IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 22, 2018 Session

IN RE KAYCEE M.

1

Appeal from the Chancery Court for Lawrence County

No. 17-18001 Stella L. Hargrove, Chancellor

No. M2017-02160-COA-R3-PT

This action involves the termination of a father’s parental rights to his minor child. 

Following a bench trial, the court found that clear and convincing evidence existed to 

support the statutory grounds of abandonment for failure to support, abandonment based 

upon his conduct prior to incarceration, substantial noncompliance with the permanency 

plans, and failure to manifest an ability and willingness to assume custody or financial 

responsibility of the child. The court further found that termination was in the best 

interest of the child. We affirm. 

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which RICHARD H.

DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

John M. Schweri, Columbia, Tennessee, for the appellant, Brian M.

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

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

Services. 

Stacie Odeneal, Lawrenceburg, Tennessee, guardian ad litem for the minor, Kaycee M.

 

1

This court has a policy of protecting the identity of children in parental rights termination cases by 

initializing the last name of the parties. 

10/03/2018
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OPINION

I. BACKGROUND

Kaycee M. (“the Child”) was born to Jerrica L. (“Mother”) and Brian M. 

(“Father”) in May 2014. The Child and her three-month-old baby brother (“baby 

brother”) resided with Mother, who relocated out of Father’s residence because he no 

longer had electricity. The Tennessee Department of Children’s Services (“DCS”) 

removed the Child from Mother on February 25, 2016, following the death of the baby 

brother. Mother reported that the baby brother had been sick in the days prior to his 

death and that she gave him medicine and brought him into bed with her and the Child 

after he awoke around 11:00 p.m. She found him unresponsive the next morning. 

Mother tested positive for amphetamine, methamphetamine, benzodiazepine, opiates, 

oxycodone, and THC, while Father tested positive for amphetamine, methamphetamine, 

and THC. The Child, who completed a hair follicle screen, later tested positive for 

amphetamine and methamphetamine. 

The Child was adjudicated dependent and neglected based upon the Parents’ drug 

abuse, Father’s lack of suitable housing, and Father’s history of child abuse and neglect.2 

The Child was placed with Father’s sister, who disavowed Father and his abuse of drugs. 

Father participated in the development of several permanency plans, the first of which 

required him to (1) complete an alcohol and drug assessment and follow 

recommendations; (2) complete a mental health assessment and follow recommendations; 

(3) maintain legal income; (4) maintain safe and stable housing; (5) resolve legal issues; 

(6) complete random drug screens and pill counts; (7) participate in domestic violence 

classes; (8) obtain safe and reliable transportation; and (9) participate in supervised 

therapeutic visitation. The plan further provided that Father was required to remit child 

support, payable through the child support office. Father signed the plan, dated March 

24, 2016, but indicated that he did not agree with the plan’s requirements and wrote at the 

bottom, “I agree with nothing!” The court, finding that the requirements were reasonable 

and related to the conditions necessitating removal, ratified the plan after adding the 

following requirements: (10) complete a psychological evaluation and follow 

recommendations; (11) complete a parenting assessment and follow recommendations; 

and (12) participate in family counseling. Father later signed the Criteria for Termination 

of Parental Rights, explaining the statutory grounds upon which DCS could file for 

termination. 

A second permanency plan was developed on September 1, 2016, with the added 

goal of adoption. Father signed the second plan and indicated his agreement with 

 

2

The details of his alleged history of child abuse and neglect are unknown.
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“everything . . . except for the domestic violence steps” and the goal of adoption with 

anyone other than family. The court ratified the second permanency plan, noting that 

Father was not in compliance with the plan as evidenced by his failure to remit child 

support and his lack of completion of the requirements. A third and final permanency 

plan was developed on March 31, 2017, with the same goals and responsibilities 

contained in the prior two plans. Father participated in the development of the plan and 

indicated his disagreement with the goal of adoption. The final plan was also ratified. 

DCS provided Father with contact information for several providers and programs, 

offered to assist in scheduling appointments, and administered drug screens. While 

Father completed some assessments and alcohol and drug counseling, he later failed 

several drug screens and tested positive for methamphetamine in March and April 2016 

and amphetamine and methamphetamine in June 2016, September 2016, and April 2017. 

