IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 20, 2003 Session

STATE OF TENNESSEE, DEPARTMENT OF 

CHILDREN'S SERVICES v. R.A.W.

Appeal from the Juvenile Court for Greene County

No. 15766 Thomas J. Wright, Judge

FILED NOVEMBER 25, 2003

No. E2003-00847-COA-R3-PT

R.A.W. (“Father”) challenges the termination of his parental rights, claiming there was insufficient

proof to establish grounds for termination or that it was in the best interest of the child to terminate

the parent-child relationship. Father also claims the Juvenile Court erred when it refused to grant

him visitation after the petition to terminate his parental rights had been filed. We affirm the

decision of the Juvenile Court. 

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 HOUSTON M. GODDARD, P.J.,

and HERSCHEL P. FRANKS, J., joined.

Douglas L. Payne, Greeneville, Tennessee, for the Appellant R.A.W.

Paul G. Summers, Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney

General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children's

Services.
 DCS also filed a petition to terminate the parental right of the mother with regard to all three of her children.

1

The mother did not contest the petition and has not appealed the Juvenile Court’s judgment which terminated her parental

rights. 

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OPINION

Background

Father appeals the termination of his parental rights to his now six year old son,

T.A.W. (“the Child”), by the Greene County Juvenile Court. When the Child originally came into

custody of the Department of Children’s Services (“DCS”), he was living with his mother’s aunt and

uncle, Mr. and Mrs. Nance, his two year old half-sister, and his eight month old half-brother. In

October of 2001, DCS was informed that the children were at a flea market with Mr. and Mrs. Nance

and that they were not dressed appropriately for cold weather. The youngest child was examined by

EMS personnel and was found to be cold and unresponsive. The Child also was cold and stated he

was afraid of Mr. Nance who had hurt his arm. There were bruises on the Child’s arm and the back

of his neck. All three children had active head lice. Witnesses stated Mr. Nance had picked up the

Child and thrown him into a van, stating he was going to “beat the hell out of him” and “would beat

his ass.” Mr. and Mrs. Nance were arrested and charged in relation to these events. The Petition for

Temporary Custody indicates Father’s whereabouts were “currently unknown.” 

The petition seeking to terminate Father’s parental rights alleged Father had willfully

failed to visit or to engage in more than token visitation with the Child for a period of four

consecutive months preceding the filing of the petition. It also was alleged that Father had willfully

abandoned the Child by not paying any child support for a period of four consecutive months. DCS

asserted it had made reasonable efforts to assist Father in establishing a suitable home for the Child,

but he had not made a reasonable effort to accomplish this objective. DCS claimed Father

demonstrated such a lack of concern that it appeared unlikely he would be able to provide a suitable

home for the Child. The Petition also alleged that the conditions preventing Father from providing

a suitable home for the Child still remained and had persisted for a period of six months. According

to the Petition, continuing the parent-child relationship would greatly diminish the Child’s chances

of early integration into a stable and permanent home. Finally, DCS maintained that termination of

the parent-child relationship was in the best interests of the Child. 

1

The Permanency Plan (“the Plan”) developed for Father contained numerous items

which he needed to complete. These included: (1) completing a psychological assessment which

included a parenting capability assessment; (2) attending and successfully completing a parenting

class; (3) paying child support; (4) remaining drug free and submitting to random drug screens; (5)

providing appropriate and safe housing for the Child independent of Father’s parents “due to

disclosures of previous abuse” by Father’s father; (6) maintaining adequate transportation in the

event of an emergency; (7) attending counseling for past/current behavioral issues; and (8)

maintaining stable employment. The Plan was approved by DCS in July of 2002 and by the Juvenile
 In July of 2002, Father’s parents filed a motion to intervene and a petition for custody of the Child. This 2

petition was the primary focus of the hearing in January of 2003. Father’s parents eventually dismissed their petition.

We will not discuss testimony or evidence at the January hearing to the extent such evidence pertains only to the

abandoned petition for custody.

Father made these denials notwithstanding the fact that he had already pled guilty to assaulting the girl. 3

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Court in October. Father apparently refused to sign the Plan because he wanted to discuss the Plan

with an attorney. 

In July of 2002, Father filed a motion seeking to establish visitation with the Child.

