In Re: Tucker H. ( 2020 )

04/24/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 2, 2020
IN RE: TUCKER H. ET AL
Appeal from the Circuit Court for Bradley County
No. V-18-546 J. Michael Sharp, Judge
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No. E2019-01970-COA-R3-PT
___________________________________
This is a termination of parental rights case. Appellant mother appeals the trial court’s
termination of her parental rights on the grounds of: (1) abandonment by an incarcerated
parent for failure to visit and wanton disregard; (2) failure to substantially comply with
the requirements of the parenting plans; and (3) failure to manifest an ability and
willingness to assume custody. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
Bradley N. Wilson, Cleveland, Tennessee, for the appellant, Erika R.1
Herbert H. Slatery, III, Attorney General and Reporter, and Erica M. Haber, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Background
Appellant Erika R. (“Mother”) is the biological parent of T.L.H. (d/o/b April
2010) and S.L.K.R. (d/o/b March 2015) (together, the “Children”).2 Appellee Tennessee
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
2
The Children have different fathers, whose respective parental rights were terminated by the
trial court in its October 8, 2019 order. Neither father is a party to this appeal.
Department of Children’s Services (“DCS”) has a lengthy history with Mother and her
family. In 2013, when T.L.H. was approximately three years old, his paternal
grandmother, Kimberly G. (“Grandmother G,”), obtained legal custody of him. There is
indication in the record that the child lived with Grandmother G. prior to her obtaining
legal custody; however, it is not clear how long T.L.H. resided with Grandmother G.
prior to that time. Nonetheless, in December 2016, Grandmother G. tested positive for
methamphetamine, amphetamine, THC, and MDMA. Accordingly, DCS removed the
child from Grandmother G.’s home. On January 9, 2017, DCS filed a petition to transfer
custody of T.L.H. from Grandmother G. to T.L.H’s maternal grandmother, Kimberly R.
(“Grandmother R.”). The younger child, S.L.K.R., had been living with Grandmother R.
since he was two months old. The court ordered that Grandmother G. have only
supervised visitation with T.L.H. until she completed a list of court-ordered tasks to
address drug and alcohol concerns.
During the time the Children were living with the grandmothers, Mother was in
and out of jail. Trial Exhibit 2 is a collection of Mother’s arrest and incarceration records
dating from February 7, 2016 through the date of the hearing.
On March 31, 2017, DCS received a referral alleging lack of supervision and
environmental neglect by Grandmother R. The referral specifically alleged that
Grandmother R. was permitting T.L.H. to have unsupervised visits with Grandmother G.
DCS’s investigation revealed that Grandmother R. had, in fact, permitted Grandmother
G. to have unsupervised visits, thus exposing T.L.H. to possible drug use. Accordingly,
on April 5, 2017, DCS placed both Children into protective custody; at the time the
Children were placed in DCS’s custody, Mother could not be located. At trial, Mother
explained that, as of April 2017, “I was [] in and out of jail. didn't really have a place to
live so I was just kind of wherever. Dealing with a drug addiction. You know, trying to
figure things out.”
On or about April 25, 2017, the Children’s Family Service Worker Samantha
Walker (“FSW Walker”) made contact and met with Mother to review a permanency
plan and a corresponding parents’ statement of responsibilities. The initial permanency
plan required Mother to complete the following steps before the Children could be
returned to her: (1) attend parenting classes and submit a certificate of completion; (2)
attend child and family team meetings and court hearings; (3) maintain contact with the
family service worker and notify her of any change in circumstance within 24 hours; (4)
maintain residential stability for a minimum of six months; (5) provide DCS with proof
of legal and verifiable income or proof of disability; (6) provide DCS with a copy of a
rental or lease agreement in her own name; (7) provide DCS with a copy of a valid
driver's license, proof of car insurance, and registration or a transportation plan; (8) pay
child support as ordered; (9) submit to random drug screens; (10) if applicable, ensure
that the Children are supervised by a sober appropriate adult; (11) not associate with
persons who use or are known to use or abuse illegal substances or prescription
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medications; (12) attend and complete an alcohol and drug assessment and follow all
recommendations; and (13) sign all releases for DCS. Mother reviewed and signed the
statement of responsibilities on April 25, 2017. Mother also reviewed and signed the
Criteria and Procedures for Termination of Parental Rights on that date. The permanency
plan was updated in March 2018, and Mother reviewed and signed the corresponding
statement of responsibilities on April 4, 2018. Mother’s responsibilities under the revised
plan remained the same.
In April 2017, when the Children were taken into State custody, Mother did not
have a place to live. She had not had permanent housing since approximately 2013,
when she was evicted from her rental house due to her use of illegal drugs. From the
record, Mother has struggled with drug addiction throughout these Children’s lives, and
her primary drug of choice is methamphetamine.
