### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE A ssi gne d on Br ie fs O ct obe r 20, 200 3 S es sio n STATE OF TENNESS EE, DEPARTMENT OF C HI LD R EN 'S S ER V IC ES v. R
. A
. W. Appeal f romthe Juvenile Court for G ree ne County No. 15766 Thomas J. Wr ight, Jud ge
F ILED NOVEMBER 25, 2003
No
. E 2 0 0 3 -0 0 8 4 7 -C O A- R3 -PT

R.A.W. (“Father” ) cha lleng es the termination of his pare ntal rig hts, claiming the re w as insufficie nt pr oo f t o e sta

bli sh g ro un ds fo r t e rm inatio n o r that it wa s in the be st i nte re st o f the c hil d to te rm inate the par ent-c hild relationship. Fathe r also cla ims the J uvenile Court e rre d when it re fused to g rant him visitation afte r the petition to terminate his pa renta l rights had been filed

. W e a ff i rm the decision of the Juvenile Court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Juv e nile Co ur t A ffirm e d; Ca se Re m ande d.

D. M I CH A EL S WI NEY , J ., delivere d the opinion of the court, in which H OUS TON M. G O D D A RD , P.J ., and H ER SCH EL P. F RAN KS , J ., joined.

D o u g la s L

. Pay n e , G r e e n e v il le , T e n n e s s e e , f o r th e A p p e ll a n t R

. A

. W.

Paul G. Summers, Attorney Gene ral a nd Report er , and Dianne Stamey Dy cus, De puty

Attorney Ge n er al , Na s h v i l l e, T en n es s ee , fo r t h e A p p el l ee S t at e o f T en n es s ee , De p ar t m en to f C h i l d re n 's Se rv ic e s.D C S als o f i l ed a pe t i t i o n t o t erm i nat e t he p arent al ri ght o f the m o t her wi t h regard t o al l t hree of her chi l d ren. 1 T he mo t her di d n ot cont es t t he pet i t i on and has not appeal ed t he Juv eni l e C our t ’ s j udgment whi ch t er mi nat ed her par ent al rig h ts. -2- OP IN ION
Bac kgr ound
Father a ppeals the te rmination of his pare ntal ri gh t s to his now six y ear old son, T. A. W. ( “ the Chi ld” ), by the Gr e e ne Cou nty Juve nil e Cou rt . When the Chi ld o ri g ina lly c a me int o custody of the De partment of Children’ s Services ( “DCS”), he was living with his mot her’ s aunt and
u n c l e , M r
. a n d M r s
. N a n c e , h i s t w o y e ar o l d h a l f

- s i s t e r , a n d h i s e i g h t m o n t h o l d h a l f

- b r o t h e r
. In October of 2001, DCS was informed that the childre n wer e at a flea marke t with Mr. and Mrs. Na nce and that they wer e not dressed appropriately for c old weathe r. The y oung est child was e x amined by EMS personnel and w as found to be c old and unre sponsive. The Child also was cold a nd stated he was a fra id of Mr. Na nce w ho had hurt his arm. There wer e bruises on the Child’s arm and the ba ck of his neck. A ll three c hildren had a ctive head l ice. Wit nesses stated Mr . Nanc e had pic ked up the Child and thrown him into a van, stating he was g oing to “ beat the hell out of him” and “would beat his ass.” Mr. and Mrs. Nanc e wer e arr ested and char g ed in r elation to the se events. The Petition for Tempora ry Custodyindicates F ather ’s wher eabouts we re “ curr ently unknown.”
Th e pe tition se e kin g to te rm inate F a the r’ s pa re nta l ri g hts a lle g e d F a the r h a d w ill fu lly failed to visit or to eng ag e in more t h an token visi tation with the Chil d for a period of f

our c on se c uti ve mon ths pr e c e din g the fi lin g of the pe tit ion . It a lso wa s a lle g e d th a t F a the r h a d w ill fu lly
aba nd on e d the Chi ld by no t paying a ny c hil d sup po rt fo r a pe ri od of fo ur c on se c uti ve mon ths . DCS
asserted it had made r easona ble ef forts to assist Father in establishing a s uitable home for the Child, but he had not made a re asonable eff ort to acc omplish t his object i v e. DCS claimed F ather de mon str a te d s uc h a

la c k o f c on c e rn that it

app e are d u nli ke ly

he wo uldbe able to p ro vid e a su ita ble home for the Child. The Petition also alleg ed that the c onditions preventing Father fr om providing a suitable home f

or the Child stil l remaine d and had pe rsisted for a period of six months. According to the Petition, continui ng the parent-child relationship would gr eatly diminis h the Child’s chanc es of ea rly integ ration into a st able and perma nent hom e. Finally , DCS maintained that termination of the par ent-c hild relationship was in the best intere sts of the Child. 1

