Opinion
No. M2008-02442-COA-R3-PT.
Assigned on Briefs September 25, 2009.
Filed on November 19, 2009.
Appeal from the Juvenile Court for Maury County; No. 73066; George L. Lovell, Judge.
Judgment of the Juvenile Court Affirmed.
Seth M. Lasater, Columbia, Tennessee, for the appellant, D.R.A.
S. Jason Whatley, Columbia, Tennessee, for the appellee, S.D.J.
Robert C. Richardson, Jr., for the Guardian ad litem.
Richard H. Dinkins, J., delivered the opinion of the court, in which Patricia J. Cottrell, P.J., M.S., and Frank G. Clement, JR., J., joined.
OPINION
Father challenges the termination of his parental rights. Finding that the evidence clearly and convincingly supports the trial court's conclusions that grounds for termination existed and that termination was in the best interest of the child, the judgment terminating Father's parental rights is affirmed.
I. Procedural Background
This proceeding was initiated on January 11, 2007, when S.D.J. ("Mother") filed a Petition for Termination of Paternal Rights of D.R.A. ("Father"). The Petition alleged that the parties were the legal and biological parents of B.N.J. (d.o.b. 4/14/2000) and that Father had abandoned the child by failing to support the child financially or otherwise.
To protect the identity of the child, the parents' initials will be used in this opinion.
Father was incarcerated at the time of the filing of the Petition and was appointed counsel on January 29, 2007. Despite being represented by counsel, Father filed an Answer and a Motion to Dismiss pro se on February 5, 2007; over the course of the next year, Father filed various pleadings with the court pro se including a complaint for change of custody, petition for reinstatement of visitation rights, motion for funds to hire an investigator, a second complaint for change of custody, motion for mental examination of Father, motion to establish non-custodial parents rights and a petition to terminate Mother's parental rights among others. Father's petition to terminate Mother's parental rights asserted that Mother neglected the child, provided improper supervision, showed a wanton disregard for the safety of the child and knowingly failed to protect the child from a known risk of abuse and neglect.
Among the pleadings was a Notice of Appeal filed by Father, pro se, on June 26, 2007, appealing the "final judgment rendered from the juvenile court of Maury County, Tennessee on the 25th of June, 2007." The record does not contain a final judgment or any other order by the trial court on June 25, 2007. Father filed a second Notice of Appeal, pro se, on July 10, 2007. This Court dismissed Father's appeal because Father had not paid costs assessed in a prior appeal. See Tenn. Code Ann. § 41-21-812(a).
On February 4, 2008, Mother moved to set the matter for trial. A hearing was held on March 25, during which Mother moved to be allowed to amend her complaint to add her husband as a petitioner to allow him to adopt B.N.J.; Father, who was present for the proceeding, verbally withdrew his motion seeking appointment of new counsel. The trial court determined that the parties were prepared for trial, denied Father's motion for a mental examination, granted Mother's motion to amend her petition and stayed Father's remaining matters pending determination of his parental rights at trial.
A trial was held on April 25, May 27, and August 5. At the end of the final day of proceedings on August 5, the trial court announced its findings and ruling from the bench. The court dismissed Father's petition to terminate Mother's parental rights for failing to meet his burden of proof; found by clear and convincing evidence that the allegations of the amended petition filed by Mother and her husband were true; and that the termination of Father's parental rights was in the best interest of B.N.J. Father, through his attorney, filed a Notice of Appeal on August 7, 2008. On December 18, the trial court entered an order finding by clear and convincing evidence that grounds existed under Tenn. Code Ann. §§ 36-1-113(g)(1), (6), and (9)(A)(ii) to terminate Father's parental rights and that termination was in the best interest of the child.
Father presents the following issues on appeal:
1. Whether Petitioner's failure to comply with the statutory directives contained in Tenn. Code Ann. § 36-1-113 serves to strip the lower court of the subject matter jurisdiction necessary to take any action on the Petition.
2. Whether the lower court's failure to comply with the time limits set forth in Tenn. Code Ann. § 36-1-113 for producing written findings of fact and conclusions of law requires this Honorable Court to vacate the lower court's Order terminating the Appellant's parental rights.
