In re J.M.M.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 7, 2016

IN RE J.M.M.

Appeal from the Juvenile Court for Hamblen County
No. J130064 Janice Hope Snider, Judge

No. E2015-01116-COA-R3-PT-FILED-MAY 25, 2016
_________________________________

This is a termination of parental rights case. The Department of Children’s Services filed
a petition to terminate the parental rights of W.J.N. (Father) with respect to J.M.M. (the
Child). The trial court found clear and convincing evidence of five grounds warranting
termination. The court found the same quantum of evidence reflecting that termination is
in the best interest of the Child. Father appeals. 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 D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Gerald T. Eidson, Surgoinsville, Tennessee, for the appellant W.J.N.

Herbert H. Slatery III, Attorney General and Reporter, and Mary Byrd Ferrara, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children=s Services.

OPINION

I.

On March 18, 2013, the Child was born drug-exposed. He tested positive for
oxycodone. After exhibiting drug-withdrawal symptoms, the Child was transported to
East Tennessee Children’s Hospital and was diagnosed with Neonatal Abstinence
Syndrome (NAS). On April 9, 2013, the Child was taken into DCS custody. At that
time, Father was serving a two-year sentence in the Hamblen County Jail for two felony
drug convictions.1 On September 3, 2013, Father appeared before the trial court for a
hearing.2 The Child was subsequently adjudicated dependent and neglected.

DCS created a permanency plan to address the problems necessitating the Child’s
removal. The permanency plan set forth Father’s requirements: (1) complete an alcohol
and drug assessment; (2) submit to random drug screens; (3) complete a mental health
assessment; (4) complete parenting education; (5) resolve criminal issues and not incur
new criminal charges; (6) have suitable housing and a legal source of income; (7) attend
all of the Child’s medical appointments while he was being treated for NAS; and (8)
provide reliable transportation. Father was released from jail in late September 2013.
After violating the terms of his probation, Father was again incarcerated briefly in
December 2013. Following his subsequent release, Father started having regular visits
with the Child. These interactions did not go smoothly, and Father was ultimately
ordered to complete a nurturing parent curriculum. Thereafter, Father completed the
required parenting education, bonding assessment, alcohol and drug assessment and
treatment, and mental health assessment and counseling. Nevertheless, Father failed to
make a single child support payment or attend any of the Child’s medical appointments.
Furthermore, Father failed to maintain suitable housing for the Child and had no proof of
a legal source of income.

On June 18, 2014, Father was arrested for aggravated armed robbery and
incarcerated. On August 4, 2014, DCS filed a petition to terminate Father’s parental
rights. In the petition, DCS alleged five separate grounds justifying termination: (1)
abandonment predicated on Father’s failure to provide for the support of the Child, said
ground being set forth in Tenn. Code Ann. §§ 36-1-113(g)(1) (2014) and 36-1-
102(1)(A)(iv), -102(1)(D) (2014); (2) abandonment as a result of Father’s wanton
disregard as provided for in Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(A)(iv); (3)
abandonment as a result of Father’s failure to provide a suitable home, citing Tenn. Code
Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (4) Father’s substantial noncompliance
with the permanency plan, citing Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2)
(2014); and (5) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3).
1
The first felony conviction was for attempted delivery on January 15, 2012, of a
Schedule II controlled substance, oxycodone. The second felony conviction was for attempted
delivery on March 18, 2012, of a Schedule II controlled substance, cocaine.
2
Though the Child’s birth certificate did not list a biological father, the Child was
legitimated by the trial court on September 3, 2013, after both the Child’s biological mother and
Father acknowledged that Father was the biological father. The Child’s biological mother
voluntarily surrendered her parental rights on January 15, 2015, and is not a party to this appeal.

2
A trial was held on March 26 and April 30, 2015. On May 11, 2015, the trial court
entered an order terminating Father’s parental rights after finding clear and convincing
evidence supporting each of the five grounds alleged in DCS’s petition. In addition, the
trial court held that there was clear and convincing evidence that termination was in the
Child’s best interest.

II.

Father filed a notice of appeal on June 3, 2015, raising the following issue, as
taken verbatim from his brief:

Whether the [c]ourt erred in finding it was in the child’s best
interest to terminate the mother’s3 parental rights.

III.

“A biological parent’s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the Due Process Clauses
of the federal and state constitutions.” In re S.M., 149 S.W.3d 632, 638 (Tenn. Ct. App.
2004) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)) (internal citations omitted).
However, this right is not absolute. In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct.
App. 2005) (citing State Dep’t of Children’s Servs. v. C.H.K., 154 S.W.3d 586, 589
(Tenn. Ct. App. 2004)).

