In Re Christopher L. ( 2021 )

09/13/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 1, 2021
IN RE CHRISTOPHER L.
Appeal from the Chancery Court for Lewis County
No. 2019-CV-52 Michael E. Spitzer, Judge
No. M2020-01449-COA-R3-PT
This case concerns the termination of a father’s parental rights to his son. The trial court
predicated termination of parental rights on the ground of abandonment by failure to visit
and found termination of the father’s parental rights was in the child’s best interest. We
have determined that the record contains clear and convincing evidence to support the trial
court’s findings and affirm the termination of the father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.
Richard Henry Boehms, Hohenwald, Tennessee, for the appellant, Brian L.
Caleb David Thomas, Hohenwald, Tennessee, for the appellees, Ronald K.A. and Susan
M.A.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Christopher was born in July 2003 to Debra L. (“Mother”) and Brian L. (“Father”)
(collectively “Biological Parents”). Biological Parents relinquished custody of Christopher
to Susan M.A. (“Foster Mother”) and Ronald K.A. (“Foster Father”) (collectively “Foster
Parents”) in October 2003. The circumstances of this exchange of custody are unusual.
Foster Mother took an interest in Christopher when she saw Rita O., Mother’s sister-in-
law, holding him at the Oktoberfest celebration in Hohenwald, Tennessee. Ms. O.
explained to Foster Mother that she had been caring for Christopher for the previous two
weeks, and Foster Mother offered to assist Ms. O. with the child if she needed help. Ms.
O. communicated Foster Mother’s offer of help to Biological Parents, and, although they
were not previously acquainted with Foster Mother, Biological Parents agreed that Foster
Mother could take Christopher home from Oktoberfest and take care of him.
A few days after Foster Mother began caring for Christopher, Biological Parents
contacted Foster Parents and asked to see Christopher. Foster Mother took Christopher to
Biological Parents’ home and found the conditions to be unsafe for the three-month-old
child. Specifically, Christopher’s bed was under an electrical panel with exposed wiring.
When Foster Mother pointed this out to Biological Parents, they did not object to Foster
Mother taking Christopher back home with her; however, they requested that she bring the
child to visit them periodically in the day time. Over the next couple of weeks, Foster
Mother took Christopher to visit with Biological Parents until a third person who resided
in their home came to the door and told Foster Mother it was not safe for the child to be
there for daily unaccompanied visits because Mother and Father slept all day and did not
supervise the child.
After this troubling conversation, Foster Mother took Christopher back to her home
and did not return him for visits with Biological Parents at their residence. Since October
2003, when Christopher was approximately three months old, Foster Parents have
maintained custody of him (except for a brief period of time when Christopher was in the
custody of the Department of Children’s Services (“DCS”) while Foster Parents became
certified as foster parents).1 Neither Mother nor Father have had any consistent, meaningful
contact with Christopher since those early visits in 2003.
In March 2019, when Christopher was nearly sixteen years old, Father confronted
him at a city park in Hohenwald and told him that Foster Parents were not his biological
parents. This interaction was distressing for Christopher, a child with developmental
delays and language impairment. Following this encounter, Foster Parents filed a petition
to terminate the parental rights of Biological Parents and for adoption.
This matter has a somewhat convoluted history in the juvenile court which we
recount insofar as it is relevant to Father’s issues on appeal. In January 2004, Foster Parents
filed a pro se petition in the Juvenile Court of Lewis County (“juvenile court”) seeking
emergency custody of Christopher. The juvenile court later amended the pro se petition to
include grounds for dependency and neglect. On March 3, 2005, the juvenile court
conducted an adjudicatory hearing on Foster Parents’ petition for emergency custody.
Present at this hearing were Biological Parents,2 who were represented by an attorney,
Christopher’s guardian ad litem, Foster Parents and their attorney, and representatives from
DCS. On April 21, 2005, the juvenile court entered an order adjudicating Christopher
1
Foster Parents had weekly visits with Christopher while he was temporarily in DCS custody.
2
At the time of the hearing, Father was incarcerated but was transported to the hearing and attended in
person.
