IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 7, 2003
TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v. R.G.T.
Appeal from the Juvenile Court for Greene County
No. 16056 Thomas J. Wright, Judge
FILED MAY 30, 2003
No. E2002-02804-COA-R3-JV
The trial court terminated the parental rights of R.G.T. (“Father”) to his minor child, L.B.T. (DOB:
September 20, 2000). Father appeals, arguing that the evidence preponderates against the trial
court’s dual findings, i.e., (1) that grounds exist for terminating his parental rights and (2) that
termination is in the best interest of L.B.T. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.
J. Russell Pryor, Greeneville, Tennessee, for the appellant, R.G.T.
Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney
General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
On September 21, 2000, the Tennessee Department of Children’s Services (“DCS”) filed a
petition for temporary custody of one-day-old L.B.T. The petition alleges that L.B.T. was a
dependent and neglected child “in that the parents . . . by reason of mental incapacity are unfit to
properly care for such child.” The petition goes on to state that the court had previously terminated
the parental rights of Father and N.J.T. (“Mother”)1 with respect to their other children, the siblings
1
Mother’s parental rights to L.B.T. are not at issue on this app eal.
of L.B.T. (“the child”)2 When the child came into the custody of DCS, she was placed in the home
of the family that had adopted her four siblings.
On December 6, 2000, DCS filed a petition to terminate the parental rights of Father and
Mother to the child. Four months later, the trial court entered an order, finding that the child was
dependent and neglected due to the mental incapacity of the parents and awarded continued custody
of the child to DCS. In addition, the trial court granted the parents the option of exercising
supervised visitation with the child, ordered the parents to undergo a new psychological evaluation,
and adopted the permanency plan filed by DCS.
Visitation with the child did not go well. A quarterly progress report submitted by the child’s
DCS case manager on June 29, 2001, addresses the parents’ visitation thusly:
The foster mother . . . has to remain in the room at all times because
[the child] will not tolerate being alone with her parents. She cries
and screams continuously if her foster mom leaves her, even briefly.
Two and a half months later, the parents filed an answer to the petition to terminate, alleging that
DCS “comes to Court with unclean hands” because of its refusal to allow the parents to visit with
the child. On the same day the parents filed their answers, the trial court entered an order
terminating visitation. The order states that the matter had been pending before the trial court since
December 6, 2000; that the case had been reset three times due to defense counsel’s difficulty in
obtaining an independent psychological evaluation; that the only issue that remained to be litigated
was the mental and psychological health of the parents; and that the termination hearing would
proceed as scheduled on October 3, 2001.
On October 1, 2001, counsel for the parents deposed psychologist Nancy L. Lanthorn, Ph.D.,
who had performed the psychological evaluation of the parents. Dr. Lanthorn testified that she could
say within “a 95% degree of confidence [Father] has an IQ of between 64 and 72.” She further stated
that this IQ placed Father in the “extremely low to borderline range of intellectual functioning,”
which was previously classified in psychological terms as mild mental retardation. While Dr.
Lanthorn agreed with DCS that Father was mentally incompetent to parent the child, she opined that
Mother was competent to parent the child and that Father and Mother “work nicely as a team.”
Apparently based upon the results of the psychological evaluation, DCS dismissed the
petition to terminate on October 2, 2001. At the end of the month, the trial court entered an order
which allowed the parents to have supervised visitation with the child. The order also stated that
DCS could videotape the visitation, starting with the parents’ third visitation session.
2
On December 8, 1999, the court had found, by clear and convincing evidence, that grounds existed for
terminating the parental righ ts of Father and Mother to their other four children, ranging in age from six to thirteen, and
that termination of parental rights was in the best interest of the children. The grounds for termination included the
persistence of the conditions that led to the removal, the m ental incomp etence of the p arents, and the failure to
substantially comply with the foster care plan.
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On December 19, 2001, DCS filed a new petition, this time seeking to terminate visitation.
DCS alleged that the videotapes of the visitation sessions “demonstrate the parents’ inability to calm
the child during the visitation period.” The December 27, 2001, quarterly progress report recites the
following:
The child screams during the entire visitation with her parents unless
she cries herself to sleep.
***
The parents do not have a relationship of any kind with this child.
She screams and cries whenever she sees them. She is normally a
very well adjusted child. However, when the child sees her natural
parents she has an adverse reaction.