Parties seeking to terminate a biological parent’s parental rights must prove, by
clear and convincing evidence, at least one statutory ground. In re Adoption of S.T.D.,
No. E2007-01240-COA-R3-PT, 2007 WL 3171034, at *3 (Tenn. Ct. App., filed Oct. 30,
2007) (citing Tenn. Code Ann. § 36-1-113(c)(1)). A petitioner also must prove by clear
and convincing evidence that termination is in the child’s best interest. Id. (citing Tenn.
Code Ann. § 36-1-113(c)(2)). “Clear and convincing evidence is evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (internal quotation marks
and citation omitted).

3
Twice in Father’s brief, he asserts that the trial court erred in terminating Mother’s
parental rights. If Father really intended for this issue to involve Mother’s parental rights, the
issue of her rights is not something that Father has standing to raise since Mother’s rights are not
before us. If, as is probably the case, the references to Mother are a “slip of the pen,” then we
will consider those references to be with respect to Father’s rights.

3
 The Supreme Court has recently delineated our standard of review:

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).

“When a trial court has seen and heard witnesses, especially where issues of
credibility and weight of oral testimony are involved, considerable deference must be
accorded to . . . the trial court’s factual findings.” In re Adoption of S.T.D., 2007 WL
3171034, at *4 (citing Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d
912, 915 (Tenn. 1999)).

IV.

This Court has previously stated that,

[t]he ultimate goal of every proceeding involving the care and
custody of a child is to ascertain and promote the child’s best
interests. However, as important as these interests are, they
do not dominate every phase of a termination of parental
rights proceeding. The best interests of the child do not
become the paramount consideration until the trial court has
determined that the parent is unfit based on clear and

4
 convincing evidence of one or more of the grounds for
termination listed in Tenn. Code Ann. § 36-1-113(g).

In re Audrey S., 182 S.W.3d at 877. In the present action, the trial court found, by clear
and convincing evidence, the five grounds alluded to earlier in this opinion. On appeal,
Father has not challenged any of these decisions by the trial court. Nevertheless, we are
required to review all of the trial court’s findings with respect to grounds and best
interest. In re Carrington, 483 S.W.3d at 525 (“. . . we hold 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.”)

V.

A.

When analyzing the first ground for termination, abandonment predicated on
Father’s failure to provide for the support of the Child, the trial court made the following
findings:

The [p]etition to [t]erminate [p]arental [r]ights was filed [i]n
August 2014. [Father] became incarcerated in June 2014, so
the four (4) month “look back” period for determining
abandonment by non-support began in February 2014.

[Father] was employed at L.M.W. Metals during February
through April 2014, earning at least $8.00 per hour. He was
paid “under the table.” [Father] was also employed by the
American Book Company for several months in late 2013 to
early 2014. By his own admission, [Father] has failed to pay
child support for his child since [the Child’s] birth. [Father]
has not offered to support his child and has failed to provide
any monetary assistance or other support for [the Child]
except for occasional diapers and a few toys. [Father] did not
give [the Child] birthday or Christmas gifts. There is no
doubt that [Father] was aware of this duty to support [the
Child]. [Father] made no excuses at trial for his failure to
offer financial support for [the Child], simply admitting he
had not done so.

5
 The criteria for [t]ermination of [p]arental rights based on
abandonment was provided to [Father] by his [DCS]
caseworker . . . on two separate occasions. In addition, the
[p]ermanency [h]earing [o]rder from the December 18, 2013
hearing indicates that this information was also provided to
[Father].

Based upon these facts, the [c]ourt finds by clear and
convincing evidence that [Father] has abandoned his minor
child within the meaning of [Tenn. Code Ann.] § 36-1-
113(g)(1) and § 36-1-102(1)(A)(iv) by willfully failing to
support [the Child] for more than four (4) months prior to his
incarceration or at any time during the [C]hild’s life.

Based on our review of the record in this case, we hold that the evidence does not
preponderate against the trial court’s factual findings on this ground. While Father has
been incarcerated for the majority of the Child’s life, the record reflects that he held two
paying jobs during the months prior to his most recent incarceration and DCS’s petition
to terminate. Tenn. Code Ann. § 36-1-102(1)(A) defines abandonment by an
incarcerated parent for failure to support:

A parent . . . is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned
child, or the parent . . . has been incarcerated during all or part
of the four (4) months immediately preceding the institution
of such action or proceeding, and . . . has willfully failed to
support or has willfully failed to make reasonable payments
toward the support of the child for four (4) consecutive
months immediately preceding such parent’s . . .
incarceration[.]

