IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 23, 2020 Session

IN RE: ISABELLA W.

Appeal from the Juvenile Court for Knox County

No. 147106 Timothy E. Irwin, Judge

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No. E2019-01346-COA-R3-PT

___________________________________

A father appeals the termination of his parental rights to his daughter, asserting that the 

evidence did not establish the three grounds upon which termination was based and that 

termination was in his child’s best interest. He also argues that he is entitled to a new 

trial due to ineffective assistance of his trial counsel, the denial of a continuance in order 

that he could represent himself, and that the court erred in not finding that he was

competent to stand trial. Upon our thorough review, we conclude that the father received 

fundamentally fair procedures; that he waived the issues related to the continuance and

his competence to participate in the trial; we reverse the court’s holding with respect to 

one ground, affirm the rest, and affirm the termination of his rights.

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

Part and Affirmed in Part; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court. D. MICHAEL SWINEY, C.J.,

filed an opinion concurring in part and dissenting in part, in which THOMAS R. FRIERSON,

II, J., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Aaron D. W.

Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Ridner, Assistant 

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

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Isabella W. was born to Kimberly (“Mother”) and Aaron W. (“Father”), in June 

2011. In April 2014, Father attacked Mother in the family’s home and was later 

convicted of aggravated assault and sentenced to eight years of incarceration. On April 

04/29/2020
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30, 2014, the Department of Children’s Services (“DCS” or “the Department”) filed a 

petition in Knox County Juvenile Court alleging that Isabella was dependent and 

neglected and at immediate risk of abuse or neglect if allowed to have contact with 

Father, and requesting an order restraining father’s contact with her; a restraining order 

was entered ex parte on May 1, and on August 26, after a hearing at which Father did not 

appear because of his incarceration, the court entered an order holding that Father would 

have no contact with Isabella and imposing requirements on both parents. Mother was 

required to ensure that Isabella had no contact with Father and to complete domestic

violence counseling. Father was required to undergo alcohol and drug and mental health 

assessments; participate in anger management and domestic violence counseling; abstain 

from drug use; resolve all legal issues and not incur any additional misdemeanor or 

felony criminal charges; and file a petition for supervised visitation in order for the court 

to consider any modification to the no-contact order. 

Isabella remained in Mother’s custody until Mother was arrested on September 1, 

2017, for possession of drug paraphernalia, possession of drugs, and being in possession 

of a stolen vehicle. Because Isabella was with Mother at the time of her arrest, the police

contacted DCS, whose representatives immediately filed a petition to have Isabella 

placed in protective custody and to have her adjudicated dependent and neglected. 

Isabella entered foster care that day, and a protective custody order was entered the 

following day, awarding DCS temporary legal custody of Isabella. A hearing was held 

on September 6 at which the court found probable cause that Isabella was dependent and 

neglected, and an adjudicatory hearing was held on October 18; both parents appeared at 

the adjudicatory hearing. The court entered an order following the hearing adjudicating 

Isabella to be dependent and neglected, finding that “Mother stipulates that she failed a 

drug screen and obtained criminal charges[; t]he father stipulates that there is a no contact 

order out of Knox [County].” The court also found that “based on an assessment of the 

family and the child[ren]’s circumstances, it was reasonable to make no effort to maintain 

the children in the home.”

Permanency plans were developed on September 20, 2017 and July 9, 2018; both 

were ratified by the court. The September 20 plan had dual goals of “return to parent” 

and “exit custody with relative.” The Statement of Responsibilities included 

requirements that Father “contact the Department and provide any and all documentation 

of anything completed or required to do from prior cases”; attend a parenting assessment 

and follow any recommendations; schedule and attend parenting classes; “obtain and 

maintain safe stable housing free from any illegal activity . . . document[ed] . . . in the 

form of rent receipts, lease, or mortgage receipts”; “obtain and maintain a legal source of 

income”; schedule and attend a mental health assessment, provide the assessor with a 

copy of the permanency plan, sign all releases, and follow any recommendations; remedy 

any legal issues, follow rules of parole, and not incur any new changes; “schedule and 

attend anger management classes in the event he has not already done so since the last 

episode with Kimberly”; schedule and attend an alcohol and drug assessment; “submit to 
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and pass random drug screens, provide the department with printouts of any prescribed 

medications, and pass all pill counts”; attend all scheduled appointments in order to 

remain responsive to Isabella’s well-being; “think about any and all friends and family 

who may be able to become a resource/team member to assist the family; and provide the 

Department with copies of a valid driver license, car insurance, and registration if 

transporting Isabella. The July 2018 plan retained the same requirements, and modified 

the goals to “return to parent” and “adoption.”

On December 20, 2018, the Department filed a petition to terminate Father’s 

parental rights to Isabella. As grounds, the petition alleged that Father had been 

incarcerated during a portion of the four months preceding the filing of the petition and, 

prior to his incarceration, had engaged in conduct exhibiting a wanton disregard for 

Isabella’s welfare; that he had failed to substantially comply with the responsibilities set 

forth in the permanency plans; and that he had failed to manifest an ability and 

willingness to personally assume legal and physical or financial responsibility of Isabella 

and placing her in his custody would pose a risk of substantial harm to her physical and 

psychological welfare. The petition also alleged that termination was in Isabella’s best 

interest. 

A trial was held on June 13, 2019 at which Mr. Chris Ramos, case worker for 

DCS, and Father testified. 

