IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 17, 2019 Session

IN RE ALEXIS S.1

Appeal from the Circuit Court for Hamblen County

No. 17-AD-005 Alex E. Pearson, Judge

___________________________________

No. E2018-01989-COA-R3-PT

___________________________________

This is an appeal from the trial court’s termination of a mother’s parental rights and 

denial of the maternal grandmother’s petition for grandparent visitation. The court 

terminated the mother’s rights on the grounds that she abandoned the child by willfully 

failing to visit and support the child, and failed to manifest an ability or willingness to 

assume personal custody of the child. The court also found that termination of the 

mother’s rights was in the child’s best interest. The court awarded guardianship of the 

child to her paternal grandparents and denied the maternal grandmother’s intervening 

petition for visitation, finding that the risk of harm in permitting visitation was greater 

than the risk of harm in denying it. The mother appeals the termination of her parental 

rights, and the grandmother appeals the denial of her petition for visitation. Because the 

trial court failed to make sufficient findings as mandated by Tennessee Code Annotated

§ 36-1-113(k), we reverse the trial court’s determination that the ground of abandonment 

by willful failure to support the child was established and remand the issue for the trial 

court to make the requisite findings and to enter judgment accordingly. We reverse the 

court’s determination that the other two grounds for termination were proven because the 

record fails to establish either ground by clear and convincing evidence. Because no 

ground for termination has been proven, we also reverse the court’s determination 

regarding the child’s best interests. Because the court terminated the father’s parental 

rights, we affirm the court’s appointment of the paternal grandmother and her husband as 

the child’s guardians, subject to the mother’s rights, which have not been terminated. We 

also affirm the denial of the maternal grandmother’s petition for visitation. Therefore, the 

judgment of the trial court is affirmed in part, reversed in part, the judgment terminating 

 

1

This Court has a policy of protecting the identity of children in parental rights termination cases 

by initializing the last names of the parties.

10/29/2019
- 2 -

Mother’s parental rights is vacated, and this matter is remanded to the trial court for 

further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in part, Reversed in part, Vacated in part and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.

MICHAEL SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Aaron Chapman, Morristown, Tennessee, for the appellant, Amanda P.

Crystal Goan Jessee, Greeneville, Tennessee, for the appellees, Bill K. and Donna K.

C. Scott Justice, Jefferson, Tennessee, for the appellee, Vanessa T.

Michelle G. Green, Rogersville, Tennessee, Guardian ad Litem, for the minor child, 

Alexis S.

OPINION

In December 2007, Alexis S. (“the Child”) was born to Amanda P. (“Mother”) and 

Doug S. (“Father”) in Jefferson County, Tennessee. In December 2009, Mother and 

Father voluntarily gave custody of the Child to her maternal grandmother, Vanessa T. 

Mother continued to live in East Tennessee until she met her husband, Caleb P., in 2014.

Mother spent the next two years traveling with Caleb while he worked as a truck driver.

In September 2014, Mother agreed to a new custody order that split custody of the 

Child between Ms. T. and the Child’s paternal grandmother, Donna K. Under the new 

order, Ms. T. had custody of the Child during the summer and on school holidays, and 

Ms. K. had custody of the Child during the school year. Ms. T. and Ms. K. successfully 

maintained this arrangement until August 2016, when Ms. K. filed a petition in the 

Hamblen County Juvenile Court to terminate or severely restrict Ms. T.’s custody. The 

petition alleged, inter alia, that Ms. T. smoked marijuana in front of the Child. Ms. T.

later filed a competing petition to terminate or restrict Ms. K.’s custody, alleging that Ms. 

K. hit the Child.

Meanwhile, Mother became pregnant and moved in with Caleb P.’s family in 

Florida. Mother lived in Florida until she and Caleb P. moved back to Tennessee with 

their new baby in April or May 2017. The couple lived with Ms. T. until October 2017, 

when they moved into a trailer home nearby. Although Mother had no court-ordered 

visitation of her own, she enjoyed informal visitation with the Child when she was with 

Ms. T.
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In November 2017, Mother filed a motion in the juvenile court matter to regain

custody of the Child. Mother argued that returning the Child to her would put an end to 

the grandmother’s protracted litigation and provide the Child with stability. Mother’s 

motion, however, was never adjudicated because Mr. and Ms. K. (“Petitioners”)

instituted the present action to terminate Mother and Father’s parental rights in the 

Hamblen County Circuit Court on December 13, 2017.2

On the same day, Ms. K. obtained an order of protection against Ms. T., which

effectively suspended Ms. T.’s custodial time with the Child. Because Mother’s visitation

with the Child depended on the Child visiting Ms. T., Mother started going to the Child’s 

school twice a week for lunch.

In March 2018, Ms. T.’s visitation resumed when the order of protection was 

dismissed. On May 16, 2018, however, Ms. T. violated the court-ordered residential 

schedule by picking up the Child from school. The next day, a Hamblen County Deputy 

Sheriff went with Ms. K. to Mother’s house, and Mother denied knowing the location of 

Ms. T. and the Child. The officer and Ms. K. then went to Ms. T.’s home, but Ms. T. and 

the Child hid inside with the lights off. Ms. T. returned the Child to Ms. K. the next day. 

Based on this incident, the trial court issued a no-contact order that prohibited Ms. T. and 

Mother from contacting the Child.

In June 2018, Mother filed a motion for visitation that asserted she was wrongfully 

included in the no-contact order. The trial court, however, denied the motion due to 

Mother’s lack of prior, court-ordered visitation and the pending termination hearing.

Around the same time, Ms. T. joined the termination proceedings by filing her own 

petition to terminate Mother and Father’s parental rights and for adoption. Ms. T. also 

requested grandparent visitation if Petitioners succeeded on their petition.

On September 20, 2018, a final hearing was held on both termination petitions. 

The court found that clear and convincing evidence supported the termination of Mother

and Father’s parental rights.3 As its ruling pertained to Mother, the trial court found that 

Petitioners proved two grounds of abandonment based on the fact that Mother made only 

token visits with the Child in the four months before December 2017, and never provided 

 

2

The petition filed by Mr. and Ms. K. was joined in by Ms. K.’s son and the Child’s father, Doug 

S., who stated that he would voluntarily surrender his rights if Mr. and Ms. K were successful in 

terminating Mother’s rights. 

