IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 29, 2015 Session

IN RE ABBIGAIL C.

Appeal from the Juvenile Court for Claiborne County

No. 2012JV1119 Robert M. Estep, Judge

________________________________

No. E2015-00964-COA-R3-PT

FILED-OCTOBER 21, 2015

_________________________________

Father appeals the termination of his parental rights. After a thorough review of the record, 

we reverse as to the ground of substantial noncompliance with the permanency plan, vacate 

as to the grounds of abandonment by failure to visit and support by an incarcerated parent, 

and affirm as to the grounds of abandonment by failure to establish a suitable home and 

persistent conditions. We also affirm the trial court‟s finding that termination is in the child‟s 

best interest. Accordingly we affirm the termination of Father‟s parental rights.

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

Part; Reversed in Part; and Vacated in Part

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which CHARLES D.

SUSANO, JR., C.J., and BRANDON O. GIBSON, J., joined.

George Edward S. Pettigrew, Cumberland Gap, Tennessee, for the appellant, Travis C.

Herbert H. Slatery, III, Attorney General and Reporter; Rebekah A. Baker, Senior Counsel,

for the appellee, Tennessee Department of Children‟s Services.

OPINION

Background
2

This appeal concerns the termination of Father‟s parental rights to Abbigail C. (“the 

child” or “Abbigail”).1 Abbigail was born in December 2010 to Ashley S. (“Mother”) and 

Respondent/Appellant Travis C. (“Father”).2The child has three step-siblings who all resided 

in the home of Mother and Father in Claiborne County, Tennessee. The child and her siblings 

first came to the attention of Petitioner/Appellee the Tennessee Department of Children‟s 

Services (“DCS”) in December 2012, when DCS filed a petition for a non-custodial order 

controlling conduct and for protective supervision. According to the petition, DCS received 

several referrals that the children were unsupervised and that Mother was dealing with 

mental health issues. On December 12, 2012, the trial court granted DCS‟s petition. 

The issues that first concerned DCS, however, did not improve. Instead, it appears that 

DCS received another referral with regard to the children, this time alleging that Father was 

abusing drugs. On or around December 28, 2012, Father was required to submit to a urine 

drug screen, which tested positive for THC,

3

benzodiazepines, and oxycodone. Although the 

children were left in the home, Father was permitted only supervised visitation with the 

children. On January 2, 2013, however, both parents were arrested on child abuse charges, 

and all four children were removed to DCS custody. At the time of the removal, Abbigail was

two years old. All four children have remained continuously in DCS custody since their 

removal in January 2013.

Accordingly, on January 4, 2013, DCS filed a petition for temporary legal custody of 

the children. The trial court granted a protective custody order on January 20, 2013. In the 

order, the trial court granted temporary legal custody of all the children to DCS.

Father subsequently pleaded guilty to child abuse and endangerment charges with 

regard to the incidents in Tennessee and was sentenced to probation. However, on January 

20, 2013, Father was extradited to Nebraska to face prior charges of theft, violation of 

probation, and domestic violence. Father remained incarcerated while, on January 24, 2013, 

DCS helped Mother and Father create a permanency plan, which was ratified by the trial 

court on February 13, 2013. On February 20, 2013, the trial court entered an order finding 

clear and convincing evidence that the child was dependent and neglected and confirming 

that the child would remain in the temporary custody of DCS. 

 

1

In termination of parental rights cases, it is the policy of this Court to remove the names of minor children and 

other parties in order to protect their identities.

2

This appeal concerns only the termination of Father‟s parental rights. Accordingly, we will only refer to 

Mother to ensure a full recitation of the facts. 

3

THC is a marijuana metabolite that is stored in fat cells and can be detected in the body up to thirty days after 

smoking marijuana. Interstate Mech.Contractors, Inc. v. McIntosh, 229 S.W.3d 674, 677 (Tenn. 2007).
3

Although his charges were pending, on February 14, 2013, Father was released from 

custody in Nebraska. He thereafter resided with his aunt and mother in Nebraska. On 

February 20, 2013, Father returned to Tennessee to visit the child before returning to 

Nebraska. Father did not visit the child again after that time. Father did send her letters and 

pictures; however, the child never received these letters due to concerns expressed by the 

children‟s counselor, discussed infra. 

During this time, Mother and Father were maintaining telephone contact with the 

children. At some point, however, one of the older children became quite upset after a call 

with Mother.4 Accordingly, on April 24, 2013, the trial court entered an order suspending 

Mother‟s and Father‟s right to have telephone communication with the children and ordering 

that all future visitation occur in a therapeutic setting. Although there is no specific order 

appointing Father an attorney prior to the filing of the termination petition, the trial court‟s 

order indicates that Father‟s current attorney was present for the judicial review hearing that 

resulted in the April 2013 limited visitation order. Other documents in the record indicate that 

Father was represented by his current counsel throughout the proceedings. 

On December 2, 2013, DCS filed a petition to terminate the rights of Mother and 

Father in the Claiborne County Juvenile Court. The trial on DCS‟s petition took place on 

October 24, 2014 and April 21, 2015. Father appeared telephonically, but Mother was not 

present for either hearing. Dawn Lewis, the DCS caseworker originally assigned to the case, 

testified about the children‟s condition when they were removed from Mother‟s and Father‟s 

home. According to Ms. Lewis, the children were dirty, covered in head lice, and visibly 

undernourished.5 A DCS investigator, however, testified earlier in the trial that the children 

were not visibly neglected at the time of the initial investigation. Regardless, Ms. Lewis 

testified that it took four pizzas to feed the children the night they were removed. 

Ms. Lewis also testified about her efforts to keep in contact with Mother and Father 

after the children were removed. Ms. Lewis testified that she had contact initially with 

Mother and Father, as well as Mother‟s father and Father‟s mother. In this contact, Ms. 

Lewis attempted to explain the Permanency Plan and to establish that Father‟s mother‟s home

(where Father planned to reside after his release from incarceration) in Nebraska was a 

suitable placement for the child.6 Ms. Lewis, however, subsequently lost contact with the 

parties and did not receive sufficient information to have Father‟s mother‟s home approved 

 

4

It appears Mother cursed the child and blamed her for the children being in DCS custody.

5 Ms. Lewis admitted that, of the four children, Abbigail appeared to be the most well-cared-for.

6

Prior to the termination hearing, Father‟s mother filed an intervening petition for custody of the child. It 

appears from the record that Father‟s mother subsequently died, and the petition was dismissed for failure to 

prosecute by the juvenile court. 
4

as a placement for the child. Nevertheless, Ms. Lewis submitted the documentation to have 

Father‟s mother‟s home approved, but the home was rejected due to insufficient information. 

Father testified telephonically. Throughout his testimony, Father maintained that he 

loved and cared for all of the children, not just Abbigail. Father testified that after he was 

extradited to Nebraska to face charges, he was released on bond pending a final resolution. 

During this time, however, he was under a court order not to leave the state. Father testified 

that he received special permission to make one visit with the child in February 2013. After 

that time, Father testified that he did not have the funds or the permission to visit any 

additional times.

Father admitted that he was currently incarcerated in Nebraska on convictions for 

theft, domestic violence, and failing to appear. Father‟s sentence began on October 26, 2013. 

Since that time, Father has been transferred to several different prisons, apparently due to his 

good behavior. Father testified that he hoped to be paroled in September 2015 but admitted 

that his sentence would not expire until April 2017. Father also admitted that there was a 

warrant for his arrest in Tennessee for a violation of probation that occurred after he was 

extradited to Nebraska. This probation violation appears to stem from Father‟s conviction for 

child abuse related to the events that occurred in December 2012. In addition, Father 

admitted to a prior conviction for driving while intoxicated. 

With regard to Father‟s drug test, Father testified that he had a prescription for the 

benzodiazepines and oxycodone. No prescriptions, however, were ever offered to either DCS 

or the trial court. Father also testified that he had used marijuana “off and on” for his entire 

adult life but maintained that he had never abused drugs while the children were present. 

According to Father, although he was sent the Permanency Plan and was aware of 

several tasks required by it, DCS never offered any assistance to him in completing the tasks. 

Father testified at one point that he had no contact with Ms. Lewis during her tenure as 

caseworker on the case, but later admitted that both he and his mother had some contact with 

Ms. Lewis. Father maintained, however, that Ms. Lewis was generally non-responsive to his 

calls. Father testified that it was his understanding that the Permanency Plan required that he 

participate in a parenting class, participate in a mental health assessment, participate in an 

alcohol and drug assessment, maintain stable employment and income, follow any 

recommendations that resulted from the assessments, and not incur new criminal charges. 

Father testified that at the time of trial he had completed, or was in the process of completing, 

several parenting classes, a mental health assessment, and a drug and alcohol assessment. 

Father testified that none of the assessments resulted in any recommendations for Father to 

follow. Father further testified that he signed releases for DCS to receive certificates of 

completion regarding all of these tasks. There was no dispute that DCS did receive a 
5

certificate of completion for an online parenting class that was completed prior to the filing 

of the termination petition. 

Father also testified without dispute that despite being incarcerated, he has steady 

income and has been paying child support. At the second hearing, Father submitted proof 

from the State of Nebraska that his wages had been garnished to pay child support for 

Abbigail and that Father was current on all his obligations. It appears, however, that the 

child‟s Mother retained these payments and they were never sent to Tennessee for Abbigail‟s 

benefit. Regardless, nothing in the record suggests that Father was aware that the payments 

were being retained by Mother. 

With regard to the period of time Father spent in Nebraska prior to his current 

incarceration, however, Father testified that he was unable to pay support because he had 

difficulty getting and keeping a job due to his criminal record and pending charges. 

According to Father, this fact also prevented him from making the expensive trip from 

Nebraska to Tennessee to visit the child. Further, although Father was entitled to therapeutic 

visitation with the child, Father testified that he was under the impression that he was not 

able to contact the child because of what he described as a “No Contact” order. Additionally, 

Father admitted that during this time he was arrested for charges related to a theft, but 

testified that he was not involved with that crime and that those charges were eventually 

“dropped.” 

Father also testified to the efforts he has made to better himself while in prison. 

According to Father, he is enrolled in several college courses and will shortly be a certified 

paralegal. Father testified that every effort he has made while incarcerated is to provide a 

good life for the child upon his release.

Rachel Hunter, another DCS caseworker, also testified. According to Ms. Hunter, she 

was assigned the case in June 2014. She testified that she was unable to find contact 

information for Father until October 2014. During that time, Ms. Hunter testified that no one 

associated with the case contacted her to obtain a home study for the home in Nebraska or for 

any other purpose. Ms. Hunter did not contact Father even when she learned his whereabouts, 

however, because after the first hearing on the termination petition on October 24, 2014, she 

employed a policy of “hush hush” in communicating with Father.7 Ms. Hunter also testified 

that the only proof she received regarding Father‟s compliance with the Permanency Plan 

was a certificate from a short online parenting class, which she testified was insufficient to 

meet the requirements outlined in the Permanency Plan. 