Mr. Ramos testified that he was Isabella’s foster care case manager and that she 

entered foster care in September 2017 after her mother was found to have been in 

possession of drug paraphernalia and a stolen vehicle and tested positive for drugs; that 

Isabella’s mother could not name other relatives who could take custody of Isabella; that 

a no contact order was in effect which prevented Father from being around Isabella due 

to Father’s assault of Mother in April 2014; that Father was sentenced to serve eight 

years of incarceration for his conviction of aggravated assault of Mother in 20141and 

was paroled in May 2016; that Father was “excited” about regaining contact with his 

daughter; that Father “continuously pushed me with regard to getting the certificates” of 

completion of courses Father had enrolled in while incarcerated to show what steps he 

had taken with regard to the permanency plan; that Father was arrested in November 

2017 for violating his parole by testing positive for methamphetamines; that Father was 

released on parole again in October 2018; that Father was reincarcerated for violating his 

parole by failing to report to his parole officer and not residing at the address he gave his 

parole officer; and Mr. Ramos agreed with the statement that “[d]espite the programs 

[Father] took before, he still continued to use drugs, he still continued to engage in 

 

1

In addition to Mr. Ramos’ testimony, the judgment was entered as an exhibit showing that Father pled 

guilty on June 30, 2014 to felony aggravated assault as a multiple offender and was sentenced to eight 

years in the Tennessee Department of Corrections.
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criminal activity.”

With respect to the permanency plan, Mr. Ramos testified that Father did not 

participate in the development of the plan but was later given a copy of the plan, and 

indicated he agreed with and signed it on October 18, 2017; and that the responsibilities 

of the plan were “for Father to provide [DCS] with documentation of legal stable income, 

legal stable housing, an A&D assessment, mental health assessment, to follow any and all

recommendations from those, to comply with random drug screens, parenting classes . . . 

[a] transportation plan, [and] to maintain contact with DCS.” He testified that Father 

“completed a GIRTH,

[2]

. . . an outpatient program, while he was in prison[; t]here’s 150 

hours total that was given to him during that program, . . . [including:] 60 hours of 

substance use, 32 hours of victim impact, 12 hours of anger management, 30 hours of

relapse prevention, 16 hours parenting skills, equaling to 150 hours total.” He testified 

that the court had found that Father was not in substantial compliance with the 

permanency plan3and further testified as follows:

Q. After that court finding, did the father ever ask you what he needed to do 

to get into compliance?

A. He asked me what is it that I need to do, and I said you need to complete 

the permanency plan, and he said, well, I’ve already completed most it 

because of the program that I was in. I said that’s not going to be enough, I 

need you to do -- and I listed everything else out again.

Q. Besides the one drug test when did you give that to him?

A. I believe it was the day of court. It was given to him 10-18-18.

Q. After that drug test, did you have an opportunity to drug test him again?

A. No.

Mr. Ramos also testified that Father provided documentation of the property taxes he had 

paid on the home Mother and Father owned, did not provide documentation of 

employment, but did provide documentation from several programs he completed while 

incarcerated prior to Isabella coming into protective custody.4 He also testified that in 

 

2 Exhibits entered at trial reflect that the program was titled “GRTH/Out-Patient.”

3 The Permanency Hearing Order, dated October 18, 2017, and entered as an exhibit at trial, states that the 

court found that Father was not in substantial compliance with the provisions of the permanency plan. 

4 Mr. Ramos testified that Father provided him with documentation of an October 2014 “Pro Social Life 

Skills Program,” a May 2016 “Eat Smart, Get Your Family to the Table Program,” two programs from 

August 2016-- Residential Drug Abuse Program and Spiritual Principles Program, and a “You Have the 

Power, Know How to Use It” victim impact program from August 2015, and anger management 

programs, for which no date was given. Later testimony and the certificates of completion entered into 

evidence show that almost all of the courses were completed before Isabella came into protective custody. 

Mr. Ramos also testified that Father participated in the following programs:
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October 2018, Father was in “constant communication” with him, but “towards the end 

of November 2018, maybe the first week of December 2018, that’s where we lost 

contact.” Mr. Ramos testified that he was not able to communicate with Father and did 

not know his whereabouts. He also gave the following testimony about their last 

interaction:

Q. . . .What else would you want him to do to address the parenting 

component of the permanency plan?

A. A parenting assessment. He has not seen this child, I believe, since she 

was around three years old.

Q. Have you scheduled such an assessment for him?

A. I asked him to let me him help him set up those assessments, parenting, 

A&D, get a parenting assessment done. I was sitting outside of his house 

when he asked me to come see his home to do a home check, and when I

came to the home, he reported that it still wasn’t ready, so we talked outside 

at the home about those things. I said let me know what you need me to 

help you do, I’m willing to help you do it all, but I just need to know which 

ones you want to start knocking out first.

He said, okay, let me get back to you, I’m in the middle of switching 

a job. And then at that point, that was when I went to his home, I believe 

that was late November, and I haven’t heard from him since.

Q. Late November of 2018?

A. This year -- 2018.

Q. So at that point in time you discussed with him but nothing was ever set 

up?

A. Correct.

Mr. Ramos testified that during that November 2018 interaction, he told Father that he 

needed to attend “six or eight weeks of domestic violence courses.” With respect to the 

condition of Father’s home, Mr. Ramos testified:

The whole house concerned me. There was no electricity on, no running 

water, is what he reported. The front door was standing wide open, there

 

FocusGroup Prison Ministries, Fatherhood and Character Building Initiative[, . . .] 

Financial Management, Responsible Thinking, Relapse Prevention, Inside Out Dads,

Character Group Study, Travelers Gift, Change Plan, Managing the Life, Personal 

Growth, Keys to Success, Speech Craft and Fitness for Life, and that was completed June 

5, 2015.

When Mr. Ramos was asked about Father’s parenting classes, after acknowledging that Father had 

“gotten 16 hours this time around with some additional classes that he did in 2015, ’16,” he stated that “I 

told [Father] that due to when the[se certificates of completion] were given to him and the date of when 

Bella entered custody, it was not going to be enough.”
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wasn’t a door -- well, there was a door, but it wasn’t attached correctly. 

There were wires laying around outside. The grass had grown so tall, it was 

probably to my knees at that point.

