Assigned on Briefs September 1, 2017
from the Chancery Court for Henderson County No. 26646 James
F. Butler, Chancellor
trial court terminated Father's parental rights on
grounds of: (1) abandonment by willful failure to visit; (2)
abandonment by willful failure to support; (3) abandonment by
failure to establish a suitable home; and (4) persistence of
conditions. We reverse the grounds of abandonment by failure
to establish a suitable home and persistence of conditions.
In all other respects, we affirm the judgment of the trial
court, including the termination of Father's parental
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part and Reversed in Part
William Milam, Jackson, Tennessee, for the appellant, Steven
E. Barnett and Charles H. Barnett, III, Jackson, Tennessee,
for the appellees, Michael S., Latisha S., Derek Y., and
Andrew Anderson, Jackson, Tennessee, Guardian Ad Litem.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and Richard H.
Dinkins, J., joined.
MEMORANDUM OPINION 
STEVEN STAFFORD, JUDGE
child at issue was born in March 2013 to parents Casondra A.
("Mother") and Steven A.
("Father"). On September 10, 2014, the Tennessee
Department of Children's Services ("DCS")
received a referral alleging that the child at issue was in
danger and drug exposed. The report alleged that Father had
barricaded himself in his home and would not allow Mother
custody of the child. When DCS and law enforcement arrived at
the home, Father cooperated but admitted that he had used
methamphetamines in the last week. Father tested positive for
marijuana only. Father informed DCS workers that Mother had
also recently abused drugs. An investigation of the home
revealed that Father had no proper crib for the child. As a
result, DCS removed the child from Father's home and
placed her with the child's maternal aunt and uncle,
Petitioners/Appellees Michael ("Maternal Uncle")
and Latisha S. ("Maternal Aunt, " and together with
Maternal Uncle, "Legal Guardians"). The next day, the
Henderson County Juvenile Court ("the juvenile
court") entered an order finding that there was probable
cause to believe that the child was dependent and neglected
and placing custody of the child with DCS. On September 17,
2014, the juvenile court entered an order transferring
custody of the child from DCS to Legal Guardians. Although
DCS did not appear to retain custody of the child, it
remained involved in this case until April 2015.
same day, DCS filed a petition to adjudicate the child
dependent and neglected. On December 9, 2014, the juvenile
court entered an order finding the child dependent and
neglected upon Mother's and Father's stipulations. In
this order, both parties were granted supervised visitation.
There is no dispute that Father exercised visitation until
December 2014, when he informed the juvenile court that his
relapsed alcoholism required that he attend a rehabilitation
program. After December 2014, there is no dispute that Father
did not exercise any visitation with the child. Thereafter,
on May 5, 2015, the juvenile court entered a dispositional
order allowing the child to remain in Legal Guardians'
custody. The order specifically stated that all
prior orders regarding visitation remained in effect and that
parents could petition "for visitation/increase in
visitation when they have complied with all prior court
orders and can prove to the [c]ourt that they can provide a
safe and suitable home for the children, free from drug
use." Finally, the order relieved DCS of any involvement
in the case.
some point in 2015, Legal Guardians came to believe that it
was in the child's best interest to reside with family
friends, Appellee/Petitioners Tiffany and Derek Y. (together
"Prospective Adoptive Parents, " and with Legal
Guardians, "Petitioners"). According to the
testimony, Prospective Adoptive Parents hoped to adopt a
child and the two families determined that the child was a
good fit with Prospective Adoptive Parents. In making this
decision, Maternal Aunt testified that the two families spent
considerable amounts of time together, leading to the child
spending weekends with Prospective Adoptive Parents, and
finally transitioning to living with Prospective Adoptive
Parents full-time in approximately October 2015. At this
time, Legal Guardians executed a power of attorney for a
minor child in favor of Prospective Adoptive Parents.
Prospective Adoptive Parents retained physical custody of the
child at the time of trial, and there was no dispute that
Prospective Adoptive Parents, rather than Legal Guardians,
wished to adopt the child.