3. Whether the trial court's dual holdings that the termination of the Appellant's parental rights: (1) was warranted under the grounds set forth [in] Tenn. Code Ann. § 36-1-113; and (2) was in the best interest of the minor child by, both by [sic] clear and convincing evidence, are supported by a preponderance of the evidence.
Mother asserts an additional issue that Father's appeal was not properly perfected and should, therefore, not be heard.
II. Standard of Review
A parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., 2005 WL 1021618, at *7 (Tenn. Ct. App. April 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). To support the termination of parental rights, petitioners must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); Tenn. Code Ann. § 36-1-113(c).
Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769; Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt about correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.
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 at 654. 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.
III. Analysis
Mother and Father both raise procedural questions as well as the issues Father raises that go to the merits of the case. We will address the procedural questions first.
Mother contends that Father's appeal was not properly perfected and, thus, should not be heard by this Court. Specifically, Mother asserts that "the notice was not served upon counsel for Appellees" or any other party within the seven days required by Tenn. R. App. P. 5(a). Mother further asserts that the notice of appeal did not designate the judgment from which relief was sought as it did not identify the case name or trial court docket number that was being appealed or designate to which court the appeal was to go as required by Tenn. R. App. P. 3(f).
Tenn. R. App. P. 5(a) provides in pertinent part:
Not later than 7 days after filing the notice of appeal, the appellant in a civil action shall serve a copy of the notice of appeal on counsel of record for each party or, if a party is not represented by counsel, on the party. Proof of service in the manner provided in Rule 20(e) shall be filed with the clerk of the trial court within 7 days after service. . . .
Father, through counsel, filed a notice of appeal on August 7, 2008, two days after the final hearing in the trial court. The notice stated that the case name was "In RE: B.J. [D.R.A.] (Father)" and that Father, who was the Respondent in the trial court, was appealing a parental termination proceeding from Juvenile Court in Maury County in which the trial judge was "Lovell." There was no certificate of service attached to the notice; however, an Order For Transcript For Indigent Defendant was attached and it listed the trial court case number correctly as 73066. The record does not reflect that Mother's counsel or the Guardian ad litem were served with copies of the Notice of Appeal. The trial court clerk did not forward the notice to the clerk of this Court in accordance with Tenn. R. App. P. 5 until October 28, 2008. On November 3, 2008, the clerk of this Court sent the trial court clerk notice of receipt of the notice of appeal; this communication, which included a docketing statement to be filled out by the Appellant and an Appellee or Appellant address information sheet, was sent to the parties' attorneys.
Tenn. R. App. P. 3(f) provides:
The notice of appeal shall specify the party or parties taking the appeal by naming each one in the caption or body of the notice . . ., shall designate the judgment from which relief is sought, and shall name the court to which the appeal is taken. An appeal shall not be dismissed for informality of form or title of notice of appeal.
Tenn. R. App. P. 3(f). The Advisory Commission Comment to the rule explains that the purpose of subdivision (f) "is simply to declare in a formal way an intention to appeal. As long as this purpose is met, it is irrelevant that the paper filed is deficient in some other respect." Tenn. R. App. P. 3(f), Advisory Commission Comment Subdivision (f). The notice evidently achieved this purpose as both the trial court and the clerk of this Court knew which case was being appealed as evidenced by the November 3, 2008, letter that properly identified the case name, trial court, trial court number, and the parties' attorneys.
The record does not indicate that Father's counsel served a copy of the notice on Mother or the Guardian ad litem as required by Tenn. R. App. P. 5(a); however, Tenn. R. App. P. 2 permits this Court to suspend the requirements or provisions of any of the rules of appellate procedure for good cause. In this case, Father was incarcerated and indigent during the termination proceedings and represented by appointed counsel who was ultimately removed for failing to be responsive to time lines set by this Court. Because of the gravity of a proceeding to terminate the rights of a parent and the fact that the parties had notice of Father's intent to appeal before and after the entry of the final judgment, we do not find it appropriate under the circumstances to deny Father his right to appeal the judgment of the trial court.