Mr. Ramos testified that Isabella “is in a Level 1 DCS home, she’s doing well, she 

loves gymnastics, she’s very much a studious child, she absolutely loves school, she does 

really, really well in school.” He also testified that she is one of the “spunkiest” kids he’d 

ever met and is “really quick witted.” He testified that she had been going to counseling 

and just started with a new therapist. With respect to Isabella’s current placement, which 

she has been in for more than a year, Mr. Ramos testified that she is in a two-parent foster 

home with one other child, whom Isabella “[g]ets along really well with”; that the foster 

parents “have a big house” and “are very active in the community,” and that Isabella 

“plays all types of sports.” He testified that the foster parents are willing to adopt 

Isabella if she were to become available for adoption.

Father testified that he pled guilty to aggravated assault and was sentenced to 

serve eight years.5Father testified that he underwent drug treatment while incarcerated in 

2015 and 2016 and then when he got out of prison on parole, he “went into a 90-day livein program” in August 2016 called the Spiritual Principles Program and “came to the 

court at that time and I brought all of my certificates and was trying to have the mother 

served so I could get my rights started back for visitation...” He also testified that he 

thought the certificates of completion were sufficient to get visitation started and that Mr. 

Ramos never told him specifically what additional things he needed to do. Father 

testified that when Isabella was taken into DCS custody that he “was willing to come in 

and do drug tests for them . . . , but . . . they were trying to make me go through all of this 

other stuff because of the fact that she had already been in the system for 30 days[.]” 

Exhibits entered at trial show that Father completed a program titled “Group Therapy for 

Substance Use Disorders (Intensive Outpatient)” on October 4, 2018, and on that same 

day, also completed the GRTH/Out-Patient program. Father testified that he was due to 

start another program the following month that was tailored to individuals who have a 

history of violence or domestic violence and involved 360 hours of training and 

education in subjects such as parenting, anger management, and victim impact.

With respect to the violations that resulted in the 2018 revocation of his parole, 

Father testified that “the only thing [he] was picked up for [was] failure to report,” not 

failure to reside at the address he had given his parole officer as Mr. Ramos had asserted. 

He testified that he would be “going up for parole in March of 2020,” but would “flatten 

 

5 The judgment entered as an exhibit for the aggravated assault states that Father was a multiple offender. 

Father testified that he had two prior felony convictions: gross negligent vehicular manslaughter in June 

2008 “along with a felony hit and run,” for which he served a year and a half in California, and “tak[ing] 

a vehicle without [the] owner’s consent” in March 2001. As these offenses were committed prior to the 

conception or birth of Isabella, we do not consider them in our analysis of the grounds for termination of 

Father’s parental rights; they are matters we consider in our review of the best interest factors. 
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[his sentence] in May of 2020 instead, and . . . I won’t have to answer to parole anymore. 

The only person I'll have to answer to then will be DCS if [Isabella] was still in their 

custody.” Father testified that he anticipated being released from incarceration in May or 

June 2020; that he could provide a stable home for Isabella within a six- to ten-month 

period of being released; that he was working during his parole in 2018 and had two jobs 

ready for him upon his release from incarceration; and that he was working to get his 

driver’s license back, which would require him paying $500. Father testified as follows 

regarding Mr. Ramos’ visit in November 2018 while Father was on parole: 

Q. When he came out, you stated he wasn’t in your house, but you testified 

that you were talking to him outside?

A. He stayed at the top of my driveway, sir.

Q. So he didn’t come on foot on the property?

A. No, he did not.

Q. Was that your choice or his choice?

A. He asked if he could do an inspection of the house at that time, which I 

had no visitation that was going on with my daughter at that time, so I 

kinda felt it was irrelevant, and being that I just got back to my house after 

being out of prison and people had destroyed my house while I was away, I 

chose not to let him come in my house and inspect it at that point because 

there really wasn’t no sense in it when I wasn’t even having no visitation 

with my daughter at that point.

Regarding his relationship with his daughter, Father testified that he loves Isabella, 

whom he called “[his] baby, . . . [his] only child,” that he has addressed his domestic 

violence issues by attending a class and had “never spanked my daughter, never put my 

hands on my daughter,” that Isabella still has memories of him, and that he could 

properly parent her. He also testified as follows:

I would like to state for the record, [Mother] did bring Bella to visit 

me in prison. [Mother] did let me talk to Bella the whole time I was in 

prison on the phone, and we communicated by letters. And I supplied every 

diaper, every bottle, and that was my baby. She knows who her daddy is. 

The last worker, whatever her name is, she personally told me, she brought 

a picture of her and me asking if she knew where her daddy was. So I think 

it’s really, it’s really – it’s cruel that they have been keeping us from each 

other all of this time when I’ve tried to do everything to uphold everything 

the court has asked of me.

The trial court entered an order on July 1, 2019, terminating Father’s rights on the 

grounds of abandonment by engaging in conduct exhibiting a wanton disregard for 

Isabella’s welfare, substantial noncompliance with the permanency plan, and failure to 

manifest an ability and willingness to assume custody and after determining that 
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terminating Father’s rights was in Isabella’s best interest.

Father appeals, challenging the grounds for termination and the best interest 

determination; in addition, he contends that he received ineffective assistance of counsel 

at the trial, that the court erred in denying him a continuance after notifying the court that 

he desired to represent himself, and that the court erred in not finding him to be 

incompetent at the time of trial due to not receiving his medication. 

II. STANDARD OF REVIEW

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

Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 

809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain 

circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of 

Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on 

termination of parental rights provide the only authority for a court to terminate a parent’s 

rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be 

terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-

113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 

620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one 

ground need be proved, so long as it is proved by clear and convincing evidence. In the 

Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

Because the decision to terminate parental rights affects fundamental 

constitutional rights and carries grave consequences, courts must apply a higher standard 

of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court 

may terminate a person’s parental rights only if (1) the existence of at least one statutory 

ground is proved by clear and convincing evidence and (2) it is shown, also by clear and

convincing evidence that termination of the parent’s rights is in the best interest of the 

child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09; 

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Tennessee law ensures fundamental 

fairness in termination proceedings by requiring a heightened standard of proof—clear 

and convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1); In re Carrington H., 

483 S.W.3d 507, 522 (Tenn. 2016). In light of the heightened standard of proof in these 

cases, a reviewing court must adapt the customary standard of review set forth by Tenn. 

