Tasha Dayhoff v. Joshua D. Cathey

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 16, 2016 Session

TASHA DAYHOFF v. JOSHUA D. CATHEY

Direct Appeal from the Juvenile Court for Madison County
No. 442403 Christy R. Little, Judge

No. W2016-00377-COA-R3-JV – Filed August 25, 2016

This is the second appeal in this custody dispute between unmarried parents. After
establishing parentage of the minor children, the juvenile court entered a permanent
parenting plan without hearing sworn testimony. On appeal, this Court vacated the
parenting plan and remanded for an evidentiary hearing. Before the hearing on remand,
the mother relocated from West Tennessee to Middle Tennessee with the children. The
trial court conducted an evidentiary hearing and determined that the parental relocation
statute applied to the court’s decision. The trial court first found that the mother’s move
had no reasonable purpose and was vindictive and then concluded that it is in the
children’s best interest for the father to be designated primary residential parent. The
mother appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and KENNY ARMSTRONG, JJ., joined.

Michael A. Carter, Milan, Tennessee, for the appellant, Tasha Dayhoff.

Harold E. Dorsey, Alamo, Tennessee, for the appellee, Joshua D. Cathey.

OPINION

I. FACTS & PROCEDURAL HISTORY

Tasha Dayhoff (―Mother‖) and Joshua Cathey (―Father‖) lived together in
Jackson, Tennessee, for about a year. They had a daughter in December 2007. Mother
asked Father to move out of the home when the child was about two months old. The
parties subsequently attempted reconciliation and had a son who was born in March
2009. However, the parties’ attempt at reconciliation was ultimately unsuccessful.
Although no court order was in place, Father had signed the birth certificates for both
children, and they were given the hyphenated last name Dayhoff-Cathey. After the
parties’ separation, Father exercised parenting time with the children regularly. By his
estimation, he saw the children about 150 days per year in 2009 and 2010. According to
Mother, he had the children ―about one-third‖ of the year.
In March 2011, the State of Tennessee filed a petition to set child support on
behalf of Mother in the juvenile court of Madison County. Mother then retained counsel
and filed a complaint to establish parentage. Mother also sought the entry of a permanent
parenting plan and child support order. Father filed an answer admitting Mother’s
allegation that he is the biological father of the children and asked the court to adopt his
proposed parenting plan.
On July 19, 2011, the juvenile court held a hearing on the complaint to establish
parentage and considered the proposed parenting plans. The court declared Father to be
the children’s biological and legal father and adopted a permanent parenting plan
designating Mother as the children’s primary residential parent. Father timely filed a
notice of appeal. On appeal, this Court affirmed the trial court’s ruling that Father is the
legal and biological parent of the children because that issue was not in dispute at trial or
on appeal. Dayhoff v. Cathey, No. W2011-02498-COA-R3-JV, 2012 WL 5378090, at *3
(Tenn. Ct. App. Nov. 1, 2012). However, regarding all other issues, the hearing
transcript revealed that the parties and their attorneys simply presented the facts to the
trial judge without sworn testimony. Id. In the absence of testimonial evidence,
stipulations, or properly introduced documentary evidence, we found no evidence from
which the trial court could have made its ruling on the remaining issues. Id.
Consequently, we vacated the judgment of the trial court and remanded for the trial court
to conduct an evidentiary hearing with sworn testimony prior to entering a permanent
parenting plan and setting Father’s child support obligation. Id.
Three months after this Court’s decision in Dayhoff I, in February 2013, Father
filed a motion in the trial court seeking equal parenting time with the children. He
alleged that he had moved and was residing only three miles from Mother’s residence.
Accordingly, he proposed that each parent have 182.5 days of parenting time with the
children.
In May 2013, Mother sent Father a notice of her intent to relocate with the
children to ―the Nashville/Mt Juliet, TN area.‖ The letter informed Father that Mother
had accepted ―an opportunity for advancement‖ with her employer effective April 14,
2013. In June 2013, Father filed a petition opposing Mother’s move and asserting that
her relocation had no reasonable purpose and was intended to defeat his visitation rights.
Father also asserted that relocation was not in the children’s best interest and that he
should be designated primary residential parent.
Unbeknownst to Father, Mother moved to Dickson, Tennessee, with the children
in July 2013. Mother and the children moved in with Mother’s boyfriend, whom she met
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six months earlier, and they resided with Mother’s boyfriend’s mother in her home.
Thereafter, Mother met Father at an exit along the interstate to exchange the children for
his weekend parenting time and did not provide him with her address or inform him that
she had moved to Dickson rather than Mount Juliet or Nashville. Mother enrolled the
parties’ daughter in kindergarten in Dickson in September 2013, ―a few weeks late,‖ and
did not inform Father where she was attending school. Mother did not provide Father’s
information on the school enrollment forms and listed her boyfriend as the emergency
contact instead. Father filed a motion in November 2013 requesting an earlier hearing
date due to the fact that Mother had moved and refused to give him the children’s new
address.
The litigation remained pending for the next year with no progress that is apparent
from the record on appeal. On February 18, 2015, the parties and their attorneys attended
mediation and resolved some of their issues by agreement. They agreed to a temporary
parenting plan pending the final hearing and the amount of Father’s child support
obligation. An order was entered reflecting the parties’ agreement as to these issues.
The evidentiary hearing was finally held on April 28, 2015. The trial court heard
testimony from Mother, Father, and three other witnesses. The trial court issued a letter
ruling in July 2015. The court determined that the parental relocation statute, Tenn. Code
Ann. § 36-6-108, applied to the court’s analysis. The court determined that Mother was
spending at least sixty percent of the time with the children prior to her relocation. As a
result, the court applied subsection (d) of the relocation statute, which provides:

