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 
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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.
3

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.
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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.
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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 
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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 
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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 
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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]
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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 
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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-l113(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-l102(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-
11

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 
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[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. 
13

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:
14

(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).
15

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 
16

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-l113(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 
17

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