He then refused all drug screens administered by DCS, beginning April 10, 2017. He 

later admitted methamphetamine use in March and September 2017 and that he last used 

marijuana in September 2017. While Father attended visitation, he was combative with 

the supervisor. He had also failed to maintain stable housing, to remit child support, and 

to resolve his legal issues – Father was charged with failure to appear in June and July 

2016, violation of probation in September and November 2016, and domestic assault and 

vandalism in June 2017. 

DCS filed a petition to terminate his parental rights on April 13, 2017, alleging 

grounds of severe child abuse, abandonment for failure to support; abandonment based 

upon conduct prior to incarceration that exhibited a wanton disregard for the Child’s 

welfare; substantial noncompliance with the permanency plans; and failure to manifest an 

ability and willingness to assume custody or financial responsibility of the Child.3

The case proceeded to a hearing on September 14, 2017. The hearing continued 

on September 15 and was finally completed on October 4. Father failed to appear on the 

morning of September 15. A well-check was performed at his residence, where Father 

was discovered in his pajamas. He refused to come to court, claiming that he was “not 

going because they were not going to give me the kids anyway.”4 Father appeared later 

in the day after his mother retrieved him from his residence. 

As pertinent to this appeal, DCS presented numerous witnesses establishing 

Father’s failure to complete the requirements of his permanency plan, his troubles with 

visitation, and his continued drug abuse and inability to provide housing. DCS also 

 

3 DCS also sought termination of Mother’s parental rights. She ultimately executed a surrender of her

parental rights and is not a party to this appeal. 

4

Father’s reference to “the kids” rather than the one child at issue was confirmed by the trial court. 
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submitted evidence establishing that the Child was well-adjusted in her current home and 

that her paternal aunt wished to adopt her. 

Roger Risner, employed by Overcoming Services, testified that he provided Father 

with in-home alcohol and drug counseling from April 2016 through March 2017, with 

some sessions occurring at the jail due to Father’s incarceration. Mr. Risner testified that 

Father’s home was not suitable for the Child when he last visited in March 2017. He 

agreed that Father passed two drug screens while receiving services but confirmed that 

Father had since failed a screen in April 2017. He stated that Father also completed three 

domestic violence sessions while receiving services but confirmed that Father had since 

been arrested for domestic assault in July 2017. 

The Child’s family service worker, Christian Gray, and two employees of Health 

Connect America, Samantha Butler and Tyanesha Campbell, testified concerning 

Father’s visitation with the Child. Ms. Grey testified that she supervised a visit on May 

26, 2017, during which Father advised the Child not to “fraternize with the enemy.” She 

further claimed that she ended a supervised visit in August 2017 as a result of his 

behavior. Ms. Butler claimed that she moved his visits to the DCS office because she felt 

threatened or in fear as a result of his behavior, and Ms. Campbell claimed that Father 

ignored her questions concerning his failure to complete alcohol and drug education. 

Father completed a mental health assessment administered by Centerstone but 

never agreed with the diagnosis or suggested treatment. He also only completed 1 out of 

24 required domestic violence classes, claiming that he completed some sessions with 

Mr. Risner and was not an offender but was a victim of domestic violence. 

Father presented a different story, claiming that DCS failed to assist him, that he 

was unable to work as a result of side effects from medication for depression, and that he 

was the victim of a “conspiracy” to keep him away from the Child. He admitted that he 

was self-employed in the construction business and that he advised the court in August 

2017 that he planned to work for an individual doing construction. He confirmed that he 

worked in August and September 2017 and ultimately received payment of $2,400. He 

claimed that he was only able to work because he resumed his methamphetamine use. He 

believed the methamphetamine provided him with the focus and energy needed to work. 

He stated that he used the money to establish a home for the Child but agreed that he still 

had not secured water and sewer services at the time of the hearing. He identified the 

order setting child support of $240 per month, beginning August 2016, and claimed that

the approximately $5,000 he paid on his home should be considered child support.5

 

5 While he did not remit support during the relevant time period, he submitted a $500 purge payment in 

May 2017 to avoid further incarceration. 
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The trial court granted the termination petition, sustaining all but one ground 

alleged, namely severe child abuse. The court further found that termination was in the 

best interest of the Child. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues on appeal as follows: 

A. Whether clear and convincing evidence supports the court’s 

termination based upon a finding of abandonment for failure to remit child 

support pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i).