On October 23, 2002, a hearing was held on this motion at which time the Juvenile Court received

evidence and heard testimony. After this hearing, the Juvenile Court entered an Order and deferred

granting Father visitation until Father “has participated significantly in intensive individual

counseling.” The record on appeal contains neither a transcript or statement of the evidence of this

hearing. 

A trial was conducted on January 15 and March 12 of 2003. The first witness was th th 2

Father’s sister, Toni Malone (“Malone”). Malone testified Father has problems with conflict and

dealing with “reality issues.” When something happens that Father does not like, he has trouble

“figuring out what to do with that and how to ventilate ... that anger.” Ms. Malone did not believe

Father was capable of taking care of himself, “let alone anybody else.” However, Ms. Malone also

believed Father had the potential to change. 

Bill Cook (“Cook”), a Licensed Senior Psychological Examiner, testified that he

began treating Father in June of 2001. Father started therapy with Cook after Father was released

from Lakeshore Mental Health Institute (“Lakeshore”). The records from Lakeshore indicate Father

had been in his car for three days and refused to get out even to eat, and also that Father made a

bomb threat against his employer. Father denied making a bomb threat and claimed he was framed.

Father apparently told a crisis worker that he heard voices over the PA system at work talking to him,

but Father later denied making such a statement. Cook saw Father on two occasions and then did

not see him again until custody of the Child became an issue. Cook expressed concern over Father’s

denial of his mental health history. Cook also talked with Father about an incident where Father

allegedly assaulted a ten year old girl. Father claimed he was getting out of a booth at a Waffle

House when his foot “tapped” the girl. Cook asked Father about the fact that the young girl had a

bruise of some size, to which Father stated that maybe someone else had hit the child. 

3

According to Cook, Father thinks in terms of “black and white and wrong and right.”

Father could give a “pat answer” when there was a clear right or wrong answer, but “if it required

abstracting he had ... a lot of difficulty with that.” Father explained to Cook that he had graduated

from anger control management classes and if he became angry while with the Child, he would count

to ten or go walk off the anger. If provoked to anger, Father stated that he would “lose it” if he did

not count to ten or go for a walk. Cook had asked Father to schedule appointments for every two

weeks, but Father scheduled appointments only for once a month. Father completed approximately
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five therapy sessions with Cook since October. Father had an appointment with Cook scheduled the

morning of the January hearing. Father was late and when he showed up, he informed Cook he was

no longer employed. According to Father, he was unable to obtain his work schedule. He missed

one day of work and was fired. Cook stated Father would have “a lot of difficulty” raising the Child.

However, Father had improved and was trying. Cook saw no reason why Father could not visit with

the Child, although Cook recommended any initial visits be supervised. Cook did not believe Father

was dangerous or that he posed a threat to the Child or others, “unless he were to go off his

medication or he was to be provoked into some sort of anger.” Cook testified that Father has been

diagnosed with mood disorder, not otherwise specified, and personality disorder, not otherwise

specified. According to Cook, the personality disorder comes from years of learning and experience

and “[u]ndoing the personality disorder is very difficult and it takes time, lots of time sometimes.”

Cook acknowledged Father’s telling him that establishing a residence and obtaining transportation

might be insurmountable for him. 

At the end of the hearing in January of 2003, the Juvenile Court continued the matter

until March. One of the reasons for the continuance was to give Father more time to comply with

the terms of the Plan. When the hearing resumed in March, Cook testified that Father had made no

further progress with regard to controlling his emotions and no progress on his parenting skills.

According to Cook, whenever Father’s emotions become involved, he is “unable basically ... to

function. He loses the ability to be rational.” Cook believed Father would have difficulty forming

a plan or doing what was necessary if parenting a six year old child. When asked if Father had the

ability to take proper care of the Child, Cook responded Father “would have a lot of difficulty, if he

could at all ....” Cook testified that if Father quit taking his medications, and depending on his level

of stress, Father would begin to regress, become more depressed and have mood swings, and

“possibly hear voices, possibly get back in the situation where he was not bathing and staying in the

car.” If that were to happen, Father could pose a danger to himself or others. 

Father testified at the initial hearing in January that he was living with his parents.

