk of serious bodily injury or death.

       With regard to best interest, the trial court analyzed the applicable statutory factors
and made specific findings regarding the Children’s best interest. After considering the
factors and circumstances, the court determined by clear and convincing evidence that it
was in the best interest of the Children to terminate Father’s parental rights. Father
timely appealed.

                                     II. Issue Presented

       Father presents one issue for our review, which we have restated slightly:

       Whether the trial court erred by determining that it was in the Children’s
       best interest to terminate Father’s parental rights.

                                  III. Standard of Review

       In a termination of parental rights case, this Court has a duty 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). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).


                                              4
        “Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has recently explained:

               The parental rights at stake are “far more precious than any property
       right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has
       the legal effect of reducing the parent to the role of a complete stranger and
       of [“]severing forever all legal rights and obligations of the parent or
       guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
       Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
       rights is “final and irrevocable”). In light of the interests and consequences
       at stake, parents are constitutionally entitled to “fundamentally fair
       procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
       also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
       (1981) (discussing the due process right of parents to fundamentally fair
       procedures).

              Among the constitutionally mandated “fundamentally fair
       procedures” is a heightened standard of proof—clear and convincing
       evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
       unnecessary or erroneous governmental interference with fundamental
       parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
       “Clear and convincing evidence enables the fact-finder to form a firm belief
       or conviction regarding the truth of the facts, and eliminates any serious or
       substantial doubt about the correctness of these factual findings.” In re
       Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
       convincing-evidence standard ensures that the facts are established as
       highly probable, rather than as simply more probable than not. In re
       Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
       S.W.3d 652, 660 (Tenn. Ct. App. 2005).

       ***

             In light of the heightened burden of proof in termination
       proceedings, however, the reviewing court must make its own
       determination as to whether the facts, either as found by the trial court or as
       supported by a preponderance of the evidence, amount to clear and
                                             5
      convincing evidence of the elements necessary to terminate parental rights.
      In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).

            IV. Statutory Grounds for Termination of Father’s Parental Rights

      Tennessee Code Annotated § 36-1-113 (2017) lists the statutory requirements for
termination of parental rights, providing in relevant part:

      (a)     The chancery and circuit courts shall have concurrent jurisdiction
              with the juvenile court to terminate parental or guardianship rights to
              a child in a separate proceeding, or as a part of the adoption
              proceeding by utilizing any grounds for termination of parental or
              guardianship rights permitted in this part or in title 37, chapter 1,
              part 1 and title 37, chapter 2, part 4.

      ***

      (c)     Termination of parental or guardianship rights must be based upon:

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

              (2)    That termination of the parent’s or guardian’s rights is in the
                     best interests of the child.

       Although Father did not appeal the trial court’s determination that statutory
grounds existed for termination of Father’s parental rights, we will nonetheless address
all grounds in our analysis due to the “importance of permanently placing children and
the just, speedy resolution of cases.” See In re Angela E., 303 S.W.3d 240, 251 n.14
(Tenn. 2010). The trial court determined that three statutory grounds existed for
termination of Father’s parental rights: (1) severe child abuse, pursuant to Tennessee
Code Annotated § 36-1-113(g)(4); (2) failure to substantially comply with the reasonable
responsibilities set forth in the permanency plan, pursuant to Tennessee Code Annotated
§ 36-1-113(g)(2); and (3) failure to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial responsibility of
                                             6
the Children and placing the Children in Father’s legal and physical custody would pose a
risk of substantial harm to their physical and psychological welfare, pursuant to
Tennessee Code Annotated § 36-1-113(g)(14). We will address each statutory ground in
turn.

                                A. Severe Child Abuse

      Tennessee Code Annotated § 36-1-113(g)(4) provides the following as a statutory
ground for termination:

      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 . . . .

Tennessee Code Annotated § 37-1-102(b)(22) states in pertinent part:

      “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;

      (ii)   “Serious bodily injury” shall have the same meaning given in § 39-
             15-402(d).

