In Re Yancy N. ( 2022 )

12/29/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 8, 2022 Session
IN RE YANCY N.
Appeal from the Juvenile Court for Coffee County
No. 2020-JV-276 John P. Damron, Judge
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No. M2021-00574-COA-R3-PT
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A father appeals the termination of his parental rights to one of his children. The juvenile
court concluded that there was clear and convincing evidence of seven statutory grounds
for termination. The court also concluded that there was clear and convincing evidence
that termination was in the child’s best interest. After a thorough review, we agree and
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Peter Trenchi, III, Sewanee, Tennessee, for the appellant, Scot N.
Herbert H. Slatery III, Attorney General and Reporter, and Courtney J. Mohan, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
Jean M. Brock, McMinnville, Tennessee, Guardian ad Litem.
OPINION
I.
A.
After Yancy N.’s birth in November 2014, the Tennessee Department of Children’s
Services received referrals claiming the child was at risk. But it was another fifteen months
before DCS petitioned the juvenile court for temporary custody and to adjudicate the child
dependent and neglected. DCS found the child in the home of his paternal grandparents.
His parents, Scot N. (“Father”) and Amanda H. (“Mother”), lived in a camper on the
property. Father consented to a drug screen and tested positive for benzodiazepines,
methamphetamine, opiates, and tetrahydrocannabinol (“THC”). He denied using drugs in
the past two months. And he suggested that Mother was “sneaky” and may have put drugs
in his food. Father claimed that he had been to rehab twice in the last year and had reduced
his alcohol consumption from a gallon of whiskey a day to forty ounces of beer a day.
Mother was not present when the child was removed. Father explained that she left
the home because he refused to buy her drugs. He also claimed that Mother had used drugs
the night before. DCS interviewed Mother the next day. She acknowledged an altercation
with Father. And her drug screen was positive for methamphetamine and showed traces
of amphetamine and THC. Like Father, she denied using methamphetamine, but she
suggested that Father could have spiked her food with drugs.
Neither Father nor Mother appeared for the adjudicatory hearing on DCS’s petition.
After the hearing, the court concluded there was clear and convincing evidence that the
child was dependent and neglected. And the court ordered the child to remain in the
temporary custody of DCS. DCS placed Yancy with a foster family.
Thereafter, DCS worked with the parents to complete the requirements of a family
permanency plan. The plan’s goals were to either return Yancy to a parent or to place the
child with a relative.
Over a year and a half after the child’s removal, the court entered a final order
returning custody of Yancy to Mother. By that point, Mother and Father were no longer
together. In its order, the court found that Mother had successfully completed a ninety-day
trial home placement and had substantially complied with the terms of the permanency
plan. As for Father, the court ordered that he have no visitation with the child due to his
lack of compliance with the permanency plan’s obligations.
In 2019, less than two years after Mother regained custody, DCS filed a second
dependency and neglect petition. Mother had resumed her drug use, and Father was
dealing with mental health issues. Father would later testify that he was also using
methamphetamine daily during that period. The parents again failed to appear at the
adjudicatory hearing, and the court found that Yancy was once again dependent and
neglected.
DCS placed Yancy with an aunt and uncle but was soon forced to move him, in part
due to harassment by Father. DCS then placed the child with the same foster family who
cared for him following the first removal.
In November 2019, the court ratified a new family permanency plan. The
responsibilities for Father under the new plan largely mirrored those of the first plan.
Again, Father failed to make meaningful progress on the plan’s requirements. He also
2
found himself in frequent legal trouble. Father was incarcerated from November 5 to
December 19, 2019; February 5 to April 22, 2020; and July 27, 2020 to March 1, 2021.
B.
On August 6, 2020, DCS petitioned the juvenile court to terminate Mother’s and
Father’s parental rights. As to Father, DCS alleged seven statutory grounds for
termination: abandonment by failure to visit; abandonment by failure to support;
abandonment by wanton disregard; abandonment by failure to provide a suitable home;
substantial non-compliance with the permanency plan; persistent conditions; and failure to
manifest an ability and willingness to assume custody. See Tenn. Code. Ann. § 36-1-
113(g) (Supp. 2020).
