IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 1, 2019

IN RE JAYDIN A. ET AL.

Appeal from the Juvenile Court for Wilson County

No. 95-JC-2017-JT-9 Charles B. Tatum, Judge

___________________________________

No. M2018-02145-COA-R3-PT

___________________________________

Father appeals the trial court’s decision to terminate his parental rights on grounds of 

abandonment by an incarcerated parent and failure to manifest a willingness and ability 

to assume custody. The evidence at trial showed that due to Father’s repeated criminal 

conduct, including two instances where Father fled the State to escape justice, he has had 

no contact with his daughter for approximately 95% of the child’s life. Because we 

conclude that the evidence was clear and convincing as to both grounds for termination 

and best interest, we affirm. 

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

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

SUSANO, JR. and ANDY D. BENNETT, JJ., joined.

Sonia Jennings Boss, Nashville, Tennessee, for the appellant, Michael M.

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

Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of 

Children’s Services.

W. Michael Kilgore, Mount Juliet, Tennessee, Guardian ad litem.

OPINION

I. BACKGROUND

On December 5, 2017, Petitioner/Appellee the Tennessee Department of 

Children’s Services (“DCS”) filed a petition to terminate the parental rights of 

Respondent/Appellant Michael M.1(“Father”) to his minor child, born in March 2017.2

 

1

In cases involving termination of parental rights, it is this Court’s policy to remove the full 

12/12/2019
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The petition alleged as grounds abandonment by an incarcerated parent and failure to 

manifest a willingness and ability to assume custody. 

A termination trial occurred on September 25, 2018. Much of the testimony 

concerned Father’s criminal history and incarceration. Father was incarcerated at the time 

of trial and had been incarcerated continuously from April 16, 2018, until the date of 

trial.3Father testified that he would be automatically paroled in nine months so long as he 

completed a drug program. Father admitted that he was incarcerated on his eighteenth 

birthday and thereafter for the majority of the child’s life. 

Specifically, at the time that the child was born, Father was on probation for 

possession of methamphetamine and possession of drug paraphilia. Approximately one 

month after the child’s birth, Father chose to flee from Tennessee to Ohio, taking the 

child and her mother along. Father was apprehended in April 2017, and the child was 

taken into DCS custody at that time. Eventually, Father was transferred back to 

Tennessee, where he served approximately seven months in jail. Upon release, Father 

was subject to ankle monitoring. Sixteen days after his release, however, Father cut off 

his “ankle bracelet” and fled to Texas. He was apprehended thirteen days later and 

returned to Tennessee. Father further testified that in the eighteen months following the 

removal of the child, he was released and re-incarcerated on multiple occasions, with a 

total of three to four months out of incarceration, “maybe a month at a time.” More 

specifically, Father testified that in the four months prior to the filing of the termination 

petition, he was incarcerated except for “a week or two at a time.” 

Father admitted that a large portion of his criminal charges stemmed from Father’s 

drug addiction, specifically to methamphetamine. Father testified that he is participating 

in a drug treatment program in prison. Father further testified that he is able to financially 

support the child due to a disability check and recently inheriting his parents’ home. 

When the trial court questioned Father about whether Father would “squander [the 

inheritance] on drugs,” Father replied that “I mean, I just got to take it one day at a time. I 

don’t know if it’s going to happen. I just got to put my faith in God and hope it don’t and 

just try.” 

The child was a little over one month old at the time of the removal. The child was 

thereafter placed in the same foster home with her half-sibling, where she remained at the 

time of trial, a period of approximately eighteen months. The DCS worker testified that 

the child is bonded with her foster family. The foster family hopes to adopt both the child 

 

names of children and other parties to protect their identities.

2 The caption of this case refers to the child-at-issue’s half sibling. Mother surrendered her

parental rights to both children prior to the filing of the petition. The petition also sought to terminate the 

parental rights of Jaydin’s father. His rights were terminated after he did not participate. Neither Jaydin 

nor his father is at issue in this appeal. 