Th e Pe rm a ne nc y Pla n (“ the Pla n” ) d e ve lop e d f or F a the r c on ta ine d n ume ro us ite ms which he ne eded to c ompl ete. These included: ( 1) completing a psy cholog ical asse ssment which included a pa

renting capa

bi l ity assessment; (2) attending and succe ssfully completing a par enting class; (3) pay ing c hild support; (4) rema ining dr ug fre e and submitt ing to random drug sc ree ns; (5) pr ov idi ng app ro pria te a ndsa fe ho us ing fo r the Chi ld i nd e pe nd e nt of F a the r’ s p are nts “ du e to disclosures of pr evious abuse” by Father’s f

ather ; (6) maintaining adequate transportation in the event of an eme rg ency ; (7) attending counseling for pa st/curre nt behaviora l issues; an d (8)
ma int a ini ng sta

ble e mpl oyme nt. Th e Pla n w a s a pp ro ve d b y

DC S inJuly of 20 02 a nd by the Juve nil eIn J u ly o f 2 0 0 2 , F a the r’s p a re n ts fi le d a m o tio n to inte rv e n e a n d a p e tit io n fo r c u sto d y o f t h e C h ild . T h is 2
p et i t i o n was t he p ri m ary fo cus of t he heari ng i n January of 2 0 0 3

. Fa t her’ s p arent s event ual l y dis m i ss ed t hei r pet i t i o n. W e wi l l not d i scus s t est i m o ny or evi d ence at t he January heari ng t o t he ext ent s u c h e v id e n c e p ert ai ns o nl y t o t he
a b a n d o n e d p e tit io n fo r c u sto d y.

F a the r m a d e the se d e n ia ls no tw ithsta n d ing the fac t t h a t he ha d a lre a d y p le d gu ilt y to a ssa u lti n g the gir l. 3
-3- Court in October . Father a ppare ntly ref used to sign the Plan because he w anted to discuss the Plan with an attorne y
.

I n J uly of 2002, F ather filed a motion seeking to establish visitation wit h the Child. On Octobe r 23, 2002, a he aring was he ld on this m otion at which t ime the J uvenile Court re ceive d evidenc e and hear d testimony

. After this hearing, the J uvenile Court enter ed an O rder and def err ed g ranting F at her visitation until Father “has pa rticipated sig nificantly

in intensive individual
c ou ns e lin g .” Th e re c or d o n a pp e a l c on ta ins ne ith e r a tr a ns c ri pt or state me nt of the e vid e nc e of thi s hearing.
A trial wa s conducte d on J anuary 15 and Mar ch 12 of 2003. The fir st witness was th th 2 Fa t h er ’s sister, Toni Malone (“ Malone” ). Malone te stified Father ha s problems with conflict and de a lin g wi th “ re a lit y

is su es. ” Whe n s ome thi ng ha pp e ns that F a the r d oe s n ot l ike , h e ha s tr ou ble “fig uring out what to do with that and how to ventilate ... that ang er.” Ms. Malone did not believe F a the r w a s c apa

ble of takin g c are of

him se lf, “ le t a lon e a ny

bo dy e lse .” Ho we ve r, Ms. Ma lon e a lso believed F ather

had the potential to chang e. Bill Cook (“Cook”) , a License d Senior Psy cholog ical Examiner, t es t i fi ed that he beg an tre ating Father in June of 2001. Father started thera py with Cook after F ather

was re lease d from L akeshor e Menta l Health I nstitut e (“ L akeshor e”) . The re cords from L akeshor e indicate F ather had bee n in his car f

or three d ay s and refused to g et out even to e at, and a lso that Fathe r made a bomb threat a g ainst his employ er. Father denied making a bomb threa t and cla imed he wa s fra med. F a the r a pp are ntl y tol d a c ri sis wo rk e r that he he ardvo ic e s o ve r the PA s y ste m a t w or k ta lki ng to h im, bu t F a the r l a te r d e nie d ma kin g su c h a state me nt. Coo k sa w F a the r on tw o o c c a sio ns a ndthe n d id not see him ag ain until custody of the Child beca me an issue. Cook e x presse d conce rn over F ather ’s denial of his mental he alth history . Cook also talked with Father a bout an incident wher e F ather
a lle g e dly a ssa ult e d a te n y e ar o ld g ir l. F a the r c lai med he wa s g e tti ng ou t of a bo otha t a

