1

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 4, 2021 

IN RE TIFFANY B.

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Appeal from the Circuit Court for Washington County

No. 39571 James E. Lauderback, Judge

No. E2020-00854-COA-R3-PT

The trial court terminated a father’s parental rights to his daughter based upon two statutory 

grounds: persistence of conditions and failure to manifest a willingness and ability to 

assume custody of the child. We reverse the trial court’s decision as to the first ground, 

but affirm as to the second. We also affirm the trial court’s finding that termination of the 

father’s parental rights is in the child’s best interests. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment Reversed in Part; Affirmed in 

Part; Vacated in Part; Case Remanded 

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,JR.,

P.J., M.S., and CARMA DENNIS MCGEE, J., joined. 

Russell Kloosterman, Johnson City, Tennessee, for the appellant, Kevin H. 

Stephanie Sherwood, Johnson City, Tennessee, for the appellees, David B. and Pamela B.

OPINION

Background

The child at issue in this termination of parental rights case, Tiffany B. (“the Child”), 

is the daughter of Kathryn B. (“Mother”) and Kevin H. (“Father”). Mother suffers from 

various intellectual and mental disorders, including bi-polar and schizoaffective disorder. 

Consequently, Mother receives substantial assistance from her parents, David B. and 

Pamela B. (together, “Petitioners”). David B., a doctor, manages Mother’s finances for 

 

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It is the policy of this Court to initialize the names of the children and parties in parental 

termination cases in order to protect the identity of minors. 

02/11/2021
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her. When the Child was born in 2017, Mother moved in with Petitioners so Petitioners

could assist Mother with the Child. The Child has lived in the home of the Petitioners ever 

since,2although Mother now lives in her own apartment nearby. By all accounts, the 

Petitioners have always been the caretakers of the Child, but Petitioners, Mother, and 

Father maintain an amicable relationship. Father at one point lived with Mother and the 

Petitioners in the Petitioners’ home. 

Father has been very involved in the Child’s life. Father regularly exercises 

visitation with the Child, sends her toys and clothing on her birthday and other holidays, 

and overall has a great deal of affection for the Child. Father has also given money to the 

Petitioners on a few occasions and has offered to purchase essentials such as diapers and 

wipes for Petitioners if necessary. It is also undisputed, however, that Father, like Mother, 

suffers from severe intellectual impairments and, in some respects, struggles to care for 

himself independently. The record reflects that Father lives in a dilapidated trailer that is 

in extremely poor condition. The photographs of the trailer in the record show that the 

trailer lacks adequate flooring and roofing, and that there are large amounts of debris, 

furniture, and garbage piled within. The record also contains a photograph that appears to 

depict animal feces in the trailer. Father struggles with reading and writing, seeking 

healthcare for himself, and self-care generally. For instance, the record reflects that Father 

is missing several teeth, and he often comes to visitation unwashed and in dirty clothing.

Father’s psychological report shows Father believes he has health insurance of some sort 

but struggles with understanding how to utilize it. Father also does not have, nor has ever 

had, a driver’s license. Nonetheless, Father owns his home, maintains his own bank 

account, and has no history of criminal activity or substance abuse. 

Petitioners filed a petition to terminate Father’s parental rights in the Circuit Court 

for Washington County (“trial court”) on December 9, 2019.3 Petitioners alleged three 

grounds for termination: abandonment by failure to support, persistence of conditions, and 

failure to manifest a willingness and ability to assume custody of the Child. Petitioners 

also alleged that termination was in the Child’s best interests. A trial was held on May 29, 

2020, at which Mother, Father, and Petitioners all testified. The proof offered by 

Petitioners largely showed that the Child has been in their care for most of her life and is

thriving in their home. Although Petitioners testified that Father has always been respectful 

to them and present in the Child’s life, they believe termination is in the Child’s best 

interests because Petitioners’ home is the only home the Child knows, and because Father’s 

current living situation is unsafe for the Child. Pamela B. expressed that while she does 

not believe Father would ever intentionally harm the Child, she believes Father would have 

 

2 Petitioners assert in their brief that they have had legal custody of the Child since a few days after 

her birth. The record, however, contains no order or other document corroborating this statement; all parties 

appear to agree, however, that the Child has been in the legal custody of Petitioners for essentially her entire 

life. 

3 Mother surrendered her rights to the Child prior to trial, and supports Petitioners’ efforts to adopt 

the Child. Mother is not a party to the present appeal.
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great difficulty providing the Child with a safe and stable environment. In contrast, Father 

testified that he does not want his parental rights terminated for fear of being cut off from 

the Child entirely. Although Father admitted that he struggles with some daily tasks such 

as reading and writing, he also testified that he receives disability and is able to manage his 

own money and live on his own. Father offered no countervailing proof regarding the 

conditions in his trailer, aside from his own testimony that he was in the process of fixing 

it up. 

The trial court took the case under advisement and issued its written order on June 

8, 2020. Concluding that Petitioners failed to meet their burden as to the failure to support 

allegation, the trial court declined to terminate Father’s parental rights pursuant to that 

ground. The trial court did find, however, that Father’s parental rights should be terminated 

for persistence of conditions and failure to manifest a willingness and ability to assume 

custody of the Child. The trial court also concluded that termination of Father’s parental 

rights was in the best interests of the Child. Father filed a timely notice of appeal to this 

Court. 

