In Re Isabella W.

04/29/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 23, 2020 Session

IN RE: ISABELLA W.

Appeal from the Juvenile Court for Knox County
No. 147106 Timothy E. Irwin, Judge
___________________________________

No. E2019-01346-COA-R3-PT
___________________________________

A father appeals the termination of his parental rights to his daughter, asserting that the
evidence did not establish the three grounds upon which termination was based and that
termination was in his child’s best interest. He also argues that he is entitled to a new
trial due to ineffective assistance of his trial counsel, the denial of a continuance in order
that he could represent himself, and that the court erred in not finding that he was
competent to stand trial. Upon our thorough review, we conclude that the father received
fundamentally fair procedures; that he waived the issues related to the continuance and
his competence to participate in the trial; we reverse the court’s holding with respect to
one ground, affirm the rest, and affirm the termination of his rights.

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

RICHARD H. DINKINS, J., delivered the opinion of the court. D. MICHAEL SWINEY, C.J.,
filed an opinion concurring in part and dissenting in part, in which THOMAS R. FRIERSON,
II, J., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Aaron D. W.

Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Ridner, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Isabella W. was born to Kimberly (“Mother”) and Aaron W. (“Father”), in June
2011. In April 2014, Father attacked Mother in the family’s home and was later
convicted of aggravated assault and sentenced to eight years of incarceration. On April
30, 2014, the Department of Children’s Services (“DCS” or “the Department”) filed a
petition in Knox County Juvenile Court alleging that Isabella was dependent and
neglected and at immediate risk of abuse or neglect if allowed to have contact with
Father, and requesting an order restraining father’s contact with her; a restraining order
was entered ex parte on May 1, and on August 26, after a hearing at which Father did not
appear because of his incarceration, the court entered an order holding that Father would
have no contact with Isabella and imposing requirements on both parents. Mother was
required to ensure that Isabella had no contact with Father and to complete domestic
violence counseling. Father was required to undergo alcohol and drug and mental health
assessments; participate in anger management and domestic violence counseling; abstain
from drug use; resolve all legal issues and not incur any additional misdemeanor or
felony criminal charges; and file a petition for supervised visitation in order for the court
to consider any modification to the no-contact order.

Isabella remained in Mother’s custody until Mother was arrested on September 1,
2017, for possession of drug paraphernalia, possession of drugs, and being in possession
of a stolen vehicle. Because Isabella was with Mother at the time of her arrest, the police
contacted DCS, whose representatives immediately filed a petition to have Isabella
placed in protective custody and to have her adjudicated dependent and neglected.
Isabella entered foster care that day, and a protective custody order was entered the
following day, awarding DCS temporary legal custody of Isabella. A hearing was held
on September 6 at which the court found probable cause that Isabella was dependent and
neglected, and an adjudicatory hearing was held on October 18; both parents appeared at
the adjudicatory hearing. The court entered an order following the hearing adjudicating
Isabella to be dependent and neglected, finding that “Mother stipulates that she failed a
drug screen and obtained criminal charges[; t]he father stipulates that there is a no contact
order out of Knox [County].” The court also found that “based on an assessment of the
family and the child[ren]’s circumstances, it was reasonable to make no effort to maintain
the children in the home.”

Permanency plans were developed on September 20, 2017 and July 9, 2018; both
were ratified by the court. The September 20 plan had dual goals of “return to parent”
and “exit custody with relative.” The Statement of Responsibilities included
requirements that Father “contact the Department and provide any and all documentation
of anything completed or required to do from prior cases”; attend a parenting assessment
and follow any recommendations; schedule and attend parenting classes; “obtain and
maintain safe stable housing free from any illegal activity . . . document[ed] . . . in the
form of rent receipts, lease, or mortgage receipts”; “obtain and maintain a legal source of
income”; schedule and attend a mental health assessment, provide the assessor with a
copy of the permanency plan, sign all releases, and follow any recommendations; remedy
any legal issues, follow rules of parole, and not incur any new changes; “schedule and
attend anger management classes in the event he has not already done so since the last
episode with Kimberly”; schedule and attend an alcohol and drug assessment; “submit to
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and pass random drug screens, provide the department with printouts of any prescribed
medications, and pass all pill counts”; attend all scheduled appointments in order to
remain responsive to Isabella’s well-being; “think about any and all friends and family
who may be able to become a resource/team member to assist the family; and provide the
Department with copies of a valid driver license, car insurance, and registration if
transporting Isabella. The July 2018 plan retained the same requirements, and modified
the goals to “return to parent” and “adoption.”

On December 20, 2018, the Department filed a petition to terminate Father’s
parental rights to Isabella. As grounds, the petition alleged that Father had been
incarcerated during a portion of the four months preceding the filing of the petition and,
prior to his incarceration, had engaged in conduct exhibiting a wanton disregard for
Isabella’s welfare; that he had failed to substantially comply with the responsibilities set
forth in the permanency plans; and that he had failed to manifest an ability and
willingness to personally assume legal and physical or financial responsibility of Isabella
and placing her in his custody would pose a risk of substantial harm to her physical and
psychological welfare. The petition also alleged that termination was in Isabella’s best
interest.

A trial was held on June 13, 2019 at which Mr. Chris Ramos, case worker for
DCS, and Father testified.

