IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 4, 2018

IN RE PAETYN M. ET AL.

Appeal from the Juvenile Court for McNairy County

No. 2014-JV-49 Van McMahan, Judge

___________________________________

No. W2017-02444-COA-R3-PT

___________________________________

Father petitioned to terminate the parental rights of the mother of his child. Father later 

married and, along with his spouse, joined in an amended petition for termination of 

parental rights and for adoption. The amended petition alleged mother abandoned the 

child by failure to visit and failure to support. On the date scheduled for trial, Mother 

failed to appear, and her attorney was denied a continuance. Following the trial, the 

juvenile court found by clear and convincing evidence that mother had abandoned her 

child by willful failure to visit and willful failure to support and a third statutory ground 

not asserted in the amended petition. The court also found by clear and convincing 

evidence that termination of mother’s parental rights was in the child’s best interest. On 

appeal, mother challenges the court’s subject matter jurisdiction. Mother also asserts that 

the court erred in denying her request for a continuance and that the proof was less than 

clear and convincing as to the grounds for termination and the child’s best interest. We 

conclude that the record only supports one statutory ground for termination of parental 

rights, abandonment by willful failure to visit. Otherwise, we affirm the judgment. 

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

Modified

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which THOMAS R.

FRIERSON II and ARNOLD B. GOLDIN, JJ., joined.

G.W. Sherrod III, Henderson, Tennessee, (on appeal only) for the appellant, Tabitha M.

Benjamin S. Harmon, Savannah, Tennessee, for the appellees, Jessie M. and Rachel M.

Melissa G. Stewart, Savannah, Tennessee, Guardian Ad Litem for Paetyn M.

02/14/2019
2

OPINION

I.

A.

On November 12, 2015, in the Juvenile Court of McNairy County, Tennessee, 

Jessie M. (“Father”), the father of Paetyn M., filed a petition to terminate the parental 

rights of Paetyn’s mother, Tabitha M. (“Mother”). As grounds for termination, Father 

alleged abandonment by willful failure to visit and by willful failure to support. See

Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2016). Curiously, Father also alleged a ground 

for termination only applicable to putative fathers, “fail[ure], without good cause or 

excuse, to pay a reasonable share of prenatal, natal, and postnatal expenses involving the 

birth of the child in accordance with the person’s financial means.” Id. § 36-1-

113(g)(9)(A)(i). 

Mother answered Father’s petition, denying the bulk of Father’s allegations. She 

also requested custody and child support from Father in what she characterized as a 

“counter-complaint.” 

Just over a year after he filed his petition for termination of parental rights, Father

joined his wife, Rachel M. (“Stepmother”), in filing an amended petition for termination 

of parental rights and for adoption. The amended petition explained that Father had 

married Stepmother on July 29, 2016, and that Father was joining in the petition “for the 

purpose of consenting to the adoption of [Paetyn].” The amended petition omitted failure 

to pay prenatal, natal, and postnatal expenses but otherwise alleged the same grounds for 

terminating Mother’s parental rights as the original petition.1

On July 18, 2017, Mother’s counsel moved to withdraw for nonpayment of his 

fees. At a hearing held the same day, the juvenile court, with Mother’s consent, granted 

counsel leave to withdraw and appointed counsel for Mother. Apparently, as part of the 

same hearing, the court also set the case for trial for August 23, 2017. 

B.

 

On the day of the trial, Mother’s appointed counsel appeared, but Mother did not. 

When the court inquired about her absence, counsel explained that Mother had been out 

 

1 The amended petition also included statutory requisites for petitions to terminate that had been 

omitted in Father’s original petition. Subsection (d) of the parental termination statute, Tennessee Code 

Annotated § 36-1-113, requires petitions to contain certain elements. Tenn. Code Ann. § 36-1-113(d). 

Father’s original petition did not contain any of the content required by subsection (d)(3)(A) or (C). The 

original petition also omitted the notice regarding the special provisions for appeals of termination 

decisions. See Tenn. R. Civ. P. 9A. 
3

of work due to a staph infection. Counsel said he told Mother that he had not “had any 

luck getting [the case] continued as of yet” and that, as a result, Mother needed to be 

present.2 According to counsel, Mother had called his office forty-five minutes prior to

explain that she would be running late because her ride could not bring her from 

Dyersburg to Selmer, where the trial was set.