      (B)    Specific brutality, abuse or neglect towards a child that in the
             opinion of qualified experts has caused or will reasonably be
             expected to produce severe psychosis, severe neurotic disorder,
             severe depression, severe developmental delay or intellectual
             disability, or severe impairment of the child’s ability to function
             adequately in the child’s environment, and the knowing failure to
             protect a child from such conduct;

      (C)    The commission of any act towards the child prohibited by § 39-13-
             309, §§ 39-13-502 -- 39-13-504, § 39-13-515, § 39-13-522, § 39-15-
             302, § 39-15-402, or § 39-17-1005 or the knowing failure to protect
                                            7
              the child from the commission of any such act towards the child . . . .

       In its order terminating Father’s parental rights, the trial court specifically found,
inter alia:

               Following a hearing on February 14, 2017, this Court issued an order
       finding “that the child Mal’akhi [R.] is a victim of severe abuse at the hands
       of both parents pursuant to T.C.A. § 37-1-102(b)(22)(A), (B), and (C) due
       to the parents’ medical and nutritional neglect, lack of supervision, and
       failure to abide by Safe Sleep protocols.”

(Paragraph numbering omitted.) The referenced March 10, 2017 order was presented
during trial as part of Collective Exhibit 2.

       In the March 10, 2017 order, in which the trial court determined the Children to be
dependent and neglected, the court thoroughly recounted the testimony of Dr. Perales
regarding Mal’akhi’s condition when the Children were brought into custody and the
dangers faced by failure-to-thrive children. The court also detailed the testimony of the
Child Protective Services investigator relating the unsuitable conditions in the family
home at the time of the Children’s removal, as well as the mother’s testimony
acknowledging her failure to follow up with a gastroenterologist regarding Mal’akhi’s
medical condition. Concerning Father’s testimony at the February 14 hearing, the court
found:

               Father took the stand and testified on his own behalf. Father
       testified that he knew of Mal’akhi’s weight problems but trusted Mother to
       take care of it. Father stated that he and Mother “did what [they] were
       supposed to do” to address Mal’akhi’s low weight but later admitted that he
       “probably should have done more” and failed to follow up on Mother’s
       compliance with medical recommendations for the child. Father testified
       that he did not attend medical appointments for the child but would receive
       reports from Mother. Father testified that both he and Mother participated
       in the care of the children. Father could not name Mal’ahki’s pediatrician
       and was not sure of the location of the physician’s office.

Accordingly, in the March 10, 2017 order, the trial court concluded that Father had
committed severe child abuse against Mal’akhi as defined in Tennessee Code Annotated
§ 37-1-102(b)(22).

       It is well settled that a trial court may rely on a prior court order finding severe
child abuse as a ground for termination and is not required to re-litigate the issue of
                                             8
severe abuse during the termination trial, so long as the prior order is final. See In re
Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097, at *5 (Tenn. Ct.
App. July 7, 2011); State, Dep’t of Children’s Servs. v. M.S., No. M2003-01670-COA-
R3-CV, 2005 WL 549141, at *10 (Tenn. Ct. App. Mar. 8, 2005). In the case at bar, the
trial court found that the “severe abuse adjudication against [Father] is final and
unappealed,” and the record supports this finding. Therefore, the trial court did not err in
relying upon the prior adjudication of severe child abuse in the dependency and neglect
proceedings as a ground for termination of Father’s parental rights. See State, Dep’t of
Children’s Servs. v. M.S., 2005 WL 549141, at *10 (“The [severe abuse] ground itself is
proved by a court order finding severe child abuse, and the issue of whether abuse
occurred is not re-litigated at the termination hearing.”).