Issues

Father raises a single issue for review on appeal, which we have slightly rephrased 

as follows:

Whether the trial court erred in concluding that Petitioners offered clear and 

convincing evidence to support the alleged statutory grounds for termination of Father’s 

parental rights.4

Standard of Review

Our Supreme Court has explained that:

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

the judicially recognized fundamental liberty interests protected by the Due 

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

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

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

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

Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d

573, 578–79 (Tenn. 1993). But parental rights, although fundamental and 

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

250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors....’ 

 

4 We also review whether the trial court erred in concluding that termination is in the best interests 

of the Child. See In re Carrington H., 483 S.W.3d 507, 525–26 (Tenn. 2016) (“[I]n an appeal from an order 

terminating parental rights the Court of Appeals must review the trial court’s findings as to each ground for 

termination and as to whether termination is in the child’s best interests, regardless of whether the parent 

challenges these findings on appeal.”) (footnote omitted).
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Tennessee law, thus, upholds the [S]tate’s authority as parens patriae when 

interference with parenting is necessary to prevent serious harm to a 

child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,

429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,

102 S. Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d at 522–23. Tennessee Code Annotated section 36-1-113 

provides the various grounds for termination of parental rights. In re Jacobe M.J., 434 

S.W.3d 565, 568 (Tenn. Ct. App. 2013); see also Tenn. Code Ann. § 36-1-113(g). “A party 

seeking to terminate parental rights must prove both the existence of one of the statutory 

grounds for termination and that termination is in the child’s best interest.” Id. (citing 

Tenn. Code Ann. § 36-1-113(c)).

In light of the substantial interests at stake in termination proceedings, the 

heightened standard of clear and convincing evidence applies. In re Carrington H., 483 

S.W.3d at 522 (citing Santosky, 455 U.S. at 769). This heightened burden “minimizes the 

risk of erroneous governmental interference with fundamental parental rights[,]” and 

“enables the fact-finder to form a firm belief or conviction regarding the truth of the 

facts[.]” Id. (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)). “The clear-andconvincing-evidence standard ensures that the facts are established as highly probable, 

rather than as simply more probable than not.” Id. (citing In re Audrey S., 182 S.W.3d 838, 

861 (Tenn. Ct. App. 2005)). Accordingly, the standard of review in termination of parental 

rights cases is as follows: 

An appellate court reviews a trial court’s findings of fact in 

termination proceedings using the standard of review in Tenn. R. App. P.

13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at

246. Under Rule 13(d), appellate courts review factual findings de novo on 

the record and accord these findings a presumption of correctness unless the 

evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In

re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215

S.W.3d 793, 809 (Tenn. 2007). 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. The trial court’s ruling that 

the evidence sufficiently supports termination of parental rights is a 

conclusion of law, which appellate courts review de novo with no 

presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re

Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions of 

law in parental termination appeals, as in other appeals, are reviewed de novo 

with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
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In re Carrington H., 483 S.W.3d at 523–24.

Discussion 

I. Grounds for Termination 

Here, the trial court found that Petitioners proved two grounds for termination by 

clear and convincing evidence: persistence of conditions under Tennessee Code Annotated 

section 36-1-113(g)(3), and failure to manifest a willingness and ability to assume custody 

of the Child under section 36-1-113(g)(9). We address each ground in turn. 

A. Persistence of Conditions 

Tennessee Code Annotated section 36-1-113(g)(3)(A) explains that a person’s 

parental rights can be terminated when:

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

of a parent or guardian for a period of six (6) months by a court order entered 

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

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

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

child’s safe return to the care of the parent or guardian, or other conditions 

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

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

the parent or guardian;

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

date so that the child can be safely returned to the parent or guardian in the 

near future; and

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

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

permanent home.

The purpose of the persistence of conditions ground “is to prevent the child’s 

lingering in the uncertain status of foster child if a parent cannot within a reasonable time 

demonstrate an ability to provide a safe and caring environment for the child.” In re 

Navada N., 498 S.W.3d 579, 605 (Tenn. Ct. App. 2016). Consequently, “[t]he failure to 

remedy the conditions which led to the removal need not be willful.” Id. (citing In re T.S. 

and M.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *6 (Tenn. Ct. App. July 

13, 2000)). 

This ground for termination applies “only where the prior court order removing the 

child from the parent’s home was based on a judicial finding of dependency, neglect, or 

abuse.” In re Audrey S., 182 S.W.3d 838, 874 (Tenn. Ct. App. 2005); see also In re 
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Veronica T., No. M2017-00726-COA-R3-PT, 2018 WL 1410909, at *4 (Tenn. Ct. App. 