The court announced its intention to proceed once the guardian ad litem arrived, 

who was also running late. Mother’s counsel then moved for a continuance based on 

Mother’s staph infection and counsel’s concern that Mother was “contagious.” The court 

asked several questions, including when counsel had last spoken with Mother and when 

Mother was diagnosed with her condition. Counsel stated that he had spoken with 

Mother the preceding day and that morning. He believed Mother was diagnosed with the 

infection the day before the hearing. He presented the court with some medical records. 

But counsel conceded that none of the records showed Mother had a staph infection.

The court denied the requested continuance. The court stated, following its review 

of the records, that it could only find Mother had a “urinary tract infection, which is not 

sufficient to excuse one’s absence . . . for a hearing in terms of . . . parental rights.” 

Only Father testified during the trial. According to Father, in approximately 

January 2015, the Department of Children’s Services contacted him to pick up Paetyn 

from Mother’s home. Paetyn had been living with Father since he was three months old, 

but two hours prior to the Department’s call, Father had allowed Mother to take the child 

for a visit. When he arrived at Mother’s home, he found “two or three social workers and 

two or three cops.” The Department informed Father that Mother had methamphetamine 

in her system and that Paetyn needed to be tested for exposure. 

Father claimed that Mother admitted to drug use after that incident. He testified 

that, during the course of a deposition he attended, Mother confessed to 

methamphetamine use in February 2015 and April 2016. 

At the time of the trial, Mother had not seen Paetyn in over two years. Mother last 

exercised visitation when the child was one year old; Paetyn was age four and one-half at 

trial. Father stated that Mother’s visits were inconsistent, lasting “an hour, hour and a 

half maybe,” and stopped after six or eight visits. Mother petitioned for visitation in 

October 2016, and although she was awarded supervised visitation, Mother was unable to 

exercise it because she was arrested for shoplifting shortly thereafter. 

When it awarded custody of Paetyn to Father, the court ordered Mother to pay 

Father child support of $116.00 per month. Father testified to receiving “about $300 

roughly” from Mother. The last payment was received “[a]bout a year and a half” prior 

 

2 The technical record does not include any motions requesting a continuance.
4

to the trial. When asked if he had received any other form of support from Mother such 

as diapers, clothes, or gifts for the child, Father denied receiving any such support.

Father lived with Stepmother, Paetyn, Stepmother’s son, who was about the same 

age as Paetyn, and an eight-week old baby boy that he shared with Stepmother. Father 

was employed and asserted he had the ability to financially support the family. While 

Father worked, Stepmother cared for the children at home. According to Father, Paetyn 

had bonded with Stepmother and referred to her as “Mom.” Father also testified to 

Stepmother’s desire to adopt Paetyn. 

After Father’s testimony, the juvenile court announced that it would grant the 

petition to terminate Mother’s parental rights. In its written order, the court concluded 

that Father and Stepmother had “proven by clear and convincing evidence that Mother 

ha[d] abandoned the minor child by willingly failing to exercise any meaningful 

visitation and willingly failing to provide any meaningful support.” The court further 

concluded that Father and Stepmother had “proven by clear and convincing evidence that 

Mother ha[d] failed to remedy the conditions that led to the minor child’s removal.” 

Finally, the court determined that it was in Paetyn’s best interest to terminate Mother’s 

parental rights. 

II.

A parent has a fundamental right, based in both the federal and State constitutions, 

to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 

(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 

921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 

547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d 

at 250. Our Legislature has identified those situations in which the State’s interest in the 

welfare of a child justifies interference with a parent’s constitutional rights by setting 

forth the grounds upon which termination proceedings may be brought. See Tenn. Code 

Ann. § 36-1-113(g).

Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures 

for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015). 

First, parties seeking termination of parental rights must prove the existence of at least 

one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-

113(g). Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for 

termination are shown, they then must prove that terminating parental rights is in the 

child’s best interest. Id. § 36-1-113(c)(2).

Because of the constitutional dimension of the rights at stake in a termination 

proceeding, parties seeking to terminate parental rights must prove both the grounds and 

the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d 
5

586, 596 (Tenn. 2010). This heightened burden of proof serves “to minimize the 

possibility of erroneous decisions that result in an unwarranted termination of or 

interference with these rights.” Id. “Clear and convincing evidence” leaves “no serious 

or substantial doubt about the correctness of the conclusions drawn from the evidence.” 

