IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 21, 2018 Session

IN RE AMYNN K.

Appeal from the Juvenile Court for Hamilton County

No. 273258 Robert D. Philyaw, Judge

___________________________________

No. E2017-01866-COA-R3-PT

___________________________________

This is a termination of parental rights case involving the parental rights of the father, 

William K. (“Father”), to his minor child, Amynn K. (“the Child”), who was four years 

of age at the time of trial. The Child was born in 2013 to Father and Amanda S.

(“Mother”). In April 2013, the Hamilton County Juvenile Court (“trial court”) granted 

temporary legal custody of the Child to the Tennessee Department of Children’s Services 

(“DCS”). The Child was immediately placed in foster care, where he has remained since 

that date. Following a hearing, the trial court entered an order on June 24, 2013, 

adjudicating the Child dependent and neglected due to Mother’s abandonment of the 

Child at the hospital following his birth. On August 23, 2016, DCS filed a petition to 

terminate the parental rights of Mother and Father. Following a bench trial, the trial court 

terminated Father’s parental rights to the Child upon determining by clear and convincing 

evidence that Father had (1) abandoned the Child through conduct exhibiting wanton 

disregard for the welfare of the Child prior to Father’s incarceration, (2) failed to 

substantially comply with the requirements of the permanency plans, and (3) failed to 

manifest an ability and willingness to personally assume custody of and financial 

responsibility for the Child. The court also found clear and convincing evidence that 

termination of Father’s parental rights was in the best interest of the Child. Father has 

appealed.1 Discerning no reversible error, we affirm.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.

 

1 The trial court also terminated Mother’s parental rights to the Child. Mother did not appeal the decision 

of the trial court and is not participating in this appeal. We will therefore confine our analysis to those 

facts relevant to Father.

06/20/2018
- 2 -

Emily Brenyas, Chattanooga, Tennessee, for the appellant, William K.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant 

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

Cara Welsh, Chattanooga, Tennessee, Guardian Ad Litem.2

OPINION

I. Factual and Procedural Background

On August 23, 2016, DCS filed a petition seeking to terminate Mother’s and 

Father’s parental rights to the Child. The Child had been taken into protective custody by 

DCS in April 2013, when he was two days old, at the hospital where he was born. 

According to the trial court’s factual findings in the dependency and neglect adjudicatory 

hearing order, Mother expressed a desire upon the Child’s birth to place him for adoption. 

Although Mother briefly changed her mind, she decided by the time of removal that she 

was not able to care for the Child. Father came to the hospital when the Child was born

but was escorted from the property by hospital security because, according to Father,

Mother had stated that she did not want him to be present. Following the Child’s birth, 

Mother declared that Father was the biological father of the Child. However, Father’s 

name does not appear on the birth certificate, and Father did not sign a Voluntary 

Acknowledgment of Paternity. When the Child was four days old, he was placed with 

the foster parents, with whom he remained at the time of trial. 

As part of a dependency and neglect action filed by DCS in the trial court, Father 

and Mother appeared during a preliminary hearing conducted on May 8, 2013, and an 

adjudicatory hearing conducted on June 24, 2013. Throughout those proceedings, 

Mother maintained that she did not wish to have visitation with the Child, and the trial 

court adjudicated the Child dependent and neglected based on Mother’s abandonment. 

Father had first expressed a desire to obtain custody of the Child when he participated via 

telephone in a child and family team meeting conducted by DCS nearly two weeks 

following the Child’s birth, and he continued to express this desire during the dependency 

and neglect proceedings. Following the adjudicatory hearing, the trial court scheduled a 

hearing to begin the process of establishing Father’s legal paternity.

 

2 Ms. Welsh participated in oral arguments but did not file a brief in this matter. Therefore, any issues 

raised by Ms. Welsh in oral argument that were not otherwise raised by the parties are not properly before 

this Court. 
- 3 -

While the Child was in DCS custody, Father entered into four permanency plans 

with DCS. The first plan was developed on April 23, 2013; ratified by the trial court on 

July 31, 2013; and presented as an exhibit during the termination trial. As to Father, this 

plan set forth the following responsibilities, which were approved by the trial court as 

reasonably related to remedying the conditions which necessitated foster care: (1) Father

would submit to a DNA test to determine whether he was the biological father of the 

Child; (2) if the DNA test proved that Father was the biological father of the Child, he 

would file a petition for custody of the Child; (3) Father would obtain and maintain stable 

housing and legal, verifiable income; (4) Father would sign releases to allow DCS to 

obtain information; (5) Father would maintain contact with DCS; and (6) Father would

pay child support. It is undisputed that DCS provided Father with a copy of the Criteria 

and Procedures for Termination of Parental Rights and that he acknowledged his receipt 

of the form through his signature. A DCS Family Services Worker also signed the form,

acknowledging that she had explained the contents of the document to Father. 

Father subsequently submitted to DNA testing, the results of which were not yet 

complete when he participated in the development of a second permanency plan with 

DCS. The second permanency plan was developed during a child and family team 

meeting held on September 17, 2013. The plan was approved by the trial court on 

October 23, 2013, and presented as an exhibit during the termination trial. The second 

permanency plan repeated Father’s responsibilities from the first plan of establishing 

paternity, filing for custody, establishing and maintaining stable housing and verifiable 

income, signing releases for DCS, maintaining contact with DCS, and paying child 

support. It also set forth the following additional responsibilities, again approved by the 

trial court as reasonably related to remedying the conditions necessitating foster care: 

Father would (1) complete a mental health assessment and follow all recommendations 

therefrom, (2) complete an alcohol and drug assessment and follow all resultant 

recommendations, (3) complete parenting classes, and (4) submit to random drug screens. 

The record reflects that DNA testing ultimately demonstrated that Father was the 

biological father of the Child. Based on the DNA test results, Father was declared to be 

the biological and legal father of the Child by the Hamilton County child support court on 

September 23, 2013. At that time, the child support court set Father’s initial child 

support obligation at $259.00 monthly but subsequently modified that amount to $124.00 

monthly in October 2014.

Following a permanency hearing conducted on July 9, 2014, the trial court found 

that Father was “in substantial compliance” with the second permanency plan. However, 

the court found that remaining barriers to Father’s reunification with the Child included 

“developing a support system to care for the child when he was at work” and “addressing 

safety concerns at his home to make it safe for the child to be placed there.” At the time, 

Father resided in Montgomery County.
- 4 -

During a review hearing conducted on October 15, 2014, DCS reported that Father 

had completed a clinical parenting assessment and an alcohol and drug assessment and 

that he was enjoying unsupervised visitation with the Child. Although the 

recommendations of the parenting assessment included anger management classes, DCS 

also announced that Father would soon be able to begin overnight visitation with the 

Child. However, following an unannounced home visit conducted by former DCS family 

services worker Kalia Williams in November 2014, new concerns arose regarding 

environmental conditions in Father’s home and the presence of Father’s mother 

(“Paternal Grandmother”) and sister-in-law, both of whom Montgomery County DCS 

had previously indicated “for issues related to sexual exploitation of minor children.” 

