### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON A pr il 23, 200 9 S es sio n
IN R E A D OP TI ON OF C

. A

. M

. ( d. o. b. 11/ 30/96)
JAM ES KE ITH JONE S AND 

### CA RI LE CKL ITNE R JON ES
v. MICH AEL DALE MO ORE
An Appeal from the C hancery Court for D yer C ounty No. 08A2 William Michael Maloan, Chancellor

No. W2008-02003-C OA-R3-P T - Filed November9, 2009

This appea l involves the termination of par ental rights. Whe n th e m other a nd fathe r divorce d, the mother wa s designated a s the child’s primary residential parent. In light of the mother’s a llegations that he had thr eate ned her , the father was grante d only supervised visitation. After the divorce , the fathe r lived in Texa s and visited the child in Tennesse e. Sever al yea rs later , the father re marrie d and
was a war ded unsupervised visitation with the child. Soon there afte r, t he child went to Texa s for a vis it w iththe fathe r andhis ne w w if e . D uring thi s vis it, the fathe r a nd his ne w wi fe ha d a do me sti c dispute in which the father locke d h er and the child out of their house . After this incident, the mothe r re fu se d to a llo w the c hil d to vis it wi th the fathe r. Th e fathe r wa s the n c harg ed with assaulting his new wife and was given probation on this c harge

. Soon after that, the fathe r violated the terms of his probation by testing posi tive for metha mphetamine. He was sente nced to ten ye ars in p ri s o n

. At the time he wa s sentence d, the child was se ven yea rs old. Severa l year s later, the mother re marrie d. The mother and her new husband then filed this pe tition to terminate the fathe r’s pare ntal rights and to allow the mother’s new husband to a dopt the child. After a hea ring, the trial court terminated t h e father’ s pare ntal rights, finding grounds for termination and finding that termination was in the c h i l d ’s b es t interest. The fathe r now a ppeals, c hallenging only the trial
c ou rt ’s de te rm inatio n r e ga rd ing the c hil d’ s b e st i nte re st. W e a ff ir m. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Chancer y Court is Aff irme d

H OL LY M. K I RBY , J., delivere d the opinion of the Court, in which A LA N E. H I G H ERS , P.J., W.S., and D AVI D R. F ARMER , J., joined.

Ron Harve y, Germantown, Tenne ssee, f or the a ppellant, Michae l Dale Moore

. Jason R. Creasy, Dye rsburg, Te nnessee , for the ap p el l ee s , James Ke ith Jones and Cari Le cklitner Jo ne s. OP IN ION-2- F ACT S AND P R O C ED U R ES B E L OW The minor child involved in this appea l, C.A.M., born on November 30, 1996, is the daughte r of Petitioner/Appellee Cari Lec klitner Jones (“ Mother”) and Micha el Dale Moor e (“ Father” ). Whe n C.A.M. wa s b o rn , M o t h er and Father we re ma rried and lived in St. Loui s, Missouri. When they separ ated, Mother

and C.A.M

. move d to Dyersbur g, Tenne ssee to live with Mother’ s pare nts. Father moved to Tenne ssee f

or a short time, but soon moved to Denton, Texas. Mother filed for divorce in Tennesse e, and the final dec ree of divorce was e ntere d on June 2, 1998.

In th ef in al decr ee, Mothe r wa s designated a s C.A.M.’s primary re sidential pare nt, and Father was orde red to pay child support of appr oximately $400 per month. In t h e course of the divorc e p r o c e e d in g s , M o th e r r e q u e s te d th a t Fath e r ’ s v is it a ti o n w ith C. A

. M

. b e s u p e r v is e d , a ll e g in g that Father ha d threatened he r and he r fa mily wi t h p hysical harm. The trial court granted Mother ’s reque st, and Father wa s granted supe rv ised visitation in Tennessee e very othe r we ekend. Fathe r c a me fr om T e xa s to Te nn e sse e a s o ft e n a s p ra c tic able to e xe rc ise his vis itatio n righ ts. Du ri ng thi s time, Mother and C.A.M. we re still living i n Dyer s b u rg with Mother’s par ents, and Father ’s supervised visitation took place in their home.
Following s ever al post-divorce proce edings, in April 2002, Father wa s granted unsupe rvised visitation wit h C.A.M. By that time, Father had marrie d Rhonda Moore (“Stepmother”)

. Father a nd Stepmother h a d a s o n , R. M

. Be tw e e n A p r il 2 0 0 2 a n d D e c e mb e r 2 0 0 2 , C. A

. M

. tr a v e le d to Texa s thr e e tim e s f

or e xte nd e d v isi ts wi th Fa the r. Fa the r also c on tin ue d to tr a ve l to Te nn e sse e pe ri od ic a lly to visit C.A.M. During this time, Father ma de seve ral c hild support payments, the last in October 2002.