R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the 

court’s findings of fact, our review is de novo with a presumption of correctness unless 

the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. 

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. Id. In this regard, clear and convincing evidence is 

“evidence in which there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence” and which “produces a firm belief or conviction in 
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the fact-finder’s mind regarding the truth of the facts sought to be established.” In re 

Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted). 

III. ANALYSIS

A. Preliminary Matters

Father argues that he should be given a new trial due to the ineffective assistance 

of counsel he received because he was “temporarily incompetent to stand trial” as a result 

of not taking his medication, and because he failed to receive a 90-day continuance after 

notifying the court of his desire to dismiss his attorney and defend himself pro se. We 

address these issues first. 

Father argues that he received ineffective assistance of counsel. In his brief, he 

states that “he was unable to reach his attorney by telephone and that the two never met 

to prepare prior to the termination hearing.” He does not cite to any portion of the record 

to support this statement; rather he references two pages in a document filed with this 

Court after the termination order was entered, styled “Appeal in regards to Terminating 

Parental Rights and Guardianship,” which this Court treated as his notice of appeal. On 

the cited pages, Father states that his attorney “never returned any of [Father’s] phone 

calls before [Father’s] incarceration or after [. . . and] had no contact with [Father] to 

prepare for the termination of parental rights hearing.” He concludes this document by 

stating that he was “complaining of ineffective assistance of counsel and prosecutorial 

misconduct . . . [which should] be enough reason for this appeal to be granted and 

effective counsel be given to Petitioner to stand his ground of appeal of termination of 

parental rights.”

The question of whether a parent whose parental rights are sought to be terminated 

has the constitutional right to the effective assistance of counsel was before our Supreme 

Court in In re Carrington H., 483 S.W.3d 507, 533-34 (Tenn. 2016) cert. denied sub. 

nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44 (2016). In declining 

to hold that there is such a right, the court considered the substantial safeguards inherent 

in the statutory and evidentiary standards applicable to termination of parental rights 

cases, and held that the gravity of the rights at issue and the higher standard of proof

entitle the parent to a procedure that is fundamentally fair, consistent with due process 

principles. Id. at 526-36. Consequently, the Court in that case analyzed the parent’s 

claim of ineffective assistance of counsel determining whether the actions of counsel 

prevented the parent from receiving a fundamentally fair proceeding; we shall do 

likewise. 

Shortly after the termination petition was filed, Father filed a pleading stating his 

objection to the termination proceedings and requesting counsel be appointed for him; in 
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accordance with Tennessee Code Annotated section 37-1-126(a)(2)(B)(ii), the court 

appointed counsel, who filed a response to the petition on Father’s behalf. In that 

response, in addition to the typed provisions drafted by the attorney, Father made 

handwritten notes further explaining his position with respect to the requirements of the 

permanency plan and his position that the DCS representative made inconsistent 

statements. It is readily apparent from the response that Father and his counsel had some 

contact, at a minimum by mail, prior to the hearing, such that Father was able to record 

his commentary on the response and sign it before counsel filed it with the court. 

Moreover, Father was present for the trial, and the transcript shows that he spoke out 

during the proceedings even when he was not on the witness stand and engaged in 

dialogue with the court.6 At no point did Father present any concerns he had about his 

attorney’s representation to the court. 

The record also shows that Father’s counsel engaged in thorough cross 

examination of the witnesses, objected to some questions asked by the other attorneys as 

well as to answers given by Mr. Ramos, conferenced with his client before concluding his 

cross examination, and asked questions that permitted Father to testify at length as to his 

position on Isabella’s best interest, his impressions of how DCS mishandled the case, and 

what steps Father had taken to address the requirements imposed on him during Isabella’s 

time in protective custody. We see no merit in Father’s contentions, as there is no 

evidence in the record to show that Father was denied a fundamentally fair proceeding

consistent with requirements of due process or that a failure to meet in person prevented 

his trial counsel from effectively advocating for him. 

With respect to Father’s contention that the trial court erred by not allowing him a 

90-day continuance to prepare for his own defense “after Appellant notified the court of 

his desire to dismiss his attorney and pursue a defense . . . pro se,” we quote the entirety 

of the argument in his appellate brief:

The Father further argues that after sending the Juvenile Court 

Clerk’s office a letter firing his counsel, the trial court should have granted 

the Father a ninety (90) day extension to allow the Father to represent 

himself in the proceeding. Yet the trial Court failed to even inquire as to 

whether the Father was satisfied with the services of his attorney. (TR, pp. 

49-50). For the reasons stated in Section IV [pertaining to his claims of 

ineffective assistance of counsel] above, the Father argues that this failure 

was a violation of his constitutional and statutory rights and that the Father 

should be awarded a new trial.

 

6

For example, after the proof was completed and the trial court had rendered an oral ruling, Father 

engaged the court in a colloquy about whether or not he would be permitted to have lunch before being 

transported back to prison.
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Father’s statement of this issue and his argument mischaracterize the record, 

which does not contain a letter dismissing his counsel. We have reviewed the transcript 

and it does not show that Father brought to the court’s attention that he had purportedly 

dismissed his attorney or that he wanted to proceed pro se. 