This Court has previously explained what constitutes willful failure to support:

Failure to provide support is willful if the parent is aware of
his or her duty to support, is capable of paying support, makes
no attempt to provide support, and has no justifiable excuse.
Willful conduct is intentional or voluntary; often, intent must
be inferred from circumstantial evidence.

6
In re Charlie G.C., No. E2010-01501-COA-R3-PT, 2011 WL 1166849, at *8 (Tenn. Ct.
App., filed Mar. 30, 2011) (quoting In re W.B., IV., Nos. M2004-00999-COA-R3-PT
and M2004-01572-COA-R3-PT, 2005 WL 1021618, at *9 (Tenn. Ct. App., filed Apr. 29,
2005)). In addition, “[e]very parent who is eighteen (18) years of age or older is
presumed to have knowledge of a parent’s obligation to support such parent’s child or
children.” Tenn. Code Ann. § 36-1-102(1)(H). In the present action, the record reflects
that Father was born on May 16, 1991, making him a few months shy of twenty-two
years old when the Child was born. By statute, Father is presumed to have had
knowledge of his duty to support the Child. At trial, however, Father freely
acknowledged that, despite having multiple paying jobs prior to his most recent
incarceration, he never offered any support outside of providing the Child with a couple
of toys and some diapers. Thus, despite knowledge of his duty to support the Child, the
capability to pay support, and the lack of a legitimate excuse for not paying, Father
neglected to contribute anything to the Child beyond a few token gestures. In our view,
Father’s conduct is representative of willful failure to support the Child. Accordingly, we
hold that, as a matter of law, the evidence clearly and convincingly establishes Father’s
abandonment of the Child as a result of his failure to support.

B.

After considering the ground of Father’s abandonment as a result of wanton
disregard, the trial court concluded the following:

In the present case, [Father] has a history of involvement with
the criminal justice system dating prior to the birth of [the
Child]. [Father] was incarcerated on felony attempted
delivery of schedule II drug convictions when the [C]hild was
born in March 2013 until September 2013. In December
2013, [Father] was arrested for violation of probation and
served several more weeks in jail, although that charge was
dismissed. Then, in June 2014, [Father] was again arrested
and charged with aggravated robbery. He has been unable to
make the $125,000.00 bond to secure his release on those
charges and will remain in jail until his trial in July 2015.

Although the [c]ourt does not presume [Father] guilty of the
aggravated robbery charge, he was nevertheless in a situation
which led to his arrest. [Father] has not been available to
parent [the Child] for most of [the Child’s] life due to
[Father’s] involvement with the criminal justice system

7
 and/or the use of bad judgment that has repeatedly brought
him into undesirable contact with law enforcement. In fact,
[Father] has been incarcerated for all except nine (9) months
of [the Child’s] life.

Sadly, it is not difficult for this [c]ourt to find by clear and
convincing evidence that [Father’s] history of involvement
with the criminal justice system demonstrates wanton
disregard for the welfare of his child in such a manner as to
constitute abandonment of his child within the meaning of
[Tenn. Code Ann.] § 36-1-113(g)(1) and § 36-1-
102(1)(A)(iv).

Upon reviewing the record in this case, we hold that the evidence does not
preponderate against the trial court’s factual findings on this ground. This Court has
“repeatedly held that probation violations, repeated incarceration, criminal behavior . . .
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. In the present action, Father
violated his probation on multiple occasions, resulting in his incarceration in December
2013. A little over six months later in June 2014, Father was arrested for an aggravated
robbery involving a firearm and the theft of prescription medication.4 Considering the
fact that Father already has multiple felony drug convictions on his record, this recent
arrest involving the theft of prescription medication indicates to us that Father has made
no discernible effort to avoid repeating his past criminal transgressions. Accordingly, we
hold that, as a matter of law, the evidence clearly and convincingly demonstrates Father’s
wanton disregard for the welfare of the Child.

C.

Upon examining the third ground for termination, Father’s failure to provide a
suitable home, the trial court held the following:

During the nine (9) months when [Father] was not residing in
jail, he lived mostly in the [C]hild’s maternal great-
grandmother’s home along with the [C]hild’s [biological
mother]. [Father] does not have a valid drivers license
because he has failed to pay fines and court costs that resulted

4
The record indicates that the following prescription drugs were stolen: ninety morphine
pills, sixty oxycodone pills, and thirty meloxicam pills.