In August 2017, the Children were placed together in a pre-adoptive foster home
with Mr. and Mrs. S., and their son, who was then approximately five years old. Both
foster parents are employed. T.L.H. is going to school and doing very well. S.L.K.R.
goes to preschool three days per week. Because they are close in age, the Children
"mostly do everything together," including playing video games, building Legos and
drawing. The Children are bonded with their foster family.
From February 2016 until May 2019, Mother has been in and out of jail more than
sixteen times on charges of aggravated burglary, drug possession, aggravated assaults,
theft, failure to appear, and probation violations. Largely due to her frequent
incarcerations, Mother has been unable to maintain steady employment and has only
worked “in between jobs” when she was not in jail. Mother has never paid child support
for either child.
The record shows that since August 2017, Mother has visited with the Children
only a few times. The last time Mother saw the Children was in October 2017, when she
visited with them for approximately 50 to 90 minutes at a McDonald’s restaurant play
area. Thereafter, Mother canceled an arranged visit with the Children. After October
2017 (with the exception of one 2:00 a.m. phone call to the foster family, where she did
not leave a message), Mother has made no attempt to contact the foster family or FSW
Walker again, even though she had their contact information.
On October 1, 2018, DCS filed a petitioned to terminate Mother’s parental rights
in the Circuit Court of Bradley County (“trial court”). DCS alleged grounds of
abandonment by an incarcerated parent by failure to visit and wanton disregard; (2)
failure to substantially comply with the requirements of the permanency plan; and (3)
failure to manifest an ability and willingness to assume custody. The trial court
appointed counsel for Mother and a guardian ad litem for each child.
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The trial court heard DCS’s petition on May 1, 2019. At the time of trial, Mother
was incarcerated in the Polk County Jail on aggravated burglary charges and had been
incarcerated since April 2018 — approximately six months prior to the date the petition
was filed. During the trial, Mother testified that she was going to be released to a halfway
house in June 2019, and that she would be held there for one year. Mother testified that
after her release from jail, she hoped to find employment and housing, and to begin
working toward complying with the permanency plan. She also testified that she would
visit with the children “as much as possible, as much as DCS will allow because they'll
help with transportation and stuff like that.” Mother testified that she completed a 12-
step program and obtained her GED while she was incarcerated. At the end of trial,
“proof was left open for the parties to provide the court with proposed findings of fact
and conclusions of law, as well as other evidence concerning [Mother’s] release from jail
and her halfway house particulars.” Mother was released to a halfway house in June
2019; however, she was arrested again on September 21, 2019 on aggravated assault and
probation violation charges. Two weeks later, on October 8, 2019, the trial court entered
an order terminating her parental rights on the grounds asserted by DCS in its petition
and on the trial court’s finding that termination of Mother’s parental rights is in the
Children’s best interests. Mother appeals.
II. Issues
We state the dispositive issues as follows:
1. Whether there is clear and convincing evidence to support at least one of the
grounds relied upon by the trial court to terminate Appellant’s parental rights.
2. If so, whether termination of Appellant’s parental rights is in the Children’s best
interests.
III. Standard of Review
The Tennessee Supreme Court has previously explained that:
A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect
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minors....’ Tennessee law, thus, upholds the [S]tate’s authority as parens
patriae when interference with parenting is necessary to prevent serious
harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657
S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455
U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E.,
303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute which identifies
“‘situations in which that 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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. §
36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1) the
existence of one of the statutory grounds; and (2) that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interest by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); 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 the correctness of the conclusions
drawn from evidence[,]” and “produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the facts sought to be established.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004).
In termination of parental rights cases, appellate courts review a trial court’s
factual findings de novo and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483
S.W.3d at 523-24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007)). The Tennessee Supreme Court has explained that:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at 393
(quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all
other questions of law in parental termination appeals, as in other appeals,
are reviewed de novo with no presumption of correctness. In re Angela E.,
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303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d at 524.
Furthermore, if the “resolution of an issue in a case depends upon the truthfulness
of witnesses, the trial judge, who has had the opportunity to observe the witnesses and
their manner and demeanor while testifying, is in a far better position than this Court to
decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. App. 2016)
(citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). Therefore, this Court “gives
great weight to the credibility accorded to a particular witness by the trial court.” In re
Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn. Ct.
App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
V. Grounds for Termination of Parental Rights
Although only one ground must be proven by clear and convincing evidence in
order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this
Court to review every ground relied upon by the trial court to terminate parental rights in
order to prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251
n. 14 (Tenn. 2010). Accordingly, we will review all of the grounds relied upon by the
trial court in terminating Mother’s parental rights.
A. Abandonment by an Incarcerated Parent
Tennessee Code Annotated section 36-1-113(g) provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and nonexclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred . . .
Tenn. Code Ann. § 36-1-113(g)(1). As discussed above, Mother was incarcerated at the
time DCS filed its petition to terminate her parental rights. As it relates to incarcerated
parents, Tennessee Code Annotated section 36-1-102 defines “abandonment,” in relevant
part, as follows:
(iv) A parent or guardian is incarcerated at the time of the filing of a
proceeding, pleading, petition, or amended petition to terminate the parental
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rights of the parent or guardian of the child who is the subject of the
petition for termination of parental rights or adoption, or a parent or
guardian has been incarcerated during all or part of the four (4) consecutive
months immediately preceding the filing of the action and has:
(a) Failed to visit, has failed to support, or has failed to make reasonable
payments toward the support of the child for four (4) consecutive months
immediately preceding the parent’s or guardian’s incarceration;
(b) Failed to visit, has failed to support, or has failed to make reasonable
payments toward the support of the child during an aggregation of the first
one hundred twenty (120) days of non-incarceration immediately preceding
the filing of the action; or
(c) Has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child; or
***
(C) For purposes of this subdivision (1), “token visitation” means that the
visitation, under the circumstances of the individual case, constitutes
nothing more than perfunctory visitation or visitation of such an infrequent
nature or of such short duration as to merely establish minimal or
insubstantial contact with the child is not a defense to failure to support if
no payments were made during the relevant four-month period;
***
(E) For purposes of this subdivision (1), “failed to visit” means the failure,
for a period of four (4) consecutive months, to visit or engage in more than
token visitation. That the parent had only the means or ability to make very
occasional visits is not a defense to failure to visit if no visits were made
during the relevant four-month period;
(F) Abandonment may not be repented of by resuming visitation or support
subsequent to the filing of any petition seeking to terminate parental or
guardianship rights or seeking the adoption of a child;
Tenn. Code Ann. § 36-1-102(1)(A)(iv).
In its order terminating her parental rights, the trial court found that Mother
abandoned the Children both by failure to visit in the four month preceding her
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incarceration, and by demonstrating a wanton disregard for the Children’s welfare, to-
wit:
The court finds that the Department of Children’s Services has
proven by clear and convincing evidence that [Mother] has abandoned her
children as an incarcerated parent, pursuant to T.C.A. §§ 36-1-113(g)(1)
and 36-1-102(1)(A)(iv),-102 (1)(C) and -102(1)(E).
The court finds that [Mother] was incarcerated during all or the
greater part of the four (4) months immediately preceding the filing of this
petition. The court finds that prior to [Mother’s] incarceration, she had only
token visits and she engaged in conduct that the court finds shows a wanton
disregard for her children’s welfare.
The court finds that the Department of Children’s Services filed this
petition to terminate [Mother’s] parental rights on October 1, 2018. The
court finds that in the four months preceding the filing of the State’s
petition, [Mother] was incarcerated. The court finds that prior to that
incarceration, [Mother] willfully failed to visit the children, last having
visited one time in October of 2017, and even then for a period of less than
one hour at a playground at a McDonald’s restaurant. The court finds that
[Mother] has demonstrated a wanton disregard for the children’s welfare by
repeatedly incurring numerous criminal charges and by continued illegal
drug use, including but not limited to Methamphetamine and Marijuana.
Prior to 2018, the statutory definition of abandonment placed the burden of proof
on the petitioner to show that the parent’s failure to visit or failure to support was
“willful.” However, in 2018, the General Assembly amended the statute to shift the
burden of proof to the parent or guardian to show that his or her failure to support or visit
was not willful. For cases filed on or after July 1, 2018, Tennessee Code Annotated
section 36-1-102(1)(I) now provides that:
For purposes of this subdivision (1), it shall be a defense to abandonment
for failure to visit or failure to support that a parent or guardian’s failure to
visit or support was not willful. The parent or guardian shall bear the
burden of proof that the failure to visit or support was not willful. Such
defense must be established by a preponderance of evidence. The absence
of willfulness is an affirmative defense pursuant to Rule 8.03 of the
Tennessee Rules of Civil Procedure
Tenn. Code Ann. § 36-1-102(1)(I). Here, DCS filed its petition on October 1, 2018;
accordingly, Mother has the burden to show that her failure to visit the Children was not
willful.
Concerning the concept of willfulness in the context of abandonment for purposes
of termination of parental rights, this Court has stated:
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In the statutes governing the termination of parental rights, “willfulness”
does not require the same standard of culpability as is required by the penal
code. Nor does it require malevolence or ill will. Willful conduct consists
of acts or failures to act that are intentional or voluntary rather than
accidental or inadvertent. Conduct is “willful” if it is the product of free
will rather than coercion. Thus, a person acts “willfully” if he or she is a
free agent, knows what he or she is doing, and intends to do what he or she
is doing. . . .
