In Re Damium F. ( 2022 )

08/04/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 1, 2022
IN RE DAMIUM F. ET AL.
Appeal from the Juvenile Court for Davidson County
Nos. PT258228; 2008-2290; 2014-4324; 2015-1437;
2017-4678; 2017-4809; 2019-1340
Sheila Calloway, Judge
No. M2021-01301-COA-R3-PT
A mother appeals a trial court’s decision to terminate her parental rights to six of her
children based on five statutory grounds. She also challenges the trial court’s finding by
clear and convincing evidence that termination of her parental rights was in the best interest
of the children. Discerning no error, we affirm the trial court’s termination of the mother’s
parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and KENNY W. ARMSTRONG, JJ., joined.
Clayton Michael Cardwell, Nashville, Tennessee, for the appellant, Betty F.
Herbert H. Slatery, III, Attorney General and Reporter, and Courtney Jayne Mohan,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the termination of Betty F.’s (“Mother”) parental rights to six of
her children1: Damium (born in 2007), Isaiah (born in 2009), Malachi (born in 2015),
1
Mother has another child, Azariah, who lives with his father and is not part of these proceedings. After
the termination petition was filed, Mother gave birth to Mary, who was also removed from Mother’s
custody; however, Mary is not a part of these proceedings. Lastly, during the termination trial, Mother was
pregnant with a ninth child that is not a part of these proceedings.
LaShanda (born in 2015), Catalina (born in 2017), and Serenity (born in 2018).2 On
November 20, 2017, the Tennessee Department of Children’s Services (“DCS” or “the
Department”) filed a petition alleging that the five older children were dependent and
neglected due to unstable housing, drug exposure, educational neglect, and domestic
violence perpetrated by Mother. Based on that petition, the trial court entered an order that
day removing the children from Mother’s custody and placing them in DCS custody.
Mother remained essentially homeless in the months following the removal, and she
tested positive for cocaine in March 2018. On May 29, 2018, the trial court adjudicated
the children dependent and neglected based on Mother’s unstable housing and use of illegal
drugs. The court then placed the children in the home of their maternal grandparents “on
a 90-day Home Trial Visit.” After a contested dispositional hearing on September 7, 2018,
the trial court concluded that it was in the children’s best interest to exit DCS custody and
that legal custody be placed with the maternal grandparents. Mother appealed and, after
rehearing the matter, the trial court ordered that the children remain with the maternal
grandparents because Mother had made very little progress towards changing her
circumstances since the removal. Ten days later, however, the maternal grandparents
decided they no longer wished to care for the children and left them with DCS. The trial
court entered an order removing the children from the maternal grandparents’ custody and
placing them in DCS custody on April 29, 2019. On December 10, 2019, the children were
adjudicated dependent and neglected based on abandonment by the maternal grandparents.
The children have been in foster care since April 2019.
While the first dependency and neglect proceedings involving the five older children
were pending, Mother gave birth to Serenity, who was born premature and with a life-
threatening congenital heart condition that required surgery. At the time of Serenity’s birth,
Mother remained homeless and was living in a vehicle. As a result, she left the child
substantially in the care and physical custody of Erica B., a woman who befriended Mother
and offered assistance after learning of Mother’s unstable living situation. Mother
periodically retrieved the child from Ms. B. to take her to medical appointments, but the
child’s medical records show that she missed several cardiology appointments and
experienced difficulty gaining weight before finally undergoing the necessary heart
surgery.
The child’s medical records further showed that, on at least two separate occasions,
medical personnel called the police due to Mother’s “hostile, aggressive, and inappropriate
behavior” during the child’s medical appointments. For example, in January 2019, the
2
The parental rights of the children’s fathers are not at issue on appeal. Damium’s father died in 2008.
Initially, Isaiah’s father was unknown, but by trial, Mother claimed that Lawrence L. was Isaiah’s father.
The trial court concluded that, under Tenn. Code Ann. § 36-1-117, “Mr. [L.], if he exists at all, is not entitled
to notice or service of this petition and/or proceeding nor is termination of any rights that he may have
necessary.” Aroldo F. is the father of the remaining four children. The trial court terminated his parental
rights, and he did not appeal.