17, 2015, Legal Guardians filed a petition to terminate the
parental rights of both Mother and Father in the Henderson
County Chancery Court ("the trial
court").On August 3, 2015, Legal Guardians filed a
motion to suspend visitation with Mother and Father. With
regard to Father, the motion alleged that Father had called
Maternal Aunt several times while she was at work
"wanting to speak with the [c]hild." Legal
Guardians asserted that these calls were harassing and that
contact with Father would harm the child due to Father's
long absence from her life. No order is contained in the
record adjudicating Legal Guardians' motion. Instead, on
October 16, 2015, the termination petition was voluntarily
dismissed without prejudice as to Father. The same day,
however, a separate petition to terminate Father's
parental rights was filed under a different docket number.
The petition alleged grounds of: (1) abandonment by willful
failure to visit; (2) abandonment by willful failure to
support; (3) abandonment by failure to establish a suitable
home; and (4) persistent conditions. Curiously, Legal
Guardians later sought to consolidate the separate cases,
which request was granted by the trial court by the consent
of the parties on January 21, 2016. On June 20, 2016, the
trial court granted Legal Guardians permission to file an
amended petition to add as co-petitioners Prospective
Adoptive Parents, who hoped to adopt the child. The amended
petition was filed the same day.
was held over several days in June and July of 2016. Legal
Guardians confirmed that the child was placed in their care
in September 2014. At the time, Maternal Aunt testified that
Father informed her that he would not stop drinking despite
the removal of the child. After a period of time in Legal
Guardians' home, they determined that the child should
live with Prospective Adoptive Parents, who wanted to adopt
the child. Legal Guardians and Prospective Adoptive Parents
therefore spent time together to create a gradual transition
for the child from one home to the other. Although the child
lived with Prospective Adoptive Parents full-time by the time
of trial, both families testified that they spend
considerable amounts of time together. Moreover, both
families testified that the child has made a marked
improvement since being removed from parents' custody.
For example, while the child was initially afraid of men,
both Prospective Adoptive Parents and Maternal Uncle
testified that she no longer exhibits fear around them.
Prospective Adoptive Parents also testified that the child
refers to them as her parents and that she does not have any
relationship with Father. As such, Prospective Adoptive
Parents testified that removing the child from their home and
placing her with a parent she does not know would be
"traumatic" for the child.
Aunt confirmed through her testimony that Father's
visitation generally went well for a time but was terminated
in December 2014, after Father appeared in court and informed
the court that his drinking had deteriorated so that "he
was throwing up into a bottle and re-drinking it." At
that point, Maternal Aunt testified that the juvenile court
informed Father that visitation would be suspended and that
Father could petition the court to renew visitation once he
received help for his alcoholism.
Aunt next testified as to the calls by Father that prompted
Legal Guardians to file the motion to terminate all contact
between Father and the child. According to Maternal Aunt,
Father called her several times around June of 2015, asking
how the child was doing. Although Maternal Aunt testified
that Father asked what he could do for the child, she
testified that he never specifically offered financial
support for the child, nor did he ask to visit with the
child. In response, Maternal Aunt testified that she informed
Father than he should speak with his attorney. There was no
dispute that Legal Guardians received no financial support
from Father in the months prior to the filing of the October
16, 2015 termination petition.
workers testified about their involvement with the family.
The DCS workers generally testified that Father's initial
home did not have a proper crib for the child and that Father
subsequently moved into a trailer that was also unsuitable.
During the time that DCS was involved in the case, the DCS
workers testified that they met several times with parents
and developed a plan that required parents to obtain proper
housing and employment. The DCS workers also provided drug
testing for the parents in order to permit visitation and
recommended a drug rehabilitation facility to Father. It also
appears that DCS worked to allow Father to obtain supervised
generally admitted that the child's removal was a result
of his and Mother's alcohol and drug problems. Father
also admitted that his drinking became so bad that the
juvenile court suspended his visitation in December 2014 and
required that Father establish that he was sober to renew
visitation. Father did not deny that he had been charged with
upwards of five crimes since the child's birth, ranging
from violating community corrections to theft. In addition,
Father was also arrested three times for domestic violence
toward Mother. For example, in January 2015, Father was
arrested and pleaded guilty to domestic violence against
Mother, in an altercation that left Mother severely injured.
Father admitted that the child had been present when he had
been violent toward Mother in the past.
testified, however, that his issues with violence all
occurred when he was under the influence of drugs or alcohol,
and that he had not used drugs or alcohol since January 2015.