The parent spending the greater amount of time with the child shall be
permitted to relocate with the child unless the court finds:

(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious harm
to the child that outweighs the threat of harm to the child of a change
of custody; or
(C) The parent’s motive for relocating with the child is vindictive in
that it is intended to defeat or deter visitation rights of the non-
custodial parent or the parent spending less time with the child.

Tenn. Code Ann. § 36-6-108(d)(1). The trial court found that two of the circumstances
listed in subsection (d) applied: Mother’s relocation did not have a reasonable purpose
and it was for vindictive reasons intended to thwart Father’s visitation. The relocation
statute provides:

If the court finds one (1) or more of the grounds designated in subsection
(d), the court shall determine whether or not to permit relocation of the
child based on the best interest of the child. If the court finds it is not in the
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 best interests of the child to relocate as defined herein, but the parent with
whom the child resides the majority of the time elects to relocate, the court
shall consider all relevant factors including those factors found in § 36-6-
106(a)(1)-(15).

Tenn. Code Ann. § 36-6-108(e). Accordingly, the trial court conducted a best interest
analysis and concluded that Mother should be required to return the children to Jackson
to spend the rest of the summer break with Father, with Mother having weekend
visitation with the children. The court’s letter ruling stated, ―The court will allow mother
time to decide her intentions as to her residence.‖ It stated that if Mother moved back to
Jackson within 50 miles of Father, both parents could have time with the children under a
mediated amended parenting plan. On August 26, 2015, the trial court entered an order
tracking the language of the court’s letter ruling.
Mother retained new counsel and filed a ―Motion to Alter or Amend and for Final
Judgment and Notice of Mother’s Intention not to Relocate within 50 Miles of Father’s
Residence.‖ Because the trial court’s letter ruling had allowed Mother time to decide her
intention with regard to her residence, Mother formally informed the court that she did
not intend to relocate closer to Father. As such, Mother asked the trial court to enter a
final judgment. Among other things, Mother also argued that the trial court’s order
should be altered or amended because the parental relocation statute is inapplicable to an
initial custody determination.
After a hearing, the trial court entered an order on February 9, 2016, granting
Mother’s motion in part and denying it in part. Specifically, the trial court entered a
permanent parenting plan resolving the outstanding parenting issues and designating
Father as primary residential parent. Mother was granted parenting time with the
children every other weekend, on specified holidays, and for four weeks during the
summer. The trial court again held that the relocation statute was applicable to this case.
Mother filed a notice of appeal. This Court initially determined that the orders
appealed were not final due to noncompliance with Tennessee Rule of Civil Procedure
58. We entered a show cause order directing the appellant to obtain the entry of a final
judgment or show cause why the appeal should not be dismissed. The trial court entered
another order and permanent parenting plan and also entered amended orders that
complied with Rule 58. The orders appealed are now final and appealable.1