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm 

belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be 

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

III.

A.

As an initial matter, Mother submits the juvenile court lacked subject matter 

jurisdiction because Father lacked standing to terminate her parental rights to their child.

Without subject matter jurisdiction a court lacks the “power to adjudicate a particular 

type of controversy,” and any resulting judgment is void. Dishmon v. Shelby State Cmty. 

Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999). Our “determination of whether subject 

matter jurisdiction exists is a question of law, [so] our standard of review is de novo, 

without a presumption of correctness.” Northland Ins. Co. v. State, 33 S.W.3d 727, 729 

(Tenn. 2000).

Because in parental termination cases “a statute creates [the] cause of action and 

designates who may bring [the] action, the issue of standing is interwoven with that of 

subject matter jurisdiction and becomes a jurisdictional prerequisite.” Osborn v. Marr, 

127 S.W.3d 737, 740 (Tenn. 2004). Standing to file the petition to terminate parental 

rights “is a necessary prerequisite to the court’s exercise of subject matter jurisdiction.” 

Id. In other words, “a court does not have subject matter jurisdiction to hear such a 

petition unless the party filing the petition has standing.” Id. 

A child’s parent, such as Father, has standing to petition to terminate the parental 

rights of another alleged parent, such as Mother, but only in limited circumstances. See

Tenn. Code Ann. § 36-1-113(b)(1), (g)(10)(A). At the time Father filed his original and 

amended petitions, a parent could only petition to terminate the parental rights of the 

other parent if the respondent “parent ha[d] been found to have committed severe child 

sexual abuse under any prior order of a criminal court” or if the respondent parent “ha[d]

been convicted of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, 

or rape of a child pursuant to § 39-13-522, from which crime the child was conceived.”

3

 

Id. § 36-1-113(b)(1), (g)(10)(A), (g)(11)(A)(i). 

 

3 Effective March 14, 2018, a parent can also petition to terminate the parental rights of another 

alleged parent if the respondent parent “has been convicted of attempted first degree murder or attempted 

second degree murder of the child’s other parent or legal guardian.” 2018-1 Tenn. Code Ann. Adv. Legis. 

Serv. 70 (LexisNexis). 
6

As Mother points out, Father’s original petition did not allege that Mother had 

been found by a criminal court to have committed severe child sexual abuse or that 

Mother had been convicted of rape. Thus Father had no standing to petition to terminate 

Mother’s parental rights. We agree with that assessment.

But as noted above, Father and Stepmother jointly filed an amended petition for 

termination of parental rights and for adoption. A prospective adoptive parent does have 

standing to petition to terminate parental rights. Id. § 36-1-113(b)(1). 

Mother suggests that Stepmother’s petition for adoption is a subterfuge and that 

Father was merely attempting to correct a “grievous, and potentially fatal, error” in his

original petition. Mother notes that Stepmother “did not testify [at trial] and only scant 

references were made to this potential adoptive parent.” Mother further notes that Father 

only joined the amended petition for the purpose of consenting to the adoption. We do 

not find either argument convincing. Although Stepmother bore the burden of proof at 

trial, see In re Bernard T., 319 S.W.3d at 596, nothing compelled her to testify. And the 

parental termination statutes contemplate that a child’s parent may join in a petition to 

terminate parental rights for the purpose of consenting to an adoption by a stepparent. 

See Tenn. Code Ann. § 36-1-117(f) (“[W]here the stepparent of a stepchild seeks to adopt 

a stepchild, the co-signing of the petition by the child’s parent who is the spouse of the 

petitioner shall not affect the existing parent/child legal relationship between that parent 

and the parent’s child who is the subject of the adoption petition by the stepparent of the 

child.”). 

 We conclude that the juvenile court had subject matter jurisdiction in light of the 

amended petition for termination of parental rights and for adoption filed jointly by 

Father and Stepmother. The amended petition followed Father’s marriage to Stepmother, 

which came after the filing of Father’s original petition. The notion that Stepmother

might seek to adopt Paetyn, her stepson, is not that unusual. See, e.g., In re Angela E., 

303 S.W.3d at 243 (The mother and stepfather petitioned for termination of parental 

rights and for adoption); In re Alivia F., No. M2016-02328-COA-R3-PT, 2018 WL 

623599, at *1 (Tenn. Ct. App. Jan. 30, 2018) (The father and stepmother petitioned for 

termination of mother’s parental rights and for adoption); In re Ian B., No. M2015-

