IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 2, 2023 Session

IN RE BROOKLYN M.

1

Appeal from the Chancery Court for Sumner County

No. 2021-AD-32 Louis W. Oliver, III, Chancellor

___________________________________

No. M2023-00024-COA-R3-PT

___________________________________

A father and stepmother appeal from an order dismissing their petition to adopt a child and

to terminate the mother’s parental rights. The trial court held that the evidence presented 

supported termination of the mother’s parental rights based on her failure to support and 

failure to visit the child. However, the trial court found that the alleged ground of failure 

to manifest an ability and willingness to personally assume custody or financial 

responsibility of the child had not been proven. The court also found that termination of 

the mother’s rights was not in the child’s best interest. We affirm.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S, and ANDY D. BENNETT, J., joined. 

Joel Stephen Mills, Nashville, Tennessee, for the appellants, Richard M. and Anna Renae 

M. 

Nicholas Perenich, Jr., Nashville, Tennessee, for the appellee, Holly W.

Taylor M. Davidson, Hendersonville, Tennessee, guardian ad litem. 

 

1

In cases involving minor children, it is the policy of this Court to redact the parties’ names to 

protect their identities.

01/05/2024
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OPINION

I. BACKGROUND

This appeal concerns Brooklyn M. (“child”) who was born to Holly W. (“Mother”) 

and Richard M. (“Father”) in 2015. Mother and Father’s romantic relationship 

deteriorated, and Mother last saw the child in late December 2018 when she relapsed into 

drug and alcohol abuse. Father began caring for the child along with Anna Renae M., the 

child’s stepmother and prospective adoptive parent (“Stepmother” and, collectively with 

Father, “Petitioners”). Father and Stepmother wed in early January 2019. Father was 

granted custody of the child on March 6, 2019. Father and Stepmother filed a stepparent 

adoption petition on November 29, 2021, which also sought to terminate Mother’s parental 

rights. Mother answered on December 30, 2021. On April 6, 2022, Mother surrendered 

her parental rights; however, she timely revoked the surrender. Trial was held before the 

Sumner County Chancery Court (“trial court”) on October 12, 2022, at which the following 

relevant evidence was presented. 

Father and Mother began their romantic relationship in 2013, approximately two 

years before the child was born. They never married. Before she lived with Father, Mother 

abused cocaine, but she began a period of sobriety in April 2013 which lasted until late 

December 2018. Father has a criminal history, including a conviction for simple robbery 

in 2014, for which he served jail time and a period of probation. The conviction was 

eventually expunged. Father testified that he has experienced no “trouble” since. Before 

the child was born, Father suffered a motorcycle accident, causing serious injuries to his 

hip, collar bone, and back. Following the accident, Father was prescribed pain medication, 

including Percocet and Oxycodone. Father admitted that he became addicted to these pain 

medications from approximately 2014 to 2018, a period which partially overlapped with 

the child’s early years, before he voluntarily “broke the addiction on his own.”

During the child’s first three-and-a-half years, she lived with Mother and Father in 

a home owned by Mother’s grandmother in Springfield, Tennessee. During this time, 

Mother cared for the child, was employed, and provided income for the family. Mother 

testified that she was in recovery from drug addiction during the child’s early years but was 

living with Father whom she said had an active addiction to pain pills. Father was not 

employed. He has received Social Security Disability benefits since 1999 due to ongoing 

mental health conditions and takes medication for seizures, mood swings, bipolar disorder, 

and schizophrenia.

Within a short period of time in late 2018, Mother learned that her mother died and 

that Father and Stepmother were in a romantic relationship. According to Mother, these 

circumstances caused her to relapse into drug and alcohol abuse after five years of sobriety. 

Father testified that Mother disappeared without notice on December 26, 2018, leaving the 

child with Mother’s aunt. Mother returned home on January 6, 2019, but Father and the 
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child were not there. When Mother called him, Father did not answer. Father testified that 

Mother’s grandmother told him to leave the home sometime after Mother left.

Mother admitted to using drugs and alcohol after being informed that Father was 

leaving her for Stepmother. She contended that her relapse occurred on January 1, 2019, 

and that when she returned to the home on January 6, 2019, Father had left with the child.2

Mother testified that she was distraught over the sudden upheaval of the relationship and 

turned to drugs and alcohol.

Father and Stepmother married shortly thereafter on January 9, 2019. Mother 

contacted Father in February 2019, seeking information about a federal income tax refund,

and made contact over a period of about two weeks seeking to see the child. Thereafter, 

Father failed to answer the phone when Mother or any members of her family attempted to 

contact him, and he would not return their calls. During the February 2019 contact, Mother 

refused to advise Father of her whereabouts. Father told Mother that she needed to be 

“consistent” about contacting the child, which to him meant “checking in” every day or 

every other day. He testified that the child was “heartbroken” when Mother left, and he 

did not want her to go through that experience again. No visits were allowed by Father 

and Stepmother, and Father had no further contact with Mother from February 2019 until 

the instant petition was initiated in November 2021. Mother testified that in April 2020, 

she went to a courthouse to pursue the matter, but the court was closed due to the COVID

pandemic. 

In March 2019, Father petitioned for and was awarded custody of the child by the 

Davidson County Juvenile Court. Father testified that he did not know where Mother lived

at that time, and she was apparently not served in this proceeding. The order stated that 

“Mother’s whereabouts is currently unknown. Her rights are reserved.” Father testified 

that he understood this language from the order, which was handwritten, to read that 

Mother’s visitation rights and parentage were “revoked” rather than “reserved.”