B. Whether clear and convincing evidence supports the court’s 

termination based upon a finding of abandonment related to Father’s 

conduct prior to incarceration pursuant to Tennessee Code Annotated 

section 36-1-102(1)(A)(iv).

C. Whether clear and convincing evidence supports the court’s 

termination based upon a finding of substantial noncompliance with the 

permanency plan pursuant to Tennessee Code Annotated section 36-1-

113(g)(2). 

D. Whether clear and convincing evidence supports the court’s 

termination based upon a finding that Father failed to assume custody or 

financial responsibility of the Child pursuant to Tennessee Code Annotated 

section 36-1-113(g)(14).

E. Whether clear and convincing evidence supports the court’s finding 

that termination was in the best interest of the Child pursuant to Tennessee 

Code Annotated section 36-1-113(i).

F. Whether Father should be held responsible for costs and attorney 

fees on appeal pursuant to Tennessee Code Annotated section 27-1-122. 

III. STANDARD OF REVIEW

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

Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. 

App. 1988). This right “is among the oldest of the judicially recognized liberty interests 

protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 

140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a 
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parent is a grave and final decision, irrevocably altering the lives of the parent and child 

involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. 

Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-

113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of 

natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. 

Kramer, 455 U.S. 745, 787 (1982)).

While parental rights are superior to the claims of other persons and the 

government, they are not absolute and may be terminated upon appropriate statutory 

grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process 

requires clear and convincing evidence of the existence of the grounds for termination. 

In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best 

interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing 

evidence proves not only that statutory grounds exist [for the termination] but also that 

termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 

2002). The existence of at least one statutory basis for termination of parental rights will 

support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 

473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 

838 (Tenn. Ct. App. 2005).

The heightened burden of proof in parental termination cases minimizes the risk of 

erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620, 

622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence 

standard establishes that the truth of the facts asserted is highly probable. State v. 

Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. 

Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the 

correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 

546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 

919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or 

conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 

S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 

2001); In re C.W.W., 37 S.W.3d at 474.
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In 2016, the Tennessee Supreme Court provided guidance to this court in 

reviewing cases involving the termination of parental rights:

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). 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 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. 

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. 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 Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

IV. DISCUSSION

A. & B.

Parental rights may be terminated if the parent has been incarcerated during all or 

part of the four months immediately preceding the filing of the termination petition and

has either willfully failed to support the child for four consecutive months preceding the 

incarceration or has engaged in conduct prior to incarceration which exhibits a wanton 

disregard for the welfare of the child. Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-

102(1)(A)(iv). Here, Father was incarcerated for a portion of the four months preceding 

the filing of the termination petition. The parties agreed that the applicable four-month 

window was from July 2, 2016, through November 2, 2016.6 

 

6

Father’s last period of incarceration prior to the filing of termination petition began on November 3, 

2016. “The applicable four-month window . . . includes the four months preceding the day the petition to 

terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-

00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014). We reason the same holds 

true for the start date of the parent’s incarceration.
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1.

A parent’s willful failure to support “means the willful failure, for a period of four 

(4) consecutive months, to provide monetary support or the willful failure to provide 

more than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-

102(1)(D). Token support is “support, under the circumstances of the individual case, 

[that] is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). 

This court has consistently held that the term willfulness as it applies to a party’s failure 

to visit or remit support must contain the element of intent. In re Swanson, 2 S.W.3d 

180, 188-89 (Tenn. 1999). The element of intent utilized in termination proceedings 

“does not require the same standard of culpability as is required by the penal code.” In re 

Audrey S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures to act that are 

intentional or voluntary rather than accidental or inadvertent.” Id. “[A] person acts 

‘willfully’ if he or she is a free agent, knows what he or she is doing, and intends to do 

what he or she is doing.” Id. at 863-64.