8
 in the suspension of his driving privileges. [Father] has not
had a home of his own since the [C]hild was born and has
relied upon the kindness of [the biological mother’s]
grandmother to provide him both a home and transportation.
Due to miscommunication or a lack of initiative on [Father’s]
part, DCS never completed a home study on this residence to
determine if it was an appropriate place for [the Child] to visit
or reside. In spite of assistance from [the DCS family
services worker], [Father] made no effort to obtain his own
housing that might be a suitable home for [the Child].

The [c]ourt therefore finds by clear and convincing evidence
that [Father] has failed to provide a suitable home for his
minor child through the [C]hild’s entire life, and that DCS has
made reasonable efforts to assist [Father].

After reviewing the record in this case, we hold that the evidence does not
preponderate against the trial court’s factual findings on this ground. Despite Father’s
contention that he has maintained the same residence for the past four years, the evidence
indicates otherwise. Specifically, Father has only lived sporadically over the past four
years at the home of the Child’s maternal great-grandmother during the brief periods of
time when he was not incarcerated.5 At trial, when asked where he would reside when he
was released from jail, Father opined that he would return to the maternal great-
grandmother’s home. The record, however, is devoid of any evidence indicating that the
maternal great-grandmother had consented to such an arrangement beyond Father’s own
testimony. Regardless, we need not speculate on this question, as Father never made the
maternal great-grandmother’s home available for inspection. In addition, a DCS family
services worker testified that the maternal great-grandmother’s home had previously been
deemed inappropriate in an earlier case.6 The lingering questions about the suitability of
the maternal great-grandmother’s home are only compounded by the fact Father

5
The record indicates that Father was incarcerated for all but nine months during the
four-year window he alleges he maintained the same residence, a home that was not even
Father’s to claim as his own.
6
The caseworker testified, “After speaking with my supervisor, she had stated that that
home had been looked at before due to a prior DCS case and, at that time, that home was
inappropriate.” When asked why the home was deemed inappropriate, the caseworker said,
“There were electrical outlets that were uncovered, there were wires that were hanging down,
and they excessively smoked inside the home.”

9
acknowledged at trial that he would not be in a position to purchase or rent a suitable
residence if he were released from jail that day. When looking at all of the evidence in
the record, we do not see an individual who has “had the same residence for four years.”
On the contrary, we see a man who is currently incarcerated, has spent more time living
in jail than he has living in a home that is not even his, and offers a highly questionable
plan to provide a suitable home for the Child. As a result, we hold, as a matter of law,
that the evidence clearly and convincingly demonstrates that Father has failed to provide
a suitable home for the Child.

D.

When considering the ground of Father’s substantial noncompliance with the
permanency plan, the trial court concluded the following:

[Father] is commended for completing a number of the
requirements of the [p]ermanency [p]lans. He has completed
an alcohol and drug assessment and complied with all
counseling required; he has established paternity of [the
Child]; he completed parenting classes; and completed a
mental health assessment and all required follow-up steps.
[Father] was also gainfully employed during most of the time
he has not been in jail since the [C]hild’s birth, although he
did not use his income to support [the Child].

* * *

While [Father] completed many of the requirements of the
[p]ermanency [p]lan, he has failed to adhere to the most
important aspects of this plan. [Father] has remained unable
to stay out of jail and he has remained unable to provide safe,
stable, consistent housing for his son.

Likewise, [Father] has been unable to develop a secure
relationship with [the Child] due to the severity of [the
Child’s] emotional issues, [Father’s] inability to continue
visits due to his incarceration, and his failure to attend
medical and therapeutic appointments for the [C]hild that
would have provided critical insight into [the Child’s]
condition. The [c]ourt does not doubt that [Father] has tried

10
 to establish a bond with his son to the best of [Father’s]
ability. But . . . [F]ather simply has not been able [to] acquire
the necessary skills to make this relationship successful. [The
DCS family services worker] went above and beyond
reasonable efforts . . . to assist [Father] and make the
relationship between him and [the Child] a success.
However, without the additional time, knowledge[,] and
resources (such as an appropriate, stable home environment)
that it was necessary for [Father] to spend with [the Child] in
a setting conducive to building that relationship, [Father] was
doomed to fail. Although [Father] completed many of the
plan’s steps, he has failed to accomplish the critical goals that
would facilitate re-unification with [the Child] since [Father]
has not been able to maintain a suitable home, remain free
from incarceration or adequately bond with [the Child.]