                  B. Substantial Noncompliance with Permanency Plan

       The trial court also determined that a statutory ground for termination existed
because Father had failed to substantially comply with the reasonable responsibilities set
forth in his permanency plan. Tennessee Code Annotated § 36-1-113(g)(2) provides as
an additional ground for termination of parental rights:

        (2) There has been substantial noncompliance by the parent or guardian
            with the statement of responsibilities in a permanency plan pursuant
            to the provisions of title 37, chapter 2, part 4; . . . .

        Upon our thorough review of the record, we conclude that clear and convincing
evidence demonstrated that Father had failed to substantially comply with the reasonable
responsibilities set out in the permanency plan. The permanency plan was entered as
Exhibit 3 at the termination trial, and it provides that Father was responsible for, inter
alia, the following requirements: (1) complying with all court orders; (2) cooperating
with DCS and all service providers; (3) maintaining contact with the case manager at
least twice per month; (4) paying $40 per month in child support; (5) obtaining a mental
health assessment and following all resultant recommendations, including counseling and
medication management if deemed necessary; (6) obtaining an alcohol and drug
assessment and following all resultant recommendations; (7) submitting to and passing
random drug screens; (8) completing parenting classes; (9) participating in therapeutic
visitation and family support services, following through with all recommendations of the
provider; (10) obtaining and maintaining suitable housing; (11) obtaining and
maintaining a legal source of income; (12) attending domestic violence therapy or
classes; and (13) avoiding new criminal charges.

       The Children’s DCS case manager, Edana Boney, testified at trial that Father had
failed to complete most of the requirements of the permanency plan. Although Ms.
                                             9
Boney acknowledged that Father had completed an alcohol and drug assessment, she
stated that he failed to follow through with the recommendations and failed a subsequent
drug screen, confessing to her that he had relapsed. Ms. Boney reported that Father had
completed a mental health assessment, but he similarly failed to follow through with the
resultant recommendations, including therapy. According to Ms. Boney, Father failed to
participate in domestic violence counseling or classes and had recently incurred a new
domestic violence charge, resulting in his incarceration at the time of the termination
trial.

       Ms. Boney further testified that Father had failed to establish a suitable home for
the Children prior to his incarceration. With regard to visitation, Ms. Boney reported that
Father had visited the Children sporadically, only attending approximately half of the
scheduled visits. Ms. Boney also stated that Father’s contact with her had likewise been
sporadic at best. Finally, according to Ms. Boney, Father did not complete the parenting
classes or the requirements of the therapeutic visitation.

       Although Father did not testify under oath at the termination trial, the trial court
allowed Father to make a statement at the conclusion of the hearing. In his statement,
while Father apologized for his mistakes and asked to be given another chance, he did not
refute the evidence regarding his lack of compliance with the permanency plan. Based
on the proof presented at trial, we determine that the evidence does not preponderate
against the trial court’s determination that the statutory ground of substantial
noncompliance with the reasonable requirements of the permanency plan had been
proven by clear and convincing evidence.

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

       The trial court also relied upon Tennessee Code Annotated § 36-1-113(g)(14) as a
statutory ground for terminating Father’s parental rights. This subsection, which was
added to the statutory framework on July 1, 2016,2 provides as an additional ground for
termination:

          A legal parent or guardian 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 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.

      This Court has recently explained the following with regard to this ground for
termination:
2
    See 2016 Tenn. Pub. Acts, Ch. 919 § 20 (S.B. 1393).
                                                    10
      Essentially, this ground requires DCS to prove two elements by clear and
      convincing evidence. First, DCS 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). DCS must then 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].” Id.

      ***

      We have made the following observations about what constitutes
      “substantial harm”:

             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 re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7-8 (Tenn. Ct.
App. Apr. 4, 2018) (additional internal citations omitted).

        In the case at bar, the evidence demonstrated that Father was incarcerated at the
time of the termination trial and had failed to establish a suitable home for the Children
prior to his incarceration. Moreover, Father had failed to complete most of the
requirements of the permanency plan, which were aimed at helping him to establish a
proper home. Most significantly, Father had failed to remedy his substance abuse
problem, as shown by his positive drug screen at the last visit with the Children, and had
failed to complete domestic violence classes or counseling. Based on the circumstances
shown, we determine that Father had clearly failed to manifest an ability to personally
assume legal and physical custody of the Children.