The willfulness of particular conduct depends upon the actor’s intent.
Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
peer into a person’s mind to assess intentions or motivations. Accordingly,
triers-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct.
In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. Aug. 25, 2005) (internal
citations and footnotes omitted). “Whether a parent failed to visit or support a child is a
question of fact. Whether a parent’s failure to visit or support constitutes willful
abandonment . . . is a question of law.” In re Adoption of Angela E., 402 S.W.3d 636,
640 (Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810
(Tenn. 2007)). As previously discussed, this Court reviews questions of law de novo
with no presumption of correctness. Id.
Mother readily testified that she has not visited the Children since October 2017,
when she spent approximately 90 minutes with them at a McDonald’s playground. As
noted above, after October 2017, Mother made no attempts (with the exception of a 2:00
a.m. phone call) to contact the foster parents. When questioned as to why she had not
visited the Children, Mother testified:
Well, the last visit that I – I ended up going to jail and then when I got out
of jail I didn't have a ride anymore because they impounded my car. And so
I didn't have any way. And I had made a visit and then I wasn't able to go to
it and I texted the foster mom and told her and then after that -- And I was
pregnant too at the time, you know, so I was trying to I guess not -- I didn't
want anybody to know I was pregnant because I was worried that the State
was going to take the baby.
Q. Because you were using?
A. Yeah.
By her own admission, Mother made the unilateral decision to forego any visitation with
the Children based on her fear that her third child would also be removed from her
custody due to the fact that she continued to use illegal drugs while the child was in
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utero.3 Based on her testimony, Mother clearly failed to engage in more than token
visitation with the Children and clearly failed to meet her burden to show that her failure
to do so was not willful. Accordingly, we affirm the trial court’s termination of her
parental rights on the ground of abandonment by an incarcerated parent by failure to visit.
In addition to the ground of abandonment by an incarcerated parent by failure to
visit, the trial court also found that Mother abandoned the Children by wanton disregard.
Tenn. Code Ann. § 36-1-102(1)(A)(iv). We note that courts are not limited to the four-
month period preceding a parent’s incarceration to determine whether the parent has
engaged in conduct evidencing a wanton disregard for his or her children's welfare. In re
F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077, at *3 (Tenn. Ct. App. Apr.
11, 2016); see also Dep’t of Children's Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct.
App. 2009) (“parental conduct exhibiting wanton disregard for a child’s welfare may
occur at any time prior to incarceration and is not limited to acts occurring during the
four-month period immediately preceding the parent's incarceration”). However,
incarceration itself is not grounds for the termination of a parent’s rights, but courts
consider the incarceration 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.” In re Audrey S., 182 S.W.3d at
866.
As set out above, the statute does not define “wanton disregard.” In re H.A.L.,
No. M2005-00045-COA-R3-PT, 2005 WL 954866, at *6 (Tenn. Ct. App. Apr. 25,
2005). Nonetheless, Tennessee courts have held that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
867-68. “Our courts have consistently held that an incarcerated parent who has multiple
drug offenses and wastes the opportunity to rehabilitate themselves by continuing to
abuse drugs, resulting in revocation of their parole and reincarceration, constitutes
abandonment of the child, and demonstrates a wanton disregard for the welfare of the
child.” Dep't of Children's Servs. v. J.M.F., No. E2003-03081-COA-R3-PT, 2005 WL
94465, at *7 (Tenn. Ct. App. Jan. 11, 2005) (citing In re C.T.S., 156 S.W.3d 18, 25
(Tenn. Ct. App. 2004); Dep't of Children's Servs. v. J.S., No. M2000-03212-COA-R3-
JV, 2001 WL 1285894, at *3 (Tenn. Ct. App. Oct. 25, 2001); In re C.W.W., 37 S.W.3d
467, 473 (Tenn. Ct. App. 2000). Indeed, the enactment of Tenn. Code Ann. § 36-1-
102(1)(A)(iv), supra, reflects the General Assembly’s recognition that “parental
incarceration is a strong indicator that there may be problems in the home that threaten
the welfare of the child” and that “[i]ncarceration severely compromises a parent’s ability
3
Mother’s third child was, in fact, removed from her custody and placed with a family member.
This child is not the subject of the instant appeal.
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to perform his or her parental duties.” In re Audrey S., 182 S.W.3d at 866. “The actions
that our courts have commonly found to constitute wanton disregard reflect a ‘me first’
attitude involving the intentional performance of illegal or unreasonable acts and
indifference to the consequences of the actions for the child.” In re Anthony R., No.
M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015).