3

Father does not appeal the termination of his parental rights; therefore, we have not discussed 

the facts or grounds upon which his parental rights were terminated.
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monetary support, despite having extra money available every month and being capable 

of working. The court also found that an additional ground had been proven based on 

Mother’s failure to manifest an ability and willingness to assume custody of the Child,

her role as a “friend” rather than a parent, and the improvement in the Child’s behavior 

since Mother’s visits stopped. It concluded that placing the Child in Mother’s custody 

would pose a risk of substantial harm because Mother, along with Ms. T., had exposed 

the Child to “maladaptive behaviors.” Finally, the trial court found that termination of 

Mother’s parental rights was in the Child’s best interest because of the time that had 

passed since Mother had engaged in anything more than token visits. For these reasons,

Mother’s parental rights were terminated.

As for Ms. T.’s request for grandparent visitation, the trial court acknowledged

that she had a significant relationship with the Child but found that the Child would 

suffer less psychological harm from losing the relationship than continuing it. The court 

relied on the testimony of the Child’s therapist, Clifford Miller, who opposed visitation 

“given all the psychological harm that has occurred to [the Child]” when she was with 

Ms. T.

On January 22, 2019, the trial court entered a final judgment, terminating 

Mother’s parental rights and placing “full guardianship” of the Child with Mr. and Ms. K. 

This appeal followed.

Mother raises five issues on appeal:

(1) Whether the trial court erred in relying on statements from Mother’s 

discovery deposition;

(2) Whether the trial court erred in finding that Mother willfully 

abandoned the Child by engaging in only token visitation;

(3) Whether the trial court erred in finding that Mother willfully 

abandoned the Child by willfully failing to support the Child or 

make reasonable payments to support the Child;

(4) Whether the trial court erred in finding that Mother 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 Mother’s legal and physical custody 

would pose a risk of substantial harm to the physical or 

psychological welfare of the Child; and
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(5) Whether the trial court erred in finding by clear and convincing 

evidence that the best interests of the Child required termination of 

parental rights with respect to Mother.

In addition, Ms. T. raises two issues on appeal: (1) whether the trial court erred in 

denying Ms. T. grandparent visitation; and (2) whether the trial court erred by failing to 

make findings of fact and conclusions of law regarding guardianship.

STANDARD OF REVIEW

Termination proceedings are tried to the court without a jury. In re Bernard T., 

319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113). “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 F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). 

Furthermore, in termination proceedings, the trial court must make “specific findings of 

fact and conclusions of law.” Tenn. Code Ann. § 36-1-113(k). 

We review the trial court’s findings of fact in termination proceedings using the 

standard of review in Tenn. R. App. P. 13(d). In re Bernard T., 319 S.W.3d at 596 (citing 

In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)). Under Rule 13(d), we review the 

trial court’s findings of fact de novo on the record, and we will accredit the findings 

unless the evidence preponderates otherwise. Id. (citing In re Adoption of A.M.H., 

215 S.W.3d 793, 809 (Tenn. 2007)). However, the heightened burden of proof in 

termination proceedings requires this court to 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 convincing evidence of the elements necessary to 

terminate parental rights.” In re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re 

Bernard T., 319 S.W.3d at 596–97. A trial court’s ruling regarding whether the evidence 

sufficiently supports termination is a conclusion of law, which we review de novo with 

no presumption of correctness. In re Carrington H., 483 S.W.3d at 524.

If the trial court fails to comply with the statutory mandate to make “specific 

findings of fact and conclusions of law,” appellate courts “must remand the case with 

directions to prepare the required findings of fact and conclusions of law” and to enter 

judgment accordingly. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); see 

In re Jaylah W., 486 S.W.3d 537, 555 (Tenn. Ct. App. 2015).
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ANALYSIS

I. GROUNDS FOR TERMINATION

The trial court found that Petitioners proved three grounds for termination of 

Mother’s parental rights. We shall review each ground separately.

A. Abandonment: Willful Failure to Support

Mother contends there is insufficient evidence in the record to support the trial 

court’s finding that she abandoned the Child by willfully failing to contribute toward the 

support of the Child. More specifically, she contends the only specific finding of fact

relied upon by the trial court concerning this ground is not in the record, and it only 

appears in her discovery deposition, which was not introduced into evidence. Petitioners

counter that the error, if any, was harmless because other evidence in the record supports 

the court’s findings on this ground.

Abandonment is one of the grounds for termination of parental rights. Tenn. Code 

Ann. § 36-1-113(g)(1). When this petition was filed on December 13, 2017, the statute in 

effect at that time defined abandonment as the willful failure to visit, to support, or to 

make reasonable payments toward the support of the child during the four-month period 

preceding the filing of the petition to terminate parental rights. Tenn. Code Ann. § 36-1-

102(1)(A)(i) (2010).4To prove the ground of abandonment as statutorily defined in 2017, 

 

4

The petition at issue here was filed in 2017, at which time Tenn. Code Ann. § 36-1-102(1)(A)(i) 

(2010) was in effect, and our decision is based on the statute in effect when the petition was filed. In 

2018, the Tennessee General Assembly amended this subsection to remove the element of willfulness 

from the definition of abandonment by failure to support or visit. Rather than include willfulness as an 

element of the ground, Tenn. Code Ann. § 36-1-102(1) now provides that it is an affirmative defense:

For purposes of this subdivision (1), it shall be a defense to abandonment for failure to 

visit or failure to support that a parent or guardian’s failure to visit or support was not 

willful. The parent or guardian shall bear the burden of proof that the failure to visit or

support was not willful. Such defense must be established by a preponderance of 

evidence. The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of 

the Tennessee Rules of Civil Procedure[.]

Id. § 102(1)(I). We have previously held that this change may not be applied retroactively. See In re 

Gabriel B., No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 n.7 (Tenn. Ct. App. July 23, 2018) 

(“Because this change is substantive rather than procedural or remedial, however, the amended statute 

will not be applied retroactively to this case.” (citing In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004))). 

Therefore, the 2018 amendment does not apply in this case.
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a petitioner was required to “establish by clear and convincing evidence that a parent who 

failed to visit or support had the capacity to do so, made no attempt to do so, and had no 

justifiable excuse for not doing so.” In re Adoption of Angela E., 402 S.W.3d 636, 640 

(Tenn. 2013). Whether a parent failed to support a child is a question of fact and whether 

a parent’s failure to support constitutes willful abandonment is a question of law. Id.

“Willful failure to support or to make reasonable payments toward support means 

‘the willful failure, for a period of four (4) consecutive months, to provide monetary 

support or the willful failure to provide more than token payments toward the support of 

the child.’” Id. (quoting Tenn. Code Ann. § 36-1-102(1)(D)). Significantly, however, a

parent has not abandoned her child when her failure to support is due to circumstances 

outside her control. See In re Adoption of A.M.H., 215 S.W.3d at 810 (holding that the 

evidence did not support a finding that the parents “intentionally abandoned” their child). 