01079-COA-R3-PT, 2016 WL 2865875, at *1 (Tenn. Ct. App. May 11, 2016) (Mother 

and stepfather petitioned for adoption and for termination of parental rights). And our 

courts have recognized that a parent may amend a petition for termination of parental 

rights to meet the requirements of the termination statute by adding a petition for 

adoption by a stepparent. See In re Angela E., 303 S.W.3d at 248 (original petition for 

termination of parental rights filed by mother superseded by an amended petition for 

termination of parental rights and stepparent adoption); In re A.S.C., No. E2013-01830-

COA-R3-PT, 2014 WL 4269114, at *5-6 (Tenn. Ct. App. Aug. 29, 2014) (mother 
7

amended her petition to terminate to allow adoption by stepfather, which became the 

pleading for measuring abandonment by failure to support or visit). 

B.

Mother next argues that the juvenile court erred in not granting her a continuance

of the trial based on her medical issues. Decisions regarding continuances are 

discretionary in nature. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). “A 

court abuses its discretion when it causes an injustice to the party challenging the 

decision by (1) applying an incorrect legal standard, (2) reaching an illogical or 

unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the 

evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

The party seeking a continuance bears the burden of establishing the 

circumstances that justify the continuance. Osagie v. Peakload Temp. Servs., 91 S.W.3d 

326, 329 (Tenn. Ct. App. 2002). Decisions regarding the grant or denial of a continuance 

are fact-specific and “should be viewed in the context of all the circumstances existing” 

at the time of the request. Nagarajan v. Terry, 151 S.W.3d 166, 172 (Tenn. Ct. App. 

2003). The circumstances include: “(1) the length of time the proceeding has been 

pending, (2) the reason for the continuance, (3) the diligence of the party seeking the 

continuance, and (4) the prejudice to the requesting party if the continuance is not 

granted.” Id. (footnotes omitted).

Our review of discretionary decisions is limited. Beard v. Bd. of Prof’l 

Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009). We do not “second-guess the court 

below” or “substitute [our] discretion for the lower court’s.” Lee Med., Inc., 312 S.W.3d 

at 524. In reviewing discretionary decisions, we consider: “(1) whether the factual basis 

for the decision is properly supported by evidence in the record, (2) whether the lower 

court properly identified and applied the most appropriate legal principles applicable to 

the decision, and (3) whether the lower court’s decision was within the range of 

acceptable alternative dispositions.” Id. We “review the underlying factual findings

using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) 

and . . . review the lower court’s legal determinations de novo without any presumption 

of correctness.” Id. at 525.

Mother’s appeal challenges the factual basis for the court’s denial of her request 

for a continuance. She argues that the court “ignored the documentation, dated the day 

before [the trial], from the Reelfoot Family Walk-In clinic in Dyersburg, Tennessee 

which stated that [Mother] was not cleared to return to work for a period of four (4) 

days.” In her words, “[i]t defies logic that a primary care provider can tell a person that 

they are too sick to work, but the court find that they are well enough travel [sic] over one 

hundred and fifty miles round trip to be in court.” 
8

The problem with Mother’s argument is that we have no way of determining 

whether the court “ignored the documentation.” As Mother acknowledges, the 

documentation submitted to the court on the morning of the trial is not part of the record 

on appeal. From the transcript, it appears that the court reviewed the documentation 

submitted by counsel and determined that Mother had been diagnosed with a urinary tract 

infection, which the court deemed an insufficient basis to grant the requested 

continuance.

From this record, we cannot conclude that the court abused its discretion in 

denying Mother’s request for a continuance. We agree that Mother was prejudiced by the 

denial of the continuance, but the other circumstances support the court’s decision. The 

parental termination case had been pending over a year and nine months since the filing 

of the original petition and nine months since the filing of the amended petition. Statute 

mandates that a hearing on a petition for termination for parental rights “take[] place 

within six (6) months of the date that the petition is filed, unless the court determines an 

extension is in the best interests of the child.” Tenn. Code Ann. § 36-1-113(k). Mother’s

stated reason for the continuance, a staph infection,4 was apparently not supported by the

documentation provided. And we disagree with the notion that a medical condition that 

would excuse a person from work would necessarily prevent an appearance at trial. 

Although that might be the case, it was incumbent on Mother to establish that as part of 

her burden to justify the requested continuance. See Osagie, 91 S.W.3d at 329. 