II. ISSUES PRESENTED

The issues on appeal, as we perceive them, are:

1
In a footnote in Mother’s brief on appeal, she suggests that the trial court’s March 17, 2016 parenting
plan order was void because it was entered after the notice of appeal was filed. We disagree, however,
because the previous orders entered by the trial court were not final due to noncompliance with Rule 58.
This Court did not acquire jurisdiction until the trial court entered a final, appealable order.
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 1. Whether the trial court erred in applying the parental relocation
statute instead of the general custody and visitation statute, resulting in
prejudice to Mother and effectively punishing her for relocating;

2. Whether the trial court’s best interest analysis was flawed because
the trial court referenced eleven factors instead of fifteen, it failed to
specifically address all factors, and it made findings that were unsupported
by the evidence.

For the following reasons, we affirm the decision of the juvenile court and remand for
further proceedings.

III. STANDARD OF REVIEW

The Tennessee Supreme Court recently described the standard of review that
applies when an appellate court reviews a trial court’s decision on a parenting
arrangement:

In a non-jury case such as this one, appellate courts review the trial court’s
factual findings de novo upon the record, accompanied by a presumption of
the correctness of the findings, unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414
S.W.3d 685, 692 (Tenn. 2013). We review the trial court’s resolution of
questions of law de novo, with no presumption of correctness. Armbrister v.
Armbrister, 414 S.W.3d at 692.

Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, trial judges,
who have the opportunity to observe the witnesses and make credibility
determinations, are better positioned to evaluate the facts than appellate
judges. Armbrister v. Armbrister, 414 S.W.3d at 693. Determining the
details of parenting plans is ―peculiarly within the broad discretion of the
trial judge.‖ Armbrister v. Armbrister, 414 S.W.3d at 693 (quoting Edwards
v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). ―It is not the
function of appellate courts to tweak a [residential parenting schedule] in
the hopes of achieving a more reasonable result than the trial court.‖
Armbrister v. Armbrister, 414 S.W.3d at 693 (quoting Eldridge v. Eldridge,
42 S.W.3d 82, 88 (Tenn. 2001)).

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 A trial court’s decision regarding the details of a residential
parenting schedule should not be reversed absent an abuse of discretion.
Armbrister v. Armbrister, 414 S.W.3d at 693 (citing Eldridge v. Eldridge,
42 S.W.3d at 88). A trial court abuses its discretion when it applies an
incorrect legal standard, reaches an illogical conclusion, bases its decision
on a clearly erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party. State v. Banks, 271
S.W.3d 90, 116 (Tenn. 2008) (citing Konvalinka v. Chattanooga–Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). A trial court abuses
its discretion in establishing a residential parenting schedule ―only when the
trial court’s ruling falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the
evidence found in the record.‖ Armbrister v. Armbrister, 414 S.W.3d at 693
(quoting Eldridge v. Eldridge, 42 S.W.3d at 88).

Kelly v. Kelly, 445 S.W.3d. 685, 691-92 (Tenn. 2014).