3 During this period, Father was serving time in different counties. 
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at issue and her half-sibling. Following the removal of the child, Father had no contact 

with the child. Although the DCS worker testified that Father once texted her to ask for 

photographs of the child, Father denied this, stating that “I didn’t have a conversation 

because I don’t give people my phone numbers that’s involved in stuff like that because 

that’s a way for me to get caught. . . . DCS can rat you out to authorities, so why would I 

give my number to DCS?” Father did admit that one DCS worker did contact him at one 

point prior to the termination hearing; Father asked the DCS worker whether he should 

surrender his parental rights, and the DCS worker replied that she could not provide 

advice in that manner to Father. 

The trial court entered a final order granting DCS’s petition on October 31, 2018. 

Specifically, the trial court ruled that DCS presented clear and convincing evidence of 

abandonment by an incarcerated parent through wanton disregard and failure to manifest 

the ability and willingness to assume custody, as well as that termination was in the 

child’s best interest. Father appealed. 

II. ISSUES PRESENTED

On appeal, Father challenges only the best interest findings made by the trial 

court. Because of the duty imposed on this Court by the Tennessee Supreme Court in In 

re Carrington H., 483 S.W.3d 507, 525–26 (Tenn. 2016), we will also consider whether 

the grounds found by the trial court are supported by sufficient evidence. 

III. STANDARD OF REVIEW

The Tennessee Supreme Court has previously explained that: 

A parent’s right to the care and custody of her child is among the oldest of 

the judicially recognized fundamental liberty interests protected by the Due 

Process Clauses of the federal and state constitutions. Troxel v. Granville, 

530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois, 

405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E., 

303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896 

S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578–

79 (Tenn. 1993). But parental rights, although fundamental and 

constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 

250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. . 

. .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae 

when interference with parenting is necessary to prevent serious harm to a 

child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 

425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 

745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 

S.W.3d at 250.
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In re Carrington H., 483 S.W.3d 507, 52223 (Tenn. 2016) (footnote omitted). In 

Tennessee, termination of parental rights is governed by statute which identifies 

“‘situations in which that 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-COA-R3-PT, M2004-01572-COA-R3-

PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 

36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1) 

existence of one of the statutory grounds and (2) 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). 

Considering the fundamental nature of a parent’s rights, and the serious 

consequences that stem from termination of those rights, a higher standard of proof is 

required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party 

must prove statutory grounds and the child’s best interests by clear and convincing 

evidence. Tenn. Code Ann. § 36-3-113(c); 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 evidence[,]” and “produces in a fact-finder’s mind a firm belief 

or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140 

S.W.3d 643, 653 (Tenn. Ct. App. 2004). 

In termination cases, appellate courts review a trial court’s factual findings de 

novo and accord these findings a presumption of correctness unless the evidence 

preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 

52324 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281 

S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 

2007)). Our supreme court further explains: 

The trial court’s ruling that the evidence sufficiently supports termination 

of parental rights is a conclusion of law, which appellate courts review de 

novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at 

393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally, 

all other questions of law in parental termination appeals, as in other 

appeals, are reviewed de novo with no presumption of correctness. In re 

Angela E., 303 S.W.3d at 246. 

In re Carrington H., 483 S.W.3d at 524. 

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

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

witnesses and their manner and demeanor while testifying, is in a far better position than 
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this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. 

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

Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore 

“gives great weight to the credibility accorded to a particular witness by the trial court.” 

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

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

IV. DISCUSSION

A. Grounds for Termination

The trial court found two grounds for termination of Father’s parental rights: 

abandonment by wanton disregard and failure to manifest an ability and willingness to 

assume custody. In this case, the evidence supporting each ground generally overlaps. 

This, however, is not a bar to finding multiple grounds for termination. See Tenn. Code 

Ann. § 36-1-113(g) (“[A]cts or omissions in one ground does not prevent them from 

coming within another ground[.]”). We will therefore consider each ground in turn.