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“dependent and neglected within the meaning of the law.” The court found that
Christopher had been removed from Biological Parents’ home for approximately two years
and that Father3 had not seen the child since December 22, 2003.4 The court ordered
Christopher to remain with Foster Parents.
On September 29, 2005, the juvenile court held a hearing to review Christopher’s
case. Neither Mother nor Father appeared at the hearing because, according to
Christopher’s grandparents, they were “traveling with the carnival.” By order entered
November 17, 2005, the juvenile court held that physical custody of Christopher was to
remain with Foster Parents and “visitation rights of [Biological Parents] are suspended
pending further order of the Court.” Approximately two years later, another dependency
hearing was held, and on October 19, 2007, an Order was entered in the juvenile court
stating that “neither [Mother nor Father] appeared.” The juvenile court appointed Foster
Parents as Christopher’s “permanent guardians” and held that “visitation for the child’s
[Father] will be reserved until such time as he petitions this Court for visitation.” Although
Father was not present for the hearing, his attorney signed and agreed to the Order entered
by the juvenile court. On February 26, 2008, the court entered an order setting Father’s
child support arrearage at $5,715, which Father fully paid off on September 5, 2012.
After Father confronted Christopher in the city park, on March 28, 2019, Foster
Parents filed a petition for civil contempt and for a restraining order against Father. In
response, Father filed a petition for visitation in the juvenile court,5 and on April 4, 2019,
Foster Parents filed a petition to terminate parental rights and for adoption alleging
abandonment by failure to visit, abandonment by failure to pay child support, and
persistence of conditions. On May 29, 2019, Father, through counsel, filed an answer to
the termination petition generally denying the grounds for termination of his rights but
raising no affirmative defenses. The Chancery Court of Lewis County held a hearing on
the termination petition on August 26, 2020. Foster Parents, Father, and Christopher’s
guardian ad litem were present—all parties were represented by counsel. The chancery
court held, in relevant part:
f. From February 2005 until April 2016 when [Father] encountered
Christopher at the city park in Hohenwald, he exercised not a single visit with
his child.
3
Mother is not a party to this appeal.
4
Father testified that he believed he had some sporadic visitation with Christopher at the “DHS office” in
2006.
5
There is nothing in the record to suggest Father pursued his Petition for Visitation after Foster Parents
filed their Petition to Terminate Parental Rights.
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g. Neither [Mother] nor [Father] ever exhibited any interest whatsoever in
getting Christopher back into their custody or establishing and exercising
visitation with their child.
...
i. Christopher has lived his whole life in the home of the Petitioners, except
for a [sic] short period when he was very young, and he has integrated into
the home, is considered the son of the Petitioners, brother to his siblings, and
photographs were introduced to show not only his acceptance into the large
family but the love and gifts that the family shower upon him.
k. Christopher has an intellectual disability that requires structure and
patience. He cannot follow directions well, and he has a speech and language
impairment. He plays sports in high school, and the school has been very
good to work with him. He is in the CDC class in high school, and he is in
the low range of intellectual capacity. [Foster Mother] has attended all IEP
meetings and worked with the teachers to establish goals and expectations
for his improvement throughout the years. He has integrated well within his
social setting and he has two friends who frequently stay overnight at the
Petitioners’ home. . . .
The Court carefully viewed the testimony of [Father] and made every effort
to consider inconsistencies in his favor but simply could not find [biological
father] credible in his testimony. [Father] did not visit his son for at least
twelve years and possibly more. . . . In fact, [Father] had no meaningful
contact with Christopher at any point during Christopher’s entire life. The
Court specifically finds that in terms of visitation, [Father] is simply not a
credible witness.
Applying the facts to the grounds for termination, the court terminated Father’s
parental rights on the ground of abandonment by failure to visit. The court determined:
Without question, [Father] failed to visit Christopher for a period four months
preceding the filing of the petition to terminate, with the visit at the park being
marginally token visitation. In fact, he has not visited or even seen the child
for at least twelve (12) years. . . . From the testimony and the entire record, the
Court cannot find a single shred of evidence that the failure of [Father] to visit
Christopher was grounded in circumstances outside of his control or due to
measures taken by [Foster Parents] or any third party.