Mr. Ramos testified that he was Isabella’s foster care case manager and that she
entered foster care in September 2017 after her mother was found to have been in
possession of drug paraphernalia and a stolen vehicle and tested positive for drugs; that
Isabella’s mother could not name other relatives who could take custody of Isabella; that
a no contact order was in effect which prevented Father from being around Isabella due
to Father’s assault of Mother in April 2014; that Father was sentenced to serve eight
years of incarceration for his conviction of aggravated assault of Mother in 20141 and
was paroled in May 2016; that Father was “excited” about regaining contact with his
daughter; that Father “continuously pushed me with regard to getting the certificates” of
completion of courses Father had enrolled in while incarcerated to show what steps he
had taken with regard to the permanency plan; that Father was arrested in November
2017 for violating his parole by testing positive for methamphetamines; that Father was
released on parole again in October 2018; that Father was reincarcerated for violating his
parole by failing to report to his parole officer and not residing at the address he gave his
parole officer; and Mr. Ramos agreed with the statement that “[d]espite the programs
[Father] took before, he still continued to use drugs, he still continued to engage in

1
In addition to Mr. Ramos’ testimony, the judgment was entered as an exhibit showing that Father pled
guilty on June 30, 2014 to felony aggravated assault as a multiple offender and was sentenced to eight
years in the Tennessee Department of Corrections.

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criminal activity.”

With respect to the permanency plan, Mr. Ramos testified that Father did not
participate in the development of the plan but was later given a copy of the plan, and
indicated he agreed with and signed it on October 18, 2017; and that the responsibilities
of the plan were “for Father to provide [DCS] with documentation of legal stable income,
legal stable housing, an A&D assessment, mental health assessment, to follow any and all
recommendations from those, to comply with random drug screens, parenting classes . . .
[a] transportation plan, [and] to maintain contact with DCS.” He testified that Father
“completed a GIRTH,[2] . . . an outpatient program, while he was in prison[; t]here’s 150
hours total that was given to him during that program, . . . [including:] 60 hours of
substance use, 32 hours of victim impact, 12 hours of anger management, 30 hours of
relapse prevention, 16 hours parenting skills, equaling to 150 hours total.” He testified
that the court had found that Father was not in substantial compliance with the
permanency plan3 and further testified as follows:

Q. After that court finding, did the father ever ask you what he needed to do
to get into compliance?
A. He asked me what is it that I need to do, and I said you need to complete
the permanency plan, and he said, well, I’ve already completed most it
because of the program that I was in. I said that’s not going to be enough, I
need you to do -- and I listed everything else out again.
Q. Besides the one drug test when did you give that to him?
A. I believe it was the day of court. It was given to him 10-18-18.
Q. After that drug test, did you have an opportunity to drug test him again?
A. No.

Mr. Ramos also testified that Father provided documentation of the property taxes he had
paid on the home Mother and Father owned, did not provide documentation of
employment, but did provide documentation from several programs he completed while
incarcerated prior to Isabella coming into protective custody.4 He also testified that in

2
Exhibits entered at trial reflect that the program was titled “GRTH/Out-Patient.”
3
The Permanency Hearing Order, dated October 18, 2017, and entered as an exhibit at trial, states that the
court found that Father was not in substantial compliance with the provisions of the permanency plan.
4
Mr. Ramos testified that Father provided him with documentation of an October 2014 “Pro Social Life
Skills Program,” a May 2016 “Eat Smart, Get Your Family to the Table Program,” two programs from
August 2016-- Residential Drug Abuse Program and Spiritual Principles Program, and a “You Have the
Power, Know How to Use It” victim impact program from August 2015, and anger management
programs, for which no date was given. Later testimony and the certificates of completion entered into
evidence show that almost all of the courses were completed before Isabella came into protective custody.
Mr. Ramos also testified that Father participated in the following programs:

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October 2018, Father was in “constant communication” with him, but “towards the end
of November 2018, maybe the first week of December 2018, that’s where we lost
contact.” Mr. Ramos testified that he was not able to communicate with Father and did
not know his whereabouts. He also gave the following testimony about their last
interaction:

Q. . . .What else would you want him to do to address the parenting
component of the permanency plan?
A. A parenting assessment. He has not seen this child, I believe, since she
was around three years old.
Q. Have you scheduled such an assessment for him?
A. I asked him to let me him help him set up those assessments, parenting,
A&D, get a parenting assessment done. I was sitting outside of his house
when he asked me to come see his home to do a home check, and when I
came to the home, he reported that it still wasn’t ready, so we talked outside
at the home about those things. I said let me know what you need me to
help you do, I’m willing to help you do it all, but I just need to know which
ones you want to start knocking out first.
He said, okay, let me get back to you, I’m in the middle of switching
a job. And then at that point, that was when I went to his home, I believe
that was late November, and I haven’t heard from him since.
Q. Late November of 2018?
A. This year -- 2018.
Q. So at that point in time you discussed with him but nothing was ever set
up?
A. Correct.

Mr. Ramos testified that during that November 2018 interaction, he told Father that he
needed to attend “six or eight weeks of domestic violence courses.” With respect to the
condition of Father’s home, Mr. Ramos testified:

The whole house concerned me. There was no electricity on, no running
water, is what he reported. The front door was standing wide open, there

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5, 2015.

When Mr. Ramos was asked about Father’s parenting classes, after acknowledging that Father had
“gotten 16 hours this time around with some additional classes that he did in 2015, ’16,” he stated that “I
told [Father] that due to when the[se certificates of completion] were given to him and the date of when
Bella entered custody, it was not going to be enough.”
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 wasn’t a door -- well, there was a door, but it wasn’t attached correctly.
There were wires laying around outside. The grass had grown so tall, it was
probably to my knees at that point.

Mr. Ramos testified that Isabella “is in a Level 1 DCS home, she’s doing well, she
loves gymnastics, she’s very much a studious child, she absolutely loves school, she does
really, really well in school.” He also testified that she is one of the “spunkiest” kids he’d
ever met and is “really quick witted.” He testified that she had been going to counseling
and just started with a new therapist. With respect to Isabella’s current placement, which
she has been in for more than a year, Mr. Ramos testified that she is in a two-parent foster
home with one other child, whom Isabella “[g]ets along really well with”; that the foster
parents “have a big house” and “are very active in the community,” and that Isabella
“plays all types of sports.” He testified that the foster parents are willing to adopt
Isabella if she were to become available for adoption.