The order appointing counsel states that the attorney was appointed “[f]rom the 

filing of the termination of parental rights petition to the conclusion of trial”; the 

termination order relieves “[a]ll appointed attorneys . . . of further responsibility in this 

matter.” The record also contains a subsequent order, entered on July 31, appointing 

counsel to represent Father in this appeal. Father was represented throughout the hearing, 

and he never told the trial court that he wished to proceed pro se; the first such statement

is contained in a letter he wrote to this Court post-trial. From our review of the record, 

Father had effective representation at all times; he has failed to show any prejudice by 

being unrepresented during the brief period between the conclusion of the trial and the 

appointment of counsel for this appeal. The record makes clear that Father did not raise 

any issue in the trial court with respect to a continuance, a matter that would have been 

within the trial court’s sound discretion. State Dep’t of Children’s Servs. v. V.N., 279 

S.W.3d 306, 317 (Tenn. Ct. App. 2008). Issues not raised in the trial court are waived on 

appeal. Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996) (“Under Tennessee law, 

issues raised for the first time on appeal are waived.”).

Father next argues that his due process rights were violated when he was “denied 

his medications Seroquel and Effexor,” “without [which], he would have been 

temporarily unable to function in a manner consistent with the ability to properly defend 

himself.” Father contends that “[b]y failing to inquire as to the Father’s prescribed

medications and whether he was being dispensed such medication the trial court failed to

protect the Father’s due process rights as required.” There is no evidence in the record 

that Father ever presented to the trial court his need for his medication or his asserted 

incompetence to participate in the trial if he did not take it; the first reference touching on 

this matter is in the July 20 letter to this court initiating the appeal. Again, issues not 

raised in the trial court are waived on appeal. Black, 938 S.W.2d at 403. 

B. Grounds for Termination

1. Abandonment by Engaging in Conduct that Exhibits Wanton 

Disregard

Tennessee Code Annotated section 36-1-113(g)(1) provides that abandonment of 

the child by the parent, as defined in section 36-1-102, is a ground for termination; in 

turn, section 36-1-102(1)(A)(iv) defines abandonment, in pertinent part, 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 
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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. 

(Emphasis added.) This Court stated in In re Audrey S.:

[The above statutory definition] 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. Incarceration severely 

compromises a parent’s ability to perform his or her parental duties. 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. However, parental incarceration is not an infallible predictor of 

parental unfitness. . . the parent’s 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.

182 S.W.3d 838, 866 (Tenn. Ct. App. 2005). The termination petition was filed on 

December 20, 2018, and it is undisputed that Father was incarcerated from November 

2017 until October 2018 and from November 2018 through the time of the trial. 

 

As to this ground, the trial court found:

Respondent has engaged in conduct that exhibits a wanton disregard for the 

child’s welfare by: engaging in parole violations; substance abuse, 

including methamphetamine use; failure to provide appropriate care and

support for the child; engaging in criminal activity including the aggravated 

assault of this child’s mother. Respondent was drug tested on November 2, 

2017, while on parole, and was positive for methamphetamine. Respondent 

was arrested for violating the terms of his parole on November 27, 2017, 

and was returned to prison for his use of methamphetamine. Respondent 

remained incarcerated until he was released on parole again on October 12, 

2018. Respondent was subsequently arrested for violating the terms of his 

parole again by failing to report and by failing to reside at the address he 

had reported to his parole officer.
- 13 -

Father does not argue that the evidence preponderates against these findings, and from 

our review of the record, we conclude that they are supported by a preponderance of the 

evidence.

7

 

Father argues that “his actions did not rise to a level of ‘wanton disregard’ as 

defined by statute and as interpreted by this Court.” He cites his completion of a program 

in October 2018 that included sixty hours of substance abuse education and thirty hours 

of relapse prevention and that he would be attending an additional class that required 360 

hours of training and education in subjects such as parenting, anger management, and 

victim impact to show that he has not, in fact, abandoned Isabella within the meaning of 

the statute. 

Father’s arguments and the evidence he cites focus on his behavior and steps taken 

while incarcerated; this ground for termination, however, focuses on Father’s behavior 

prior to incarceration and seeks to determine whether a there is a pattern of conduct 

shown that exhibits a disregard for Isabella’s welfare. In this regard, the evidence shows 

that the conduct resulting in his 2014 incarceration was that he pushed Isabella’s mother 

to the ground, threatened to kill her, attempted to strangle her, and held a pocket knife 

against her neck in their home where Isabella resided. Despite completing many hours of 

substance abuse education while incarcerated in 2014 and 2015, Father continued to use 

drugs once paroled in 2017, specifically methamphetamine, resulting in a positive drug 

screen that caused him to be reincarcerated. While on parole again in 2018, Father failed 

to comply with the terms of his parole and was again reincarcerated. Father’s actions 

when not incarcerated clearly show a pattern of criminal and reckless conduct and a 

disregard for the effect his behavior may have on Isabella’s well-being; it exhibits a 

“broader pattern of conduct that renders the parent unfit or poses a risk of substantial 

harm to the welfare of the child.” In re Audrey S., 182 S.W.3d at 866. The evidence is 

clear and convincing that Father abandoned Isabella by engaging in conduct that exhibits 

a wanton disregard for her welfare within the meaning of section 36-1-102(1)(A)(iv), and 

affirm the holding of the trial court in that regard.

2. Substantial Noncompliance with the Permanency Plans

The statute setting forth the ground of “substantial noncompliance” reads: “There 

has been substantial noncompliance by the parent or guardian with the statement of 

responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.” Tenn. Code.

 

7

Father and Mr. Ramos gave conflicting testimony as to the circumstances of his 2018 parole violation; 

Father insisted at trial there was no evidence that he was not residing at the correct address and that he 

was not reincarcerated on that basis. While the evidence conflicts as to whether there were two violations 

or one that caused him to be arrested, the result is the same: Father was reincarcerated for failing to 

comply with the terms of his parole. Elsewhere in the order, the trial court only refers to Father’s failure 

to report as the cause of his 2018 parole violation and reincarceration.
- 14 -

Ann. § 36-1-113(g)(2). In In re C.M., this Court said that, DCS must show the following

to prove this ground: 

[T]hat the permanency plan includes a “statement of responsibilities” that 

“clearly communicate[s] to the parent: ‘this is what you must do to regain 

custody of your child.’” . . . DCS must also show that the permanency 

plan’s requirements are “reasonable and related to remedying the conditions 

that caused the child to be removed from the parent’s custody in the first 

place.” . . . Further, DCS must demonstrate 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.” 