IV.

Turning to the merits of the judgment to terminate parental rights, Mother argues 

that the evidence does not clearly and convincingly support the juvenile court’s finding 

that she abandoned Paetyn by willful failure to visit and willful failure to support. 

Mother also argues that the evidence does not clearly and convincingly support the 

finding that termination of her parental rights was in the best interest of Paetyn.

On appeal, we review the trial court’s findings of fact “de novo on the record, with 

a presumption of correctness of the findings, unless the preponderance of the evidence is 

otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 

13(d). We then “make [our] own determination regarding whether the facts, either as 

found by the trial court or as supported by a preponderance of the evidence, provide clear 

and convincing evidence that supports all the elements of the termination claim.” In re

Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de 

 

4

In her brief, in the statement of facts, Mother states that “[i]t should be noted that approximately 

one month before the trial date in this case that counsel for [Mother] was allowed to withdraw from the 

matter and Mr. Benjamin King was appointed to represent [Mother] . . . .” But the late substitution of 

counsel was never offered as a basis for the continuance before the juvenile court nor is it offered as a 

basis for reversing the denial of the request. 
9

novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. 

App. 2007). 

A.

Mother failed to challenge all the grounds for termination of parental rights relied 

on by the court. Nonetheless, we must “review the trial court’s findings as to each 

ground for termination . . . regardless of whether the parent challenges these findings on 

appeal.” In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016).

1. Abandonment

One of the statutory grounds for termination of parental rights is “[a]bandonment 

by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). The statute provides “five alternative 

definitions for abandonment as a ground for the termination of parental rights.” In re 

Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005); see also Tenn. Code Ann. § 36-

1-102(1)(A) (Supp. 2016) (defining the term “abandonment”). The juvenile court 

concluded that Mother abandoned Paetyn under the first definition. See Tenn. Code Ann. 

§ 36-1-102(1)(A)(i).

Under the first definition of abandonment, a parent’s parental rights may be 

terminated if the parent “willful[ly] fail[ed] to visit, to support, or to make reasonable 

payments toward the support of the child during the four-month period preceding the 

filing of the petition to terminate parental rights.” In re Adoption of Angela E., 402 

S.W.3d 636, 640 (Tenn. 2013); see also Tenn. Code Ann. § 36-1-102(1)(A)(i). Here, we 

measure the four-month period from the amended petition, which was filed on November 

23, 2016, not the original petition. Because Father lacked standing to file the original 

petition, the original petition “was a nullity from the start.” See In re A.S.C., 2014 WL 

4269114, at *6; see also In re Angela E., 303 S.W.3d at 248 & n.9 (amended petition for 

termination of parental rights and stepparent adoption superseded the original petition for 

termination of parental rights filed by mother alone).

In order to terminate parental rights on the ground of abandonment, the court must 

conclude that the abandonment was willful. While the failure to visit or support presents 

a question of fact, whether that failure is willful presents a question of law. In re 

Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d 

at 810). “Failure to visit or support a child is ‘willful’ when a person is aware of his or 

her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has 

no justifiable excuse for not doing so.” In re Audrey S., 182 S.W.3d at 864.

We conclude that the evidence was clear and convincing that Mother abandoned 

Paetyn by willfully failing to visit. Father testified that, by the time of trial, Mother had 

not seen her child in “almost two and a half years.” He later stated that it had been at 
10

least two years since Mother had seen Paetyn. Even using the more conservative 

estimate, Father’s testimony established that Mother had not seen her child at all during 

the four-month period preceding the filing of the amended petition. He also denied that 

Mother had reached out to him about visiting with the child at any point in time. Mother 

failed to visit despite, according to Father, attending multiple court hearings involving her 

child. 

The evidence does not support the finding that Mother abandoned Paetyn by 

willfully failing to pay support. Father stated that he last received a child support 

payment “[a]bout a year and a half ago,” but Father offered little to no evidence of 

Mother’s capacity to pay or provide support. Father did respond affirmatively to the 

following compound question: “So there – she’s willing and – or able to pay child 

support?” But such testimony alone is insufficient to carry Father’s burden of proof. On 

this record, we are unable to determine if Mother had the capacity to support the child. 

See id. 