Waf fl e House whe n his foot “tapped” the g irl. Cook asked F ather about the fa ct that the y oung g irl had a bruise of some size, to which F ather stated that may

be someone else ha d hit the child. 3

Acc ording to Cook, Father thinks in t erms of “ black a nd white and wr ong and rig ht.” Father c ould give a “pat answe r” when t here was a clea r rig ht or wrong answe r, but “if it re quired abstrac ting he had ... a lot of di fficulty with that.” Father ex plained to Cook that he had g raduated from ang er c ontrol manag ement cla sses and if he became ang ry while with the Child, he would count to t e n o r g o wa lk o ff

the a ng e r. I f p ro vo ke d to a ng e r, F a the r s ta te d th a t he wo uld“ los e it” if he did not count to ten or g o for a walk. Cook had a sked Father to sche dule appointments for e very two we e ks , b ut F a the r s c he du le d a pp oin tme nts on ly fo r on c e a mon th. F a the r c omp le te d a pp ro xima te ly-4-

five ther apy

sessions with Cook since October

. Father ha d an appointment with Cook scheduled the morning of the January

hearing. Fathe r was late and w hen he show ed up, he inf ormed Cook he wa s no longe r employ ed. Acc ording to Fathe r, he w as unable to obtain his work schedule . He missed one day of work and was fir ed. Cook stated F ather would have “ a lot of diffic ulty ” ra ising the Child. Ho we ve r, F a the r h a d impr ov e d a ndwa s try ing . Cook sa w no re a so n why F a the r co uld no t vi sit wi th the Child, although Cook re commended any initial vis its be supervised. Cook did not believe F ather wa s d a ng e ro us or

that he po se d a

thr e a t to the Child or ot hers , “unle ss h e we re to g o o ff his medication or he was to be pr ovoked int o some sort of ange r.” Cook testified that Father ha s been dia g no se d wi th moo d dis or de r, no t oth e rw ise sp e c if ie d, a nd pe rs on a lit y dis or der, no t o the rw ise specifie d. Acc ording to Cook, the persona lity disorder comes from y ear s of learning and experience and “[u]ndoing the per sonality disorder is very difficult and it takes ti me, l ots of t ime sometimes.” Cook acknowle dg ed Father ’s t elling him that establishing a re sidence and obtaining transporta tion might be insurmountable for him.

At the end of

the hea ring in January of 2003, the J uvenile Court continued the matter un til Ma rc h. On e of the re a so ns fo r the c on tin ua nc e wa s to g ive F a the r m or e tim e to c omp ly wi th the terms of the Plan. When the hearing resumed in Marc h, Cook testified t hat Father ha d made no fu rt he r p ro g re ss w ith re g ardto c on tr oll ing his e mot ion s a ndno pr og re ss o n h is p are nti ng sk ill s. Ac c or din g to C oo k, wh e ne ve r F a the r’ s e mot ion s b e c ome i nvolv e d, he is “ un able ba sic a lly ... to function. He loses the ability to be rational.” Cook believed F ather would have dif

ficulty forming a plan or doi ng what was nece ssary if pare nting a six y ear old child. When asked if F ather had the ability to take prope r ca

re of the Child, Cook responde d Father “ would have a lot of difficulty , if he could at all ....” Cook te stified that if Father quit taking his medications, and depe nding on his leve l of st ress, F ather

would beg in to reg ress, be come more depre ssed and ha ve mood swing s, and “possibly hear voices, possibly

g et bac k in the situation where he was not bathing and staying in the
car .” I f that we re to ha

ppen, F ather

could pose a

dang er to himself or othe rs.
F a the r t e sti fi e d at th e ini tia l he ari ng in Ja nu ary that he wa s li vin g wi th h is p are nts