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police were called to the child’s cardiologist’s office because Mother was arguing with the
child’s father, Aroldo F., and cursing so loudly that it interfered with the doctor performing
an echocardiogram on the child. When the child was hospitalized on March 18, 2019,
hospital personnel summoned police due to Mother’s “hostile, aggressive, and
inappropriate behavior” with Mr. F. Shortly thereafter, on March 21, 2019, Serenity
entered DCS custody pursuant to an emergency protective custody order due to allegations
that she was dependent and neglected based on a lack of supervision.
During the pendency of the dependency and neglect proceedings regarding Serenity,
Mother’s struggle with illegal drug use continued. She acknowledged in April 2019 that
she still used illegal drugs, and she consistently refused to submit to drug screens requested
by DCS. According to Mother, DCS was “tampering in some manner” with her drug
screens. Thus, upon Mother’s request, the trial court ordered that she undergo drug
screening with Averhealth. The record contains no proof indicating that she ever complied
with this order.
The trial court adjudicated Serenity dependent and neglected on August 8, 2019,
based on Mother’s continued illegal drug use, unstable housing, failure to make any
progress in remedying the conditions that led to the other five children’s removal, and her
volatile relationship with Mr. F. Thereafter, Ms. B. officially became the child’s foster
mother, and the child has remained continuously in her care since that time.
During the four years following the initial removal in 2017, DCS created several
permanency plans.3 Although DCS notified Mother of the ratification hearings for the
permanency plans, she failed to attend most of them. She acknowledged, however, that
DCS spoke with her in 2019, 2020, and 2021 about the steps she needed to take to regain
custody of her children and stated that she understood what was required of her.
Additionally, in 2019, Mother signed the criteria and procedures for termination of parental
rights document that explained her parental rights could be terminated if, among other
things, she did not substantially comply with the permanency plans’ requirements. Mother
admitted that she was familiar with the document’s contents.
The Department filed a petition to terminate Mother’s parental rights on July 16,
2020. After a two-day trial, the trial court entered an order terminating Mother’s parental
rights. The court determined that the following grounds for termination had been proven
by clear and convincing evidence: (1) abandonment by failure to visit, (2) abandonment
by failure to support, (3) substantial noncompliance with the requirements of the
permanency plans, (4) persistence of conditions, and (5) failure to demonstrate an ability
and willingness to assume custody or financial responsibility. The court further determined
that there was clear and convincing evidence that termination of Mother’s parental rights
was in the best interest of the children.
3
The requirements of these permanency plans will be discussed in detail later in this opinion.
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Mother appealed and presents the following issues for our review: whether the trial
court erred in finding by clear and convincing evidence that grounds existed to terminate
her parental rights and whether the court erred in determining that termination of her
parental rights was in the best interest of the children.
STANDARD OF REVIEW
Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d 674, 678
(Tenn. 1994)). Although this right is fundamental, it is not absolute and may be terminated
in certain situations. In re Angela E., 303 S.W.3d at 250. Our legislature has identified
“‘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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., IV., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)).
Tennessee Code Annotated section 36-1-113 provides the grounds and procedures
for terminating parental rights. First, a petitioner seeking to terminate parental rights must
prove that at least one ground for termination exists. Tenn. Code Ann. § 36-1-113(c)(1);
In re Angela E., 303 S.W.3d at 251. Second, a petitioner must prove that terminating
parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The termination of a parent’s rights is one of the most serious decisions courts make
because “[t]erminating parental rights has the legal effect of reducing the parent to the role
of a complete stranger,” In re W.B., IV, 2005 WL 1021618, at *6, “and of ‘severing forever
all legal rights and obligations of the parent or guardian.’” Id. (quoting Tenn. Code Ann.