Du ri ng C.A .M .’ s D e c e mbe r 2 00 2 v isi t w ith Fa the r in Te xa s, Fa the r a nd Ste pmo the r b e c a me embroiled in a domestic dispute. The frac as culmi nated in F ather locking Stepmother and the two children out of their hom e. Af ter C.A.M. re turned home to Mother , she blocke d all communications betwee n Father a nd C.A.M. and filed a motion to m odify the cur rent pa renting ar range ment and
re qu e ste d th a t th e tr ia l cou rt e nte r a te mpo ra ry re str a ini ng or de r p ro hib iti ng Fa the r f ro m vi sit ing wi th C.A.M. pe n d in g a

h e ar in g o n th e mo ti o n

. O n J u n e 1 9 , 2 0 0 3 , th e tr ia l c o u r t i s s u e d th e r e q uested temporary restraining order pr ohibiting F ather ’s visitation with C

. A. M

. A hea ring on Mother’s reque st to modi fy the pa

renting ar range ment was he ld on July 28, 2003, but F ather did not appear at the hea

ring. On August 15, 2003, the trial c ourt ent er ed an or der c ontinuing the injunction prohibiting F ather ’s visitation with C .A.M. pending further orde rs of the c ourt. The or der indicated that, d e sp ite su bs ta nti a l e ff orts by Mo the r’ s c ou ns e l to a sc e rt a in Fa the r’ s ph ys ic a l a dd re ss, he c ou ld not b e l o cated. Oddly, the orde r neve rtheless stated that, on July 25, 2003, F ather had re ceive d actua l notice of the he aring, but failed to a ppear

. Father’s last visit wit h C.A.M. prior to the hea ring
occur red during the Dec ember

2002 visit i n Texa s. Perhaps not surprisingly, t he dispute betwe en Father and Stepmother re sulted in heated divorce proce edings in Texas, during which Stepmother sought numerous o rd er s of protec tion against Father. During 2003, Father was char ged five times with viol ating protec tive order s entere d by the Texas court, the most serious of which invol ved allegations that F ather threatened Stepmother by putting a gun to her hea d. This resulted in Father be ing char ged with aggr avate d assault with aIn 2 0 0 3 , F a th e r w a s a lso c o n v ic te d o f d riv in g w h ile in to x ic a te d

. 1

W e not e par ent het i cal l y t hat M ot her do es not have s t andi ng t o fi l e a pet i t i on t o t er m i nat e Fat her’ s par ent al 2 rig h ts. S ee O sb o rn v. M a rr , 1 27 S

. W

. 3d 7 37 , 7 40

- 41 (T enn. 2 00 4). T hi s i s s ue w as appare nt l y no t r ai s ed i n t he t r i al

cour t be l ow and i t does not a f f ec t our a nal ys i s be ca us e St epf at her , a s a pr os pec t i ve adopt i ve par ent , ha s s t andi ng. Tenn. C o d e A n n

. § 3 6 -1-1 1 3 (b) (Su p p

. 20 0 8 ).
-3- deadly wea

pon and reta liation. In Mar ch 2003, Father was inca rce rate d pending re solution of the char ge, and in early 2004, he ente red into a ple a bar gain in which he a gree d to an “Or der of

1 Communi ty Supervision Without Adjudication of Guilt.” At that point, F ather was re lease d from prison and plac ed on probation for ten yea rs. Shortly thereaf

ter, on Janua

ry 14, 2004, Father violated the terms of his probation by testing po sit ive fo r m e thamph e ta min e . Co ns e qu e ntl y, his pr ob a tio n w a s r e vo ke d, a ndhe wa s r e qu ir e d to
se rv e ou t th e te n ye ars in a Te xa s pri so n. At the tim e Fa the r w a s in c arc e rate d f or the te n- ye ar t e rm , C.A.M. was seve n (7) ye ars old. While in prison, Father made attempts to call C.A.M., but Mot her would not permit C.A.M. to speak to him.