The court held the ground of termination for abandonment by failure to support was not
proven by clear and convincing evidence. The ground of persistence of conditions was
dismissed at the hearing. The Court went on to review the best interest factors and found
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that, after weighing all factors, termination of Father’s rights was in the best interest of the
child.
Father appeals and presents the following issues on appeal: whether the trial court
erred in determining that his failure to visit Christopher was willful and whether the court
erred in determining that termination of his parental rights was in the best interest of the
child.
STANDARD OF REVIEW
Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651-52 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010). Although this right
is fundamental, it is not absolute and may be terminated in certain situations. 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 grounds on which termination proceedings can be brought.’” In re Jacobe
M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., IV., Nos. M2004-
00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct.
App. Apr. 29, 2005)).
Tennessee Code Annotated section 36-1-113 provides the grounds and procedures
for terminating parental rights. First, a petitioner seeking to terminate parental rights must
prove that at least one ground for termination exists. Tenn. Code Ann. § 36-1-113(c)(1);
In re Angela E., 303 S.W.3d at 251. Second, a petitioner must prove that terminating
parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The termination of a parent’s rights is one of the most serious decisions courts make
because “[t]erminating parental rights has the legal effect of reducing the parent to the role
of a complete stranger,” In re W.B., IV, 2005 WL 1021618, at *6, “and of ‘severing forever
all legal rights and obligations of the parent or guardian.’” Id. (quoting Tenn. Code Ann.
§ 36-1-113(l)(1)). Consequently, a parent has a constitutional right to fundamentally fair
procedures during termination proceedings. In re Hannah C., No. M2016-02052-COA-
R3-PT, 2018 WL 558522, at *2 (Tenn. Ct. App. Jan. 24, 2018) (citing In re Carrington H.,
483 S.W.3d 507, 522 (Tenn. 2016)).
Before a parent’s rights may be terminated, a petitioner must prove both the grounds
and the child’s best interest by clear and convincing evidence. Tenn. Code Ann. § 36-1-
113(c); In re Valentine, 79 S.W.3d at 546. “Clear and convincing evidence ‘establishes
that the truth of the facts asserted is highly probable, and eliminates any serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’” In
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re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App.
May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)).
We review the trial court’s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re
Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we
must then make our 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 Carrington H., 483
S.W.3d at 524. In addition, this Court has repeatedly emphasized the deference afforded
to a trial court’s credibility determination:
“The credibility of witnesses is a matter that is peculiarly within the province
of the trial court. That court has a distinct advantage over us: it sees the
witnesses in person. Unlike an appellate court—which is limited to a “cold”
transcript of the evidence and exhibits—the trial court is in a position to
observe the demeanor of the witnesses as they testify. This enables the trial
court to make assessments regarding a witness’s memory, accuracy, and,
most importantly, a witness’s truthfulness. The cases are legion that hold a
trial court’s determinations regarding witness credibility are entitled to great
weight on appeal. In the absence of unrefuted authentic documentary
evidence reflecting otherwise, we are loathe to substitute our judgment for
the trial court’s findings with respect to the credibility of the witnesses.”
In re E.L.R., No. E2014-00394-COA-R3-PT, 2014 WL 6735394, at *6 (Tenn. Ct. App.
Dec. 1, 2014) (quoting Lockmiller v. Lockmiller, No. E2002-02586-COA-R3-CV, 2003
WL 23094418, at *4 (Tenn. Ct. App. Dec. 30, 2003) (emphasis in original; internal
citations omitted)).
ANALYSIS
I. Ground for termination: abandonment by failure to visit.6
6
The Tennessee Supreme Court has held that “in 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.” In re Carrington, 483 S.W.3d at 525-26 (emphasis added). This review is intended to “ensure that
fundamental parental rights are not terminated except upon sufficient proof, proper findings, and
fundamentally fair procedures.” Id. at 525. However, this Court has not interpreted In re Carrington to
mean that we must also review grounds that the trial court found were not sufficiently proven when the
party who sought termination does not challenge that ruling on appeal. See, e.g., In re Gabriel B., No.