IV. DISCUSSION

First, we consider Mother’s argument regarding the applicability of the parental
relocation statute. As explained above, the juvenile court’s initial permanent parenting
plan was vacated by this Court in Dayhoff I due to the fact that the trial court failed to
conduct an evidentiary hearing prior to its entry. As a result, on remand, the trial court
was required to conduct an evidentiary hearing and make an initial custody
determination. This Court has repeatedly held that the parental relocation statute is
inapplicable when the trial court is making an initial custody decision or parenting
arrangement for the child even if a parent is relocating. See Graham v. Vaughn, No.
M2012-01982-COA-R3-CV, 2014 WL 356975, at *2 (Tenn. Ct. App. Jan. 30, 2014);
Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *3 n.3
(Tenn. Ct. App. Feb. 22, 2013); Sikora ex rel. Mook v. Mook, 397 S.W.3d 137, 149
(Tenn. Ct. App. 2012); Nasgovitz v. Nasgovitz, No. M2010-02606-COA-R3-CV, 2012
WL 2445076, at *5-7 (Tenn. Ct. App. June 27, 2012); Rudd v. Rudd, No. W2009-00251-
COA-R3-CV, 2009 WL 4642582, at *5-6 (Tenn. Ct. App. Dec. 9, 2009); Gregory v.
Gregory, No. W2002-01049-COA-R3-CV, 2003 WL 21729431, at *2-5 (Tenn. Ct. App.
July 14, 2003). Accordingly, the trial court erred in concluding that the parental
relocation statute was applicable to its decision. However, this does not end the inquiry.

When making an initial custody determination, a trial court is required to decide
what is in the child’s best interest as required by Tennessee Code Annotated section 36-6-
106. See Nasgovitz, 2012 WL 2445076, at *5; Rudd, 2009 WL 4642582, at *6.
Specifically, Tennessee Code Annotated section 36-6-106 provides that in any
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proceeding requiring the court to make a custody determination regarding a minor child,
―the determination shall be made on the basis of the best interest of the child.‖ Tenn.
Code Ann. § 36-6-106(a). Likewise, the final step of the trial court’s analysis under the
parental relocation statute, in this case, was to consider the best interest of the child. See
Tenn. Code Ann. § 36-6-108(e) (―If the court finds one (1) or more of the grounds
designated in subsection (d), the court shall determine whether or not to permit relocation
of the child based on the best interest of the child. If the court finds it is not in the best
interests of the child to relocate as defined herein, but the parent with whom the child
resides the majority of the time elects to relocate, the court shall consider all relevant
factors including those factors found in § 36-6-106(a)(1)-(15).‖) After considering the
grounds listed in subsection (d) of the relocation statute, the trial court’s order proceeded
to consider the ―best interest of the child[.]‖ Therefore, the trial court ultimately
performed the necessary best interest analysis despite its initial error in applying the
relocation statute. See In re Lukas S.-M., No. M2015-01367-COA-R3-JV, 2016 WL
3662202, at *4 (Tenn. Ct. App. June 30, 2016) (concluding that the trial court erred in
applying the relocation statute to an initial custody determination but that it ultimately
applied the correct standard in its analysis – the best interest of the child); Graham, 2014
WL 356975, at *2 (same); Nasgovitz, 2012 WL 2445076, at *5 (same).

On appeal, Mother argues that she was prejudiced by the trial court’s application
of the parental relocation statute because the trial court’s conclusion that she relocated
without a reasonable purpose and for vindictive motives ―tainted its best interest
analysis.‖ Mother claims that the trial court effectively punished her for relocating. In
fact, she claims that ―[b]ut for the trial court’s preoccupation with Mother’s relocation,‖
Mother would have been named primary residential parent. However, we discern no
error in the trial court’s consideration of Mother’s relocation, her motives for moving,
and how the move impacted the children and their relationship with Father. Even if the
parental relocation statute is inapplicable, the trial court should consider a proposed
relocation of a parent in the context of its best interest analysis. Pandey, 2013 WL
657799, at *3 n.3 (citing Morris v. Morris, No. W2010-00293-COA-R3-CV, 2011 WL
398044, at *9 (Tenn. Ct. App. Feb. 8, 2011); Rudd, 2009 WL 4642582, at *6). In
addition, Tennessee Code Annotated section 36-6-106 specifically directs the court to
consider the locations of the residences of the parents, the child’s need for stability, each
parent’s willingness and ability to facilitate and encourage a close and continuing
relationship between the child and the other parent, either parent’s history of denying
parenting time to the other parent, the child’s involvement with his or her physical
surroundings, school, and activities, and the length of time the child has lived in a stable
and satisfactory environment. Mother’s relocation directly impacted all of these factors
and several others.