On March 23, 2009, the trial court clerk notified this court that Father's counsel had failed to file a transcript of the evidence. Father's counsel had submitted, and the trial court had entered, an order approving the preparation of the transcript at the State's expense; however, the order submitted was a form order used in criminal matters and was not adequate under Tenn. S. Ct. R. 13 for the Administrative Office of the Courts to authorize payment to the court reporter. Following further delay and no response by Father's appointed counsel, this Court, by an order entered on May 11, 2009, remanded the case to the trial court for the limited purpose of appointing new counsel. The trial court appointed Father new counsel by an order entered on May 14, 2009. On May 18, 2009, the Clerk of the Circuit Court and Juvenile Court of Maury County, Tennessee, certified that a technical record and exhibits were transmitted to this Court. Father's new counsel filed a Notice of Appearance with the trial court on May 21, 2009. On May 27, 2009, the trial court entered an order granting Father's motion for a transcript of the proceedings, which was to be paid for by the Tennessee Administrative Office of the Courts. On June 29, 2009, the parties filed a joint motion to append the record, which was granted by the trial court in an agreed order entered the same day. On July 2, 2009, the Clerk of the Circuit Court and Juvenile Court of Maury County, Tennessee, certified that a supplemental technical record, exhibits and a transcript of the evidence were transmitted to this Court.
Father contends that the trial court's order terminating his parental rights must be vacated because the court lacked subject matter jurisdiction due to deficiencies in the allegations of the Petition. Specifically, Father points to the fact that the Petition failed to contain the subject child's current residence address or county of residence as required by Tenn. Code Ann. § 36-1-113(d)(2)(C) and Tenn. R. Juv. P. 39(a)(3).
The existence of subject matter jurisdiction depends on the nature of the cause of action and the relief sought. In re S.L.M. T.J.M., 207 S.W.3d at 295 (citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994); First Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 153, 140 (Tenn. 2001)). Tenn. Code Ann. § 37-1-104(c) gives juvenile courts concurrent jurisdiction with circuit and chancery courts to terminate parental rights pursuant to the provisions of title 36, chapter 1, part 1. See also Tenn. Code Ann. § 36-1-113(a) (setting forth that the "chancery and circuit courts shall have concurrent jurisdiction with the juvenile court to terminate parental or guardianship rights to a child"). The nature of Mother's petition was a termination proceeding in which she sought the termination of Father's parental rights in accordance with Tenn. Code Ann. § 36-1-113; consequently, the juvenile court had subject matter jurisdiction over the proceeding. Tenn. Code Ann. § 36-1-113(d), on which Father relies, merely establishes the pleading requirements for termination proceedings; it does not confer or otherwise define the juvenile court's jurisdiction with respect to termination proceedings.
In Osborn v. Marr, 127 S.W.3d 737 (Tenn. 2004), the Supreme Court held that a parent does not have standing under Tenn. Code Ann. § 36-1-113(b) to seek termination of the other parent's parental rights and, consequently, a court lacks subject matter jurisdiction in such a proceeding. That circumstance is not present in this case, where Mother's husband was joined as a petitioner with the expressed intention of adopting B.N.J., thereby constituting a "prospective adoptive parent" as contemplated in the statute.
The statute provides that a petition to terminate parental rights may be made upon information and belief and shall be verified, Tenn. Code Ann. § 36-1-113(d)(1); further, the petition shall state:
(A) The child's birth name;
(B) The child's age or date of birth;
(C) The child's current residence address or county of residence or that the child is in the custody of the department or a licensed child-placing agency; and
(D) Any other facts that allege the basis for termination of parental rights and that bring the child and parties within the jurisdiction of the court.
Tenn. Code Ann. § 36-1-113(d)(2).
Father also contends that the trial court's order should be vacated because the court failed to hold the hearing within six months of the filing of a petition and, once the hearing was completed, to enter an order with specific findings of fact and conclusions of law within thirty days of the conclusion of the hearing as required by Tenn. Code Ann. § 36-1-113(k).
Tenn. Code Ann. § 36-1-113(k) provides,
The court shall ensure that the hearing on the petition takes place within six (6) months of the date that the petition is filed, unless the court determines an extension is in the best interests of the child. The court shall enter an order that makes specific findings of fact and conclusions of law within thirty (30) days of the conclusion of the hearing. If such a case has not been completed within six (6) months from the date the petition was served, the petitioner or respondent shall have grounds to request that the court of appeals grant an order expediting the case at the trial level.