W2017-02514-COA-R3-PT, 2018 WL 3532078, at *2 n.5, *4 (Tenn. Ct. App. July 23, 2018) (limiting
review on appeal to “each ground for termination that the trial court found the Department established by
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A parent’s rights may be terminated for abandoning his or her child. Tenn. Code
Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102(1)(A) provides five
alternative definitions of “abandonment,” but only the definition provided in subsection (i)
is relevant in this case. Subsection (i) defines “abandonment” as:
For a period of four (4) consecutive months immediately preceding the filing
of a proceeding, pleading, petition, or any amended petition to terminate the
parental rights of the parent or parents or the guardian or guardians of the
child who is the subject of the petition for termination of parental rights or
adoption, that the parent or parents or the guardian or guardians either have
failed to visit or have failed to support or have failed to make reasonable
payments toward the support of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A). A failure to visit occurs when a parent, “for a period
of four (4) consecutive months, [fails] to visit or engage in more than token visitation. That
the parent had only the means or ability to make very occasional visits is not a defense to
failure to visit if no visits were made during the relevant four-month period[.]” Tenn. Code
Ann. § 36-1-102(1)(E). “‘[T]oken visitation’” is “visitation, under the circumstances of
the individual case, [that] constitutes nothing more than perfunctory visitation or visitation
of such an infrequent nature or of such short duration as to merely establish minimal or
insubstantial contact with the child[.]” Tenn. Code Ann. § 36-1-102(C).
Prior to July 2018, a petitioner seeking to terminate a parent’s rights based on
abandonment bore the burden of proving that the parent’s failure to visit was “willful.” See
Tenn. Code Ann. § 36-1-102(1)(A)(i) (2016). The Tennessee General Assembly amended
Tenn. Code Ann. § 36-1-102(1)(A)(i) on July 1, 2018, removing the willfulness
requirement from the definition of abandonment by failure to visit. See 2018 TENN. PUB.
ACTS ch. 875. The statute now provides that lack of willfulness is an “affirmative defense
pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure.” Tenn. Code Ann. § 36-
1-102(1)(I). Thus, the parent now bears the burden of proving by a preponderance of the
evidence that his or her failure to visit was not willful. Id.; In re Braelyn S., No. E2020-
00043-CAO-R3-PT, 2020 WL 4200088, at *4 (Tenn. Ct. App. July 22, 2020).
clear and convincing evidence” but omitting analysis of another ground that the trial court found was not
proven where DCS did not challenge that ruling on appeal); In re Zayne P., No. W2017-01590-COA-R3-
PT, 2018 WL 2041573, at *6 (Tenn. Ct. App. Apr. 30, 2018) (concluding that “the mandate
from In re Carrington H. to review all grounds on which termination of parental rights is based does not
apply” and the Court of Appeals “need not consider the grounds that were not proven” when the trial court
declines to terminate parental rights). Because the trial court found in favor of Father on the ground of
abandonment by failure to support and dismissed the ground of persistence of conditions, and those rulings
are not challenged on appeal, this Court is not required to review the trial court’s findings on those grounds
for termination. In re Colton B., No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *5 (Tenn. Ct. App.
Oct. 29, 2018).
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As an initial matter, we note that Father did not raise his lack of willfulness as an
affirmative defense in his answer to Foster Parents’ termination petition. Therefore,
pursuant to Tenn. Code Ann. § 36-1-102(1)(I), he waived the absence of willfulness as a
defense to the ground of abandonment by failure to visit. See TENN. R. CIV. P. 12.08
(specifying that, in general, defenses not raised by motion or answer are waived); see also
In re Ashlynn H., No. M2020-00469-COA-R3-PT, 2021 WL 2181655, at *4 (Tenn. Ct.
App. May 28, 2021) (finding a father who failed to plead the absence of willfulness in his
response to the petition to terminate parental rights waived it as a defense to the ground of
abandonment by failure to support). However, Foster Parents did not object to testimony
regarding willfulness at trial, and the trial court carefully considered Father’s argument that
his lack of visitation was not willful in its written opinion. See TENN. R. APP. P. 36(a); see
also In re Braelyn S., 2020 WL 4200088, at *4 n.3 (citing McLemore v. Powell, 968 S.W.2d
799, 803 (Tenn. Ct. App. 1997) (discussing the standard for trial by implied consent)).