The court heard testimony about DCS’s efforts to return Yancy to his parents. The
child’s current Family Service Worker (“FSW”) told the court that Father had done little
to comply with the most recent permanency plan. She explained that Father was difficult
to reach when not incarcerated, continued to test positive for illegal drugs, and did not have
steady employment. When not incarcerated, Father did complete an assessment for entry
into family treatment court but was ultimately unable to enroll due to an outstanding
warrant and ensuing incarceration. He never followed up with the program after that.
Father’s residence was also deemed inappropriate by DCS. Father lived at the same
address as his parents. At one point, he was living in a detached garage rather than inside
the home. According to Father, he did so only because Mother hated Father’s mother.
Father claimed that he was now living inside the home. Father’s parents were both elderly
and dealing with health issues.
In his testimony, Father acknowledged his past failings but attributed most of them
to his relationship with Mother. While admitting to mental health and substance abuse
issues, he insisted he was willing and able to care for Yancy if given some time to “get
back on [his] feet first.” He needed time because he did not have a job, transportation, or
a driver’s license. He was released from jail only eleven days before the start of the trial.
Father told the court that he and the child shared a bond and enjoyed activities like
cooking together, tearing apart and repairing various items, and spending time outdoors.
When asked how the two could engage in such activities when Father was not permitted
visitation following the first removal, Father asserted his Fifth Amendment right against
self-incrimination.
The juvenile court terminated the parental rights of both Father and Mother. As to
Father, it concluded there was clear and convincing evidence of all seven grounds for
termination. It also concluded that the evidence was clear and convincing that termination
of Father’s parental rights was in the best interest of Yancy.
3
II.
A parent has a fundamental right, based in both the federal and state constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547
(Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at 250.
The government’s interest in the welfare of a child justifies interference with a parent’s
constitutional rights in certain circumstances. See Tenn. Code Ann. § 36-1-113(g).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
Parties seeking termination of parental rights must first prove the existence of at least one
of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1) (Supp. 2020). If one or more statutory grounds
for termination are shown, they then must prove that terminating parental rights is in the
child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,
215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). This heightened burden of proof serves “to minimize the possibility of erroneous
decisions that result in an unwarranted termination of or interference with these
rights.” Id. “Clear and convincing evidence” leaves “no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the fact-
finder’s mind regarding the truth of the facts sought to be established. In re Bernard T.,
319 S.W.3d at 596.
We review the trial court’s findings of fact “de novo on the record, with a
presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); TENN. R. APP. P. 13(d).
We then “make [our] own determination regarding whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, provide clear and
convincing evidence that supports all the elements of the termination
claim.” In re Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions
of law de novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439
(Tenn. Ct. App. 2007).
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A.
Only Father has appealed. He challenges both the grounds for terminating his
parental rights and the determination that termination was in the child’s best interest.
1. Abandonment by Incarcerated Parent
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). There are “alternative definitions for
abandonment as a ground for the termination of parental rights.” In re Audrey S., 182
S.W.3d 838, 863 (Tenn. Ct. App. 2005); see also Tenn. Code Ann. § 36-1-102(1)(A) (Supp.
2020)1 (defining the term “abandonment”). One definition, found at Tennessee Code
Annotated § 36-1-102(1)(A)(iv), applies where a parent, like Father, was incarcerated or
had been incarcerated within the four-month period before the termination petition was
filed.
An incarcerated or previously incarcerated parent can be deemed to have abandoned
a child in several ways. Such a parent abandons his child by either failing to visit or failing
to support the child “during an aggregation of the first one hundred (120) days of non-
incarceration immediately preceding the filing of the action.” Tenn. Code Ann. § 36-1-
102(1)(A)(iv)(b). For Father, this period ran from January 12 to February 5, 2020 (24 days)
and from April 22 to July 27, 2020 (96 days).2 An incarcerated or previously incarcerated
parent is also deemed to have abandoned a child by “engag[ing] in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child.” Id. § 36-1-
102(1)(A)(iv)(c). Here, the juvenile court concluded that each of these grounds of
“abandonment” applied to Father.
a. Failure to Visit
We conclude that that the evidence is clear and convincing that Father abandoned
his child by failing to visit. “Whether a parent failed to visit . . . a child is a question of
fact.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013). Although a court
order from October 2017 prohibited Father from visiting, at no time after that order did
Father take any steps to regain his visitation rights. See id. at 642 (recognizing an order
1
In 2020 and 2021, the Legislature amended the statutory definition of “abandonment.” 2020
Tenn. Pub. Acts 43 (ch. 525); 2021 Tenn. Pub. Acts 828 (ch. 311). We apply the version of the statute in
effect at the time DCS filed its petition to terminate. See In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct.