Mar. 21, 2018) (“An essential prerequisite to establishing persistence of conditions is 

evidence of a ‘prior court order removing the child from the parent’s home . . . based on a 

judicial finding of dependency, neglect or abuse.’” (quoting In re Aiden R., No. E2015-

01799-COA-R3-PT, 2016 WL 3564313, at *9 (Tenn. Ct. App. June 23, 2016))). This 

Court has reiterated many times that absent a judicial finding of dependency, neglect, or 

abuse prior to termination proceedings, the persistence of conditions ground is 

inapplicable. See, e.g., In re Francis R., No. M2018-00613-COA-R3-PT, 2018 WL 

5307887, at *7 (Tenn. Ct. App. Oct. 25, 2018) (termination of parental rights based upon 

persistence of conditions reversed where dependency and neglect order was not in the 

appellate record); In re Romeo T., No. M2018-00269-COA-R3-PT, 2018 WL 4189575, at 

*8 (Tenn. Ct. App. Aug. 31, 2018) (termination pursuant to persistence of conditions 

reversed where prior order relied on did not contain a judicial finding of dependency, 

neglect, or abuse); State, Dep’t of Children’s Servs. v. Hood, 338 S.W.3d 917, 928 (Tenn. 

Ct. App. 2009) (same). Indeed, we addressed the importance and process of dependency 

and neglect actions in In re Audrey S.: 

The March 28, 1996 temporary custody order and preceding 

restraining order were entered in a dependency and neglect proceeding, but 

they were not based on a judicial finding that Audrey S. was dependent, 

neglected, or abused. The statutes and rules governing procedure in the 

juvenile courts provide for three types of hearings in cases where a child is 

alleged to be dependent, neglected, or abused: (1) preliminary hearings; (2) 

adjudicatory hearings; and (3) dispositional hearings . . . . The function of the 

adjudicatory hearing is to determine whether the allegations of dependency, 

neglect, or abuse are true. . . . [T]he juvenile court’s finding that a child is 

dependent, neglected, or abused must be based on clear and convincing 

evidence, Tenn. Code Ann. § 37-1-129(c); Tenn. R. Juv. P. 28(f)(1)(i)-(ii). 

The purpose of the dispositional hearing, which follows the adjudicatory 

hearing, is to determine the proper placement for a child who has been found 

to be dependent, neglected, or abused. Tenn. Code Ann. § 37-1-

113(a) (2001)[.] . . . The March 28, 1996 temporary custody order resulted 

from a preliminary hearing, not an adjudicatory hearing, and the restraining 

order was designed merely to preserve the status quo in advance of the 

preliminary hearing. The temporary custody order contains an implicit 

judicial finding of probable cause that Audrey S. was dependent, neglected, 

or abused. It does not contain a finding, either explicit or implicit, that 

Audrey S. was in fact dependent, neglected, or abused. The juvenile court 

never held an adjudicatory hearing on [petitioner’s complaint] for temporary 

custody of Audrey S., and there is no other court order in the record prior to 

the filing of the joint termination petition that reflects a finding of 

dependency, neglect, or abuse with respect to Audrey S. Accordingly, the 
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juvenile court erred in relying on Tenn. Code Ann. § 36-1-113(g)(3) as a 

ground for terminating [mother’s] parental rights to Audrey S.

182 S.W.3d at 874–75 (some citations omitted). Importantly, “the child must not only have 

been adjudicated dependent and neglected, but he or she must also have been removed 

from the defendant parent’s home.” In re Veronica T., 2018 WL 1410909, at *4 (citing In 

re Mickia J., No. E2016-00046-COA-R3-PT, 2016 WL 5210794, at *5 (Tenn. Ct. App. 

Sept. 19, 2016)).

Here, the record contains only one document regarding custody of the Child prior 

to the termination proceedings. On November 14, 2019, the Juvenile Court for Johnson 

City (“juvenile court”) entered an order providing that Father “is in agreement . . . that 

custody of his daughter shall remain with [Petitioners,]” and that “this is in [the Child’s] 

best interest.” This order provides nothing regarding dependency, neglect, or abuse, but 

states that it arises from a dispositional hearing. Accordingly, this order is different from 

the one at issue in In re Audrey S., because that case dealt with a preliminary hearing order. 

Nonetheless, like the record in In re Audrey S., the record here does not conclusively reflect 

whether a juvenile court held an adjudicatory hearing to determine whether the Child was 

dependent, neglected, or abused in Father’s care. Petitioners attempt to address this issue 

on appeal, arguing that the November 2019 order establishes that the Child was adjudicated 

dependent, neglected, or abused in Father’s care based upon one sentence in the order: 

“This matter was set for a Dispositional Hearing.” According to Petitioners, because a 

dispositional hearing is the final step in a dependency and neglect proceeding, see In re 

Audrey S., 182 S.W.3d at 874–75, this Court may presume that a judicial finding of 

dependency, neglect, or abuse was made against Father. In support, Petitioners rely on In 

re Jude M., No. E2020-00463-COA-R3-PT, 2020 WL 6233742 (Tenn. Ct. App. Oct. 22, 

2020). 