Moreover, Foster Parents did not raise any argument in their brief that Father waived the
affirmative defense of lack of willfulness. Therefore, any argument as to Father’s failure
to properly plead the affirmative defense regarding willfulness has been likewise waived
on appeal. See Tenn. R. APP. P. 13(b); see also Watson v. Watson, 309 S.W.3d 483, 497
(Tenn. 2009) (“The appellate court may treat issues not raised on appeal as being waived.”).
When considering “willfulness” in the context of the parental termination statutes,
we have previously explained “willfulness” as follows:
Conduct is “willful” if it is the product of free will rather than coercion.
Thus, 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.
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. Failure to
visit or to support is not excused by another person’s conduct unless the
conduct actually prevents the person with the obligation from performing his
or her duty, or amounts to a significant restraint of or interference with the
parent’s efforts to support or develop a relationship with the child.
In re Audrey S., 182 S.W.3d at 863-64 (citations and footnotes omitted); see also In re
Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (“A parent cannot be said to
have abandoned a child when his failure to visit or support is due to circumstances outside
his control.”).
In the present case, Foster Parents filed the termination petition on April 4, 2019.
Thus, the relevant four-month period for determining whether Father abandoned the child
under Tenn. Code Ann. § 36-1-102(1)(A)(i) is December 4, 2018 through April 3, 2019.
See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct.
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App. Feb. 20, 2014) (holding that the applicable four-month time period is “the four months
preceding the day the petition to terminate parental rights is filed but excludes the day the
petition is filed”). The evidence shows that Father agreed to leave his son in the custody
of Foster Parents, who were complete strangers. Since that time, he has had hardly any
meaningful visitation with Christopher whatsoever. Father asserted that his failure to visit
was not willful because “he could not find” Foster Parents. The trial court dispelled
Father’s arguments regarding his lack of willfulness as follows:
In addition, the father’s arguments that his failure to visit was not willful in
that he could not find [Foster Parents] to establish visits lacks the slightest hint
of credibility. [Father] is a truck driver who travels the entire United States
according to his testimony. He is not someone who is incapable of finding his
way around. [Foster Parents have] lived most of Christopher’s seventeen years
in Lewis County with a population of less than 13,000. To think that in a small
rural community no one could possibly know where [Foster Parents] lived is
ludicrous, in addition to lacking credibility. [Father’s] step-daughter even
went to school with Christopher and was able to identify him at the park. In
addition, [Foster Parents] own and operate a construction company with
various signs around the community advertising with their name and phone
number. . . .
It is not difficult for this Court, upon hearing the testimony of [Father],
witnessing his demeanor, lack of consistency in his testimony, and casual
nature of the distilled desire to visit his child, to discern from the circumstantial
evidence, including [Father’s] total lack of concern for this child, that any
visits were merely token visitation and that his failure to visit could be nothing
other than willful.
In the years since he left Christopher in Foster Parents’ custody Father has lived in
Texas, Arkansas, Ohio, and various residences in Tennessee. In light of his frequent
displacement, it would have been far more difficult for Foster Parents to keep track of him
than for Father to find Foster Parents. The record shows that Father made no significant
effort to visit with Christopher in the twelve years before the termination petition was filed.
Importantly, the “visit” with Christopher at the city park “constitutes nothing more than
perfunctory visitation or visitation of such an infrequent nature or of such short duration as
to merely establish minimal or insubstantial contact with the child.” Tenn. Code Ann. §
36-1-102(C). We agree with the trial court that Father failed to prove that his failure to
visit Christopher was not willful. Therefore, we conclude that the trial court properly
terminated Father’s parental rights pursuant to the grounds of abandonment by failure to
visit.
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II. Best interest.
Having determined that clear and convincing evidence of at least one statutory
ground exists to terminate Father’s parental rights, we must next consider whether the trial
court properly determined that termination of Father’s parental rights was in Christopher’s
best interest. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860.