A Mother challenging the termination of her parental rights made a similar argument to the Western Section of the Court of Appeals, which the court rejected in In re M.R.W., T.D.B., and A.N.B., M2005-02329-COA-R3-PT, 2006 WL 1184010 (Tenn. Ct. App. May 3, 2006). In its opinion, the court explained that, in essence, Mother's argument with respect to § 36-1-113(k) related to whether the trial court lost subject matter jurisdiction when it failed to strictly comply with the time lines set forth in the statute. Id. at *2. The court concluded that use of the word "shall" in § 36-1-113(k) does not carry a mandatory meaning; consequently, a trial court's failure to strictly comply with the statute's time lines did not require that its order be vacated. Id. at *4. The court also concluded that, while § 36-1-113(k) evidences the legislature's directive that parental termination cases be adjudicated as expeditiously as possible, the proper remedy for a court's failure to strictly comply with the statute generally results in remand of the matter on appeal. Id. (citing White v. Moody, 171 S.W.3d 187 (Tenn. Ct. App. 2004)). We see no reason to deviate from this holding.
With respect to the delay at issue here, the statute directs the trial court to ensure "the hearing on the petition takes place within six (6) months of the date that the petition is filed, unless the court determines an extension is in the best interests of the child." While termination proceedings should be undertaken with a sense of urgency, the statute clearly gives the trial court discretion to determine the appropriate time in which to hold a hearing. We are directed to nothing in the record and find no basis upon which to hold that the court abused its discretion in this regard. Moreover, the record reflects that Father filed a continuous stream of pleadings with the trial court nearly every month for more than a year after Mother filed the Petition. Noticeably absent from Father's pleadings was a motion to expedite the hearing, to set the case for trial, or a motion to dismiss for failure to prosecute; consequently, Father cannot now complain that the trial court did not expedite the cause with sufficient expediency.
We note that this proceeding was initiated by the custodial parent of the child at a time when the non-custodial parent was incarcerated and there was no allegation that B.N.J. was in any danger or situation requiring an earlier hearing. Trial was held within one month of Mother's motion to set the case for hearing.
Likewise, the delay between the final hearing date and the date of entry of the trial court's final order more than four months later, as we noted above, does not divest the trial court of its jurisdiction and Father's insistence that the delay in entry of the final order justifies dismissal of the appeal is without merit. See In re M.R.W., 2006 WL 1184010, at *4. The trial court stated its findings at the completion of the trial and there is nothing in the record to indicate that Father raised the issue of delay in entry of the final order with the trial court. The trial court made extensive and specific findings of fact and conclusions of law in this case and remand would serve no purpose. Furthermore, Father was not prejudiced by the trial court's delay in entering its final judgment as he filed a Notice of Appeal two days following the trial, which preserved his right to appeal the final judgment in accordance with Tenn. R. App. P. 4(d).
Grounds for Termination
Father contends that "[b]ecause the findings in this case, namely that the statutory grounds had been met and that the termination of the Appellee's [sic] parental rights was in the best interest of the minor child, were not supported by clear and convincing evidence, the lower court's decision should be reversed." The substance of Father's argument addresses only the ground of abandonment at Tenn. Code Ann. § 36-1-113(g)(1) and he asserts that to justify termination, the abandonment must be willful and that "the mere fact of [Father's] incarceration, however, does not support the finding that any failure to provide for or visit the minor child was willful."
The trial court found that the evidence clearly and convincingly supported termination of Father's parental rights based on three grounds: Tenn. Code Ann. § 36-1-113(g)(1); Tenn. Code Ann. § 36-1-113(g)(6); and Tenn. Code Ann. § 36-1-113(g)(9)(A)(ii). Specifically, the trial court found:
(a) [Father] has abandoned the child as defined by [Tenn. Code Ann.] § 36-1-113(g)(1) (the same referencing [Tenn. Code Ann.] § 36-1-102) inasmuch as for a period of four (4) consecutive months immediately preceding the filing of the underlying termination petition of this cause [Father] willfully failed to visit and/or financially support (or make payments for) the subject child. Through his inactions of support [sic], lack of visitation and other actions testified to at trial,[] the Court also finds that the [Father] has demonstrated a wanton disregard for the welfare of the subject child throughout the child's life. The Court finds that any financial "support" provided by [Father] to the child was token by nature only.