 

7

From her testimony, it appears that under this policy, Ms. Hunter declined to make any contact with 

Father despite the fact that she had his contact information.
6

Ms. Hunter testified without objection to several disclosures made to her by the older 

children. For example, one child told Mr. Hunter about an episode where Father set a bed on 

fire with the children in it, and another child stated that Father hit him with a belt. Ms. Hunter 

testified that she had personally observed scars on the child‟s torso and back. Ms. Hunter also 

testified that all of the children expressed their desire not to return to Mother‟s and Father‟s 

custody. In fact, Ms. Hunter testified that the children appeared frightened at the prospect of 

leaving their foster home. 

Melissa Harris, a licensed professional counselor, also testified to her involvement 

with the children. Ms. Harris testified that she began seeing the children in February 2013, 

both collectively and individually. Ms. Harris testified, however, that she had only worked 

with Abbigail since September 2014, due to her young age. Ms. Harris testified that the 

children had disclosed several instances of abuse to her during their therapy sessions, 

including the incident where Father set the bed on fire and where Father beat an older child 

with a belt. Ms. Harris also testified to an incident described by an older child where Father:

st[uck] underwear in his mouth one time for what [the older 

child] presumes was back talking or arguing with him about 

something. [The older child] said that he was gagging on the 

underwear, that they were dirty underwear, that he couldn‟t 

breathe, he couldn‟t swallow, he couldn‟t say anything, and that 

his mom stood back and was laughing at him while this was 

going on. If he attempted to take the underwear out of his 

mouth, that [Father] would smack him.

Ms. Harris stated that another child explained how he had to break into Mother‟s and 

Father‟s home because he was locked outside. When he went inside he tried to wake Mother, 

but “she smacked at him.” The older child then “went into the kitchen and got a piece of 

bologna and a piece of cheese that they all four shared.” The child also reported that Father 

made him drink alcohol on two different occasions. 

Ms. Harris testified that the children had several issues when they were first removed 

from Mother‟s and Father‟s home, including aggression, bathroom issues,8self-blaming, and 

lack of self-esteem. With regard to Abbigail specifically, Ms. Harris testified without 

objection:

 

8

These issues include an older child using the bathroom on himself and using the bathroom in the shower. 
7

She was obviously drug exposed in utero. And, so, she has a lot 

of the behaviors that comes along with that; the aggression, the 

very impulsive behaviors, using the bathroom on, on herself, not 

sleeping well, a lot of profanity. And we‟re working on her 

understanding what her role is, accepting what she can and 

cannot do, and listening to rules and structure from other people.

Because of the issues that the children were experiencing, Ms. Harris testified that she 

supported discontinuing phone visitation between the children and Mother and Father. Ms. 

Harris also testified that she recommended that the children not receive letters from Mother 

and Father, as the letters would cause the children unnecessary stress.9Indeed, Ms. Harris 

testified that Abbigail had a noticeable stress reaction whenever Father was mentioned. Ms. 

Harris testified, however, that she advised that therapeutic visitation would be appropriate, 

but that neither Mother nor Father ever contacted her to facilitate any visitation. According to 

Ms. Harris, she obtained DCS approval before beginning the counseling with the children 

and specifically asked DCS that Mother and Father be informed that they should contact her 

to discuss the children‟s therapy or to facilitate therapeutic visitation.

Ms. Harris testified that, through therapy and the structure provided in their foster 

home, all of the children have improved markedly. Ms. Harris also testified that the children 

had bonded with their foster parents and removing the children from foster parents would 

cause them harm. 

Norma B., the children‟s foster mother (“Foster Mother”) mirrored Ms. Harris‟s 

testimony regarding the children‟s allegations of abuse, their resulting emotional and 

behavioral issues, and the progress they have made since coming to her home. All of the 

children were placed with Foster Mother immediately after being removed from Mother‟s 

and Father‟s custody and have remained there continuously since that time. Foster Mother 

testified that she and her husband hope to adopt the children, should they become available 

for adoption. 

Specifically with regard to Abbigail, Foster Mother testified that Abbigail initially 

“cussed like a sailor” and threw tantrums in order to “get a response.” Abbigail also had such 

trouble sleeping that she had to be prescribed medication. However, Foster Mother testified 

that those habits are getting better with time. According to Foster Mother, none of the 

children ever expressed any sadness over being taken from Mother and Father. Instead, 

Foster Mother testified that Abbigail refers to her as “Mama.” Additionally, Foster Mother 

testified that she never received any support from Mother or Father for the children‟s care. 

 

9 Ms. Harris also noted that Abbigail had not yet learned to read at the time of trial.
8

After the close of proof, DCS offered the trial court the Tennessee Supreme Court‟s 

recently decided Opinion in In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015), which DCS 

argued removed DCS‟s obligation to prove reasonable efforts as a precondition to 

termination. Father objected, asserting that the Kaliyah holding should not be applied 

retroactively. The trial court indicated that it would consider both parties‟ arguments. 

The trial court issued a Memorandum Opinion on April 15, 2015. Thereafter, on May 

28, 2015, the trial court filed a written order containing detailed findings of fact and 

conclusions of law, which terminated Father‟s parental rights to Abbigail on the grounds of 

abandonment by failure to provide a suitable home, abandonment by an incarcerated parent 

for failure to visit and support and wanton disregard, substantial noncompliance with the 

permanency plan, and persistence of conditions. The trial court also found it was in 

Abbigail‟s best interest to terminate Father‟s parental rights. Father filed a timely notice of 

appeal.

Issues Presented

Father raises several issues on appeal, which are taken from his appellate brief:

1. Whether the juvenile court‟s judgment is final.

2. Whether the juvenile court erred by failing to enter a final order 

within thirty days of the final hearing in this matter.

3. Whether the juvenile court made evidentiary errors in admitting 

Collective Exhibit 1 and relying upon it.

4. Whether the juvenile court erred in weighing alleged statements 

from absent minor declarants without articulating the reasons it 

assigned credibility to the statements.

5. Whether the juvenile court erred in considering opinion 

evidence from a witness for the State who was not tendered as 

an expert witness.

6. Whether the juvenile court erred in finding that clear and 

convincing evidence established the ground of abandonment.

7. Whether the juvenile court erred in finding that there was clear 

and convincing evidence to establish substantial noncompliance 

with the permanency plan by Father.

8. Whether the juvenile court erred in finding that there was clear 

and convincing evidence to establish the ground of persistent 

conditions.
9

9. Whether the juvenile court erred in finding that termination was 

in the child‟s best interest;

10.Whether the juvenile court violated Father‟s due process rights 

by considering new case law not in effect at the time the 

termination petition was filed;

11.Whether the cumulative effect of the juvenile court‟s errors 

warrant vacating the termination.

Discussion

Subject Matter Jurisdiction

Father first argues that this Court lacks subject matter jurisdiction to consider this 

appeal because the trial court‟s judgment is not final. Subject matter jurisdiction concerns the 

authority of the court to hear a matter and cannot be waived. Meighan v. U.S. Sprint 

Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). The Tennessee Supreme Court has held 

that “[u]nless an appeal from an interlocutory order is provided by the rules or by statute, 

appellate courts have jurisdiction over final judgments only.” Bayberry Assocs. v. Jones, 783 

S.W.2d 553, 559 (Tenn. 1990). Rule 3(a) of the Tennessee Rules of Appellate Procedure 

limits the subject matter jurisdiction of appellate courts to final judgments:

In civil actions every final judgment entered by a trial court from

which an appeal lies to the Supreme Court or Court of Appeals 

is appealable as of right. Except as otherwise permitted in rule 9 

and in Rule 54.02 Tennessee Rules of Civil Procedure, if 

multiple parties or multiple claims for relief are involved in an 

action, any order that adjudicates fewer than all the claims or the 

rights and liabilities of fewer than all the parties is not 

enforceable or appealable and is subject to revision at any time 

before entry of a final judgment adjudicating all the claims, 

rights, and liabilities of all parties.

Accordingly, if the trial court did not adjudicate all of the parties‟ claims, it did not enter a 

final judgment. Without a final judgment, this Court does not have subject matter 

jurisdiction. 

In this case, there is no dispute that the termination action involved claims against 

multiple parties. The order terminating Father‟s parental rights to the child did not adjudicate 

all of the claims. However, the trial court‟s order contains a certification pursuant to Rule 

54.02 of the Tennessee Rules of Civil Procedure indicating that the claims against Father are 
10

final and that there is no just reason to delay appellate review. Rule 54.02 of the Tennessee 

Rules of Civil Procedure provides, in pertinent part: 

When more than one claim for relief is present in an action, 

whether as a claim, counterclaim, cross-claim, or third party 

claim, or when multiple parties are involved, the court, whether 

at law or in equity, may direct the entry of a final judgment as to 

one or more but fewer than all of the claims or parties only upon 

an express determination that there is no just reason for delay 

and upon an express direction for the entry of judgment. In the 

absence of such determination and direction, any order or other 

form of decision, however designated, that adjudicates fewer 

than all the claims or the rights and liabilities of fewer than all 

the parties shall not terminate the action as to any of the claims 

or parties, and the order or other form of decision is subject to 

revision at any time before the entry of the judgment 

adjudicating all the claims and the rights and liabilities of all the 

parties.

The trial court‟s order terminating Father‟s parental rights adjudicates all of the claims 

related to Father and is properly certified as final pursuant to Rule 54.02. Despite this fact, 

Father argues that the Rule 54.02 certification was inappropriate because no such language 

was included in the trial court‟s Memorandum Opinion, which preceded the filing of the 

purported final order. We respectfully disagree. The trial court‟s Memorandum Opinion 

clearly contemplated that the trial court‟s judgment should become final once an order 

incorporating the trial court‟s findings of fact and conclusions of law was filed. Indeed, the 

trial court specifically anticipated that an appeal would be filed after the entry of an order 

incorporating the Memorandum Opinion. Because the trial court‟s final order contains Rule 

54.02 certification and the trial court speaks through its order, Palmer v. Palmer, 562 S.W.2d 

833, 837 (Tenn. Ct. App. 1977), we must conclude that the order terminating Father‟s 

parental rights was properly certified as final pursuant to Rule 54.02. Consequently, this 

Court has jurisdiction to consider this appeal. 

Tennessee Code Annotated Section 36-1-113(k)

Father next argues that the trial court‟s judgment should be reversed due to its failure 

to comply with Tennessee Code Annotated Section 36-1-113(k). Section 36-1-113(k) 

provides, in pertinent part: 
11

The court shall enter an order that makes specific findings of 

fact and conclusions of law within thirty (30) days of the 

conclusion of the hearing. If such a case has not been completed 

within six (6) months from the date the petition was served, the 

petitioner or respondent shall have grounds to request that the 

court of appeals grant an order expediting the case at the trial 

level.

Here, the trial concluded on April 21, 2015. The trial court issued its Memorandum 

Opinion on May 15, 2015. However, the order terminating Father‟s parental rights was 

entered on May 28, 2015, approximately seven days after the expiration of the thirty-day time 

period outlined in Tennessee Code Annotated Section 36-1-113(k). Although the trial court 

failed to strictly comply with the thirty-day timeline, Father did receive notice of the trial 

court‟s ruling within the statutory timeframe. Indeed, he filed his notice of appeal before the

entry of the final order, despite the trial court‟s statement in the Memorandum Opinion that 

the time period for filing a notice of appeal would not begin until the filing of the final order. 

Additionally, this Court has previously held that a trial court‟s failure to strictly comply with 

Tennessee Code Annotated Section 36-1-113(k) did not warrant remand to the trial court, 

much less the reversal that Father requests in this case, where the trial court made appropriate 

findings of fact and conclusions of law to support its ruling. In re Isobel V.O., No. M2012-

00150-COA-R3PT, 2012 WL 5471423, at *4 (Tenn. Ct. App. Nov. 8, 2012) (“We repeatedly 

have held that the time frame contained in the statute reflects the legislature‟s intent that 

parental termination cases be handled in an expeditious manner and is not mandatory.”) 

(citing In re Zada M., No. E2010-02207-COA-R3-PT, 2011 WL 1361575, at *5 (Tenn. Ct. 

App. Apr. 11, 2011)). We have thoroughly reviewed the trial court‟s order and conclude that 

other than on one issue, discussed infra, the order contains sufficient findings of fact and 

conclusions of law. This issue is, therefore, without merit. 

Evidentiary Rulings

Father next argues that the trial court erred in several evidentiary rulings and that the 

wrongly admitted evidence was improperly relied upon by the trial court. A trial court‟s 

evidentiary rulings are reviewed under the abuse of discretion standard. Martin v. Norfolk S. 

Ry. Co., 271 S.W.3d 76, 87 (Tenn. 2008). “An abuse of discretion occurs when the trial court 

applies an incorrect legal standard or reaches a conclusion that is „illogical or unreasonable 

and causes an injustice to the party complaining.‟” Id. (quoting State v. Lewis, 235 S.W.3d 

136, 141 (Tenn. 2007) (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006))). We will 

consider each of Father‟s evidentiary arguments in turn.

A. Admission of Collective Exhibit #1
12

Father first argues that the trial court erred in admitting Collective Exhibit #1, over his 

objection, during DCS‟s opening statement. Collective Exhibit #1 consists of the certified 

court records pertaining to the children. Certain documents are self-authenticating; that is, 

they do not require “[e]xtrinsic evidence of authenticity as a condition precedent to 

admissibility.” Tenn. R. Evid. 902. According to Rule 902(4) of the Tennessee Rules of 

Evidence, such self-authenticating documents include:

A copy of an official record or report or entry therein, or of a 

document authorized by law to be recorded or filed and actually 

recorded or filed in a public office (including data compilations 

in any form), certified as correct by the custodian or other 

person authorized to make the certification, by certificate 

complying with paragraph (1), (2), or (3) of this rule or 

complying with any Act of Congress or the Tennessee 

Legislature or rule prescribed by the Tennessee Supreme Court. 

The documents contained in Collective Exhibit #1 consist entirely of certified court records,

and the documents were certified as correct by the Claiborne County Juvenile Court Clerk. 

Thus, despite Father‟s protestations in his appellate brief, the documents did not require that 

a witness be present and testify to their authenticity. 

We agree with Father that the better practice is that evidence should not be admitted 

during the opening statement phase of trial. See generally State v. Sexton, 368 S.W.3d 371, 

414-15 (Tenn. 2012), as corrected (Oct. 10, 2012) (discussing the purpose of opening 

statements). However, because the documents consisted only of properly certified official 

court records that were clearly admissible under the Tennessee Rules of Evidence, these 

documents were admissible without the need for an authenticating witness. Under these 

circumstances, we must conclude that the trial court‟s decision to admit the documents during

opening statements was not error. Furthermore, because the documents were admissible, we 

find no error in the trial court‟s reliance on Collective Exhibit #1 in its ruling.

B. Statements by the Children

Father next argues that the trial court erred in admitting and considering hearsay 

statements from the children regarding their treatment at the hands of Father and Mother. As 

previously discussed, both Ms. Harris and Foster Mother testified as to several statements 

made by the children concerning physical abuse and neglect that they endured while in the 

custody of Father and Mother. Father argues: (1) that DCS failed to elicit sufficient evidence 

to admit the hearsay statements pursuant to Rule 803(25) of the Tennessee Rules of 
13

Evidence;10 (2) that the trial court failed to “determine[] the child[ren‟s] ability to understand 

the truth or a lie” before admitting the statements; and (3) that the trial court failed to require 

that the children be sworn in pursuant to Rule 603 of the Tennessee Rules of Evidence.11

We have thoroughly reviewed the trial transcript and have found no objections of any 

kind lodged by Father regarding the statements attributed to the children. Rule 36(a) of the 

Tennessee Rules of Appellate Procedure provides, in relevant part: “Nothing in this rule shall 

be construed as requiring relief be granted to a party responsible for an error or who failed to 

take whatever action was reasonably available to prevent or nullify the harmful effect of an 

error.” The Advisory Committee Comment to this Rule clarifies that the above rule “is a 

statement of the accepted principle that a party is not entitled to relief if the party invited 

error, waived an error, or failed to take whatever steps were reasonably available to cure an 

error.” As explained by this Court:

The contemporary objection rule is an elementary 

principle of trial practice. Parties who desire to object to the 

admission of evidence must make their objection in a timely 

manner and must state the specific basis for their objection. 

Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct. App. 

1999). Parties cannot obtain relief on appeal from an alleged 

error they could have prevented. Tenn. R. App. P. 36(a). 

 

10 Rule 803(25) provides:

Children’s Statements. Provided that the circumstances indicate 

trustworthiness, statements about abuse or neglect made by a child alleged to 

be the victim of physical, sexual, or psychological abuse or neglect, offered 

in a civil action concerning issues of dependency and neglect pursuant to 

Tenn. Code Ann. § 37-1-102(b)(12), issues concerning severe child abuse 

pursuant to Tenn. Code Ann. § 37-1-102(b)(21), or issues concerning 

termination of parental rights pursuant to Tenn. Code Ann. § 37-1-147 and 

Tenn. Code Ann. § 36-1-113, and statements about abuse or neglect made 

by a child alleged to be the victim of physical, sexual, or psychological abuse 

offered in a civil trial relating to custody, shared parenting, or visitation. 

Declarants of age thirteen or older at the time of the hearing must testify 

unless unavailable as defined by Rule 804(a); otherwise this exception is 

inapplicable to their extrajudicial statements.

11 Rule 603 provides: 

Before testifying, every witness shall be required to declare that the witness 

will testify truthfully by oath or affirmation, administered in a form 

calculated to awaken the witness's conscience and impressthe witness's mind 

with the duty to do so.
14

Therefore, failing to make an appropriate and timely objection to

the admission of evidence in the trial court prevents a litigant 

from challenging the admission of the evidence on appeal. 

Welch v. Bd. of Prof’l Responsibility, 193 S.W.3d 457, 464 

(Tenn. 2006); State ex rel. Smith v. Livingston Limestone Co., 

547 S.W.2d 942, 944 (Tenn. 1977); Ottinger v. Stooksbury, 206 

S.W.3d 73, 78 (Tenn. Ct. App. 2006). 

Levine v. March, 266 S.W.3d 426, 440 (Tenn. Ct. App. 2007). Because Father did not object 

to the admission of these statements during the trial, he cannot raise their admission and the 

trial court‟s subsequent reliance on them as an error on appeal. 

C. Ms. Harris’s Expert Opinion

Father next argues that the trial court erred in admitting and considering the expert 

opinion of Ms. Harris, a licensed psychologist, because she was not tendered as an expert. 

We first note that this Court held that the Tennessee Rules of Evidence contain no 

requirement that a witness must be tendered as an expert before testifying. See Tire 

Shredders, Inc. v. ERM-N. Cent., Inc., 15 S.W.3d 849, 863 (Tenn. Ct. App. 1999) 

(“[Appellant] does not, however, direct us to any authority in Tennessee requiring the formal 

tender of a witness prior to the giving of expert testimony. Nor has our independent research 

revealed any such requirement.”). Thus, so long as Ms. Harris‟s qualifications were sufficient 

to allow her to testify as an expert, there was no error in DCS‟s failure to tender her as an 

expert. 

Even more importantly, we again note that Father failed to object to any of Ms. 

Harris‟s testimony, including her opinion testimony. As previously discussed, the failure to 

lodge a contemporaneous objection to the admission of evidence will result in a waiver of 

any argument concerning the evidence‟s erroneous admission on appeal. See id. at 864 (“In 

order to challenge on appeal a trial court‟s admission of [expert testimony], there must appear 

in the record a timely and specific objection to the evidence or motion to strike the 

evidence.”). Thus, this argument is also waived.

Termination of Father’s Parental Rights

Father next argues that the trial court erred in terminating his parental rights, both 

because there was insufficient evidence to prove grounds for termination and to prove that 

termination was in the child‟s best interest. Under both the United States and Tennessee 

Constitutions, a parent has a fundamental right to the care, custody, and control of his or her 

child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 
15

170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a 

compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer, 

455 U.S. 745 (1982)). Our termination statutes identify “those situations in which the state‟s 

interest in the welfare of a child justifies interference with a parent‟s constitutional rights by 

setting forth grounds on which termination proceedings can be brought.” In re Jacobe M.J., 

434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W .B., Nos. M2004-00999-COAR3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 

2005)). A person seeking to terminate parental rights must prove both the existence of one of 

the statutory grounds for termination and that termination is in the child‟s best interest. Tenn. 

Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003);In re Valentine, 

79 S.W.3d 539, 546 (Tenn. 2002).

Because of the fundamental nature of the parent‟s rights and the grave consequences 

of the termination of those rights, courts must require a higher standard of proof in deciding 

termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination 

and the best interest inquiry must be established by clear and convincing evidence. Tenn. 

Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing 

evidence “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 M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence 

“produces in a fact-finder‟s mind a firm belief or conviction regarding the truth of the facts 

sought to be established.” Id. at 653.