Here, the record is replete with evidence of Mother’s poor decision making. Since
2016, she has been in and out of jail for charges ranging from joyriding and simple
possession to aggravated burglary and aggravated assault. From the record, Mother has
failed entirely to place the Children’s needs before her own. Despite her numerous
incarcerations, Mother failed to take the steps necessary to address her drug use and stop
her criminal activities. Trial Exhibit 2 is a collection of Mother’s arrest and incarceration
records. It shows that, at times, Mother was not out of jail for a whole day before she
committed another crime, which resulted in more incarceration. Moreover, despite the
fact that she was released from jail and transferred to a halfway house in June 2019 —
and thus provided with an opportunity to rehabilitate herself — Mother was arrested
again in September 2019 on aggravated assault and probation violation charges. It does
not escape this Court’s notice that the September 2019 arrest took place after the trial but
during the period when proof was left open in an effort to allow Mother time to submit
additional evidence regarding her release from jail and her residency at a halfway house.
Mother’s long list of crimes and incarcerations clearly demonstrates a wanton disregard
for the welfare of the Children in that Mother’s incarcerations have “severely
compromise[d] [her] ability to perform . . . her parental duties.” In re Audrey S., 182
S.W.3d at 866. From the totality of the circumstances, there is clear and convincing
evidence to support the trial court’s termination of Mother’s parental rights on the ground
of abandonment by an incarcerated parent by wanton disregard for the Children’s
welfare.
B. Failure to Substantially Comply with the Requirement of the Permanency Plan
The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of failure to substantially comply with the
requirements of the permanency plan. Tennessee Code Annotated Section 36-1-
113(g)(2) provides that a parent’s rights may be terminated when “[t]here has been
substantial noncompliance by the parent . . . with the statement of responsibilities in a
permanency plan.”
“[T]he permanency plans are not simply a series of hoops for the biological parent
to jump through in order to have custody of the children returned.” In re C.S., Jr., et al.,
No. M2005-02499-COA-R3-PT, 2006 WL 2644371, at *10 (Tenn. Ct. App. Sept. 14,
2006). Rather,
the requirements of the permanency plan are intended to address the
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problems that led to removal; they are meant to place the parent in a
position to provide the children with a safe, stable home and consistent
appropriate care. This requires the parent to put in real effort to complete
the requirements of the plan in a meaningful way in order to place herself in
a position to take responsibility for the children.
Id. As discussed by this Court in In re M.J.B., 140 S.W.3d 643 (Tenn. Ct. App. 2004):
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and
tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
113(g)(2), the Department must demonstrate first that the requirements of
the permanency plan are reasonable and related to remedying the conditions
that caused the child to be removed from the parent’s custody in the first
place, In re Valentine, 79 S.W.3d 539, 547 (Tenn. 2002); In re L.J.C., 124
S.W.3d 609, 621 (Tenn. Ct. App. 2003), and second 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. In re
Valentine, 79 S.W.3d at 548-49; In re Z.J.S., No. M2002-02235-COA-R3-
JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003). Trivial,
minor, or technical deviations from a permanency plan’s requirements will
not be deemed to amount to substantial noncompliance. In re Valentine,
79 S.W.3d at 548.
Id. at 656-57. The Tennessee Supreme Court has explained that
[s]ubstantial noncompliance is not defined in the termination statute. The
statute is clear, however, that noncompliance is not enough to justify
termination of parental rights; the noncompliance must be substantial.
Black’s Law Dictionary defines “substantial” as “[o]f real worth and
importance.” Black’s Law Dictionary 1428 (6th ed. 1990). In the context
of the requirements of a permanency plan, the real worth and importance of
noncompliance should be measured by both the degree of noncompliance
and the weight assigned to that requirement.
In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002).
As discussed above, Mother’s requirements under the permanency plans were to:
(1) attend parenting classes and submit a certificate of completion; (2) attend child and
family team meetings and court hearings; (3) maintain contact with the family service
worker and notify her of any change in circumstance within 24 hours; (4) maintain
residential stability for a minimum of six months; (5) provide DCS with proof of legal
and verifiable income or proof of disability; (6) provide DCS with a copy of a rental or
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lease agreement in her own name; (7) provide DCS with a copy of a valid driver’s
license, proof of car insurance, and registration or a transportation plan; (8) pay child
support as ordered; (9) submit to random drug screens; (10) if applicable, ensure that the
Children are supervised by a sober appropriate adult; (11) not associate with persons who
use or are known to use or abuse illegal substances or prescription medications; (12)
attend and complete an alcohol and drug assessment and follow all recommendations;
and (13) sign all releases for DCS.
Concerning Mother’s failure to substantially comply with the foregoing
requirements, in its order terminating her parental rights, the trial court found
that [Mother] testified that she had completed a 12 step program while she
was incarcerated. However, prior to her incarceration, and during periods
of other incarceration, the court finds that [Mother] failed to comply with
any of the permanency plan requirements, including even minimal steps,
such as maintaining contact with the Department. The court finds that
[Mother] continued to use illegal drugs and to associate with drug users
and/or individuals involved in illegal activities.