App. 2017). So we cite to the version of Tennessee Code Annotated § 36-1-102 effective after the 2020
amendment but prior to the 2021 amendment.
2
The court determined that the relevant period began on January 11, 2020 instead of January 12,
2020. But, because the court’s findings include the correct time period, this error is harmless. See In re
Savanna C., No. E2016-01703-COA-R3-PT, 2017 WL 3833710, at *9 (Tenn. Ct. App. Aug. 31, 2017).
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suspending a parent’s visitation rights does not preclude a finding of abandonment by
failure to visit).
Father argues that his various incarcerations precluded visitation. But in examining
this ground, we only look at time periods when Father was not incarcerated.
b. Failure to Support
We also conclude that the evidence is clear and convincing that Father abandoned
his child by failing to make reasonable payments toward his support. “Failed to support”
or “failed to make reasonable payments toward such child support” is statutorily defined
as “failure . . . to provide monetary support or the failure to provide more than token
payments towards the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D). “Token
support” is where “the support, under the circumstances of the individual case, is
insignificant given the parent’s means.” Id. § 36-1-102(1)(B).
The juvenile court found that Father only made a single fifty-dollar support payment
in July 2020.3 We agree with the court that this payment amounted to token support under
the circumstances. The court found that Father, when not incarcerated, “possesse[d]
significant skills in construction and earthwork trades and [wa]s capable of earning a
substantial wage.” The court also found that, during the applicable time period, Father
“was residing in the home of his parents and . . . pa[id] a minimal contribution as a share
of the household expense.”
c. Wanton Disregard
The evidence is likewise clear and convincing that Father abandoned his child by
“engag[ing] in conduct prior to [his] incarceration that exhibit[ed] a wanton disregard for
the welfare of the child.” Id. § 36-1-102(1)(A)(iv)(c). “Wanton disregard” is not a defined
term. Commonly, actions amounting to “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). Such actions may include,
either alone or in combination, “probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for a
child.” In re Audrey S., 182 S.W.3d at 867-68. But, ultimately, the question is “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.”
Id. at 866.
3
DCS argues that this payment should not count because it was received two days outside the
applicable time period. But the court considered the payment as if it were made during the applicable
period.
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Here, the record establishes such a pattern of conduct. Since Yancy’s birth, Father
was incarcerated eight separate times. He was released from incarceration only eleven
days before trial. His criminal history during Yancy’s life is extensive and includes felony
child abuse where Yancy was the victim, numerous probation violations, driving under the
influence, and missed or failed drug screens.
When not incarcerated, Father failed to act in the child’s interest. When Yancy was
returned to Mother’s custody in 2017, Father was denied visitation due to his failure to
comply with the first permanency plan. He never sought to modify the visitation
restriction. Instead, Father continued his criminal behavior and drug use and failed to
provide support for Yancy other than one payment of fifty dollars.
2. Abandonment by Failure to Provide a Suitable Home
Yet another definition of “abandonment” considers whether a child has a suitable
home to return to after the child’s court-ordered removal from the parent. Tenn. Code
Ann. § 36-1-102(1)(A)(ii). Under Tennessee Code Annotated § 36-1-102(1)(A)(ii),
termination of parental rights may be appropriate if:
(a) The child has been removed from the home or the physical or legal custody
of a parent or parents . . . by a court order at any stage of proceedings in
which a petition has been filed in the juvenile court alleging that a child is a
dependent and neglected child, and the child was placed in the custody of
[DCS] . . .;
(b) The juvenile court found . . . that [DCS] . . . made reasonable efforts to
prevent removal of the child or that the circumstances of the child’s situation
prevented reasonable efforts from being made prior to the child’s removal;
and
(c) For a period of four (4) months following the physical removal, [DCS] . . .
made reasonable efforts to assist the parent or parents . . . to establish a
suitable home for the child, but that the parent or parents . . . have not made
reciprocal reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that they will be able to provide a suitable home for the child at an
early date.