. F a the r h a d c omp le te d a

pa re nti ng c la ss and he e xpla ine d ho w that c la ss he lpe d him int e ra c t w ith his niece and be mor e tolera nt toward he r. F ather was c urre nt on child support pay ments. Acc ording to F a the r, he ha d b e e n r e c e ntl y di sch arged fr om h is j ob a t a g ro c e ry sto re a ft e r h e un su c c e ssf ull y attempted to obtain his w ork schedule , but no one at work w ould answer the phone. When he missed one day of work, he was discha

rg ed. F ather

had a ve hicle but i t was not drivea ble bec ause the eng ine had ca ug ht on fire. F ather

claimed he was taking h i s medication in the pre scribed dose s. Fa ther be lie ve d it

wo uld be be st f

or the Chi ld i f F a the r’ s p are nts ha d c us tod y a t f ir st b e c a us e F a the r c ou ld
no t f inanc ia lly su pp or

t the Chi ld. F a the r state d he wo uldlik e fo r h is p are nts to h a ve c us tod y un til he could g et bac k on his feet. I f his pare nts had custo d y , h e wo u l d assist them in caring for the Child. Father te stified to an incident wher e his fathe r had be en drinking too much and pulled a g un on F a the r an d his moth e r. Hi s fa the r wa s ar re ste d for a g g ra vate d ass a ult a nd ple d g uil ty to s imp le assault. Father a dmitted the last tim e he sa w the Child was in April of 2001.

Father testified f

urther w hen the he aring was c onclude d i n Marc h. By that time, Father wa s stay ing w ith a friend and sleeping on a couc h. Father ha d rema ined unemploy ed since-5-

J anuary and wa s now behind on child support payments. Father testified he was attempting to find employ ment. Father sti ll has no reliable transporta tion. Father’s driver’s license was revoke d afte r he re c e ive d a spe e din g tic ke t a ndfaile d to sh ow pr oo f o f i ns ur a nc e . F a the r h a d q uit takin g his
m ed i ca t i o n fo r ap p ro x i m at el y o n e mo n t h d u e t o l ac k o f f u n d s
. Fa t h erh as n o t i ce d a “ s l i gh t ” c h an ge in his e motional state , but “ nothing major.” Father admitted that he has visited the Child onl y ten times since the Child was six months old.

The Child’s biologica

l m o th e r , K .H. was c alled as a witness. K.H. ac knowledg ed that the J uvenile Court alre ady had terminated her

pare ntal rig hts to the Child. K.H. stated that for a period of time, F ather

questioned whether he was the biologic al fa ther of the Child. K.H. testified that Father ha s seen the Child approximately three times since she and Father quit seeing eac h other approximately five months a fter the Child wa s born. She also cla imed Father did not spend much time at all with the Child for the first five months af ter he was born.
Th e ne xt wit ne ss w a s L a na Justi s ( “ Justi s” ), the DC S c a se wo rk e r a ssi gned to thi s case
. J usti s id e n ti f

ie d th e Pl a n a n d s tate d s h e d is c u s s e d it s r e q u ir e me n ts w ith F a th e r , b u t F ather ref used to sign the Plan. The Plan requir ed F ather to complete a psy cholog ical asse ssment and a pa re nti ng c la ss, bo th o f w hic h h e di d accom pl ish . Just is t e sti fi e d F a the r w a s c ur re nt o n h is c hil d support pay ments until he los t his job in J anuary of 2003. The P lan also require d Father to sec ure app ro priate ho us in g f

or the Chi ld i nd e pe nd e nt o f h is p are nts . T he re a so n f or thi s w a s th e a ssa

ult
c on vic tio n a g a ins t F a the r’ s f a the r andF a the r’ s c la im that hi s f a the r h a d a

bu se d him as a c hil d. Justi s testified that to her know ledg e, F ather still was li ving with his pare nts. The P lan also required F ather to obtain suitable transportation. Just is stated Fat h er ’s v eh i cl e was not operational due to a fire

. J ustis further testified tha t to her knowledg e, F ather rema ined unemploy ed.
Fa ther c a ll e d M ic h a e l V it a le , Sr

. ( “ V it a le ” ) a s a w it n e s s
. V it a le te s ti f ie d h e drove Father to visit the Chil d on the Chil d ’s fo u rth birthday . Vitale testified to the positive intera ction he obser ved betwe en F ather and the Child. Fa ther was living with Vitale a nd Vitale’s f iance e at the time of this hearing . Father wa s sleeping on Vitale’s c ouch.

After the proof w as complete d, the J uvenile Court conc luded the State fa iled to prove by clea r and convincing evidenc e that F ather had abandoned the Child because of his willful failure to pay child support. Howeve r, the Juvenile Court found the State had prove n by clea r and convincing evidenc e that F ather abandone d the Ch i ld by willfullyfailing to visit the Child for a period of f

our conse cutive months prec eding the filing of the petiti on. The Juvenile Court observed that a ft e r the Chi ld h a d r e a c he d the a ge o f si x mon ths , f or the ne xt fo ur

y e ar p e ri od , F a the r o nly visited the Child from three to ten times, depe nding on w hose testimony wa s cr ed ited. After the Child wa s p l ac ed i n State custody , Father did not visit or attempt to visi t the Child unt il after the petition to terminate his pare ntal rig hts was filed in June of 2002.