The court finds that [Mother] has failed to maintain employment,
either immediately prior to her incarceration, or really at any time during
the last 6 years. While the court acknowledges that [Mother] did complete
an alcohol and drug assessment prior to incarceration, the court finds that
[she] failed to follow through with the recommendations of the alcohol and
drug assessment. The court finds that [Mother’s] drug abuse is a major
concern and barrier to reunification, along with her failure to maintain
housing or income stability due to her being repeatedly incarcerated due to
her criminal activities. These were statements on the permanency plan that
were concerns then, and remain concerns now.
The record supports the trial court’s findings. Although Mother testified that she
attended a twelve-step program while incarcerated, there is no proof that she has been
able to maintain sobriety for any length of time. Because Mother’s drug use and
accompanying criminal activity are of paramount concern to the safety and welfare of
these Children, the lack of proof that Mother has been able to remain sober and arrest free
is sufficient proof of her failure to substantially comply with the requirements of the
permanency plan, which are reasonable and directly related to addressing the reasons for
the Children’s removal from Mother’s custody. In addition to her failure to address the
most pressing issues, Mother also failed to address other requirements such as
employment and housing. Her inability to satisfy these requirements is due to her
continued drug use and engagement in criminal activity. Mother has failed to avail
herself of the resources available to her through DCS and other entities, and she has
failed to make any significant changes to her lifestyle despite numerous incarcerations.
For these reasons, there is clear and convincing evidence to support the trial court’s
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termination of Mother’s parental rights on the ground of failure to substantially comply
with the requirements of the permanency plan.
C. Failure to Manifest an Ability and Willingness to
Assume Custody or Financial Responsibility
Tennessee Code Annotated section 36-1-113(g)(14) provides a ground for
termination of a parent’s parental rights when he or she
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.
Tenn. Code Ann. § 36-1-113(g)(14). This ground for termination of parental rights was
added to the statute effective July 1, 2016. See 2016 Tenn. Pub. Acts, c. 919, § 20.
Concerning the substantive requirements to meet the burden of proof, in In re Maya R.,
No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018),
we explained that, first, the petitioner must prove that the parent has failed to manifest
“an ability and willingness to personally assume legal and physical custody or financial
responsibility of the child.” Tenn. Code Ann. § 36-1-113(g)(14). Second, the petitioner
must prove that placing the child in the parent’s custody “would pose a risk of substantial
harm to the physical or psychological welfare of the child.” Id.
Concerning the first prong, i.e., whether the parent has failed to manifest an ability
and willingness to personally assume custody and financial responsibility of the Child,
there has been some disagreement in this Court regarding the measure of proof required
to satisfy this burden. 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 held:
As to the first prong [of Tennessee Code Annotated Section 36-1-
113(g)(14)], the statute requires the party seeking termination to prove a
negative: that the parent failed to manifest an ability and willingness to
personally assume legal and physical custody or financial responsibility of
the child. Here, despite finding that the parents “ha[d not] failed to
manifest a willingness to assume custody” and that the “parents want these
children,” the juvenile court concluded DCS proved by clear and
convincing evidence this ground against both parents. The court based its
conclusion on the finding that the parents “d[id not] have the ability” to
personally assume custody of the children.
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In general, “statutory phrases separated by the word ‘and’ are
usually to be interpreted in the conjunctive.” Stewart v. State, 33 S.W.3d
785, 792 (Tenn. 2000). In the context of a “negative proof” connected by
the word “and,” a party “must prove that . . . all” of the listed items were
not met. Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 120 (2012).
At oral argument, DCS urged that we interpret the word “and” in the
disjunctive so that it only had to prove an inability or unwillingness of the
parents to assume custody of the children. Our supreme court has
“recognized that the word ‘and’ can also be construed in the disjunctive
where such a construction is necessary to further the intent of the
legislature.” Stewart v. State, 33 S.W.3d at 792. But because “we
generally presume that the General Assembly purposefully chooses the
words used in statutory language,” id.; cf. Scalia & Garner, supra, at 116
(“Under the conjunctive/disjunctive canon, and combines items while or
creates alternatives.”), and the presumption has not been rebutted, we
decline to adopt DCS’s interpretation here.
We conclude that Tennessee Code Annotated § 36-1-113(g)(14)
could not serve as a basis for terminating Mother’s and Father’s parental
rights. The proof at trial negated a required element of the statutory
ground. The juvenile court found: “In this case, these parents definitely
want to assume legal and physical custody of the children and are willing to
assume financial responsibility for the children.”