Id.
A “suitable home” means something “more than a proper physical living
location.” Tenn. Dep’t of Children’s Servs. v. C.W., No. E2007-00561-COA-R3-PT, 2007
WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007). A suitable home requires
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“[a]ppropriate care and attention . . . to the child.” In re Matthew T., No. M2015-00486-
COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016).
We conclude that the evidence clearly and convincingly supports abandonment by
failure to provide a suitable home. DCS removed Yancy from Father’s physical and legal
custody in 2016. At that point, the juvenile court found that DCS had made reasonable
efforts to prevent the child’s removal. And when the case closed, Father was ordered not
to visit until his showed some compliance with the family permanency plan. From then
on, Father never sought to lift that prohibition.
DCS made reasonable effort to assist Father in establishing a suitable home. Among
other things, DCS met with Father to review and discuss the permanency plan. It provided
Father with information about available mental health and substance abuse treatment
services. And DCS visited the home of Father’s parents to explore its potential as a home
for Yancy.
Father failed to make reciprocal efforts. Aside from completing his latest period of
incarceration just prior to trial, Father made little meaningful progress in any of the
permanency plans’ other areas of emphasis. At trial Father conceded as much. He testified
that he was not yet able to care for the child and still needed time to “get back on [his]
feet.” He lived with his elderly parents. Although he claimed that he was living inside the
home, when DCS visited the home, Father was still living in the garage. The proof showed
it was unlikely that Father would have a suitable home for his child in the near future.
3. Substantial Noncompliance
Another ground for termination is “substantial noncompliance by the parent . . . with
the statement of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-
113(g)(2). Before analyzing whether a parent complied with the permanency plan, the
court must find the requirements that the parent allegedly failed to satisfy were “reasonable
and [we]re related to remedying the conditions that necessitate foster care placement.” Id.§ 37-2-403(a)(C) (Supp. 2020). Permanency plan requirements may focus on remedying
“conditions related both to the child’s removal and to family reunification.” In re
Valentine, 79 S.W.3d at 547.
We agree with the juvenile court that the permanency plan requirements were
reasonable and related to the conditions that necessitated foster care. Yancy first entered
foster care due to Mother’s and Father’s substance abuse issues and Father’s criminal
behavior. To address these issues, the first permanency plan required Father to submit to
random drug screens, comply with the terms of his probation, provide proof of stable
housing and income, complete a drug and mental health assessment, learn parenting skills,
and complete anger management treatment. After Yancy’s second removal by DCS, a
second permanency plan was ratified that contained substantially the same responsibilities
8
for Father. The requirements of the plans were appropriate given the reasons for Yancy’s
removal.
Next, we must determine whether the parent’s noncompliance was substantial in
light of the importance of the requirements to the overall plan. See id. at 548-49.
“Substantial noncompliance is a question of law which we review de novo with no
presumption of correctness.” Id. at 548. A “[t]rivial, minor, or technical” deviation from
the permanency plan’s requirements does not qualify as substantial
noncompliance. In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). Our focus is
on the parent’s efforts to comply with the plan, not the achievement of the plan’s desired
outcomes. In re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *8 (Tenn. Ct.
App. Mar. 2, 2009). We review the court’s findings of fact concerning compliance with
the requirements of the permanency plan de novo with a presumption of
correctness. See In re Valentine, 79 S.W.3d at 547.
We conclude that the evidence is clear and convincing that Father failed to
substantially comply with the requirements of the permanency plans. In the almost five
years between Yancy’s initial removal and the trial, Father made little effort to comply
with the plans’ requirements. When not incarcerated, he did not complete the drug and
mental health assessments. Father also did not comply with the terms of his probation and
failed or missed drug screens. Father also failed to seek out employment, attend anger
management treatment, or work on a stable home for Yancy.