For these reasons the [c]ourt finds by clear and convincing
evidence that [Father] has failed to substantially comply with
the reasonable requirements of the [p]ermanency [p]lans in
this case.

After reviewing the record in this case, we hold that the evidence does not
preponderate against the trial court’s factual findings on this ground. On the topic of
substantial noncompliance, our Supreme Court has previously explained,

Substantial noncompliance is not defined in the termination
statute. The statute is clear, however, that noncompliance is
not enough to justify termination of parental rights; the
noncompliance must be substantial. Black’s Law Dictionary
defines “substantial” as “[o]f real worth and importance.”
Black’s Law Dictionary 1428 (6th ed. 1990). In the context of
the requirements of a permanency plan, the real worth and
importance of noncompliance should be measured by both the
degree of noncompliance and the weight assigned to the
requirement.

In re Valentine, 79 S.W.3d at 548 (emphasis added). As we have already explained in
this opinion, Father has failed to avoid criminal activity and maintain a suitable home for
the Child, both required by the permanency plan. While parenting classes and
counseling, also required by the permanency plan, are certainly productive steps Father

11
has taken, neither can reasonably make up for his lack of a suitable home, much less his
ongoing involvement with the criminal justice system. In our view, when looking at the
permanency plan requirements, Father’s shortcomings far outweigh his progress.
Accordingly, we hold that, as a matter of law, the evidence clearly and convincingly
demonstrates that Father has not substantially complied with the permanency plan.

E.

Finally, the trial court held the following with respect to the ground of persistence
of conditions:

It has been more than six (6) months since [the Child] was
removed from the custody of his parents in April 2013, due to
. . . [F]ather’s incarceration and inability to provide a suitable
home for the [C]hild. Over two years later, [Father] remains
in circumstances that are identical to those existing on the
date [the Child] was placed into the custody of the State of
Tennessee. Any progress he made to comply with the
requirements of the [p]ermanency [p]lan in this case is
effectively negated by the reality of his present
circumstances. [Father] remains in jail[,] and his future is
uncertain. He has no home, no drivers license[,] and no job if
he was released tomorrow.

[The Child’s] emotional condition remains unstable and
difficult to manage.

The [c]ourt finds by clear and convincing evidence that the
conditions which led to this child’s removal and placement in
state custody continue to persist despite all efforts of both the
State of Tennessee and [Father]. These conditions, which
would likely lead to further neglect of the [C]hild, are
unlikely to be remedied soon so that the [C]hild could be
returned safely to a stable home environment. DCS has, for
almost two years, made reasonable efforts to help [Father]
remedy the conditions which led to [the Child’s] removal, to
no avail. Consequently, continuation of the parent[-]child
relationship greatly diminishes the chances of this child being
placed into a safe, stable[,] and permanent home.

12
 Based on our review of the record in this case, we hold that the evidence does not
preponderate against the trial court’s factual findings on this ground. Tenn. Code Ann. §
36-1-113(g)(3) authorizes termination of parental rights when:

(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.

In this action, we agree with the trial court that Father’s situation at the time of trial
essentially mirrored the state he found himself in when DCS filed its petition to terminate
in 2014. At that time, Father was incarcerated, did not have a suitable home, and did not
have a legal source of income. At the time of trial, Father was still incarcerated, did not
have a suitable home, and did not have a legal source of income. Given this reality, and
the fact the record indicates Father has more or less had these particular issues ever since
the Child was born in 2013, we are hard pressed to see a situation where Father can
remedy all of his shortcomings in the near future. Ultimately, Father’s ongoing issues
lead us to the conclusion that continuation of his parent-child relationship with the Child
would greatly hinder the likelihood of the Child being integrated into a safe, stable, and
permanent home. Thus, we find that, as a matter of law, the evidence clearly and
convincingly exhibits persistence of conditions.

13
 VI.

After finding that there are five statutory grounds warranting termination of
Father’s parental rights, we may now focus on whether termination is in the Child’s best
interest. When considering the issue of “best interest,” we are guided by the following
statutory factors set forth in Tenn. Code Ann. § 36-1-113(i):

In determining whether termination of parental or
guardianship rights is in the best interest of the child pursuant
to this part, 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 interests 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;

(3) Whether the parent or guardian has maintain regular
visitation or other contact with the child;

(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,

14
 controlled substances or controlled substance analogues 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 § 36-5-101.