Father and Stepmother testified that the child was now integrated into their home, 

which also includes three additional step or half siblings. Father and Stepmother lease a 

five-bedroom house in Hendersonville, on which they hold an option to purchase. Father 

related that he does not work outside the home, and primarily cares for the minor children 

with a nanny’s help. He explained that he takes the children to school in the morning, and 

they ride the bus home in the afternoons. Father and Stepmother take the children to 

various extracurricular activities as well as doctor and dentist visits. They testified that the 

child is doing well in her activities including dance, school, and in relationships with her 

friends. 

 

2

In its findings of fact, the trial court appears to have credited Father’s testimony that Mother’s 

relapse occurred on December 26, 2018.
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At the time of trial, the child was seven years old and had not seen Mother since 

December 2018. Father testified that the child no longer remembered Mother, and the 

Stepmother testified that Mother was “a stranger to [the child] now.” After Mother left, 

the child had “abandonment issues,” and Father and Stepmother advised the child that they

“[did not] know where her mommy [was].” The child suffered anxiety for about one year 

over Mother’s absence. Father and Stepmother decided not to send the child to counseling. 

Stepmother testified that the child now calls her “mommy” and that she did so without 

coaxing. 

Father shared that he receives $1,700 a month from Social Security Disability 

benefits. Stepmother owns and manages a “gentlemen’s relaxation studio” in which the 

employees provide body rubs while wearing bikinis. Stepmother testified that the business 

grossed $570,000 in 2021. She stated that the studio was not a massage parlor and that her

employees were not licensed massage therapists. She testified that, in addition to billing 

and bookkeeping, she trains the providers to administer body rubs. She stated that she

“[has] to be careful about who [she] allow[s] in” to the studio because there are undercover 

police officers who visit the studio. She said that the police visits are to make sure “the 

girls that are doing the body rubs are not giving muscle manipulating massages . . . that 

their bathing suit is on at all times. . . .” Stepmother testified that the child thinks the

business is a spa, and she is prohibited from visiting the business or its website, which 

shows photos of women in various stages of undress. Stepmother testified that she used 

marijuana, cocaine, LSD, and mushrooms when she was eighteen years old. She was 

convicted of six counts of robbery, which occurred between 2004 and 2006. She was 

incarcerated for two-and-a-half years and released in 2008. She testified that she has had 

“no trouble since.” Stepmother testified that she would probably not talk to the child about 

being adopted until she was eighteen years old. Stepmother explained that she had 

previously discussed the adoption with the child and told her it “would mean that she would 

only have one mommy and not two anymore.”

Mother obtained a full-time job in September 2021. She also quit using drugs that 

same month, meaning that her relapse was from December 2018 until September 2021. 

During those years, Mother went to rehab three times, was arrested twice, and participated 

in Davidson County Recovery Court. She completed various training programs, attended 

therapy, and established her own two-bedroom home in Donelson. Mother submitted the 

results of a hair follicle test taken in July 2022, which was negative for drug use. She

testified that she continued to engage in activities to maintain her sobriety, including 

therapy, Narcotics Anonymous meetings, having a sponsor, working the twelve-step 

program, and keeping a network of family and other supporters.

Three family members testified on Mother’s behalf. First, Mother’s eighteen-yearold daughter, Kaitlyn G., testified. Kaitlyn is the child’s half-sister. Kaitlyn was in her 

father’s custody during her minority but was allowed to visit and talk with Mother. She 

spent weekends and time during the summers at Mother’s home. Kaitlyn testified that she 
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previously saw the child quite often before Father cut off contact with Mother’s family. 

She recounted that they went to the park, the movies, and Florida together. She testified 

that the child had a close relationship with all of Mother’s family and that Mother was the 

primary caregiver for the child prior to January 1, 2019. Kaitlyn testified that Father told 

her not to speak to him anymore and that he blocked her from communication. She testified 

that she thought it would be in the child’s best interest for Mother’s parental rights not to 

be terminated, stating, “For [the child] to see her family like I did. It’s important for her to 

see her sister, her mother. That’s what was important to me as a child, and so I think that’s 

important to her as well.”

Mother’s younger sister, Julianna W., also testified. She stated that she lived with 

Mother and Father for about one-and-a-half years around 2018, and she would babysit the 

child. Julianna testified that the child was bonded to her, they were together each day, they 

played together, and Julianna watched after the child when Mother worked. Julianna 

believed they were more like sisters than aunt and niece. Julianna recalled that Mother was 

there for the child all the time if she was not at work or running errands. Julianna testified 

that she saw the child approximately one year before trial when Father’s family visited the 

restaurant where she worked. The child recognized her, hugged her, smiled, and called her 

“Johnny,” which was the child’s nickname for her.

The child’s great grandmother, Marilyn W., also testified. She explained that she 

had a good relationship with the child prior to Father blocking her from calls, texts, and 

Facebook. Contrary to Father’s testimony, she stated that she did not tell him to leave the 

house she rented to them. She said that the last time she saw the child was when Father 

came to her shop to ask for money to be able to feed the child, which she gave to him. 