Father testified that he pled guilty to aggravated assault and was sentenced to
serve eight years.5 Father testified that he underwent drug treatment while incarcerated in
2015 and 2016 and then when he got out of prison on parole, he “went into a 90-day live-
in program” in August 2016 called the Spiritual Principles Program and “came to the
court at that time and I brought all of my certificates and was trying to have the mother
served so I could get my rights started back for visitation…” He also testified that he
thought the certificates of completion were sufficient to get visitation started and that Mr.
Ramos never told him specifically what additional things he needed to do. Father
testified that when Isabella was taken into DCS custody that he “was willing to come in
and do drug tests for them . . . , but . . . they were trying to make me go through all of this
other stuff because of the fact that she had already been in the system for 30 days[.]”
Exhibits entered at trial show that Father completed a program titled “Group Therapy for
Substance Use Disorders (Intensive Outpatient)” on October 4, 2018, and on that same
day, also completed the GRTH/Out-Patient program. Father testified that he was due to
start another program the following month that was tailored to individuals who have a
history of violence or domestic violence and involved 360 hours of training and
education in subjects such as parenting, anger management, and victim impact.

With respect to the violations that resulted in the 2018 revocation of his parole,
Father testified that “the only thing [he] was picked up for [was] failure to report,” not
failure to reside at the address he had given his parole officer as Mr. Ramos had asserted.
He testified that he would be “going up for parole in March of 2020,” but would “flatten
5
The judgment entered as an exhibit for the aggravated assault states that Father was a multiple offender.
Father testified that he had two prior felony convictions: gross negligent vehicular manslaughter in June
2008 “along with a felony hit and run,” for which he served a year and a half in California, and “tak[ing]
a vehicle without [the] owner’s consent” in March 2001. As these offenses were committed prior to the
conception or birth of Isabella, we do not consider them in our analysis of the grounds for termination of
Father’s parental rights; they are matters we consider in our review of the best interest factors.
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[his sentence] in May of 2020 instead, and . . . I won’t have to answer to parole anymore.
The only person I'll have to answer to then will be DCS if [Isabella] was still in their
custody.” Father testified that he anticipated being released from incarceration in May or
June 2020; that he could provide a stable home for Isabella within a six- to ten-month
period of being released; that he was working during his parole in 2018 and had two jobs
ready for him upon his release from incarceration; and that he was working to get his
driver’s license back, which would require him paying $500. Father testified as follows
regarding Mr. Ramos’ visit in November 2018 while Father was on parole:

Q. When he came out, you stated he wasn’t in your house, but you testified
that you were talking to him outside?
A. He stayed at the top of my driveway, sir.
Q. So he didn’t come on foot on the property?
A. No, he did not.
Q. Was that your choice or his choice?
A. He asked if he could do an inspection of the house at that time, which I
had no visitation that was going on with my daughter at that time, so I
kinda felt it was irrelevant, and being that I just got back to my house after
being out of prison and people had destroyed my house while I was away, I
chose not to let him come in my house and inspect it at that point because
there really wasn’t no sense in it when I wasn’t even having no visitation
with my daughter at that point.

Regarding his relationship with his daughter, Father testified that he loves Isabella,
whom he called “[his] baby, . . . [his] only child,” that he has addressed his domestic
violence issues by attending a class and had “never spanked my daughter, never put my
hands on my daughter,” that Isabella still has memories of him, and that he could
properly parent her. He also testified as follows:

I would like to state for the record, [Mother] did bring Bella to visit
me in prison. [Mother] did let me talk to Bella the whole time I was in
prison on the phone, and we communicated by letters. And I supplied every
diaper, every bottle, and that was my baby. She knows who her daddy is.
The last worker, whatever her name is, she personally told me, she brought
a picture of her and me asking if she knew where her daddy was. So I think
it’s really, it’s really – it’s cruel that they have been keeping us from each
other all of this time when I’ve tried to do everything to uphold everything
the court has asked of me.

The trial court entered an order on July 1, 2019, terminating Father’s rights on the
grounds of abandonment by engaging in conduct exhibiting a wanton disregard for
Isabella’s welfare, substantial noncompliance with the permanency plan, and failure to
manifest an ability and willingness to assume custody and after determining that
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terminating Father’s rights was in Isabella’s best interest.

Father appeals, challenging the grounds for termination and the best interest
determination; in addition, he contends that he received ineffective assistance of counsel
at the trial, that the court erred in denying him a continuance after notifying the court that
he desired to represent himself, and that the court erred in not finding him to be
incompetent at the time of trial due to not receiving his medication.

II. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s
rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one
ground need be proved, so long as it is proved by clear and convincing evidence. In the
Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Tennessee law ensures fundamental
fairness in termination proceedings by requiring a heightened standard of proof—clear
and convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1); In re Carrington H.,
483 S.W.3d 507, 522 (Tenn. 2016). In light of the heightened standard of proof in these
cases, a reviewing court must adapt the customary standard of review set forth by Tenn.
R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the
court’s findings of fact, our review is de novo with a presumption of correctness unless
the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id.
We must then determine whether the facts, “as found by the trial court or as supported by
the preponderance of the evidence, clearly and convincingly establish the elements”
necessary to terminate parental rights. Id. In this regard, 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” and which “produces a firm belief or conviction in
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the fact-finder’s mind regarding the truth of the facts sought to be established.” In re
Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted).