Se ve ra l ye ars la te r, on No ve mbe r 3 , 200 7, Mo the r m arrie d Pe tit ion e r/Ap pe lle e Ja me s K e ith Jo ne s ( “ Ste pf

a the r” ). On Fe br

ua ry 14 , 2 00 8, Mo the r andSte pf a the r f ile d th e ins tant peti tio n to te rm inate Fa the r’ s p are nta l r igh ts i n o rd e r t o a llo w St e pf a the r t o a do pt C .A .M

. 2

On Au g u s t 1 , 2 0 0 8 , th e tria l w a s h e ld o n th e te r mi n a ti o n p e ti ti o n

. T h e tria l c o u rt heard testimony from Mother, Father, Stepf ather , C.A.M.’s materna l grandmother , and other witnesses as
we ll.

Mother testified at the out set. She first described F ather ’s vi olent tendenc ies. When she and Father were dating in the m id-1990s, Mother said, Father wa s verba lly abusive to her a nd threatened he r w ithph ys ic a l ha

rm

. Mo re re c e ntl y, Mo the r a sse rt e d, Fa the r thr e a te ne d to kill he r, a ndon a t le a st two occa sions he physically assaulted he r. While Mot h er wa s pregnant with C.A.M., she said, Father hit her on the head above her ear. Mother claimed that domestic assault cha rges we re f

iled against Father, but they w ere later dr opped.

Mother ac knowledged that Father had sent C.A.M. eight to twelve cards or letters while he was in prison. Mother explained t hat s he did not show them all to C.A.M. because they promised that F at h er wo u ld “see her soon,” which would have given C.A.M. false hope . Mother did show some of the pictur es to C

. A. M. and told her that Father was a sking about her. Mother declined F at h er ’s re q uests for photogra phs of C.A.M., purportedly be cause she did not want the c hild’s ph oto gr aph in the priso n o ut o f c on c e rnthat it mig ht “ e a sil y g e t in the wr on g ha nd s. ” Mo the r s a id that she had ma intained communication with Father’ s pare nts, C.A.M.’s paterna l grandpa rents.

Mother testified that C.A.M. has a loving r elationship with St epfather, a nd that Stepfather

“ wo rs hip s th e gr ou nd sh e wa lks on .” Mo the r as se rt e d tha t it wo uld be in C.A .M .’ s b e st i nte re st t o be adopted by Stepfather to enable her to move forward with her life and avoid the potential for ha rm that could arise from c ontinuing her relationship wit h Father.-4-

Alice Ann L ecklit n er , Mother’s mother and C.A.M.’s maternal gra ndmother (“G randmother ”), testified at trial on behalf of Mot her and Stepfather

. Gra ndmother t old the trial court that, while Mother

and Father we re in the midst of divorce proc eedings, Father had made threats against her life and Mother’ s life, and he once thr eate ned that he “ might take [C.A.M.] and we might not see he r again.” Grandmother super vised Father’ s visitation wit h C.A.M. betwee n 1998 and 2002. She said that Father’s visit s wer e irregular: “Sometimes he would come once a month. Maybe more often,. . . . Sometimes he might go severa l months wit hout coming.”

Gra ndmother indicate d that she sees C.A.M. two or three times a day. She told the trial court that C.A.M. was doing well in school, was a ctive i n s p o rt s , an d was a secur e, loved c hild. She testified that Stepfathe r loves C.A.M. and would be an exc ellent father. Gr andmother be lieved that future visitation with Father wa s not in C.A.M.’s best interest beca use Father’s e nvironment “is not what . . . envir onment I wa nt her to grow up in.”