“The above list is not exhaustive[,] and there is no requirement that all of the factors must
be present before a trial court can determine that termination of parental rights is in a
child’s best interest.” State Dep’t of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502
(Tenn. Ct. App. 2007) (citing Dep’t of Children’s Servs. v. P.M.T., No. E2006-00057-
COA-R3-PT, 2006 WL 2644373, at *9 (Tenn. Ct. App., filed Sept. 15, 2006)). In
addition, “[t]he child’s best interest must be viewed from the child’s, rather than the
parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005) (citing
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

In the present action, the trial court’s May 11, 2015 order terminating Father’s
parental rights included the following “best interest” analysis:

It is in [the Child’s] best interests for termination to be
granted because . . . Father . . . has not made changes to his
conduct or circumstances which enable him to establish a
safe, stable, suitable home for [the Child.] Two years have
passed and [Father] is no closer to providing an appropriate
home for [the Child] than existed on the date [the Child]
entered state custody. Due to . . . [F]ather’s extended
absence, there is no meaningful relationship between him and
[the Child]. In fact, it is questionable to what extent [the
Child] would even remember . . . [F]ather at this point.

The [c]ourt is sympathetic to [Father’s] hope for a future
relationship with [the Child] and his love for this child.
[Father] has made efforts to be a father to [the Child], but
[Father’s] circumstances and lifestyle simply cannot meet [the

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 Child’s] needs. [The Child] needs permanency in his life
now, and it would be detrimental to [the Child] to place his
stability on hold while [Father] attempts to resolve his
criminal difficulties.

[The Child] suffers from severe attachment disorder and other
emotional issues that limit his ability to interact with strangers
or other persons who are not consistently familiar to him in
his daily environment. He is overwhelmed and traumatized
by change. [The Child’s] pre-adoptive foster family has gone
above and beyond to accommodate [the Child’s] special
needs. It would be extremely difficult, if not impossible, for
[the Child] to adjust and thrive in an alternative environment
at this stage of his life. It is manifestly in [the Child’s] best
interest to remain with the foster family who desire to adopt
him and give him permanency in his life.

On appeal, Father contends that the trial court “failed to consider certain important
factors or didn’t give them the weight they should have been given.” In support of this
contention, Father notes that he has (1) completed an alcohol and drug assessment; (2)
passed drug screens; (3) established that he is J.M.M.’s biological father; (4) completed
parenting classes; (5) undergone a mental health assessment; (6) attended grief
counseling and classes for criminal addictive behavior; (7) provided transportation for
J.M.M. despite not having a valid driver’s license; (8) completed a bonding assessment;
(9) had the same residence for four years; and (10) exercised all available visitation
opportunities.

We are not persuaded by Father’s argument. As we have already articulated,
Father has taken some steps towards making himself capable of being a suitable parent
for the Child. In particular, we noted his participation in parenting classes and
counseling. Nevertheless, these efforts hardly outweigh Father’s glaring deficiencies as a
parent, specifically his ongoing involvement with the criminal justice system and his
inability to secure suitable housing for the Child. No amount of parenting classes and
counseling can make us overlook the reality that Father has been arrested and
incarcerated multiple times during the Child’s young life. Furthermore, we are troubled
by the fact that his most serious arrests revolve around either the attempted sale or theft
of narcotics, with the most recent incident involving a victim being held at gunpoint and
subsequently beaten. Such behavior is hardly indicative of an individual suitable to be a
parent. Our apprehension is only compounded by Father’s lack of suitable housing and
his clear failure to address this issue with the seriousness it deserves. Rather than being

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proactive about his greatest shortcomings, Father now finds himself incarcerated, without
a home of his own or a legal source of income, and lacking a coherent plan for rectifying
these problems. As a result, he has missed the formative years of the Child’s life,
effectively eliminating any meaningful relationship that might have previously existed.
In our view, Father has failed to make any lasting adjustment in his life that would lead
us to conclude it would be in the Child’s best interest to keep his parental rights intact.
This conclusion is only reinforced by the evidence in the record showing the loving care
the Child has received in the stable foster home where he has resided since April 2013.
Accordingly, we conclude, as a matter of law, that the trial court was correct in holding
that there is clear and convincing evidence that termination of Father’s parental rights is
in the Child’s best interest.

VII.

The judgment of the trial court is affirmed. The costs on appeal are assessed to the
appellant, W.J.N. This case is remanded for enforcement of the trial court’s judgment
and for collection of costs assessed by the trial court.

_______________________________
CHARLES D. SUSANO, JR., JUDGE

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