In January, 2002, Father and Mother separated. Five months later, DCS filed a petition to
terminate Father’s parental rights, alleging, inter alia, that he had willfully abandoned the child by
failing to pay child support, that the conditions which led to the child’s removal persisted, and that
he was mentally incompetent to parent the child. After a full hearing, the trial court terminated
Father’s parental rights. In the final judgment, entered November 14, 2002, the court below found,
by clear and convincing evidence, that grounds for terminating Father’s parental rights existed and
that termination was in the best interest of the child.
II.
In this non-jury case, our review is de novo upon the record of the proceedings below; but
the record comes to us with a presumption of correctness as to the trial court’s factual determinations
– one that we must honor unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law, however, are
accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
III.
It is well-settled that “parents have a fundamental right to the care, custody, and control of
their children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois,
405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). However, this right is not absolute and may
be terminated if there is clear and convincing evidence justifying termination under the pertinent
statutory scheme. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
Clear and convincing evidence is evidence which “eliminates any serious or substantial doubt
concerning the correctness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier,
905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).
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The issues raised in the pleadings, the evidence presented at trial, and the trial court’s
findings, bring into play several statutory provisions. Particularly pertinent are the provisions
dealing with a parent’s “mental condition.” All of the termination statutes implicated by the facts
of this case are as follows:
Tenn. Code Ann. § 37-1-147 (2001)
(a) The juvenile court shall be authorized to terminate the rights of a
parent or guardian to a child upon the grounds and pursuant to the
procedures set forth in title 36, chapter 1, part 1.
***
Tenn. Code Ann. § 36-1-113 (2001)
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1, part
1 and title 37, chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
grounds for termination of parental or guardianship rights have been
established; and
(2) That termination of the parent’s or guardian’s rights is in the best
interests of the child.
***
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as defined in [Tenn.
Code Ann.] § 36-1-102, has occurred;
***
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(3)(A) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(i) The conditions which led to the child’s removal or other
conditions which in all reasonable probability would cause the child
to be subjected to further abuse or neglect and which, therefore,
prevent the child’s safe return to the care of the parent(s) or
guardian(s), still persist;
(ii) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent(s)
or guardian(s) in the near future; and
(iii) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe,
stable and permanent home.
***
(8)(A) The chancery and circuit courts shall have jurisdiction in an
adoption proceeding, and the chancery, circuit, and juvenile courts
shall have jurisdiction in a separate, independent proceeding
conducted prior to an adoption proceeding to determine if the parent
or guardian is mentally incompetent to provide for the further care
and supervision of the child, and to terminate that parent’s or
guardian’s rights to the child.
(B) The court may terminate the parental or guardianship rights of
that person if it determines on the basis of clear and convincing
evidence that:
(i) The parent or guardian of the child is incompetent to adequately
provide for the further care and supervision of the child because the
parent’s or guardian’s mental condition is presently so impaired and
is so likely to remain so that it is unlikely that the parent or guardian
will be able to assume or resume the care of and responsibility for the
child in the near future, and
(ii) That termination of parental or guardian rights is in the best
interest of the child.
***
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Tenn. Code Ann. § 36-1-102 (Supp. 2002)
As used in this part, unless the context otherwise requires:
(1)(A) “Abandonment” means, for purposes of terminating the
parental or guardian rights of parent(s) or guardian(s) of a child to
that child in order to make that child available for adoption, that:
(i) For a period of four (4) consecutive months immediately preceding
the filing of a proceeding or pleading to terminate the parental rights
of the parent(s) or guardian(s) of the child who is the subject of the
petition for termination of parental rights or adoption, that the
parent(s) or guardian(s) either have willfully failed to visit or have
willfully failed to support or make reasonable payments toward the
support of the child;
(ii) The child has been removed from the home of the parent(s) or
guardian(s) as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as
defined in § 37-1-102, and the child was placed in the custody of the
department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition
is filed finds, that the department or a licensed child-placing agency
made reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable efforts
from being made prior to the child’s removal; and for a period of four
(4) months following the removal, the department or agency has made
reasonable efforts to assist the parent(s) or guardian(s) to establish a
suitable home for the child, but that the parent(s) or guardian(s) have
made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it
appears unlikely that they will be able to provide a suitable home for
the child at an early date;
***
(D) For purposes of this subdivision (1), “willfully failed to support”
or “willfully failed to make reasonable payments toward such child’s
support” means that, for a period of four (4) consecutive months, no
monetary support was paid or that the amount of support paid is token
support;
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(Emphasis added).
IV.
Father raises four issues for our consideration: (1) whether the evidence supports the trial
court’s finding of abandonment for willful failure to support; (2) whether the evidence supports the
trial court’s finding that DCS made reasonable efforts to prevent the removal of the child; (3)
whether the evidence supports the trial court’s finding of grounds for termination based upon Tenn.