Father also testified that he had completed a 21-day program
of rehabilitation following his release from jail on the
domestic violence charge and currently attended Alcoholics
Anonymous meetings regularly. Father submitted documentary
proof of his completion of rehabilitation and parenting
classes, as well as records from his probation officer
showing that Father passed drug and alcohol screenings in
February 2016, April 2016, and May 2016. Father testified
that he is no longer on probation, that he lives in housing
that is appropriate for the child, and that he has an
appropriate plan for the care of the child should she be
returned to his care. Father also noted that although Mother
lived in the home with him for a time, he was forced to evict
Mother because she did not remain sober. Father testified
that he intends to initiate divorce proceedings once the
termination proceeding was completed. Father submitted the
testimony of several individuals with knowledge of his living
situation and sobriety to support his testimony.
further testified that he obtained steady employment in early
June 2015, making him capable of paying child support for the
child as of that time. According to Father, in April or May
2015 and again in June 2015, he called Maternal Aunt to
inquire about visitation and support for the
child. Father testified, however, that Maternal
Aunt rebuffed his efforts, even threatening to file
harassment charges against Father. Father also testified that
he could not send funds to Legal Guardians because he did not
have their address. According to Father, a few weeks after
his June 2015 call to Maternal Aunt, he received notice that
a child support proceeding had been initiated and that he was
to appear in juvenile court in December 2015. As such, Father
testified his counsel directed him to take no action until
that hearing date, in which he was ordered to pay child
support. There is no dispute that Father has paid regular
child support since December 2015. Father admitted, however,
that he did not initiate the child support proceeding, but
that it was initiated either by Legal Guardians or the State.
trial court took the matter under advisement and issued a
final judgment on October 27, 2016. Therein, the trial court
found that Petitioners had shown clear and convincing
evidence of all grounds for termination and that termination
was in the child's best interest. Father now
raises two issues in this case, which are restated from his
1. Whether the trial court erred in finding that Father
abandoned his child by willfully failing to visit or support
2. Whether the trial court erred in finding termination of
Father's parental rights in the child's best
explained by the Tennessee Supreme Court:
A parent's right to the care and custody of her child is
among the oldest of the judicially recognized fundamental
liberty interests protected by the Due Process Clauses of the
federal and state constitutions. Troxel v.
Granville, 530 U.S. 57, 65 (2000); Stanley v.
Illinois, 405 U.S. 645, 651 (1972); In re Angela
E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption
of Female child, 896 S.W.2d 546, 547-48 (Tenn. 1995);
Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993).
But parental rights, although fundamental and
constitutionally protected, are not absolute. In re
Angela E., 303 S.W.3d at 250. "'[T]he [S]tate
as parens patriae has a special duty to protect minors . . .
.' Tennessee law, thus, upholds the [S]tate's
authority as parens patriae when interference with parenting
is necessary to prevent serious harm to a child."
Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983));
see also Santosky v. Kramer, 455 U.S. 745, 747
(1982); In re Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn.
2016) (footnote omitted).
termination statutes identify "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., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL
1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)). A person
seeking to terminate parental rights must prove both the
existence of one of the statutory grounds for termination and
that termination is in the child's best interest. Tenn.
Code Ann. § 36-1-113(c); In re D.L.B., 118
S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002).
of the fundamental nature of the parent's rights and the
grave consequences of the termination of those rights, courts
must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769.
Consequently, both the grounds for termination and the best
interest inquiry must be established by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c)(1); 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 re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
"produces in a fact-finder's mind a firm belief or
conviction regarding the truth of the facts sought to be
established." Id. at 653.
As opined by the Tennessee Supreme Court:
The trial court's ruling that the evidence sufficiently
supports termination of parental rights is a conclusion of
law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d
[387, ] 393 [(Tenn. Ct. App. 2009)] (quoting In re
Adoption of A.M.H., 215 S.W.3d , 810 [(Tenn.
2007)]). Additionally, all other questions of law in parental
termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela
E., 303 S.W.3d at 246.
In re Carrington H., 2016 WL 819593, at *12.
the resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the
opportunity to observe the witnesses and their manner and
demeanor while testifying, is in a far better position than
this Court to decide those issues. See McCaleb v. Saturn
Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The
weight, faith, and credit to be given to any witness's
testimony lies in the first instance with the trier of ...