By order entered December 9, 2022, the trial court found that Mother had abandoned 

the child by failing to visit and by failing to support her pursuant to Tennessee Code 

Annotated section 36-1-102(1)(A)(i). As for failure to visit, the trial court found that Father 

blocked both Mother and her family members from contacting the child, but that Mother 

“failed to take any affirmative action” to seek visitation through the Juvenile Court during 

the applicable four-month period, even after she became sober. The trial court further 

found that Father and Stepmother had not proven that Mother failed to manifest the ability 

or willingness to assume custody of the child. The trial court ultimately concluded that it 

was not in the child’s best interest to terminate Mother’s parental rights. In particular, the 

trial court found that Father and Stepmother would continue to have custody of the child 

unless Mother later chose to petition to establish a parenting schedule; that the child would 

benefit from re-establishing the significant relationships she previously had with Mother’s 

side of the family; that Mother had demonstrated the ability and commitment to 

maintaining a home in which the child’s needs would be met; and that Mother was able to 

provide safe, stable care for the child during any period they may be together. Following 

the trial court’s dismissal of their petition, Father and Stepmother appealed.
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II. ISSUES

We consolidate and restate the issues pertinent to this appeal as follows: 

A. Whether there was clear and convincing evidence of the alleged 

grounds to terminate Mother’s parental rights.

B. Whether the trial court erred in finding that it was not in the child’s 

best interest to terminate Mother’s parental rights.

III. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children. 

Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. 

App. 1988). This right “is among the oldest of the judicially recognized liberty interests 

protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 

140 S.W.3d 643, 652–53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a 

parent is a grave and final decision, irrevocably altering the lives of the parent and child 

involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. 

Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-

113(l)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of natural 

family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 

U.S. 745, 787 (1982)).

Although parental rights are superior to the claims of other persons and the 

government, they are not absolute and may be terminated upon appropriate statutory 

grounds. See In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Blair v. Badenhope, 77 

S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence of the 

existence of the grounds for termination. In re Drinnon, 776 S.W.2d at 97. A parent’s 

rights may be terminated only upon

(1) [a] finding by the court by clear and convincing evidence that the grounds 

for termination of parental or guardianship rights have been established; and

(2) [t]hat termination of the parent’s or guardian’s rights is in the best 

interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing 

evidence proves not only that statutory grounds exist [for the termination] but also that 

termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 

2002). The existence of at least one statutory basis for termination of parental rights will 

support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 
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473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 

838 (Tenn. Ct. App. 2005).

The heightened burden of proof in parental termination cases minimizes the risk of 

erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620, 

622 (Tenn. Ct. App. 1998). “Evidence satisfying the clear and convincing evidence 

standard establishes that the truth of the facts asserted is highly probable and eliminates 

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

evidence.” In re Audrey S., 182 S.W.3d at 861 (citations omitted). It produces in a factfinder’s mind a firm belief or conviction regarding the truth of the facts sought to be 

established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 

S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

In 2012, a panel of this court described the clear and convincing evidence standard 

as a two-step process and provided as follows: 

Under the clear and convincing evidence standard, it is important to 

distinguish between the specific facts found by the trial court and the 

combined weight of those facts. Each specific underlying fact need only be 

established by a preponderance of the evidence. Such specific underlying 

facts include whether a particular injury suffered by the child was the result 

of nonaccidental trauma, and whether the caregiver’s conduct with respect to 

the injury was knowing. Once these specific underlying facts are established 

by a preponderance of the evidence, the court must step back to look at the 

combined weight of all of those facts, to see if they clearly and convincingly 

show severe child abuse.

In re S.J., 387 S.W.3d 576, 591–92 (Tenn. Ct. App. 2012) (internal citations and quotation 

marks omitted). “After making the underlying factual findings, the trial court should then 

consider the combined weight of those facts to determine whether they amount to clear and 

convincing evidence that termination is in the child’s best interest.” In re Kaliyah S., 455 

S.W.3d 533, 555 (Tenn. 2015) (citations omitted). 

In 2023, the Tennessee Supreme Court provided the following further guidance to 

this court in reviewing cases involving the termination of parental rights:

To review trial court decisions, appellate courts use a similar two-step 

process, to accommodate both Rule 13(d) of the Tennessee Rules of 

Appellate Procedure and the statutory clear and convincing standard. First, 

appellate courts review each of the trial court’s specific factual findings de 

novo under Rule 13(d), presuming each finding to be correct unless the 

evidence preponderates against it. When a trial court’s factual finding is 

based on its assessment of a witness’s credibility, appellate courts afford 
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great weight to that determination and will not reverse it absent clear 

evidence to the contrary. 

Second, appellate courts determine whether the combination of all of 

the individual underlying facts, in the aggregate, constitutes clear and 

convincing evidence. Whether the aggregate of the individual facts, either 

as found by the trial court or supported by a preponderance of the evidence, 

amounts to clear and convincing evidence is a question of law, subject to de 

novo review with no presumption of correctness. As usual, the appellate 

court reviews all other conclusions of law de novo with no presumption of 

correctness. 

In re Markus E., 671 S.W.3d 437, 455–57 (Tenn. 2023) (internal citations omitted).

Lastly, in the event that the “resolution of an issue in a case depends upon the 

truthfulness of witnesses, the trial judge, who has had the opportunity to observe the 

witnesses and their manner and demeanor while testifying, is in a far better position than 

this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. App. 

2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995)); Whitaker v.

Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). “Thus, this court gives great 

weight to the credibility accorded to a particular witness by the trial court.” In re 

Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn. Ct. App. 

Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).

IV. DISCUSSION3

A.

The trial court found that clear and convincing evidence established two grounds 

for termination of Mother’s parental rights: abandonment by failure to visit and

abandonment by failure to support. However, the trial court found that Father and 

Stepmother failed to prove a third ground for termination: failure to manifest an ability and 

willingness to assume custody or financial responsibility. On appeal, Mother challenges 

the first two grounds for termination, and Father and Stepmother challenge the trial court’s 

dismissal of the third ground. We will consider each ground as required by our Supreme 

Court. See In re Carrington H., 483 S.W.3d 507, 525–26 (Tenn. 2016) (“[T]he Court of 

Appeals must review the trial court’s findings as to each ground for termination and as to 

whether termination is in the child’s best interests, regardless of whether the parent 

challenges these findings on appeal.”).

 

3 We will reference the statutes which were in effect when Father and Stepmother filed the petition 

for termination of parental rights on November 29, 2021.
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Abandonment by Failure to Visit

Parental rights may be terminated for abandonment when a parent fails to visit a 

child for a period of four consecutive months immediately before the filing of a petition to 

terminate parental rights. Tenn. Code Ann. § 36-1-102(1)(A)(i). A failure to visit “means 

the failure, for a period of four (4) consecutive months, to visit or engage in more than 

token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). The statute requires that parents 

offer their children more than “token visitation,” defined as visitation that “under the 

circumstances of the individual case, constitutes nothing more than perfunctory visitation 

or visitation of such an infrequent nature or of such short duration as to merely establish 

minimal or insubstantial contact with the child.” Tenn. Code Ann. § 36-1-102(1)(C).

A parent may assert as an affirmative defense pursuant to Tennessee Rule of Civil 

Procedure 8.03 that his or her failure to visit was not “willful.” Tenn. Code Ann. § 36-1-

102(1)(I). The burden is on the parent asserting the affirmative defense to prove by a 

preponderance of the evidence that his or her failure to visit was not willful. Id.; In re 

Kolton C., No. E2019-00736-COA-R3-PT, 2019 WL 6341042 at *5 (Tenn. Ct. App. Nov. 

26, 2019).

Here, Petitioners filed their petition on November 29, 2021, so the relevant fourmonth period is July 29, 2021 – November 28, 2021. See In re Jacob C.H., No. E2013-

00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (statutory 

four-month period covers four months preceding the day the termination petition was filed 

and does not include the day petition was filed). 

The trial court found that Mother had abandoned the child by failure to visit, having 

left the child in December 2018 and not having seen her since. The trial court

acknowledged that Mother subsequently contacted Father in February 2019 seeking to see 

the child, and also credited Mother’s testimony that she tried to seek information from the 

court in April 2020, but found the court closed due to the pandemic. The trial court found 

that Mother and her family members attempted to call Father “hundreds of times” regarding 

the child; however, Father would not answer the phone, would not return their calls, and 

would block their phone numbers. The trial court acknowledged that Mother’s “periods of 

drug abuse and intoxication, incarceration, and rehabilitation treatment made it difficult for 

Mother to seek Court relief. . . .” However, the trial court found that Mother’s cocaine and 

alcohol abuse were circumstances that were within her control and that, despite Father’s 

blocking of communication, she “had the opportunity to seek relief from” the Juvenile 

Court “but failed to take any affirmative action.” The trial court observed that Mother had 

been “clean of drugs and alcohol after September 12, 2021, approximately 2 1⁄2 months 

prior to the filing of the instant petition, but still failed to seek visitation through the 

Juvenile Court.”
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There is no dispute that Mother did not visit the child in the four months 

immediately preceding the filing of the petition to terminate her parental rights. In her 

appellate brief, Mother argues lack of willfulness, arguing that her incarceration and 

Father’s refusal of contact were circumstances outside of her control. However, Mother 

did not plead the absence of willfulness in her answer to the petition. Failure to plead an 

affirmative defense generally results in waiver of the affirmative defense. See, e.g., In re 

Isabella G., No. M2022-00246-COA-R3-PT, 2023 WL 1131230, at *9 (Tenn. Ct. App. 

Jan. 31, 2023) (“This Court has often held that this omission results in waiver of lack of 

willfulness as an affirmative defense.”) (citing In re Jaidon S., No. M2021-00802-COAR3-PT, 2022 WL 1017230, at *5 (Tenn. Ct. App. Apr. 5, 2022); In re Analesia Q., No. 

E2021-00765-COA-R3-PT, 2022 WL 1468786, at *5 (Tenn. Ct. App. May 10, 2022); In 

re Christopher L., No. M2020-01449-COA-R3-PT, 2021 WL 4145150, at *5 (Tenn. Ct. 

App. Sept. 13, 2021)). On appeal, Mother does not argue that the issue was tried by 

consent. Accordingly, the issue of willfulness with respect to Mother’s failure to visit is 

waived, and we conclude that the trial court did not err in finding that clear and convincing 

evidence supports this ground for termination.