The Juvenile Court also concluded the State made a rea sonable e ffort to assist Father wi th e sta bli sh ing a su ita ble ho me fo r the Chi ld. F a the r, ho we ve r, ha d ma de no re a so na ble e ff ort to pr ov ide a su ita ble ho me fo r the Chi ld anddem on strate d a la c k o f c on c e rn to s uc h a de g re e that it-6-

appea red unlikely

he would be a

ble t o p ro v i d e a suitable home at an e arly date. Ac cording to the Juve nil e Cou rt , Fathe r, wh o at that poin t wa s sl e e pin g on a frie nd ’s c ou c h, didno t ha ve a su ita ble home for the Child. Father made littl e to no prog ress with re g ard to his par enting skills or his ange r ma na g e me nt. F a the r ha d n o tr a ns po rt a tio n o r a va liddrive r’ s li c e ns e , a ndwa s u ne mpl oy e d. I n s ho rt , Father wa s unable to provide f or the Child. The J uvenile C ourt then concluded t he S tate had pr oven by c le ar andc on vin c ing e vid e nc e that the se “ oth e r co nd iti on s” wh ic h, in al l re a so na ble pr ob abil ity would cause the Child to be subjected to f urther abuse or neg lect, continued to per sist and preve nted
a wa rd ing c us tod y

to F a the r. Th e Juve nil e Cou rt de te rm ine d th e re wa s li ttl e lik e lih oo d th at the se conditions would be reme died at an e arly date.
The Juvenile Court state d that betwee n the J anuary and Mar ch hea

ring s, Fa ther ha d “g one bac kwar ds because now he doesn’t even have a room or a car or a driver’s lice nse or a

job. He’ s not taking his medication admittedly and has had some re g ression in his emotional control.” B a se d o n th e se fa c ts, the Juve nil e Cou rt c on c lud e d th a t c on tin uatio n o f the pa re nt- c hil d r e la tio ns hip wo ulddim ini sh the Chi ld’ s c ha nc e s o f an e arl y int e g ratio n in to a

sa fe a ndsta

ble ho me . T he Juve nil e Court then thoroug hly

revie wed e ach of

the statutory

fac tors rele vant to w hether it was in the Child’s best interests to terminate the par ent-c hild relationship. Aft e r s o doing, the J uvenile Court conc luded the evidenc e wa s clea

r and c onvincing that it was in the be st interests of the c hild to terminate the pare nt-child relationship.

F a the r a ppeal s, c la imi ng he didno t ha ve “ a n a de qu a te op po rtun ity to c omp le te his pe rm a ne nc y plan” a nd , the re fo re , the Juve nil e Cou rt e rr e d wh e n it te rm inate d his pa re ntal ri g hts

. Al te rn a tiv ely , Fath er a

rg ue s th at he ha d s uf

fi c ie ntl y c omp lie d w ith the te rm s o f the Pla n a ndhis pare ntal rig hts should not have b een te rminated. Ac cording to Fathe r, the State did not prove by
c le ar a nd c on vin c ing e vid e nc e e ith e r that g ro un ds fo r te rm inatio n e xiste d or that it wa s in the be st interest of the child to terminate the pa rent-c hild relationship. Fathe r also cla ims the J uvenile Court
err ed whe n it prohibited him from visit ing w ith the Chil d.
Discussion
Th e fa c tua l f

ind ing s of the Juve nil e Cou rt are a c c or de d a pre su mpt ion of c or re c tne ss, and we will not overturn those fac tual finding s unless the evidenc e pre ponderates ag ainst them. See Te nn . R. Ap p. P. 1 3( d) ; Bogan v. Bogan , 60 S.W .3d 721, 727 (Tenn. 2001) . Wit h respe ct to leg al issues, our review is conducte d “under a pure de novo standard of revie w, acc ording no defe renc e to the conclusions of law made by the lower courts.” So uth e rn Con str uc tor s, In c . v . Lo ud

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

.