1. Wanton Disregard

The first ground find by the trial court was abandonment through wanton 

disregard, found at Tennessee Code Annotated section 36-1-113(g) and 36-1-102. Under 

section 36-1-113(g)(1), “[a]bandonment by the parent or guardian, as defined in § 36-1-

102” may constitute a ground for termination. Section 36-1-102(a) in turn contains 

several definitions for the statutory ground of abandonment. At the time the petition was 

filed, the relevant definition of abandonment provided as follows:

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. If the four-month period immediately preceding the 

institution of the action or the four-month period immediately preceding 

such parent’s incarceration is interrupted by a period or periods of 

incarceration, and there are not four (4) consecutive months without 

incarceration immediately preceding either event, a four-month period shall 

be created by aggregating the shorter periods of nonincarceration beginning 

with the most recent period of nonincarceration prior to commencement of 
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the action and moving back in time. Periods of incarceration of less than 

seven (7) days duration shall be counted as periods of nonincarceration. 

Periods of incarceration not discovered by the petitioner and concealed, 

denied, or forgotten by the parent shall also be counted as periods of 

nonincarceration. A finding that the parent has abandoned the child for a 

defined period in excess of four (4) months that would necessarily include 

the four (4) months of nonincarceration immediately prior to the institution 

of the action, but which does not precisely define the relevant four-month 

period, shall be sufficient to establish abandonment; . . . .

Tenn. Code Ann. § 36-1-102(a)(iv) (2017).4 Here, the trial court specifically relied on the 

wanton disregard form of abandonment contained in section 36-1-102(a)(iv). Thus, DCS 

was required to prove that Father was “incarcerated during all or part of the four (4) 

months immediately preceding the institution of such action” and that Father “has 

engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare 

of the child.” Id.

As an initial matter, Father admitted that he was incarcerated for at least a portion

of the four months preceding the filing of the termination petition.5Incarceration alone, 

however, is not sufficient to support this ground. In re Michael O., No. W2017-01412-

COA-R3-PT, 2018 WL 576777, at *5 (Tenn. Ct. App. Jan. 26, 2018). “An incarcerated or 

recently incarcerated parent can be found [to have committed] abandonment only if the 

court finds, by clear and convincing evidence, that the parent’s pre-incarceration conduct 

displayed a wanton disregard for the welfare of the child.” In re Audrey S., 182 S.W.3d 

838, 866 (Tenn. Ct. App. 2005). The statutory language balances the notion that 

“incarceration is a strong indicator that there may be problems in the home that threaten 

the welfare of the child[,]” yet, “incarceration alone in not an infallible predictor of 

parental unfitness.” Id. Therefore, a parent’s incarceration acts as a “triggering 

mechanism” that allows the court to examine more closely 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. As such, many 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.” In re Navada N., 498 S.W.3d at 602; 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 

 

4 This definition was amended in 2019 to remove the terms willful and willfully wherever they 

appear. See 2018 Tenn. Laws Pub. Ch. 875 (H.B. 1856), eff. July 1, 2018. The amendment went into 

effect following the institution of this action and is not relevant to the issues presented in this appeal. 

5 The DCS worker also testified that Father was incarcerated from October 28, 2017, to at least 

November 20, 2017. This period of incarceration occurred in the four months prior to the filing of the 

termination petition.
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(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). Further, “probation violations, 

repeated incarceration, criminal behavior, substance abuse, and the failure to provide 

adequate support or supervision for a child” can constitute conduct demonstrating a 

wanton disregard for the child. In re Audrey S., 182 S.W.3d at 867–68. The court may 

consider a parent’s behavior prior to the four months immediately preceding 

incarceration in finding behavior that exhibited wanton disregard for the child. Id. at 871.

The trial court’s finding that Father’s pre-incarceration conduct exhibited a wanton 

disregard for the child is fully supported by the record. Father was on probation for drug 

offenses when the child was born. After the child’s birth, Father chose to flee from 

authorities to another state, fully knowing that this was a violation of his probation and 

that it would likely result in his incarceration. Father served approximately seven months 

in jail for that violation. Father was thereafter released, only to violate his probation again 

by fleeing to another state. Father admitted that between his current incarceration and the 

initial incarceration that caused the removal of the child, he had only been released from 

incarceration three or four months, no more than a month each time. Indeed, Father 

himself admitted that he had difficulty recalling the dates of his incarcerations as he had 

“been locked up so many times, I forget them.” Moreover, although the dates in the 

record are somewhat unclear, Father admitted that he had a problem with 

methamphetamine that caused him to violate his probation “time after time after time.” 