Abandonment by Failure to Support

Abandonment can occur when a parent has “failed to support or [] failed to make 

reasonable payments toward the support of the child” for a period of four consecutive 

months immediately before the filing of a petition to terminate parental rights. Tenn. Code 

Ann. § 36-1-102(1)(A)(i). The statute defines failure to support as a parent’s failure “for a 

period of four (4) consecutive months, to provide monetary support or the failure to provide 

more than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-

102(1)(D). By statute, parents are expected to offer more than “token support,” which 

“means that the support, under the circumstances of the individual case, is insignificant 

given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). Furthermore, “[e]very 

parent who is eighteen (18) years of age or older is presumed to have knowledge of a 

parent’s legal obligation to support such parent’s child or children.” Tenn. Code Ann. § 

36-1-102(1)(H).

A lack of willfulness can constitute an affirmative defense to the ground of failure 

to support. Tenn. Code Ann. § 36-1-102(1)(I). A parent “shall bear the burden of proof 

that the failure to . . . support was not willful” and must establish the lack of willfulness by 

a preponderance of evidence. Id. Efforts to frustrate or impede a parent’s visitation do not 

justify a parent’s failure to financially support a child. In re Audrey S., 182 S.W.3d at 864. 

There is no dispute that Mother failed to pay any child support after she left the home in 

December 2018. The trial court noted that Mother was employed on a full-time basis as of 

September 2021 but still failed to pay any child support.

On appeal, Mother asserts lack of willfulness, arguing that she could not pay child 
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support during the four months preceding the petition because she was living in a halfway 

house during some part of this time. Mother did not plead the absence of willfulness as an 

affirmative defense to her failure to pay support and does not argue on appeal that the issue 

was tried by consent. Accordingly, the issue is waived. See In re Isabella G., 2023 WL 

1131230, at *9 (citations omitted). We conclude that the trial court did not err in finding 

that clear and convincing evidence supports this ground for termination.

Failure to Manifest an Ability and Willingness to Assume Custody or Financial 

Responsibility

Pursuant to Tennessee Code Annotated section 36-1-113(g)(14) parental rights may 

be terminated when:

A parent or guardian 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 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). This ground requires the petitioner to prove two 

elements by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14); 

In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020). First, a petitioner must prove that 

the parent failed to manifest an ability and willingness to personally assume legal and 

physical custody or financial responsibility of the child. In re Neveah M., 614 S.W.3d at

674. Second, a petitioner must prove that placing the child in the parent’s legal and 

physical custody would pose a risk of substantial harm to the physical or psychological 

welfare of the child. Id.

As to the first element, our Supreme Court has instructed as follows: 

[S]ection 36-1-113(g)(14) places a conjunctive obligation on a parent or 

guardian to manifest both an ability and willingness to personally assume 

legal and physical custody or financial responsibility for the child. If a person 

seeking to terminate parental rights proves by clear and convincing proof that 

a parent or guardian has failed to manifest either ability or willingness, then 

the first prong of the statute is satisfied.

Id. at 677 (citation omitted).

As to the second element, whether placing the child in the parent’s custody “would 

pose a risk of substantial harm to the physical or psychological welfare of the child,” we 

have explained:
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The courts have not undertaken to define the circumstances that pose a risk 

of substantial harm to a child. These circumstances are not amenable to 

precise definition because of the variability of human conduct. However, the 

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.

In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct. App. 

Oct. 11, 2018) (quoting Ray, 83 S.W.3d at 732 (footnotes omitted)).

In this case, the trial court found that the preponderance of the evidence did not 

favor termination of Mother’s parental rights under section 36-1-113(g)(14). On appeal, 

Father and Stepmother contend that the trial court improperly considered evidence 

occurring after the petition date. They also contend that the trial court reached the wrong 

conclusion based on the evidence. On appeal, Mother asserts that the petition did not allege 

section 36-1-113(g)(14) as a ground for termination of her parental rights and, therefore, 

that ground should be dismissed. We will first address Mother’s argument.

“A parent’s rights cannot be terminated pursuant to statutory grounds not alleged 

in the petition.” In re Tiffany B., No. E2020-00854-COA-R3-PT, 2021 WL 514299, at *8 

(Tenn. Ct. App. Feb. 11, 2021) (citing In re Tristyn K., No. E2010-00109-COA-R3-PT, 

2010 WL 2867179, at *5 (Tenn. Ct. App. July 22, 2010) (“A trial court cannot terminate 

parental rights based on a ground that is not alleged in the complaint.”); M.D. v. R.L.H., 

No. E2005-00324-COA-R3-PT, 2005 WL 3115874, at *3 (Tenn. Ct. App. Nov. 22, 2005); 

In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (parental rights could not be 

terminated based on severe abuse when ground was not mentioned in prayer for relief)). 

“A court can terminate a ‘parent’s rights to [her] child based only upon the statutory 

ground(s) alleged in the petition because otherwise the parent would be disadvantaged in 

preparing a defense.’” In re Lucas S., No. M2019-01969-COA-R3-PT, 2021 WL 710841, 

at *4 (Tenn. Ct. App. Feb. 24, 2021) (quoting In re Anthony R., No. M2012-01412-COAR3-PT, 2008 WL 2331037, at *4 (Tenn. Ct. App. Feb. 8, 2013) (other citation omitted)); 

see also M.D. v. R.L.H., 2005 WL 3115874, at *3 (“The record contains nothing showing 

that the petition ever was amended to allege any additional ground upon which to terminate 

Father’s parental rights. Absent evidence showing that Father was properly apprised that 

these additional grounds for terminating his parental rights were at issue, we must vacate 

the Juvenile Court’s judgment insofar as it terminates Father’s parental rights pursuant to 

Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(4).”).