I n Sta te v . D .G .S .L. , No. E2001-00742- C OA-R3-J V, 2001 Tenn. A pp. LEXI S 941 (Tenn. Ct. App. Dec . 28, 2001), no appl. perm. appeal filed , this Court di scussed the r eleva nt burden of pr oo f i n c a se s in vo lvi ng te rm inatio n o f p are nta l r ig hts . Sp e c if ic a lly , w e ob se rv e d:
I t is well es t ab l i s h ed that "par ents have a funda mental rig ht to the care, cus to dy , an d co nt rol of t hei r chi ld ren. " In re D r i nnon , 776-7- S

. W

. 2 d 9 6 , 9 7 (T en n
. C t

. Ap p
. 1 9 8 8 ) ( ci t i n g Sta nle y v . I lli no is , 405 U. S

. 6 4 5 , 9 2 S

. C t

. 1 2 0 8 , 3 1 L

. E d

. 2 d5 5 1 ( 1 9 7 2 ) )

. " H o w e v e r , t his ri g ht i s n ot a

bs olu te a ndpa

re nta l r ig hts ma y

be te rm inate d if

the re is clea r and convincing evidenc e justify ing such termination under the app li cabl e st atu te. " Id. (c i t i n g Santosky v . Kramer , 455 U.S. 745, 102 S. Ct . 1388, 71 L .Ed.2d 599 (1982))

. Termination of pare ntal or g uardia nship rights must be based upon a finding by

the court that: (1) the g rounds fo r t er m i n ati on of pare ntal or g uardia nship rights ha ve bee n established b y clea r and convinc i n g ev i d en ce ; an d (2 ) t er m i n at i o n o f t h e p ar en t ’s o r gu ar dian’s rig hts is in t he best intere sts of the child. Tenn. Code A nn. § 36-1- 113(c) . Be fore a par ent’s rig hts can be terminated, it must be shown that th e pa

re nt i s u nf

it o r s ub sta nti a l ha

rm to the c hil d w ill re su lt i f pare ntal rig hts are not terminated. In re Swanson, 2 S.W .3d 180, 188 (T e nn . 1 99 9) ; In re M.W

.A., Jr., 980 S.W .2d 620, 622 (Tenn. Ct. App. 1 9 98). Simil arly , befor e the c ourt may inquire as to whe ther termination of pare ntal rig hts is in the best interests of the child, the court must first determine that the grounds for termination have been established by clea

r and convincing evidenc e. Tenn. Code Ann. § 36- 1-113(c ). This Court discussed the “clear and convinc ing e vidence ” standard in O’Danie l v. Mes s i er , 905 S.W .2d 182 (Tenn. Ct. App. 19 95 ), a s f

oll ow s:
The “ clea r and c onvincing evidenc e” sta ndard defie s pre ci s e definition. Majors v. Smith, 776 S.W. 2d53 8, 54 0 (Te nn . Ct . A pp . 1 98 9) . Wh ile it i s more e x acting than the pre pondera nce of the e vidence standard, Santosky v . Kramer, 45 5 U .S. a t 76 6, 10 2 S. Ct. a t 14 01 ; Re nte nb ac h En g’ g Co . v . G e ne ra l R e alt y Ltd., 70 7 S. W.2 d 5 24 , 527 (T e nn . Ct . A pp . 1 98 5) , it does not requir e such c ert ai n t y as the be y ond a
rea sonable doubt stand ard. Brandon v. W right, 838 S.W. 2d53 2, 53 6 ( Te nn . Ct

. App. 19 92 ); State v. Gr oves, 7 3 5 S. W. 2 d 8 4 3 , 8 4 6 ( T e n n
. Crim

. App. 1987).
Clear and convincing evidenc e eliminates any serious or subs t an t i al d o u b t conce rning the
corr ectne ss of t h e conclusions to be dra wn from the evidenc e. See H

o d g es v. S. C. Toof & Co., 833 S.W .2d 896, 901 n. 3 (Tenn. 1992) . I t should produce in th e f a c t- f in d e r ’ s mi n da

f irm b e li e f o r c o n v ic tion-8- with reg ard to the truth of the alleg ations soug ht to be established. In re Estate of Armstrong , 859 S.W .2d 3 2 3 , 3 2 8 ( T e n n
. C t

. A p p
. 1 9 9 3 ) ; Br an do n v . W rig ht, 83 8 S. W.2 d at 53 6; W

iltcher v. Bradley, 708 S.W .2d 407, 411 (Tenn. Ct. App. 1985)....
Sta te v . D .G .S .L. , 2001 Tenn. App. L EXI S 941 at **16-18 (Te nn. Ct. App. Dec. 28, 2001)