§ 36-1-113(l)(1)). Consequently, a parent has a constitutional right to fundamentally fair
procedures during termination proceedings. In re Hannah C., No. M2016-02052-COA-
R3-PT, 2018 WL 558522, at *2 (Tenn. Ct. App. Jan. 24, 2018) (citing In re Carrington H.,
483 S.W.3d 507, 522 (Tenn. 2016)).
Tennessee law ensures fundamental fairness in termination proceedings by
requiring a heightened standard of proof—clear and convincing evidence. See Tenn. Code
Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d at 522. Before a parent’s rights
may be terminated, a petitioner must prove both the grounds and the child’s best interest
by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(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 the evidence.’” In re Serenity B., No. M2013-
-4-
02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)).
We review the trial court’s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re
Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we
must then make our own determination “as to whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, amount to clear and convincing
evidence of the elements necessary to terminate parental rights.” In re Carrington H., 483
S.W.3d at 524 (citing In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010)).
ANALYSIS
I. Grounds for termination.
A. Abandonment.
A parent’s rights may be terminated for abandoning his or her child. Tenn. Code
Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102(1)(A) provides five
definitions of “abandonment,” but only the definition provided in subsection (i) is relevant
in this case. At the time the termination petition was filed, subsection (i) defined
“abandonment” as follows:
For a period of four (4) consecutive months immediately preceding the filing
of a proceeding, pleading, petition, or any amended petition to terminate the
parental rights of the parent or parents . . . of the child who is the subject of
the petition for termination of parental rights or adoption, that the parent or
parents . . . either have failed to visit or have failed to support or have failed
to make reasonable payments toward the support of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(i). Here, the trial court determined that Mother
abandoned the children by her failure both to visit and to support the children in the four
months immediately preceding the filing of the termination petition. The Department filed
the petition to terminate Mother’s parental rights on July 16, 2020. Thus, the relevant four-
month time period for determining whether Mother abandoned the children by failing to
visit or to support the children under Tenn. Code Ann. § 36-1-102(1)(A)(i) is March 16,
2020 to July 15, 2020. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL
689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (holding that the applicable four-month time
period for determining whether a parent has willfully failed to support is “the four months
preceding the day the petition to terminate parental rights is filed but excludes the day the
petition is filed”). We will address each abandonment ground in turn.
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1. Failure to visit.
A failure to visit occurs when a parent, “for a period of four (4) consecutive months,
[fails] to visit or engage in more than token visitation.” Tenn. Code Ann. § 36-1-102(1)(E).
“Token visitation” is “visitation, under the circumstances of the individual case, [that]
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.” Id. § 36-1-102(1)(C). As an affirmative defense, a parent may assert that his
or her failure to visit a child was not willful. Id. § 36-1-102(1)(I). A parent asserting this
affirmative defense bears the burden of proving a lack of willfulness by a preponderance
of the evidence, meaning that a parent must prove the absence of willfulness “is more
likely true than not true.” McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 825 n.19
(Tenn. Ct. App. 2005); see also Tenn. Code Ann. § 36-1-102(1)(I).
In the context of the parental termination statutes, “willfulness” does not require
“malevolence or ill will.” In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). It
merely requires that the conduct at issue consist “of acts or failures to act that are intentional
or voluntary rather than accidental or inadvertent.” Id. We have previously explained
“willfulness” as follows:
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.
Failure to visit or support a child is “willful” when a person is aware
of his or her duty to visit or support, has the capacity to do so, makes no
attempt to do so, and has no justifiable excuse for not doing so. Failure to
visit or support is not excused by another person’s conduct unless the conduct
actually prevents the person with the obligation from performing his or her
duty, or amounts to a significant restraint of or interference with the parent’s
efforts to support or develop a relationship with the child.
Id. at 863-64 (citations and footnote omitted); see also In re Adoption of Angela E., 402
S.W.3d 636, 640 (Tenn. 2013) (“A parent cannot be said to have abandoned a child when
his failure to visit or support is due to circumstances outside his control.”).
During the relevant four-month period, Mother had no in-person visits with the
children because DCS implemented certain COVID-19 restrictions that limited her to
videoconferences with the children. In March and April 2020, Mother requested no
videoconference visits and DCS scheduled none. Nyah Cade, the DCS caseworker during
the determinative period, explained that the failure to schedule any visits during those two
months was due to DCS’s inability to contact Mother. Specifically, DCS struggled to
establish contact with Mother because her phone number changed several times during the
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custodial episode, and she failed to inform DCS when she changed numbers. Typically,
DCS would not learn of Mother’s newest phone number until she called DCS from that
number.