In light of the heightened standard of proof in termination of parental rights cases, a 

reviewing court must modify the customary standard of review as set forth in Tennessee Rule 

of Appellate Procedure 13(d). As to the trial court‟s findings of fact, our review is de novo 

with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. 

App. P. 13(d). We must then determine whether the facts, as found by the trial court or as 

supported by the preponderance of the evidence, clearly and convincingly establish the 

elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 

2002). 

When 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. 

See 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). The weight, faith, and credit to be given to any 

witness‟s testimony lies in the first instance with the trier of fact, and the credibility accorded 

will be given great weight by the appellate court. Walton v. Young, 950 S.W.2d 956, 959 

(Tenn. 1997).
16

Furthermore, in termination of parental rights cases, Tennessee Code Annotated 

Section 36-1-113(k) provides that the court “shall enter an order which makes specific 

findings of fact and conclusions of law.” Section 36-1-113(k) is a reflection of the General 

Assembly‟s “recognition of the necessity of individualized decisions in these cases.” State v. 

McBee, No. M2003-01326-COA-R3-PT, 2004 WL 239759, at *5 (Tenn. Ct. App. 2004). 

Because of the gravity of their consequences, proceedings to terminate a parent‟s rights to his 

or her children require such individualized decision making. Id. (citing In re Swanson, 2 

S.W.3d 180, 188 (Tenn. 1999)). Furthermore, as previously stated by this Court, quoting the 

Tennessee Supreme Court in In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003):

The trial court is required to find only one statutory ground for 

termination of parental rights . . . . However, given the importance of 

establishing the permanent placement of a child who is the subject of a 

termination of parental rights proceeding, the trial court should 

include in its final order findings of fact and conclusions of law 

with regard to each ground presented. If the trial court addresses 

each ground that is raised in a termination proceeding, the child‟s 

permanent placement will not be unnecessarily delayed due to a remand 

for findings on alternate grounds. 

McBee, 2004 WL 239759 at *13–*14 (citations omitted) (emphasis added). When a trial 

court fails to comply with Section 36-1-113(k), “we cannot simply review the record de novo

and determine for ourselves where the preponderance of the evidence lies[.]” Id. at *6.

A. Grounds for Termination

In this case, DCS alleged several grounds for termination against Father including 

abandonment, persistent conditions, and substantial noncompliance with the permanency 

plan. See Tenn. Code Ann. § 36-1-113(g) (outlining the grounds for termination of parental 

rights). We begin with abandonment.

I. Abandonment

Tennessee Code Annotated Section 36-1-113(g) provides that one ground for 

termination of parental rights shall be “[a]bandonment by the parent or guardian, as defined 

in § 36-1-102.” The trial court specifically found that clear and convincing evidence 

supported a finding that Father abandoned his child by failure to establish a suitable home, as 

well as failure to visit and support and wanton disregard by an incarcerated parent. We will 

consider each definition in turn. 
17

1. Abandonment by Failure to Establish a Suitable Home

Father first argues that the trial court erred in finding that he had abandoned his child 

by willfully failing to establish a suitable home. Relevant to this argument, Tennessee Code 

Annotated Section 36-1-102(1)(A)(ii) indicates that abandonment may be found when:

The child has been removed from the home of the parent or 

parents or the guardian or guardians as the result of a petition 

filed in the juvenile court in which the child was found to be a 

dependent and neglected child, as defined in § 37-1-102, and the 

child was placed in the custody of the department or a licensed 

child-placing agency, that the juvenile court found, or the court 

where the termination of parental rights petition is filed finds, 

that the department or a licensed child-placing agency made 

reasonable efforts to prevent removal of the child or that the 

circumstances of the child‟s situation prevented reasonable 

efforts from being made prior to the child‟s removal; and for a 

period of four (4) months following the removal, the department 

or agency has made reasonable efforts to assist the parent or 

parents or the guardian or guardians to establish a suitable home 

for the child, but that the parent or parents or the guardian or 

guardians have made no reasonable efforts to provide a suitable 

home and have demonstrated a lack of concern for the child to 

such a degree that it appears unlikely that they will be able to 

provide a suitable home for the child at an early date. The efforts 

of the department or agency to assist a parent or guardian in 

establishing a suitable home for the child may be found to be 

reasonable if such efforts exceed the efforts of the parent or 

guardian toward the same goal, when the parent or guardian is 

aware that the child is in the custody of the department; . . . .

The trial court made the following findings with regard to this issue:

The record is mostly void of any evidence to provide a 

suitable home. Certainly [Father] cannot provide a suitable 

home while he is incarcerated in the State of Nebraska.

* * *
18

[Father] testified of a suitable home in the State of Nebraska, 

owned by his aunt . . . .

The Defense wants to blame the State of Tennessee, 

Department of Children‟s Services for lack of reasonable efforts 

to do a home study of the home in the State of Nebraska owned 

by [Father‟s aunt]. However, DCS caseworker Dawn Lewis 

testified that she had attempted to get information from 

[Father‟s mother] to complete the [Interstate Compact on the 

Placement of Children] When the needed information was not 

provided she submitted the ICPC with what she had and it was 

rejected due to not being completed with all of the necessary 

information. Efforts to reunify require cooperation from both 

sides. The State of Tennessee, Department of Children‟s 

Services is required to undertake reasonable efforts to reunify.

However, the parents are also required to make reasonable 

efforts to reunify. In this particular case, the children came into 

custody of the State of Tennessee as dependent and neglected 

children based on the actions of the two (2) parents, [Mother] 

and [Father].

* * *

[Father] engaged in criminal activity such that he placed himself 

into a position that he became incarcerated in the State of 

Nebraska.

Therefore, the Court finds that any efforts to try and 

reunify were made impossible by the actions of the parents.

In his appellate brief, Father‟s only argument on this ground provides: “Those 

[findings by the trial court] are not sufficient, factually or legally, to sustain the termination 

of [Father‟s] parental rights under the abandonment ground so found by the trial court.” 

Father cites no caselaw to support his argument that the trial court‟s findings are insufficient. 

After a thorough review of the record, we conclude that the trial court‟s findings are 

sufficient and that the evidence does not preponderate against them on this issue. First, the 

record on appeal clearly shows by order of February 20, 2013, the child was found to be

dependent and neglected and placed in the custody of DCS. Additionally, there is no dispute 

that Father is currently incarcerated and his sentence will only expire in 2017.12 Accordingly, 

 

12 Father testified that he may be eligible for parole in 2015. However, this Court has held that “parole 
19

the trial court correctly found that Father cannot establish a suitable home where he resides. 

Father asserted at trial, however, that either his mother‟s or his aunt‟s home is suitable and 

that DCS failed to exert reasonable efforts to assist him in establishing those homes as 

suitable.13

We respectfully disagree. Ms. Lewis testified of the multitude of efforts that she 

expended in order to communicate with Father regarding establishing a suitable home. 

According to Ms. Lewis, she attempted to obtain the appropriate information to have Father‟s 

mother‟s home approved as a suitable home for the child, but she never received the 

appropriate information. Ms. Lewis even testified without dispute that she attempted to have 

the home approved with the information that had been provided, but that the home was 

rejected. 

In contrast, Father‟s testimony was sometimes contradictory as to how much 

communication he had with Ms. Lewis. For example, Father specifically testified that other 

than his meeting with Ms. Lewis in January 2013, DCS “never even spoke with [him].” He 

later admitted, however, that both he and his mother were in contact with Ms. Lewis after his 

extradition to Nebraska. Under these circumstances, we cannot conclude that the trial court 

erred in relying on Ms. Lewis‟s testimony, rather than Father‟s. See Bouldin v. Warren Cnty. 

Sheriff’s Dep’t, No. M2003-00602-WC-R3-CV, 2004 WL 358275, at *3 (Tenn. Workers 

Comp. Panel Feb. 26, 2004) (holding that even an implicit credibility finding is “entitled to 

considerable deference on appeal”) (citing Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d 

57, 62 (Tenn. 2001)). Based upon Ms. Lewis‟s testimony, it appears that she made several 

attempts to gain the appropriate information to establish a suitable home in Nebraska, but that 

her efforts were thwarted by her inability to keep in contact with Father and his mother. In 

addition, the lack of communication with Father can be attributed to Father‟s incarceration, 

which was the product of his own poor choices. Under these circumstances, we affirm the 

trial court‟s finding that despite DCS‟s reasonable efforts, the ground of abandonment by 

failure to establish a suitable home was met by clear and convincing evidence. 

2. Abandonment by Incarcerated Parent

Father next argues that the trial court erred in finding clear and convincing evidence to 

support the ground of abandonment by an incarcerated parent. Tennessee Code Annotated 

Section 36-1-102(a)(iv) provides that abandonment may be shown by proving that:

 

eligibility does not equate with release, but only with the possibility of release.” In re M.B., No. M2007-

02755-COA-R3-PT, 2008 WL 2229518, at *5 (Tenn. Ct. App. May 29, 2008). Accordingly, we will consider 

the date that Father is certain to be released.

13 The record is somewhat unclear as to whether Father‟s mother and aunt resided in the same home or resided

in separate, but adjoining homes.
20

A parent or guardian is incarcerated at the time of the institution 

of an action or proceeding to declare a child to be an abandoned 

child, or the parent or guardian has been incarcerated during all 

or part of the four (4) months immediately preceding the 

institution of such action or proceeding, and either has willfully 

failed to visit or has willfully failed to support or has willfully 

failed to make reasonable payments toward the support of the 

child for four (4) consecutive months immediately preceding 

such parent‟s or guardian‟s incarceration, or the parent or 

guardian has engaged in conduct prior to incarceration that 

exhibits a wanton disregard for the welfare of the child; . . . .

This Court has indicated that the above definition “contains multiple ways of abandonment 

for termination of parental rights.” In re Kierra B., No. E2012-02539-COA-R3PT, 2014 WL 

118504, at *8 (Tenn. Ct. App. Jan. 14, 2014). In this case, the trial court found that 

abandonment by an incarcerated parent was proven by showing willful failure to visit and 

support, as well as wanton disregard. 

One required element of the ground of abandonment by an incarcerated parent 

requires that the “parent or guardian is incarcerated at the time of the institution of an action. 

. . or the parent or guardian has been incarcerated during all or part of the four (4) months 

immediately preceding the institution of such action[.]” Tenn. Code Ann. 36-1-102(a)(iv). A 

brief review of Father‟s incarceration record is helpful in determining this issue. According 

to the record, Father and Mother were both arrested in January 2013 for child abuse charges. 