S t ep fa t h er testified as we ll. He re lated that he ha s known C.A.M. since he be gan dating Mother in August 2002. Stepfather told the trial court that he love s C.A.M. and wishes to adopt her as his legal child. He said that he ha s had the same job a s a car salesman for twe nty year s, and that he make s a substantial annua l salary.
Father’s longtime friend Bonnie Kidd (“Kidd”) testified on his behalf. Kidd said that Father liv e d w ithhe r andhe r h us ba ndwh e n Fathe r w a s se ve nte e n y e ars old , a ndsh e c onsi ders Fathe r t o be a part of her fa mil y. She de sc ri be d Fathe r a s b e ing ve ry c los e to C .A .M ., a ndsa id that hi s relationship wit h his child was very impo rt an t to him. After the divorc e fr om Mother, Kidd said, Father e xpended gr eat e ffort and gre at expe nse to visit with C.A.M., and he saw her as ofte n as he
c ou ld. Ki ddha d re ma ine d in c on ta c t wi th Fa the r i n p ri so n b y e xc ha ng ing le tte rs wi th h im. She sa id that Father ha d written her hundreds of letters inqui ring about C.A.M. and a lso about R.M., his s on with Stepmother. On beha lf of Father , Kidd wrote Mother a letter asking her to send F ather pictures of C.A.M. She enc losed $20 with t h e l etter to Mother to cover the cost of the pic tures. Mother ref used to send photos for Fathe r, and did not re turn to Kidd the money she ha d sent.

Fa the r t e sti fi e d o n his ow n be ha lf

. Af te r h is d ivo rc e fr om M oth e r, he sa id, he vis ite d C. A. M. at every opportunity, freque ntly traveling to Tennesse e for supervised visitation with her. Af ter he
was grante d the right to unsupe rvised visitation in April 2002, C.A.M. c ame to T exas fo r t hree extended visits wit h him. Father testified that, despite the inc ident in Dece mber 2002 in which Father locke d Stepmother and the two children out of the house, C.A.M. crie d when she had to leave him at the end of the visit, and she told Father that she wa nted to live with him. After the De cembe r 2002 incident, Father stated, Mother would not le t him see C.A.M or talk to her on the te lephone, despite his constant re quests. After he wa s incarc erated, Father trie d to call C.A.M., but Mother would either not answer or would ref use to le t him speak to her. Father sent letters to C.A.M. from prison, but all of them went una nswere d. Father wrote l etters to other people, asking for ne ws about his c hil dr e n. Som e of

the le tte rs he wr ote wh ile he wa s in priso n w e re ma de e xh ibi ts at tria l.

Father testified a

bout the proce edings in his divorce fr om Stepmother in January 2003. A fter that hearing, Fath e r

c la im ed, “[ e]ve ry time I turne d around she was filing something,” adding “ [a] fter that point, I was getting arr ested on a weekly basis for violation of a protec tive order .” He de niedT erm i n ati o n o f P are n t al R i g h t s. 3

... ( g) I ni t i at i on of t er m i nat i on of

pa r ent al or gua r di ans hi p r i ght s m ay be bas ed upon a ny of t he fo llo w in g g ro u n d s . . .:

( 1) A bandonm ent by t he par ent or gua r di an, a s de fi ned i n § 36- 1- 102, ha s oc cur r ed;

... ( 6) Th e par ent has been confi ned i n a corr ect i on al o r d et ent i on faci l i t y of any t yp e, b y order

o f th e c o u rt a s a re su lt o f a c rim in a l a c t, u n d e r a s e n te n c e o f te n ( 1 0 ) o r m o re y e a rs , an d th e c h ild is

u n d e r e ig h t (8 ) y e a rs o f a g e a t t h e ti m e th e se n te n c e is en te re d b y th e c o u rt.

T en n

. C o d e A n n

. § 3 6 -1 -1 1 3 (g )(1 ), (6 ) (S u p p

. 2 0 0 8 ). A s relev an t t o t h i s ca se, “a b an d o n m en t ” is de fine d as:

(iv ) A p a re n t o r g u a rd ia n is i n c a rc e ra te d a t t h e ti m e o f th e in stitu ti o n o fa n a c tio n o r p ro c e e d in g to d e c la re a c h ild to b e a n a b a n d o n e d c h ild , o r th e p a re n t o r g u a rd ia n h a s b e e n in c a rc e ra te d d u rin g a ll

or pa r t of t he f our ( 4) m ont hs i m m edi at el y pre ce di ng t he i ns t i t ut i on of s uch ac t i on or pr oce edi ng, a nd ei t her ha s w i l l ful l y f ai l ed t o vi s i t or ha s w i l l ful l y f ai l ed t o s uppor t or ha s w i l l full y fai l ed t o m ake (c o n tin u e d ...)
-5- the allegation that he put a gun to Stepmother’s hea d, calling the cha rge “ ridiculous,” and he denie d harming Stepmother in any way. He also denied hitting Mother in the head. Father claimed that he
was n ev er t o l d that violating his probation might result in his incarc eration. He denied using methamphetamine and explained that his positive drug test probably re sulted from an injec tion two days ea rlier f or a be e st ing. “So basica lly it was on a technical violation is what I wa s violated on.”

Fa the r a dmi tte d th a t he wa s de lin qu e nt on his c hil d su pp ort payme nts

. He c la ime d th a t hi s de lin qu e nc y w a s not wil lf ul, bu t tha t it oc c ur

re d be c aus e he wo rk e d on co mmi ssi on se lli ng sig ns to ho te ls and , th us , h is p a y w a s ir regul ar. W he n h e re c e ive d a c omm iss ionc he c k, he sa id, he pa id
se ve ra l c hil d sup po rt payme nts a t a tim e . Fathe r c la ime d h e he lpe d M oth e r andC.A .M . f inanc ia lly as much a s he could, for example, by purcha sing a $1,500 swingset for C.A.M. and by paying for he r birthd a y part ie s. Fa the r ac kn ow le dg e d tha t, in 200 0, he bo ug ht a Vo lvo auto mob ile fo r h ims e lf with cash, a nd that he paid a $30,000 down payment on the purchase of a house. He explained that his sign busi ness dec lined greatly after the national eve nts of September 11, 2001. Neve rtheless, the subsequent bonds to get Father out of jail cost some $50,000 to $60,000; Father said that fr i ends he lpe d him pa y muc h of that tota l. Fa the r ad mit te d tha t his las t c hil d s up po rt payme nt w a s ma de in October 2002.

Father testified that he loves his daughter and continues to ha ve a bond w ith her despite the obstacles. Father

asser t ed h i s b el i ef that it is in C.A.M.’s best interest to continue ha ving a pare nt/child relationship with him.

At the conc lusion of the hearing, the trial court issued a n oral ruling that the pe titioners had proven gr ounds for the termination of Father ’s par ental rights, and that termination was in C.A.M.’s best interest. On A ugust 21, 2008, the trial court entere d a written order, f inding that grounds for terminating Father’ s pare ntal rights, namely Father’ s incarc eration for a period of at least ten ye ars at a time whe n C.A.M. was under eight year s old, pur suant to Tennesse e Code Annotated § 36-1- 113(g)( 6), and also a

bandonm en t fo r willful failure to pay child support since Oc tober 2002, 3(

. . . cont i nued) 3

re a so n a b le p a y m e n ts to w a rd th e su p p o rt o f th e c h ild fo r fo u r (4 ) c o n se c u tiv e m o n th s im m e d ia te ly prec edi ng s uch p ar ent ’ s or gu ar di an’s i ncar cer at i on , or t he pare nt or guar di an has engaged i n con du ct p rio r to in c a rc e ra tio n th a t ex h ib its a w a n to n d isre g a rd fo r th e w e lfa re o f th e c h ild

. . . .
T en n

. C o d e A n n

. § 3 6 -1-1 0 2 (1)(A )( i v ) ( 2 0 0 5 ).

-6- pursuan t to Tennesse e Code Annotated §§ 36-1-113( g)(1) and 36-1- 102(1)( A). The order stated further t h at “[e ]ac h and eve ry one of the nine (9) fac tors set forth in T.C.A. § 36-1- 113(i) support the finding that termination of [Fathe r’s] pa renta l rights is i n the best intere sts of [C.A.M.].” From thi s o rd e r, Fa the r n ow app e a ls.