However, In re Jude M. does not help the Petitioners here. In that case, the father 

of a young child filed a petition for emergency custody after the child’s mother began to 

struggle with mental health issues and substance abuse. Id. at *1. The father’s petition 

was not entered into the record. Id. The juvenile court entered an order granting temporary 

physical custody of the child to the father, finding that the mother was struggling to care 

for herself and the child, and lacked stable housing and employment. Id. After mediation 

and a subsequent hearing, the juvenile court entered a second order, a mediated agreement,

in which it concluded that father would have custody of the child, mother would have 

supervised visitation, and that this arrangement was in the best interests of the child. Id. at 

*1–2. Later, the father and his wife filed a petition to terminate the mother’s parental rights, 

alleging, inter alia, persistence of conditions pursuant to section 36-1-113(g)(3). Id. at *2. 

After the trial court terminated her parental rights pursuant to this ground, the mother 

appealed, arguing that the record did not sufficiently indicate that the child was adjudicated 

dependent and neglected in the mother’s care. Id. at *4–5. 

This Court agreed with the mother, concluding that “whether [f]ather alleged that 

the [c]hild was a dependent and neglected [c]hild in his emergency petition cannot be 
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discerned from the juvenile court’s findings.” Id. at *13. We explained that “this Court 

has previously reviewed the substance of a parent’s petition to determine whether the 

allegations amounted in substance to allegations of dependency and neglect, pursuant to 

the statutory definition of a dependent and neglected child, when the petitioning parent 

failed to invoke the statutory language in the petition.” Id. at *12. We noted, however,

that because there was no petition in the record in that case, we could look to the “juvenile 

court’s orders for findings related to allegations of dependency and neglect, comparing the 

court’s findings to the statutory definition” in order to discern whether allegations of 

dependency and neglect had been made. Id. 

Based on the juvenile court’s findings that “[m]other was struggling to care for . . . 

the parties’ minor child” and that placing the child in father’s custody was “in the best 

interest of the child[,]” we concluded that the record did not sufficiently indicate that the 

father had alleged the child was dependent and neglected in the original petition, much less 

that those allegations were proven. Id. at *13. Pertinent to the case at hand, we also noted 

that “the juvenile court did not state in either order that the hearing giving rise to the order 

was a preliminary, adjudicatory, or dispositional hearing based on allegations of 

dependency and neglect.” Id.

Returning to the present case, Petitioners assert, based on In re Jude M., that the 

November 2019 order provides enough for us to determine that allegations of dependency 

and neglect were leveled against Father and then found to be true by the juvenile court. 

Petitioners aver that because the order provides that it arises from a “Dispositional 

Hearing,” we are free to presume that allegations of dependency and neglect against Father 

were adjudicated by the juvenile court. We are unpersuaded by Petitioners’ argument. 

There is nothing in the record indicating that Petitioners alleged the Child was dependent 

and neglected by Father, much less that any juvenile court ever held an adjudicatory 

hearing on those allegations. Such allegations would make little sense in light of the fact 

that, as best we can discern, the Child has never been in Father’s custody. By Petitioners’ 

own testimony, the Child has been with them since mere days after her birth. See In re 

Veronica T., 2018 WL 1410909, at *4 (noting that for persistence of conditions to apply, 

“the child must not only have been adjudicated dependent and neglected, but he or she 

must also have been removed from the defendant parent’s home”).

The November 2019 order merely provides that the parties agree custody should 

remain with Petitioners and that this custody arrangement is in the best interests of the 

Child. There is no mention of dependency and neglect, the statutory code section 

addressing dependency and neglect, or any findings of wrongdoing by Father. We do not 

read In re Jude M. so broadly as to mean that a fleeting mention of a dispositional hearing 

amounts to a judicial finding of dependency and neglect. Petitioners essentially urge us, 

based on one sentence in the 2019 order, to surmise as to the entirety of the juvenile court

proceedings alleged to have occurred. We are not inclined to do so. See Reid v. Reid, 388 

S.W.3d 292, 294–95 (Tenn. Ct. App. 2012) (“[T]he Court’s power to review is limited to 
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those ‘factual and legal issues for which an adequate legal record has been preserved’. . . 

.The duty to see to it that the record on appeal contains a fair, accurate, and complete 

account of what transpired with the respect to the issues . . . falls squarely on the shoulders 

of the parties themselves, not the courts.” (citing Trusty v. Robinson, No. M2000-01590-

COA-R3-CV, 2001 WL 96043, at * 1 (Tenn. Ct. App. Feb. 6, 2001))). 

The sparse appellate record renders it difficult to discern the procedural history of 

this case prior to the termination proceedings; to the extent a juvenile court did adjudicate 

the Child dependent, neglected, or abused by Father in the past, it was incumbent upon 

Petitioners to provide proof. See Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 

712–13 (Tenn. 2005) (explaining that appellees “share[] the responsibility for ensuring the 

appellate court has a complete record”). Because the record does not indicate that the Child 

was ever removed from Father’s custody based on a judicial finding of dependency, 

neglect, or abuse as to Father, the ground of persistence of conditions is inapplicable here,

and the trial court’s decision is reversed as to this ground. In re Audrey S., 182 S.W.3d at 

874–75.

B. Failure to Manifest a Willingness and Ability to Assume Custody Pursuant 

to Section 36-1-113(g)(9)

Next, the trial court terminated Father’s parental rights pursuant to Tennessee Code 

Annotated section 36-1-113(g)(9)(A)(iv) and (g)(9)(A)(v). This section provides grounds 

for termination applicable to putative fathers, in relevant part:

(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, . . . 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; 

(v) Placing custody of 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[.]

As a threshold matter, there is great confusion amongst the parties and the trial court 

regarding section 36-1-113(g)(9) and its applicability to this case. For instance, Father 

asserts in his brief that the trial court erroneously terminated Father’s parental rights based 

upon both sections 36-1-113(g)(9)(A)(iv) and (v), despite the fact that these are separate 

grounds for termination, and only subsection (g)(9)(A)(iv) was alleged in Petitioners’ 
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complaint. Further, Petitioners inexplicably assert that section 36-1-113(g)(14) is the 

statute under which we should proceed, notwithstanding the fact that this statute is not 

mentioned in their petition and was not found by the trial court. Petitioners argue that 

Father is the legal, rather than the putative, father of the Child, and that as such, section 36-

1-113(g)(9) is inapplicable. Petitioners then assert that section 36-1-113(g)(14), although 

not pled in their petition, was tried by implied consent.5 

We must first address whether Father is the legal or putative father of the Child, 

because the grounds for termination listed in Tennessee Code Annotated section 36-1-

113(g)(9) are inapplicable to Father if he is the Child’s legal parent. See In re Brayla T., 

No. M2019-02265-COA-R3-PT, 2020 WL 5524618, at *3–4 (Tenn. Ct. App. Sept. 14, 

2020) (“[Section] 36-1-113(g)(9)(A) provides grounds for terminating parental rights that 

are applicable only to putative fathers.”); In re Victoria H., No. M2017-01162-COA-R3-

PT, 2018 WL 1092156, at *3 (Tenn. Ct. App. Feb. 27, 2018) (“In order to determine 

whether clear and convincing evidence exists to terminate Father’s parental rights under 

section 36-1-113(g)(9)(A), we must first determine whether Father is a putative father.”). 

This question involves the interplay of two Tennessee statutes, the first one being section 

36-1-102(29), which provides in relevant part:

(A) “Legal parent” means:

(i) The biological mother of a child;

(ii) A man who is or has been married to the biological mother 

of the child if the child was born during the marriage or within 

three hundred (300) days after the marriage was terminated for 

any reason, or if the child was born after a decree of separation 

was entered by a court;

(iii) A man who attempted to marry the biological mother of

the child before the child’s birth by a marriage apparently in

compliance with the law, even if the marriage is declared 

invalid, if the child was born during the attempted marriage or 

 

5 Tennessee Code Annotated section 36-1-113(g)(14) is similar to section 36-1-113(g)(9)(A)(iv) 

and (v), providing that parental rights may be terminated when: 

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

to personally assume legal and physical custody or financial responsibility of the child, and 

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

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

Whereas section 36-1-113(g)(9)(A)(iv) and (v) are separate grounds for termination, see In re E.C., 

No. E2016-02582-COA-R3-PT, 2017 WL 2438574, at *8 (Tenn. Ct. App. June 6, 2017), section 36-1-

113(g)(14) is one ground for termination with two distinct elements. 
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within three hundred (300) days after the termination of the 

attempted marriage for any reason;

(iv) A man who has been adjudicated to be the legal father of 

the child by any court or administrative body of this state or 

any other state or territory or foreign country or who has 

signed, pursuant to §§ 24-7-113, 68-3-203(g), 68-3-302, or 68-

3-305(b), an unrevoked and sworn acknowledgment of 

paternity under Tennessee law, or who has signed such a sworn 

acknowledgment pursuant to the law of any other state, 

territory, or foreign country; or

(v) An adoptive parent of a child or adult;

(B) A man shall not be a legal parent of a child based solely on 

blood, genetic, or DNA testing determining that he is the biological 

parent of the child without either a court order or voluntary 

acknowledgement of paternity pursuant to § 24-7-113. Such test may 

provide a basis for an order establishing paternity by a court of 

competent jurisdiction, pursuant to the requirements of § 24-7-112[.]

The term “putative father” is also statutorily defined: 

(44) “Putative father” means a biological or alleged biological father 

of a child who, at the time of the filing of a petition to terminate the 

parental rights of such person . . . meets at least one (1) of the criteria 

set out in § 36-1-117(c) and is not a legal parent[.]

Tenn. Code Ann. § 36-1-102(44). Pursuant to Tennessee Code Annotated section

36-1-117(c), in relevant part:

(c) The parental rights of the putative father of a child who has not 

filed a petition to establish paternity of the child or who has not 

established paternity of the child who is the subject of an adoption 

proceeding and who meets any of the following criteria shall be 

terminated by surrender, parental consent, termination of parental 

rights pursuant to § 36-1-113, or by waiver of interest, before the court 

may enter an order of adoption concerning that child:

* * *

(3) The biological father has claimed to the child’s biological mother, 

or to the petitioners or their attorney, or to the department, a licensed 

child-placing agency, or a licensed clinical social worker who or that 
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is involved in the care, placement, supervision, or study of the child 

that the biological father believes that the biological father is the father 

of the child; provided, that if the biological father has previously 

notified the department of the biological father’s claim to paternity of 

the child pursuant to the putative father registry, § 36-2-318(e)(3), the 

biological father shall be subject to all the requirements for waiver of 

notice provisions of § 36-2-318(f)(2) and to all requirements for filing 

a paternity petition[.]

Based on the foregoing definitions, Father is the putative, rather than the legal,

father of the Child. Father does not fall into any of the categories listed in section 36-1-

102(29)(A). Moreover, although Petitioners posit in their brief that Father is the legal 

parent of the Child because his paternity has been confirmed through DNA testing, section 

36-1-102(29)(B) makes plain that such is not the case. The DNA test results do not appear 

in the record, nor is there an order regarding parentage or a voluntary acknowledgment of 

paternity. Consequently, the record does not show that Father has been established as the 

legal parent of the Child as Petitioners suggest. See Tenn. Code Ann. § 36-1-102(29)(B). 

Rather, Father falls into the category of putative father inasmuch as he is an “alleged 

biological father” who, at the time the petition for termination was filed, had “claimed to 

the child’s biological mother” and the Petitioners that he believed himself to be the 

biological father of the Child. Tenn. Code Ann. § 36-1-102(44); § 36-1-117(c)(3). 

As such, the trial court did not err in applying section 36-1-113(g)(9) in this case, 

as Petitioners alleged this ground in their petition, and Father is not the Child’s legal parent. 

Accordingly, the Petitioners’ assertion that section 36-1-113(g)(14) was tried by consent 

and is now the applicable statute is confounding and need not be reached. Indeed, the

Petitioners invited the confusion over this matter by alleging one statutory ground in their 

petition but a completely different statute on appeal; further, Petitioners allege section 36-

1-113(g)(14) as a ground for termination for the very first time on appeal. See Tenn. R. 

App. P. 36(a) (providing that this Court need not grant relief to a party responsible for an 

error); State v. Banks, 271 S.W.3d 90, 170 (Tenn. 2008) (“Tennessee law is wellestablished that a party who invites or waives error, or who fails to take reasonable steps 

to cure an error, is not entitled to relief on appeal.”); Main Street Market, LLC v. Weinberg, 

432 S.W.3d 329, 340 n.4 (Tenn. Ct. App. 2013) (“It is well established [] that issues not

raised at trial will not be considered for the first time on appeal.”). 

Having determined that section 36-1-113(g)(9) applies, we must next address 

Father’s contention that the trial court should not have terminated his parental rights 

pursuant to subsection (g)(9)(A)(v) because it was not pled in the petition for termination.6

We agree with Father. The petition alleges only Father’s failure to manifest a willingness 

and ability to assume custody of the Child and does not aver that the Child would be at a 

 

6 Petitioners have not argued on appeal that section 36-1-113(g)(9)(A)(v) was tried by consent. 
13

risk of substantial harm if placed in Father’s custody. See Tenn. Code Ann. § 36-1-

113(g)(9)(A)(v). A parent’s rights cannot be terminated pursuant to statutory grounds not 

alleged in the petition. See, e.g., In re Tristyn K., No. E2010-00109-COA-R3-PT, 2010 

WL 2867179, at *5 (Tenn. Ct. App. July 22, 2010) (“A trial court cannot terminate parental 

rights based on a ground that is not alleged in the complaint.” (citing M.D. v. R.L.H., No.

E2005-00324-COA-R3-PT, 2005 WL 3115874, at *3 (Tenn. Ct. App. Nov. 22, 2005))); In 

re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (parental rights could not be 

terminated based on severe abuse when ground was not mentioned in prayer for relief). 

Thus, the portion of the trial court’s order finding that Father’s parental rights should be 

terminated based upon section 36-1-113(g)(9)(A)(v)7is vacated.

We turn finally to whether the trial court correctly concluded that Petitioners proved, 

by clear and convincing evidence, that Father’s parental rights should be terminated

pursuant to section 36-1-113(g)(9)(A)(iv).

8 The trial court found that Father failed to 

manifest a willingness and ability to assume custody of the Child. Specifically, the trial 

court found that “Father has not filed for or contested the [P]etitioners’ legal custody of the

[C]hild[;] in fact, he agreed to [P]etitioners being named legal custodians in the Juvenile 

Court Order.” The trial court further found that “[Father] is simply not capable of providing 

the care and supervision for the [C]hild[.]” 

The record does not preponderate against the trial court’s findings with regard to 

this ground. Although Father claimed at trial that he would like to obtain custody of the 

Child, the trial court correctly noted that Father has never taken any steps to do so. 