Father was then extradited to Nebraska but was released pending a final determination of his 

charges on February 20, 2013. Father was not incarcerated between February 20, 2013 and 

October 26, 2013, other than a few days.14 On October 26, 2013, however, Father began his 

current incarceration. Thus, at the time of the filing of the termination petition on December 

2, 2013, Father was incarcerated and had been for a little over a month. Accordingly, the first 

element necessary to a finding of abandonment under Tennessee Code Annotated Section 36-

1-102(a)(iv) has been met. We will, therefore, go on to consider whether the trial court erred 

in finding that the ground of abandonment by an incarcerated parent was shown by willful 

failure to visit and support and wanton disregard.

a. Willful Failure to Visit and Support

 

14 The record is somewhat unclear as to why Father was incarcerated during this time. Father testifies at one 

point that it was due to a paperwork error and at another point that it was due to an erroneous theft charge. 
21

Father next argues that the trial court erred in finding abandonment by an incarcerated 

parent through willful failure to visit and support because there was insufficient evidence that 

Father‟s failure was willful. Willful failure to visit is defined as “the willful failure, for a 

period of four (4) consecutive months, to visit or engage in more than token visitation[.]” 

Tenn. Code Ann. 36-1-102(E). Willful failure to support or willful failure to make reasonable 

payments toward such child‟s support is defined as “the willful failure, for a period of four 

(4) consecutive months, to provide monetary support or the willful failure to provide more 

than token payments toward the support of the child[.]”

As outlined above, in order to determine whether a parent has willfully failed to visit 

or support a child, the court must consider the proper four-month period. See generally In 

Matter of M.J.J., No. M2004-02759-COA-R3-PT, 2005 WL 873305, at *5 (Tenn. Ct. App. 

Apr. 14, 2005) (noting the “relevant four month period that we must be concerned with”). In 

the trial court‟s order, the trial court states that “the applicable four (4) month time period 

immediately prior to the filing of the Petition covers the timeframe between August 2013 and 

December 2013.” Likewise in his brief, Father argues that his failure to visit and support was

not willful because he was incarcerated during a portion of the relevant four-month period.

Respectfully, we must conclude that both the trial court and Father have miscalculated 

the relevant four-month period in this case. Under Tennessee Code Annotated Section 36-1-

102(a)(i), the relevant four-month period for determining willful failure to visit or support is 

the “four (4) consecutive months immediately preceding the filing of a proceeding or 

pleading to terminate the parental rights of the parent.” This is the relevant period utilized by 

both the trial court and Father. The trial court‟s order, however, does not terminate Father‟s 

rights upon the ground contained in Tennessee Code Annotated Section 36-1-102(a)(i), but 

instead upon the ground contained in Tennessee Code Annotated Section 36-1-102(a)(iv). 

Subsection (iv) provides that the relevant period for determining abandonment by an 

incarcerated parent for failure to visit or support is the “four (4) consecutive months 

immediately preceding such parent‟s or guardian‟s incarceration.” Id. Thus, the 

relevant period for this ground is June 26, 2013 to October 25, 2013.

This Court has indicated that where the grounds of abandonment by an incarcerated 

parent for willful failure to visit and support are properly alleged in the termination petition, 

but the trial court relied on the wrong four-month period, the “omission . . . require[s] us to

[vacate and] remand for findings on that issue.” In re W.B., IV, No. M2004-00999-COA-R3-

PT, 2005 WL 1021618, at *10 (Tenn. Ct. App. Apr. 29, 2005). Here, the termination petition 

clearly contains allegations regarding the grounds of abandonment by an incarcerated parent 

through willful failure to visit and support. Accordingly, we must vacate the trial court‟s 

determination with regard to these grounds. See also McBee, 2004 WL 239759 at *6) 

(noting that when a trial court fails to make findings of fact on an issue “we cannot simply 
22

review the record de novo and determine for ourselves where the preponderance of the 

evidence lies”). As discussed throughout this Opinion, however, other grounds exist to 

terminate Father‟s parental rights. In addition, as discussed, infra, we have affirmed the trial 

court‟s determination that termination is in the child‟s best interest. Thus, a finding that clear 

and convincing evidence exists to support the grounds of abandonment by an incarcerated 

parent through failure to visit and support is not necessary to uphold the termination of 

Father‟s parental rights. Under these circumstances, remanding for reconsideration of these 

grounds would only further prolong these proceedings without altering the outcome. 

Accordingly, we decline to remand this issue to the trial court for reconsideration. 

b. Wanton Disregard

Father next argues that the trial court erred in finding abandonment by an incarcerated 

parent through wanton disregard because the trial court‟s order “lacks any specific findings 

as to what willful actions, if any, of [Father] legally establish „wanton disregard.‟” With 

regard to this ground, the trial court found:

[Mother] and [Father] have been in and out of jail since 

the children were brought into state‟s custody. They each have a 

lengthy criminal history and outstanding warrants in Claiborne 

County, Tennessee. [Father] has a range of convictions, 

including recent ones of Domestic Assault (which included no 

contact with [Mother]), Felony Failure to Appear, and Theft. 

[Father] is presently incarcerated in Jefferson County, Nebraska.

* * *

[Father] became incarcerated in October 2013

approximately two (2) months prior to the filing of the Petition 

to Terminate Parental Rights. However, [Father] was under 

bond conditions to not leave the State of Nebraska commencing 

in January 2013 that did not allow him to return to the State of 

Tennessee to retrieve his children. The criminal activity by 

[Father] was willful. Therefore, such criminal activity exhibits a 

wanton disregard for the welfare of [the child].

It simply is not the fault of [the child] that her father . . . 

chose to participate in criminal activity such that he received a 

jail sentence causing him to be extradited back to the State of 

Nebraska, to have bond conditions imposed that did not allow 

him to leave the State of Nebraska and become incarcerated in 

October 2013 and remain incarcerated through a[n] initial 
23

hearing on October 2014 and a final hearing in April 2015. By 

his own testimony he becomes eligible for parole in September 

2015. However, [the child] still has needs just as she has since 

she was born [in December 2010].

The State of Tennessee, Department of Children‟s 

Services and the foster parents have provided those needs for 

[the child] while the parents, [Father] and [Mother], were unable 

to provide those needs due to their criminal activities.

With regard to the ground of abandonment by an incarcerated parent through wanton 

disregard, this Court has explained:

Incarceration alone is not conclusive evidence of wanton 

conduct prior to incarceration. In re Audrey S., 182 S.W.3d 838, 866 

(Tenn. Ct. App. 2005). Rather, “incarceration serves only as a 

triggering mechanism that allows the court to take a closer look at the 

child‟s situation to determine whether the parental behavior that 

resulted in incarceration is part of a broader pattern of conduct that 

renders the parent unfit or poses a risk of substantial harm to the 

welfare of the child.” Id. The statutory language governing 

abandonment due to a parent‟s wanton disregard for the welfare of a 

child “reflects the commonsense notion that parental incarceration is a 

strong indicator that there may be problems in the home that threaten 

the welfare of the child” and recognizes that a “parent‟s decision to 

engage in conduct that carries with it the risk of incarceration is itself 

indicative that the parent may not be fit to care for the child.” Id.

Numerous cases have held that a parent‟s previous criminal 

conduct, coupled with a history of drug abuse, constitutes a wanton 

disregard for the welfare of the child. See, e.g., State v. J.M.F., No. 

E2003-03081-COA-R3-PT, 2005 WL 94465, at *8 (Tenn. Ct. App. Jan. 

11, 2005); In re C. LaC., No. M2003-02164-COA-R3-PT, 2004 WL 

533937, at *7 (Tenn. Ct. App. Mar. 17, 2004); State v. Wiley, No. 

03A01-9903-JV-00091, 1999 WL 1068726, at *7 (Tenn. Ct. App. Nov. 

24, 1999); In the Matter of Shipley, No. 03A01-9611-JV-00369, 1997 

WL 596281, at *5 (Tenn. Ct. App. Sept. 29, 1997). “[P]robation 

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 at 

867–68.
24

In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *5 (Tenn. Ct. App. 

Dec. 22, 2009).

Here, Father admitted that he had a lengthy criminal history, including convictions for 

domestic violence, driving while intoxicated, child abuse/neglect, theft, and failure to appear. 

In addition, Father admitted that there is a warrant for his arrest in Tennessee due to charges 

that he violated his probation. Due to this criminal activity, Father has been unable to visit his 

child since February 2013, either due to incarceration or his inability to find work due to his 

criminal record and pending proceedings. Father‟s decision to engage in criminal activity is 

all the more troubling given his admission that Mother was unable to properly care for the 

children on her own, despite her efforts. Thus, Father chose to engage in criminal activity 

that could prevent him from caring for his child despite the fact that he was aware that the 

child‟s other parent was not capable of parenting the child alone. 

Father was also tested for drugs in December of 2012 and tested positive for THC, 

benzodiazepines, and oxycodone. Father testified that he had been prescribed Xanax (a 

benzodiazepine) and pain medication, but no documentation was offered in the record to 

support these prescriptions. Moreover, Father did not testify as to what conditions, other than 

a generalized allegation of pain, the medications were allegedly prescribed to address. In 

addition, Father admitted that he had abused marijuana “off and on” his entire adult life but 

testified that he was never impaired by marijuana around the children.

Finally, when the child first came under DCS supervision, one of her siblings was 

found to be unsupervised, and all of the children were generally neglected.15 Indeed, both 

Ms. Lewis and Foster Mother testified that the children were undernourished in Father‟s and 

Mother‟s care. Under these circumstances, we must conclude that Father‟s criminal history, 

coupled with his admitted drug abuse and neglect of the child while in his custody, are 

sufficient to support the trial court‟s determination that clear and convincing evidence 

supported the ground of abandonment by an incarcerated parent through wanton disregard. 

II. Substantial Noncompliance with the Permanency Plan

We next consider the trial court‟s finding that Father failed to substantially comply 

with the Permanency Plan. Tennessee Code Annotated Section 36-1-113(g)(4) provides that a

ground for termination exists where “[t]here has been substantial noncompliance by the 

parent or guardian with the statement of responsibilities in a permanency plan pursuant to the 

 

15 Testimony showed, however, that the child at issue appeared to have been better treated than the 

other children in the home. 
25

provisions of title 37, chapter 2, part 4[.]” Further, Tennessee Code Annotated Section 37-2-

403 provides, in relevant part:

Substantial noncompliance by the parent with the statement of 

responsibilities provides grounds for the termination of parental 

rights, notwithstanding other statutory provisions for termination 

of parental rights, and notwithstanding the failure of the parent 

to sign or to agree to such statement if the court finds the parent 

was informed of its contents, and that the requirements of the 

statement are reasonable and are related to remedying the 

conditions that necessitate foster care placement. 