In May 2020, Mother attended a videoconference visit with Damium and Isaiah.
The Department scheduled two videoconference visits with all of the children in July 2020,
but Mother attended only one of them. Thus, during the determinative period, Mother
attended only two visits. Although the trial court did not use the term “token visitation,” it
is clear from the termination order that the court considered these two visits to constitute
token visitation. Specifically, the trial court found that “the mother lacked meaningful
visitation and failed to consistently show up and/or participate in visitation . . . .” We agree.
This Court has previously concluded that one or two visits during a four-month period is
“nothing more than token visitation.” In re Audrey S, 182 S.W.3d at 867.
The children engaged very little with Mother during the videoconference visits. Ms.
Cade described the July visit with all of the children thusly:
It was very awkward. The older children weren’t very engaged. Of course,
Mom was saying, “You’ve gotten big,” or, “Your voice is deep,” things of
that adjectives. And the children w[ere] a little responsive to it, but it wasn’t
very much conversation. The younger children, hard to be focused. They
appeared to not really - - they knew who she was but not really in the
engagement. Yeah, awkward would be the word to describe it.
Furthermore, Ms. Cade stated that Mother appeared more interested in her youngest child,
Mary, who was an infant and had recently entered DCS custody. As a result, these visits
were not helpful in developing a meaningful bond with the children. Rather, they
constituted “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[ren].” Tenn. Code Ann. § 36-1-102(1)(C).
Mother contends that her failure to engage in more than token visitation with the
children during the relevant time period was not willful. The Department correctly points
out that Mother waived a lack of willfulness as a defense to this ground for termination
because she failed to assert it as an affirmative defense in her answer to the petition to
terminate. See TENN. R. CIV. P. 12.08 (specifying that, in general, defenses not raised by
motion or answer are waived); see also In re Ashlynn H., No. M2020-00469-COA-R3-PT,
2021 WL 2181655, at *4 (Tenn. Ct. App. May 28, 2021) (finding a father who failed to
plead the absence of willfulness in his response to the petition to terminate parental rights
waived it as a defense to the ground of abandonment by failure to support). However, the
defense was tried by implied consent because DCS did not object to testimony regarding
willfulness at trial. See In re Braelyn S., No. E2020-00043-CAO-R3-PT, 2020 WL
-7-
4200088, at *4 n.3 (Tenn. Ct. App. July 22, 2020) (citing McLemore v. Powell, 968 S.W.2d
799, 803 (Tenn. Ct. App. 1997) (discussing the standard for trial by implied consent)).
Mother testified that she failed to engage in more than token visitation because DCS
significantly restrained or interfered with her ability to visit the children by not allowing
in-person visits and by not communicating with her to schedule videoconference visits. As
stated above, a parent’s failure to visit is “not excused by another person’s conduct unless
the conduct actually prevents the person with the obligation from performing his or her
duty . . . or amounts to a significant restraint of or interference with the parent’s efforts to
support or develop a relationship with the child . . . .” In re Audrey S., 182 S.W.3d at 863.
“Conduct that would amount to a significant restraint or interference with a parent’s ability
to visit includes ‘blocking access to the child,’ ‘keeping the child’s whereabouts unknown,’
and ‘vigorously resisting a parent’s efforts to visit the child.’” In re Bonnie E., No. E2021-
00919-COA-R3-PT, 2022 WL 1572945, at *5 (Tenn. Ct. App. May 19, 2022) (quoting In
re Audrey S., 182 S.W.3d at 864 n.34).
Following a thorough review of the record, we conclude that DCS’s actions did not
constitute a significant restraint or interference with Mother’s efforts to visit the children.