Father admits his failure to remit support but claims that such failure was not 

willful when he allocated the money for home repairs necessary to establish a suitable 

home for the Child. He explains that he would allocate the money differently now if 

given the chance and claims that his failure to prioritize his support payments was a result 

of his lack of understanding of a complex system with numerous requirements. We 

sympathize with Father’s dilemma; however, the fact remains that he was advised of his 

obligation to remit support as evidenced by the child support order, the parenting plans,

and his signing of the Criteria for Termination of Parental Rights. Further, “[e]very 

parent who is [18] years of age or older is presumed to have knowledge of [his or her] 

legal obligation to [remit] support.” Tenn. Code Ann. § 36-1-102(1)(H). Accordingly, 

we conclude that there was clear and convincing evidence to establish that Father 

abandoned the Child by willfully failing to remit support during the relevant time period.

2.

Tennessee Code Annotated section 36-1-113(g)(1) provides that parental rights 

may be terminated where an incarcerated parent abandons a child by engaging in conduct 

prior to incarceration that exhibits a wanton disregard for the welfare of the child. See

Tenn. Code Ann. § 36-1-102(1)(A)(iv). To prove this ground, DCS must establish that 

(1) Father was incarcerated at the time the termination petition was filed or within the 

preceding four-month period and that (2) he engaged in conduct prior to incarceration 

that exhibits a wanton disregard for the welfare of the child. Tenn. Code Ann. § 36-1-

102(1)(A)(iv); In re Kason C., No. M2013-02624-COA-R3-PT, 2014 WL 2768003, *5 

(Tenn. Ct. App. June 17, 2014). Parental conduct exhibiting wanton disregard for a 

child’s welfare may occur at any time prior to incarceration and is not limited to acts 
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occurring during the four-month period immediately preceding the incarceration. State of 

Tenn., Dep't. of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009). 

We have held on numerous occasions that “probation violations, repeated 

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

support or supervision 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. Father incurred a number of charges prior to his last relevant period of 

incarceration, namely he was charged with failure to appear in June and July 2016 and

violation of probation in September and November 2016. Further, he continued in his 

drug abuse after the Child was removed as evidenced by his failed drug screens in March 

2016, June 2016, and September 2016. 

Father claims that his actions did not evidence a wanton disregard when he was 

only incarcerated briefly for various misdemeanor charges and has never been convicted 

of a felony. This court has held that “[a] parent’s decision to engage in conduct that 

carries with it the risk of incarceration is itself indicative that the parent may not be fit to 

care for the child.” Id. at 866. Here, the Child languished in custody while Father 

continued in his criminal behavior and continually failed to adequately address his 

substance abuse issues. His actions only prolonged the Child’s quest for permanency and 

stability and evidenced a wanton disregard for her welfare. With these considerations in 

mind, we conclude that there was clear and convincing evidence to establish that Father 

abandoned the Child by engaging in conduct prior to incarceration that exhibited a 

wanton disregard for her welfare.

C.

Tennessee law requires the development of a plan of care for each foster child and 

further requires that the plan include parental responsibilities that are reasonably related 

to the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of 

parental rights exists when a petitioner proves by clear and convincing evidence that 

“[t]here has been substantial noncompliance by the parent or guardian with the statement 

of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2). To 

establish noncompliance, the trial court must initially find “that the requirements of the 

permanency plans are reasonable and related to remedying the conditions that caused the 

child to be removed from the parent’s custody in the first place.” In re M.J.B., 140 

S.W.3d at 656; see In re Valentine, 79 S.W.3d at 547. Second, the court must find that 

the parent’s noncompliance is substantial, In re M.J.B., 149 S.W.3d at 656, meaning that 

the parent must be in “noncompliance with requirements in a permanency plan that are 

reasonable and related to remedying the conditions that warranted removing the child 

from the parent’s custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 
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21266854, at *12 (Tenn. Ct. App. June 3, 2003). To assess a parent’s substantial 

noncompliance with a permanency plan, the court must weigh “both the degree of 

noncompliance and the weight assigned to that particular requirement.” Id. at *12. 