A finding that at least one ground for termination of parental rights exists does not
necessarily require that a parent’s rights be terminated. In re Audrey S., 182 S.W.3d at
877. Because some parental misconduct is redeemable, our termination of parental rights
statutes recognize that “terminating an unfit parent’s parental rights is not always in the
child’s best interests.” Id. A court must view the child’s best interest from the perspective
of the child, not that of the parent. Id. at 878. The facts considered in the best interest
analysis must be proven by “a preponderance of the evidence, not by clear and convincing
evidence.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). Once a court makes the
underlying factual findings, it should “consider the combined weight of those facts to
determine whether they amount to clear and convincing evidence that termination is in the
child’s best interest.” Id. at 555-56.
When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court must consider the factors enumerated in Tenn. Code Ann. § 36-
1-113(i).7 A trial court is not required to find that each of the enumerated factors exists
before concluding that it is in the best interest of the child to terminate a parent’s rights. In
re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Although in some circumstances
“the consideration of one factor may very well dictate the outcome of the analysis,” In re
Audrey S., 182 S.W.3d at 878, a court is still obligated to consider “all the factors and all
the proof,” In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017).
After considering the relevant best interest factors, the trial court found that the
factors favored terminating Father’s parental rights. See Tenn. Code Ann. § 36-1-113(i).
The evidence in the record before us does not preponderate against the trial court’s findings
of fact.
The first best interest factor considers whether a parent “has made such an
adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best
7
The Tennessee General Assembly amended the statutory best-interest factors in 2021. See 2021 TENN.
PUB. ACTS ch. 190 § 1 (S.B. 205), eff. April 22, 2021. However, the factors applicable to this appeal are
the nine factors identified in Tenn. Code Ann. § 36-1-113(i) (2019), which were in effect when the
termination petition was filed on April 4, 2019. The trial court made specific findings regarding six of the
nine best interest factors, determining that factors two, six, and seven were not applicable in this case. We
agree with the trial court that factor two does not apply because Father was not given (and did not request)
assistance from a social services agency; however, we consider factors six and seven in the body of the
opinion.
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interest to be in the home of the parent.” Tenn. Code Ann. § 36-1-113(i)(1). Regarding
his home, Father testified that for the past six months he has rented a home with his current
wife. Two children reside in the home who are unfamiliar to Christopher. Father testified
that he is unemployed and has no income. He explained that his CDL license and driver’s
license were both suspended. Father relies on his mother or medical transport for
transportation because his wife also does not have a driver’s license. The trial court
considered this factor to weigh against Father. The evidence does not preponderate against
the trial court’s findings regarding this factor.
Next, the trial court considered whether Father maintained regular visitation and had
a meaningful relationship with the child. See Tenn. Code Ann. § 36-1-113(i)(3), (4). As
discussed above, the evidence in the record shows that Father did not maintain regular
visitation with the child, and he had no relationship with the child for at least the previous
twelve consecutive years. This factor weighs heavily in favor of terminating Father’s
parental rights.
The trial court found that the fifth best interest factor was “significant” and weighed
in favor of termination. This factor considers “[t]he effect a change of caretakers and
physical environment is likely to have on the child’s emotional, psychological and medical
condition.” Tenn. Code Ann. § 36-1-113(i)(5). The child has lived with Foster Parents
since he was about three months old. Photographs introduced at trial show Christopher
has been lovingly supported in a happy home environment with Foster Parents for the past
seventeen years. Indeed, Christopher has bonded with Foster Parents’ biological children
and considers them his siblings. A change in caretaker would be difficult for any child
under these circumstances, but the adjustment would be particularly difficult for
Christopher, who is a special needs child. A Psychoeducational Evaluation of Christopher
was entered into evidence and identified him as having an intellectual disability that caused
adverse impacts with regard to his problem-solving abilities, information processing,
academic achievement, and his ability to navigate day-to-day demands. Testimony at trial
showed that, in addition to his intellectual disability, Christopher is also resistant to change.