No. E2018-02108-COA-R3-PT, 2019 WL 3812421, at *4-5 (Tenn. Ct. App. Aug. 14, 

2019) (internal citations omitted). We have held that the noncompliance with the

permanency plan does not have to be willful to support the termination of the parent’s 

rights. In re Joseph L., No. M2011-02058-COA-R3-PT, 2012 WL 2389609, at *9 (Tenn. 

Ct. App. June 25, 2012).

With respect to the whether the requirements of the plan are reasonable and related 

to remedying the conditions that caused the child to be placed in protective custody, 

Father argues on appeal that “the no contact order between him and the Child was the 

only impediment to the Father obtaining custody of the Child.” The no contact order was 

put in place during the 2014 dependency and neglect proceedings and remained in effect 

through the time of the termination hearing because Father had not petitioned to have it 

removed.8 Moreover, the no contact order was referenced in the permanency plans, and 

 

8 Mr. Ramos testified as follows:

Q. I’m looking at the final order that was entered by this court, Magistrate 

Joseph. It was a hearing on July 29, 2014, it was entered August 26, 2014. It’s a previous 

D&N case concerning domestic violence in the home. In that order it says that he must 

complete certain requirements in order to modify the no contact order?

A. Correct.

Q. Those include A&D assessment, mental health assessment, anger management 

counseling, domestic violence counseling, abstain from drug use, resolve legal issues and 

not incur any additional misdemeanor or criminal charges, and he shall file a petition 

with the court to modify?

A. Correct.

Q. Are you aware of the father ever filing a petition with the court to modify that 

no contact order?

A. No.

Q. In fact, he did not abstain from drug use because he was using 

methamphetamine three years later?

A. Right.

Q. And he has not resolved his legal issues; in fact, he’s still in prison today?

A. Correct.
- 15 -

many of the requirements to have the no contact order lifted and the obligations of the 

permanency plan were the same, including the need for alcohol and drug assessment and 

a mental health assessment. The permanency plans included the additional requirements 

that Father attend a parenting assessment, as well as parenting classes, that he obtain and 

maintain safe and stable housing, follow the rules of parole, and not incur any new 

charges. These conditions address the fact that Father had not been around Isabella in 

nearly five years and that he would eventually need to provide a safe and stable home for 

her. We conclude, as did the trial court, that the requirements of the permanency plan are 

reasonable and related to remedying the conditions that caused Isabella to come into 

custody. 

As to the second element, while the evidence shows that Father participated in and 

completed several programs while he was incarcerated prior to Isabella coming into DCS 

custody, it also shows that he was arrested and reincarcerated due to a positive drug 

screen for methamphetamine while on parole, despite having completed these programs.

9

Father completed another program in October 2018 entailing 60 hours of substance use, 

32 hours of victim impact, 12 hours of anger management, 30 hours of relapse 

prevention, and 16 hours of parenting skills; he also completed “Group Therapy for 

Substance Use Disorders (Intensive Outpatient)” in October 2018. While participation in 

those classes is evidence of positive progress with the requirements of the permanency 

 

Q. The other requirements are basically the same thing that was on the 

permanency plan, correct?

A. Correct.

9 The unrebutted testimony of Mr. Ramos supports the finding of the trial court that:

Respondent and DCS were able to make contact after respondent’s release. DCS made 

reasonable efforts to assist Respondent to complete his requirements under the plan. DCS 

referred or otherwise provided opportunities for the following: alcohol and drug 

assessment, mental health assessment, parenting assessment, ongoing case management, 

and appropriate care and supervision of the child. The DCS case manager explained to 

Respondent that he would need to complete the items on the permanency plan again since 

additional concerns arose after he completed those classes in prison; specifically, he 

relapsed into using methamphetamine, demonstrated poor parenting skills by violating 

his parole and had not addressed potential mental health needs. Respondent did not 

complete the requirements under the plan.

***

DCS was able to confirm that Respondent did participate in a variety of programs while 

he was in prison. The Court received in evidence copies of the certificates of completion 

for said programs. Respondent, however, has not demonstrated that he has learned any 

new behaviors or skills in these programs. Respondent continued to use drugs while out 

on parole[.]

(Emphasis added.)
- 16 -

plans, Father was required to complete more than just the drug abuse assessment and 

follow-up education; he also needed to complete a mental health assessment and a 

parenting assessment. Mr. Ramos testified that he told Father he was “willing to help 

[him] do it all, but [he] just needed to know which ones [Father] wanted to start knocking 

out first”; that Father told him that he was in the middle of starting a new job and would 

get back to Mr. Ramos; and that he did not hear from Father again. 

Notwithstanding the courses Father completed while incarcerated, he lacked 

completing a mental health assessment and a parenting assessment, as well as 

maintaining safe and stable housing. The failure to comply with these provisions, each of 

which was particularly important in light of the circumstances that prevented Isabella 

from being placed in his custody in the first place, render Father’s noncompliance 

substantial. See In re C. M., 2019 WL 3812421, at *4-5. We therefore affirm the trial 

court’s holding that this ground was established by clear and convincing evidence. 

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

Tennessee Code Annotated section 36-1-113(g)(14) provides that a parent’s rights 

may be terminated where:

[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[.]

This ground requires the party seeking termination of a parent’s rights to prove two 

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

First, the party must prove that the parent failed to manifest “an ability and willingness to 

personally assume legal and physical custody or financial responsibility of the 

child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). Second, the party must 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].” Tenn. Code 

Ann. § 36-1-113(g)(14). 