The petition for termination of Mother’s parental rights was filed on December 13, 

2017. Although the petition was later amended, the relevant period for purposes of

abandonment is the four-month period immediately preceding the filing of the original 

petition. See In re Adoption of Angela E., 402 S.W.3d at 640 (citing Tenn. Code Ann. 

§ 36-1-102(1)(A)(i); In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003)). Therefore, the 

relevant four-month period is August 13, 2017, to December 12, 2017.

In its October 19, 2018 Memorandum Opinion, which the court incorporated by 

reference in its Final Judgment, the court set forth its findings of fact concerning each 

ground for termination. The entirety of the trial court’s findings of fact pertinent to the 

ground of abandonment for willfully failing to support the Child reads as follows:

2. The Court finds by clear and convincing evidence that [Mother] has 

willfully failed to support the minor child and has willfully failed to 

make reasonable payments toward the support of the minor child 

since birth including the last four months before the filing of this

petition in December of 2017. The clear testimony from [Mother] 

establishes that she was and is fully capable of working to help 

support Alexis but simply has chosen from the time the child was 

born to not contribute any support for Alexis. [Mother] testified both 

during trial and at deposition that she was not disabled and was fully 

capable of working. [Mother] acknowledged that she operates a 

small business called Pink Zebra but is not really making much 

money through it. The Court considered the testimony of [Mother] 

that she bought “some clothes and stuff” for Alexis (Lexi) in 

conjunction with the rest of her testimony as well as the other proof 

at trial and finds such testimony unpersuasive. [Mother] 

acknowledged in her deposition that she had between $80.00 and 
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$100.00 per month in extra money available; however, she chose 

not to obtain employment outside of the home or provide any 

support for Alexis.

. . .

5. The Court further finds for the same reasons provided in paragraph 2 

above that the intervening petitioners have established that [Mother] 

has willfully failed to make reasonable payments toward the support 

of the minor child. As discussed above, [Mother] has never paid 

child support for the minor child and there is no reason as to why she 

cannot work to provide support.

(Emphasis added).

Other than the finding that “[Mother] acknowledged in her deposition that she had 

between $80.00 and $100.00 per month in extra money available,” the trial court made no 

specific finding of fact that supports the conclusion that Mother “willfully” failed to 

support the Child. This is significant because Mother’s acknowledgment only appears in 

her discovery deposition, and her deposition was not introduced into evidence.

“Rule 32 of the Tennessee Rules of Civil Procedure governs the use of depositions 

in court proceedings.” Estate of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 733 (Tenn. 

Ct. App. 2001). Rule 32 allows the use of a deposition against any party who was present 

or represented at the taking of the deposition in specific circumstances. Tenn. R. Civ. P. 

32.01. Further, at trial, “any deposition may be used by any party for the purpose of 

contradicting or impeaching the testimony of deponent as a witness,” Tenn. R. Civ. P. 

32.01(1), and “the deposition of a party, . . . may be used by an adverse party for any 

purpose.” Tenn. R. Civ. P. 32.01(2); Dargi v. Terminix Int’l Co., L.P., 23 S.W.3d 342, 

345 (Tenn. Ct. App. 2000). Thus, Petitioners could have used the deposition of Mother to 

impeach her testimony or “for any purpose,” including as substantive evidence 

independent of her testimony, but they did not.

The trial court’s finding that Mother had “between $80.00 and $100.00 per month 

in extra money available” was clearly significant to the trial court’s conclusion on this 

ground because a failure to support is willful only when the parent “has the capacity to 

provide the support.” State, Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 

524 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-

CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). Proof of capacity 

requires evidence of income and expenses. See In re Addalyne S., 556 S.W.3d 774, 789 

(Tenn. Ct. App. 2018) (“Tennessee courts have noted that proof of employment and 

earned wages is not sufficient to prove that parent has the capacity to provide support 
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absent evidence of income and expenses.”), appeal denied (July 30, 2018). An admission 

by Mother that she had extra money at the end of each month would constitute an 

admission that her income was more than her expenses if the admission pertained to the 

period at issue.

However, although Mother acknowledged in her discovery deposition that she had 

“between $80.00 and $100.00 per month in extra money available,” Mother did not 

testify at trial that she had extra money available. Moreover, Petitioners did not introduce 

the deposition into evidence and did not use the deposition to cross-examine Mother on 

that important fact.5Therefore, the acknowledgment from Mother’s deposition testimony 

of having between $80.00 and $100.00 per month in extra money was not introduced as 

evidence at trial. Moreover, the only evidence in the record of Mother’s income is her 

trial testimony that she “earned” a total of $80 to $100 by selling crafts from a directsales business called Pink Zebra; however, her testimony fails to identify when she 

earned this money. Just as significant, there is no evidence of Mother’s expenses during 

this unknown period, and the only relevant period is the four months preceding the filing 

of the petition.

It is well settled that a trial court’s decision must be grounded on the evidence 

introduced. See Allen v. Albea, 476 S.W.3d 366, 374 (Tenn. Ct. App. 2015) (citing Patton 

v. Rose, 892 S.W.2d 410, 413 (Tenn. Ct. App. 1994)). Moreover, a trial court’s decision 

that is “based on something other than the evidence introduced at trial” should not be 

allowed to stand. See id. (quoting Patton, 892 S.W.2d at 413). The trial court’s finding 

that Mother had extra money and the ability to pay support, based on Mother having 

“between $80.00 and $100.00 per month in extra money available,” was based on 

something other than the evidence introduced. Consequently, the decision, to the extent it 

was based on facts not in evidence, cannot stand.

 

5

At the beginning of trial, the trial judge and counsel discussed admitting the deposition of 

Mother into evidence:

[Counsel for Petitioners]: You also have the mother’s deposition, the original in the file. I will 

admit that in as an exhibit. You took it at the last hearing.

[Counsel for Mother]: Oh, on the basis of the deposition, I object on the basis it’s a discovery 

deposition, and there was numerous objections made therein. I think it can be used for 

impeachment only at this point.

[Counsel for Petitioners]: That’s fine. I’ll withdraw it at this time. . . .
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Moreover, because there is no competent evidence in the record to support a 

finding that Mother had the ability to provide support during the relevant four-month

period, the evidence preponderates against the trial court’s factual finding that she had the 

ability to provide support during the four months immediately preceding the filing of the 

petition for termination. Admittedly, the trial court found that Mother was “fully capable 

of working to help support” the Child but chose not to obtain a job outside of the home. 