. T e r m i n a t i o n o f

p ar e n t a l r i g h t s m a y

b e b a s e d u p o n a

n u m b e r o f s t a t u t o r y g r o u n d s
. In the pre sent ca se, the two g rounds upon which the Juvenile Court based its ruling are :

(1) Abandonment by

the pare nt or g uardia n, as define d in § 36-1- 102, has occ urre d; [ and]

* * * * (3)( A) The c hild has been r emoved f rom the home of the p arent or g uardia n by o rder

of a c ourt for a

period of six (6) months and: (i) The c onditions which led to the child’s remova l or oth e r c on dit ion s w hic h in a ll r e asona ble pr ob abil ity wo uldc a us e the c hil d to be s ub je c te d to fu rthe r a

bu se or neg lect and which, the ref ore, pr event the c hild’s safe return to the c are of the parent(s) or g uardia n(s), sti ll p e rs ist ; (ii) There is little likelihood that these conditions will be
reme died a t an e ar ly

d a te s o th a t th e c h il d c a n be safe ly returne d to the pare nt(s ) or g uardia n(s) in the
near future; a nd (i ii) Th e c on tin uatio n o f the pa re nt o r g ua

rd ian a ndc hil d relationship gre atly diminis hes t he child’s chance s of
early integ ration into a saf

e, stable and pe rmane nt home. Tenn. Code Ann. §§ 36- 1-113(g )(1) and (g )(3) (Supp. 2003).

Th e Juve nil e Cou rt

fo un d th e re wa s c le ar and c on vin c ing e vid e nc e that bo th o f the se statut ory groun ds fo r t e rm inatio n o f F a the r’ s p are nta l r ig hts ha d b e e n me t. In ma kin g thi s determination, the J uven i l e C o urt hea rd the testimony

of numerous w itnesses, including Father, J ustis, and Cook. “Unlike this Court, the [ J uvenile Court] observed the ma n n er an d demea nor of-9-

the witnesses and was in the best position to eva luate their c redibility .” Union Planters Nat’l Bank
v. Island Mgmt. Auth., Inc

. , 4 3 S. W. 3 d 4 9 8 , 5 0 2 ( T e n n
. Ct

. A p p
. 2 0 0 0 )

. T h e tr ial court’s determinations reg arding cre dibilit y are acc orded considera ble defere nce by

this Court. Id. ; Da v is v. Liberty Mutual Ins. Co. , 38 S.W

. 3 d 5 6 0 , 563 (Tenn. 2001) . “‘[A]ppellate courts will not reevaluate a tria l judg e’s assessment of witness cre dibilit y absent c lear and convinc ing e vidence to the contra ry .’” W e lls v . Te nn e sse e Bd

. o f R e ge nts , 9 S.W .3d 779, 783 (Tenn. 1999)

. Ba sed on our r eview of

the re cord, inc lud i n g t h e fa cts detailed a bove, we do not believe the J uvenile Court committed any reve rsible er

ror in re aching its conclusion t hat clea r and convincing evidenc e existed to terminate Father’s pare ntal rig hts pur suant to Tenn. Code Ann. § 36- 1-113(g )(3) (A)( i) throug h (iii). There is c lear and convincing evidenc e that “other conditions which in all rea sonable pr o b ab i l i t y would cause the child to be subjec ted to further abuse or neg lect and which, therefor e, prevent t he child’s safe return to the car e of ... [Father] stil l persist.” Tenn. Code An n. § 3 6- 1- 11 3(g) (3 )( A) (i ). Spe c if ic a lly , F a the r i s n ot andapp are ntl y ne ve r h a s h a d a

su ita ble home for the Child. At t he time of th e fi n al h ea ri n g in March, F ather was slee ping on a

friend’ s couch. F ather

has not had suitable tra nsportation for some time. Father was unemploy ed and ha d
no source of income w ith which to raise a y oung child. Equally

important is the fac t that Fathe r had stopped taking his medication and his emotional capa city was be g inning to re g ress. The re w as absolutely

no proof offe red at trial that any of these conditions w ould be reme died in the nea r future , or if e ve r. F a the r h a d a

pp ro xima te ly

e ig ht m on ths a ft e r the Pla n’ s re qu ir e me nts we re e xpla ine d to him to subst antially

comply with those require ments. During that eig ht month period, not onlyhas F a the r m a de no re a so na

ble e ff ort to un de rt ake wh a t w a s n e c e ssa ry in or der for him

to b e able to pr op e rl y su pp ort th e Chi ld, bu t he ha s g on e “ ba c kw ard s. ” We b e lie ve F a the r h a d s uf fi c ie nt t ime to establish that he could or