Finally, during the relevant time period, Father made little effort to contact DCS 

concerning the child, fearing that to do so would endanger his own freedom. Thus, Father 

put his desire to escape justice for his crimes ahead of his duty to parent his child. This 

situation presents a textbook example of a wanton disregard for a child. The trial court’s 

decision to find clear and convincing evidence of this ground is therefore affirmed. 

2. Willingness and Ability

Turning to the final statutory ground found by the trial court, parental rights can be 

terminated when

A parent or guardian has failed to manifest, by act or omission, an ability 

and willingness to personally assume legal and physical custody or 

financial responsibility of the child, and placing the child in the person’s 

legal and physical custody would pose a risk of substantial harm to the 

physical or psychological welfare of the child.

Tenn. Code Ann. § 36-1-113(g)(14). This statutory ground is essentially two distinct 

elements that must each be proven by clear and convincing evidence:

First, DCS must prove that [the parent] failed to manifest ‘an ability and 

willingness to personally assume legal and physical custody or financial 
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responsibility of the child[ren].’ DCS must then prove that placing the 

children in [the parent’s] ‘legal and physical custody would pose a risk of 

substantial harm to the physical or psychological welfare of the child[ren].’

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

Apr. 4, 2018) (quoting Tenn. Code Ann. § 36-1-113(g)(14)). With regard to substantial 

harm, this Court has explained that

The courts have not undertaken to define the circumstances that pose 

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

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

the use of the modifier “substantial” indicates two things. First, it connotes 

a real hazard or danger that is not minor, trivial, or insignificant. Second, it 

indicates that the harm must be more than a theoretical possibility. While 

the harm need not be inevitable, it must be sufficiently probable to prompt a 

reasonable person to believe that the harm will occur more likely than not.

In re Maya R., 2018 WL 1629930, at *7 (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. 

Ct. App. 2001) (footnotes omitted)). 

In this case, there can be no dispute that Father lacks the ability to assume custody 

or financial responsibility for the child, as Father will not be released from jail for at least 

nine months.6There is also ample evidence that Father has failed to manifest the 

willingness to assume custody and financial responsibility for the child. Cf. In re Jaxx 

M., No. E2018-01041-COA-R3-PT, 2019 WL 1753054, at *8 (Tenn. Ct. App. Apr. 17, 

2019) (citing In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at 

*12 (Tenn. Ct. App. June 20, 2018); In re Ayden S., No. M2017-01185-COA-R3-PT, 

2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018)) (recognizing a dispute over 

what proof is required to meet this ground for termination, but avoiding the dispute by 

noting that the proof was sufficient under even the more stringent ground). Here, 

following the child’s birth Father has chosen to repeatedly engage in conduct that has 

resulted in his incarceration, removing him from this child’s life. Indeed, of the child’s 

nineteen months, Father was a part of her life for only one of those months. Moreover, 

Father has refused to maintain any contact with DCS regarding his daughter, fearing that 

to do so would place his liberty in jeopardy. Indeed, even when the child’s DCS case 

worker testified that Father once texted about obtaining pictures of the child, Father 

denied that he made even this modicum of effort because contacting DCS was “a way to 

get caught.” Thus, Father has not been willing to place the needs of his child ahead of his 

desire to escape justice. 

 

6 This release would be early and is contingent on Father completing a drug program.
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Father has also done little to show that he is ready to resume custody upon his 

release. Although Father testified that he had a house and cars, when asked what Father 

planned to do upon his release to ensure that his drug problem did not continue to ruin his 

life, Father had no concrete plan other than prayer and hope. As the trial court aptly 

concluded, “[t]he combination of long term substance abuse, inability to comport his

behavior to the law, and his inability to even handle his own important matters, 

demonstrate his failure to manifest an ability to assume custody of [the child].”