Although DCS did not permit in-person visits due to the COVID-19 pandemic, DCS
attempted to facilitate visits for Mother via videoconference. However, DCS consistently
struggled to contact Mother to schedule videoconference visits because Mother frequently
changed her phone number and failed to notify DCS of the change. Ms. Cade testified that
Mother could have had more visits in May and July 2020 if she had simply maintained
contact with DCS. The proof at trial established that Mother contacted DCS only one time
requesting a videoconference visit. Specifically, in July 2020, she requested a visit with
Damium for his birthday. The Department did not schedule the visit to occur on Damium’s
birthday, but it did schedule a visit near his birthday. The visit did not occur, however,
because Mother claimed to have issues signing in.
Based on the foregoing facts, we determine that, far from presenting an obstacle to
Mother, DCS attempted to facilitate visits for Mother. Her failure to visit more than two
times during the four-month period is due to her own conduct. In other words, Mother is
the author of her own misfortune. We therefore conclude that DCS proved by clear and
convincing evidence that Mother’s parental rights should be terminated pursuant to this
ground.
2. Failure to support.
A failure to support occurs when a parent fails, “for a period of four (4) consecutive
months, to provide monetary support or [fails] to provide more than token payments toward
the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D). “Token support” is “support,
under the circumstances of the individual case, [that] is insignificant given the parent’s
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means.” Id. § 36-1-102(B). A lack of willfulness is also an affirmative defense to this
ground for termination. Id. § 36-1-102(1)(I).
It is undisputed that Mother made no child support payments during the relevant
four-month time period. She claims, however, that she did provide clothes, diapers, and
milk for Serenity. Ms. B., Serenity’s foster mother, acknowledged that she received those
items from Mother but stated that Mother provided them before Serenity entered DCS
custody in March 2019, well-outside the relevant time period. The proof introduced at trial
shows that Mother provided no form of assistance for Serenity or any of the other children
during the four months preceding the filing of the termination petition.
At trial, Mother introduced evidence that her failure to pay support was not willful.
Once again, DCS correctly points out that Mother waived a lack of willfulness as a defense
to this termination ground because she did not assert it in her answer to the termination
petition. However, as with the failure to visit ground, this issue was tried by implied
consent because DCS did not object to her testimony regarding willfulness.
Mother testified that she was unemployed during the entire relevant four-month
period because she was pregnant with Mary and was unable to work due to complications
with the pregnancy. Nonetheless, Mother never claimed during her testimony that she
lacked the ability to pay support, and she presented no evidence concerning her living
expenses or income (unemployment benefits, disability, etc.). We therefore conclude that
Mother failed to establish the affirmative defense of lack of willfulness.
In light of the foregoing, we conclude that this termination ground was proven by
clear and convincing evidence.
B. Substantial noncompliance.
The trial court also terminated Mother’s parental rights pursuant to Tenn. Code Ann.
§ 36-1-113(g)(2), which provides that a parent’s rights may be terminated where “[t]here
has been substantial noncompliance by the parent . . . with the statement of responsibilities
in a permanency plan pursuant to title 37, chapter 2, part 4.” To succeed under this ground,
DCS 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 M.J.B., 140 S.W.3d at 656. Conditions that make
foster care placement necessary may “include conditions related both to the child’s removal
and to family reunification.” In re Valentine, 79 S.W.3d at 547. The court must then
determine whether the noncompliance is substantial. In re M.J.B., 140 S.W.3d at 656. In
assessing a parent’s substantial noncompliance with a permanency plan, the court should
measure “both the degree of noncompliance and the weight assigned to that requirement.”
In re Valentine, 79 S.W.3d at 548. “Trivial, minor, or technical deviations from a
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permanency plan’s requirements will not be deemed to amount to substantial
noncompliance.” In re M.J.B., 140 S.W.3d at 656.
During the years following the initial 2017 removal, DCS created five permanency
plans: December 19, 2017; May 2, 2019; May 31, 2019; May 15, 2020; and April 27,
2021. The plans’ requirements remained substantially the same throughout the custodial
episode and required Mother to complete the following requirements: (1) complete a
parenting assessment and follow any recommendations, (2) complete an alcohol and drug
assessment and follow any recommendations, (3) submit to random drug screens, (4) obtain
a legal source of income, (5) obtain stable housing, (6) complete a mental health assessment
and follow any recommendations, (7) participate in visitations with the children, (8)
complete domestic violence counseling, and (9) maintain regular contact with DCS and
update her contact information with DCS.
