IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 7, 2021 Session

IN RE A.W.

Appeal from the Chancery Court for Rutherford County

No. 18CV-1243 Darrell Scarlett, Judge

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No. M2020-00892-COA-R3-PT

___________________________________

A mother and an unknown father were the subjects of a petition to terminate parental rights 

and to adopt a child. Only mother appeals. She argues that she lacked notice of the 

proceedings and that the petitioners failed to comply with the parental termination statutes. 

She also contests the statutory grounds relied on for terminating her parental rights and the 

trial court’s determination that termination was in her child’s best interest. We affirm the 

termination of the mother’s parental rights. But because the record does not reflect that the 

unknown father was served under the Tennessee Rules of Civil Procedure or the statutes 

governing substituted service, we vacate the judgment terminating his parental rights. 

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

in Part and Vacated in Part

W. NEAL MCBRAYER,J., delivered the opinion of the court, in which D. MICHAEL SWINEY, 

C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Catherine T. Mekis, Murfreesboro, Tennessee, for the appellant, Angela W.

Rebecca L. Lashbrook, Murfreesboro, Tennessee, for the appellees, T.G. and A.G.

OPINION

I.

A.

T.G and A.G. (together, “Petitioners”) met Angela W. (“Mother”) and her five-yearold daughter, A.W., when Mother and A.W. began attending Petitioners’ church. Soon 

09/08/2021
2

after, Mother stood up in church and asked for assistance caring for her child at night. 

A.G., who ran a daycare out of the home she shared with T.G., offered to help. And that 

is how A.W. began living with Petitioners. As A.G. later explained, after picking up A.W. 

on January 8, 2016, “[s]he stayed with us that weekend, and pretty much has stayed since.” 

Although A.G. acknowledged that the child would sometimes stay overnight with Mother 

after that time, the last time being in January 2017. 

Mother’s absences led Petitioners to file a dependency and neglect petition against 

Mother. In January 2018, a juvenile court found by clear and convincing evidence that 

A.W. was dependent and neglected in Mother’s care and awarded custody to Petitioners.

In July of that same year, Petitioners petitioned to terminate the parental rights of 

Mother and an “unknown father” and to adopt A.W. See Tenn. Code Ann. § 36-1-113(b)(1) 

(Supp. 2018) (granting the “prospective adoptive . . . parents . . . standing to file a petition 

. . . to terminate parental . . . rights”). By that point, Petitioners last contact with Mother 

was nearly nine months ago. As grounds for terminating Mother’s parental rights, the 

petition alleged abandonment by failure to support, abandonment by failure to visit, 

persistence of conditions, and failure to manifest an ability and willingness to assume 

custody or financial responsibility of the child. As to abandonment, the petition claimed 

that Mother willfully failed to support or visit A.W. “for a period in excess of four (4) 

months.” 

At the time the petition was filed, Mother was incarcerated. She wrote a letter from 

the detention center, which the trial court treated as her responsive pleading. According to 

the letter, Mother was unwilling to “completely” give up A.W and wanted to remain part 

of her child’s life. Mother’s release date was within a few months, and she was “waiting 

to be approved for treatment.” She was “trying to better [her]self.”

The court held a trial on the petition. Appointed counsel appeared on behalf of 

Mother, but Mother did not. The only witnesses were Petitioners and a friend of Petitioners 

who attended the same church. The testimony established how A.W. came under

Petitioners’ care, the frequency or infrequency of Mother’s contact with her child and 

Petitioners, and how A.W. was fairing. Petitioners also introduced evidence of Mother’s 

“extensive criminal history.” She had been in and out of prison since A.W. was placed in 

Petitioners’ care. And she had pending charges at the time of the trial.

After the trial, the court terminated Mother’s and the unknown father’s parental 

rights. With respect to Mother, the court concluded that she abandoned A.W. both by 

failure to visit and by failure to support. In concluding that A.W. was abandoned, the court 

determined that the relevant time period for evaluating Mother’s visitation and support was 

the four-month period preceding the filing of the petition to terminate. See id. § 36-1-

102(1)(A)(i) (Supp. 2018) (defining “abandonment” as the willful failure to visit or the 

willful failure to support “[f]or a period of four (4) consecutive months immediately 
3

preceding the filing of a proceeding [or] pleading . . . to terminate the parental rights of the 

parent or parents”). The court made no determination regarding the other grounds alleged 

for terminating Mother’s parental rights.

The court also concluded that termination of Mother’s parental rights was in A.W.’s 

best interest. In its best interest analysis, the court did not articulate its reasoning. The 

court only noted that it had considered the relevant statutory factors.

Mother moved to alter or amend the court’s judgment or, alternatively, for a new 

trial. She claimed that she was incarcerated when the petition to terminate was filed and 

did not receive the notice due to incarcerated parents under the parental termination 

statutes. See id. § 36-1-113(f). She also claimed that she did not receive notice of the trial 

date “due to relocation and lack of mail forwarding.” And she argued that, due to her 

incarceration, the court analyzed the abandonment ground incorrectly by looking at the 

wrong four-month period.

Petitioners also moved to alter or amend the court’s judgment. Seemingly agreeing 

with one of the points made by Mother, Petitioners asked that the judgment terminating 

parental rights “be altered and/or amended with regard to the statutory time frame utilized 

by [the court]” as it related to the ground of abandonment. 

The court granted Petitioners’ motion but denied Mother’s. The court amended its 

judgment to reflect that the relevant four-month period in determining abandonment was 

the four-month period preceding Mother’s incarceration. As for Mother’s notice 

arguments, the court found that Mother “had notice of the[] proceedings and failed to 

appear at trial.” And Mother willfully failed “to appropriately communicate her 

whereabouts to her . . . counsel.”

B.

Mother appealed. See In re A.W., No. M2019-00358-COA-R3-PT, 2020 WL 95690 

(Tenn. Ct. App. Jan. 8, 2020). This Court determined that the judgment terminating the 

parental rights of Mother and the unknown father was not final because the judgment failed 

to address two of the four grounds Petitioners alleged for terminating parental rights. Id.

at *3. So we dismissed the appeal, and we remanded the case for consideration of the two 

grounds left unaddressed in the judgment. Id. We also remanded for specific findings of 

fact and conclusions of law on the court’s best interest analysis. Id. 

On remand, the court again terminated Mother’s and the unknown father’s parental 

rights. With respect to Mother, the court once more concluded that Mother had abandoned 

her child both by failure to visit and by failure to support during the four-month period 

preceding her incarceration. The court also concluded that the two grounds left 

unaddressed previously—persistence of conditions and failure to manifest an ability and 
4

willingness to assume custody or financial responsibility of the child—applied to Mother. 

And the court analyzed the statutory best interest factors, concluding that termination of 

Mother’s rights was in A.W.’s best interest. This appeal by Mother followed. 

II.

Before addressing Mother’s issues on appeal, we consider the parental rights of the 

“unknown father.” Although Mother has not contested the termination of unknown father’s 

rights, “Rules 13(b) and 36(a) of the Tennessee Rules of Appellate Procedure, considered 

together, give appellate courts considerable discretion to consider issues that have not been 

properly presented in order to achieve fairness and justice.” In re Kaliyah S., 455 S.W.3d 

533, 540 (Tenn. 2015) (footnote omitted). And we have previously concluded that due 

process sometimes demands that we consider the rights of a parent who is not a party to an 

appeal from the termination of parental rights. See In re Stormie M., No. M2015-02336-

COA-R3-PT, 2016 WL 5025999, at *8 (Tenn. Ct. App. Sept. 15, 2016); In re Z.J.S., No. 

M2002-02235-COA-R3-JV, 2003 WL 21266854, at *4 (Tenn. Ct. App. June 3, 2003). 

Unless they have surrendered their parental rights, already had their parental rights 

terminated by court order, or are subject to a separate termination proceeding, both parents 

must be made parties to an adoption proceeding. Tenn. Code Ann. § 36-1-117(a) (Supp. 

2018). Service of process must “be made pursuant to the Tennessee Rules of Civil 

Procedure and the statutes governing substituted service.” Id. § 36-1-117(m)(1). Under 

the Tennessee Rules of Civil Procedure, “‘the preferred method of service upon an 

individual . . . is clearly by delivery of the summons and complaint to the defendant 

personally.’” Hall v. Haynes, 319 S.W.3d 564, 572 (Tenn. 2010) (quoting Robert Banks, 

Jr. & June F. Entman, TENNESSEE CIVIL PROCEDURE § 2-3(d), at 2-26 (2d ed. 2004)); see

TENN. R. CIV. P. 4.04(1). 

In chancery court, personal service may be dispensed with when the name or 

residence of the defendant “is unknown and cannot be ascertained upon diligent inquiry.” 

Tenn. Code Ann. § 21-1-203(a)(4)-(5) (2009). But, when personal service is dispensed 

with because the name or residence of the defendant is unknown and cannot be ascertained 

upon diligent inquiry, service by publication is required. See id. § 21-1-204 (2009). In 

adoption and termination proceedings, “[a]ny motion for an order of publication . . . [must] 

be accompanied by an affidavit of the petitioners or their legal counsel attesting, in detail, 

to all efforts to determine the identity and whereabouts of the parties against whom 

substituted service is sought.” Id. § 37-1-117(m)(3). The court must then hold an 

evidentiary hearing to determine “whether a name and address are reasonably 

ascertainable[] or can be found with diligent inquiry.” Adoption Place, Inc. v. Doe, 273 

S.W.3d 142, 148 (Tenn. Ct. App. 2007). 

Here, not surprisingly, the record contains no evidence that Petitioners attempted to 

personally serve anyone other than Mother. In their petition to terminate, Petitioners quote 
5

a juvenile court finding “that no known biological father is available in these proceedings, 

nor is one listed on the minor child’s birth certificate.” And Petitioners request that service 

upon the unknown father “not be required.”1 

In its order terminating the unknown father’s parental rights, the court found that, 

based on Mother engaging in prostitution at the time of the conception of her child, “the 

identity of the Biological Father is unknown and not ascertainable.” But the order makes 

no mention of Petitioners’ efforts to ascertain the father’s identity or whereabouts other 

than speaking with Mother and examining the putative father registry. And the order does 

not indicate that the unknown father was served by publication. The record contains no 

order for publication. 

Service of process is not just a “perfunctory act”—it has “constitutional 

dimensions.” Turner v. Turner, 473 S.W.3d 257, 274 (Tenn. 2015) (quoting In re Z.J.S., 

2003 WL 21266854, at *6). In sum,

Tennessee statutes authorize dispensing with personal service of process in 

a proceeding to terminate parental rights only if: (1) “the defendant’s 

residence is unknown and cannot be ascertained upon diligent inquiry,” 

Tenn. Code Ann. § 21-1-203(a)(5); and (2) the plaintiff has asked for an 

order authorizing constructive service by publication and has supported the 

request with an affidavit “attesting, in detail, to all efforts to determine the 

identity and whereabouts of the parties against whom substituted service is 

sought.” Tenn. Code Ann. § 36-1-117(m)(3).

Id. (emphasis added). That did not happen. Because the unknown father was not served 

under the Tennessee Rules of Civil Procedure or the statutes governing substituted service, 

we vacate the termination of his parental rights.

III.

Mother raises five issues on appeal. The first three relate to notice and her failure 

to appear for trial, issues also raised in Mother’s motion to alter or amend the court’s 

 

1 Parties should be “given fair notice and an opportunity to be heard on . . . dispositive 

issues.” Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct. App. 2000). 

In other circumstances, we would ask the parties to brief the issue of lack of service of process. 

But the Petitioners’ explicit request that the unknown father not be served with process convinces 

us that additional briefing on this issue would not be helpful. Cf. In re David S., No. E2019-01190-

COA-R3-PT, 2020 WL 1303733, at *16 (Tenn. Ct. App. Mar. 18, 2020) (McBrayer, J., concurring 

in part and dissenting in part) (recognizing that, when the Court raises an issue sua sponte over 

proper service of a parent by substitute service, the parties should be notified of the issue and 

briefing requested before the Court acts). 
6

judgment or, alternatively, for a new trial. So we address those together before addressing 

her challenge to the grounds for terminating her parental rights and her challenge to the 

court’s best interest analysis. 

A.

Mother argues that she deserves a new trial because she did not have actual notice 

of the proceedings under Tennessee Code Annotated § 36-1-113(f). Under the statute, a 

parent “who is incarcerated or who was incarcerated at the time [a petition to terminate 

parental rights is filed]” is entitled to “actual notice” of certain facts:

(1) The time and place of the hearing to terminate parental rights;

(2) That the hearing will determine whether the rights of the incarcerated 

parent or guardian should be terminated;

(3) That the incarcerated parent or guardian has the right to participate in the 

hearing and contest the allegation that the rights of the incarcerated parent or 

guardian should be terminated, and, at the discretion of the court, such 

participation may be achieved through personal appearance, teleconference, 

telecommunication or other means deemed by the court to be appropriate 

under the circumstances;

(4) That if the incarcerated parent or guardian wishes to participate in the 

hearing and contest the allegation, such parent or guardian:

(A) If indigent, will be provided with a court-appointed attorney to assist 

the parent or guardian in contesting the allegation; and

(B) Shall have the right to perpetuate such person’s testimony or that of 

any witness by means of depositions or interrogatories as provided by the 

Tennessee Rules of Civil Procedure; and

(5) If, by means of a signed waiver, the court determines that the incarcerated 

parent or guardian has voluntarily waived the right to participate in the 

hearing and contest the allegation, or if such parent or guardian takes no 

action after receiving notice of such rights, the court may proceed with such 

action without the parent’s or guardian’s participation.

Tenn. Code Ann. § 36-1-113(f) (Supp. 2018). She contends that the record is unclear as to 

when and with what documents she was served. So, Mother claims, she was not properly 

served with process. 

Mother was incarcerated when the petition to terminate her parental rights was filed, 

but her argument is founded on a faulty premise—that “[t]here is no returned Summons in 

the record evidencing she was served with process.” The record does include a return of 

service. The return of service shows that Mother accepted service of the termination 
7

petition, as well as other relevant documents, on a specific date at a certain time. And 

Mother’s letter from the detention center—bearing the same date—also acknowledged 

receipt of the summons paperwork. Mother was properly served with process, and save

for the date of trial, the petition and other relevant documents included the notices required 

under Tennessee Code Annotated § 36-1-113(f).

Mother also claims that she lacked sufficient notice of the trial date. Due process 

requires that “all parties to litigation . . . receive notice of important hearings and other 

proceedings.” Bryant v. Edwards, 707 S.W.2d 868, 870 (Tenn. 1986). And the notice 

must be “reasonably calculated[,] under all the circumstances, to apprise interested parties 

of the pendency of the action and afford them an opportunity to present their objections.” 

Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (citation omitted).

Here, the parties set the trial date by agreement. Mother’s counsel mailed the agreed 

order setting the trial date to Mother’s last known address. According to Mother, she had 

relocated from that address. Mother acknowledges that she had a duty to advise her counsel 

of any changes in address but failed to so. And, generally, mailing notice of the trial date

to the parent’s last-known address satisfies due process. See In re Z.J.S., 2003 WL 

21266854, at *6 (citing Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 (1983); 

Sunburst Bank v. Patterson, 971 S.W.2d 1, 5 (Tenn. Ct. App. 1997)); Pell v. City of 

Chattanooga, No. E1999-01712-COA-R3-CV, 2000 WL 567821, at *5 (Tenn. Ct. App. 

May 9, 2000); see also TENN. R. CIV. P. 5.02(1) (“Service on [a party’s] attorney or on a 

party may be made . . . by mailing it to such person’s last known address . . . .”). But this 

situation is complicated by the fact that the agreed order setting the trial date was submitted 

only a week before the trial date; the court actually entered the agreed order the day before 

trial. 

We conclude that the notice to Mother satisfied due process. As Mother

acknowledges, the trial date was rescheduled from an earlier agreed date. In September 

2018, Mother, through her counsel, agreed to set the trial for December 5, 2018. On 

December 5, counsel for the parties, the guardian ad litem, and Petitioners appeared for 

trial; Mother did not. But, because the court could not proceed with the trial due to a 

scheduling conflict, all counsel agreed to a continuance, resetting the case for December 

14. Mother makes no contention that she was unaware of the December 5 trial date. And

the evidence at trial suggested that she was aware of the ongoing proceeding; Mother called 

Petitioners two days before the trial date to speak with them about arranging for visitation. 

Based on the evidence, the court found that her failure to appear as well as her failure to 

communicate with her counsel was willful.

Mother sought to alter or amend the judgment terminating her parental rights or, 

alternatively, a new trial on the basis of “mistake, inadvertence, or excusable neglect.” See

TENN. R. CIV. P. 59. Because of the basis of her motion, her willfulness in failing to appear 

was a threshold inquiry. Discover Bank v. Morgan, 363 S.W.3d 479, 493-494 (Tenn. 
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2012). The court correctly assessed the evidence, finding that Mother acted willfully, and 

we discern no abuse of discretion in its denial of Mother’s motion to alter or amend or for 

a new trial. See id.

B.

Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures 

for terminating parental rights. In re Kaliyah S., 455 S.W.3d at 546. Parties seeking 

termination of parental rights must first prove the existence of at least one of the statutory 

grounds for termination listed in Tennessee Code Annotated § 36-1-113(g). Tenn. Code 

Ann. § 36-1-113(c)(1). If one or more statutory grounds for termination are shown, they 

then must prove that terminating parental rights is in the child’s best interest. Id. § 36-1-

113(c)(2). 

Because of the constitutional dimension of the rights at stake in a termination 

proceeding, parties seeking to terminate parental rights must prove both the grounds and 

the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d 

586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 

215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). 

This heightened burden of proof serves “to minimize the possibility of erroneous decisions 

that result in an unwarranted termination of or interference with these rights.” Id. “Clear 

and convincing evidence” leaves “no serious or substantial doubt about the correctness of 

the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 

901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the fact-finder’s mind 

regarding the truth of the facts sought to be established. In re Bernard T., 319 S.W.3d at 

596.

We review the trial court’s findings of fact “de novo on the record, with a 

presumption of the correctness of the findings, unless the preponderance of the evidence is 

otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); TENN. R. APP. P. 13(d). 

We then “make [our] own determination regarding whether the facts, either as found by 

the trial court or as supported by a preponderance of the evidence, provide clear and 

convincing evidence that supports all the elements of the termination claim.” In re Bernard 

T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de novo with no 

presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

The court terminated Mother’s parental rights on the grounds of abandonment by 

failure to visit, abandonment by failure to support, persistence of conditions, and failure to 

manifest an ability and willingness to assume custody or financial responsibility of the 

child. Mother contends that none of the grounds were supported by clear and convincing 

evidence. 
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1. Abandonment

One of the statutory grounds for termination of parental rights is “[a]bandonment 

by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). There are “five alternative definitions 

for abandonment as a ground for the termination of parental rights.” In re Audrey S., 182 

S.W.3d 838, 863 (Tenn. Ct. App. 2005); see also Tenn. Code Ann. § 36-1-102(1)(A)

(defining the term “abandonment”). One definition asks whether the parent has failed to 

visit, support, or make reasonable payments toward the support of the child during the fourmonth period preceding the filing of the petition to terminate parental rights. Tenn. Code 

Ann. § 36-1-102(1)(A)(i). Another definition applies in cases in which the parent is 

incarcerated or had been incarcerated within the four-month period preceding the filing of 

the termination petition. Id. § 36-1-102(1)(A)(iv). In such cases, the question remains 

whether the parent has failed to visit or support the child. Id. But the focus shifts to the 

four-month period “immediately preceding [the] parent’s . . . incarceration.” Id.

Mother was incarcerated at the time the petition to terminate her parental rights was 

filed. So the appropriate period for determining abandonment was the four-month period 

preceding her incarceration. See id. But, in alleging abandonment, the petition claimed

only that Mother had willfully failed to visit or support A.W. “for a period in excess of four 

(4) months.” It did not specify the four-month period preceding Mother’s incarceration. 

Notice is “a fundamental component of due process.” In re W.B., IV, M2004-00999-

COA-R3-PT, 2005 WL 1021618, at *13 (Tenn. Ct. App. Apr. 29, 2005); see also Keisling, 

92 S.W.3d at 377. In the context of parental termination, due process requires that the 

parent be notified of the alleged grounds for termination. In re Jeremiah N., No. E2016-

00371-COA-R3-PT, 2017 WL 1655612, at *8 (Tenn. Ct. App. May 2, 2017). Generally, 

parental rights can only be terminated on grounds that were alleged in the termination 

petition. See In re M.J.B., 140 S.W.3d 643, 655-56 (Tenn. Ct. App. 2004). Pleadings 

should give the opposing party enough notice of the issues to prepare a defense. Keisling, 

92 S.W.3d at 377. When pleading abandonment, a petition is “deficient” if it pleads the 

“ʻwrong’ four-month statutory period.” In re Samuel R., No. W2017-01359-COA-R3-PT, 

2018 WL 2203226, at *13 (Tenn. Ct. App. May 14, 2018) (quoting In re D.H.B., No. 

E2014-00063-COA-R3-PT, 2015 WL 1870303, at *5 (Tenn. Ct. App. Apr. 23, 2015)); see 

also In re K.N.B., No. E2014-00191-COA-R3-PT, 2014 WL 4908505, at *13 (Tenn. Ct. 

App. Sept. 30, 2014). Even so, an unpled ground for termination may be tried by implied 

consent. In re Adoption of Angela E., 402 S.W.3d 636, 640 n.3 (Tenn. 2013); In re Alysia 

S., 460 S.W.3d 536, 564 (Tenn. Ct. App. 2014).

Here, the petition is deficient in pleading abandonment by an incarcerated parent. 

It did not plead the correct four-month statutory period. And the correct ground was not 

tried by implied consent. The questions and arguments from counsel show that the parties 

were focused on the wrong statutory period throughout trial. The court’s written and oral 

ruling also reflected the wrong statutory period. In short, “[n]o one appeared to recognize 
10

that the wrong four-month period was being tried.” See In re Samuel R., 2018 WL 

2203226, at *14. Only once Petitioners moved to alter or amend the court’s judgment with 

the correct statutory period did anyone realize that they had tried an inapplicable ground. 

See id. (concluding that abandonment by an incarcerated parent was not tried by implied 

consent where the trial judge only “recognize[d] that the wrong four-month period was 

being tried . . . during closing arguments”). 

The applicable ground of abandonment was neither properly pleaded nor tried by 

implied consent. So Mother’s parental rights could not be terminated on the ground of 

abandonment by an incarcerated parent by failure to visit or failure to support.

2. Persistence of Conditions

The trial court also found termination of Mother’s parental rights appropriate under 

Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly referred to as 

“persistence of conditions.” See In re Audrey S., 182 S.W.3d at 871. This ground applies 

only where there “is evidence of a ‘prior court order removing the child from the parent’s 

home . . . based on a judicial finding of dependency, neglect or abuse.” In re Aiden R., No. 

E2015-01799-COA-R3-PT, 2016 WL 3564313, at *9 (Tenn. Ct. App. June 23, 2016)

(quoting In re Audrey S., 182 S.W.3d at 874).

At the trial of the petition to terminate Mother’s parental rights, Petitioners only 

testified that they were granted custody of A.W. through a previous dependency and 

neglect action. There was no testimony as to how long Petitioners formally had custody 

of A.W. See Tenn. Code Ann. § 36-1-113(g)(3)(A) (requiring that the child be “removed 

from the home or . . . custody of [the] parent . . . for a period of six (6) months”). Nor was 

there testimony referencing the custody order or that the order made a finding of 

dependency and neglect. See id. Although the custody order is in the record, it was only 

an exhibit to the petition to terminate. Exhibits attached to a pleading “are a part of the 

pleading.” Ragsdale v. City of Memphis, 70 S.W.3d 56, 62 (Tenn. Ct. App. 2001). And 

pleadings are not evidence. See Hillhaven Corp. v. State ex rel. Manor Care, Inc., 565 

S.W.2d 210, 212 (Tenn. 1978); Price v. Mercury Supply Co., 682 S.W.2d 924, 929 n.5 

(Tenn. Ct. App. 1984).

Parties relying on the ground of persistence of conditions should introduce a

certified copy of the prior court order that made a finding of dependency, neglect, or abuse 

into evidence during the termination proceeding. See TENN. R. EVID. 803(8) (explaining 

that “records . . . of public offices . . . setting forth the activities of the office” are an 

exception to the hearsay rule). Because the order was not entered into evidence, “the 

evidence presented at trial [wa]s insufficient to support a termination of Mother’s parental 

rights on the statutory ground of persistence of conditions.” See In re Haley S., No. M2017-

00214-COA-R3-PT, 2018 WL 1560078, at *5 (Tenn. Ct. App. Mar. 29, 2018). So 

Mother’s parental rights could not be terminated on this ground.
11

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

Responsibility of the Child

Finally, the court found termination of Mother’s parental rights appropriate under 

Tennessee Code Annotated § 36-1-113(g)(14). Under this ground, a parent’s rights may 

be terminated if he or she

[1] has failed to manifest, by act or omission, an ability and willingness to 

personally assume legal and physical custody or financial responsibility of 

the child, and [2] placing the child in the person’s legal and physical custody 

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

of the child.

Tenn. Code Ann. § 36-1-113(g)(14). Both prongs must be established by clear and 

convincing evidence. In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020). As to the first 

prong, the petitioner may prove that a parent is either unable or unwilling to “assume legal 

and physical custody or financial responsibility of the child.” Id. at 677. 

We conclude that clear and convincing evidence showed that Mother failed to 

manifest an ability and willingness to assume custody and financial responsibility of A.W. 

By the trial date, A.W. had lived with Petitioners for almost three years.

Meanwhile, Mother was last known to be in a homeless shelter. She lacked her own 

means of transportation. She had also been in and out of jail during the year leading up to 

the hearing. Mother had pending charges at the time of the trial. And she had not visited 

with or contacted A.W. in any way for over a year. Mother never sent gifts or provided 

food, clothing, or any form of financial support. See In re Ashlynn H., No. M2020-00469-

COA-R3-PT, 2021 WL 2181655, at *6 (Tenn. Ct. App. May 28, 2021) (concluding that 

parent failed to manifest an ability or willingness to assume custody when the parent lacked 

steady employment, stable housing, or reliable transportation); In re Tucker H., No. E2019-

01970-COA-R3-PT, 2020 WL 1966320, at *12 (Tenn. Ct. App. Apr. 24, 2020) (reasoning 

that parent failed to manifest ability or willingness to parent when the parent was in and 

out of jail repeatedly and never visited the children); In re Gaberiel S., No. M2018-00522-

COA-R3-PT, 2018 WL 6523239, at *13 (Tenn. Ct. App. Dec. 11, 2018) (reasoning that 

parent who never paid child support or sent gifts to the children had failed to manifest an 

ability and willingness to assume financial responsibility for the children).

The evidence is equally clear and convincing that putting A.W. in Mother’s custody 

would pose a risk of substantial harm to A.W.’s psychological welfare. A.W. was thriving 

in the custody of Petitioners. She was succeeding in school and participating in 

extracurricular activities. She had the love and support of the family. And she has a special 

bond with Petitioners’ son. A.W. was as “happy as can be.” At this point, Mother is a near 
12

stranger. As Petitioners testified, returning the child to Mother “would tear [A.W.] apart.” 

See In re Mynajah S., No. E2021-00040-COA-R3-PT, 2021 WL 3520856, at *15 (Tenn. 

Ct. App. Aug. 11, 2021) (explaining that lack of contact with biological parent for the 

majority of her young life meant that the child “would likely suffer substantial 

psychological or emotional harm if returned to Mother’s custody”); In re Braelyn S., No. 

E2020-00043-COA-R3-PT, 2020 WL 4200088, at *17 (Tenn. Ct. App. July 22, 2020), 

perm. app. denied, (Tenn. 2020) (reasoning that returning the child to a “virtual stranger” 

in light of her strong bond with her current caregivers would constitute substantial harm). 

C.

Lastly, Mother argues that it was not in A.W.’s best interests to terminate her 

parental rights. Because “[n]ot all parental misconduct is irredeemable,” our parental 

termination “statutes recognize the possibility that terminating an unfit parent’s parental 

rights is not always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. 

Ct. App. 2005). So even if a statutory ground for termination is established by clear and 

convincing evidence, we must also determine whether termination of parental rights is in 

the child’s best interests. Tennessee Code Annotated § 36-1-113(i) lists nine factors that 

courts must consider in making a best interest analysis. The “factors are illustrative, not 

exclusive, and any party to the termination proceeding is free to offer proof of any other 

factor relevant to the best interests analysis.” In re Gabriella D., 531 S.W.3d 662, 681 

(Tenn. 2017). In reaching a decision, “the court must consider all of the statutory factors, 

as well as any other relevant proof any party offers.” Id. at 682. The best interest analysis 

is a fact-intensive inquiry, and each case is unique. White v. Moody, 171 S.W.3d 187, 193-

94 (Tenn. Ct. App. 2004). 

The first statutory factor focuses on whether the parent “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.” Tenn. Code Ann. § 36-1-113(i)(1). The court 

found that Mother had not made such an adjustment. Mother was last known to be in a 

homeless shelter. She did not have stable housing or transportation. And she had an 

“extensive criminal history” that included pending charges at the time of the trial. 

The second factor considers the parent’s potential for lasting change “after 

reasonable efforts by available social services agencies.” Id. § 36-1-113(i)(2). Because no 

social service agency was involved here, the trial court found this factor inapplicable. The 

third factor looks at whether the parent has maintained regular contact with the child. Id.

§ 36-1-113(i)(3). Mother’s contact was never consistent. And she last contacted A.W. 

over a year before the trial. For the same reasons, Mother also lacked a “meaningful” 

relationship with A.W. under the fourth best interest factor. See id. § 36-1-113(i)(4). In 

A.W.’s eyes, Mother was not really “mom”—A.G. was. 
13

The fifth factor considers the effect a change in caregivers would have on the child’s 

emotional, psychological, and medical condition. Id. § 36-1-113(i)(5). As the trial court 

found, A.W. “is thriving in her current environment in all categories.” She is happy and 

stable. Returning A.W. to Mother would emotionally “tear her apart.” 

The sixth factor asks whether the parent “has shown brutality, physical, sexual, 

emotional or psychological abuse, or neglect toward the child.” Id. § 36-1-113(i)(6). The 

court found that A.W. was removed from Mother’s custody and placed with Petitioners 

based on a finding of dependency and neglect. As noted above, the order finding A.W. 

dependent and neglected was not entered into evidence. So we agree with Mother that the 

court erred in this finding and in weighing this factor against Mother.

The seventh factor looks at the parent’s home environment and whether the use of 

alcohol or other controlled substances would prevent the parent from properly caring for 

the child. Id. § 36-1-113(i)(7). The trial court weighed this factor against Mother because 

of her “significant criminal history.” And, again, Mother did not have a stable home 

environment.

The eighth factor evaluates whether the parent’s mental or emotional status prevents 

proper parenting. Id. § 36-1-113(i)(8). The trial court did not consider this factor relevant 

because there was no evidence either way. Lastly, the ninth factor examines the parent’s 

child support history. Id. § 36-1-113(i)(9). Mother had provided no form of support since 

A.W. had been in Petitioners’ care. 

Although the evidence weighs against one of the court’s factual findings, the 

evidence supports the court’s other findings. We conclude that the proven facts amounted 

to clear and convincing evidence that termination of Mother’s parental rights was in A.W.’s 

best interests.

IV.

We affirm the termination of Mother’s parental rights. Mother was not denied due 

process, and Petitioners complied with the notice requirements for incarcerated parents in 

parental termination cases. We also conclude that there was clear and convincing evidence 

of one statutory ground for termination and that terminating parental rights was in the 

child’s best interests. 

We vacate the termination of the unknown father’s parental rights. The unknown 

father was not served under the Tennessee Rules of Civil Procedure or the statutes 

governing substituted service. This case is remanded for further proceedings consistent 

with this opinion. 
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 s/ W. Neal McBrayer 

W. NEAL MCBRAYER, JUDGE