The evidence also clearly and convincingly supports the trial court’s finding that 

placing the child in Father’s “legal and physical custody would pose a risk of substantial 

harm to the physical or psychological welfare of the child.” Tenn. Code Ann. § 36-1-

113(g)(14). Here, Father and the child are essentially total strangers; the child was 

removed from Father’s care at the tender age of one month old, and Father has 

completely refused to make any effort to contact the child in the months following the 

removal. In a similar situation, this court affirmed a finding of substantial harm on the 

basis that removal from the child’s current family and placing the child with a nearstranger of a parent would cause the child emotional harm. State v. C.H.H., No. E2001-

02107-COA-R3-CV, 2002 WL 1021668, at *9 (Tenn. Ct. App. May 21, 2002). 

Moreover, little in the record suggests that Father has made meaningful progress in 

addressing his drug issues or the fact that he continues to engage in criminal activity. 

Father could not detail any concrete steps he had taken to prepare to parent his child. 

Thus, placing the child in Father’s care would likely result in future removal and 

upheaval. Cf. In re Morgan K., No. M2018-00040-COA-R3-PT, 2018 WL 5733291, at 

*13 (Tenn. Ct. App. Oct. 31, 2018) (affirming this ground on the basis that the parent’s 

“permanent stability is tenuous” and the parent had taken “essentially no steps to prepare 

himself to be able to support and care for a toddler”). As such, the trial court’s finding 

that clear and convincing evidence was presented to terminate Father’s parental rights 

under section 36-1-113(g)(14) is affirmed.

B. Best Interest

Having determined that at least one ground for termination is supported by clear 

and convincing evidence, we proceed to consider whether clear and convincing evidence 

supports the trial court’s determination that termination of Father’s parental rights is in 

the child’s best interests. “Upon establishment of a ground for termination, the interests 

of the child and parent diverge, and the court’s focus shifts to consider the child’s best 

interest.” In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). Even where a 

parent is unfit, termination may not necessarily be in the best interests of the child. Id. 

Tennessee’s termination statute lists the following factors to be used in the best 

interest analysis: 
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(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 effect 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;

(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, controlled substances or controlled substance 

analogues 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). 

The Tennessee Supreme Court has explained that: 

Facts considered in the best interests analysis must be proven by a 

preponderance of the evidence, not by clear and convincing evidence. After 

making the underlying factual findings, the trial court should then consider 

the combined weight of those facts to determine whether they amount to 

clear and convincing evidence that termination is in the child’s best 

interests. When considering these statutory factors, courts must remember 

that the child’s best interests are viewed from the child’s, rather than the 

parent’s, perspective. Indeed, a focus on the perspective of the child is the 

common theme evident in all of the statutory factors. When the best 

interests of the child and those of the adults are in conflict, such conflict 
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shall always be resolved to favor the rights and the best interests of the 

child. 

In re Gabriella D., 531 S.W.3d 662, 68182 (Tenn. 2017) (internal citations omitted). 

Furthermore, “[a]scertaining a child’s best interests does not call for a rote examination” 

of the statutory factors. In re Audrey S., 182 S.W.3d at 878. The analysis requires “more 

than tallying the number of statutory factors weighing in favor of or against termination.” 

In re Gabriella D., 531 S.W.3d at 682 (citing White v. Moody, 171 S.W.3d 187, 19394 

(Tenn. Ct. App. 2004)). “The facts and circumstances of each unique case dictate how 

weighty and relevant each statutory factor is in the context of the case,” and the analysis 

“must remain a factually intensive undertaking.” In re Gabriella D., 531 S.W.3d at 682. 

Thus, “[d]epending 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.” Id.

(citing In re Audrey S., 182 S.W.3d at 878). In undertaking this analysis, the court must 

examine all of the statutory factors, as well as other relevant proof put forth by the 

parties. Id. 

As to the first two factors, Father argues that he has made a lasting adjustment of 

circumstances to make it safe and in the child’s best interest to be in his home. See Tenn. 