Father testified during trial that Paternal Grandmother had vacated Father’s home 

following this home visit. Notwithstanding, DCS alleged and the trial court found that 

Paternal Grandmother kept a key and “appeared to have unfettered access to [Father’s] 

home.” Upon DCS’s motion, the trial court entered an order directing that Father’s 

unsupervised overnight visits would take place in Hamilton County, where the Child 

remained in foster care, rather than in Montgomery County where Father resided.

DCS subsequently developed a third permanency plan with Father’s participation 

on February 20, 2015. The third plan was approved by the trial court on May 20, 2015, 

and was presented as an exhibit during the termination trial. This plan required Father to 

comply with the aforementioned requirements from the previous permanency plan and 

included an additional responsibility that Father would participate in anger management 

classes as recommended by his clinical assessment, which responsibility was found by 

the trial court to be reasonably related to remedying the conditions necessitating foster 

care.

DCS does not dispute Father’s assertion that he completed the requirements for 

anger management classes, parenting education classes, and random drug screens. 

Although Father’s tobacco use and the resulting environmental issue of cigarette butts 

and cigar tips in the home and yard appear to have been concerns, the only allegation of 

drug abuse against Father originated with Mother when the Child was first placed in 

custody. DCS acknowledged that this allegation was ultimately unsubstantiated. 

However, during a home visit to Father’s residence on September 17, 2015, Ms. Williams 

observed additional environmental concerns, testifying during trial that the home was not 

a safe and appropriate environment for the child at that time. According to the trial 

court’s order, Ms. Williams testified that she personally observed during this visit:

a refrigerator on the porch, a padlock on the front door, safety issues related 

to a hole or gap at the front porch entrance, the flooring needed to be 

repaired, the home was cluttered with big totes stacked on top of one 

another, including tools, and the bathroom floor was unfinished.
- 5 -

Father enjoyed what would be his only unsupervised overnight visit with the Child 

on October 19 and 20, 2015. As Father acknowledges on appeal, he “was late to pick the 

child up, brought an unapproved adult around the child, and returned the child to the 

Foster Parents’ home late.” The unapproved adult was a woman, A.D., whom Father had 

initially met online and had not met in person until the date of the overnight visit. Father 

does not dispute the trial court’s summary in its final order of Ms. Williams’s testimony 

regarding this incident. The court stated as follows in relevant part:

Ms. Williams testified that after the visit, it was discovered that [A.D.] had 

been arrested in Georgia on October 8, 2015 for aggravated assault (family 

violence). Ms. Williams testified that during his visit, [Father] took the

subject child over the state line and into Georgia to spend time with [A.D.]. 

It was also discovered that [Father’s] license was not reinstated and he was 

driving without a valid driver’s license.

Father does not dispute that DCS had informed him in advance that he was not to have 

unapproved adults around the Child during unsupervised visitation. As a result of the 

problems with the overnight visit, DCS suspended Father’s unsupervised visitation.

DCS developed the fourth permanency plan during a child and family team 

meeting held on October 26, 2015, at which Father was not present but for which he 

preapproved his counsel’s attendance and decision-making on his behalf. Father does not 

dispute that he received a copy of the fourth permanency plan and corresponding 

statement of responsibilities via United States mail. This plan was ratified by the trial 

court on December 23, 2015, and was presented as an exhibit at trial. It included Father’s 

requirements included in the previous permanency plans and further delineated the 

following responsibilities for Father, approved by the trial court as reasonably related to 

remedying the conditions necessitating foster care: Father would (1) provide and 

maintain a safe, stable home for the Child; (2) “meet all of [the Child’s] needs and ensure 

that he grows and thrives as he should”; (3) child proof his home to ensure that the Child 

was safe from environmental harm; (4) ensure that the Child had adult supervision at all 

times when the Child was in his care; (5) obtain and maintain a driver’s license and

vehicle insurance prior to any unsupervised visits; and (6) complete specific housing 

corrections, to include enclosing the water heater outside of the Child’s bedroom, fixing

the floor in the bathroom, adding cabinet faces in the kitchen, fixing the space/opening 

between the front door and front porch, picking up all cigar tips from the yard, and 

installing a container in the front yard in which to place the tips in the future.

DCS acknowledges that Father completed some of the tasks set forth in the fourth 

permanency plan. As to the ongoing requirement of maintaining verifiable employment, 

DCS acknowledges that Father had been employed with Auction World and “had a 
- 6 -

steady job until April 2016.” Father was terminated from his employment in April 2016 

after he was arrested for aggravated assault. Subsequently, he was employed in a 

seasonal job at a distribution center from October 31, 2016, until November 26 or 27, 

2016. After November 2016, Father was unemployed and remained so until his arrest on 

January 3, 2017. Following Father’s release from jail on February 25 or 26, 2017, he 

remained unemployed at the time of trial in May 2017. 

As the trial court in its final order summarized Ms. Williams’s testimony

regarding Father’s progress on the permanency plan:

[Father] completed parenting classes and anger management through the inhome services that Ms. Williams had arranged for [Father] to receive in 

Montgomery County.3Further, the in-home service worker incorporated 

the recommendations from the clinical parenting assessment. When Ms. 

Williams made another visit to [Father’s] home, she observed that he had 

picked up the cigar tips in his yard, that he had completed the flooring in 

the living room and was working on the flooring in the bathroom, and that 

he was working on the cabinets. She testified that what she had believed 

was a water heater was not actually a water heater and did not get hot. 

Therefore, that was no longer a safety concern. 

Ms. Williams also testified, however, that barriers to permanency continued to exist 

because Father was inconsistent in his visitation with the Child, failed to maintain 

adequate contact with DCS, failed to maintain stable employment, and incurred criminal 

charges of arson in October 2013 and driving on a suspended or revoked license and 

violation of probation in August 2015. 

Janelle Holland, a DCS Family Services Worker who assumed responsibility over

the case in May 2016, testified that since she had been working with Father, he had 

changed residences and failed to supply documentation of his latest residence. Father 

does not dispute his admission to Ms. Holland that he had waited months to provide DCS 

with his change of address because he did not want DCS to perform a home study. 

Father acknowledged that he had fallen behind on his child support obligation and that a

contempt action was pending against him. Father also testified that he had purchased 

shoes for the Child and sometimes brought items for the Child to his visits with the Child. 

According to Ms. Holland, Father had not paid child support since April 2015 and, at the 

time of trial, owed a $4,000.00 child support arrearage.

 

3

In the parenting assessment, presented as an exhibit during trial, the evaluator determined Father’s 

intelligence quotient to be “within the borderline range of intellectual functioning” and recommended that 

Father receive parenting education through in-home services rather than in a classroom.
- 7 -

On appeal, Father does not dispute the trial court’s findings in its final order 

regarding the basic facts underlying his criminal charges and incarceration while the 

Child was in DCS custody. The court found in pertinent part:

On July 2, 2013, [Father] was charged with arson in Montgomery County. 