The manner in which the statute is to be interpreted in establishing the first 

element of this ground has generated a lack of consensus within this Court, as noted in 

the case of In re Zaylee W.: 

There is a split in authority regarding the proof required to establish 

the first prong of the analysis. In In re Amynn K., No. E2017-01866-COAR3-PT, 2018 WL 3058280, at *12-15 (Tenn. Ct. App. June 20, 2018), a 

panel of this Court addressed the first prong by engaging in a complicated 
- 17 -

use of statutory construction and grammar rules to essentially conclude that 

the General Assembly’s use of “and” in the phrase “an ability and 

willingness” actually means “or.” Some panels of this Court have followed 

the decision in In re Amynn K. and concluded that a party is not required to 

prove a failure to manifest both a willingness and an ability to assume 

responsibility of the child. See In re Jayda H., No. E2019-00855-COA-R3-

PT, 2019 WL 6320503, at *9 (Tenn. Ct. App. Nov. 25, 2019) (stating that 

“consistent with the discussion in the In re Amynn K. decision, we do not 

view a parent’s demonstration of ‘willingness’ as fatal to this ground when 

accompanied by a failure to manifest the requisite ‘ability’ ”); see also In re 

Nevaeh B., No. E2019-01539-COA-R3-PT, 2020 WL 1527001, at *10-12 

(Tenn. Ct. App. Mar. 26, 2020); In re Serenity S., No. E2019-00277-COAR3-PT, 2020 WL 522439, at *16 (Tenn. Ct. App. Jan. 31, 2020).

In In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 

2447044, at *7 (Tenn. Ct. App. May 31, 2018), a panel of this Court 

interpreted “and” as requiring a party to prove that a parent failed to 

manifest both an ability and a willingness. Under this interpretation, if a 

party proves only the “ability” criterion or the “willingness” criterion, the 

requirements of the statute are not met, and this ground may not serve as a 

basis for terminating parental rights. Id. We believe the interpretation found 

in In re Ayden S. is more consistent with the intent of the General 

Assembly.

Applying the interpretation in In re Ayden S., Petitioner must prove 

by clear and convincing evidence that Father failed to manifest both an 

ability and willingness to personally assume legal and physical custody of 

the child or that he failed to manifest an ability and willingness to 

personally assume financial responsibility for the child. When evaluating 

ability, we focus “on the parent’s lifestyle and circumstances.” Id. “When 

evaluating willingness, we look for more than mere words.” Id. Rather, a 

parent must have demonstrated willingness “by attempting to overcome the 

obstacles that prevent them from assuming custody or financial 

responsibility for the child.” Id.

No. M2019-00342-COA-R3-PT, 2020 WL 1808614, at *5 (Tenn. Ct. App. Apr. 9, 2020). 

In light of the number of cases in which this ground has been pled since the statute was 

enacted in 2016, as noted by the separate opinion filed herewith, we believe this is an 

appropriate issue for our Supreme Court to give guidance. 

Applying the framework set forth in In re Ayden S., we examine the record for 

evidence that Father manifested both an ability and willingness to personally assume 

legal and physical custody of Isabella. 
- 18 -

With respect to this ground, the trial court held:

In this case, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-

2-403(a)(2), the Court finds that there is clear and convincing evidence that 

Respondent has failed to manifest, by act or omission, an ability and 

willingness to assume legal and physical custody of the child. Respondent 

is still incarcerated due to his multiple parole violations for 

methamphetamine use and failure to report appropriately to parole. 

Respondent currently resides in a Tennessee Department of Corrections 

penitentiary and will not be released, due to his decision to deny parole, for 

approximately eleven months. Respondent testified that he would need an 

additional six to ten months after his release from prison to get himself in a 

position where he could take custody of his daughter. There is still a no 

contact order in place prohibiting all contact between the child and

Respondent. Placing the child in Respondent’s legal and physical custody 

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

welfare of the child.

To support his position that he has the ability and willingness to assume custody, 

Father cites to his testimony that he expects to be released from prison in June 2020 and 

would be able to care for Isabella within six to ten months of his release; that he has a job 

lined up with a moving company when he is released from prison; and that he has never 

spanked his child and could properly parent her. 

Father does not have the present ability to assume custody of Isabella due to his 

incarceration; his testimony also makes clear that Father would not have for at least six 

months following his release date the ability to take physical custody of her. However, a 

closer question is presented on his willingness to assume custody. The testimony shows 

that, while on parole, Father contacted DCS to request a home visit to determine if his 

home was appropriate and also that he was willing to take custody of Isabella in the 

future. Mr. Ramos testified that Father was cooperative with him and, but for his current 

incarceration, wanted to get custody of Isabella. Father’s behavior shows that he 

attempted to overcome one of the obstacles that prevented him from assuming custody; 

nevertheless, while on parole at two different times, he engaged in conduct that violated 

his parole, and as a result he was reincarcerated. As being incarcerated was one of the 

impediments to having custody of Isabella, his failure to abide by the terms of his parole 

is evidence of a lack of willingness to assume custody of her. Taking all these matters 

into consideration, we conclude that the record contains evidence of Father’s willingness 

to assume custody of Isabella. Given the need to prove, by clear and convincing 

evidence, that Father had failed to manifest both an ability and a willingness to assume 
- 19 -

custody, DCS failed to prove this ground by clear and convincing evidence.10 

Having concluded that two grounds for termination of Father’s rights were proven 

by clear and convincing evidence, we turn to the question of whether termination was in 

Isabella’s best interest.

C. Best Interest

Once a ground for termination has been proven by clear and convincing evidence, 

the trial court must determine whether it is in the best interest of the child for the parent’s 

rights to be terminated, again using the clear and convincing evidence standard. In re 

Valentine, 79 S.W.3d at 546. The Legislature has set out a list of factors at Tennessee 

Code Annotated section 36-1-113(i) for the courts to follow in determining the child’s 

best interest.11 The list of factors in the statute “is not exhaustive, and the statute does not 

 

10 While we have found that the first prong of this ground was not proven, we have reviewed the evidence 

relative to the second prong; in so doing, we are guided by the holding in Ray v. Ray: 

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.