While the evidence does not preponderate against this specific finding, the finding does 

not establish by clear and convincing evidence that Mother had the capacity to support 

the Child during the relevant four-month period. See In re Addalyne S., 556 S.W.3d 

at 788–89 (“In determining a parent’s capacity to pay support, it is not enough for a 

petitioner to ‘simply prove that [the parent] was not disabled during the relevant 

timeframe’ and therefore assume that he or she was capable of working and providing 

support.” (quoting In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL 3209181, 

at *4 (Tenn. Ct. App. July 28, 2017))).

In concluding that Mother had the ability to pay support, the trial court failed to 

consider that Mother had a toddler at home and she was functioning as a single parent 

most of the time because her husband was an over-the-road truck driver. Moreover, 

obtaining work outside of the home would necessitate arranging and paying for childcare,

and there is no evidence in the record upon which to find that Mother would have had 

money left over after paying this additional expense. As we explained in In re Alysia S., 

“Simply finding that [a parent] worked and was compensated at some point during the 

four-month period does not, by itself, mean that she had the ability to pay child support.”

460 S.W.3d 536, 570 (Tenn. Ct. App. 2014).

For the reasons stated above, we conclude that Petitioners failed to establish by 

clear and convincing evidence that Mother had the capacity to support the Child during 

the relevant four-month period, made no attempt to do so, and had no justifiable excuse 

for not doing so. See In re Adoption of Angela E., 402 S.W.3d at 640; see also In re 

Audrey S., 182 S.W.3d at 864. Therefore, we reverse the trial court’s determination that 

Petitioners proved the ground of abandonment by willfully failing to support the Child.6

Having dispensed with the ground of abandonment by failure to support, we will 

next consider the trial court’s conclusions that Mother abandoned the Child by failing to 

 

6

Our decision is based on Tenn. Code Ann. § 36-1-102(1)(D) (2010), the version of the statute in 

effect when the initial petition in this case was filed. As noted earlier, willfulness is no longer an element 

of the ground; instead, willfulness is now an affirmative defense that must be pled. See Tenn. Code Ann. 

§ 36-1-102(1)(D) (2018).
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engage in more than token visitation and failed to manifest an ability and willingness to 

assume custody or financial responsibility for the Child.

B. Abandonment: Willful Failure to Visit

Mother contends there was “ample” evidence she visited with the Child during the 

four months before the petition was filed. Our review of this ground, however, is 

precluded by the lack of specific findings of fact that pertain to the relevant period.

Tennessee Code Annotated § 36-1-113(k) requires trial courts to make “specific 

findings of fact and conclusions of law” when ruling on a petition to terminate parental 

rights. See In re Navada N., 498 S.W.3d 579, 594 (Tenn. Ct. App. 2016). Mere legal 

conclusions are insufficient. Id. Failing to comply with this directive “fatally undermines 

the validity of a termination order.” Id. (quoting In re S.M., 149 S.W.3d 632, 639 (Tenn.

Ct. App. 2004)). Without sufficient findings of fact, we must remand the matter to the 

trial court with instructions to make specific findings of fact and conclusions of law. See

id. at 594–95.

The underlying rationale for requiring specific findings is that the findings 

facilitate appellate review by “affording a reviewing court a clear understanding of the 

basis of a trial court’s decision.” Gooding v. Gooding, 477 S.W.3d 774, 782 (Tenn. Ct. 

App. 2015) (citation omitted). “[F]indings of fact that are both sufficient and supported 

by the record ‘enhance the authority of the trial court’s decision by providing an 

explanation of the court’s reasoning.’” Id. (citation omitted). Otherwise, “this court is left 

to wonder on what basis the court reached its ultimate decision.” Id. (citing In re Estate of 

Oakley, No. M2014-00341-COA-R3-CV, 2015 WL 572747, at *10 (Tenn. Ct. App. 

Feb. 10, 2015) (quoting Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013))). As we have 

explained,

While there is no bright-line test by which to assess the sufficiency of the 

trial court’s factual findings, the general rule is that “the findings of fact 

must include as much of the subsidiary facts as is necessary to disclose to 

the reviewing court the steps by which the trial court reached its ultimate 

conclusion on each factual issue.” In re Estate of Oakley, 2015 WL 572747, 

at *11 (quoting Lovlace, 418 S.W.3d at 35) . . . . [W]hen the trial court does 

not make specific findings of fact, no presumption of correctness arises 

because “there was nothing found as a fact which we may presume 

correct.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999).

Id. at 782.
- 12 -

“A parent may not be found to have abandoned the child unless the parent has 

‘willfully’ failed to visit or support the child for the four consecutive months prior to the 

filing of a termination petition.”

7

In re Keri C., 384 S.W.3d 731, 745 (Tenn. Ct. App. 

2010) (citing In re Adoption of Muir, M2004-02652-COA-R3-CV, 2005 WL 3076896, at 

*4 (Tenn. Ct. App. Nov. 16, 2005)). This concept of “willfulness” is at the core of this 

statutory definition. Id. To prove a parent’s failure to visit or support was willful, the 

petitioner must prove by clear and convincing evidence that the parent “had the capacity 

to do so, made no attempt to do so, and had no justifiable excuse for not doing so” during 

the relevant four-month period. In re Adoption of Angela E., 402 S.W.3d at 640.

Thus, the statutory definition of abandonment in Tennessee Code Annotated § 36-

1-102(1)(A)(1) requires the trial court “to focus on the parent’s conduct during this 

four-month period.” In re Keri C., 384 S.W.3d at 749 (emphasis added). Nevertheless,

“the parent’s conduct and the relationship between the child and the parent up to this 

point [are] relevant background and context for the necessarily fact-intensive evaluation 

of whether the visitation during the four-month period was merely ‘token.’”

8

Id.

(emphasis in original). Whether a parent failed to visit a child is a question of fact and 

whether a parent’s failure to support constitutes willful abandonment is a question of law. 

In re Adoption of Angela E., 402 S.W.3d at 640. 

As noted earlier, the trial court’s October 2018 Memorandum Opinion set forth its 

ruling concerning each ground for termination. The entirety of the trial court’s findings of 

fact and conclusions of law pertinent to the ground of abandonment for willfully failing 

to visit the Child read as follows:

The Court finds that the Petitioner has established by a preponderance of 

the evidence that [Mother] . . . has willfully failed to maintain visitation 

with the minor child for a period of at least four consecutive months 

immediately preceding the filing of this petition on December 13, 2017. 