The determination of whether there has been substantial noncompliance with a 

permanency plan is a question of law, to be reviewed on appeal de novo with no presumption 

of correctness. In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002). Termination of parental 

rights under Tennessee Code Annotated Section 36-1-113(g)(2) “requires more proof than 

that a parent has not complied with every jot and tittle of the permanency plan.” In re M.J.B., 

140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). To succeed under Section 36-1-113(g)(2), DCS 

“must demonstrate first that the requirements of the permanency plan are reasonable and 

related to remedying the conditions that caused the child to be removed from the parent‟s 

custody in the first place.” In re M.J.B., 140 S.W.3d at 656–57 (citing In re Valentine, 79 

S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App. 2003)). Second, DCS 

must show that “the parent‟s noncompliance is substantial in light of the degree of 

noncompliance and the importance of the particular requirement that has not been met.” In re

M.J.B., 140 S.W.3d at 657 (citing In re Valentine, 79 S.W.3d at 548–49; In re Z.J.S., No. 

M2002-02235-COA-R3-JV, 2003 WL 21266854, at * 12 (Tenn. Ct. App. June 3, 2003)).

Father argues that there was no basis for the trial court to conclude that he had not 

complied with the Permanency Plan, as he contends that the Permanency Plan was never 

entered into evidence. Indeed, this Court has repeatedly held that when a party “is relying on 

substantial noncompliance with the permanency plan as a ground for terminating parental 

rights, it is essential that the plan be admitted into evidence.” In re A.J.R., No. E2006-01140-

COA-R3-PT, 2006 WL 3421284, at *4 (Tenn. Ct. App. Nov. 28, 2006) (citing Dep’t of 

Children’s Services v. D.W.J., No. E2004-02586-COA-R3-PT, 2005 WL 1528367, at *3 

(Tenn. Ct. App. June 29, 2005)). Furthermore, this Court has held that it is “inappropriate to 

terminate parental rights based on the ground of substantial noncompliance . . . where DCS 

did not take the child into State protective custody, did not create a „permanency plan‟ that 

satisfied the requirements of the statute, [and] did not obtain court approval of any 

permanency plan. . . .” In re Kaleb N.F., No. M2012-00881-COA-R3-PT, 2013 WL 

1087561, at *21 (Tenn. Ct. App. Mar. 12, 2013).
26

In this case, however, a copy of the Permanency Plan was entered as a part of 

Collective Exhibit #1. The Permanency Plan was ratified by the trial court on February 13, 

2013, and the copy in the record is certified by the Juvenile Court Clerk. Father also admitted 

to receiving a copy of the Permanency Plan in his testimony. Although Father argues that the 

trial court was not entitled to rely on Collective Exhibit #1, we have previously concluded 

that it was admissible, and the trial court was entitled to rely on upon the documents 

contained therein.

Father next argues that the trial court erred in finding that Father substantially failed to 

comply with the Permanency Plan ratified by the trial court. On this issue, the trial court 

made the following findings:

The Court does note that [Father] appears to have made 

much effort in an attempt to comply with the Family 

Permanency Plan requirements for parenting classes, alcohol 

and drug assessments and mental health assessments.

The documentation of his efforts, however, is not 

complete. Evidence of completion of some parenting classes 

was introduced at trial. However, there is no evidence of 

completion of a mental health assessment and following the 

recommendations, or an alcohol and drug assessment and 

following those recommendations.

The Family Permanency Plan also requires safe and 

stable housing and proof of income.

At the time of the trial, neither parent could provide proof 

of safe and stable housing and income as . . . [Father] is 

incarcerated.

Therefore, the Court has to find that there has been 

substantial non-compliance with the Family Permanency Plan by 

[Father].

Although not pointed out by Father in his brief, we note that some of the requirements 

found to be contained in the Permanency Plan are not clearly delineated as responsibilities of 

Father. For example, although the trial court found that Father was required to “provide proof 

of safe and stable housing,” the Permanency Plan indicates that this was merely a “Desired 

Outcome[],” rather than an action step or responsibility to be undertaken by Father. A similar 

parenting plan was discussed in In re Abigail F.K., No. E2012-00016-COA-R3-JV, 2012 

WL 4038526 (Tenn. Ct. App. Sept. 14, 2012):
27

Unfortunately, however, the permanency plan for [the 

child] nowhere includes a section labeled as the “statement of 

responsibilities” for [the parent]. This omission is not a mere 

technicality. As we have noted in a previous case: “[T]he statute 

that sets out this ground for termination states that parental 

rights may be terminated where there is substantial 

noncompliance „with the statement of responsibilities‟ in the 

permanency plan.” In re Askia K. B., 2011 WL 4634241, at *9 

(quoting Tenn. Code Ann. § 36-1-113(g)(2)) (emphasis in 

original). See also State of Tenn. Dep’t of Children’s Servs. v. 

P.M.T., No. E2006-00057-COA-R3-PT, 2006 WL 2644373, at 

*8; 2006 Tenn.App. LEXIS 608, at *23–24 (Tenn. Ct. App. 

Sept. 15, 2006) (“Tenn. Code Ann. § 36-1-113(g)(2) does not 

require substantial compliance with a permanency plan‟s 

„[d]esired outcome[s],‟ rather it requires substantial compliance 

with a plan‟s statement of responsibilities”). Moreover, the 

statement of responsibilities serves a substantive purpose. If the

parent is required to comply with the permanency plan, then the 

permanency plan should clearly communicate to the parent: this 

is what you must do to regain custody of your child. That is the 

purpose of the parent‟s statement of responsibilities. Thus, the 

absence of a clearly marked “statement of responsibilities” for 

[the parent] in the permanency plan is a significant problem. It is 

difficult for the Court to find that [the parent] failed to 

substantially comply with the plan‟s statement of responsibilities 

if the plan does not contain one.

In re Abigail, 2012 WL 4038526, at *13. Much like the permanency plan in In re Abigail, 

the Permanency Plan here contains various “Desired Outcomes,” “Actions Step(s),” and 

responsibilities littered throughout its twenty-one pages but contains no clear and concise 

statement of responsibilities. Still, Father testified that he was aware that he was required to 

participate in a parenting class, complete both an alcohol and drug assessment and a mental 

health intake assessment and provide documentation to DCS, gain stable income to provide 

support for the child, as well as not incur more criminal charges. We will, therefore, only 

consider these requirements.16

 

16 Of these requirements, there is no dispute that the Permanency Plan‟s actions steps and responsibilities were 

“reasonable and related to remedying the conditions which necessitate foster care placement.” Tenn. Code 

Ann. § 37-2-403(a)(2)(C)).
28

In his brief, Father argues that the trial court‟s findings are insufficient to support a 

finding of substantial noncompliance where the trial court made no findings that DCS “made 

reasonable efforts to assist [Father] (exceeding those efforts made by [Father]) in completing 

the requirements of the child‟s permanency plan.”17 In In re Kaliyah S., 455 S.W.3d 533 

(Tenn. 2015), however, the Tennessee Supreme Court recently held that “proof of reasonable 

efforts is not a precondition to termination of the parental rights.” Id. at 555. Instead, the 

Tennessee Supreme Court concluded that proof of reasonable efforts should be considered, 

but not necessarily dispositive, only with regard to a parent‟s failure to establish a suitable 

home and the best interest of the child. Id. at 554 n.29, 555.

Father argues, however, that the holding in In re Kaliyah should not apply to this 

case, as to do so would violate his due process rights. Father cites considerable law in his 

appellate brief regarding the minimal due process rights that he should have been afforded; 

Father does not, however, discuss why it was inappropriate for the trial court to apply the 

holding in In re Kaliyah, other than a conclusory assertion that it denied his counsel 

“adequate trial preparation.” In its appellate brief, DCS appears to assume that Father‟s 

argument rests upon the principle that “retrospective application of new precedent can 

operate, in some circumstances, to place an undue burden upon a person who has acted in 

justifiable reliance upon prior decisions.” See Marshall v. Marshall, 670 S.W.2d 213, 215 

(Tenn. 1984) (quoting 10 A.L.R.3d 1371, 1386 § 5(b) (1966) (“It has often been held or 

recognized that where particular persons have acted in justifiable reliance upon a 

subsequently overruled judicial decision and retroactive application of the overruling 

decision would defeat their reliance interests, such reliance interests should receive adequate 

protection, and the overruling decision should be denied retroactive application in order to 

prevent such persons from being subjected to unfairness or undue hardship.”) (citation 

omitted)). A review of Father‟s appellate brief, however, reveals that Father cites no 

authority for his conclusion that the In re Kaliyah holding should not have retrospective 

application.18 This Court has repeatedly held that the failure to include citations to authorities 

may render issues raised in the appellant‟s brief waived. See Bean v. Bean, 40 S.W.3d 52, 55 

(Tenn. Ct. App. 2000) (“Courts have routinely held that the failure . . . to cite relevant 

authority in the argument section of the brief as required by Rule 27(a)(7) [of the Tennessee 

Rules of Appellate Procedure] constitutes a waiver of the issue.”) (citing Tenn. R. App. P. 

27(a)(7) (providing that an appellant‟s brief must contain “[a]n argument . . . with citations to 

authorities”)). Accordingly, Father‟s argument that the trial court improperly considered the 

 

17 Father also argues that the Parenting Plan was not ratified by the trial court as being in the best interest of the 

child. As previously discussed, the Parenting Plan was approved by the trial court on February 13, 2013. 

18 Indeed, the phrases “retrospective application,” “undue hardship,” or their like are not included in Father‟s 

appellate brief. In contrast, at trial, Father‟s counsel did argue that the In re Kaliyah Opinion was “not 

retroactive.” Instead, in his brief, Father simply assumes that the consideration of In re Kaliyah was improper 

and only provides legal argument as to why such consideration caused him harm. 
29

Kaliyah Opinion because it was rendered after the initiation of the termination proceedings is 

waived. 

For purposes of clarity, however, we note that, despite Father‟s argument, it is not at 

all clear that the trial court in fact applied the holding of In re Kaliyah to the facts of this 

case. Nowhere in the trial court‟s Memorandum Opinion or final order is In re Kaliyah

mentioned. Indeed, rather than refuse to consider reasonable efforts, the trial court concluded 

that reasonable efforts were “made impossible” by Father‟s actions, specifically his 

incarceration in Nebraska. Even in cases that required an affirmative showing of reasonable 

efforts by DCS prior to the decision in In re Kaliyah, this Court had held that DCS‟s 

affirmative duty to make reasonable efforts could be excused where “such efforts would have 

been futile under the circumstances.”19 State, Dep’t of Children’s Servs. v. Estes, 284 

S.W.3d 790, 800 (Tenn. Ct. App. 2008), overruled by In re Kaliyah S., 455 S.W.3d 533 

(Tenn. 2015). Thus, the trial court appeared to apply pre-Kaliyah law, exactly as requested by 

Father.20 Consequently, despite Father‟s contention in his brief, the trial was not “irreparably 

tainted” by DCS‟s proffer of the In re Kaliyah Opinion to the trial court.21

 

19 Father does not argue that the trial court erred in finding that reasonable efforts were excused due to futility. 

Accordingly, any argument on this issue is waived. See Tenn. R. App. P. 13(b) (“Review generally will only 

extend to those issues presented for review.”).