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 In its best interest analysis, the trial court found that the children loved and shared
a bond with both parents, were good students, and enjoyed many activities. The court
noted that the children could participate in their extracurricular activities, soccer and
judo, in nearly any area. In fact, they were involved in more activities before they left
Jackson and moved to Dickson in July 2013, and Mother did not enroll them in any
extracurricular activities in Dickson until March 2015, one month before trial. The court
recognized that Father had family and friends in Madison County and neighboring
counties, and he resided with his long-time girlfriend. Mother had no family in Dickson
besides her new husband, whom she married five months before trial, and his mother.
Mother’s family resided in Maryland. The trial court found that the children are in need
of stability at home and at school and needed a visitation schedule that is exercised as
ordered. The court noted Mother’s stated intention to move to Hendersonville,
Tennessee, as soon as she could secure financing for the purchase of another home, and
she had already moved twice within the City of Dickson. The court found that Father
was more stable and ran his own business with more flexible work hours. Mother
worked as a regional manager for a nonprofit organization that provided services for
children in crisis. She had a one-hour commute to and from work and was gone from
home, on average, from 7:15 a.m. to 5:30 p.m. each day.

The trial court did not mention its findings of vindictive motives or lack of a
reasonable purpose for the move within its best interest analysis. However, the trial
court’s factual findings regarding these issues are equally relevant to the best interest
analysis. The trial court found that Mother had a home in Jackson where the children had
their own rooms, and she had support from family and friends. The trial court noted that
Mother moved to Dickson instead of the cities she mentioned in the notice of relocation
she provided to Father. In Dickson, she moved into the home of her boyfriend and his
mother, where the parties’ son slept on the couch for a period, and the daughter shared a
room with the boyfriend’s mother. Mother admitted that her employment change was a
―lateral move‖ in the sense that she had the same title as her job position in Jackson. She
received a $2,000 annual increase in her salary but also had a long commute to work.2
The trial court found that Mother had no valid reason to move except to be with her
boyfriend. The court noted that Mother also moved a second time in Dickson without
informing Father. The trial court found that ―[t]he children have been moved around
from house to house and school to school too often for a kindergartener and first grader,‖
2
The trial court found that Mother had more financial stability in Jackson than in Dickson. Mother argues
that the evidence preponderates against this finding. It is difficult to determine from the record whether
the move benefitted Mother financially. She testified that her annual raise of $2,000 resulted in around
$200 per month in additional income. However, she also acknowledged that the cost of living in Dickson
could potentially negate her raise, and she was required to drive an hour to and from her job without
reimbursement for mileage. Mother failed to point to sufficient evidence in the record demonstrating that
the evidence preponderates against the trial court’s finding on this issue.
8
which reflected ―poor decision making‖ by Mother.

As for Mother’s motives, the trial court found that Mother made visitation difficult
for Father before and after the move and thwarted Father’s visitation for over a month
after she moved. She unilaterally eliminated Father’s weekend visitation on several
occasions after moving to Dickson, which resulted in periods of thirty to forty days when
the children did not see Father. Mother failed to advise Father where the children lived
or attended school and refused to provide him with her address at either residence in
Dickson. Mother put her boyfriend’s name on the children’s school enrollment forms in
the space designated for the father and as the emergency contact. Mother denied Father’s
request for copies of the children’s birth certificates and social security cards. She taught
the children to write their last names, which were legally hyphenated, without including
Father’s last name. She acknowledged that the children now ―go by‖ Dayhoff instead of
their hyphenated name, as the children’s report cards confirmed. Mother took the
children on two trips to Maryland and refused to provide Father with any type of itinerary
or emergency telephone number where they could be reached, even though Father did not
know where Mother’s family lived in Maryland or have their telephone number.
Mother’s behavior is certainly relevant to an analysis of the children’s best interest when
fashioning a parenting arrangement between the parents. We reject Mother’s argument
that the trial court’s best interest analysis was ―tainted‖ inappropriately by its findings
concerning her relocation.