The Court finds that [Mother] did engage in token visitation with the minor 

 

7

Our decision is based on Tenn. Code Ann. § 36-1-102(1)(D) (2010), the version of the statute in 

effect when the initial petition in this case was filed. As noted earlier, willfulness is no longer an element 

of the ground. Instead, willfulness is now an affirmative defense that must be pled. See Tenn. Code Ann. 

§ 36-1-102(1)(D) (2018).

8

“For example, the significance of facts such as the setting and the length of time of the visits 

during the relevant time period is better assessed with an understanding of the parent’s prior efforts to 

forge a relationship with the child, and whether a bond between parent and child had previously been 

established.” In re Keri C., 384 S.W.3d at 749.
- 13 -

child, but the Court cannot find from the proof introduced at trial that said

visitation amounted to anything more than mere token visitation. The Court 

finds that [Mother] was aware of the ongoing juvenile court litigation but 

failed to exercise any efforts to obtain visitation until November 3, 2017. 

[Mother], by agreed order on September 2, 2014, gave primary legal 

custody to Petitioner [Ms. K.], and this followed a prior agreed order in 

which [Mother] gave primary custody of Alexis to [Mrs. T.] on December 

9, 2009. The Court finds from [Mother’s] own deposition testimony that 

since 2009 she has largely lived a very unstable life. In fact, [Mother] 

acknowledges that she only finally obtained stable housing after becoming 

involved with her current husband and this relationship did not result in 

stable housing until November of 2017 at the earliest. After becoming 

involved with her current husband, [Mother] for a period of time still did 

not have a home and traveled the road living in her husband’s semi-truck. 

Once [Mother] became pregnant with her son, [B.], she continued to ride 

with her husband until regulations or recommendations caused her to stop 

traveling on her husband’s runs with him. She then resided with his family 

in Florida from around August of 2016 until May of 2017. [Mother] 

acknowledged in her deposition that she did not obtain stable housing until 

November of 2017. [Mother] also acknowledged in her deposition 

testimony that she did not believe that her mother, Mrs. [T.], would ever 

allow her to regain custody of Alexis again because of her lack of stability 

and inability to support the child.

As the Memorandum Opinion reveals, the trial court made no specific findings of 

fact regarding the frequency, duration, or quality of Mother’s visits during the four 

months before December 13, 2017.

9 Admittedly, the trial court made the specific finding 

of fact that Mother “was aware of the ongoing juvenile court litigation but failed to 

 

9

Petitioners erroneously argue that there are “multiple four-month periods for the Court to take 

into consideration” because they amended their complaint in July 2018 to add a claim of abandonment 

during the four months prior to July 2018. As our Supreme Court explained in In re Adoption of Angela 

E., “[T]he relevant period for purposes of abandonment is the four-month period immediately preceding 

the filing of the original petition.” 402 S.W.3d at 640 (citations omitted).

Although the statutory definition of “abandonment” was amended in 2018 to include

consideration of parent’s visits during the four months before an amendment, we find it unnecessary to 

address the application of that change because the trial court based its decision on the four months prior to 

the filing of the petition in December 2017, and Petitioners did not appeal the court’s failure to address 

the other four-month period.
- 14 -

exercise any efforts to obtain visitation until November 3, 2017,” which was fourteen 

days before the filing of the petition. However, the trial court did not address whether 

Petitioners established by clear and convincing evidence that Mother “had the capacity 

to [visit], made no attempt to do so, and had no justifiable excuse for not doing so.” In 

re Adoption of Angela E., 402 S.W.3d at 640 (emphasis added). 

The trial court found that “the Petitioner has established by a preponderance of the 

evidence that [Mother], mother of Alexis . . . , has willfully failed to maintain visitation 

with the minor child for a period of at least four consecutive months immediately 

preceding the filing of this petition on December 13, 2017.”10 This is a conclusion of law 

and does not constitute a specific finding of fact. The trial court also found that Mother 

engaged “in token visitation with the minor child”; however, this too is a conclusion of 

law, not a finding of fact.

Furthermore, the court’s remaining findings of fact pertain to matters other than 

visitation during the relevant four-month period; specifically, the trial court’s findings 

pertain primarily to the “instability” of Mother’s life between 2009 and 2016. For 

example, the trial court found that Mother “lived a very unstable life” after giving up 

custody of the Child because she traveled with her husband for two years; lived with her 

husband’s family in Florida for six months; and did not obtain independent housing until 

November 2017.

Of additional significance, the trial court did not determine whether Petitioners 

had established the ground by clear and convincing evidence, which is the requisite 

burden when proving grounds for termination of parental rights. See In re Adoption of 

Angela E., 402 S.W.3d at 640. Instead, the trial court stated that Petitioners had 

established the ground “by a preponderance of the evidence,” which is a significantly less 

stringent standard. “‘Clear and convincing evidence’ is ‘evidence in which there is no 

serious or substantial doubt about the correctness of the conclusions drawn from the 

evidence.’” In re Valentine, 79 S.W.3d at 546 (quoting Hodges v. S.C. Toof & Co., 833 

S.W.2d 896, 901 n.3 (Tenn. 1992)). Whether the reference to the preponderance of the 

evidence standard was inadvertent or intentional cannot be determined with this record. 

Nevertheless, Mother’s parental rights may not be terminated based on the finding that 

Petitioners established this ground “by a preponderance of the evidence.” Termination of 

parental rights must be based upon, inter alia, “[a] finding by the court by clear and 

 

10 As we discuss later, “the preponderance of the evidence” is not the standard by which 

abandonment must be proven. The applicable standard is the more strenuous “clear and convincing” 

standard of proof.
- 15 -

convincing evidence that the grounds for termination of parental or guardianship rights 

have been established.” Tenn. Code Ann. § 36-1-113(c)(1).

Due to the trial court’s failure to make specific findings of fact regarding Mother’s 

visits during the relevant four-month period, we are left to wonder what facts formed the 

basis of its conclusion that she abandoned the Child by willfully failing to visit. See

Gooding, 477 S.W.3d at 782. Further, we may not “soldier on” to make our own findings 

of fact relative to this ground. See In re Navada N., 498 S.W.3d at 594; see also In re 

S.M., 149 S.W.3d at 639 (stating that the absence of specific findings “fatally undermines 

the validity of a termination order”).