Father had completed a parenting class and he explained how that class helped him interact with his

niece and be more tolerant toward her. Father was current on child support payments. According

to Father, he had been recently discharged from his job at a grocery store after he unsuccessfully

attempted to obtain his work schedule, but no one at work would answer the phone. When he missed

one day of work, he was discharged. Father had a vehicle but it was not driveable because the engine

had caught on fire. Father claimed he was taking his medication in the prescribed doses. Father

believed it would be best for the Child if Father’s parents had custody at first because Father could

not financially support the Child. Father stated he would like for his parents to have custody until

he could get back on his feet. If his parents had custody, he would assist them in caring for the

Child. Father testified to an incident where his father had been drinking too much and pulled a gun

on Father and his mother. His father was arrested for aggravated assault and pled guilty to simple

assault. Father admitted the last time he saw the Child was in April of 2001. 

Father testified further when the hearing was concluded in March. By that time,

Father was staying with a friend and sleeping on a couch. Father had remained unemployed since
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January and was now behind on child support payments. Father testified he was attempting to find

employment. Father still has no reliable transportation. Father’s driver’s license was revoked after

he received a speeding ticket and failed to show proof of insurance. Father had quit taking his

medication for approximately one month due to lack of funds. Father has noticed a “slight” change

in his emotional state, but “nothing major.” Father admitted that he has visited the Child only ten

times since the Child was six months old. 

The Child’s biological mother, K.H. was called as a witness. K.H. acknowledged that

the Juvenile Court already had terminated her parental rights to the Child. K.H. stated that for a

period of time, Father questioned whether he was the biological father of the Child. K.H. testified

that Father has seen the Child approximately three times since she and Father quit seeing each other

approximately five months after the Child was born. She also claimed Father did not spend much

time at all with the Child for the first five months after he was born. 

The next witness was Lana Justis (“Justis”), the DCS caseworker assigned to this

case. Justis identified the Plan and stated she discussed its requirements with Father, but Father

refused to sign the Plan. The Plan required Father to complete a psychological assessment and a

parenting class, both of which he did accomplish. Justis testified Father was current on his child

support payments until he lost his job in January of 2003. The Plan also required Father to secure

appropriate housing for the Child independent of his parents. The reason for this was the assault

conviction against Father’s father and Father’s claim that his father had abused him as a child. Justis

testified that to her knowledge, Father still was living with his parents. The Plan also required Father

to obtain suitable transportation. Justis stated Father’s vehicle was not operational due to a fire.

Justis further testified that to her knowledge, Father remained unemployed. 

Father called Michael Vitale, Sr. (“Vitale”) as a witness. Vitale testified he drove

Father to visit the Child on the Child’s fourth birthday. Vitale testified to the positive interaction

he observed between Father and the Child. Father was living with Vitale and Vitale’s fiancee at the

time of this hearing. Father was sleeping on Vitale’s couch. 

After the proof was completed, the Juvenile Court concluded the State failed to prove

by clear and convincing evidence that Father had abandoned the Child because of his willful failure

to pay child support. However, the Juvenile Court found the State had proven by clear and

convincing evidence that Father abandoned the Child by willfully failing to visit the Child for a

period of four consecutive months preceding the filing of the petition. The Juvenile Court observed

that after the Child had reached the age of six months, for the next four year period, Father only

visited the Child from three to ten times, depending on whose testimony was credited. After the

Child was placed in State custody, Father did not visit or attempt to visit the Child until after the

petition to terminate his parental rights was filed in June of 2002. 

The Juvenile Court also concluded the State made a reasonable effort to assist Father

with establishing a suitable home for the Child. Father, however, had made no reasonable effort to

provide a suitable home for the Child and demonstrated a lack of concern to such a degree that it
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appeared unlikely he would be able to provide a suitable home at an early date. According to the

Juvenile Court, Father, who at that point was sleeping on a friend’s couch, did not have a suitable

home for the Child. Father made little to no progress with regard to his parenting skills or his anger

management. Father had no transportation or a valid driver’s license, and was unemployed. In short,

Father was unable to provide for the Child. The Juvenile Court then concluded the State had proven

by clear and convincing evidence that these “other conditions” which, in all reasonable probability

would cause the Child to be subjected to further abuse or neglect, continued to persist and prevented

awarding custody to Father. The Juvenile Court determined there was little likelihood that these

conditions would be remedied at an early date. 

The Juvenile Court stated that between the January and March hearings, Father had

“gone backwards because now he doesn’t even have a room or a car or a driver’s license or a job.