4. Persistence of Conditions
The juvenile court also found termination of parental rights appropriate under
Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly referred to as
“persistence of conditions.” See In re Audrey S., 182 S.W.3d at 871. The ground of
persistence of conditions focuses “on the results of the parent’s efforts at improvement
rather than the mere fact that he or she had made them.” Id. at 874. So the question before
the court is “the likelihood that the child can be safely returned to the custody of the
[parent], not whether the child can safely remain in foster care.” In re K.A.H., No. M1999-
02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000).
There are several elements to the ground of persistence of conditions. Persistence
of conditions may be a basis to terminate parental rights when:
The child has been removed from the home or the physical or legal custody
of a parent . . . for a period of six (6) months by a court order entered at any
stage of proceedings in which a petition has been filed in the juvenile court
alleging that a child is a dependent and neglected child, and:
9
(i) The conditions that led to the child’s removal still persist, preventing
the child’s safe return to the care of the parent . . ., or other conditions
exist that, in all reasonable probability, would cause the child to be
subjected to further abuse or neglect, preventing the child’s safe return to
the care of the parent . . .;
(ii) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent . . . in the
near future; and
(iii) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3)(A). Each of the statutory elements must be established
by clear and convincing evidence. In re Valentine, 79 S.W.3d at 550.
At the time of trial, Yancy had been removed from Father’s custody for more than
six months. See Tenn. Code Ann. § 36-1-113(g)(3)(B) (providing “[t]he six (6) months
must accrue on or before the first date the termination of parental rights petition is set to be
heard”). And this record contains clear and convincing evidence that the conditions
preventing Yancy’s safe return remain. Father still lived with his parents, did not have
employment, and had not received treatment for his mental health and substance abuse
issues.
We also conclude that the evidence is clear and convincing that there was little
likelihood that these conditions would be remedied in the near future. Father testified that
his issues stemmed from his relationship with Mother, but his actions reflect otherwise.
Even after separating from Mother and when not incarcerated, Father took minimal steps
to comply with the requirements of the permanency plan. And he knew complying with
the permanency plan was a prerequisite to seeing his child. Instead, he continued his drug
use, failed to seek out steady employment, and returned to jail several times. As the
juvenile court noted, “nothing ha[d] changed” since DCS first removed Yancy.
Continuation of the parent-child relationship would also diminish the child’s
opportunity for an early integration into a safe, stable, and permanent environment.
Yancy’s foster mother testified that he has a deep bond with her family. While in her
custody, Yancy had found routine in school and at home that led to improvement in his
behavior and emotional development. She also testified that her family hoped to adopt
Yancy.
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5. Failure to Manifest an Ability and Willingness to Assume Custody
Finally, the court found termination of Father’s parental rights appropriate under
Tennessee Code Annotated § 36-1-113(g)(14). Under this ground, a parent’s rights may
be terminated if he or she
[1] 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 [2] 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.
Id. § 36-1-113(g)(14). Both prongs must be established by clear and convincing evidence.
In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020). As to the first prong, the petitioner
may prove that a parent is either unable or unwilling to “assume legal and physical custody
or financial responsibility for the child.” Id. at 677.
Like the juvenile court, we conclude that the evidence is clear and convincing that
Father is willing to assume custody of the child, but not able to do so. At trial, Father
shared his love for Yancy and his desire to parent the child. But desire alone is insufficient.
A parent must also demonstrate an ability to care for the child. Father did not. Even by
the time of trial, Father acknowledged that he would not be able to immediately assume
custody of Yancy. He instead needed time to “get back on [his] feet first.”
The evidence is equally clear and convincing that placing Yancy in Father’s custody
would pose a risk of substantial harm to his psychological welfare. Returning children to
the custody of a virtual stranger carries a risk of substantial harm. See In re Braelyn S.,
No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *17 (Tenn. Ct. App. July 22, 2020)
(reasoning that returning the child to a “virtual stranger” in light of his strong bond with
his current caregivers would constitute substantial harm). Yancy was not yet two-years-
old when he was removed from Father’s custody. The child was six-years-old by the time
of trial. In the interim, due either to his multiple incarcerations or the court’s order that he
should have no visitation, Father had extremely limited contact with his child.
B.