Moreover, Father’s testimony at trial reflects an awareness that his living conditions are 

unacceptable for a child, inasmuch as he testified that he was in the process of trying to 

improve his trailer and install an adequate roof. Nonetheless, the Child has been in the 

custody of the Petitioners for over three years, and Father has not taken the necessary steps 

to make his home suitable for the Child. See In re Zaylee W., No. M2019-00342-COAR3-PT, 2020 WL 1808614, at *5 (Tenn. Ct. App. Apr. 9, 2020) (“[A] parent must have 

demonstrated willingness by attempting to overcome the obstacles that prevent them 

from assuming custody[.]”); In re Rilyn S., No. E2018-00027-COA-R3-PT, 2019 WL 

1130442, at *8 (Tenn. Ct. App. Mar. 12, 2019) (addressing this ground for termination and 

noting that we look to “the father’s actions, not his expressions of intention” (citing In re

E.C., 2017 WL 2438574, at *8)). Although we sincerely commend Father for his consistent 

involvement in the Child’s life, we cannot conclude that the record preponderates against 

 

7 The trial court’s final order states that subsections (g)(9)(A)(iv) and (v) are two elements of one 

ground for termination, suggesting that the trial court conflated section 36-1-113(g)(9) with section 36-1-

113(g)(14). This error is harmless, however, in light of our ultimate conclusion that clear and convincing 

evidence supports termination of Father’s rights pursuant to section 36-1-113(g)(9)(A)(iv), and because 

termination based upon section 36-1-113(g)(9)(A)(v) is vacated. 

8 We have previously explained that grounds for termination provided in section 36-1-113(g)(9) 

“are less difficult to prove than the grounds in [section] 36-1-113(g)(1)–(8)[.]” In re E.C., 2017 WL 

2438574, at *8 (quoting In re H.A.L., No. M2005-00045-COA-R3-PT, 2005 WL 954866, at *9 (Tenn. Ct. 

App. Apr. 25, 2005)).
14

the trial court’s finding that Father has never attempted to assume custody of the Child. 

Indeed, until this juncture Father has apparently been content to allow the Petitioners to 

maintain custody. See In re Jaylan J., No. W2019-02025-COA-R3-PT, 2020 WL 

7861378, at *23 (Tenn. Ct. App. Dec. 22, 2020) (mother demonstrated willingness to 

assume custody of child through stated willingness as well as efforts to file pro se petition 

for custody); In re Colton B., No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *10 

(Tenn. Ct. App. Oct. 29, 2018) (expounding on how a parent’s omissions also speak to 

willingness to assume custody). 

The evidence also establishes that Father is simply unable to assume custody of the 

Child under his present circumstances. Father has great difficulty caring for himself and, 

unfortunately, lives in distressing conditions. See In re Cynthia P., No. E2018-01937-

COA-R3-PT, 2019 WL 1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019) (“Ability focuses 

on the parent’s lifestyle and circumstances.” (citing In re Maya R., No. E2017-01634-

COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018))); In re Rilyn S., 

2019 WL 1130442, at *8 (“As to this ground, courts consider whether a father is in a 

position to care for the child.”). Father offered no evidence at trial that the conditions 

depicted in his home have substantially improved, and Father agreed that the trailer lacks 

an adequate roof and has water leaks.9 The record also shows that Father has difficulty 

managing health insurance and seeking healthcare generally, both of which are of the 

utmost importance in caring for a toddler. In that vein, Father also testified that he would 

not know what to feed the Child if he were to assume custody, a statement which inspires 

little confidence that Father would be able to safely parent the Child.10 Overall, the record 

supports the trial court’s finding that, sadly, Father is not “in a position to care for the 

[C]hild” at this time. In re Rilyn S., 2019 WL 1130442, at *8. 

We conclude that Petitioners presented clear and convincing evidence that Father’s

parental rights should be terminated pursuant to Tennessee Code Annotated section 36-1-

113(g)(9)(a)(iv). The judgment of the trial court is affirmed as to this ground. 

II. Best Interests 

In addition to proving at least one statutory ground for termination, a party seeking 

to terminate a parent’s rights must prove by clear and convincing evidence that termination 

is in the child’s best interests. Tenn. Code Ann. § 36-1-113(c). Indeed, “a finding of 

unfitness does not necessarily require that the parent’s rights be terminated.” In re Marr, 

194 S.W.3d 490, 498 (Tenn. Ct. App. 2005) (citing White v. Moody, 171 S.W.3d 187 

(Tenn. Ct. App. 2004)). Rather, our termination statutes recognize that “not all parental 

conduct is irredeemable[,]” and that “terminating an unfit parent’s parental rights is not 

always in the child’s best interests.” Id. As such, the focus of the best interests analysis is 

 

9 Father did testify that some of the debris outside of and within the trailer had been removed.

10 This conclusion is also buttressed by Father’s psychological evaluation that was offered into 

evidence without objection, and which provides that Father’s “intellectual and adaptive functioning 

concerns are significant when it comes to obtaining custody of [the Child],” and that Father would likely 

require “a high level of support” if he were to do so. 
15

not the parent but rather the child. Id.; see also White, 171 S.W.3d at 194 (“[A] child’s 

best interest must be viewed from the child’s, rather than the parent’s, perspective.”).

Tennessee Code Annotated section 36-1-113(i) provides nine factors for analyzing 

best interests, and we address the trial court’s findings as to each factor in turn. We note, 

however, that this list is non-exhaustive. In re Marr, 194 S.W.3d at 499. “Ascertaining a 

child’s best interests does not call for a rote examination of each of Tenn. Code Ann. § 36-

1-113(i)’s nine factors and then a determination of whether the sum of the factors tips in 

favor of or against the parent.” Id. “The relevancy and weight to be given each factor 

depends on the unique facts of each case.” Id. “Thus, depending upon the circumstances 

of a particular child and a particular parent, the consideration of one factor may very well 

dictate the outcome of the analysis.” Id. (citing In re Audrey S., 182 S.W.3d at 877). 