would make pr og ress to the point wher e he would be able to car e for the Child, and he made no suc h showing . We likewise agr ee with the J uvenile Court that the evide nce is clear and convinc ing that continuation of the pa rent-c hild relationship would gr eatly diminis h the Child’s chance s of ea

rly integ ration into a saf

e, stable a nd perma nent home. Having aff

irmed that at lea st one statutor y g r o u n d for termination was proven by clea r and convincing evidenc e, we next addr ess Father’s claim that it wa s not pr ov en b ycl ea r and convincing evidenc e that termination of his parenta l rig hts was in the best intere s t s o f the Child. Tenn. Code Ann. § 36-1-113( i) describes the s tandar d for determining whether termination is in the be st i nte re sts of

the c hil d in su c h c a se s: (I ) I n determining w h ether termination of par ental or g uardia nship rights is in the best interest of the c hild pursuant to this part, the court shall consider, but is not limit ed to, the fo l l o wi n g: (1) Whether the pa

rent or g uardia n has made such an adjustment of circ umsta

n c e , c o n d u ct, or c onditions as to make it safe a nd in the child’s best interest to be in the home of the pare nt or g uardia n;-10- (2 ) Whe the r the pa

re nt o r g uardi a n h a s f

a ile d to e ff

e c t a lasting a djustment after rea sonable eff orts by available social service s ag encie s for su ch duration of time that lasting adjustment does not rea sonably appea r possible; (3) Whether the pa

rent or g uardia nh a s ma

in tained re g ular visitation or other contac t with the child; (4) Whet

h e r a me an in g ful relationship has otherwise bee n established betwe en the pa rent or g uardia n and the c hild; (5) The e ffe ct a c hang e of c are taker s and phy sical
e nv ir on me nt i s li ke ly

to h a ve on the ch ild ’s e mot ion a l, psy cholog ical and me dical condition; (6) Whether th e p are nt or g uardia n, or other pe rson r e s i d i n g w i t h t h e p ar e n t o r g u ar d i a n , h a s s h o w n b ru t a l i t y, phy sical, sexual, e motional or psy cholog ical abuse , or neg lect toward th e c h il d , o r

a n o th e r c h il d o r a d u lt in th e f a mi ly or household; ( 7 ) Wh e th e r

th e p h y s ic a l e n v ir o n me n t o f th e p ar e n t’ s or g uardia n’s home is healthy and saf e, whe ther ther e is criminal activity in the home, or whe t h er t h ere is such use of a lcohol or controlled substanc es as may rende r the pare nt or g uardia n c on sis te ntl y

un able to c are fo r the c hil d in a sa fe a ndsta

ble
manner ; (8) Whether the pa

rent’s or g uardia n’s mental and/or emotional status w ould be detrimental to the child or pre vent the par ent or g uardia n from ef fec tively providing s afe and stable ca re a nd supervision for the child; or (9) Whether the pa

rent or g uardia n has paid child support consistent with the child support g uidelines promulg ated by the depa rtment pursuant to § 36-5- 101. Tenn. Code Ann. § 36- 1-113(i) ( Supp. 2003). After considering all rele vant statutory fac tors in light of the te sti mon y

of the wi tne sse s a t tria l, w e do no t be lie ve the Juve nil e Cou rt c omm itt e d r e ve rs ibl e e rr or wh e n it c on c lud e d th a t c le ar andc on vin c ing e vid e nc e e sta bli sh e d that it wa s in the be st i nte re st of the Chi ld t o te rm inate F a the r’ s p are nta l r ig hts

.-11- Be cause we affirm the termination of Father’ s pare ntal rig hts pursuant to Tenn. Code Ann. §§ 36-1-113( g )(3) (A)( i) throug h (iii), we ne ed not dec ide whethe r there was c lear and convincing evidenc e that F ather abandone d the Child bywillfullyfailing to visit him for a pe riod of four c onsecutive months immediately prec eding the filing of the pe tition. Due to our resolution of the pre ceding issues, all remaining issues are prete rmitted as t hey would not affe ct the outcome of this appeal.
Conclusion

The judgm en t of the Juvenile Court is aff irmed, and this cause is rema nded to the J uvenile Court for suc h further proce eding s as m ay be required, if any , consistent with this Opinion,
a n d f o r c o ll e c ti o n o f

th e c o s ts b e lo w
. T h e c o s ts o n a p p e a l a r e a s s e s s e d a g a in s t th e A p p e ll a n t R

. A

. W. and his surety

.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE