IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 2, 2022

IN RE MELVIN M. ET AL.

Appeal from the Juvenile Court for Davidson County

No. PT260263, 2019-000288, 2019-000289 Sheila Calloway, Judge

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No. M2021-01319-COA-R3-PT

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A father appeals the termination of his parental rights to his two children. The juvenile 

court concluded that there was clear and convincing evidence of five statutory grounds for 

terminating his parental rights. The court also concluded that there was clear and 

convincing evidence that termination of the father’s parental rights was in the children’s 

best interest. On appeal, although we conclude that there is not clear and convincing 

evidence to support three of the grounds, clear and convincing evidence supports the 

remaining grounds for termination and the best interest determination. So we affirm.

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

W. NEAL MCBRAYER,J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and THOMAS R. FRIERSON II, J., joined.

C. Michael Cardwell, Nashville, Tennessee, for the appellant, Max S.

Herbert H. Slatery III, Attorney General and Reporter, and Amber L. Barker, Assistant 

Attorney General, for the appellee, Tennessee Department of Children’s Services.

OPINION

I.

The Department of Children’s Services (“DCS”) received a referral, in December 

2018, about a drug-exposed newborn. The baby boy’s umbilical cord screen was positive 

for buprenorphine, cocaine, and methamphetamine. His mother (“Mother”) tested positive 

for buprenorphine, amphetamine, and methamphetamine. She also admitted to illegal use 

of Subutex for three years and use of methamphetamine two days before the child was 

11/28/2022
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born. The child’s father, Max S. (“Father”), denied drug use but tested positive for 

methamphetamine and amphetamine. 

An immediate protection agreement was entered, and the baby boy and his threeyear-old sister were removed due to the parents’ substance abuse and the abuse of the baby 

boy occasioned by mother’s drug use. DCS placed the children with a family member. 

But nine months later, on August 1, 2019, the children were removed from the family

placement due to drug use.

Because Mother could not be reached and Father was in jail, DCS petitioned the 

juvenile court for custody and to adjudicate the children dependent and neglected. 

Ultimately, in December 2019, Mother and Father agreed that the children were dependent 

and neglected due to Mother’s and Father’s substance abuse and the abuse to the baby boy 

resulting from Mother’s drug use while pregnant. DCS placed the children in foster care. 

On November 3, 2020, DCS petitioned to terminate Father’s parental rights.1 The 

petition alleged the following grounds against Father: (1) abandonment by failure to 

provide a suitable home; (2) abandonment by incarcerated parent by wanton disregard; (3) 

substantial noncompliance with the permanency plan; (4) persistent conditions; (5) severe 

child abuse; and (6) failure to manifest an ability and willingness to assume custody.2 

Three witnesses testified at trial: the family services worker (the “FSW”), the 

children’s foster mother, and Father. By the time of trial, the children had been in DCS 

custody continuously for just over two years. The FSW explained that a family 

permanency plan had been developed in October 2019 with the goal of returning the 

children to a parent or for the children to exit custody with a relative. 

Father was present for the initial permanency plan meeting and when his tasks under 

the plan were discussed. His most important tasks were to stay free from criminal activity, 

remain drug free, and find stable housing. But, according to the FSW, Father had made no 

progress on the plan because he had been in jail for much of the time. Father had not 

supported the children financially or visited with the children since they entered foster care. 

On cross-examination, the FSW conceded that Father had seen the children in October 

2019 at a court hearing and at a child and family team meeting. 

The FSW visited with the children once or twice a month at their current foster care 

placement. The children called the foster parents “Mom” and “Dad.” And they ran to the 

foster parents for comfort. The baby boy, now a two-year-old, was receiving early 

 

1 DCS also sought to terminate the parental rights of Mother. Because Mother has not appealed the 

termination of her parental rights, we focus on the facts as relevant to Father.

2 The petition also alleged abandonment by an incarcerated parent by failure to visit and failure to 

support. But DCS dismissed those grounds at the conclusion of the trial. 
3

intervention therapies, and the foster parents made sure he attended all his appointments. 

The daughter was also receiving therapy for her mental health. She was having intensive 

therapy initially. But due to her progress, the frequency of her appointments had lessened. 

In the FSW’s view, changing caregivers would be detrimental to the children because of 

their strong bond with the foster parents. 