2. Persistence of Conditions

 

The juvenile court also found termination of Mother’s parental rights appropriate 

under Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly referred to as 

“persistence of conditions.” See In re Audrey S., 182 S.W.3d at 871. The persistence of 

conditions ground focuses “on the results of the parent’s efforts at improvement rather 

than the mere fact that he or she had made them.” Id. at 874. The goal is to avoid having 

a child in foster care for a time longer than reasonable for the parent to demonstrate the 

ability to provide a safe and caring environment for the child. In re Arteria H., 326 

S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other grounds, In re Kaliyah S., 

455 S.W.3d 533 (Tenn. 2015). So the question before the court is “the likelihood that the 

child can be safely returned to the custody of the [parent], not whether the child can 

safely remain in foster care.” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 

1006959, at *5 (Tenn. Ct. App. July 21, 2000).

We conclude that reliance on the ground of persistence of conditions was not 

appropriate in this instance. Although counsel for Father and Stepmother argued for this 

ground in closing arguments, the amended petition does not allege persistence of 

conditions as a ground for termination of Mother’s parental rights. As we have 

previously stated, “Informality is not the hallmark of termination proceedings in light of 

the constitutional magnitude of the rights at stake.” In re M.J.B., 140 S.W.3d 643, 651 

(Tenn. Ct. App. 2004). Reliance on grounds for termination of parental rights not 

asserted in the petition not only places the respondent parent at a disadvantage, see In re 

W.B., M2004-00999-COA-R3-PT, 2005 WL 1021618, at *10 (Tenn. Ct. App. Apr. 29, 

2005), it fails to comply with the constitutional safeguards afforded parents. See In re 

Landon H., No. M2011-00737-COA-R-PT, 2012 WL 113659, at *4 (Tenn. Ct. App. Jan. 

11, 2012). 
11

B.

Having determined that one statutory ground for termination was proven by clear 

and convincing evidence, we must determine whether termination of Mother’s parental 

rights is in the child’s best interest. Because “[n]ot all parental misconduct is 

irredeemable,” our parental termination “statutes recognize the possibility that 

terminating an unfit parent’s parental rights is not always in the child’s best interests.” In 

re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005). Tennessee Code Annotated § 36-

1-113(i) lists nine factors that courts may consider in making a best interest analysis. In 

reaching a decision, “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, 682 (Tenn. 

2017). 

The focus of this analysis is on what is best for the child, not what is best for the 

parent. In re Marr, 194 S.W.3d at 499. But we cannot discount the value of the parentchild relationship. Id. § 36-6-401(a) (2014). So the analysis should also take into 

account “the impact on the child of a decision that has the legal effect of reducing the 

parent to the role of a complete stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT, 

2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). Although “[f]acts relevant to a 

child’s best interests need only be established by a preponderance of the evidence, . . . the 

combined weight of the proven facts [must] amount[] to clear and convincing evidence 

that termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d at 535. 

In making its best interest determination, the juvenile court relied primarily on 

Mother’s visitation history, the effect of a change of caregivers and physical 

environment, and Mother’s payment of child support. See Tenn. Code Ann. § 36-1-

113(i)(3), (5), & (9). The court found that Father and Stepmother had been the primary 

caregivers since the child was just a few months old and that a change in environment 

would be detrimental for the child. The child had developed a meaningful relationship 

with Stepmother, while there was no evidence of any bond between Mother and Paetyn. 

The court also found that Mother had not maintained regular visitation.

The evidence does not preponderate against the court’s factual findings. We 

conclude that the facts as found by the court clearly and convincingly establish that 

termination of Mother’s parental rights is in Paetyn’s best interests.

V.

We conclude that the juvenile court had subject matter jurisdiction over the 

amended petition to terminate Mother’s parental rights and for adoption. Although 

Father could not petition to terminate Mother’s parental rights alone, Father could join in 

the petition filed by his wife, the child’s stepmother. And on this record, we cannot 
12

conclude that the court abused its discretion in denying Mother’s request for continuance 

of the trial.

 

Finally, we affirm the termination of Mother’s parental rights. We agree with 

Mother that the evidence does not support one of the grounds for termination of her 

parental rights, and based on our own review, we conclude that the juvenile court erred in 

relying on a statutory ground not alleged in the amended petition. Still, the evidence in 

the record is clear and convincing that Mother abandoned her child by willful failure to 

visit and that termination is in the child’s best interests. 

_________________________________

W. NEAL MCBRAYER, JUDGE