On or about November 21, 2013, [Father] was placed on probation and 

qualified for diversion on the arson offense, but later violated the terms of 

his diversion agreement and was subsequently convicted of that offense. 

On August 12, 2015, [Father] was arrested for driving on a suspended or 

revoked license, to which he later entered a guilty plea. On March 4, 2016, 

[Father] was arrested for driving on a revoked or suspended license and for

having prohibited weapons — brass knuckles. [Father] testified that the 

brass knuckles in the car were not his, but he admitted that he was 

convicted for it. On April 4, 2016, [Father] was arrested on two (2) counts 

of aggravated assault and violation of probation, which he later admitted 

pleading guilty to.

Following Father’s arrest in April 2016, DCS developed a fifth permanency plan 

on April 29, 2016. During a permanency hearing, the trial court granted a continuance 

concerning potential approval of this plan upon requests made by Father’s counsel and 

the guardian ad litem to review the plan. In a permanency hearing order entered on June 

8, 2016, the trial court found that specific barriers still existing to Father’s reunification 

with the Child were the inconsistency of Father’s visitation with the Child, his failure to 

pay child support, his lack of a driver’s license, and his unresolved legal issues. The fifth 

permanency plan was not submitted to the trial court for approval prior to the termination 

trial or entered as an exhibit during trial. However, following a permanency hearing 

conducted on July 13, 2016, the trial court found that Father was no longer in compliance 

with the previous permanency plans. Noting that Father had reported that he had been 

arrested for aggravated assault and evicted from his home, the court recommended that 

DCS proceed with filing a petition to terminate parental rights.

On August 23, 2016, DCS filed a petition to terminate the parental rights of Father 

and Mother. DCS amended the petition on February 21, 2017, to include the statutory 

ground of abandonment by an incarcerated parent through wanton disregard. Following a 

bench trial conducted over the course of two nonconsecutive days on May 1, 2017, and 

May 25, 2017, the trial court found that grounds existed to terminate the parental rights of 

both parents. As to Father, the court found, by clear and convincing evidence, that Father 

had (1) abandoned the Child through conduct exhibiting wanton disregard for the Child 

prior to Father’s incarceration, (2) failed to substantially comply with the reasonable 

responsibilities of the permanency plans despite reasonable efforts made by DCS, and (3)

failed to manifest an ability and willingness to personally assume custody of and 
- 8 -

financial responsibility for the Child.

4

 See Tenn. Code Ann. §§ 36-1-102(1)(A)(iv) & 36-

1-113(g)(1) (abandonment through wanton disregard prior to incarceration), -113(g)(2)

(substantial noncompliance with permanency plans), -113(g)(14) (failure to assume 

custody or financial responsibility). The court further found, by clear and convincing 

evidence, that termination of Father’s parental rights was in the best interest of the Child. 

Father timely appealed.

II. Issues Presented

Father raises three issues for our review, which we have restated slightly:

1. Whether the trial court erred by finding clear and convincing 

evidence of the statutory ground of Father’s abandonment of the 

Child based on Father’s conduct exhibiting wanton disregard for the 

Child’s welfare prior to Father’s incarceration.

2. Whether the trial court erred by finding clear and convincing 

evidence of the statutory ground of Father’s substantial 

noncompliance with the permanency plans and by finding that the 

requirements of the permanency plans were reasonably related to 

remedying the conditions necessitating foster care.

3. Whether the trial court erred by finding clear and convincing 

evidence of the statutory ground of Father’s failure to manifest an 

ability and willingness to personally assume custody of or financial 

responsibility for the Child.

DCS raises an additional issue for our review, which we have restated slightly:

4. Whether the trial court erred by finding clear and convincing 

evidence that termination of Father’s parental rights was in the best 

interest of the Child.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine 

“whether the trial court’s findings, made under a clear and convincing standard, are 

supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 

(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record, 

 

4

Prior to the trial, DCS nonsuited the statutory ground of abandonment by failure to financially

support the Child.
- 9 -

accompanied by a presumption of correctness unless the evidence preponderates against 

those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524 

(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are 

reviewed de novo with no presumption of correctness. See In re Carrington H., 483 

S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s 

determinations regarding witness credibility are entitled to great weight on appeal and 

shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. 

Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their 

children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 

92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not 

absolute and parental rights may be terminated if there is clear and convincing evidence 

justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 

97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our 

Supreme Court has explained:

The parental rights at stake are “far more precious than any property 

right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has 

the legal effect of reducing the parent to the role of a complete stranger and 

of [“]severing forever all legal rights and obligations of the parent or 

guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also

Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental 

rights is “final and irrevocable”). In light of the interests and consequences 

at stake, parents are constitutionally entitled to “fundamentally fair 

procedures” in termination proceedings. Santosky, 455 U.S. at 754; see 

also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27 

(1981) (discussing the due process right of parents to fundamentally fair 

procedures).

Among the constitutionally mandated “fundamentally fair 

procedures” is a heightened standard of proof—clear and convincing 

evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of 

unnecessary or erroneous governmental interference with fundamental 

parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). 

“Clear and convincing evidence enables the fact-finder to form a firm belief 

or conviction regarding the truth of the facts, and eliminates any serious or 

substantial doubt about the correctness of these factual findings.” In re 

Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-andconvincing-evidence standard ensures that the facts are established as 

highly probable, rather than as simply more probable than not. In re 
- 10 -

Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 

S.W.3d 652, 660 (Tenn. Ct. App. 2005).

* * *

In light of the heightened burden of proof in termination 

proceedings, however, the reviewing court must make its own 

determination as to whether the facts, either as found by the trial court or as 

supported by a preponderance of the evidence, amount to clear and 

convincing evidence of the elements necessary to terminate parental rights. 

In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental] 

rights must prove all the elements of their case by clear and convincing evidence,” 

including statutory grounds and the best interest of the child. See In re Bernard T., 319 

S.W.3d 586, 596 (Tenn. 2010).

IV. Grounds for Termination of Father’s Parental Rights

Tennessee Code Annotated § 36-1-113 (2017) lists the statutory requirements for 

termination of parental rights, providing in relevant part:

(a) The chancery and circuit courts shall have concurrent jurisdiction 

with the juvenile court to terminate parental or guardianship rights to 

a child in a separate proceeding, or as a part of the adoption 

proceeding by utilizing any grounds for termination of parental or 

guardianship rights permitted in this part or in title 37, chapter 1, 

part 1 and title 37, chapter 2, part 4.

* * *

(c) Termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear and convincing evidence that 

the grounds for termination of parental or guardianship rights 

have been established; and

(2) That termination of the parent’s or guardian’s rights is in the 

best interests of the child.

The trial court determined that the evidence clearly and convincingly supported a finding 

of three statutory grounds to terminate Father’s parental rights: (1) abandonment through 
- 11 -

conduct exhibiting wanton disregard for the Child’s welfare prior to Father’s 

incarceration, (2) substantial noncompliance with the permanency plans, and (3) failure 

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

the Child. We will address each statutory ground in turn.