                                            11
       In addition, the evidence demonstrated that placing the Children in Father’s legal
and physical custody would pose a risk of substantial harm to their physical and
psychological welfare. Because Father had failed to follow through with the
recommendations of his substance abuse assessment, he had not remedied his addiction
issues and appeared at the last visit with the Children while under the influence of
cocaine. Further, Father had not addressed the domestic violence issue and had recently
committed domestic violence against another victim, resulting in his incarceration at the
time of trial. Ms. Boney testified that the Children had been hesitant to visit with Father
before his incarceration and often recounted Father’s violent acts against Mother, which
occurred before DCS brought the Children into custody. Thus, placing the Children with
Father would expose the Children to a substantial and probable risk of living in a home
with drug use and domestic violence. See, e.g., In re Maya R., 2018 WL 1629930, at *8.

       Based on the evidence presented, we conclude that DCS proved by clear and
convincing evidence that Father failed to manifest an ability and willingness to personally
assume legal and physical custody or financial responsibility of the Children and that
placing the Children in Father’s legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the Children. Accordingly,
we affirm the trial court’s findings regarding the existence of statutory grounds for
termination.

                              V. Best Interest of the Children

        Father argues that the trial court erred in its determination that terminating his
parental rights was in the best interest of the Children. When a parent has been found to
be unfit by establishment of at least one statutory ground for termination of parental
rights, as here, the interests of parent and child diverge, and the focus shifts to what is in
the child’s best interest. See In re Audrey S., 182 S.W.3d at 877; see also In re
Carrington H., 483 S.W.3d at 523 (“‘The best interests analysis is separate from and
subsequent to the determination that there is clear and convincing evidence of grounds
for termination.’”) (quoting In re Angela E., 303 S.W.3d 240, 254 (Tenn. 2010)).
Tennessee Code Annotated § 36-1-113(i) provides a list of factors the trial court is to
consider when determining if termination of parental rights is in a child’s best interest.
This list is not exhaustive, and the statute does not require the court to find the existence
of every factor before concluding that termination is in a child’s best interest. See In re
Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy
and weight to be given each factor depends on the unique facts of each case.”).
Furthermore, the best interest of a child must be determined from the child’s perspective
and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).



                                             12
      Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:

           (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



                                        13
       (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.

As our Supreme Court recently elucidated regarding the best interest analysis:

“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d at 254.

        When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then 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[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child . . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).

       Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
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       terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon
       the circumstances of a particular child and a particular parent, the
       consideration of one factor may very well dictate the outcome of the
       analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
       S.W.3d at 194). But this does not mean that a court is relieved of the
       obligation of considering all the factors and all the proof. Even if the
       circumstances of a particular case ultimately result in the court ascribing
       more weight—even outcome determinative weight—to a particular
       statutory factor, the court must consider all of the statutory factors, as well
       as any other relevant proof any party offers.

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).

       In the case at bar, the trial court determined that DCS had presented clear and
convincing evidence demonstrating that termination of Father’s parental rights was in the
best interest of the Children. We agree. Considering the above-listed factors, the trial
court found that Father had 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, despite
reasonable efforts by DCS. The court noted that Father was incarcerated at the time of
the termination hearing due to a domestic violence charge that occurred after the Children
were taken into custody and that Father had further failed to establish a home before his
incarceration. The court also determined that Father had not maintained regular visitation
with the Children before his incarceration. As a result, the court found that Father had no
meaningful relationship with Mal’akhi and that whatever relationship he did have with
the older boys had been diminished by his absence. The court also noted that Father was
found to be under the influence of illicit drugs during his last visit with the Children.