At trial, Mother testified to various acts of Father that would show a wanton disregard for the welfare of the child. For instance, Mother testified that Father forced her to have sex with him during several visitations with the child. He would often be accompanied by his mother or sister who would hold the child while Father forced himself on Mother. Father's behavior escalated from dragging Mother into another room to have sex with her to eventually pointing the gun at the child to force Mother to have sex with him and then holding the gun to Mother during the act. After the last incident, Mother refused to meet Father to allow him to see the child. Mother also testified that Father had choked her during an argument and that he refused to stop until his Mother, who was present during the altercation, pleaded with him to stop.
(b) In accordance with [Tenn. Code Ann.] § 36-1-113(g)(6) as of the time of the filing of the petition and as of the date of the hearing in this cause, the [Father] has been confined in a correctional or detention facility by order of the Maury County Circuit Court as a result of a criminal act under a sentence of ten (10) or more years and the subject child was less than eight (8) years old at the time of the entry of said sentence.
(c) In accordance with [Tenn. Code Ann.] § 36-1-113(g)(9)(A)(ii) the [Father] has failed to make reasonable and consistent support of [the] child in accordance with the Tennessee Child Support Guidelines.
In support of its determination, the trial court made the following findings of fact by clear and convincing evidence relative to the grounds for termination:
(a) The Petitioner mother did not withhold visitation from the father when he was out of prison. The Court finds that for a period of at least four (4) months while he was out of prison the Respondent failed to visit (other than token visitation) and that his failure was his own fault.
(b) The Court is convinced that in whatever areas of disagreement that exist as between these parties and their witnesses, the Petitioner mother's version of facts is the more truthful version and the Court therefore finds in favor in those respects.
. . .
(e) During the times that the Respondent has been out of prison and has had the opportunity and ability to provide some kind of financial support to the child, he has failed miserably to do so.
Any one of the nine statutory grounds for termination of parental rights listed in Tenn. Code Ann. § 36-1-113(g) is sufficient to support an order terminating parental rights where termination is in the best interests of the child. In the Matter of D.L.B., 118 S.W.3d at 367. In this case, the trial court found that the evidence clearly and convincingly supported termination of Father's parental rights on three grounds, but Father only challenges the court's finding with respect to one of the grounds. Our review of the record with respect to the other two grounds, Tenn. Code Ann. § 36-1-113(g)(6) and Tenn. Code Ann. § 36-1-113(g)(9)(A)(ii), shows that the trial court's determination was supported by the evidence clearly and convincingly.
With respect to the ground of abandonment under Tenn. Code Ann. § 36-1-113(g)(1), it is clear from the detailed findings of fact made by the trial court that it did not rely merely on the fact of Father's incarceration to determine that Father willfully abandoned the child as defined by Tenn. Code Ann. § 36-1-102(1)(A). Our review of the record shows that the evidence clearly and convincingly supports the trial court's findings of fact and that those facts clearly and convincingly warrant termination of Father's parental rights based on Tenn. Code Ann. § 36-1-113(g)(1).
Best Interest of the Child
Once a ground for termination has been proven by clear and convincing evidence, the trial court must then determine whether it is the best interest of the child for the parent's rights to be terminated, again using the clear and convincing evidence standard. The legislature has set out a list of factors for the courts to follow in determining the child's best interest at Tenn. Code Ann. § 36-1-113(i). The list of factors set forth in the statute is not exhaustive, and the statute does not require every factor to appear before a court can find that termination is in a child's best interest. See In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing State of Tennessee Dep't of Children's Servs. v. T.S.W., 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).
Father contends that the evidence did not clearly and convincingly support the trial court's determination that termination was in the best interest of the child. With respect to this issue, the trial court found:
6. In making the above findings by clear and convincing evidence that this termination of the Respondent's parental rights is in the best interests of the child, the Court gave consideration to the factors addressed in Tennessee Code Annotated § 36-1-113(i).