A. Abandonment Through Wanton Disregard

Father contends that the trial court erred by finding that DCS had proven by clear 

and convincing evidence that he had abandoned the Child through his actions prior to 

incarceration that allegedly constituted wanton disregard for the Child’s welfare. See

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2017). Upon a thorough review of the record, we 

disagree. 

Tennessee Code Annotated § 36-1-113(g)(4), as relevant to this issue, provides:

(g) Initiation of termination of parental or guardianship rights may be 

based upon any of the grounds listed in this subsection (g). The 

following grounds are cumulative and non-exclusive, so that listing 

conditions, acts or omissions in one ground does not prevent them 

from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in § 36-1-

102, has occurred[.]

Tennessee Code Annotated § 36-1-102(1)(A)(iv) provides in pertinent part:

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 . . . the parent or guardian has engaged in conduct prior to incarceration 

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

(Emphasis added.) 

A parent’s actions constituting wanton disregard for the welfare of a child are not 

restricted to solely the four-month period prior to incarceration. See In re Audrey S., 182 

S.W.3d at 871. This Court has consistently held that “probation violations, repeated 

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

support for a child can, alone or in combination, constitute conduct that exhibits a wanton 

disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68; see also In 

re K.F.R.T., No. E2015-01459-COA-R3-PT, 2016 WL 908926, at *4 (Tenn. Ct. App. 
- 12 -

Mar. 10, 2016). “Simply stated, a parent’s ‘poor judgment and bad acts that affect the 

children constitute a wanton disregard for the welfare of the children.’” In re T.L.G., No. 

E2014-01752-COA-R3-PT, 2015 WL 3380896, at *3 (Tenn. Ct. App. May 26, 2015) 

(quoting State, Dep’t of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 

2009)).

The Child was born in April 2013. Only months following the Child’s birth, 

Father was arrested in July 2013 on a charge of arson in Montgomery County. Father 

was placed on probation concerning the arson charge and qualified for judicial diversion. 

Father subsequently violated the terms of his diversion agreement and was convicted of 

the arson charge. Father also violated the terms of his probation when he was arrested on 

March 4, 2016, and charged with driving on a suspended license and possession of a 

prohibited weapon, specifically brass knuckles. Although Father denied that the brass 

knuckles were his, he pled guilty to the weapon possession offense and to violation of his 

probation. On April 4, 2016, Father was arrested on two counts of aggravated assault and 

violation of probation, to which he subsequently pled guilty. All of Father’s 

aforementioned convictions occurred after the Child’s birth and while Father was aware 

of his responsibility to maintain a safe, stable home for the Child.

Furthermore, DCS also presented proof that Father had not consistently financially 

supported the Child, and the trial court found that Father had not paid child support since 

April 2015. The failure to provide adequate financial support for a child is another type 

of conduct that can exhibit wanton disregard for the welfare of a child. See In re Audrey 

S., 182 S.W.3d at 867-68. We conclude that the evidence regarding Father’s behavior 

prior to his incarceration, including his criminal activity and failure to financially support 

the Child, corroborates the trial court’s finding that the statutory ground of abandonment 

through wanton disregard was proven by clear and convincing evidence.

B. Substantial Noncompliance with the Permanency Plans

Father contends that the trial court erred by finding clear and convincing evidence 

that he failed to substantially comply with the reasonable responsibilities set out in the

permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides as a ground for 

termination of parental rights:

(2) There has been substantial noncompliance by the parent or guardian 

with the statement of responsibilities in a permanency plan pursuant 

to the provisions of title 37, chapter 2, part 4[.]

In the present case, the trial court approved four permanency plans throughout the 

four years that the Child was in DCS custody. The first permanency plan, which was 

developed on April 23, 2013, provided the following responsibilities regarding Father: 
- 13 -

(1) Father would submit to a DNA test to determine whether he was the biological father 

of the Child; (2) if the DNA test proved that Father was the biological father of the Child, 

he would file a petition for custody of the Child; (3) Father would obtain and maintain 

stable housing and a legal, verifiable income; (4) Father would sign releases to allow 

DCS to obtain information; (5) Father would maintain contact with DCS; and (6) Father 

would pay child support. The second permanency plan, developed on September 17, 

2013, included the action steps from the previous permanency plan and added the 

following requirements: Father would (1) complete a mental health assessment and 

follow all recommendations therefrom, (2) complete an alcohol and drug assessment and 

follow all resultant recommendations, (3) complete parenting classes, and (4) submit to 

random drug screens. On February 20, 2015, Father participated in the development of a 

third permanency plan, which required Father to comply with the requirements from the 

previous plans and was modified to include the anger management recommendation from 

Father’s mental health assessment. 

The fourth permanency plan was developed on October 26, 2015. Father did not 

attend the child and family team meeting wherein the plan was developed but approved 

his counsel’s representation of Father’s interest. This plan listed the following 

requirements that Father would: (1) provide and maintain a safe, stable home for the 

Child; (2) “meet all of [the Child’s] needs and ensure that he grows and thrives as he 

should”; (3) child proof his home to ensure the Child was safe from environmental harm;

(4) ensure the Child had adult supervision at all times when the Child was in his care; (5) 

obtain and maintain a driver’s license and vehicle insurance prior to any unsupervised 

visits; and (6) complete specific housing corrections, to include enclosing the water 

heater outside of the Child’s bedroom, fixing the floor in the bathroom, adding cabinet 

faces in the kitchen, fixing the space/opening between the front door and front porch,

picking up all cigar tips from the yard, and having a container in the front yard in which 

to place the tips in the future.

Father participated in the development of three of the four permanency plans and 

authorized his attorney to attend the fourth meeting in his stead.5Father signed the first 

three permanency plans. Father does not dispute that he was provided with a copy of the 

fourth permanency plan via United States mail. The trial court determined that the 

permanency plans were in the best interest of the Child and that Father’s requirements in 

the permanency plans were reasonably related to the reasons necessitating foster care. 

See In re Valentine, 79 S.W.3d 539, 547 (Tenn. 2002) (“A trial court must find that the 

requirements of a permanency plan are ‘reasonable and related to remedying the 

conditions which necessitate foster care placement.’” (quoting Tenn. Code Ann. § 37-2-

 

5 Additional action steps for Father were added in a fifth permanency plan, but we are unable to 

determine whether Father complied with that plan because that plan was not admitted into 

evidence.
- 14 -

403 (2017)). Father argues on appeal that “[t]he sole reason this child came into foster 

care was abandonment by the mother” and that the permanency plan requirements “had 

no relationship to the reason for custody.” Father averred that no allegations existed “at 

the time of removal other than that [DCS] did not know where Father was.” Our 

Supreme Court has previously held that the “[c]onditions necessitating foster care 

placement may include conditions related both to the child’s removal and to family 

reunification.” In re Valentine, 79 S.W.3d at 547 (emphasis added). Father’s inability to 

prove a safe, stable home for the Child and his continued criminal behavior were 

continuous concerns for the trial court when considering reunification. Upon a thorough 

review of the record, we determine that the evidence in the record supports the trial 

court’s finding that the permanency plan requirements were reasonably related to 

remedying the conditions that necessitated foster care. 