Code Ann. § 36-1-113(g)(3)(A)(i)-(iii) and (g)(8)(B)(i)-(ii); and (4) whether the trial court erred
when it admitted into evidence the expert testimony of Dr. Lanthorn on the question of Father’s
mental competency.
A.
With respect to Father’s abandonment of the child, the trial court found as follows:
[T]he Court finds by clear and convincing evidence that the child has
been abandoned within the legal definition of that term in that [Father
has] willfully failed to support the child and make reasonable
payments toward the support of the child for the four consecutive
months immediately preceding the filing of the petition. Indeed,
there’s never been any payments made by either [Mother or Father]
at any time during the life of the child. And in hindsight again, I
should have ordered them to make payments. No doubt about that.
Should have told them exactly how much. But I believe that the legal
precedent is clear that it’s not necessary for the Court to have done
that in order to establish the willful failure to pay. If [Father] didn’t
know that [he] needed to take care of [his] own child financially, then
that only confirms [his] inability to properly and safely care for [his]
own child. So I make the finding by clear and convincing evidence
based upon the fact that [Father has] never paid anything and . . . that
item has been established as a ground for termination.
The statutory definition of “willfully failed to support” and “willfully failed to make
reasonable payments toward a child’s support,” as defined in Tenn. Code Ann. § 36-1-102(1)(D),
was held to be unconstitutional by the Tennessee Supreme Court in the case of In re Swanson, 2
S.W.3d 180, 188 (Tenn. 1999). The court in Swanson stated that, pending legislative action to cure
the statute’s constitutional infirmity, actions in juvenile court seeking to terminate parental rights for
abandonment based upon a failure to support would be controlled by the statutory definition of
abandonment in effect prior to the enactment of the adoption code, effective January 1, 1996. Under
the prior provision, which, under Swanson, now controls the issue, an abandoned child was defined
as one “whose parents or other persons lawfully charged with his [or her] care and custody . . .
willfully fail to support or make payments toward his [or her] support for a period of four (4)
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consecutive months.” Tenn. Code Ann. § 37-202(7) (Supp. 1970) (repealed effective January 1,
1996). See Pack v. Rogers, 538 S.W.2d 607, 609, 610 (Tenn. Ct. App. 1976).
Father argues that his failure to pay child support could not have been willful, as he had no
knowledge that he needed to pay child support. At the time of trial, Father was 44 years old and had
achieved only an eighth grade education. In addition, Father is unable to read. Father contends that
DCS failed to make him aware of his obligation to support his child. Further, Father asserts that “it
was logically inconsistent for [DCS] to argue and the trial [c]ourt to find that Father is incompetent,
while at the same time arguing/finding that Father could [have] intentionally fail to pay support.”
By Father’s own admission, he has never paid any support for the child. He also admitted
that he has never taken the child any birthday or Christmas cards, and the only gift Father could
recall giving the child was taken to her by Mother at the child’s first Christmas. Father asserts that
he was under no court order to pay child support. In response to such an assertion in a previous case,
this Court stated that “the support of one’s children should not be conditioned upon whether one has
been placed under a court order to do so.” State Dep’t of Human Servs. v. Manier, C/A No. 01A01-
9703-JV-00116, 1997 WL 675209, at *5 (Tenn. Ct. App. W.S., filed October 31, 1997). With
respect to Father’s argument that he was unaware of his responsibility to pay child support due to
his inability to read and his mental deficiency, we agree with the trial court that such an assertion
tends to support the position of DCS that Father is unable to properly parent his child. In any event,
the evidence does not preponderate against the trial court’s finding that there was clear and
convincing evidence of Father’s abandonment of the child.
B.
Father next contends that the trial court erred in determining that DCS made reasonable
efforts to prevent the removal of the child, as set forth in Tenn. Code Ann. § 36-1-102(1)(A)(ii). In
ruling on the reasonable efforts of DCS, the trial court stated the following:
[T]here really wasn’t any effort made on behalf of [Father] to assist
him in doing anything. Basically, you were given up on. There’s no
doubt about it. Perhaps that’s an interesting legal issue for the
Appellate Courts to discuss, whether or not in light of the evidence
presented to the caseworker that was reasonable. I find that it was
reasonable in light of what [the caseworker and DCS were] presented
with, which was my fresh ruling that [Father] was incompetent and
was not likely to become competent, and the subsequent evaluations
that [the caseworker] was apprised of which continued to indicate that
[Father] was not going to be capable of properly parenting the child,
and I make that finding by clear and convincing evidence.