The foster mother testified that the children had lived in her home for a little over a 

year. Their prior foster placement was not a pre-adoptive home. So the two foster families 

worked together to make the transition as easy as possible for the children. 

When the children first came to the current foster family, the son was involved in 

early intervention therapies and was wearing a helmet. A year later, the son still had early 

intervention therapy and had added speech therapy. But he graduated from the helmet. 

The daughter was in kindergarten and very comfortable with the foster parents. She rarely 

talked about Father. When she talked about her biological mother she called her “Old 

Mom” or “First Mom.” 

The foster parents had no other children in their home. The foster mother was a 

preschool teacher at the preschool the children attended. The foster parents owned their 

home, and the children had separate bedrooms. The foster mother said that the children 

were “[her] babies” and that they were “a family” that loved each other. Her long-term 

vision for the children was for them to grow up mentally and physically healthy and to be 

kind, loving, hard-working, independent adults. The foster parents planned to adopt the 

children. 

Father testified from the Wilson County jail. Father was also in jail when the 

children were originally removed in August 2019. He was out of jail for the months of 

September and October 2019, then arrested in November 2019 for theft. He remained in 

jail from that time until March 2020. He was out of jail again March through May 2020. 

His most recent incarceration stemmed from violating an order of protection and the sale 

of Schedule II drugs. 

During the two months he was free in September and October 2019, Father attended 

a child and family team meeting where he discussed the permanency plan and services 

available to him. But, he was arrested again before he could set up visitation. Father

maintained that, during the months he was out of jail, DCS did not provide any services to 

assist him with completing the steps in the permanency plan. 

Father was told that he must come to a child and family team meeting before he 

could have visitation. After the meeting, DCS did not contact Father to schedule visitation 

with the children. But Father also admitted that he did not contact DCS. To further 

complicate matters with visitation, Mother’s order of protection against Father prohibited 

him from visiting the children while Mother was present. 
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While in jail, Father had not been able to participate in any improvement classes 

because they were not offered during COVID. Shortly before trial, Father started a 

correspondence program that included classes on self-behavior, parenting, and drugs and 

alcohol. He had completed the self-behavior class. After his release, which he hoped 

would be in October 2021, Father planned to go to a halfway house. He was “pretty sure” 

the children could live with him in the halfway house. 

Father said he engaged in criminal activity because he could not find a job during 

COVID. He also blamed a drug relapse. According to Father, he had experienced drug 

problems for “probably about four years.” He attempted rehabilitation once, but did not 

finish because he relapsed. The last time he saw either of his children was in October 2019. 

The juvenile court terminated both Mother’s and Father’s parental rights. As to 

Father, the court concluded that there was clear and convincing evidence of five statutory 

grounds for termination: (1) abandonment by failure to provide a suitable home; (2) 

abandonment by wanton disregard; (3) substantial noncompliance with the permanency 

plan; (4) persistent conditions; and (5) failure to manifest an ability and willingness to 

assume custody. It found that DCS had not proven severe child abuse by Father. The 

juvenile court also concluded that there was clear and convincing evidence that termination 

of Father’s parental rights was in the children’s best interest. 

II.

A parent has a fundamental right, based in both the federal and state constitutions, 

to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 

(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 

921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547 

(Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at 250. 

The government’s interest in the welfare of a child justifies interference with a parent’s 

constitutional rights in certain circumstances. See Tenn. Code Ann. § 36-1-113(g) (Supp. 

2020). 

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 533, 546 (Tenn. 2015). 

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 
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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 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). 

A.

On appeal, Father challenges each of the grounds for terminating his parental rights 

and the best interest determination. DCS concedes on appeal that the ground of 

abandonment by failure to provide a suitable home was not proven. See Tenn. Code Ann. 

§§ 36-1-102(1)(A)(ii) (Supp. 2020); 36-1-113(g)(1). And we agree. Much of the 

circumstances surrounding the placement of the children with a relative is not apparent 

from the record. See id. § 36-1-102(1)(A)(ii)(a) (providing that, for the ground to apply, 

the children must have been “placed in the custody of [DCS] or a licensed child-placing 

agency”). Given DCS’s concession and the record, we focus on the remaining four grounds 

the court relied on for terminating Father’s parental rights. 

1. Abandonment by Wanton Disregard

The court found Father had abandoned the children under a definition of 

“abandonment” applicable to parents who were incarcerated when the petition to terminate 

was filed or at any point during the four-month period preceding the filing of the petition. 

See Tenn. Code Ann. § 36-1-102(1)(A)(iv). When DCS filed its petition to terminate, the 

incarcerated or formerly incarcerated parent was deemed to have abandoned his child if, 

among other things, he “ha[d] engaged in conduct prior to incarceration that exhibit[ed] a 

wanton disregard for the welfare of the child.” Id. § 36-1-102(1)(A)(iv).
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Regarding Father’s conduct, the court found that he 

continu[ed] to engage in criminal behavior after the birth of both of his

children. [F]ather has been incarcerated the majority of the children’s lives 

for charges relating to possession of methamphetamine, violation of

probation, failure to appear, criminal impersonation, possession of drug 

paraphernalia, driving on a revoked driver’s license, domestic aggravate[d]

assault, simple possession, unlawful possession of a weapon, violation of 

conditions of release, violation of an order of protection, evading arrest, and 

violation of a restraining order. [F]ather has only been out of jail for a period 

of about three (3) months during the children’s entire custodial episode. 

[F]ather has had no contact with the children since 2019.

The trial court determined that this conduct exhibited wanton disregard for the children’s 

welfare.

“Wanton disregard” is not a defined term. Acts amounting to wanton disregard 

typically “reflect a ‘me first’ attitude involving the intentional performance of illegal or 

unreasonable acts and indifference to the consequences of the actions for the child.” In re 

Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. 

June 9, 2015). So “probation violations, repeated incarceration, criminal behavior, 

substance abuse, and the failure to provide adequate support or supervision for a child can, 

alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare 

of a child.” In re Audrey S., 182 S.W.3d 838, 867-68 (Tenn. Ct. App. 2005). But the 

actions constituting wanton disregard must have occurred at a point in time when the parent 

had knowledge of the child’s existence, which can include “a child in utero.” In re Anthony 

R., 2015 WL 3611244, at *3. 

Clear and convincing evidence supports the court’s finding that Father’s conduct 

exhibited wanton disregard for the children’s welfare. Father had an extensive history of 

criminal acts and substance abuse. He was incarcerated almost the entirety of Mother’s 

pregnancy with Max in 2018. Father was released about the time of Max’s birth. But then 

he “just started using again” with people in the house where Mother was living. In 2019, 

he pleaded guilty to drug possession, theft, and probation violations. After being released 

sometime in March of 2020, he returned to drug use. As Father explained, “COVID was 

going on, so [he] couldn’t find a job.” And he relapsed. A few months later, he pleaded

guilty to violating the order of protection taken out by Mother, evading arrest, and 

possession of drug paraphernalia. On the way into jail, he was charged with the 

introduction of contraband into the jail, a charge to which he would later plead guilty. 

Because of his incarcerations, he was unable to have contact with his children for two years.
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Father attributed his criminal behavior to his “drug problem,” which he had 

struggled with for “probably about four years.” And, at trial, he admitted that he had

“chose[n] drugs over [his] own family.” 

2. Substantial Noncompliance with the Permanency Plan

Another ground for termination is “substantial noncompliance by the parent . . . with 

the statement of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-

113(g)(2). Father’s permanency plan required him to: (1) clear criminal charges and 

contact DCS upon release; (2) submit to random drug screens; (3) complete a mental health 

assessment and follow recommendations; (4) complete an alcohol and drug assessment and 

follow recommendations; (5) sign a release of information; (6) complete a parenting 

assessment and follow recommendations; (7) complete a domestic violence education 

program and follow recommendations; (8) have a minimum of four hours of monthly 

supervised visits; and (9) provide DCS proof of housing and income. 

There is only one requirement listed that Father would be able to complete during 

the more than two years he was incarcerated, sign a release of information. Father testified 

that there were no services at the jails during COVID, so he was unable to complete the 

required assessments and programs. He was unable to have supervised visits, submit to 

random drug screens, or provide DCS with proof of housing and income. 

A parent’s incarceration does not excuse his responsibility to fulfill the requirements 

set out in a permanency plan, but incarceration is a “relevant consideration when judging 

that parent’s ability to fulfill his . . . responsibilities to the child.” In re Jonathan F., No. 