The trial court further determined that Father had not substantially complied with 

the responsibilities and requirements set out in the permanency plans. Specifically, the 

trial court found that Father had not maintained safe and stable housing; had not obtained 

his driver’s license or vehicular insurance; and had not provided proof of legal, verifiable 

income. Upon our careful review of the record, we determine that the evidence 

preponderates in favor of the factual findings made by the trial court. 

DCS does not dispute that Father submitted to a DNA test; completed a mental 

health assessment, parenting classes, and anger management classes; and made several 

repairs to his home. However, the requirement that Father provide a safe, stable home 

has been a consistent requirement throughout the four permanency plans approved by the 

trial court. At the beginning of the Child’s tenure in DCS custody, Father lived with 

Paternal Grandmother, whom DCS would not approve to have contact with the Child. 

The trial court recognized that Paternal Grandmother had been indicated by DCS for 

sexual exploitation of a minor. Although Paternal Grandmother moved out of Father’s 

home, the trial court found that Paternal Grandmother possessed a key and “unfettered 

access” to Father’s home. The fourth permanency plan addressed several repairs that 

Father needed to make to ensure that his home was safe for the Child. We recognize that 

Father did complete several of the requested repairs in his home to make it physically 

safe for the Child. 

Father subsequently moved to another residence where he reportedly resided for 

one or two years. According to Father, he “got in some trouble” at that residence and 

moved. Thereafter, he moved in with a member of his support team and lived there from 

June 2016 until December 2016. Father relocated to another residence in December 2016 

where he continued to reside at the time of trial. We note that after Father changed 

residences, he admittedly chose not to inform DCS of his new address because he did not 

want DCS to complete a home study of that residence. Although Father informed the 

participants in a foster care review board in January 2017 that he had moved, he did not 
- 15 -

provide an address. Father did not provide an address to Ms. Holland until March 2017

when he informed her that he had been residing at the new address since December 2016. 

After learning Father’s new address, Ms. Holland requested that Father provide her with 

a copy of his lease before the home study was to be completed to ensure that Father 

actually resided in the home. Father testified that he had a lease to his residence, but 

according to Ms. Holland, he never provided a copy of the lease document to DCS. 

Therefore, Father never demonstrated that he could provide a safe, stable home for the 

Child.

Father’s driver’s license was revoked during the pendency of the dependency and 

neglect action. Included in the respective permanency plan was a requirement that Father 

obtain reinstatement of his driver’s license prior to any unsupervised visitation. At the 

time of trial, Father testified that he was in the process of reinstating his driver’s license 

but admittedly had not obtained reinstatement as of the date of trial. Additionally, we 

note that Father participated in an overnight, unsupervised visit with the Child on October 

19 and 20, 2015; that he had driven the Child to and from the foster home for the visit;

and that the trial court found that he was driving without a valid driver’s license on that 

date. 

As an additional responsibility of his permanency plans, Father was required to 

maintain legal and verifiable income with which to financially support the Child. Father 

maintained stable employment until April 2016 when he was charged with two counts of 

aggravated assault. Father lost his employment due to his arrest. Father was 

subsequently employed for approximately one month from October to November 2016. 

According to Father, he lost that job when he left work to attend a funeral. Father was 

not employed prior to his incarceration in January 2017 and had not obtained 

employment following his release in February 2017. Father remained unemployed at the 

time of trial. Father testified that his father and Paternal Grandmother were assisting him 

in paying the expenses related to his residence. Furthermore, Father failed to consistently 

pay child support for the Child even when he maintained stable employment. At the time 

of trial, Father had not paid child support since April 2015. 

The trial court further found that throughout the time Father enjoyed unsupervised 

visitation, “he was inconsistent and failed to maintain adequate contact with [DCS].” We 

note that Father did make efforts to improve his physical home to make it safer for the 

Child and completed a mental health assessment, parenting classes, and anger 

management classes. However, Father’s criminal behavior escalated during the pendency 

of the case, ultimately leading to Father’s loss of employment in April 2016. Father 

thereafter continued without a legal, verifiable source of income on the date of trial

except for approximately one month in October and November 2016. Father’s driver’s 

license had been suspended or revoked since 2015, and it remained invalid on the date of 

trial. Most importantly, after four years, Father was unable to demonstrate that he could 
- 16 -

provide a safe and stable home for the Child. Considering all of the relevant evidence in 

the record, we conclude that the evidence does not preponderate against the trial court’s 

finding by clear and convincing evidence that Father failed to substantially comply with 

the requirements of the court-approved permanency plans.

C. Failure to Manifest a Willingness and Ability to Assume Custody of 

or Financial Responsibility for the Child

Father argues that the trial court erred by relying upon Tennessee Code Annotated 

§ 36-1-113(g)(14) (2017) as a statutory ground for terminating his parental rights. This 

subsection, which was added to the statutory framework effective July 1, 2016, see 2016 

Tenn. Pub. Acts, Ch. 919 § 20 (S.B. 1393), provides as an additional ground for 

termination:

A legal 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.

Upon our careful review of the record, we determine that the trial court did not err in 

finding clear and convincing evidence of this statutory ground.

We adhere to the following longstanding principles of statutory interpretation:

When dealing with statutory interpretation, well-defined precepts apply. 

Our primary objective is to carry out legislative intent without broadening 

or restricting the statute beyond its intended scope. Houghton v. Aramark 

Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing 

legislative enactments, we presume that every word in a statute has 

meaning and purpose and should be given full effect if the obvious 

intention of the General Assembly is not violated by so doing. In re 

C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we 

apply the plain meaning without complicating the task. Eastman Chem. 

Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is 

simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus., 

Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is 

ambiguous that we may reference the broader statutory scheme, the history 

of the legislation, or other sources. Parks v. Tenn. Mun. League Risk 

Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a 

statute cannot be considered in a vacuum, but “should be construed, if 

practicable, so that its component parts are consistent and reasonable.” 
- 17 -

Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any 

interpretation of the statute that “would render one section of the act 

repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of 

Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must 

presume that the General Assembly was aware of any prior enactments at 

the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926 

(Tenn. 1995).

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).

This Court has recently explained the following with regard to this ground for 

termination of parental rights:

Essentially, this ground requires DCS to prove two elements 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 responsibility of the child[ren].” Tenn. Code 

Ann. § 36-1-113(g)(14). 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].” Id.

* * *

We have made the following observations about what constitutes 

“substantial harm”:

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.

Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted).

In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7-8 (Tenn. Ct. 