The first best interest factor provides: 

(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;

Here, the trial court found that Father “has not made, and in all probability cannot 

make, any adjustment of his circumstances or conditions that would make it safe and in the 

Child’s best interest to be in Father’s home.” The record does not preponderate against 

this factual finding. As discussed already, the record reflects that Father’s living conditions 

are unsafe for a young child, and Father offered no counter-proof that these conditions are 

likely to significantly improve any time soon. 

(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;

The trial court found that factor two is inapplicable here and we agree; there is no 

information in the record regarding whether Father has been provided any social services. 

(3) Whether the parent or guardian has maintained regular visitation or other 

contact with the child;

As it is undisputed that Father consistently visits the Child, the record preponderates 

in favor of the trial court’s finding that this factor favors Father. Pamela B. testified that 

on occasions when Father is without transportation, he walks to see the Child. Father’s 

commitment to his scheduled visitation with the Child militates heavily against 

termination. 

(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child;
16

As to the fourth factor, the trial court found that “although Father has regularly 

visited the [C]hild, there is not really a meaningful relationship. It was not clear from the 

evidence that the [C]hild even understands who Father is.” Here, we cannot conclude that 

the record preponderates in favor of the trial court’s findings. Although Pamela B. indeed 

testified that the Child does not understand Father’s role in her life, Father testified that the 

Child is happy and excited to see him at visitation, plays with Father, and allows Father to 

pick her up. Given the tender age of the Child, the foregoing suggests a loving relationship 

between the Child and Father, notwithstanding whether the Child refers to Father as 

“father.” This factor militates against termination. 

(5) The effect a change of caretakers and physical environment is likely to 

have on the child’s emotional, psychological and medical condition;

Here, the trial court found that given the Petitioners’ home is the only one known to

the Child, “uprooting [the Child] from this environment would be devastating to her.” We 

must conclude that the record preponderates in favor of this finding and that factor five 

militates in favor of termination. Father does not dispute that Pamela B. is the only person 

who has ever parented the Child on a daily basis, and Pamela B. has the ability to stay 

home with the Child full-time. The Child and Pamela B. have an established, structured 

routine under which the Child is thriving. In contrast, there is no indication the Child has 

ever been in Father’s custody, nor is there any indication the Child has ever been outside 

of her current physical environment for a long period of time. Moreover, placing the Child 

in Father’s home, in its current state, would be incomprehensible given the health and 

safety risks. Accordingly, factor five supports termination of Father’s rights and is 

compelling under the circumstances. 

(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;

The trial court found, and we agree, that factor six is inapplicable in this case. 

(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;

With regard to factor six, the trial court aptly found that “Father’s home is not 

healthy and safe for a three-year old child.” As we have already discussed at length, the 

record supports this finding, and factor seven weighs in favor of termination. 

(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; 
17

Addressing the eighth factor, the trial court found that “[t]he proof is unrefuted that 

Father suffers from an intellectual disability[,]” and noted that Father’s impairments would 

be “detrimental to the [C]hild and prevent him from effectively providing a safe home and 

stable care . . . for the [C]hild.” Again, we must conclude that the record preponderates in 

favor of the trial court’s findings. Father did not dispute the evidence that he suffers from 

a mental impairment, although he did testify that he did not believe this impairment renders 

him unable to care for the Child. Nonetheless, the record contains numerous examples of 

Father’s difficulty comprehending the needs of a young child, not least of which include 

the state of Father’s home and Father’s admission that he does not know what the Child 

needs to eat. Although we certainly do not fault Father for his lack of understanding, we 

also cannot conclude that the record preponderates against the trial court’s findings as to 

this factor. Factor eight weighs in favor of termination. 

(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.

The trial court found that factor nine did not favor any party because although Father 

has not paid support consistently, Father struggles financially and subsists largely on longterm disability. The record preponderates in favor of this finding. 

Considering the foregoing in toto, we agree with the trial court that “the combined 

weight of all of these factors amount[s] to clear and convincing evidence that termination 

[of Father’s parental rights] is in the [C]hild’s best interests.” Particularly compelling in 

this case is the fact that the Child has never lived in any home other than Petitioners’, see

In re M.E.T., No. W2016-00682-COA-R3-PT, 2016 WL 6962306, at *10 (Tenn. Ct. App. 

Nov. 29, 2016), and that the Child would more than likely be placed in an unhealthy and 

unsafe physical environment if Father gained custody. Although we feel the utmost 

sympathy for Father’s situation, we are required to consider best interests from the Child’s 

perspective, rather than Father’s. See White, 171 S.W.3d at 194. Consequently, we 

conclude that the evidence clearly and convincingly establishes that termination of Father’s 

parental rights is in the best interests of the Child.

Conclusion

The judgment of the Washington County Circuit Court is hereby reversed in part, 

affirmed in part, vacated in part, and remanded for further proceedings consistent with this 

Opinion. Costs on appeal are assessed against Father, Kevin H., for which execution may 

issue if necessary. 

________________________________

KRISTI M. DAVIS, JUDGE