E2014-01181-COA-R3-PT, 2015 WL 739638 at *13 (Tenn. Ct. App. Feb. 20, 2015). We 

have said that, when a parent is incarcerated and the ground of substantial noncompliance 

with the permanency plan has been alleged, it is important to “avoid making incarceration 

solely on its own into a de facto ground for termination.” Id. We conclude that in this 

case, Father was unable to meet many of the requirements of the permanency plan because 

of his incarceration and the lack of services provided in the jails during COVID. See In re 

Ke’Andre C., No. M2017-01361-COA-R3-PT, 2018 WL 587966, at *9 (Tenn. Ct. App.

Jan. 29, 2018); In re Jonathan F., 2015 WL 739638 at *13. To find that Father did not 

substantially comply would be tantamount to terminating his parental rights based solely 

on his incarceration.

3. Persistent Conditions

The juvenile court also found termination of 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 focuses 

“on the results of the parent’s efforts at improvement rather than the mere fact that he or 

she had made them.” Id. at 874. So the question before the court is “the likelihood that 
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the child can be safely returned to the custody of the [parent], not whether the child can 

safely remain in foster care.” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 

1006959, at *5 (Tenn. Ct. App. July 21, 2000).

There are several elements to the ground of persistence of conditions. Persistence 

of conditions may be a basis to terminate parental rights when:

The child has been removed from the home or the physical or legal custody 

of a parent . . . for a period of six (6) months by a court order entered at any 

stage of proceedings in which a petition has been filed in the juvenile court 

alleging that a child is a dependent and neglected child, and:

(i) The conditions that led to the child’s removal still persist, preventing the 

child’s safe return to the care of the parent . . . , or other conditions exist that, 

in all reasonable probability, would cause the child to be subjected to further 

abuse or neglect, preventing the child’s safe return to the care of the parent 

. . . ;

(ii) There is little likelihood that these conditions will be remedied at an early 

date so that the child can be safely returned to the parent . . . in the near future; 

and

(iii) The continuation of the parent . . . and child relationship greatly 

diminishes the child’s chances of early integration into a safe, stable, and 

permanent home[.]

Tenn. Code Ann. § 36-1-113(g)(3)(A). Each of the statutory elements must be established 

by clear and convincing evidence. In re Valentine, 79 S.W.3d at 550.

The trial court concluded that the children had been removed from Father’s custody 

for six (6) months at the time the petition was filed. The court then said:

The conditions that led to the removal still persist and other conditions 

in the home exist that, in all reasonable probability, would lead to further 

neglect or abuse of the children. These conditions include: [Mother and 

Father] continue to abuse illicit substances; [Mother and Father] are 

consistently incarcerated due to their ongoing criminal activity; there is 

ongoing domestic violence between [Mother and Father]; [Mother and 

Father] have not exercised regular visitation with the children; [Mother and 

Father] have not completed the tasks on the permanency plan; Respondents 

have not addressed their substance abuse issues; [Mother and Father] have 

taken no steps to address their parenting skills or concerns for their ability to 

keep the children safe; [Mother and Father] are not compliant with the tasks 
9

related to addressing mental health concerns; [Mother and Father] have 

demonstrated no ability or willingness to care for their children; and [Mother 

and Father] have abandoned the children to the foster care system.

There is no dispute that at the time of trial, the children had been removed from 

Father’s custody for well over six months. See Tenn. Code Ann. § 36-1-113(g)(3)(B) 

(“The six (6) months must accrue on or before the first date the termination of parental 

rights petition is set to be heard.”). But, as to Father, we conclude that this ground was not 

proven by clear and convincing evidence. 

Beyond the children having been removed for over six months, there was little 

evidence offered concerning the other elements of the persistence of conditions ground. 

The juvenile court’s findings focus almost entirely on Father’s past history and his failure 

to carry out various tasks listed on the permanency plan. The court did not address the 

results, if any, of Father’s claimed efforts to improve. See In re Audrey S., 182 S.W.3d at 

874. 

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

Responsibility for the Children

Finally, the court found termination of Father’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 for the child.” Id. at 677. 

Clear and convincing evidence shows Father’s lack of an ability and willingness to 

assume custody and financial responsibility of the children. Since August 2019, when the 

children first came into DCS custody, Father had been incarcerated all but two months. 

And his potential release date was not until October 2021 at the earliest. Father stated that,

during COVID, he turned to criminal activity because he could not find a job. Father also 

had a drug problem for at least four years and was unable to finish a rehabilitation program 

because he relapsed. Father acknowledged he was not prepared to care for these children. 
10

The evidence is equally clear and convincing that placing the children in Father’s 

custody would pose a risk of substantial harm to their psychological welfare. At the time 

of trial, Father had not visited with the children since August 2019. And when the children 

were originally taken from Mother and Father for a family placement, the son was a 

newborn baby and the daughter was three years old. At this point, Father has been absent 

from the children’s lives for so long, he is a stranger. Returning children to the custody of 

a virtual stranger carries a risk of substantial harm. See In re Braelyn S., No. E2020-00043-

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

returning the child to a “virtual stranger” in light of her strong bond with her current 

caregivers would constitute substantial harm). 

B.

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). At the time DCS filed its petition to terminate, Tennessee Code Annotated § 36-1-

113(i) listed nine factors for courts to consider in 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 Father had not made enough progress on his permanency plan to support the 

application of this factor. So the court weighed this factor in favor of termination. 

Similarly, 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). The trial 

court concluded that DCS made reasonable efforts given the circumstances. Father was 

unable to access services while in jail, and they were unable to help him. The plan required 

Father to alert DCS when he was released from jail, but he testified that he did not contact 

anyone from March through May 2020, the months he was out. And Father made no effort 

to reach out to check on the children. 

The court addressed the third and fourth best interest factors, which focus on the 

parent’s relationship with the child, together. The third factor considers the consistency of 

visitation. Id. § 36-1-113(i)(3). The fourth factor asks “[w]hether a meaningful 

relationship has otherwise been established between the parent . . . and the child.” Id. § 36-
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1-113(i)(4). Here, Father had no relationship with the children. The son was taken from 

Father’s custody when he was days old, and the daughter was taken when she was three 

years old. Father had not seen the children since October 2019. He did not testify to any 

attempts to see the children when he was out of jail. 

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). If the children were 

returned to Father’s custody, they would be living with a stranger. The FSW testified that 

a change in caregivers would be detrimental to both children. 

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 

children were removed from Father and Mother because the son was born with drugs in his 

system. Both Mother and Father tested positive for the same drugs that were in the baby’s 

system. The court found this was evidence of neglect on the part of Father and Mother. 

The evidence does not preponderate against this finding. 

The seventh factor looks to see whether the parent’s home environment is healthy 

and safe. Id. § 36-1-113(i)(7). At the time of trial, Father had no home because he was 

incarcerated. Father’s home before the children were taken into custody was clearly 

unhealthy for the children. There was domestic violence and drug use. After his release 

from jail in March 2020, Father quickly returned to jail for violating Mother’s order of 

protection against him and selling Schedule II drugs. Since the children’s removal, Father 

had not demonstrated he could create a healthy and safe environment for the children. 

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

proper parenting. Id. § 36-1-113(i)(8). The court determined that this factor weighed in 

favor of terminating Father’s rights. Father struggled with a drug addiction for many years. 

He attempted rehabilitation, but he was unable to successfully complete the program. 

Mother also obtained an order of protection against him, and Father eventually went to jail 

for violating the order of protection.

Lastly, the ninth factor examines the parent’s child support history. Id. § 36-1-

113(i)(9). Father did not pay child support during his time in and out of jail. 

As an additional consideration, the court found that Father had shown little interest 

in the welfare of his children and had made lifestyle choices that prevented him from 

providing a safe home for the children. The court also found that there was a strong bond 

between the children and the foster parents.

Here, the combined weight of the proven facts amounts to clear and convincing 

evidence that termination is in the children’s best interest. At the time of the trial, the 

children had been in either a family placement or foster care for almost three years. The 
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court concluded that “[t]he children need[ed] to be released from the stigma of being in 

foster care.” And the foster parents, who wished to adopt, gave the children the earliest 

possible chance at permanency.

III.

We affirm the termination of Father’s parental rights. The record contains clear and 

convincing evidence to support two statutory grounds for termination. We also conclude 

that there is clear and convincing evidence that terminating parental rights was in the 

children’s best interest.

 s/ W. Neal McBrayer 

W. NEAL MCBRAYER, JUDGE