However, in the subsequent case of In re Amynn K., No. E2017-01866-COA-R3-
PT, 2018 WL 3058280 (Tenn. Ct. App. June 20, 2018), a panel of this Court parsed the
conjunctive (as opposed to disjunctive) language used in Tennessee Code Annotated
section 36-1-113(g)(14) and compared the statutory language to other similar statutes
before holding that
[u]pon consideration of the statutory language and the relevant legal
authority, we hold that the first prong of Tennessee Code Annotated § 36-1-
113(g)(14) requires that the petitioner prove that a parent has failed to meet
the requirement of manifesting both a willingness and an ability to assume
legal and physical custody of the child or has failed to meet the requirement
of manifesting both a willingness and an ability to assume financial
responsibility of the child.
Id. at *14. This dispute continues in cases where a parent manifests a willingness to
assume custody and financial responsibility but is simply unable to do so; however, this
is not such a case. In cases, such as the one at bar, where the parent has manifested
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neither a willingness nor an ability to assume custody and responsibility, this Court has
upheld termination of the parent’s parental rights on this ground. See, e.g., In re J’Khari
F., No. M2018-00708-COA-R3-PT, 2019 WL 411538, at *15 (Tenn. Ct. App. Jan. 31,
2019) (noting both In re Ayden S. and In re Amynn K. but ultimately concluding that
DCS presented sufficient evidence that “Mother was not able or willing to assume
physical or legal custody of or financial responsibility for the Child”); In re Colton B.,
No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *9-10 (Tenn. Ct. App. Oct. 29,
2018) perm. app. denied (Tenn. Jan. 22, 2019) (noting the split in authority but holding
that it was unnecessary to choose one approach where the parent had manifested neither
an ability nor a willingness to parent the child).
Turning to the second prong of Tennessee Code Annotated section 36-1-
113(g)(14), i.e., whether placing the child in the parent’s custody “would pose a risk of
substantial harm to the physical or psychological welfare of the child,” this Court has
explained:
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.
In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct.
App. Oct. 11, 2018) (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).
Here, the trial court found that Mother failed to manifest, by act or omission, an
ability and willingness to personally assume legal and physical custody or financial
responsibility of the Children and that placing the Children in her legal and physical
custody would pose a risk of substantial harm to them, to-wit:
The court finds that the Department has proven by clear and
convincing evidence that the [Mother] failed to assume custody or financial
responsibility of both children, pursuant to T.C.A. §§ 36-1-113(g)(14).
The court finds that [Mother] failed to meet the requirements of
manifesting both a willingness and an ability to assume legal and physical
custody of both children, and that she has failed to manifest both a
willingness and an ability to assume financial responsibility for either child.
(See In re Amynn K., No. E2017-01866-COA-R3-PT, page 21 (Tenn.
App., 2018) []). The court finds that placing either of the children in
[Mother’s] legal and/or physical custody would pose a risk of substantial
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harm to the physical and the psychological and emotional welfare of both
children. (See Id.)
While the court acknowledges [Mother’s] testimony that she is
willing to attempt to regain custody of the children, the court is very
mindful of the fact that [Mother] has never followed through with taking
care of the younger child for most of the entirety of the younger child’s life,
nor has she followed through with taking care of or seeing to the needs of
her older child for more than half of that child’s life.
Furthermore, the court finds that [Mother] has no proof or
knowledge of whether or not she will remain in custody and/or in a halfway
house for one year or more than one year. Furthermore, the court finds
that, given [Mother’s] ongoing incarceration from 2016 through the present
date, and given her ongoing illegal drug use and other illegal activities
when she has not been incarcerated, the court finds that it cannot and will
not expose these children to the dangers of [Mother’s] lifestyle that exists
now and prior to her incarceration. The court finds that [Mother] has
simply failed to demonstrate an ability or a willingness to assume custody
of either of these children. The court further finds that [Mother] has failed
to complete a drug treatment program, although she was given every
opportunity to do so by the Department. The court finds that [Mother’s]
lifestyle and ongoing incarceration has severely impacted her ability to
maintain residential and financial stability. Furthermore, the court finds
that [Mother] has not had stable housing for more than 6 years, nor has she
maintained consistent employment for more than 6 years. The court finds
that [Mother’s] life has been a life of instability, illegal activity, and illegal
drug use, for more than 6 years prior to the entry of this order. The court
finds that placing either of these children in her care is (a) impossible at this
point, but (b) the court finds that placing either child in her custody would
pose a very serious and substantial risk of physical, psychological and
emotional harm to the children. The court finds, given [Mother’s] prior
consistent lifestyle, that the court can be no more assured of the children's
welfare in her custody today than it was prior to 2016. The court finds
[Mother’s] lifestyle has been consistently inconsistent as it relates to jobs,
housing, drug use, illegal activity, and any form of stability.