III. ANALYSIS

A. Preliminary Matters

Father argues that he should be given a new trial due to the ineffective assistance
of counsel he received because he was “temporarily incompetent to stand trial” as a result
of not taking his medication, and because he failed to receive a 90-day continuance after
notifying the court of his desire to dismiss his attorney and defend himself pro se. We
address these issues first.

Father argues that he received ineffective assistance of counsel. In his brief, he
states that “he was unable to reach his attorney by telephone and that the two never met
to prepare prior to the termination hearing.” He does not cite to any portion of the record
to support this statement; rather he references two pages in a document filed with this
Court after the termination order was entered, styled “Appeal in regards to Terminating
Parental Rights and Guardianship,” which this Court treated as his notice of appeal. On
the cited pages, Father states that his attorney “never returned any of [Father’s] phone
calls before [Father’s] incarceration or after [. . . and] had no contact with [Father] to
prepare for the termination of parental rights hearing.” He concludes this document by
stating that he was “complaining of ineffective assistance of counsel and prosecutorial
misconduct . . . [which should] be enough reason for this appeal to be granted and
effective counsel be given to Petitioner to stand his ground of appeal of termination of
parental rights.”

The question of whether a parent whose parental rights are sought to be terminated
has the constitutional right to the effective assistance of counsel was before our Supreme
Court in In re Carrington H., 483 S.W.3d 507, 533-34 (Tenn. 2016) cert. denied sub.
nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44 (2016). In declining
to hold that there is such a right, the court considered the substantial safeguards inherent
in the statutory and evidentiary standards applicable to termination of parental rights
cases, and held that the gravity of the rights at issue and the higher standard of proof
entitle the parent to a procedure that is fundamentally fair, consistent with due process
principles. Id. at 526-36. Consequently, the Court in that case analyzed the parent’s
claim of ineffective assistance of counsel determining whether the actions of counsel
prevented the parent from receiving a fundamentally fair proceeding; we shall do
likewise.

Shortly after the termination petition was filed, Father filed a pleading stating his
objection to the termination proceedings and requesting counsel be appointed for him; in
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accordance with Tennessee Code Annotated section 37-1-126(a)(2)(B)(ii), the court
appointed counsel, who filed a response to the petition on Father’s behalf. In that
response, in addition to the typed provisions drafted by the attorney, Father made
handwritten notes further explaining his position with respect to the requirements of the
permanency plan and his position that the DCS representative made inconsistent
statements. It is readily apparent from the response that Father and his counsel had some
contact, at a minimum by mail, prior to the hearing, such that Father was able to record
his commentary on the response and sign it before counsel filed it with the court.
Moreover, Father was present for the trial, and the transcript shows that he spoke out
during the proceedings even when he was not on the witness stand and engaged in
dialogue with the court.6 At no point did Father present any concerns he had about his
attorney’s representation to the court.

The record also shows that Father’s counsel engaged in thorough cross
examination of the witnesses, objected to some questions asked by the other attorneys as
well as to answers given by Mr. Ramos, conferenced with his client before concluding his
cross examination, and asked questions that permitted Father to testify at length as to his
position on Isabella’s best interest, his impressions of how DCS mishandled the case, and
what steps Father had taken to address the requirements imposed on him during Isabella’s
time in protective custody. We see no merit in Father’s contentions, as there is no
evidence in the record to show that Father was denied a fundamentally fair proceeding
consistent with requirements of due process or that a failure to meet in person prevented
his trial counsel from effectively advocating for him.

With respect to Father’s contention that the trial court erred by not allowing him a
90-day continuance to prepare for his own defense “after Appellant notified the court of
his desire to dismiss his attorney and pursue a defense . . . pro se,” we quote the entirety
of the argument in his appellate brief:

The Father further argues that after sending the Juvenile Court
Clerk’s office a letter firing his counsel, the trial court should have granted
the Father a ninety (90) day extension to allow the Father to represent
himself in the proceeding. Yet the trial Court failed to even inquire as to
whether the Father was satisfied with the services of his attorney. (TR, pp.
49-50). For the reasons stated in Section IV [pertaining to his claims of
ineffective assistance of counsel] above, the Father argues that this failure
was a violation of his constitutional and statutory rights and that the Father
should be awarded a new trial.

6
For example, after the proof was completed and the trial court had rendered an oral ruling, Father
engaged the court in a colloquy about whether or not he would be permitted to have lunch before being
transported back to prison.
- 10 -
 Father’s statement of this issue and his argument mischaracterize the record,
which does not contain a letter dismissing his counsel. We have reviewed the transcript
and it does not show that Father brought to the court’s attention that he had purportedly
dismissed his attorney or that he wanted to proceed pro se.

The order appointing counsel states that the attorney was appointed “[f]rom the
filing of the termination of parental rights petition to the conclusion of trial”; the
termination order relieves “[a]ll appointed attorneys . . . of further responsibility in this
matter.” The record also contains a subsequent order, entered on July 31, appointing
counsel to represent Father in this appeal. Father was represented throughout the hearing,
and he never told the trial court that he wished to proceed pro se; the first such statement
is contained in a letter he wrote to this Court post-trial. From our review of the record,
Father had effective representation at all times; he has failed to show any prejudice by
being unrepresented during the brief period between the conclusion of the trial and the
appointment of counsel for this appeal. The record makes clear that Father did not raise
any issue in the trial court with respect to a continuance, a matter that would have been
within the trial court’s sound discretion. State Dep’t of Children’s Servs. v. V.N., 279
S.W.3d 306, 317 (Tenn. Ct. App. 2008). Issues not raised in the trial court are waived on
appeal. Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996) (“Under Tennessee law,
issues raised for the first time on appeal are waived.”).