        The trial court further determined that a change of caretakers would have a
detrimental effect on the Children. The court found that the Children were “on the edge
of disaster” when they came into custody, with Mal’akhi weighing only ten pounds at
fourteen months of age. The court found that the older boys were “out of control, cussing
and fighting, not able to sleep.” At the time of trial, however, the court found that the
older boys were well integrated into their foster family “where verbal and physical
aggression are not the norm,” had friends, and slept well. The court similarly determined
that Mal’akhi appeared to be happy and healthy and was, at the time of trial, at the thirty-
fifth percentile for weight and the fiftieth percentile for height. The court further noted
that the Children had an opportunity to achieve permanency through adoption.

        Following our thorough review of the evidence presented, we conclude that the
trial court’s findings were supported by a preponderance of the evidence. Ms. Boney
testified at length regarding Father’s circumstances, demonstrating that Father had failed
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to obtain or maintain a suitable home for the Children before his incarceration. At the
time of trial, Father was serving a sentence for domestic assault and had not visited the
Children since May or June when he tested positive for cocaine use during the visit.
Ergo, there was no proof that Father had made any adjustment of his circumstances such
that it would be safe or in the Children’s best interest to be in his care, despite efforts to
assist Father by DCS.

        Although Father had visited the Children, his visits were irregular and sporadic,
and no visits had occurred for the few months prior to the termination trial. Ms. Boney
testified that although the Children seemed to enjoy their visits with Father when visits
did occur, they did not cry upon leaving. She recounted that the older boys were often
reluctant to visit with Father and recalled his abuse of Mother. As such, no evidence
existed demonstrating that Father maintained a meaningful relationship with the
Children.

        With regard to whether the Children would be detrimentally affected by a change
of caretakers and environment, the Children’s foster mother testified during trial,
describing the Children as “bonded” with her family. The foster mother also affirmed
that the foster parents wanted to adopt the Children.

       The Children’s foster mother explained that when the Children came into custody,
the older boys had significant behavioral issues. She described the older boys as
aggressive, angry, defiant, “throwing fits,” and unable to sleep. According to the foster
mother, the family had instituted the use of disciplinary time-outs in addition to rewards
for good behavior and had worked on the Children’s social skills. She reported that by
the time of trial, the older boys were doing well in school and preschool, had many
friends, slept well, exhibited appropriate behavior and coping skills, and followed
direction.

        The foster mother related that Mal’akhi was severely underweight when he came
to their home, requiring the foster parents to feed him frequently, administer medication
for reflux, and take him to numerous medical appointments. She reported that Mal’akhi
had gained an appropriate amount of weight by the time of trial, with his weight having
increased to twenty-six pounds. The foster mother stated that Mal’akhi was, at that time,
no longer considered a failure-to-thrive child.

        According to both the foster mother and Ms. Boney, the Children were thriving in
their foster home. Ms. Boney testified that she visited the Children in the home at least
twice per month and further reported that the Children were “well-integrated” into the
foster family. Ms. Boney also related that the Children’s behavior had greatly improved


                                             16
and that they were all doing well. Ms. Boney opined that it would be detrimental to the
Children to remove them from their foster home.

       Concerning the remaining factors, the evidence presented at trial demonstrated
that Father had been abusive toward Mother as well as toward another unidentified
victim, resulting in his current incarceration. In addition, Father had tested positive for
cocaine use during his last visit with the Children. As such, Father had not demonstrated
that he could care for the Children in a safe, stable manner. No evidence was presented
regarding whether Father had paid child support.

        Based on our review of the evidence in light of the statutory factors, we conclude
that the trial court did not err in finding clear and convincing evidence that termination of
Father’s parental rights was in the best interest of the Children. We therefore affirm the
trial court’s termination of Father’s parental rights.

                                      VI. Conclusion

       For the reasons stated above, we affirm the judgment of the trial court terminating
the parental rights of Father in all respects. Costs on appeal are taxed to the appellant,
Earl R. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and collection of costs assessed below.




                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE




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