App. Apr. 4, 2018) (additional internal citations omitted).
- 18 -

We note at the outset of our analysis that an apparent split in authority exists in 

Tennessee regarding whether Tennessee Code Annotated § 36-1-113(g)(14) can be relied 

upon as a ground for termination of parental rights if a parent has solely manifested a 

willingness but has not manifested an ability to assume legal and physical custody or 

financial responsibility for the child. Tennessee Code Annotated § 36-1-113(g)(14) states 

that a parent’s rights can be terminated if the parent has failed to manifest “an ability and 

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

the child.” (Emphasis added.) In the case of In re Neamiah R., No. E2017-02000-COAR3-PT, 2018 WL 2331868, at *7 (Tenn. Ct. App. May 23, 2018), this Court affirmed the 

termination of the father’s parental rights based on the father’s failure to manifest an 

ability to personally assume legal and physical custody of the children despite the father’s 

willingness to assume legal and physical custody. However, in In re Ayden S., No. 

M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018), 

another panel of this Court held that Tennessee Code Annotated § 36-1-113(g)(14) 

requires the petitioner to prove that the parent manifested both an unwillingness and an 

inability to assume legal and physical custody or financial responsibility for the child

before this ground for termination may be utilized.

The Ayden S. Court determined that Tennessee Code Annotated § 36-1-113(g)(14) 

requires a “negative proof,” as that term is defined in ANTONIN SCALIA & BRYAN A.

GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 120 (2012). In re 

Ayden S., 2018 WL 2447044, at *7. Scalia and Garner present this definition as a type of 

sentence in which the conjunctive “and” or the disjunctive “or” may appear in legal 

writing, and they include it within a chapter entitled, “Semantic Canons,” and a section 

entitled, “Conjunctive/Disjunctive Canon.” SCALIA & GARNER, at 116-25. Scalia and 

Garner define “The Negative Proof” as follows in pertinent part:

The Negative Proof

CONJUNCTIVE DISJUNCTIVE

To be eligible, you must prove that 

you have not A, B, and C.

To be eligible, you must prove that 

you have not A, B, or C.

With the conjunctive negative proof, you must prove that you did not do all 

three. With the disjunctive negative proof, what must you prove? If you 

prove that you did not do one of the three things, are you eligible? Suppose 

the statute says:

To be eligible for citizenship, you must prove that you have 

not (1) been convicted of murder; (2) been convicted of 

manslaughter; or (3) been convicted of embezzlement.
- 19 -

An applicant proves #3—that he has never been convicted of 

embezzlement—but fails to prove that he has not been convicted of both 

murder and manslaughter. Is he eligible? (No.) Is the requirement that he 

not have done one of these things, or that he have done none? (He must 

have done none.)

Id. at 120. The Ayden S. Court thereby held that because the petitioner, DCS, was 

required to prove that the parents had “failed to manifest, by act or omission, an ability 

and willingness to personally assume legal and physical custody or financial 

responsibility” for their children, DCS was required to satisfy a “negative proof” and 

demonstrate both the parents’ inability and unwillingness. In re Ayden S., 2018 WL 

2447044, at *7 (quoting Tenn. Code Ann. § 36-1-113(g)(14) (emphasis added)). We 

respectfully disagree.

It is helpful to take another look at the opening structure of the sentence at issue 

for this statutory ground:

A legal 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) (emphasis added). The subject of this opening 

clause is “[a] legal parent or guardian,” followed by the verb phrase, “has failed.” 

Therefore, it is clear that the petitioner must prove the legal parent or guardian’s failure to 

do something. This is followed by the infinitive marker, “to,” which introduces the base 

form of the verb, “manifest,” to create an infinitive phrase that serves as an object to “has 

failed,” or stated another way, what the parent must have done in order to avoid having 

failed. See generally CHERYL GLENN & LORETTA GRAY, HODGES’ HARBRACE 

HANDBOOK 31 (16th ed. 2007). The infinitive verb phrase ends with the conjunctive 

construction, “an ability and willingness.” The clause then continues with another 

infinitive verb phrase, “to personally assume legal and physical custody or financial 

responsibility,” and a final prepositional phrase, “of the child[.]” 

What then is it that the parent must manifest by act or omission? We determine 

the answer to this question to be what Garner and Scalia refer to as a conjunctive “basic 

requirement,” defined in pertinent part as follows:
- 20 -

The Basic Requirement

CONJUNCTIVE DISJUNCTIVE

You must do A, B, and C. You must do A, B, or C.

With the conjunctive list, all three things are required—while with the 

disjunctive list, at least one of the three is required, but any one (or more) 

of the three satisfies the requirement.

GARNER & SCALIA, at 116. We conclude that the petitioner, DCS in this instance, is 

required to prove the parent’s failure (a negative) to satisfy a conjunctive basic 

requirement: the parent must have “manifest[ed], by act or omission, an ability and

willingness.” (Emphasis added.) We note that to treat this statutory ground as a negative 

proof is to require DCS to prove a parent’s inability and unwillingness rather than the 

parent’s failure to manifest an ability and willingness. In a separate use of the disjunctive 

“or,” the statute further provides that DCS may prove the parent’s failure by 

demonstrating either that the parent failed “to manifest an ability and willingness to 

personally assume legal and physical custody . . . of the child” or failed “to manifest an 

ability and willingness to personally assume . . . financial responsibility of the child.” 

See Tenn. Code Ann. § 36-1-113(g)(14).

Moreover, we note the similarity in language between the new statutory ground 

for termination at issue in subsection -113(g)(14) and the statutory ground for termination 

of a putative father’s parental rights located at Tennessee Code Annotated § 36-1-

113(g)(9)(A)(iv), which provides: 

(9)(A) The parental rights of any person who, at the time of the filing of a 

petition to terminate the parental rights of such person, or if no such 

petition is filed, at the time of the filing of a petition to adopt a child, 

is the putative father of the child may also be terminated based upon 

any one (1) or more of the following additional grounds:

* * * 

(iv) The person has failed to manifest an ability and willingness to 

assume legal and physical custody of the child[.]

(Emphasis added.)

In analyzing the termination of a parent’s rights pursuant to Tennessee Code 

Annotated § 36-1-113(g)(9)(A)(iv), our Supreme Court has recognized the requirements 

of ability and willingness as conjunctive. See In re Bernard T., 319 S.W.3d 586, 604-05 
- 21 -

(Tenn. 2010) (concluding that the ground was proven where the parent had “manifested a 

commendable willingness to assume legal custody of all the child” but that he did not 

“presently have the ability to assume legal and physical custody of any of the children.”). 

See In re Estate of Tanner, 295 S.W.3d at 614 (“[T]he language of a statute cannot be 

considered in a vacuum, but ‘should be construed, if practicable, so that its component 

parts are consistent and reasonable.’” (quoting Marsh v. Henderson, 424 S.W.2d 193, 196 

(1968))). In Bernard T., our Supreme Court proceeded to affirm the termination of the 

parent’s rights based in part on the ground contained in Tennessee Code Annotated § 36-

1-113(g)(9)(A)(iv). Id.; see also In re F.N.M., No. M2015-00519-COA-R3-PT, 2016 

WL 3126077, at *11 (Tenn. Ct. App. Apr. 11, 2016) (affirming the termination of the 

parent’s rights due to his failure to manifest “an ability to assume legal and physical 

custody of the child.”). But see State, Dep’t of Children’s Servs. v. Williams, No. 