Father next argues that his due process rights were violated when he was “denied
his medications Seroquel and Effexor,” “without [which], he would have been
temporarily unable to function in a manner consistent with the ability to properly defend
himself.” Father contends that “[b]y failing to inquire as to the Father’s prescribed
medications and whether he was being dispensed such medication the trial court failed to
protect the Father’s due process rights as required.” There is no evidence in the record
that Father ever presented to the trial court his need for his medication or his asserted
incompetence to participate in the trial if he did not take it; the first reference touching on
this matter is in the July 20 letter to this court initiating the appeal. Again, issues not
raised in the trial court are waived on appeal. Black, 938 S.W.2d at 403.

B. Grounds for Termination

1. Abandonment by Engaging in Conduct that Exhibits Wanton
Disregard

Tennessee Code Annotated section 36-1-113(g)(1) provides that abandonment of
the child by the parent, as defined in section 36-1-102, is a ground for termination; in
turn, section 36-1-102(1)(A)(iv) defines abandonment, in pertinent part, as follows:

A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
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 parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or 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
or guardian’s incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child.

(Emphasis added.) This Court stated in In re Audrey S.:

[The above statutory definition] reflects the commonsense notion that
parental incarceration is a strong indicator that there may be problems in
the home that threaten the welfare of the child. Incarceration severely
compromises a parent’s ability to perform his or her parental duties. A
parent’s decision to engage in conduct that carries with it the risk of
incarceration is itself indicative that the parent may not be fit to care for the
child. However, parental incarceration is not an infallible predictor of
parental unfitness. . . the parent’s incarceration serves only as a triggering
mechanism that allows the court to take a closer look at the child’s situation
to determine whether the parental behavior that resulted in incarceration is
part of a broader pattern of conduct that renders the parent unfit or poses a
risk of substantial harm to the welfare of the child.

182 S.W.3d 838, 866 (Tenn. Ct. App. 2005). The termination petition was filed on
December 20, 2018, and it is undisputed that Father was incarcerated from November
2017 until October 2018 and from November 2018 through the time of the trial.

As to this ground, the trial court found:

Respondent has engaged in conduct that exhibits a wanton disregard for the
child’s welfare by: engaging in parole violations; substance abuse,
including methamphetamine use; failure to provide appropriate care and
support for the child; engaging in criminal activity including the aggravated
assault of this child’s mother. Respondent was drug tested on November 2,
2017, while on parole, and was positive for methamphetamine. Respondent
was arrested for violating the terms of his parole on November 27, 2017,
and was returned to prison for his use of methamphetamine. Respondent
remained incarcerated until he was released on parole again on October 12,
2018. Respondent was subsequently arrested for violating the terms of his
parole again by failing to report and by failing to reside at the address he
had reported to his parole officer.

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Father does not argue that the evidence preponderates against these findings, and from
our review of the record, we conclude that they are supported by a preponderance of the
evidence.7

Father argues that “his actions did not rise to a level of ‘wanton disregard’ as
defined by statute and as interpreted by this Court.” He cites his completion of a program
in October 2018 that included sixty hours of substance abuse education and thirty hours
of relapse prevention and that he would be attending an additional class that required 360
hours of training and education in subjects such as parenting, anger management, and
victim impact to show that he has not, in fact, abandoned Isabella within the meaning of
the statute.

Father’s arguments and the evidence he cites focus on his behavior and steps taken
while incarcerated; this ground for termination, however, focuses on Father’s behavior
prior to incarceration and seeks to determine whether a there is a pattern of conduct
shown that exhibits a disregard for Isabella’s welfare. In this regard, the evidence shows
that the conduct resulting in his 2014 incarceration was that he pushed Isabella’s mother
to the ground, threatened to kill her, attempted to strangle her, and held a pocket knife
against her neck in their home where Isabella resided. Despite completing many hours of
substance abuse education while incarcerated in 2014 and 2015, Father continued to use
drugs once paroled in 2017, specifically methamphetamine, resulting in a positive drug
screen that caused him to be reincarcerated. While on parole again in 2018, Father failed
to comply with the terms of his parole and was again reincarcerated. Father’s actions
when not incarcerated clearly show a pattern of criminal and reckless conduct and a
disregard for the effect his behavior may have on Isabella’s well-being; it exhibits a
“broader pattern of conduct that renders the parent unfit or poses a risk of substantial
harm to the welfare of the child.” In re Audrey S., 182 S.W.3d at 866. The evidence is
clear and convincing that Father abandoned Isabella by engaging in conduct that exhibits
a wanton disregard for her welfare within the meaning of section 36-1-102(1)(A)(iv), and
affirm the holding of the trial court in that regard.

2. Substantial Noncompliance with the Permanency Plans

The statute setting forth the ground of “substantial noncompliance” reads: “There
has been substantial noncompliance by the parent or guardian with the statement of
responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.” Tenn. Code.

7
Father and Mr. Ramos gave conflicting testimony as to the circumstances of his 2018 parole violation;
Father insisted at trial there was no evidence that he was not residing at the correct address and that he
was not reincarcerated on that basis. While the evidence conflicts as to whether there were two violations
or one that caused him to be arrested, the result is the same: Father was reincarcerated for failing to
comply with the terms of his parole. Elsewhere in the order, the trial court only refers to Father’s failure
to report as the cause of his 2018 parole violation and reincarceration.
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Ann. § 36-1-113(g)(2). In In re C.M., this Court said that, DCS must show the following
to prove this ground:

[T]hat the permanency plan includes a “statement of responsibilities” that
“clearly communicate[s] to the parent: ‘this is what you must do to regain
custody of your child.’” . . . DCS must also show that the permanency
plan’s requirements are “reasonable and related to remedying the conditions
that caused the child to be removed from the parent’s custody in the first
place.” . . . Further, DCS must demonstrate that “the parent’s
noncompliance is substantial in light of the degree of noncompliance and
the importance of the particular requirement that has not been met.”