Conversely, “[t]erms which are not reasonable and related are irrelevant, and substantial 

noncompliance with such terms is irrelevant.” In re Valentine, 79 S.W.3d at 548-49.

In the case at bar, the permanency plans required Father to (1) complete an alcohol 

and drug assessment and follow recommendations; (2) complete a mental health 

assessment and follow recommendations; (3) maintain legal income; (4) maintain safe 

and stable housing; (5) resolve legal issues; (6) complete random drug screens and pill 

counts; (7) participate in domestic violence classes; (8) obtain safe and reliable 

transportation; (9) participate in supervised therapeutic visitation; (10) complete a 

psychological evaluation and follow recommendations; (11) complete a parenting 

assessment and follow recommendations; and (12) participate in family counseling. We 

agree with the trial court that these requirements, considering Father’s circumstances, 

were reasonable and related to the conditions warranting the placement of the Child in 

DCS custody.

Father asserts that he evidenced compliance with the requirements by attempting 

to establish a suitable home for the Child, passing several drug tests, and participating in 

numerous evaluations, assessments, and counseling sessions. He concedes his failure to 

remit child support but again explains that he was attempting to establish a suitable home 

and has since resumed support payments. We acknowledge that Father completed 

several assessments and participated in sessions; however, he simply failed to address the 

most important aspects of the plan that would have resulted in his ability to care for the 

Child, namely to resolve his legal issues and adequately address his drug abuse. Instead 

of resolving his legal issues, he incurred additional criminal charges while the Child was 

in custody and failed to remit child support until he was jailed and required to submit a 

purge payment. He also repeatedly failed drug screens and later refused to submit to any 

drug screens. With the above considerations in mind, we conclude that there was clear 

and convincing evidence to establish that Father failed to substantially comply with the 

requirements of the permanency plan.

D.

A parent’s parental rights may be terminated when the parent 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 when 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). 
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Father asserts that he evidenced his ability and willingness to assume legal and 

physical custody of the Child by preparing a home for her, attending visitation, and 

participating in counseling, evaluation, and treatment. While Father admittedly 

completed requirements in the permanency plan by completing evaluations and 

participating in counseling and treatment, his criminal behavior continued through June 

2017, when he was arrested for domestic assault. He further failed to address his 

substance abuse issues as evidenced by his admission at the hearing that he last used 

methamphetamine and marijuana in the days before the hearing. His home was also not 

yet suitable for the Child as evidenced by the lack of sufficient utilities at the time of the 

hearing. With these considerations in mind, we conclude that there was clear and 

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

to assume custody of the Child and that her placement in the home would pose a risk of 

substantial harm to her physical or psychological welfare.

E.

Having concluded that there was clear and convincing evidence supporting at least 

one statutory ground to terminate Father’s parental rights, we must consider whether 

termination was in the best interest of the Child. In making this determination, we are 

guided by the following non-exhaustive list of factors:

(i) In determining whether termination of parental or guardianship 

rights is in the best interest of the child . . . the court shall consider, but is 

not limited to, the following:

(1) Whether the parent or guardian has made such an adjustment of 

circumstance, conduct, or conditions as to make it safe and in the child’s 

best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting 

adjustment after reasonable efforts by available social services agencies 

for such duration of time that lasting adjustment does not reasonably 

appear possible;7

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

other contact with the child;

 

7

In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a termination proceeding, the extent of DCS’s efforts to 

reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a 

precondition to termination of the parental rights of the respondent parent.”).
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(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child;

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

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

(6) Whether the parent or guardian, or other person residing with the 

parent or guardian, has shown brutality, physical, sexual, emotional or 

psychological abuse, or neglect toward the child, or another child or 

adult in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s 

home is healthy and safe, whether there is criminal activity in the home, 

or whether there is such use of alcohol or controlled substances 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 [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not 

require a trial court to find the existence of each enumerated factor before it may 

conclude that terminating a parent’s parental rights is in the best interest of a child.” In re 

M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also 

stated that “when the best interest[] of the child and those of the adults are in conflict, 

such conflict shall always be resolved to favor the rights and the best interest[] of the 

child, which interests are hereby recognized as constitutionally protected.” Tenn. Code 

Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 

2004) (holding that when considering a child’s best interest, the court must take the 

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

Father argues that termination was not in the best interest of the Child and asks 

this court to remand the matter for him to evidence his continued compliance in his 
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attempt to regain custody of the Child.8 Despite Father’s claim, a number of the best 

interest factors weigh against him. He has not made the adjustment of circumstances 

necessary to make it safe and in the Child’s best interest to return home. The record 

reflects that he does not have suitable utility services and that he last used 

methamphetamine and marijuana days before the start of the termination hearing. Tenn. 