With regard to [Mother] and also somewhat to the extent of [Father],
there are significant indications I think from Appellate Courts that
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[DCS’s] role or the onus on [DCS] is significantly greater perhaps
than has been operated under in the past, . . . . But certainly, the
parents continue to have a responsibility to take action themselves
and the Court finds that [Father and Mother] did not act reasonably
in failing to take action in order to attempt to complete a Plan of Care
and to address the issues that were preventing the child from residing
with either of them. . . .
Based upon that factor I think the Court can find and does find that
those omissions on behalf of [Father and Mother] who the Court finds
to have been extremely, extremely well-versed in dealing with [DCS]
as well as other social services agencies through the course of their
previous children’s termination and foster care, I find that their
omissions amount to a demonstrated lack of concern for the child to
the degree that it appears unlikely that they’d be able to provide a
suitable home for the child.
Tenn. Code Ann. § 36-1-102(1)(A)(ii) contemplates that DCS will make reasonable efforts
to prevent the child in question from being removed from the home of the parents, unless “the
circumstances of the child’s situation prevent[] reasonable efforts from being made prior to the
child’s removal.” In the instant case, the parental rights of Father and Mother had been terminated
with respect to their other four children less than one year prior to the birth of the child in question.
DCS’s prior, fresh history with respect to these parents certainly must be factored in when evaluating
the sufficiency of DCS’s efforts prior to removing the child. We agree with the trial court that the
actions of DCS were reasonable in light of the parents’ history with DCS and the previous
termination proceedings. Accordingly, we find that the evidence does not preponderate against the
trial court’s findings with respect to reasonable efforts by DCS.
C.
In addressing the issue of failure to remedy the conditions preventing the return of the child,
the court found as follows:
The conditions which still persist are those generally that were talked
about in the Plan of Care and discussed in the argument of the
guardian ad litem that [Father and Mother] are still in no position to
be able to adequately provide for a child. I think [the guardian] is
exactly right about that. Those were not the conditions which caused
the child to be removed necessarily. What caused the child to be
removed is that it was just a few short months prior to the birth of the
child this Court had found that [Father and Mother] were incapable
of properly parenting a child and therefore ordered that this child also
be removed from their custody.
-9-
I don’t find there to have been any significant change in their
parenting abilities or in their mental or emotional abilities since I
previously found them to be incompetent. So from that standpoint
that condition which led to the removal of the child I find by clear and
convincing evidence does persist and that there are other conditions
including their instability of their living arrangements and their
inability to provide an income to support a child as well as the lack of
parenting ability as demonstrated on the videotape in particular, and
through the other testimony as well that would, in all probability,
cause the child to be subjected to neglect in the future and make it
unsafe to return the child to either one of them’s custody.
The Court finds by clear and convincing evidence that there is little
likelihood that these conditions could be remedied at an early date
and that the continuation of the legal parent and child relationship
greatly diminishes the child’s chances of early integration into a
stable and permanent home.
The evidence does not preponderate against these factual findings by the trial court. On the
contrary, there is ample evidence to support the trial court’s findings that, due to Father’s mental
incompetency, he will be unable to remedy his lack of parenting skills in the near future, and that the
continuation of Father’s legal relationship with the child will greatly diminish the child’s chances
of an early integration into a stable home environment.
D.
With respect to the competency of Father, the court stated the following:
With regard to [Father], the Court finds that the allegation of
incompetency to provide for the child and to adequately parent the
child has been established by clear and convincing evidence and that
it is unlikely that he would be able to address the impairment from
which he suffers so as to be able to assume the care and responsibility
of the child in the near future. The near future has now already
passed and essentially, as [the guardian ad litem] said, there’s not
anything that’s happened. There’s really not anything that’s new
other than that they have split up and that [Mother] has adopted what
is now referred to as an alternative lifestyle apparently. But the
evidence that is before the Court indicates that [Father] would remain
subject to that incompetency finding as I found in the previous
hearing some years ago, and specifically without reference to the
deposition of Dr. Lanthorn[], the Court finds that the ground will be
established by not only the Court’s previous finding, but the
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testimony of the lay witnesses here today as well as the fact through
[Father’s] testimony that he now receives disability benefits at least
in part because of his mental disability. The Court notes for the
record that he apparently received an award which said he was
disabled back to 1997 at which time he was currently working on a
dairy farm, and did again in 2001 indicating that the back injury was
not the significant portion of the disability. At least, that’s what I find
by clear and convincing evidence.