20 We also note that this Court has previously applied the holding in In re Kaliyah to a case initiated prior to 

the filing of the Opinion in In re Kaliyah. See In re J.A.G., No. M2014-01469-COA-R3-PT, 2015 WL 

1022281, at *4 (Tenn. Ct. App. Feb. 27, 2015) (no perm. app. filed). In In re J.A.G., mother relied on DCS‟s 

failure to make reasonable efforts as preventing the trial court from terminating her parental rights. According 

to the Court, however: “Obviously, the parties in the case at bar did not have the benefit of the In re Kaliyah

decision in briefing their cases. Nonetheless, the holding effectively ends [m]other‟s appeal in the case at bar.” 

Id.; see e.g., In re Miracle F.H., No. E2014-01508-COA-R3-PT, 2015 WL 1539050, at *5 (Tenn. Ct. App. 

Apr. 1, 2015) (citing the In re Kaliyah holding despite the fact that the trial court entered a final order prior to 

the filing of the In re Kaliyah Opinion); In re Agustine R., No. E2014-01091-COA-R3PT, 2015 WL 

1259245, at *6 (Tenn. Ct. App. Mar. 17, 2015) (also applying the In re Kaliyah holding despite the fact that 

the decision was rendered while the case was pending). Thus, the Court of Appeals has previously applied the 

In re Kaliyah holding to cases that were pending when it was rendered. 

21 Despite our conclusion that the trial court did not err in this regard, we cannot condone the actions of DCS 

in this case. At trial, DCS caseworker Rachel Hunter testified that although she was assigned this case in June 

of 2014, she was unable to locate Father until October of 2014. Even after obtaining contact information for 

Father, Ms. Hunter testified that she declined to contact him as her office implemented a “hush hush” policy 

after the first hearing on the termination petition on October 24, 2014. We find it stretches credulity to suggest 

that, exercising minimal efforts, it would take approximately four months to locate an individual that was 

known to be an inmate of the Nebraska Department of Correction. Furthermore, it appears that Ms. Hunter had

Father‟s contact information for at least some period of time before the termination hearing and in the time 

between the first hearing and its conclusion in the Spring of 2015. While the efforts made by Ms. Lewis to 

establish a suitable home for the child during her time on the case do appear to have been reasonable given the 

fact that Father was incarcerated, we cannot say the same for the efforts expended by Ms. Hunter.
30

Finally, we note that the In re Kaliyah decision was rendered on January 22, 2015. 

The final hearing on DCS‟s petition to terminate Father‟s parental rights occurred on April 

21, 2015. Accordingly, the contention that Father‟s counsel was deprived of adequate trial 

preparation by having to address a Tennessee Supreme Court Opinion rendered nearly three 

months prior to the final hearing is not persuasive. 

We next consider whether Father substantially complied with the requirements that he 

complete both a parenting class, participate in both an alcohol and drug assessment and a 

mental health intake and provide documentation to DCS, gain stable income, and not incur 

more criminal charges. Here, the testimony and documentary proof in the record shows that 

Father attended two parenting classes, one in 2013 and one after the termination petition was 

filed in 2014. Although Father testified that he completed an additional class, no 

documentary proof was submitted to either DCS or the trial court to support Father‟s 

testimony. In addition, only proof of the 2013 class was submitted to DCS prior to trial, and a 

DCS caseworker testified that because it was a short, online class, it was not sufficient to 

meet the requirements in the Permanency Plan. From our review, however, nothing in the 

Permanency Plan specifically states that a short, online parenting class is insufficient to meet 

the requirements of the Permanency Plan. Father also testified that he completed several 

mental health and drug and alcohol assessments and that there were no specific 

recommendations for him to follow. No documentary proof exists in the record to support 

Father‟s testimony, but there was no testimony from DCS to dispute Father‟s assertions. 

Father also testified that although he is in prison, he has stable income and has been 

making payments toward the support of the child. Indeed, documentary proof in the record 

shows that two substantial child support payments were recently made on Father‟s behalf and 

that he is current on his Nebraska child support obligation. From our review of the record, 

although Father‟s substantial payments only began after the filing of the termination petition, 

it appears that he was making small, partial payments sporadically beginning in May 2013. 

Although these payments appeared to have been received by Mother, rather than the child, 

nothing in the record suggests that Father was aware that the payments were not going 

toward the child. Additionally, Father admitted that after the Permanency Plan was created, 

he was extradited to Nebraska to face charges for domestic violence, theft, and failure to 

appear. However, it seems likely that the crimes alleged occurred prior to the creation of the 

Permanency Plan, rather than after. Finally, Father admitted that he was arrested in Nebraska 

after January 2013 but testified without dispute that those charges were “dropped.”

Mere noncompliance is not enough to terminate a parent‟s rights. In re Valentine, 79 

S.W.3d at 548. Additionally, the unsatisfied requirement(s) must be important in the plan‟s 

scheme. Id. A “[t]rivial, minor, or technical” deviation from the permanency plan‟s 

requirements does not qualify as substantial noncompliance. In re M.J.B., 140 S.W.3d at 656 
31

(citing In re Valentine, 79 S.W.3d at 548). Improvements in compliance are construed in 

favor of the parent. In re Valentine, 79 S.W.3d at 549 (citing State Dept. of Human Servs. v. 

Defriece, 937 S.W.2d 954, 961 (Tenn. Ct. App. 1996)). Yet, we must determine compliance 

in light of the permanency plan‟s important goals:

In our view, a permanency plan is not simply a list of 

tasks with boxes to be checked off before custody is 

automatically restored. Rather, it is an outline for doing the 

things that are necessary to achieve the goal of permanency in 

children‟s lives. We think that where return to parent is the goal, 

parents must complete their responsibilities in a manner that 

demonstrates that they are willing and able to resume caring for 

their children in the long-term, not on a month-to-month basis.

In re V.L.J., No. E2013-02815-COA-R3-PT, 2014 WL 7418250, at *8 (Tenn. Ct. App. Dec. 

30, 2014).

Under the circumstances, we cannot conclude that Father‟s noncompliance with the 

requirements that he understood under the Permanency Plan was substantial. Father attended 

a parenting class while in Nebraska and provided proof of completion to DCS; although the 

parenting class was ultimately rejected as insufficient by DCS, nothing in the Permanency 

Plan put Father on notice of DCS‟s requirements for an acceptable parenting class. In 

addition, Father testified without dispute that he has taken part in several mental health and 

drug assessments. Although DCS did not receive notice of Father‟s completion of these 

tasks, this failure alone is not sufficient to constitute substantial noncompliance in this 

particular case. Further, despite Father‟s circumstances, he has obtained a job in prison and 

has endeavored to pay support for the child. Although the support ultimately was not sent to 

the child, nothing in the record suggests that this is through any fault on the part of Father. 

Finally, although Father admitted to being arrested after the creation of the Permanency Plan, 

he testified without dispute that those charges were not pursued. Accordingly, we must 

reverse the judgment of the trial court that clear and convincing evidence exists to support a 

finding that Father substantially failed to comply with the Permanency Plan. 

III. Persistent Conditions

The trial court also found that clear and convincing evidence supported the ground of 

persistence of conditions. According to Tennessee Code Annotated Section 36-1-113(g)(3), 

one ground for termination is that: 
32

The child has been removed from the home of the parent or 

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

(A) The conditions that led to the child‟s removal or other 

conditions that in all reasonable probability would cause the 

child to be subjected to further abuse or neglect and that, 

therefore, prevent the child‟s safe return to the care of the parent 

or parents or the guardian or guardians, still persist;

(B) 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 or parents or the guardian or guardians in the near 

future; and

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

relationship greatly diminishes the child‟s chances of early 

integration into a safe, stable and permanent home; . . . .

With regard to this ground, Father argues that the record does not contain “the 

prerequisite documentary evidence of a petition alleging dependency and neglect, an order 

placing the child in the legal custody of [DCS], an order finding clear and convincing 

evidence of the child‟s dependent and neglected status, and/or a petition to terminate parental 

rights.” As previously discussed, however, Collective Exhibit #1 was properly considered by 

the trial court. From our review, Collective Exhibit #1 contains several petitions to find the 

child dependent and neglected, a January 30, 2013 order granting temporary legal custody of 

the child to DCS, a February 20, 2013 order finding clear and convincing evidence that the 

child was dependent and neglected, and the December 2, 2013 petition to terminate Father‟s 

parental rights to the child.22 Based upon these documents, the trial court was correct in 

concluding that the child had been removed from Father‟s custody and placed in the custody 

of DCS for more than six months. 

Father does not argue that, considering the documents contained in Collective Exhibit 

#1, the evidence was otherwise insufficient to support the trial court‟s finding of persistent 

conditions. In an abundance of caution, however, we have reviewed the record to determine 

if clear and convincing evidence supports a finding of persistent conditions. We conclude 

that it does. 

 

22 The petition to terminate Father‟s parental rights is not only included in Collective Exhibit #1 but is also part 

of the technical record of this case, in that it is the initiating document. The trial court is clearly entitled to 

consider the technical record of the case in which it is presiding. See Mandela v. Reynolds, No. 01-A-01-9303-

CH00126, 1993 WL 236607, at *2–*3 (Tenn. Ct. App. June 30, 1993) (holding that “prior proceedings and 

judgments in the same court were subject to judicial notice”) (citing Tenn. R. Evid. 201).
33

“A parent‟s continued inability to provide fundamental care to a child, even if not 

willful, . . . constitutes a condition which prevents the safe return of the child to the parent‟s 

care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct. 

App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-CV, 2000 WL 

964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the conditions which 

led to the removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6 (citing 

State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990)). “Where . . . 

efforts to provide help to improve the parenting ability, offered over a long period of time, 

have proved ineffective, the conclusion is that there is little likelihood of such improvement 

as would allow the safe return of the child to the parent in the near future is justified.” Id. 

The purpose behind the “persistence of conditions” ground for terminating parental rights is 

“to prevent the child‟s lingering in the uncertain status of foster child if a parent cannot 

within a reasonable time demonstrate an ability to provide a safe and caring environment for 

the child.” In re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012) (quoting In re 

A.R., No. W2008-00558-COA-R3-PT, 2008 WL 461675, at *20 (Tenn. Ct. App. Oct. 13, 

2008) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 

(Tenn. Ct. App. Mar. 3, 2008))).