In this case, Mother contends that the petition does not specifically allege 

termination of her parental rights based on section 36-1-113(g)(14). Mother points to 
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language in paragraph 35 of the petition, which paraphrases but does not cite section 36-1-

113(g)(14):

(d) Petitioners would show by clear and convincing evidence that the 

Respondent has failed to manifest an ability and willingness to assume legal 

and physical custody of the child.

(e) Petitioners would show by clear and convincing evidence that placing 

custody of the child in the Respondent’s legal and physical custody would 

pose a risk of substantial harm to the physical and psychological welfare of 

the child.

Mother states that this paragraph did not put her on sufficient notice that the petition 

sought termination under section 36-1-113(g)(14). Mother also points out that the prayer 

for relief does not specifically cite section 36-1-113(g)(14) as a ground for termination and 

that Petitioners’ attorney did not refer to this ground in his opening and closing arguments

but instead focused on the ground of abandonment. However, Mother’s argument ignores 

entirely the fact that paragraph 39 of the petition specifically cites section 36-1-113(g)(14) 

as a ground for termination. (“It would be in the child’s best interest under T.C.A. § 36-1-

113(i) to terminate Respondent’s parental rights under T.C.A. 36-1-113(g)(3), (g)(9), and 

(g)(14).” (emphasis added). We conclude that paragraph 35 and paragraph 39 of the 

petition sufficiently allege section 36-1-113(g)(14) as a ground for termination and that 

Mother was put on notice that this ground would be tried.

We now turn to the trial court’s finding in Mother’s favor, which Father and 

Stepmother contest. With respect to the ground of failure to manifest, the trial court found

as follows:

The Respondent/Mother was in a half-way house at the time the petition was 

filed on November 29, 2021 which could have been harmful to the physical 

or psychological welfare of the child if the child was placed to live with the 

Mother. The Mother obtained full time employment beginning September,

2021, and as of June 1, 2022 the Mother has resided separately at [her 

address] in Donelson, Davidson County, Tennessee. The Mother has been 

clean of drugs since September 12, 2021 and filed the results of a hair follicle 

drug test taken on August 4, 2022. Mother has completed various training 

programs including Centerstone Early Childhood Services Parenting, Stress 

Management and Life Skills class, Parenting Education classes; Tennessee 

Recovery Foundation Relapse Prevention Program, Intensive Outpatient 

Treatment Program, Outpatient MRT Group Program, and the Mother has

continued to receive individual therapy. Father contends that Mother has not 

been clean a sufficient period of time, however, the Court finds that Mother 

was previously clean of drugs for a period of five years prior to December, 
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2018. Even though a period of adjustment for the minor child would be 

appropriate, the Court finds that to place the child in the legal and physical 

custody of the Mother would not pose a risk of substantial harm to the 

physical or psychological welfare of the child, nor does the Mother 

demonstrate that she has failed to manifest an ability and willingness to 

personally assume legal and physical custody or financial responsibility of 

the child. The Court finds that this ground has not been proven by clear and 

convincing evidence and therefore this ground [is] denied.

On appeal, Father and Stepmother argue that the trial court improperly considered 

evidence regarding Mother’s ability and willingness to assume custody as of the trial date, 

rather than the date the petition for termination was filed. Father and Stepmother contend 

that Mother was living in a halfway house when the petition was filed and could not have 

assumed custody at that time. They argue that it was improper for the trial court to have 

considered her improved living conditions as of the trial date. We respectfully disagree. 

Although the “most relevant timeframe” for assessing the ground of failure to manifest is 

the “time preceding the filing of the petition to terminate parental rights,” we have 

previously explained that the trial court “may also consider the parent’s actions following 

the filing of the petition and up to the time of trial.” In re Kyland F., No. E2019-01058-

COA-R3-PT, 2020 WL 957647, at *8 (Tenn. Ct. App. Feb. 27, 2020) (citing In re M.E.N.J., 

No. E2017-01074-COA-R3-PT, 2017 WL 6603658, at *7 (Tenn. Ct. App. Dec. 27, 2017); 

In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. 

April 4, 2018)); see also In re Jeremiah S., No. W2019-00610-COA-R3-PT, 2020 WL 

1951880, at *7 (Tenn. Ct. App. Apr. 23, 2020). We discern no error in the trial court’s 

consideration of evidence after the petition date with respect to this ground for termination.

Father’s and Stepmother’s remaining arguments are that the trial court reached the 

wrong conclusion based on the evidence. They argue that Mother and the child do not have 

an existing relationship, that Mother would be a stranger to her, and that Mother lacks the 

ability to care for or assume custody of the child. The trial court considered testimony 

along these lines from Father and Stepmother. The trial court also heard testimony that 

Mother obtained full-time employment and adequate housing, stopped using drugs, and 

successfully completed a number of rehabilitation programs and classes. Having reviewed 

all the evidence, the trial court determined that Father and Stepmother failed to establish 

by clear and convincing evidence the ground of failure to manifest an ability and 

willingness to assume custody or financial responsibility. We conclude that the record 

supports the trial court’s conclusion.

B.

Having concluded that there was clear and convincing evidence supporting at least 

one statutory ground of termination, the trial court was required to consider whether 
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termination of Mother’s parental rights was in the best interest of the child. See Tenn. 

Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860. After a court finds that 

clear and convincing evidence exists to support a termination ground, “the interests of the 

parent and the child diverge” and the court focuses on the child’s best interest. In re Audrey 

S., 182 S.W.3d at 877. A finding that at least one ground for termination of parental rights 

exists does not necessarily require that a parent’s rights be terminated. Id. Because some 

parental misconduct is redeemable, Tennessee’s termination of parental rights statutes 

recognize “that terminating an unfit parent’s parental rights is not always in the child’s best 

interests.” Id. The facts a court considers in the best interest analysis “must be proven by 

a preponderance of the evidence, not by clear and convincing evidence.” In re Kaliyah S., 

455 S.W.3d at 555. After making the underlying factual findings, the court “should then

consider the combined weight of those facts to determine whether they amount to clear and

convincing evidence that termination is in the child’s best interest.” Id.

The statutory best interest factors applicable to this action are as follows:

(i)(1) In determining whether termination of parental or guardianship rights 

is in the best interest of the child, the court shall consider all relevant and 

child-centered factors applicable to the particular case before the court. 

Those factors may include, but are not limited to, the following:

(A) The effect a termination of parental rights will have on the child’s critical 

need for stability and continuity of placement throughout the child’s 

minority;

(B) The effect a change of caretakers and physical environment is likely to 

have on the child’s emotional, psychological, and medical condition;

(C) Whether the parent has demonstrated continuity and stability in meeting 

the child’s basic material, educational, housing, and safety needs;

(D) Whether the parent and child have a secure and healthy parental 

attachment, and if not, whether there is a reasonable expectation that the 

parent can create such attachment;

(E) Whether the parent has maintained regular visitation or other contact with 

the child and used the visitation or other contact to cultivate a positive 

relationship with the child;

(F) Whether the child is fearful of living in the parent’s home;

(G) Whether the parent, parent’s home, or others in the parent’s household 

trigger or exacerbate the child’s experience of trauma or post-traumatic 
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symptoms;

(H) Whether the child has created a healthy parental attachment with another 

person or persons in the absence of the parent;

(I) Whether the child has emotionally significant relationships with persons 

other than parents and caregivers, including biological or foster siblings, and 

the likely impact of various available outcomes on these relationships and 

the child’s access to information about the child’s heritage;

(J) Whether the parent has demonstrated such a lasting adjustment of 

circumstances, conduct, or conditions to make it safe and beneficial for the 

child to be in the home of the parent, including consideration of whether there 

is criminal activity in the home or by the parent, or the use of alcohol, 

controlled substances, or controlled substance analogues which may render 

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

manner;

(K) Whether the parent has taken advantage of available programs, services, 

or community resources to assist in making a lasting adjustment of 

circumstances, conduct, or conditions;

(L) Whether the department has made reasonable efforts to assist the parent 

in making a lasting adjustment in cases where the child is in the custody of 

the department;

(M) Whether the parent has demonstrated a sense of urgency in establishing 

paternity of the child, seeking custody of the child, or addressing the 

circumstance, conduct, or conditions that made an award of custody unsafe 

and not in the child’s best interest;

(N) Whether the parent, or other person residing with or frequenting the 

home of the parent, has shown brutality or physical, sexual, emotional, or 

psychological abuse or neglect toward the child or any other child or adult;

(O) Whether the parent has ever provided safe and stable care for the child 

or any other child;

(P) Whether the parent has demonstrated an understanding of the basic and 

specific needs required for the child to thrive;

(Q) Whether the parent has demonstrated the ability and commitment to 

creating and maintaining a home that meets the child’s basic and specific 
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needs and in which the child can thrive;

(R) Whether the physical environment of the parent’s home is healthy and 

safe for the child;

(S) Whether the parent has consistently provided more than token financial 

support for the child; and

(T) Whether the mental or emotional fitness of the parent would be 

detrimental to the child or prevent the parent from consistently and 

effectively providing safe and stable care and supervision of the child.

(2) When considering the factors set forth in subdivision (i)(1), the prompt 

and permanent placement of the child in a safe environment is presumed to 

be in the child’s best interest.

(3) All factors considered by the court to be applicable to a particular case 

must be identified and supported by specific findings of fact in the court’s 

written order.

(4) Expert testimony is not required to prove or disprove any factor by any 

party.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not require

a trial court to find the existence of each enumerated factor before it may conclude that

terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183

S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when

the best interest[] of the child and those of the adults are in conflict, such conflict shall

always be resolved to favor the rights and the best interest[] of the child, which interests

are hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see

also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when

considering a child’s best interest, the court must take the child’s perspective, rather than

the parent’s). 

Of these twenty statutory factors, the trial court concluded that two favored 

termination of Mother’s parental rights, two were neutral, two were inapplicable,4and 

fourteen did not favor termination. Because many of these factors touch on similar factual 

predicates and involve similar issues, we group our discussion of the best interest factors 

“based on the overarching themes within the list of twenty factors” under the circumstances 

of the case. In re Chayson D., No. E2022-00718-COA-R3-PT, 2023 WL 3451538, at *14

 

4 The trial court found Tennessee Code Annotated section 36-1-113(i)(1) subsections (L) and (N) 

to be inapplicable. We agree and, therefore, omit these factors from further discussion.
- 18 -

(Tenn. Ct. App. May 15, 2023).

We consider first the child’s emotional needs. See Tenn. Code Ann. § 36-1-

113(i)(1)(A) (concerning the need for stability), (B) (concerning how changes in caretakers 

affect the child’s wellbeing), (D) (concerning the parent-child attachment), (E) (concerning 

visitation), (H) (concerning the child’s attachment to others), (I) (concerning the child’s

relationships with others), (T) (concerning the parent’s fitness and its corresponding

impacts). With respect to these factors, the trial court found that Mother was the child’s 

primary caretaker from her birth in May 2015 until late December 2018 when Mother 

relapsed and left the home. The trial court found that Mother failed to maintain regular 

visitation or other contact since then. The trial court observed that Mother and the child 

“do not presently have a secure and healthy parental attachment” based on this lapse in 

contact but noted that Mother had gone through extensive rehabilitation and “has 

significant family support.” The trial court concluded that there was a “reasonable 

expectation with appropriate counseling and therapy for a healthy parental attachment to 

be established between the minor child and the Mother.” 

Concerning the child’s attachment and relationships with others, the trial court 

found that she had created a “healthy personal attachment” with Stepmother and had begun 

calling her “mommy” of her own volition. The trial court also found that the child had 

“developed emotionally significant relationships” with her half-siblings and stepsiblings in 

Father’s and Stepmother’s home. The trial court characterized these relationships as 

“favorable and supportive to the child.” The child formerly had relationships with

members of Mother’s family including Kaitlyn G. and Julianna W. The trial court found 

that these “significant relationships” on both sides of the child’s family “will continue on 

a favorable basis” and the child would benefit “by renewing her relationships with her 

Mother’s relatives.”

With regard to stability and a possible change in caretakers, the trial court placed 

particular significance on the fact that it was not determining custody of the child. The 

trial court noted that “a change of caretakers and physical environment on a permanent 

basis is unlikely to occur” and would ultimately be decided by the Juvenile Court.

We turn next to the trial court’s consideration of the child’s physical environment 

and well-being. See Tenn. Code Ann. § 36-1-113(i)(1)(O) (involving the parent’s prior 

provision of safe and stable care to any child), (Q) (involving the parent’s commitment to 

having a home that meets the child’s needs), (R) (involving the health and safety of the 

home). With respect to these factors, the trial court found that prior to December 2018, 

“Mother was the primary parent providing safe and stable care” and that Father and 

Stepmother had also “provided safe and stable care for the child as well as their other 

children.” The trial court found that Mother “demonstrated the ability and commitment to 

establishing her own separate home that would be adequate for the child and the Mother to 

live.” The trial court noted that Mother’s has a “2-bedroom house with a fenced backyard 
- 19 -

in a good neighborhood” in which the child’s needs could be met and “in which the child 

can thrive.”

Next, we consider Mother’s efforts. See Tenn. Code Ann. § 36-1-113(i)(1)(C) 

(involving the parent’s continuity in meeting the child’s needs), (J) (involving the parent’s 

lasting adjustment of circumstances), and (K) (involving the parent’s use of available 

resources). The trial court observed that both Mother and Father were “addicted to 

controlled substances for periods in their life.” The trial court noted that “Mother was clean 

and sober” for five years prior to December 2018 and “has again been clean since 

September, 2021.” She participates in rehabilitation programs, therapy, and “support 

groups and other activities which assist her in maintaining her sobriety and positive 

outlook.” The trial court acknowledged the risk of relapse by Mother but found that “the 

child would certainly be protected in the home of the Father and Step-Mother” should 

relapse occur. The trial court also found that, in addition to establishing her own home, 

Mother had full time employment and “continuity and stability in meeting the child’s basic 

material, education, housing, and safety needs. The trial court observed that should 

Mother’s “continuity and stability come [into] question, the Juvenile Court may make such 

adjustments in placing the child with the Father and Step-Mother as it deems appropriate.”

With regard to support and knowledge of the child’s needs, Tenn. Code Ann. § 36-

1-113(i)(1)(S) (addressing the parent providing more than token support), (P) (addressing 

the parent’s understanding of the child’s needs), the trial court found that Mother had 

financially supported and cared for the child for the first three-and-a-half years of the 

child’s life and “demonstrated an understanding of the basic and specific needs required 

for the child to thrive.” The trial court found that although the child was seven years old 

at the time of trial, Mother had an understanding of the needs required of a child that age. 

Regarding financial support, however, the trial court found that Mother had not 

consistently provided more than token financial support after she left the home in 

December 2018. The trial court noted that Mother was earning approximately $1,000 per 

week in full-time employment and would be able to support the child going forward.

On appeal, Father and Stepmother contest a number of the trial court’s conclusions. 

However, their arguments essentially rely on favoring their testimony over that proffered 

by Mother and her witnesses. The trial court considered all of the evidence, weighed the 

credibility of the witnesses, and concluded that the best interest factors did not support 

termination by clear and convincing evidence. Upon review of the evidence, we agree with 

the trial court’s assessment and findings. Accordingly, we conclude that clear and 

convincing evidence in the record does not support a determination that it was in the child’s 

best interest for Mother’s parental rights to be terminated.
- 20 -

V. CONCLUSION

The trial court’s judgment is affirmed. The case is remanded for such further 

proceedings as may be necessary and consistent with this opinion. Costs of the appeal are 

taxed to the appellants, Richard M. and Anna Renae M.

_________________________________ 

JOHN W. McCLARTY, JUDGE