He’s not taking his medication admittedly and has had some regression in his emotional control.”

Based on these facts, the Juvenile Court concluded that continuation of the parent-child relationship

would diminish the Child’s chances of an early integration into a safe and stable home. The Juvenile

Court then thoroughly reviewed each of the statutory factors relevant to whether it was in the Child’s

best interests to terminate the parent-child relationship. After so doing, the Juvenile Court concluded

the evidence was clear and convincing that it was in the best interests of the child to terminate the

parent-child relationship. 

Father appeals, claiming he did not have “an adequate opportunity to complete his

permanency plan” and, therefore, the Juvenile Court erred when it terminated his parental rights.

Alternatively, Father argues that he had sufficiently complied with the terms of the Plan and his

parental rights should not have been terminated. According to Father, the State did not prove by

clear and convincing evidence either that grounds for termination existed or that it was in the best

interest of the child to terminate the parent-child relationship. Father also claims the Juvenile Court

erred when it prohibited him from visiting with the Child. 

Discussion

The factual findings of the JuvenileCourt are accorded a presumption of correctness,

and we will not overturn those factual findings unless the evidence preponderates against them. See

Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal

issues, our review is conducted “under a pure de novo standard of review, according no deference

to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County

Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

In State v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941

(Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed, this Court discussed the relevant burden

of proof in cases involving termination of parental rights. Specifically, we observed: 

It is well established that "parents have a fundamental right to the

care, custody, and control of their children." In re Drinnon, 776
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S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405

U.S. 645, 92 S. Ct. 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). This Court discussed the “clear and convincing evidence”

standard in O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App.

1995), as follows:

The “clear and convincing evidence” standard

defies precise definition. Majors v. Smith, 776

S.W.2d 538, 540 (Tenn. Ct. App. 1989). While it is

more exacting than the preponderance of the evidence

standard, Santosky v. Kramer, 455 U.S. at 766, 102 S.

Ct. at 1401; Rentenbach Eng’g Co. v. General Realty

Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985), it

does not require such certainty as the beyond a

reasonable doubt standard. Brandon v. Wright, 838

S.W.2d 532, 536 (Tenn. Ct. App. 1992); State v.

Groves, 735 S.W.2d 843, 846 (Tenn. Crim. App.

1987).

Clear and convincing evidence eliminates any

serious or substantial doubt concerning the

correctness of the conclusions to be drawn from the

evidence. See Hodges v. S. C. Toof & Co., 833

S.W.2d 896, 901 n. 3 (Tenn. 1992). It should produce

in the fact-finder’s mind a firm belief or conviction
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with regard to the truth of the allegations sought to be

established. In re Estate of Armstrong, 859 S.W.2d

323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright,

838 S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d

407, 411 (Tenn. Ct. App. 1985)....

State v. D.G.S.L., 2001 Tenn. App. LEXIS 941 at **16-18 (Tenn. Ct. App. Dec. 28, 2001).

Termination of parental rights may be based upon a number of statutory grounds. In

the present case, the two grounds upon which the Juvenile Court based its ruling are:

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

102, has occurred; [and]

* * * *

(3)(A) The child has been removed from the home of the parent or

guardian by order of a court for a period of six (6) months

and:

(i) The conditions which led to the child’s removal or

other conditions which in all reasonable probability

would cause the child to be subjected to further abuse

or neglect and which, therefore, prevent the child’s

safe return to the care of the parent(s) or guardian(s),

still persist;

(ii) There is little likelihood that these conditions will be

remedied at an early date so that the child can be

safely returned to the parent(s) or guardian(s) in the

near future; and

(iii) The continuation of the parent or guardian and child

relationship greatly diminishes the child’s chances of

early integration into a safe, stable and permanent

home.

Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3) (Supp. 2003). 

The Juvenile Court found there was clear and convincing evidence that both of these

statutory grounds for termination of Father’s parental rights had been met. In making this

determination, the Juvenile Court heard the testimony of numerous witnesses, including Father,

Justis, and Cook. “Unlike this Court, the [Juvenile Court] observed the manner and demeanor of
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the witnesses and was in the best position to evaluate their credibility.” Union Planters Nat’l Bank

v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The trial court’s

determinations regarding credibility are accorded considerable deference by this Court. Id.; Davis

v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001). “‘[A]ppellate courts will not reevaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the

contrary.’” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). 