No. E2018-02108-COA-R3-PT, 2019 WL 3812421, at *4-5 (Tenn. Ct. App. Aug. 14,
2019) (internal citations omitted). We have held that the noncompliance with the
permanency plan does not have to be willful to support the termination of the parent’s
rights. In re Joseph L., No. M2011-02058-COA-R3-PT, 2012 WL 2389609, at *9 (Tenn.
Ct. App. June 25, 2012).

With respect to the whether the requirements of the plan are reasonable and related
to remedying the conditions that caused the child to be placed in protective custody,
Father argues on appeal that “the no contact order between him and the Child was the
only impediment to the Father obtaining custody of the Child.” The no contact order was
put in place during the 2014 dependency and neglect proceedings and remained in effect
through the time of the termination hearing because Father had not petitioned to have it
removed.8 Moreover, the no contact order was referenced in the permanency plans, and

8
Mr. Ramos testified as follows:

Q. I’m looking at the final order that was entered by this court, Magistrate
Joseph. It was a hearing on July 29, 2014, it was entered August 26, 2014. It’s a previous
D&N case concerning domestic violence in the home. In that order it says that he must
complete certain requirements in order to modify the no contact order?
A. Correct.
Q. Those include A&D assessment, mental health assessment, anger management
counseling, domestic violence counseling, abstain from drug use, resolve legal issues and
not incur any additional misdemeanor or criminal charges, and he shall file a petition
with the court to modify?
A. Correct.
Q. Are you aware of the father ever filing a petition with the court to modify that
no contact order?
A. No.
Q. In fact, he did not abstain from drug use because he was using
methamphetamine three years later?
A. Right.
Q. And he has not resolved his legal issues; in fact, he’s still in prison today?
A. Correct.
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many of the requirements to have the no contact order lifted and the obligations of the
permanency plan were the same, including the need for alcohol and drug assessment and
a mental health assessment. The permanency plans included the additional requirements
that Father attend a parenting assessment, as well as parenting classes, that he obtain and
maintain safe and stable housing, follow the rules of parole, and not incur any new
charges. These conditions address the fact that Father had not been around Isabella in
nearly five years and that he would eventually need to provide a safe and stable home for
her. We conclude, as did the trial court, that the requirements of the permanency plan are
reasonable and related to remedying the conditions that caused Isabella to come into
custody.

As to the second element, while the evidence shows that Father participated in and
completed several programs while he was incarcerated prior to Isabella coming into DCS
custody, it also shows that he was arrested and reincarcerated due to a positive drug
screen for methamphetamine while on parole, despite having completed these programs.9
Father completed another program in October 2018 entailing 60 hours of substance use,
32 hours of victim impact, 12 hours of anger management, 30 hours of relapse
prevention, and 16 hours of parenting skills; he also completed “Group Therapy for
Substance Use Disorders (Intensive Outpatient)” in October 2018. While participation in
those classes is evidence of positive progress with the requirements of the permanency

Q. The other requirements are basically the same thing that was on the
permanency plan, correct?
A. Correct.
9
The unrebutted testimony of Mr. Ramos supports the finding of the trial court that:

Respondent and DCS were able to make contact after respondent’s release. DCS made
reasonable efforts to assist Respondent to complete his requirements under the plan. DCS
referred or otherwise provided opportunities for the following: alcohol and drug
assessment, mental health assessment, parenting assessment, ongoing case management,
and appropriate care and supervision of the child. The DCS case manager explained to
Respondent that he would need to complete the items on the permanency plan again since
additional concerns arose after he completed those classes in prison; specifically, he
relapsed into using methamphetamine, demonstrated poor parenting skills by violating
his parole and had not addressed potential mental health needs. Respondent did not
complete the requirements under the plan.

***

DCS was able to confirm that Respondent did participate in a variety of programs while
he was in prison. The Court received in evidence copies of the certificates of completion
for said programs. Respondent, however, has not demonstrated that he has learned any
new behaviors or skills in these programs. Respondent continued to use drugs while out
on parole[.]

(Emphasis added.)
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plans, Father was required to complete more than just the drug abuse assessment and
follow-up education; he also needed to complete a mental health assessment and a
parenting assessment. Mr. Ramos testified that he told Father he was “willing to help
[him] do it all, but [he] just needed to know which ones [Father] wanted to start knocking
out first”; that Father told him that he was in the middle of starting a new job and would
get back to Mr. Ramos; and that he did not hear from Father again.

Notwithstanding the courses Father completed while incarcerated, he lacked
completing a mental health assessment and a parenting assessment, as well as
maintaining safe and stable housing. The failure to comply with these provisions, each of
which was particularly important in light of the circumstances that prevented Isabella
from being placed in his custody in the first place, render Father’s noncompliance
substantial. See In re C. M., 2019 WL 3812421, at *4-5. We therefore affirm the trial
court’s holding that this ground was established by clear and convincing evidence.

3. Failure to Manifest an Ability and Willingness to Assume Custody

Tennessee Code Annotated section 36-1-113(g)(14) provides that a parent’s rights
may be terminated where:

[a] parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or
financial responsibility of the child, and placing the child in the person’s
legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child[.]

This ground requires the party seeking termination of a parent’s rights to prove two
elements by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14).
First, the party must prove that the parent failed to manifest “an ability and willingness to
personally assume legal and physical custody or financial responsibility of the
child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). Second, the party must prove that
placing the children in the parent’s “legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child[ren].” Tenn. Code
Ann. § 36-1-113(g)(14).