Here, it appears from the record that the child was removed from the home due to 

Father‟s and Mother‟s incarceration and Father‟s drug use. Although there is no evidence that 

Father is currently abusing drugs, because of Father‟s incarceration, we are simply unable to 

discern if any improvements Father has made with his drug use will continue upon his 

release. In addition, there is no dispute that he is incarcerated and will likely remain so until 

April 2017. Because of Father‟s current incarceration and his history of criminal acts, there is 

little likelihood that the child may be returned to Father‟s custody in the near future.23 Thus, 

regardless of whether any inability on Father‟s part to care for the child is willful, the fact 

remains that Father is not capable of providing the child the care that she needs and deserves 

while he is in prison. Furthermore, even if we were to conclude that Father was likely to be 

released early from prison and that he would not pursue other criminal conduct, Father failed 

to provide sufficient evidence for DCS to approve the home in which Father testified he will 

eventually reside. Additionally, while he appears willing and able to provide support for the 

child while incarcerated, the testimony shows that Father let the children under his roof go 

hungry prior to his incarceration. Finally, any continuation of the parent-child relationship 

between Father and the child will prevent the child from being adopted with her siblings. 

Under these circumstances, the trial court did not err in finding the ground of persistence of 

conditions proven by clear and convincing evidence. 

 

23 At trial, Father also testified that there was a warrant out for his arrest in Tennessee. It is unclear what will 

become of that charge upon Father‟s release from incarceration in Nebraska. 
34

B. Best Interest

We next consider whether termination is in the child‟s best interest. When at least one 

ground for termination of parental rights has been established, the petitioner must then prove 

by clear and convincing evidence that termination of the parent‟s rights is in the child‟s best 

interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 1994). When a parent has 

been found to be unfit (upon establishment of ground(s) for termination of parental rights), 

the interests of parent and child diverge. In re Audrey S., 182 S.W.3d at 877. The focus 

shifts to the child‟s best interest. Id. Because not all parental conduct is irredeemable, 

Tennessee‟s termination of parental rights statutes recognize the possibility that terminating 

an unfit parent‟s parental rights is not always in the child‟s best interest. Id. However, when 

the interests of the parent and the child conflict, courts are to resolve the conflict in favor of 

the rights and best interest of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he 

child‟s best interest must be viewed from the child‟s, rather than the parent‟s, perspective.” 

Moody, 171 S.W.3d at 194.

The Tennessee General Assembly has codified certain factors that courts should 

consider in ascertaining the best interest of the child in a termination of parental rights case. 

These factors include, but are not limited to, the following:

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

of circumstance, conduct, or conditions as to make it safe and in 

the child‟s best interest to be in the home of the parent or 

guardian;

(2) Whether the parent or guardian has failed to affect a lasting 

adjustment after reasonable efforts by available social services 

agencies for such duration of time that lasting adjustment does 

not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular 

visitation or other contact with the child;

(4) Whether a meaningful relationship has otherwise been 

established between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment 

is likely to have on the child‟s emotional, psychological and 

medical condition;
35

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

the parent or guardian, has shown brutality, physical, sexual, 

emotional or psychological abuse, or neglect toward the child, or 

another child or adult in the family or household;

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

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

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

controlled substances as may render the parent or guardian 

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

manner;

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

status would be detrimental to the child or prevent the parent or 

guardian from effectively providing safe and stable care and 

supervision for the child; or

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

consistent with the child support guidelines promulgated by the 

department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i). This Court has noted that, “this list [of factors] 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 rights is in the best 

interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending 

on the circumstances of an individual case, the consideration of a single factor or other facts 

outside the enumerated, statutory factors may dictate the outcome of the best interest 

analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court: 

Ascertaining a child‟s best interests does not call for a rote 

examination of each of Tenn. Code Ann. § 36-1-113(i)‟s nine 

factors and then a determination of whether the sum of the 

factors tips in favor of or against the parent. The relevancy and 

weight to be given each factor depends on the unique facts of 

each case. Thus, depending upon the circumstances of a 

particular child and a particular parent, the consideration of one 

factor may very well dictate the outcome of the analysis. 

In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).

The trial court made the following finding with regard to the child‟s best interest:
36

[Father] has made efforts to reunify with his child[.] 

However, his efforts are limited by the fact that he has been 

incarcerated for the majority of the time since the children came 

into custody. In fact, his ability to exercise any type of 

relationship or maintain contact with the children has been 

virtually non-existent due to the fact that he was either under 

bond conditions in the State of Nebraska or incarcerated in the 

State of Nebraska thus prohibiting his travel back to the State of 

Tennessee to visit with the children. 

In the interim, [the child] and her siblings have been 

placed into a very good foster home. 

Clearly based upon the testimony of the foster parents, 

the DCS caseworkers and the therapist, Amber Harris, [the 

child] and her siblings have made tremendous progress since 

being placed into the current foster home.

The foster mother . . . testified that she and her spouse 

intend to adopt all four (4) of the children if the termination of 

the parental rights is granted.

Throughout the entire timeframe that [Mother] and 

[Father] have been away from their children in the State of 

Nebraska, the needs of the children, and specifically Abbigail [], 

have been met very well by the State of Tennessee, Department 

of Children‟s Services and by the foster parents.

Furthermore, the Court must note that the four (4) 

children have, as provided in the testimony, bonded and their 

best circumstance would be for the four (4) children to remain 

together. The main stability that those four (4) children have 

known throughout this entire process has been that they have 

each other.

The therapist, Amber Harris, testified that it would be 

detrimental to [the child] to remove her from her current 

placement and caretaker.

Therefore, based upon the forgoing the Court must find 

that it is in the best interest of the children that the parental 

rights of [Father] to his child . . . be terminated.

After reviewing the record, we agree with the trial court. Here, Father has been largely 

removed from the child‟s life since January 2013. Father‟s only visit with the child after her 

removal was in February 2013. Accordingly, the child has had no contact with Father in the 

last two-and-one-half years. See Tenn. Code Ann. § 36-1-113(i)(3). Moreover, at the time of 
37

the removal, the child was only two years old. Accordingly, it appears unlikely that Father 

and the child have any meaningful relationship at this point. See id. § 36-1-113(i)(4). While 

Father contends that any failure to maintain a relationship with this child was not voluntary, 

Father‟s inability to visit with the child results directly from his own criminal activities.

Rather than an attachment to Father, it appears that the child now has an attachment to 

Foster Mother, whom she refers to as “Mama.” Clearly, the child has grown attached to the 

people that have raised her for over two-and-one-half years, longer than the time she resided 

with Father. Removing her at this point would certainly be detrimental to the child‟s wellbeing, as supported by the expert testimony of Ms. Harris. See id. § 36-1-113(i)(4). While we 

can speculate and hope that the child‟s needs may be met if returned to Father‟s care, the 

testimony undisputedly showed that Foster Parents have provided the child with not only her 

basic needs but the structure and therapy that she requires to thrive. In addition, the child‟s 

other siblings reside in the home, and the child is able to maintain a relationship with them. 

Father has also failed to offer any documentation to DCS or the court that he can 

establish a safe and stable home for the child in the near future, an impossibility due to his 

current incarceration. Furthermore, Father testified that he has abused marijuana for his entire 

adult life, and nothing in his testimony indicates that he intends to discontinue this habit. See

id. § 36-1-113(i)(7), (8). 

There is also substantial concern about the abuse and neglect that the child and her 

siblings suffered at Father‟s hands. See id. § 36-1-113(i)(6). First, Ms. Lewis testified that the 

children were dirty, infested with head lice, and underfed when removed from Mother‟s and 

Father‟s care. There is no dispute that Father was convicted of child abuse against the 

children related to the events that led to their removal. In addition, Ms. Harris testified 

without objection to statements made by the other children concerning abuse at Father‟s 

hands, including beatings and setting their bed on fire. Ms. Harris testified that the children 

once lived in fear of this abuse but that they have improved with regular therapy. These 

factors weigh heavily in favor of termination. 

We note, however, that all factors are not in favor of termination. For example, there 

is no dispute that since his incarceration, Father has endeavored to pay child support for the 

child‟s benefit. See id. § 36-1-113(i)(9). In addition, other than Ms. Lewis‟s attempts to help 

Father establish a suitable home, there is little evidence in the record that DCS provided 

reasonable efforts to Father to help him make a lasting adjustment in his circumstances. See

id. § 36-1-113(i)(2). Considering all of the relevant factors, however, we must conclude that 

the child‟s best interest is served by remaining in the home that she has known for the 

majority of her life, where her needs are clearly met, where her other siblings reside, and 
38

where the caregivers wish to adopt her. Accordingly, there is sufficient evidence in the record 

to support a finding that termination of Father‟s parental rights is in the child‟s best interest.

Cumulative Error

Finally, Father argues that the trial court‟s errors, viewed cumulatively, require this 

Court to vacate the judgment of the trial court. We respectfully disagree. First, we note that 

Father cites no law to support his assertion that the cumulative error doctrine may apply to 

civil cases in Tennessee, and this Court has found none. Next, we cannot ignore that the trial 

court in this case was faced with the difficult task of presiding over the termination of 

parental rights of one parent who resided in prison hundreds of miles away and one parent 

who did not deign to appear for court. Rule 36(b) of the Tennessee Rules of Appellate 

Procedure provides that “A final judgment from which relief is available and otherwise 

appropriate shall not be set aside unless, considering the whole record, error involving a 

substantial right more probably than not affected the judgment or would result in prejudice to 

the judicial process.” Here, the trial court provided notice to Father of its decision within 

thirty days of the conclusion of the trial, although a final order was not entered until a few 

days later. With regard to the trial court‟s erroneous findings, we have reversed or vacated 

those findings. However, our review of the record has shown that clear and convincing 

evidence supports several grounds for termination as well as a finding that termination is in 

the child‟s best interest. In this case, we cannot conclude that the minor errors that may have 

been committed by the trial court outweigh the interest in finality that must be a cornerstone 

of all termination of parental rights proceedings. Accordingly, we decline Father‟s invitation 

to vacate the judgment of the trial court and remand for a new trial, where the only result 

would be delaying the child‟s anticipated adoption. 

Conclusion

The judgment of the Claiborne County Juvenile Court is affirmed in part, vacated in 

part, and reversed in part. The termination of Travis C.‟s parental rights is affirmed. Costs of 

this appeal are taxed to Appellant, Travis C., and his surety. 

_________________________________

J. STEVEN STAFFORD, JUDGE