Therefore, we will determine whether another ground for termination has been 

proven by clear and convincing evidence. If so, we will then review the trial court’s 

determination that termination of Mother’s parental rights is in the Child’s best interest. If 

not, we must remand this matter to the trial court with instructions to make “specific 

findings of fact and conclusions of law,” as Tenn. Code Ann. § 36-1-113(k) requires. See

In re Navada N., 498 S.W.3d at 594–95; see also In re S.M., 149 S.W.3d at 639.

C. Ability, Willingness, and Risk of Substantial Harm

Mother contends that the trial court erred in finding that termination of her 

parental rights was appropriate under Tenn. Code Ann. § 36-1-113(g)(14). Under this 

ground, a parent’s rights may be terminated if he or she

[1] 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 [2] 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.

Tenn. Code Ann. § 36-1-113(g)(14). We find the dispositive issue is whether there was 

clear and convincing evidence that placing the Child in Mother’s custody would pose a 

risk of substantial harm to the Child.

The trial court concluded that Mother “likely” posed a risk of substantial harm to 

the Child’s psychological welfare. The court based its conclusion primarily on 

Mr. Miller’s testimony about Ms. T.’s “maladaptive behavior” and Mother’s admission 

that she lied to law enforcement:

Mr. Miller, the child’s therapist, testified about the maladaptive behaviors 

that he was concerned that [the Child] was being exposed to during the 

visits with Mrs. T. in which the mother was an occasional participant. The 

proof at trial established clearly that [the Child] functions better when she is 
- 16 -

not exposed to the psychological stressors that occur during her visits with 

Mrs. T. and [Mother]. . . . [Mother] acknowledged she lied to law 

enforcement . . . during their attempt to serve an attachment to retrieve the 

child from Mrs. T. . . . . [Mother] was aware that Alexis was just down the 

road at Mrs. T.’s house but lied about it to law enforcement. Law 

enforcement then proceeded to Mrs. T.’s house where she and [the Child]

hid in the bathroom while law enforcement repeatedly announced their 

presence and shined flashlights through the windows trying to locate [the 

Child].

After a thorough review of the record, we respectfully find that the evidence 

preponderates against the finding that Mother was an “occasional participant” in Ms. T.’s 

“maladaptive behavior” and that the Child functioned better when not exposed to Mother.

Mr. Miller testified that the Child’s mental health improved while Ms. T.’s 

visitation was suspended. Likewise, the Child’s teachers testified that the Child’s school 

performance improved during the spring semester of 2018, when Ms. T. was subject to an 

order of protection. At that time, however, Mother was visiting the Child twice a week at 

school for lunch. Accordingly, the evidence shows it was the Child’s interactions with 

Ms. T. that caused psychological stress.

Likewise, the record does not include evidence that Mother was an “occasional 

participant” in the behavior that Mr. Miller characterized as “maladaptive.” Mr. Miller 

testified that the Child was suffering from anxiety and depression due to the animosity 

between Ms. K. and Ms. T. He attributed the Child’s struggles primarily to Ms. T., who 

he said had exposed the Child to “maladaptive, dysfunctional behaviors, morals, and 

values.” In particular, the Child reported that Ms. T. told her that Ms. K. did not love her; 

instructed her to “act out” and “be bad” so Ms. K. would not want her anymore and she 

would get thrown out of school; made threats to the safety of Mr. and Ms. K.; and told 

the Child to report that Ms. K. hit her. Mr. Miller also testified that the May 2018 

incident was traumatic for the Child because she thought Ms. T. did something wrong. 

After the incident, the Child was scared that the police would take her away from Ms. K.

too.

As for Mother, Mr. Miller conceded that no welfare concerns were reported to him 

regarding Mother’s involvement with the Child. His sole concern about Mother came 

from Mother’s lie to law enforcement during the May 2018 incident. Mr. Miller 

speculated that Mother might repeat Ms. T.’s dysfunctional behavior, reasoning that, “[i]f 

it is that easy for someone to lie to law enforcement, especially when they are not in any 

trouble themselves, then one might assume it would be a behavior often present and a 

behavior observed by a child or children parented by the individual.”
- 17 -

While we share the trial court’s disapproval of Mother’s action during the May 

2018 incident, we cannot conclude this action, standing alone, constitutes clear and 

convincing evidence that placing the Child in Mother’s custody poses a risk of substantial

harm to the Child’s psychological welfare. Previously, we have described the 

circumstances that pose “a risk of substantial harm” in these terms:

[T]he 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); see In re 

Serenity W., No. E2018-00460-COA-R3-PT, 2019 WL 511387, at *7 (Tenn. Ct. App. 

Feb. 8, 2019) (“While a relapse was a theoretical possibility, DCS failed to prove that it 

was a reasonable probability.”). Based on the evidence in the record, we find Petitioners 

failed to prove more than a theoretical risk of harm. Therefore, we must reverse the trial 

court’s termination of Mother’s rights on this ground as well.

II. THE BEST INTERESTS OF THE CHILD

Tennessee Code Annotated § 36-1-113(c) provides that “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 . . . rights have been 

established; and (2) That termination of the parent’s . . . rights is in the best interests of 

the child.” See In re Valentine, 79 S.W.3d at 546; Matter of M.W.A., Jr., 980 S.W.2d 620, 

622 (Tenn. Ct. App. 1998). Thus, the statute requires the petitioner to establish by clear 

and convincing proof that at least one of the enumerated statutory grounds for 

termination exists and that termination is in the child’s best interests. See 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 at 254)).

We have reversed the trial court’s determination that Petitioners proved the 

grounds of abandonment by failure to support and failure to manifest an ability and 

willingness to assume custody. We have also determined that the trial court failed to 

make the requisite findings of fact as mandated by Tenn. Code Ann. § 36-1-113(k). 

Because no ground for terminating the parental rights of Mother has been established, we 

do not reach the best-interests analysis. See In re D.L.B., 118 S.W.3d at 368; see also

Tenn. Code Ann. § 36-1-113(c) (requiring first a “finding by the court by clear and 

convincing evidence that the grounds for termination of parental or guardianship rights 

have been established” and then a finding that the “termination of the parent’s or 
- 18 -

guardian’s rights is in the best interests of the child”). Therefore, we reverse the trial 

court’s determination that termination of Mother’s parental rights is in the Child’s best 

interest.

Additionally, acting under the authority in In re Audrey S., 182 S.W.3d at 861 and

In re Jaylah W., 486 S.W.3d at 555, we remand Petitioners’ claim that Mother abandoned 

the Child by willfully failing to visit during the four months before the petition was filed, 

with instructions for the trial court to make “specific findings of fact and conclusions of 

law,” as required by Tenn. Code Ann. § 36-1-113(k). On remand, if the trial court 

determines that the ground of abandonment by willfully failing to visit the Child has been 

proven, then the trial court shall also determine, after making specific findings of fact and 

conclusions of law, whether Petitioners have proven by clear and convincing evidence 

that termination of Mother’s parental rights is in the Child’s best interest and enter 

judgment accordingly.