W2008-02001-COA-R3-PT, 2009 WL 2226116, at *7 (Tenn. Ct. App. July 28, 2009)

(reversing this ground for termination of parental rights when the parent expressed a 

willingness and desire to parent the child despite the parent’s lack of ability to assume 

custody of the child.). 

Upon consideration of the statutory language and the relevant legal authority, we 

hold that the first prong of Tennessee Code Annotated § 36-1-113(g)(14) requires that the 

petitioner prove that a parent has failed to meet the requirement of manifesting both a 

willingness and an ability to assume legal and physical custody of the child or has failed 

to meet the requirement of manifesting both a willingness and an ability to assume 

financial responsibility of the child. Regarding this first prong in the instant action, the 

trial court found that DCS had proven by clear and convincing evidence that Father had 

not manifested an ability and willingness to personally assume legal and physical custody 

of the Child and financial responsibility for the Child. We agree with the trial court. 

Father had incurred several criminal charges during the pendency of the 

underlying dependency and neglect case, as well as the pending termination action. 

Since the Child’s birth, Father was convicted of two counts of aggravated assault, two 

counts of driving on a revoked or suspended licensed, one count of unlawful possession 

of brass knuckles, and one count of arson. Additionally, the trial court found that Father 

had not maintained safe and stable housing, had not obtained his driver’s license to 

transport the Child, and had not visited with the Child as he should have. Father had 

failed to provide the case manager with a copy of the lease document pertaining to his 

home as evidence that the lease was in his name and had intentionally delayed providing 

his address to the case manager so as to delay a home visit of his residence. 

The trial court further relied on Father’s performance during an overnight 

unsupervised visit to demonstrate that Father had not demonstrated an ability and 

willingness to assume legal and physical custody of the Child. Father enjoyed 

unsupervised visits for a period of time. When Father was finally awarded an overnight 
- 22 -

visit, Father brought a woman he had met via the Internet to accompany him during the 

visit. Father had never met this individual in person prior to the visit, and she had never 

met the Child. In addition, this person was later discovered to have a criminal record 

involving family violence. Father arrived late to pick up the Child and brought the Child 

back from the visit approximately two hours late. During the unsupervised visit, Father 

crossed state lines with the Child. The trial court recognized that Father had filed a 

petition for custody in September 2013 but determined that Father had “failed to 

manifest, by act or omission, an ability and willingness to personally assume the legal 

and physical custody of the child.” 

Furthermore, despite having maintained steady employment until April 2016 and 

being employed for approximately a month from October to November 2016, Father had 

failed to pay child support for the Child since April 2015. After losing his job, Father 

remained unemployed at the time of trial and had no legal, verifiable income by which to

support the Child. We recognize that Father has repeatedly verbalized his willingness to 

assume custody of the Child. However, Father’s actions, including his continued 

criminal activity and his failure to financially support the Child, raise doubt as to Father’s 

actual willingness to assume custody or financial responsibility for the Child. In any 

case, it is clear that at the time of trial, Father did not have the ability to assume custody 

or financial responsibility for the Child. Father was unemployed with no income to 

support the Child, had not maintained stable housing, and had been repeatedly 

incarcerated throughout the Child’s life. Based on a thorough review of the record, we 

determine that the evidence preponderates in favor of the trial court’s determination that 

Father had failed to manifest an ability to personally assume legal and physical custody 

of and financial responsibility for the Child.

Regarding the second prong, the trial court determined, based on the above 

evidence, that placing the Child in Father’s legal and physical custody would pose a risk 

of substantial harm to the Child’s physical and psychological welfare. Additionally, the 

trial court recognized that the Child had been placed with the foster parents for four years 

and had developed a bond with them. In contrast, the trial court found that Father and the 

Child enjoyed a friendship together instead of a “father-son relationship.” This Court 

recently determined that placing a child with a parent who had 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 Ke’Andre C., No. M2017-

01361-COA-R3-PT, 2018 WL 587966, at *11 (Tenn. Ct. App. Jan. 29, 2018).

Based on the evidence presented, we conclude that DCS has proven by clear and 

convincing evidence that Father failed to manifest an ability and willingness to personally 

assume legal and physical custody or financial responsibility of the Child and 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. Accordingly, and considering our 
- 23 -

affirmance of the other two statutory grounds at issue, we affirm the trial court’s findings 

regarding the existence of statutory grounds for termination.

V. Best Interest of the Child

When a parent has been found to be unfit by establishment of at least one statutory 

ground for termination of parental rights, as here, the interests of parent and child 

diverge, and the focus shifts to what is in the child’s best interest. In re Audrey S., 182 

S.W.3d at 877; see also In re Carrington H., 483 S.W.3d at 523 (“‘The best interests 

analysis is separate from and subsequent to the determination that there is clear and 

convincing evidence of grounds for termination.’” (quoting In re Angela E., 303 S.W.3d 

240, 254 (Tenn. 2010))). Tennessee Code Annotated § 36-1-113(i) (2017) provides a list 

of factors the trial court is to consider when determining if termination of parental rights 

is in a child’s best interest. This list is not exhaustive, and the statute does not require the 

court to find the existence of every factor before concluding that termination is in a 

child’s best interest. See In re Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 

S.W.3d at 878 (“The relevancy and weight to be given each factor depends on the unique 

facts of each case.”). Furthermore, the best interest of a child must be determined from 

the child’s perspective and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 

(Tenn. Ct. App. 2004).

Tennessee Code Annotated § 36-1-113(i) lists the following factors for 

consideration:

(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;
- 24 -

(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. 

As our Supreme Court recently explained regarding the best interest analysis:

“The best interests analysis is separate from and subsequent to the 

determination that there is clear and convincing evidence of grounds for 

termination.” In re Angela E., 303 S.W.3d at 254.

When conducting the best interests analysis, courts must consider 

nine statutory factors listed in Tennessee Code Annotated section 36-1-

113(i). These statutory factors are illustrative, not exclusive, and any party 

to the termination proceeding is free to offer proof of any other factor 

relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at 

523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). 

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

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, 
- 25 -

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). 

Ascertaining a child’s best interests involves more than a “rote 

examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878. 

And the best interests analysis consists of more than tallying the number of 

statutory factors weighing in favor of or against termination. White v.

Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts 

and circumstances of each unique case dictate how weighty and relevant 

each statutory factor is in the context of the case. See In re Audrey S., 182 

S.W.3d at 878. Simply put, the best interests analysis is and must remain a 

factually intensive undertaking, so as to ensure that every parent receives 

individualized consideration before fundamental parental rights are 

terminated. In re Carrington H., 483 S.W.3d at 523. “[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.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 

S.W.3d at 194). But this does not mean that a court is relieved of the 

obligation of considering all the factors and all the proof. Even if the 

circumstances of a particular case ultimately result in the court ascribing 

more weight—even outcome determinative weight—to a particular 

statutory factor, the court must consider all of the statutory factors, as well 

as any other relevant proof any party offers.