I S S UE S ON A PP E AL

On ap p eal, Father

conce des that grounds for termination exist based on his period of incar cer ation. He a

rgues in this appea l that the petitioners failed to e stablish by clear and convinc ing evidenc e that terminating his parental rights w as in C.A.M.’ s best interest. Father also argue s that the dec ision below must be reve rsed be cause the t rial court did not make specific f indings of fac t as is require d under Sec tion 36-1-113(k) of the Tenne ssee Code Annotated. See Tenn. Code Ann. § 36 -1 -1 13 (k ) ( Sup p. 20 08 ); see In re Swanson , 2 S.W.3d 180, 188 (Tenn. 1999)

. A N A L Y SIS

Al tho ug h “ pa

re nts ha ve a fu nd a me nta l ri gh t to the c are , c us tod y, a nd c on tr ol of the ir children,” this r i g h t i s not absolute, and par ental rights may be te rminated if ther e is clea r and convincing evidenc e justifying such termination under the applica ble statute. Kilpat

rick v. Drinnon (I n re Dr inno n) , 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Sant osky v. Kramer , 4 55 U. S. 745 (1982)) . In Tenne ssee, pare ntal rights may be terminated by the court if ( 1) the e xistence of at least o n e statutory ground is prove n by clea r and c onvincing evidenc e and ( 2) it is clear ly and convincingly established that termination of the paren t ’s ri g h t s is in the best interest of the c hild. T e n n

. C o d e A n n

. § 3 6

- 1

- 1 1 3 ( c ); In r e R.L.F. , 278 S.W.3d 305, 311 (Tenn. Ct. App. 2008). O ur standard of

revie w for c ases involving termination of pare ntal rights was stated in In r e F.R .R. , I

II , 193 S.W.3d 528 (Tenn. 2006) :
Th is Cou rt

mus t r e vie w f

ind ing s o f f

a c t ma de by the tr ia l c ou rt de novo upon the
rec ord “a ccompa nied by a pr esumption of the cor rec tness of the finding, unless the pr e po nd e ranc e of the e vid e nc e is oth e rw ise .” Te nn

. R. Ap p. P. 13 (d ). To te rm inate pare ntal rights, a trial court must determin e b y cl ea r and convincing evidenc e not only the existence of at lea st one of the statutory gr ounds for termination but also that termination is in the child’s best interest. In r e Val e ntine , 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36- 1-113(c )). Upon r eviewing a termination-7-

of par ental rights, this Court’s duty, then, i s t o d et ermine w hether the trial court’s findings, made under

a cle ar and convincing standa rd, ar e s u pported by a preponde ranc e of the evidenc e.
Id. at 530. In this appea l, Father does not ch al l en g e the trial court’s finding of gr ounds for terminating his pare ntal rights. Our re view foc uses on the best intere st of the child, namely whe ther the trial court made the r equire d specific findings of fac t and w h et h er the evidenc e cle arly a nd
c o n v i n c i n g l y e s t a

b l i s h e d t h a tt e r m i n a t i n g F a t h e r ’ s p ar e n t a l r i g h t s i s i n t h e b e s ti n t e r e s to f C

. A

. M.

Tenne ssee statutes gove rning termination proc eedings p r o v id ee x p r e s s lythat, in determining whether the termination of pa

renta l rights is in the best interest of a child, the c ourt shall consider the fo llo wi ng fa c tor s: (1) W hether

the par ent or guardia n has made such an a djustment of circumstanc e, conduct, or

conditions as to make it safe and in the child’s best intere st to be in the home of the pa

rent or gua

rdian; (2) W hether

the par ent or gua

rdian ha s failed to ef

fec t a lasting adjustment after
rea sonable e fforts by available soc ial service s agenc ies for suc h duration of time that lasting adjustment does not reasona bly appea r possible; (3) W hether

the par ent or gua

rdian ha s maintained re gular visi tation or other c ontact with the child; (4) W hether

a mea ningful relat i onship has otherwise be en esta blished betwee n the pare nt and guar dian and the c hild; (5) The eff

ect a change of car etake rs and physica l environment is likely to have on the child’s emotional, psychologica l and medica l condition; (6) W hether

the par ent or gua

rdian, or othe r per son residing wi t h t h e p are nt or guardia n, has shown brutality, physical, sexual, emotional or psychological ab u se, or negle ct towar d the child, or a nother c hild or adult in the family or household; (7) W hether the physical environment of the pare nt’s or guardia n’s home is hea lthy
a ndsa fe , w he the r the re is c ri min a l ac tiv ity in the ho me , o r w he the r the re is s uc h u se of a lc oh ol or c on tr oll e d s ub stanc e s a s may r e nd e r the pa re nt o r g ua