83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted). This Court has determined that “placing 

a child with a parent who ha[s] knowingly engaged ‘in repeated criminal conduct that necessitated [the 

parent’s] re-incarceration’ would place the child at risk of physical or psychological harm.” In re Amynn 

K., 2018 WL 3058280, at *15 (citing In re Ke’Andre C., No. M2017-01361-COA-R3-PT, 2018 WL 

587966, at *11 (Tenn. Ct. App. Jan. 29, 2018), no perm. app. filed). The evidence presented by DCS 

showed that, over the course of Isabella’s 21 months in DCS custody, Father was reincarcerated twice for 

parole violations. Additionally, the unrebutted testimony of Mr. Ramos was that Father’s home, as it 

stood at the time Father was on parole, was not safe or suitable for housing a child. We thus conclude 

that there is clear and convincing evidence that placing Isabella in Father’s custody would pose a risk of 

substantial harm to her physical and psychological welfare.

11 The factors at Tennessee Code Annotated section 36-1-113(i) are:

In determining whether termination of parental or guardianship rights is in the best 

interest of the child pursuant to this part, the court shall consider, but is 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 effect a lasting adjustment after 

reasonable efforts by available social services agencies for such duration of time 
- 20 -

require every factor to appear before a court can find that termination is in a child’s best 

interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing Tenn. Dept. of 

Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3 

(Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL 

3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue we are also 

mindful of the following instruction in White v. Moody: 

[A]scertaining a child’s best interests in a termination proceeding is a factintensive inquiry requiring the courts to weigh the evidence regarding the 

statutory factors, as well as any other relevant factors, to determine whether 

irrevocably severing the relationship between the parent and the child is in 

the child’s best interests. The child’s best interests must be viewed from 

the child’s, rather than the parent’s, perspective. 

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).

The Tennessee Supreme Court has explained:

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

preponderance of the evidence, not by clear and convincing evidence.” In 

re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at 

861). “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 

 

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.
- 21 -

best interest[s].” Id. When considering these statutory factors, courts must 

remember that “[t]he child’s best interests [are] viewed from the child’s, 

rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. 

Indeed, “[a] focus on the perspective of the child is the common theme”

evident in all of the statutory factors. Id. “[W]hen the best interests of the 

child and those of the adults are in conflict, such conflict shall always be 

resolved to favor the rights and the best interests of the child....” Tenn. 

Code Ann. § 36-1-101(d) (2017).

In re Gabriella D., 531 S.W.3d 662, 681–82 (Tenn. 2017).

The trial court made the following findings in considering Isabella’s best interests, 

which relate to statutory factors (1), (2), (3), (4), (5), (7), and (9), and which we have 

identified accordingly:

[(1)] Respondent has not made changes in his conduct or circumstances that 

would make it safe for the child to go home. Respondent is still 

incarcerated. When Respondent did have the opportunity to be out on 

parole and in the community, he still chose to use methamphetamine and 

violate the terms of his parole by failing to report.

[(2)] Respondent has not made lasting changes in his lifestyle or conduct 

after reasonable efforts by the state to help, so that lasting change does not 

appear possible. Despite help from the state like referring or otherwise 

providing opportunities for the following: alcohol and drug assessment, 

mental health assessment, parenting assessment, ongoing case management, 

and appropriate care and supervision of the child, for twenty-one months, 

he still has not demonstrated sobriety when not incarcerated, has not 

demonstrated good parenting skills and is incarcerated.

[(3)] Respondent has not maintained regular visitation with the child.

[(4)] There is no meaningful relationship between the child and 

Respondent. 

[(5)] Changing caregivers at this stage of the child’s life will have a 

detrimental effect on her. The child has made tremendous progress in her 

placement and would be devastated if removed from that environment in 

which she is thriving.

[(7)] There is crime in Respondent’s home.

[(7)] Respondent has abused methamphetamine, rendering him consistently 

unable to care for the child in a safe and stable manner 

[(9)] Respondent has not paid child support consistently.

[(5)] The child has established a strong bond with her foster parents, who 

wish to adopt her.

Father takes issues with many statements the court made in the course of its oral 
- 22 -

ruling; a court speaks through its orders, however, and not through oral statements that 

are not incorporated into an order. In re Navada N., 498 S.W.3d 579, 594 (Tenn. Ct. App. 

2016). The comments made by the court during its oral ruling and referenced in Father’s 

brief are not part of the order, as the trial court did not incorporate its oral ruling into the 

final order. We have reviewed the entire record, giving careful consideration to all of the 

testimony cited by Father in his brief; we conclude that the record does not preponderate 

against the findings of the trial court quoted above, with two exceptions. Although there 

is testimony about the deplorable appearance of the exterior of Father’s home, there is no 

proof that criminal activity took place in the home; also, there is no proof of whether 

Father paid child support.

While Father attempted at trial and again on appeal to shift much of the 

responsibility of reunifying him with Isabella to the Department, the evidence shows 

clearly that he would not be ready to parent her until an uncertain time in the future. 

Father has not parented Isabella since 2014, when he was placed under the no contact 

order; he has been in and out of incarceration since that time. During the times he has 

been on parole, he did not petition to have the no contact order lifted or visitation 

reinstated; there is no evidence that he has established a meaningful relationship with her. 

Meanwhile, Isabella has been placed in a stable home with a family who would like to 

adopt her should she become available. She is doing well physically, academically, and 

socially. The findings are supported by the evidence and, viewed from Isabella’s 

perspective, amount to clear and convincing evidence that termination of Father’s rights 

is in her best interest. 

IV. CONCLUSION

For the foregoing reasons, we reverse the trial court’s holding that clear and 

convincing evidence established the ground of failure to manifest an ability and 

willingness to assume custody of Isabella; in all other respects, the judgment is affirmed. 

_________________________________

RICHARD H. DINKINS, JUDGE