Code Ann. § 36-1-113(i)(1), (2). The Child resides in a safe and stable home that is 

willing and able to adopt her. The Child was not residing with Father prior to her 

removal, and she has since resided with her foster family for approximately 20 months 

prior to the termination hearing. Removing her from her current home would likely 

negatively affect her emotionally and psychologically. Tenn. Code Ann. § 36-1-

113(i)(5). Questions remain concerning his ability to care for her as evidenced by his 

failure to address his substance abuse issues. He even failed to appear on the second day 

of the hearing and only returned when retrieved by his mother. Tenn. Code Ann. § 36-1-

113(i)(7). He has also failed to remit child support. Tenn. Code Ann. § 36-1-113(i)(8). 

While we do not wish to discount Father’s love for the Child and any remaining 

relationship that may still be intact, the Child is in need of permanency and a stable home 

that Father has shown he cannot provide now or in the near future. With all of the above 

considerations in mind, we conclude that there was clear and convincing evidence to 

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

We affirm the decision of the trial court.9

F.

Guardian asks this court to find Father’s appeal frivolous and a frustration of the 

Child’s need for permanency and stability. She explains that Father failed to assert an 

adequate basis upon which this court may afford relief when the trial court presented 

thorough and sufficient findings adequately addressing each ground of termination. 

Tennessee Code Annotated section 27-1-122 provides for an award of damages, 

 

8

Father further requests reversal of the court’s termination decision based upon the cumulative error 

doctrine. He explains that his counsel’s failure to present proof on his behalf resulted in an unfair trial, 

necessitating reversal of the decision. DCS responds that no Tennessee court has applied the doctrine in a 

civil case and that Father failed to articulate how the failure to present proof constituted error. We agree 

with DCS.

9

Father submitted a letter “in hopes of informing the court of a few important matters” not addressed by 

his attorney at oral argument. We acknowledge receipt of the letter; however, we must reiterate that we 

decide cases based upon the record in the trial court, absent a properly filed motion requesting 

consideration of post-judgment facts. See Tenn. R. App. P. 14 (“[This court] may consider facts 

concerning the action that occurred after judgment.”). Here, Father offers explanations and arguments 

concerning the court’s factual findings and does not request consideration of facts that occurred after 

judgment. 
- 14 -

including attorney fees, when an appeal is determined to be frivolous. To find an appeal 

frivolous, the appeal must be wholly without merit and lacking in justiciable issues. See

Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma 

v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). An appellate court’s decision 

on this issue is discretionary, and this court is generally reluctant to award such damages 

because we do not want to discourage legitimate appeals. Whalum v. Marshall, 224 S 

.W.3d 169, 180-81 (Tenn. Ct. App. 2006). Our Supreme Court provided the following 

guidance on this issue in the context of a parental rights termination case: 

The determination of whether a parent’s rights to his/her child should be 

terminated is the most serious and grave issue to be addressed by this 

Court. Accordingly, we are loathe to consider an appeal of a trial court’s 

judgment terminating a parent’s rights to be frivolous.

In re M.L.D., 182 S.W.3d 890, 898 (Tenn. Ct. App. 2005) (finding the appeal frivolous 

when the appellant failed to provide an adequate record for review and raised new issues 

on appeal). We agree that this appeal is a frustration of the Child’s need for permanency 

and stability; however, we do not wish to discourage future legitimate appeals, especially 

in cases involving a decision concerning parental rights. Exercising our discretion in 

such matters, we respectfully deny the request. 

V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such 

further proceedings as may be necessary. Costs of the appeal are taxed to the appellant,

Brian M.

_________________________________ 

JOHN W. McCLARTY, JUDGE