Next, Mother argues that the trial court erred by using an outdated version of the
statutory best interest factors and failing to mention some relevant factors. Tennessee
Code Annotated section 36-6-106 states that, when conducting a best interest analysis,
the trial court shall consider ―all relevant factors, including the following, where
applicable[.]‖ Tenn. Code Ann. § 36-6-106(a). It then lists fifteen factors for
consideration. Id. The trial court’s order mentioned its consideration of ―the eleven
enumerated factors‖ instead of fifteen. Presumably, the trial court was referencing the
previous version of the parental relocation statute, which included within the statute
eleven best interest factors for consideration during a best interest analysis. The hearing
in this case was held in April 2015. Effective July 1, 2014, the parental relocation statute
and other custody statutes were amended because the best interest factors they contained
―differ[ed] slightly in their specifics.‖ 2014 Tenn. Laws Pub. Ch. 617 (S.B. 1488).
Rather than listing its own best interest factors, the parental relocation statute now directs
the trial court, in its best interest analysis, to ―consider all relevant factors including those
factors found in § 36-6-106(a)(1)-(15).‖ Tenn. Code Ann. § 36-6-108(e).

The trial court’s reference to ―eleven enumerated factors‖ does not require reversal
9
in this case. The fact remains that the trial court conducted a best interest analysis and
thoroughly discussed the considerations that led the court to designate Father as primary
residential parent. Notably, Mother does not explain how the trial court’s use of the
eleven factors in the previous statute would produce a different result than application of
the fifteen factors in the current statute. Several of the factors are identical in both
versions. In our view, the result would be the same in this case regardless of which set of
best interest factors the trial court applied. See Pandey, 2013 WL 657799, at *3 n.4
(explaining that although two statutes contained slightly different best interest factors,
―[i]n most cases, the analysis and the result would be the same regardless of which set of
factors is applied‖).

Prior to the 2014 amendment of the parental relocation statute, we held that a trial
court’s use of the eleven best interest factors in the relocation statute rather than the best
interest factors listed in the general custody and visitation statutes did not constitute
reversible error. See Graham, 2014 WL 356975, at *2 (―Although the trial court
determined the child’s best interest using the factors enumerated at Tenn. Code Ann. §
36-6-108(e) rather than those set forth in Tenn. Code Ann. § 36-6-404(b), the trial court
used the correct standard—best interest of the child.‖); Nasgovitz, 2012 WL 2445076, at
*7 (explaining that for an initial custody determination, the trial court should have
applied the best interest of the child approach rather than the relocation statute, but ―the
trial court made its decision by applying the same standard, best interests of the child,
even if the same exact statutory factors do not specifically apply‖). We reach the same
conclusion here.

Mother argues that the trial court should have recognized that she has been the
primary caregiver for the children, that the children were well-adjusted in Dickson, and
that children need continuity. Although continuity is an important factor in a best interest
analysis, it does not trump all other considerations. Skowronski v. Wade, No. M2014-
01501-COA-R3-CV, 2015 WL 6509296, at *8 (Tenn. Ct. App. Oct. 27, 2015) (no perm.
app. filed). The purpose of considering continuity and the role of the primary caregiver is
to provide children with as much stability and security as possible. Id. Accordingly,
when the evidence shows that continuity does not provide a child with stability, the
justification for maintaining the current arrangement diminishes. Id. Here, Mother
removed the children from a stable and satisfactory environment in Jackson, Tennessee,
and moved them to Dickson for no reasonable purpose. She moved once more after
arriving in Dickson and intended to move again, to Hendersonville, in the very near
future. As a result, Mother did not necessarily offer the children stability or continuity.
We also recognize that the reason Father was prevented from performing a greater share
of the parenting responsibilities and exercising his parental rights was due to Mother’s
efforts to thwart his visitation rights.
10
 As previously noted, decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, so trial judges, having the
opportunity to observe the witnesses and make credibility determinations, are better
positioned to evaluate the facts than appellate judges. Armbrister, 414 S.W.3d at 693.
We discern no reversible error in the trial court’s decision in this case.

V. CONCLUSION

For the aforementioned reasons, the decision of the juvenile court is hereby
affirmed and remanded for further proceedings. Costs of this appeal are taxed to the
appellant, Tasha Dayhoff, and her surety, for which execution may issue if necessary.

_________________________________
BRANDON O. GIBSON, JUDGE

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