Code Ann. § 36-1-113(i)(1) & (2). Respectfully, we cannot agree. Although Father did 

testify that he is participating in a drug program while incarcerated, he has yet to 

complete this program. Moreover, nothing in the record shows that Father has made any 

real progress leaving his life of crime. The only plan that Father could articulate for 

maintaining a drug-free lifestyle was based on prayer and hope, rather than concrete 

steps. 

Father takes issue with DCS’s failure to provide reasonable efforts to Father. The 

evidence shows, however, that Father generally avoided contact with DCS. Simply put, 

DCS cannot provide services to a parent that admits he purposefully avoided any contact 

with the agency. Indeed, while Father excused his failure to contact DCS while not 

incarcerated as a way to avoid future incarceration, Father offered no excuse for his 

failure to reach out during the many months that he was incarcerated. Simply put, Father 

has not shown that he has adjusted his me-first attitude in a way that makes returning the 

child to his care safe and in her best interest. These factors favor termination.

The evidence further shows that due to the removal of the child at such a young 

age and Father’s refusal and/or inability to maintain visitation with the child, the child 

has no relationship with Father, meaningful or otherwise. Tenn. Code Ann. § 36-1-

113(i)(3) & (4). Father attempts to minimize the evidence supporting these factors by 

pointing to evidence that he tried to seek photographs of the child while she was in DCS 

custody. This argument, however, ignores that Father outright denied that he would have 

taken such action, as maintaining contact with DCS could put him at risk of capture for 

his outstanding crimes. These factors strongly support termination.
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The child is bonded to her foster family, where her sibling also resides. In contrast, 

Father is a stranger to the child. Although no proof was specifically presented that a 

change in caretakers would be harmful to the child, common sense dictates that removing 

a child from the only family she has ever known and placing her with a stranger who has 

historically chosen to put his own desires ahead of the child’s needs would cause harm to 

the child. Tenn. Code Ann. § 36-1-113(i)(4); see also Dattel Family Ltd. P’ship v. Wintz, 

250 S.W.3d 883, 892 (Tenn. Ct. App. 2007) (“This Court . . . is not required to check 

common sense at the courthouse door.”). Again, this factor weighs heavily in favor 

termination.

Father does not address the remaining factors contained in section 36-1-113(i). 

Although there is no evidence that Father has shown brutality, abuse, or neglect toward 

the child or other members of the household, see Tenn. Code Ann. § 36-1-113(i)(6), 

Father’s admitted issues with illegal drugs and his failure to articulate a concrete plan for 

remaining sober following his incarceration leave this Court with substantial doubt that 

Father will be able to maintain sobriety and avoid criminal conduct in the future. See 

Tenn. Code Ann. § 36-1-113(i)(7). Other than Father’s drug issues, there was no 

evidence that Father’s mental or emotional state would be harmful to the child. Tenn. 

Code Ann. § 36-1-113(i)(8). There was also no evidence at trial as to whether Father paid 

support. Tenn. Code Ann. § 36-1-113(i)(9). 

On the whole, we conclude that the best interest factors clearly and convincingly 

support termination of Father’s parental rights. Father has voluntarily chosen to engage in 

activity that has made him a stranger to his child. His plan for the return of the child 

gives this Court little confidence that he is ready and able to parent his daughter. Father 

simply asks this Court to believe that although he chose to engage in repeated criminal 

conduct for essentially the entirety of this child’s life, he has now turned the corner and is 

able to parent his child when he is released from incarceration. Even if we were to credit 

Father’s optimistic outlook, Father could not begin to parent his child for at least another 

nine months. The child deserves permanence now with the family that has cared for the 

child and her sibling for essentially the child’s entire life. The trial court’s finding that 

termination is in the child’s best interest is therefore affirmed. 

V. CONCLUSION

The judgment of the Wilson County Juvenile Court is affirmed and this matter is 

remanded to the trial court for all further proceedings as are necessary and consistent with 

this Opinion. Costs of this appeal are taxed to Appellant Michael M., for which execution 

may issue, if necessary. 

_________________________________

J. STEVEN STAFFORD, JUDGE