The manner in which the statute is to be interpreted in establishing the first
element of this ground has generated a lack of consensus within this Court, as noted in
the case of In re Zaylee W.:

There is a split in authority regarding the proof required to establish
the first prong of the analysis. In In re Amynn K., No. E2017-01866-COA-
R3-PT, 2018 WL 3058280, at *12-15 (Tenn. Ct. App. June 20, 2018), a
panel of this Court addressed the first prong by engaging in a complicated
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 use of statutory construction and grammar rules to essentially conclude that
the General Assembly’s use of “and” in the phrase “an ability and
willingness” actually means “or.” Some panels of this Court have followed
the decision in In re Amynn K. and concluded that a party is not required to
prove a failure to manifest both a willingness and an ability to assume
responsibility of the child. See In re Jayda H., No. E2019-00855-COA-R3-
PT, 2019 WL 6320503, at *9 (Tenn. Ct. App. Nov. 25, 2019) (stating that
“consistent with the discussion in the In re Amynn K. decision, we do not
view a parent’s demonstration of ‘willingness’ as fatal to this ground when
accompanied by a failure to manifest the requisite ‘ability’ ”); see also In re
Nevaeh B., No. E2019-01539-COA-R3-PT, 2020 WL 1527001, at *10-12
(Tenn. Ct. App. Mar. 26, 2020); In re Serenity S., No. E2019-00277-COA-
R3-PT, 2020 WL 522439, at *16 (Tenn. Ct. App. Jan. 31, 2020).

In In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL
2447044, at *7 (Tenn. Ct. App. May 31, 2018), a panel of this Court
interpreted “and” as requiring a party to prove that a parent failed to
manifest both an ability and a willingness. Under this interpretation, if a
party proves only the “ability” criterion or the “willingness” criterion, the
requirements of the statute are not met, and this ground may not serve as a
basis for terminating parental rights. Id. We believe the interpretation found
in In re Ayden S. is more consistent with the intent of the General
Assembly.

Applying the interpretation in In re Ayden S., Petitioner must prove
by clear and convincing evidence that Father failed to manifest both an
ability and willingness to personally assume legal and physical custody of
the child or that he failed to manifest an ability and willingness to
personally assume financial responsibility for the child. When evaluating
ability, we focus “on the parent’s lifestyle and circumstances.” Id. “When
evaluating willingness, we look for more than mere words.” Id. Rather, a
parent must have demonstrated willingness “by attempting to overcome the
obstacles that prevent them from assuming custody or financial
responsibility for the child.” Id.

No. M2019-00342-COA-R3-PT, 2020 WL 1808614, at *5 (Tenn. Ct. App. Apr. 9, 2020).
In light of the number of cases in which this ground has been pled since the statute was
enacted in 2016, as noted by the separate opinion filed herewith, we believe this is an
appropriate issue for our Supreme Court to give guidance.

Applying the framework set forth in In re Ayden S., we examine the record for
evidence that Father manifested both an ability and willingness to personally assume
legal and physical custody of Isabella.
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 With respect to this ground, the trial court held:

In this case, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-
2-403(a)(2), the Court finds that there is clear and convincing evidence that
Respondent has failed to manifest, by act or omission, an ability and
willingness to assume legal and physical custody of the child. Respondent
is still incarcerated due to his multiple parole violations for
methamphetamine use and failure to report appropriately to parole.
Respondent currently resides in a Tennessee Department of Corrections
penitentiary and will not be released, due to his decision to deny parole, for
approximately eleven months. Respondent testified that he would need an
additional six to ten months after his release from prison to get himself in a
position where he could take custody of his daughter. There is still a no
contact order in place prohibiting all contact between the child and
Respondent. Placing the child in Respondent’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological
welfare of the child.

To support his position that he has the ability and willingness to assume custody,
Father cites to his testimony that he expects to be released from prison in June 2020 and
would be able to care for Isabella within six to ten months of his release; that he has a job
lined up with a moving company when he is released from prison; and that he has never
spanked his child and could properly parent her.

Father does not have the present ability to assume custody of Isabella due to his
incarceration; his testimony also makes clear that Father would not have for at least six
months following his release date the ability to take physical custody of her. However, a
closer question is presented on his willingness to assume custody. The testimony shows
that, while on parole, Father contacted DCS to request a home visit to determine if his
home was appropriate and also that he was willing to take custody of Isabella in the
future. Mr. Ramos testified that Father was cooperative with him and, but for his current
incarceration, wanted to get custody of Isabella. Father’s behavior shows that he
attempted to overcome one of the obstacles that prevented him from assuming custody;
nevertheless, while on parole at two different times, he engaged in conduct that violated
his parole, and as a result he was reincarcerated. As being incarcerated was one of the
impediments to having custody of Isabella, his failure to abide by the terms of his parole
is evidence of a lack of willingness to assume custody of her. Taking all these matters
into consideration, we conclude that the record contains evidence of Father’s willingness
to assume custody of Isabella. Given the need to prove, by clear and convincing
evidence, that Father had failed to manifest both an ability and a willingness to assume

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custody, DCS failed to prove this ground by clear and convincing evidence.10

Having concluded that two grounds for termination of Father’s rights were proven
by clear and convincing evidence, we turn to the question of whether termination was in
Isabella’s best interest.