In order to expedite this case, the trial court’s judgment should be entered within 

sixty days from the entry of this judgment. See In re D.L.B., 118 S.W.3d at 368 (citing 

Tenn. Code Ann. § 36-1-124) (providing that contested terminations of parental rights 

and adoptions shall be expedited).

III. GUARDIANSHIP

Ms. T. contends that the trial court’s placement of guardianship with Petitioners 

should be reversed because the trial court failed to make sufficient findings of fact and 

conclusions of law regarding this issue.

“Upon termination of parental or guardian rights, the court may award 

guardianship or partial guardianship to any prospective adoptive parent or parents with 

the right to adopt the child . . . .” Tenn. Code Ann. § 36-1-113(m). This award is “subject 

to the remaining rights, if any, of any other parent or guardian of the child.” Id. An order 

of guardianship under Tenn. Code Ann. § 36-1-113 supersedes “prior orders of custody 

or guardianship of that court and of other courts.” Id. § 113(n). Therefore, our reversal of 

the judgment terminating Mother’s parental rights does not require us to vacate the award

of guardianship to Petitioners. Nevertheless, because Mother’s parental rights have not

been terminated, only Father’s, the appointment of Petitioners as guardians of the Child is 

“subject to the remaining rights, if any, of any other parent or guardian of the child.”

Tenn. Code Ann. § 36-1-113(m).

Tennessee Code Annotated § 36-1-113 does not outline a specific procedure for 

awarding guardianship when there are two prospective, adoptive parents. But Tenn. Code 

Ann. § 36-1-101(a)(3) provides that one purpose of the adoption statute is to ensure “that 

the best interests of children in the adoptive process are protected.” Accordingly, our

Supreme Court has held that a comparative fitness analysis under § 36-6-106 was 
- 19 -

appropriate when considering competing petitions for adoption by two sets of 

grandparents. See In re Sidney J., 313 S.W.3d 772, 776 (Tenn. 2010). Likewise, we find 

the analysis in § 36-6-106 is appropriate for awarding guardianship under § 36-1-113(m). 

Cf. Tenn. Code Ann. § 34-2-103 (providing that juvenile court decisions in actions for 

guardianship are “[s]ubject to the court’s determination of what is in the best interests of 

the minor”); In re R.D.M., 306 S.W.3d 731, 735 (Tenn. Ct. App. 2009) (applying bestinterest analysis in § 36-6-106 to action for guardianship).

Tennessee Code Annotated § 36-6-106(a) provides fifteen factors for the court to 

consider when determining the child’s best interest. When a trial court fails to make

sufficient findings in its application of these factors, a remand is required. See Stricklin v. 

Stricklin, 490 S.W.3d 8, 18 (Tenn. Ct. App. 2015) (remanded a trial court’s ruling on a 

custody agreement when “[t]he record [was] simply devoid of sufficient findings” as to 

whether a custody agreement was in the child’s best interests). Here, however, the court 

made sufficient findings when it denied Ms. T.’s request for grandparent visitation.11

As is relevant, the best-interest analysis in Tenn. Code Ann. § 36-6-106(a)

requires the court to consider several factors:

(2) Each parent’s or caregiver’s past and potential for future 

performance of parenting responsibilities, including the willingness 

and ability of each of the parents and caregivers to facilitate and 

encourage a close and continuing parent-child relationship 

between the child and both of the child’s parents, consistent with 

the best interest of the child. In determining the willingness of each 

of the parents and caregivers to facilitate and encourage a close and 

continuing parent-child relationship between the child and both of 

the child’s parents, the court shall consider the likelihood of each 

parent and caregiver to honor and facilitate court ordered 

parenting arrangements and rights, and the court shall further 

consider any history of either parent or any caregiver denying 

parenting time to either parent in violation of a court order;

. . .

 

11 We recognize that a decision under the grandparent visitation statute is subject to its own set of 

factors. Compare Tenn. Code Ann. § 36-6-106(a) (providing factors for best-interests analysis) with

Tenn. Code Ann. § 36-6-307 (providing factors for best-interests analysis in grandparent visitation 

matters). In the present case, the court’s findings are applicable under both statutes.
- 20 -

(6) The love, affection, and emotional ties existing between each parent 

and the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent 

as it relates to their ability to parent the child. . . .;

. . .

(10) The importance of continuity in the child’s life and the length of 

time the child has lived in a stable, satisfactory environment; [and]

. . .

(15) Any other factors deemed relevant by the court.

The trial court recognized that Ms. T. and the Child loved each other, but the court 

found that the Child was “more stable and perform[ed] better at school and home during 

times that the [C]hild is not exposed to [Ms.] T.” The court also agreed with Mr. Miller’s 

recommendation that the Child not visit Ms. T. due to her “maladaptive behaviors” and 

“the psychological harm that has occurred to [the Child] during times of visitation.” The 

evidence does not preponderate against these findings.

Based on the foregoing, we find the court made sufficient findings of fact to 

support its conclusion that guardianship should be placed with Petitioners. Of course, as

noted above, the appointment of Petitioners as guardians of the Child is “subject to the 

remaining rights, if any, of any other parent or guardian of the child.” Tenn. Code Ann. 

§ 36-1-113(m).

III. GRANDPARENT VISITATION

Ms. T. also contends that the denial of her petition for grandparent visitation 

should be reversed because the trial court applied the wrong standard in making its 

decision.

“Review of a trial court’s decision regarding visitation is governed by an abuse of 

discretion standard.” Lovlace, 418 S.W.3d at 16. The abuse of discretion standard does 

not permit reviewing courts to substitute their discretion for that of the trial court. Lee 

Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Nevertheless, the abuse of 

discretion standard of review does not “immunize a lower court’s decision from any 

meaningful appellate scrutiny.” Id. “Discretionary decisions must take the applicable law 

and the relevant facts into account. An abuse of discretion occurs when a court strays 

beyond the applicable legal standards or when it fails to properly consider the factors 
- 21 -

customarily used to guide the particular discretionary decision.” Id. In reviewing a trial 

court’s discretionary decision, we are to determine 

(1) whether the factual basis for the decision is properly supported by 

evidence in the record, (2) whether the [trial] court properly identified and 

applied the most appropriate legal principles applicable to the decision, and 

(3) whether the [trial] court’s decision was within the range of acceptable 

alternative dispositions. 