For many of the reasons discussed above, there is clear and convincing evidence
that Mother has failed to manifest either a willingness or ability to assume legal and
physical custody of or financial responsibility for the Children and that placing the
Children in her legal and physical custody would pose a risk of substantial harm to them.
Between February 2016 and May 2019, Mother has been arrested and incarcerated more
than sixteen times. T.L.H., who was eight years old when DCS filed its petition, has not
lived with Mother, or really seen her, since he was three years old. S.L.K.R., who was
four at the time of the hearing on DCS’s petition, has not lived with Mother since 2015,
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when he was two months old. Mother testified that she left the children with their
grandmothers because she “didn't have anywhere to live” and was not “stable at that
point in time. . .” because she “was trying to figure out how to quit using, and . . . work a
permanency plan.” Yet, during the entire time her Children were living with others,
Mother continued to use drugs and to incur multiple arrests. In this regard, Mother’s
actions speak louder than her testimony. At trial, Mother stated that, when she was
released to a halfway house she would visit with the Children “as much as possible, as
much as DCS will allow because they’ll help with transportation and stuff like that.”
However, when she was, in fact, released from jail to the halfway house, she made no
efforts to see the Children. Rather, she engaged in criminal activity that resulted in
further incarceration. Accordingly, we conclude that there is clear and convincing
evidence that Mother has failed to manifest either a willingness or ability to assume
custody of these Children.
Furthermore, as to the second prong of this ground, given the fact that Mother has
failed to make any significant changes to her lifestyle, it is clear that placing the Children
in her legal and physical custody would pose a risk of substantial harm to them. Mother
is unable to support the Children because she is unable to maintain stable employment.
At the time of the hearing, she did not have stable housing and had shown no ability to
procure housing. Even after the hearing, Mother engaged in criminal activity that
resulted in further incarceration. For these reasons, we affirm the trial court’s termination
of Mother’s parental rights on this ground.
VI. Best Interests
When at least one ground for termination of parental rights has been established,
the petitioner must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). As the Tennessee Supreme Court recently explained:
Facts considered in the best interest 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
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
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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 Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. As is
relevant to this appeal, these factors include, but are 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 made such an adjustment after
reasonable efforts by available social services agencies for such duration of
time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has 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;
***
(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 . . . .
Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. Aug. 11, 2005),
perm. app. denied (Tenn. Nov. 21, 2005). Depending on the circumstances of an
individual case, the consideration of a single factor or other facts outside the enumerated,
statutory factors may dictate the outcome of the best interest analysis. In re Audrey S.,
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182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on
the unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.
White v. Moody, 171 S.W.3d at 194.
In its order terminating her parental rights, the trial court considered the foregoing
statutory factors in finding:
The court finds that the best interest factors shown in numbers 1-4 and 6-9 .
. . all weigh heavily in favor of termination with regard to [Mother]. The
court finds that [she] has [not] made any change or adjustment, despite the
reasonable efforts (including case management and visitation) by the
Department, to [her] circumstances. The court finds that [Mother] has [not]
maintained any contact with [the] children. The court finds that [Mother]
last saw the children in October of 2017. The court finds that [Mother] has
little to no bond with the younger child, and the court finds has very little
bond if any with the older child. The court finds that [Mother] has not
completed a drug treatment program, nor has she demonstrated any
measure of any real stability that gives this court any evidence that her
physical environment would be safe for these children to return to her now
or anytime in the near future. The court finds that [Mother] is currently
unable to assume custody, and will continue to be unable to assume
custody, for the immediate future, and for a period of time that she cannot
determine, nor does the court have any way of determining, based upon the
proof before the court. The court finds that [Mother] has presented no
evidence to the court that she will have suitable, stable housing at any time,
in the immediate future, suitable for these children.
For the reasons discussed in detail above, the record clearly and convincingly
supports the trial court’s finding that termination of Mother’s parental rights is in the
Children’s best interests. Among other things, Mother has failed to support the Children
and has failed to provide suitable housing. She continues to use illegal drugs and
continues to engage in criminal activity. In short, despite numerous opportunities and
reasonable efforts on the part of DCS, Mother has failed to make such an adjustment of
circumstance, conduct, or conditions so as to make it safe and in the Children’s best
interests to be in her custody at any early date.
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Meanwhile, the evidence shows that the Children have thrived in the care of their
foster family. They consider the foster parents to be their parents and consider the foster
parents’ biological son to be their brother. The Children’s needs are more than met in
their current environment. To remove the Children from the only stable home they have
known would likely cause them great distress.
VII. Conclusion
For the foregoing reasons, we affirm the order of the trial court terminating
Appellant’s parental rights to the two minor Children. The case is remanded for such
further proceedings as may be necessary and are consistent with this opinion. Costs of
the appeal are assessed to the Appellant, Erika R. Because Erika R. is proceeding in
forma pauperis in this appeal, execution for costs may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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