Father argues that the trial court’s finding of incompetency “was based upon certain ‘expert
testimony’ which was introduced at trial in the form of a deposition and other writings.” Father
further contends that the testimony of Dr. Lanthorn was inadmissible hearsay, that the testimony did
not meet the requirements of Tenn. R. Evid. 702 & 703 or the requirements of McDaniel v. CSX
Transp., Inc., 955 S.W.2d 257 (Tenn. 1997), and that none of the opinions expressed by Dr.
Lanthorn were stated within a “reasonable degree of scientific certainty.”
We find Father’s assertion puzzling, in view of the trial court’s statement that it was finding
Father incompetent “specifically without reference to the deposition of Dr. Lanthorn.” (Emphasis
added). Instead, the court based its decision on its previous adjudication of incompetency and the
fact that it could see no improvement in Father’s mental condition; the testimony of other lay
witnesses; and the fact that Father has been awarded disability, at least in part, for his mental
condition. Since Dr. Lanthorn’s testimony was not relied upon by the trial court, the error, if any,
in receiving her testimony into evidence was harmless.
V.
Finally, we conclude that the evidence contained in the record supports the trial court’s
finding that the termination of Father’s parental rights is in the best interest of the child. The trial
court summarized the factors pertaining to the child’s best interest:
I have to address the best interest, whether it’s in the child’s best
interest to terminate parental rights. The short answer to that is that
the Court does believe it to be in the child’s best interest and that
that’s been established by clear and convincing evidence. . . . The
child has clearly bonded with the foster family and is in a position
where it has lived with and formed a bond with its four biological
siblings. The child is doing well. When the Court was forcing the
visitation the child wasn’t doing nearly as well and just had an
awfully, awfully bad response to [Father and Mother] as evidenced by
the videotape.
Specifically, the Statute requires that I address several factors which
are set forth in [Tenn. Code Ann. §] 36-1-113(i) and are numbered
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thereafter 1 through 9. With regard to item number 1, the Court finds
that neither parent has made any significant adjustment of
circumstance or conditions so as to make it safe for the child and in
the child’s best interest to return to their home.
Number 2, the Court finds by clear and convincing evidence that both
the parents have failed to make a lasting adjustment after reasonable
efforts by available social services agencies; so that a lasting
adjustment does not reasonably appear possible. To a certain extent
I’m basing that on the prior history of the other several years with the
other kids.
Number 3 is a non-issue for the Court in this case because it involves
whether they’ve maintained regular visitation. Of course, I
terminated their visitation. Prior to that time they did maintain
regular visitation the Court finds by clear and convincing evidence.
Number 4, the Court finds that no meaningful relationship was ever
established between the biological parents and the child.
Number 5, the Court finds that it is likely that a change of caretakers
and physical environment for this child would have a significantly
adverse affect on the child’s emotional/psychological condition.
Number 6, the Court does not find to have been a factor with regard
to the child’s best interest.
Number 7, the Court finds that there’s not a great deal of evidence
one way or the other with regard to [Mother], but that [Father] has
demonstrated by clear and convincing evidence that he has a healthy
and safe physical environment currently in his mother’s home. There
hasn’t been any evidence about the use of alcohol or controlled
substances by either of these parents. The Court finds that item
number 7 does not preponderate in favor of termination or in favor of
the child’s best interest that its right be terminated.
Number 8, the Court does find that item number 8 has been
established by clear and convincing evidence that the parents’ mental
and/or emotional status would be detrimental to the child and prevent
the parent from effectively providing a safe and stable care and
supervision for the child, and that the Court finds with regard to both
[Father and Mother].
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And number 9, obviously as I’ve already found, neither parent paid
any child support.
Having considered those factors set out in the Statute as well as the
overall factor that the Court’s already mentioned regarding the current
placement of the child and the child’s forming a part of that family,
the Court does find that it’s in the child’s best interest to terminate the
parental rights of [Father and Mother] to the child, [L.B.T.] and
therefore, the Court does so.
The evidence does not preponderate against these findings. Rather, the evidence believed by the trial
court – much of which is alluded to in this opinion – shows in a clear and convincing manner that
termination is in the child’s best interest.
VI.
R.G.T. has filed a motion requesting that any costs that might be taxed to him be waived.
We find the motion to be well-taken, and, accordingly, it is hereby granted.
VII.
The judgment of the trial court is affirmed. This case is remanded for enforcement of the trial
court’s judgment and for collection of costs assessed below, all pursuant to applicable law.
Exercising our discretion, we tax the costs on appeal to the Tennessee Department of Children’s
Services.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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