Based on our review of the record, including the facts detailed above, we do not

believe the Juvenile Court committed any reversible error in reaching its conclusion that clear and

convincing evidence existed to terminate Father’s parental rights pursuant to Tenn. Code Ann. § 36-

1-113(g)(3)(A)(i) through (iii). There is clear and convincing evidence that “other conditions which

in all reasonable probability would cause the child to be subjected to further abuse or neglect and

which, therefore, prevent the child’s safe return to the care of ... [Father] still persist.” Tenn. Code

Ann. § 36-1-113(g)(3)(A)(i). Specifically, Father is not and apparently never has had a suitable

home for the Child. At the time of the final hearing in March, Father was sleeping on a friend’s

couch. Father has not had suitable transportation for some time. Father was unemployed and had

no source of income with which to raise a young child. Equally important is the fact that Father had

stopped taking his medication and his emotional capacity was beginning to regress. There was

absolutely no proof offered at trial that any of these conditions would be remedied in the near future,

or if ever. Father had approximately eight months after the Plan’s requirements were explained to

him to substantially comply with those requirements. During that eight month period, not only has

Father made no reasonable effort to undertake what was necessary in order for him to be able to

properly support the Child, but he has gone “backwards.” We believe Father had sufficient time to

establish that he could or would make progress to the point where he would be able to care for the

Child, and he made no such showing. We likewise agree with the Juvenile Court that the evidence

is clear and convincing that continuation of the parent-child relationship would greatly diminish the

Child’s chances of early integration into a safe, stable and permanent home.

Having affirmed that at least one statutory ground for termination was proven by clear

and convincing evidence, we next address Father’s claim that it was not proven by clear and

convincing evidence that termination of his parental rights was in the best interests of the Child.

Tenn. Code Ann. § 36-1-113(i) describes the standard for determining whether termination is in the

best interests of the child in such cases:

(I) In determining whether termination of parental or

guardianship rights is in the best interest of the child pursuant

to this part, the court shall consider, but is not limited to, the

following:

(1) Whether the parent or guardian has made such an

adjustment of circumstance, conduct, or conditions as to make

it safe and in the child’s best interest to be in the home of the

parent or guardian;
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(2) Whether the parent or guardian has failed to effect a

lasting adjustment after reasonable efforts by available social

services agencies for such duration of time that lasting

adjustment does not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular

visitation or other contact with the child;

(4) Whether a meaningful relationship has otherwise been

established between the parent or guardian and the child;

(5) The effect a change of caretakers and physical

environment is likely to have on the child’s emotional,

psychological and medical condition;

(6) Whether the parent or guardian, or other person

residing with the parent or guardian, has shown brutality,

physical, sexual, emotional or psychological abuse, or neglect

toward the child, or another child or adult in the family or

household;

(7) Whether the physical environment of the parent’s or

guardian’s home is healthy and safe, whether there is criminal

activity in the home, or whether there is such use of alcohol

or controlled substances as may render the parent or guardian

consistently unable to care for the child in a safe and stable

manner;

(8) Whether the parent’s or guardian’s mental and/or

emotional status would be detrimental to the child or prevent

the parent or guardian from effectively providing safe and

stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support

consistent with the child support guidelines promulgated by

the department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i) (Supp. 2003). After considering all relevant statutory factors in light

of the testimony of the witnesses at trial, we do not believe the Juvenile Court committed reversible

error when it concluded that clear and convincing evidence established that it was in the best interest

of the Child to terminate Father’s parental rights.
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Because we affirm the termination of Father’s parental rights pursuant to Tenn. Code

Ann. §§ 36-1-113(g)(3)(A)(i) through (iii), we need not decide whether there was clear and

convincing evidence that Father abandoned the Child by willfully failing to visit him for a period of

four consecutive months immediately preceding the filing of the petition. Due to our resolution of

the preceding issues, all remaining issues are pretermitted as they would not affect the outcome of

this appeal. 

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to the

Juvenile Court for such further proceedings as may be required, if any, consistent with this Opinion,

and for collection of the costs below. The costs on appeal are assessed against the Appellant R.A.W.

and his surety. 

___________________________________ 

D. MICHAEL SWINEY, JUDGE