Father testified he was unaware that Christopher suffered from any of these issues. We
agree with the trial court that changing the child’s environment would likely have a
negative effect on his emotional and psychological wellbeing. Factor five weighs in favor
of termination.
The trial court held that the sixth statutory factor “did not apply to the facts of this
case.” Best interest factor six is “[w]hether 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.” Tenn. Code Ann. § 36-1-113(i)(6). No evidence was presented that Father or
anyone in his home engaged in abusive behavior. However, in April 2005, the Lewis
County Juvenile Court adjudicated Christopher “dependent and neglected within the
meaning of the law” finding, “[biological parents] have not been proper parents to this
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baby. [Father] has not seen the child since December 22, 2003.” Based on this finding
from 2005, we conclude that Father has previously been neglectful to the child.
Nevertheless, sixteen years have lapsed since Christopher was adjudicated dependent and
neglected, and no evidence was presented that suggested Father recently engaged in any
abusive conduct. In light of this, factor six is neutral or slightly weighs against termination.
The trial court also found the seventh best interest factor was inapplicable here.
Factor seven concerns the “physical environment” of the parent’s home and whether it is
“healthy and safe” and free from criminal conduct and alcohol and drug abuse. See Tenn.
Code Ann. § 36-1-113(i)(7). There was no evidence or testimony regarding Father’s drug
or alcohol use. Likewise, there was no testimony regarding any criminal activity in his
home. In the absence of evidence about the physical environment of his home and because
there was no evidence to indicate he abused drugs, alcohol, or engaged in criminal activity,
we must conclude that factor seven weighs against termination. See In re London B., No.
M2019-00714-COA-R3-PT, 2020 WL 1867364, at *20 (Tenn. Ct. App. Apr. 14, 2020)
(holding that certain factors weighed against termination when no evidence was adduced
regarding them).
The eighth best interest factor considers whether the parent’s mental or emotional
status would be detrimental to the child or prevent the parent from providing “safe and
stable care and supervision for the child.” See Tenn. Code Ann. § 36-1-113(i)(8). There
was very little direct evidence presented regarding Father’s mental and emotional status.
However, regarding this factor, the trial court stated, “the testimony is clear that [Father]
is not in a stable environment and that his emotional status [is] questionable. His being
unable to recognize limitations in Christopher in his recent meeting is evidence that he
could not provide safe and stable care or proper supervision for Christopher.” Regarding
Father’s ability to provide “stable care,” the trial court further stated that he “never stayed
in any one place very long and changed his residence from state to state and county to
county so much that he could not give credible and reliable responses to questions about
where he lived at any given time.” The evidence does not preponderate against the trial
court’s findings in this regard.
The ninth best interest factor considers whether the parent “has paid child support
consistent with the child support guidelines.” Tenn. Code Ann. § 36-1-113(i)(9). The
record shows that Father paid off a child support arrearage but that he did not pay any other
amount of child support over the prior sixteen years. Father testified:
Q: Okay. And you realize that you had an obligation to financially support
Christopher after 2007, right?
A: I do now.
Q: Well, you did then, didn’t you?
A: Well, like I said, I was not in the right place back then.
Q: Okay. I mean, who else would have that responsibility but you?
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A: Me. That’s it.
Q: Okay. So you knew you had the responsibility but you didn’t send money
to court, you didn’t ask anybody in Hohenwald where [Foster Parents] lived,
you didn’t –
A: That’s right.
Q: -- contribute anything financially –
A: That’s correct.
Factor nine favors termination.
After considering the entire record and weighing the best interest factors, we
conclude that the combined weight of the proof establishes by clear and convincing
evidence that termination of Father’s parental rights was in the child’s best interest. As
this Court has consistently recognized, “[o]ften the lack of a meaningful relationship
between a parent and child is the most important factor in determining a child’s best
interest.” In re London B., 2020 WL 1867364, at *12.
CONCLUSION
We affirm the trial court’s termination of Father’s parental rights on the ground of
abandonment by failure to support and affirm the trial court’s conclusion that termination
of his parental rights is in the best interest of the child. Costs of appeal are assessed against
the appellant, Brian L., for which execution may issue if necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
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