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

The trial court made the following findings of fact concerning the best interest 

analysis in pertinent part:

The Court finds clear and convincing evidence, pursuant to T.C.A. § 

36-1-113(i), that it is in the child’s best interest for termination to be 

granted, in that [Mother] and [Father] have failed to make a lasting 

adjustment of their circumstances to make it safe and in the child’s best 

interest to be placed in their care. 

The Court finds clear and convincing evidence, pursuant to T.C.A. § 

36-1-113(i), that it is in the child’s best interest for termination to be 

granted, in that [Mother] and [Father] have failed to make a lasting 
- 26 -

adjustment of their circumstances after the state has made reasonable 

efforts to help them for such duration of time that lasting adjustment does 

not reasonably appear possible. Specifically, the child has been in foster 

care for four (4) years. . . . [Father] has failed to maintain stability and has 

incurred numerous criminal charges and violations during the pendency of 

the case. [Father] is unemployed and relies on his family members to 

support him. 

* * * 

The Court finds clear and convincing evidence, pursuant to T.C.A. § 

36-1-113(i), that it is in the child’s best interest for termination to be 

granted, as a change of caretakers and home would have a highly negative 

effect on the child. The child has been placed in a loving, pre-adoptive 

home for four (4) years. The child is thriving in that home and is bonded to 

the foster family. This family is the only family that the child really knows. 

[Foster Parents] wish to adopt him, should he become available for 

adoption. 

The Court finds, pursuant to T.C.A[.] § 36-1-113(i), that it is in the 

best interest of the child for termination to be granted, because [Father] has 

not paid child support consistently. [Father] has not made a child support 

payment since April 2015. . . .

(Paragraph numbering omitted.) We agree with the trial court’s conclusion that 

termination of Father’s parental rights is in the best interest of the Child. 

Relevant to Tennessee Code Annotated § 36-1-113(i)(1) and (2), the trial court 

found that Father had failed to make a lasting adjustment in his circumstances that would 

make it safe and in the Child’s best interest to be placed in his care despite reasonable 

efforts made by DCS. After Father had established paternity, DCS averred that Father’s 

home was not safe for the Child. Despite the Child’s having been in foster care for four 

years, the trial court found that no evidence existed “that direct[ed] the Court to any point 

in time where [Father] was truly able to physically take custody of this child.” The trial 

court found that Father had failed to maintain stability to demonstrate his ability to care 

for the Child and had incurred several criminal convictions throughout the time the Child 

was in foster care. The trial court further found that Father remained unemployed and 

that he relied on family members to support him. Father admitted during trial that his 

father and Paternal Grandmother paid the bills associated with his current home.

As to factor (3), although Father had maintained visitation with the Child, the trial 

court found that the visitation had not been consistent. Father had received unsupervised 
- 27 -

visitation with the Child for a period of time before he was allowed an overnight visit. 

However, the trial court found that throughout the time Father was receiving 

unsupervised visitation, his visits were inconsistent and that Father failed to maintain 

adequate contact with DCS. Additionally, when Father received his first and only 

overnight visit, he arrived to pick up the Child for the visit two hours late, took the Child 

across state lines, returned the Child to the foster home approximately two hours late,

drove the Child during the visit without a valid driver’s license, and was accompanied on 

a portion of the visit by an unapproved female whom he had met through social media a 

few days earlier. Father’s unsupervised visitation was suspended at that time. DCS and 

Father developed a plan to allow Father to move forward toward unsupervised visitation 

again by attending visits, being on time for the visits, attending the visits alone, and 

caring for the Child during the visits. The court found, however, that Father was 

inconsistent in attending those visits. Testimony established that Father received only 

supervised visitation after the overnight visit and never progressed to unsupervised 

visitation.

Concerning factor (4), the trial court found that Father and the Child “have a 

friendship with one another, not a father-son relationship.” Father had visited with the 

Child somewhat frequently. However, the foster mother testified that although the Child 

enjoyed playing with Father, Father would remain on his cellular telephone for much of 

his visits and that she would have preferred to have seen more bonding between Father 

and the Child. Ms. Holland also testified that Father was sometimes on his cellular 

telephone “a little too much.” 

Pursuant to factor (5), the trial court determined that the Child had developed a 

close bond with the foster family, who wished to adopt him. The Child had been placed 

in the foster parents’ home since the Child was four days old and had remained in their 

care for four years. The trial court determined that the foster family was the only family 

the Child had ever known and that removing the Child from the foster family’s home and 

changing his caretakers would have a “highly negative effect” on the Child. 

In regard to factor (7), although no evidence was presented regarding any alcohol 

or substance abuse, Father had continued to participate in criminal activity during the 

pendency of the case, with his criminal activity spanning from July 2013 through April 

2016. Father was convicted of two counts of aggravated assault, two counts of driving on 

a revoked or suspended licensed, one count of unlawful possession of brass knuckles, and 

one count of arson. Father’s criminal history appears to have begun after the Child was 

born. The trial court found that Paternal Grandmother had been indicated by DCS for 

sexual exploitation of a minor and that Paternal Grandmother possessed a key to Father’s 

home, which provided her with unfettered access to his home.
- 28 -

Pursuant to factor (9), the trial court found that Father had not paid child support 

consistently and had not paid any child support for the Child since April 2015. Father 

testified that he sometimes brought items for the Child with him to visits with the Child. 

However, according to Ms. Holland, Father owed an arrearage balance at the time of trial 

of $4,000.00. 

The trial court did not address whether Father’s mental or emotional status would 

be detrimental to the Child or prevent him from effectively parenting the Child pursuant 

to factor (8). In Father’s mental health assessment, the evaluator opined that Father did 

not present signs of a mental health problem or personality disorder. However, due to 

Father’s responses in testing, the evaluator recommended that he complete anger 

management classes. The evaluator opined that if Father addressed his potential issue 

with anger management, received training with child care, and had a support system to 

assist him with printed material, no obvious reason existed as to why Father could not be 

an adequate father to the Child. Father completed anger management classes and 

parenting classes. This factor weighs in favor of Father. 

Nonetheless, the evidence presented regarding the statutory factors as a whole 

weighs in favor of termination of Father’s parental rights as in the best interest of the 

Child. Based on our review of the evidence in light of the statutory factors, we conclude 

that the trial court did not err in finding clear and convincing evidence that termination of 

Father’s parental rights was in the best interest of the Child. We therefore affirm the trial 

court’s termination of Father’s parental rights.

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in all respects, 

including the termination of Father’s parental rights to the Child. This case is remanded 

to the trial court, pursuant to applicable law, for enforcement of the trial court’s judgment 

terminating Father’s parental rights and collection of costs assessed below. Costs on 

appeal are assessed to the appellant, William K. 

_________________________________

THOMAS R. FRIERSON, II, JUDGE