rd ia n c on sis te ntl y unable to ca

re f or the c hild in a safe and stable manne r; (8) W hether

the paren t ’s o r guardia n’s mental and/or emotional status would be detrimental to the c hild or preve nt the pare nt or guardia n from ef

fec tively providing safe and stable c are and supervision for the child; or (9 ) W he the r the pa

re nt o r g ua

rd ia n h a s p a id c hil d su pp ort c on sis te nt wi th the c hil d support guidelines promulgated by the de partment pursuant to § 36-5-101.
Tenn. Code Ann. § 36- 1-113(i) ( Supp. 2008). The fa ctors enume rate d above a re not e xhaustive, and “[t]he statute does not re quire e very factor to appea r bef ore a court c an find that termination is i n a child’s best intere st.” De

p’t of Child

re n’ s Serv s. v . T

.S. W. , No. M2001-01735-COA- R3-PT, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002)

.The s t at ut e pr ovi des t hat “ [ t ] he cour t s hal l e nt er a n or der t hat m ake s s pec i fi c fi ndi ngs of f ac t a nd c oncl us i ons 4

o f l aw w i t h i n t h i rt y (30 ) day s o f t h e co n cl u si o n of t h e h eari n g

. ” T en n

. C o d e A n n

. § 3 6 -1-1 1 3 (k) (Su p p

. 20 0 8 ).
-8- In its written order , the trial court set out the fac ts supporting its conclusion that grounds for termination of Father ’s par ental right s ex i s t ed by clear and convincing evide nce. T he trial c ourt found spec ifically that, in Texa s in 2004, Father was convicted of the felony crimes of aggr avate d assault with a dea dly weapon and reta liation, for which he rec eived a t en (1 0 ) year

sentenc e; that Father is cur

rently inca

rce rate d and wa s incarc erated on the date of the filing of the te rm i n ation petition; that prior to his i ncar cer ation, Father ha d the means and ab i l ity to pay child support for C.A .M . b ut h a s f

a ile d to pay a ny c hil d s up po rt fo r h e r s inc e Oc tob e r 1 4, 20 02 ; th a t Ste pf a the r i s a fit person to have car e and c ustody of C. A. M

. ; an d t hat Stepfathe r is financ ially able to ca re f or C.A.M. These f

indings are based at lea st in part on the trial court’s implicit credibility determination in favor of

Mother and Stepf

ather

. Factual findings by a trial court based on the cr edibility of the witnesses will not be reve rsed a bsent clea

r and c onvincing evidenc e to t h e contr ary. Se e In r e M.L.P. , 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007).

In the sec tion of the order discussing the child’s best interest, the trial court simply st ated that “[e ]ac h and eve ry one of

the nine (9) fac tors set forth in T.C.A. § 36-1- 113(i) support the f inding that termination of [Fathe r’s] rights is in the best interest of [ C.A.M.].” The question become s whether the trial court made suff

icient findings of fa ct and c onclusions of law to satisfy Section 36-1- 113(k). 4 If so, we must then determine whether those fac ts, a s supported by a pr eponder ance of the e vidence and our r eview of the rec ord as a whole, show clea rly and convinc ingly that termination of Father’s pare ntal rights is in C .A.M.’s best intere st.

The specific findings of fac t a re set out in the portion of the trial c ourt’s orde r re lating to the gr ou nd s f or te rm inatio n, a ndthe y a

re no t r e pe a te d in the se c tio n on C.A .M .’ s bes t inte re st. W hil e the te rm inatio n s ta tut e s re qu ir e that the tr ia l c ou rt make sp e c if ic fi nd ing s of fa c t, the re is no auth ority indicating that the findi ngs must be in a particular se ction of the trial c ourt’s orde r. Se e In r e K.H