Id. at 524. In this process, we review the underlying factual findings using the 

preponderance of the evidence standard in Tenn. R. App. P. 13(d) and the trial court’s 

legal determinations de novo with no presumption of correctness. Id. at 525.

Because the trial court’s award of guardianship superseded the prior order of 

custody from the juvenile court, see Tenn. Code Ann. § 36-1-113(n), the award 

terminated Ms. T.’s right to visitation with the Child. Foreseeing this possibility, Ms. T.’s 

petition included an alternative cause of action for grandparent visitation under Tenn. 

Code Ann. § 36-6-306(a), which provides,

Any of the following circumstances, when presented in a petition for 

grandparent visitation . . . , necessitates a hearing if such grandparent 

visitation is opposed by the custodial parent or parents or custodian or if the 

grandparent visitation has been severely reduced by the custodial parent or 

parents or custodian:

. . .

(5) The child resided in the home of the grandparent for a period of 

twelve (12) months or more and was subsequently removed from the 

home by the parent, parents, or custodian (this grandparentgrandchild relationship establishes a rebuttable presumption that 

denial of visitation may result in irreparable harm to the child); or

(6) The child and the grandparent maintained a significant existing 

relationship for a period of twelve (12) months or more immediately 

preceding severance or severe reduction of the relationship, this 

relationship was severed or severely reduced by the parent, parents, 

or custodian for reasons other than abuse or presence of a danger of 

substantial harm to the child, and severance or severe reduction of 

this relationship is likely to occasion substantial emotional harm to 

the child.
- 22 -

In her petition, Ms. T. contended that she was entitled to visitation because she 

had a “significant relationship that existed for twelve (12) months or more immediately 

preceding the severance of the relationship between the Petitioner and child.” The trial 

court agreed that Ms. T. had a significant existing relationship, given the number of years 

that Ms. T. was the Child’s primary custodian. Nonetheless, the court did not find 

grandparent visitation was appropriate based on its finding that the Child would suffer 

less psychological harm from denying visitation than continuing it.

On appeal, Ms. T. first contends the trial court erred by applying subsection (a)(6) 

instead of subsection (a)(5). Under Tenn. Code Ann. § 36-6-306(a)(5), a grandparent is 

entitled to a presumption of irreparable harm when “[t]he child resided in the home of the 

grandparent for a period of twelve (12) months or more.” Her petition, however, did not 

plead this ground. Consequently, it is waived on appeal. See Fayne v. Vincent, 

301 S.W.3d 162, 170 (Tenn. 2009).

Ms. T. also contends that the trial court erred by failing to determine whether there 

was a danger of substantial harm based on the cessation or severe reduction of her 

relationship with the Child. Under Tenn. Code Ann. § 36-6-306(b)(1), a trial court must 

find “a danger of substantial harm to the child.” This finding may be based upon one of 

three circumstances:

(A) The child had such a significant existing relationship with the 

grandparent that loss or severe reduction of the relationship is likely 

to occasion severe emotional harm to the child;

(B) The grandparent functioned as a primary caregiver such that

cessation or severe reduction of the relationship could interrupt 

provision of the daily needs of the child and thus occasion physical 

or emotional harm; or

(C) The child had a significant existing relationship with the grandparent 

and loss or severe reduction of the relationship presents the danger 

of other direct and substantial harm to the child.

Id.

The trial court agreed with Mr. Miller’s testimony that the Child “would suffer 

less psychological harm” if she had no visitation than if she continued having visitation. 

(Emphasis added). Thus, contrary to Ms. T.’s contention, the trial court implicitly 
- 23 -

recognized that a denial of visitation would present a danger of substantial harm to the 

Child.12

Once a danger of substantial harm is established, the court must “determine 

whether grandparent visitation would be in the best interests of the child based upon the 

factors in § 36-6-307.” Tenn. Code Ann. § 36-6-306(c). As Ms. T. points out, the bestinterest analysis under § 307 is “a balancing analysis”:

In determining the best interests of the child under § 36-6-306, the court 

shall consider all pertinent matters, including, but not necessarily limited to, 

the following:

(1) The length and quality of the prior relationship between the 

child and the grandparent and the role performed by the 

grandparent;

(2) The existing emotional ties of the child to the grandparent;

. . .

(4) The effect of hostility between the grandparent and the parent 

of the child manifested before the child, and the willingness 

of the grandparent, except in case of abuse, to encourage a 

close relationship between the child and the parent or parents, 

or guardian or guardians of the child;

. . .

(9) Whether the grandparent is seeing to maintain a significant 

existing relationship with the child; [and]

(10) Whether awarding grandparent visitation would interfere with 

the parent-child relationship . . . .

Tenn. Code Ann. § 36-6-307.

 

12 “[W]hen construing orders and judgments, effect must be given to that which is clearly 

implied, as well as to that which is expressly stated.” Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595, 

608 (Tenn. 2013) (citations omitted).
- 24 -

Thus, while a child may suffer emotional harm if the child’s substantial, existing 

relationship with a grandparent is severed, the denial of visitation may nonetheless be in 

the child’s best interests.

Ms. T. contends the trial court failed to determine the Child’s best interests. We 

respectfully disagree. As stated earlier, the court recognized the existing emotional ties 

between the Child and Ms. T. but also found that the Child was more stable and 

functioned better when she was not exposed to Ms. T. The evidence does not 

preponderate against this finding. There was ample evidence that Ms. T. was a negative 

influence on the Child and caused the Child to feel torn between her two grandmothers. 

This, in turn, affected the Child’s behavior at home and school. Ms. T.’s actions evinced 

a hostility towards Mr. and Ms. K. and an unwillingness to foster a close relationship 

between Mr. and Ms. K. and the Child. Thus, the court’s conclusion that the Child 

“would suffer less psychological harm” if visitation were denied than if visitation were 

continued represents a balancing of the “pertinent matters” that the statute requires courts 

to consider. See Tenn. Code Ann. § 36-6-307.

Based on the foregoing, we find no error in the trial court’s determination that 

Ms. T. was not entitled to grandparent visitation.

IN CONCLUSION

The judgment of the trial court is affirmed in part, reversed in part, and the 

judgment terminating Mother’s parental rights is vacated. Further, this matter is 

remanded to the trial court for further proceedings consistent with this opinion. The costs 

of appeal assessed among Mother, petitioners Bill & Donna K., and intervening petitioner 

Ms. T., for which they are jointly and severally liable.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.