Because “[n]ot all parental misconduct is irredeemable,” our parental termination
“statutes recognize the possibility that terminating an unfit parent’s parental rights is not
always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.
2005). So even if a statutory ground for termination is established by clear and convincing
evidence, termination of parental rights must also be in the child’s best interests.
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At the time the petition to terminate was filed against Father, Tennessee Code
Annotated § 36-1-113(i) listed nine factors bearing on the best interest determination.4 The
“factors are illustrative, not exclusive, and any party to the termination proceeding is free
to offer proof of any other factor relevant to the best interests analysis.” In re Gabriella
D., 531 S.W.3d 662, 681 (Tenn. 2017). Although “[f]acts relevant to a child’s best interests
need only be established by a preponderance of the evidence, . . . the combined weight of
the proven facts [must] amount [] to clear and convincing evidence that termination is in
the child’s best interests.” In re Carrington H., 483 S.W.3d 507, 535 (Tenn. 2016).
After considering the statutory factors, the juvenile court concluded that the proven
facts amounted to clear and convincing evidence that termination is in the child’s best
interest. We share that conclusion. The first two statutory factors consider the parent’s
current lifestyle and living conditions. The first factor focuses on whether the parent “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.” Tenn. Code Ann. § 36-1-113(i)(1).
The second factor considers the potential for lasting change. Id. § 36-1-113(i)(2). The
court found that Father had not made “significant progress on addressing the reasons for
removal.” Despite “reasonable efforts” made by DCS to facilitate reunification, Father
“rebuffed the case manager” and failed to adjust “so as to make [a] safe return . . . possible.”
The next two statutory factors examine the parent’s relationship with the child. The
third factor looks at the consistency of visitation. See id. § 36-1-113(i)(3). The fourth
addresses the quality of the parent’s relationship with the child and whether it is
“meaningful.” Id. § 36-1-113(i)(4). The court found that Father did not attempt “to
maintain regular visitation or other contact with the child” and that no “meaningful
relationship” existed between the two. It also noted that the child had night terrors and
asked his foster mother to not send him back to his biological parents.
The fifth factor considers the effect a change in caregivers would have on the child’s
emotional, psychological, and medical condition. Id. § 36-1-113(i)(5). The court found
that “[r]emoval of the child from his [foster] home would . . . be detrimental.” Both his
foster mother and kindergarten teacher testified to the child’s unique emotional and
behavioral needs. While improving, the child still had “episodes of incontinence” and
required ADHD medication. The court attributed the child’s recent improvements to the
“significant degree of structure and consistency in his life” while in foster care and found
that the child “would not have this if returned to [Father].”
The sixth factor asks whether the parent or a person residing with the parent “ha[d]
shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the
child, or another child or adult in the family or household.” Id. § 36-1-113(i)(6). The court
mentioned an instance of such an event, but the court noted that it “occurred prior to the
4
The Legislature amended the list of best interest factors in 2021. 2021 Tenn. Pub. Acts 509 (ch.
190).
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child coming into custody and [was] accordingly not a factor.” The seventh factor focuses
on the parent’s home environment and ability to be a safe and stable caregiver. Id. § 36-1-
113(i)(7). The court found that, while Father exhibited substance abuse issues in the past,
“there was no testimony that presently [Father’s] drug issues would prevent him from
providing safe and stable care.” So the court did not find this factor favored terminating
Father’s parental rights.
The eighth statutory factor evaluates the parent’s mental and emotional health,
asking “[w]hether the parent’s . . . mental and/or emotional status would be detrimental to
the child or prevent the parent . . . from effectively providing safe and stable care and
supervision of the child.” Id. § 36-1-113(i)(8). The court found that this factor did not
weigh adversely against Father “due to the absence of current mental health information.”
The ninth factor examines the parents’ child support history. Id. § 36-1-113(i)(9).
The court found that this factor weighed adversely against Father because he had not paid
support for the child. Although the evidence preponderates against the finding that Father
paid no child support, we agree that Father’s one child support payment of fifty dollars
weighs in favor of terminating his parental rights.
III.
We affirm the termination of Father’s parental rights. The record contains clear and
convincing evidence to support seven statutory grounds for termination. We also conclude
that terminating Father’s parental rights was in the child’s best interest.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
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