7. The Court further makes the following findings of fact by clear and convincing evidence:
. . .
(c) The Respondent has expressed that he stays in trouble. He further presented no cohesive plan for providing for the child financially or otherwise. In his response to being questioned regarding the same, all the Respondent could say is that he planned to sell shoes and clothes, but he had taken absolutely no steps to actually start a business along those lines and otherwise failed to demonstrate any knowledge or wherewithal of how to do so. The Respondent also had no experience in that area.
(d) The Court gives great weight to the period of time that the child has not seen Defendant [sic] in determining that the termination of Respondent's parental rights is in the child's best interests.
. . .
(e) During the times that the Respondent has been out of prison and has had the opportunity and ability to provide some kind of financial support to the child, he has failed miserably to do so.
(f) The Court finds credible the testimony from the Petitioner mother that the Respondent's telephone calls to her home and even the past occasional telephone and other discussions between Respondent and child have focused on the Respondent's desire for a relationship with the Petitioner mother and upon things wholly inappropriate for a child and were not at all indicative of a father who wanted to foster and grow a relationship with his daughter.
(g) The father claims that he has mental health problems, ostensibly as a defense to the matters raised by Petitioner. The Courts finds that Respondent did not present a defense to any such claims, but the Court does have concern that Respondent has some level of mental problems.
(h) The Court has concerns over where the Respondent plans to live once he is released from prison. Specifically, Respondent testified that he has problems with his grandmother, but that he plans to live with her anyway.
(i) The Courts finds that the threat of prison is not enough to keep the Respondent acting appropriately.
(j) The allegations of the petition and amended petition have been proven by clear and convincing evidence.
(k) The Respondent's last incarceration (in 2005) insured that there was no chance of Respondent building a meaningful relationship with his daughter.
Father does not take issue with any of the trial court's findings of fact, but rather points to evidence in the record that he contends shows that Mother's home "is far from an ideal place to raise a child." Father points to testimony by Mother acknowledging that her father is a convicted sex offender and that he spends "a lot" of time with the child and to Mother's husband's testimony that he has been arrested and served time in jail. Mother, however, also testified that she does not allow her father to be alone with the child and that Mother's husband's testimony showed that his criminal behavior has been decreasing in both frequency and seriousness over time. This was evidence heard and considered by the trial court and does not detract from the court's factual findings or ruling. The focus of the best interest inquiry in this proceeding is not whether Mother's family is perfect or "ideal," but whether it is in the best interest of the child to sever her relationship with Father. Consequently, the proper focus of the court was on Father's behavior relative to the factors set forth in Tenn. Code Ann. § 36-1-113(i).
Mother's husband testified that he was convicted of drug related offenses and sentenced to serve two years in jail in 2001; he was arrested again in 2006, pled guilty to misdemeanor drug charges and received a probated sentence. Finally, he testified that he arrested again in 2007 for theft of less than $500, pled guilty and was serving probation at the time of trial.
Our review of the record shows that Father has been incarcerated for much of the child's life, but that while he was out of prison and had an opportunity to build a meaningful relationship with the child, he was more interested in pursuing an unreciprocated sexual relationship with Mother. We find the record most alarming with respect to Father's callous and dangerous behavior towards Mother in the presence of the child, which demonstrated a disregard for the health, safety and well-being of the child. Testimony at trial showed that Father would pressure Mother to meet with him under the auspices of seeing the child but that once Mother arrived, Father would use violence to force her to have sex with him including dragging, choking and holding a gun to both the child and to Mother. While Father denied most of these acts in his testimony, the trial court found Mother's testimony to be truthful and resolved any disputed facts in her favor. We give great weight to the trial court's findings involving the credibility of witnesses because the trial court is in a better position to weigh and evaluate the credibility of witnesses. See Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). We find that the record clearly and convincingly supports the trial court's findings of fact and that those facts clearly and convincingly show that termination of Father's parental rights was in the best interest of the child.
IV. Conclusion
For the foregoing reasons, the judgment of the trial court terminating Father's parental rights is AFFIRMED.
Costs of the appeal are taxed to Father.