C. Best Interest

Once a ground for termination has been proven by clear and convincing evidence,
the trial court must determine whether it is in the best interest of the child for the parent’s
rights to be terminated, again using the clear and convincing evidence standard. In re
Valentine, 79 S.W.3d at 546. The Legislature has set out a list of factors at Tennessee
Code Annotated section 36-1-113(i) for the courts to follow in determining the child’s
best interest.11 The list of factors in the statute “is not exhaustive, and the statute does not

10
While we have found that the first prong of this ground was not proven, we have reviewed the evidence
relative to the second prong; in so doing, we are guided by the holding in Ray v. Ray:

The courts have not undertaken to define the circumstances that pose a risk of substantial
harm to a child. These circumstances are not amenable to precise definition because of
the variability of human conduct. However, the use of the modifier “substantial”
indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or
insignificant. Second, it indicates that the harm must be more than a theoretical
possibility. While the harm need not be inevitable, it must be sufficiently probable to
prompt a reasonable person to believe that the harm will occur more likely than not.

83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted). This Court has determined that “placing
a child with a parent who ha[s] knowingly engaged ‘in repeated criminal conduct that necessitated [the
parent’s] re-incarceration’ would place the child at risk of physical or psychological harm.” In re Amynn
K., 2018 WL 3058280, at *15 (citing In re Ke’Andre C., No. M2017-01361-COA-R3-PT, 2018 WL
587966, at *11 (Tenn. Ct. App. Jan. 29, 2018), no perm. app. filed). The evidence presented by DCS
showed that, over the course of Isabella’s 21 months in DCS custody, Father was reincarcerated twice for
parole violations. Additionally, the unrebutted testimony of Mr. Ramos was that Father’s home, as it
stood at the time Father was on parole, was not safe or suitable for housing a child. We thus conclude
that there is clear and convincing evidence that placing Isabella in Father’s custody would pose a risk of
substantial harm to her physical and psychological welfare.
11
The factors at Tennessee Code Annotated section 36-1-113(i) are:

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 interest 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
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require every factor to appear before a court can find that termination is in a child’s best
interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing Tenn. Dept. of
Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3
(Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL
3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue we are also
mindful of the following instruction in White v. Moody:

[A]scertaining a child’s best interests in a termination proceeding is a fact-
intensive inquiry requiring the courts to weigh the evidence regarding the
statutory factors, as well as any other relevant factors, to determine whether
irrevocably severing the relationship between the parent and the child is in
the child’s best interests. The child’s best interests must be viewed from
the child’s, rather than the parent’s, perspective.

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).
The Tennessee Supreme Court has explained:

Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s

that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained 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, 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.

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 best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child....” Tenn.
Code Ann. § 36-1-101(d) (2017).

In re Gabriella D., 531 S.W.3d 662, 681–82 (Tenn. 2017).

The trial court made the following findings in considering Isabella’s best interests,
which relate to statutory factors (1), (2), (3), (4), (5), (7), and (9), and which we have
identified accordingly:

[(1)] Respondent has not made changes in his conduct or circumstances that
would make it safe for the child to go home. Respondent is still
incarcerated. When Respondent did have the opportunity to be out on
parole and in the community, he still chose to use methamphetamine and
violate the terms of his parole by failing to report.
[(2)] Respondent has not made lasting changes in his lifestyle or conduct
after reasonable efforts by the state to help, so that lasting change does not
appear possible. Despite help from the state like referring or otherwise
providing opportunities for the following: alcohol and drug assessment,
mental health assessment, parenting assessment, ongoing case management,
and appropriate care and supervision of the child, for twenty-one months,
he still has not demonstrated sobriety when not incarcerated, has not
demonstrated good parenting skills and is incarcerated.
[(3)] Respondent has not maintained regular visitation with the child.
[(4)] There is no meaningful relationship between the child and
Respondent.
[(5)] Changing caregivers at this stage of the child’s life will have a
detrimental effect on her. The child has made tremendous progress in her
placement and would be devastated if removed from that environment in
which she is thriving.
[(7)] There is crime in Respondent’s home.
[(7)] Respondent has abused methamphetamine, rendering him consistently
unable to care for the child in a safe and stable manner
[(9)] Respondent has not paid child support consistently.
[(5)] The child has established a strong bond with her foster parents, who
wish to adopt her.

Father takes issues with many statements the court made in the course of its oral
- 21 -
ruling; a court speaks through its orders, however, and not through oral statements that
are not incorporated into an order. In re Navada N., 498 S.W.3d 579, 594 (Tenn. Ct. App.
2016). The comments made by the court during its oral ruling and referenced in Father’s
brief are not part of the order, as the trial court did not incorporate its oral ruling into the
final order. We have reviewed the entire record, giving careful consideration to all of the
testimony cited by Father in his brief; we conclude that the record does not preponderate
against the findings of the trial court quoted above, with two exceptions. Although there
is testimony about the deplorable appearance of the exterior of Father’s home, there is no
proof that criminal activity took place in the home; also, there is no proof of whether
Father paid child support.

While Father attempted at trial and again on appeal to shift much of the
responsibility of reunifying him with Isabella to the Department, the evidence shows
clearly that he would not be ready to parent her until an uncertain time in the future.
Father has not parented Isabella since 2014, when he was placed under the no contact
order; he has been in and out of incarceration since that time. During the times he has
been on parole, he did not petition to have the no contact order lifted or visitation
reinstated; there is no evidence that he has established a meaningful relationship with her.
Meanwhile, Isabella has been placed in a stable home with a family who would like to
adopt her should she become available. She is doing well physically, academically, and
socially. The findings are supported by the evidence and, viewed from Isabella’s
perspective, amount to clear and convincing evidence that termination of Father’s rights
is in her best interest.

IV. CONCLUSION

For the foregoing reasons, we reverse the trial court’s holding that clear and
convincing evidence established the ground of failure to manifest an ability and
willingness to assume custody of Isabella; in all other respects, the judgment is affirmed.

_________________________________
RICHARD H. DINKINS, JUDGE

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