. , No. W2008- 01144-COA-R3-PT, 2009 WL1362314, at *7 n.6 (T enn. C t. App. May 15, 2009). Often the findings of fac t s u p p o rt ing the grounds for te rmination are also rele vant to the issue of whether termination is in the child’s best interest. So long as t he trial c ourt’s written or der c ontains findings of requisite specific ity that show that termination is in the child’s best interest, the fa ct that the findings are not se t o u t i n t h e “be st interest” sec tion of the order does not rende r the orde r insuffici e n t. I n th is c a s e , th e tria l c o u r t f o u n d th a t Fath e r w a s c o n v ic te d o f a v io le n t f e lo n y , was inc arc e rate d f

or a pe ri odof te n y e ars , a ndwi llf

ull y f a iled to sup po rt

C.A .M . T he tr ia l c ou rt

a lso fo un d th a t Ste pf

a the r i s a fi t pe rs on to ca

re fo r C.A .M . an d is abl e to f inanc ia lly su pp ort he r. Th e se fac tual findings relate to C.A.M.’s best inte re s t as we l l as grounds, and the trial court wa s not require d to repe at them in the best intere st section of the orde r.

We c onsider, then, Father ’s assert i o n t h at t he evide nce in the r ecor d does not clea rly and convincingly establish that terminating Father’ s pare ntal rights is in C .A.M.’s best intere st. Father claims that many of the statutory best interest fa ctors we igh in his fa vor. For exa mple, he cla ims that the evidenc e shows t hat, until his i ncar cer ation, he maintained visitation with C.A.M. after the divorce and established a mea ningful relationship with C.A.M., despite Mother’s e fforts to hamper-9-

their re lationship. F ather also notes that th er e i s “n o t a shred of evide nce” that he has shown brutality toward C.A.M., and he claims that the e vidence of violence toward Mother was we ak. Father a rgues that ther e wa s no evid en ce t h at h e abused drugs or a lcohol, exce pt the positive methamphetamine scre en that Father claimed was cause d by other medications. Father a dmits t hat he failed to pay chi ld sup po rt a s o rd e re d, bu t c la ims that th e e vid e nc e sh ow s th a t hi s f a ilu re to support C.A.M. was not willful. Father also p o i n t s t o other payments he made for the be nefit of C.A.M.

We a re mindful that the rec ord contains undisputed evidenc e that Father loves C.A.M., that he ma de su bs ta nti a l e ff

orts t o v isi t w ithhe r d e sp ite his dis ta nc e fr om he r, a nd that he at te mpt e d to maintain his relationship with her during his subsequent imprisonment. Howeve r, at this point, our focus is not on Father’ s best interest; i t must be on the best interest of C.A.M. in light of the circ umstances a s they prese ntly e xist. It is undisputed that Father has not visited with C.A.M. since Ja nu ary 1, 20 03 , w he n C. A. M. wa s si x y e ars old

. Th is is a dir e c t re su lt o f F a the r’ s c ho ic e s - - f ir st beca use his behavior

cause d the Tenne ssee tria l court to p re v ent contac t with C.A.M., and subsequently bec ause his positive drug t est cause d the revocation of his probation and his resulting incar cer ation. It is further u n d isputed that Father made no child support payments af ter Oc tober 2002, and the evidenc e supports the t rial court’s finding that he had the ability to pay support and willfully failed to do so. Contrary to Fathe r’s denial, substantial evidenc e at tria l showed that Father threatene d both Mother and Gr andmother, and that he physica lly struck Mother whe n she wa s pregnant with C.A.M. F urthermor e, the undisputed e vidence at trial supports the trial c ourt’s finding that Ste pf a the r i s a fi t a ndpr op e r p e rs on to f ulf ill the re sp on sib ili tie s fo r p are nti ng C.A .M ., a ndit shows further

that Stepfather

and C.A.M. have a lovi ng relationship. From our review of the re cord, giv ing du e de fe re nc e to the tr ia l c ou rt ’s c re dib ili ty d e te rm inatio ns , w e fi nd th at the re c or d f ull y supports the trial court’s determination that the evidence establishes cle arly a nd convincingly that terminating Father’ s pare ntal rights is in the best interest of C.A.M. There fore , we find that the trial
c ou rt didno t e rr

in t e rm inatin g Fathe r’ s p are nta l r igh ts.-10-

The de cision of the trial c ourt is af fi rm ed

. C o sts on appeal a re to be taxed to Appe llant Michae l Dale Moore and his surety, for which exe cution may issue, if nec essary.

___________________________________ HOLLY M. K IRBY, JUDGE