The trial court ratified each of the plans, except for the most recent April 2021 plan,
but the court did not make a finding that the plans’ requirements were reasonable and
related to remedying the conditions that necessitated foster care for the children. Therefore,
we review the issue of reasonableness de novo. See In re Valentine, 79 S.W.3d at 547.
The children entered foster care due to Mother’s illegal drug use, homelessness, and her
volatile relationship with Mr. F. Because the plans’ requirements address these issues, we
conclude that the requirements of the plans were reasonable and necessary to remedying
the conditions necessitating foster care.
For most of the custodial episode, Mother made little to no effort to address the
permanency plans’ requirements. When the children returned to DCS custody in 2019,
DCS informed Mother that she needed to complete a new alcohol and drug assessment
because the one previously completed in 2018 was too old. Mother completed the
assessment in October 2020, and it found “that [Mother’s] substance use rises to the level
of ABUSE and is near the point of dependence.” The assessment recommended that
Mother complete inpatient treatment for at least thirty days, intensive outpatient treatment,
and attend Alcoholics Anonymous and Narcotics Anonymous meetings. Ms. Cade
testified that she discussed the assessment and recommendations with Mother and then
discussed the treatment options with her. Mother completed none of the recommended
treatments. Ms. Cade acknowledged that, in regard to the inpatient treatment
recommendation, Mother experienced difficulty finding an inpatient treatment facility
because most facilities were not accepting patients due to the COVID-19 pandemic.
However, the record contains no evidence that Mother ever sought the other recommended
treatments.
Mother admitted that she knew she needed to complete random drug screens.
Nevertheless, she consistently failed to comply with requests for drug screens. Ms. Cade
testified that Mother’s lack of communication with DCS and her refusal to inform DCS of
her address made it difficult for DCS to drug screen Mother. When DCS obtained Mother’s
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latest contact information in 2021, it attempted to drug screen her twice in March; Mother
refused to comply with both drug screens. The Department then attempted to drug screen
Mother on June 25, 2021, and on July 9, 2021, but Mother again refused to comply. The
Department was able to drug screen her on May 7, 2021, and on July 12, 2021. The results
for both screens were negative. Because Mother distrusted DCS’s drug screens, the trial
court ordered Mother to submit to random drug screens through Averhealth. Mother never
provided any proof that she complied with Averhealth.
In regard to other required assessments, Mother completed a mental health
assessment when she completed the 2018 alcohol and drug assessment. The Department
needed an updated mental health assessment when the children returned to DCS custody
in 2019, but Mother failed to complete an updated mental health assessment. Indeed, when
asked about the mental health assessment at trial, Mother adamantly stated she did not need
to complete it because she did not have mental health issues despite the previous
assessment recommending treatment because she “appears to have a moderately severe
psychological or emotional problem.” Mother completed the Free Hearts parenting class
on August 24, 2018, but that was not one of the requirements identified on the permanency
plans. The plans required that she complete a parenting assessment to determine what
specific parenting issues she needed to address; she never completed a parenting
assessment.
Beyond failing to complete assessments, Mother failed to maintain a legal source of
income. She testified that she occasionally worked at a hair salon that paid her “under the
table” and claimed she was briefly employed at UPS and Wendy’s. According to Mother,
the only time period since April 2019 that she was not employed full-time was between
October 2019 and July 2020 when she was pregnant with Mary. However, Mother never
provided proof of income to DCS.
Additionally, Mother failed to complete domestic violence counseling. Mother
stated that she was unaware of this requirement because it was a recent inclusion, but the
proof at trial contradicted her statement. An examination of the parenting plans shows that
the domestic violence counseling requirement has appeared on each parenting plan since
the initial plan in 2017, and Mother admitted that DCS discussed the parenting plans’
requirements with her.
Most importantly, throughout most of the custodial episode, Mother failed to obtain
appropriate housing, often living either at a “rooming house”, with a cousin, or in a vehicle.
She testified that she obtained a two-bedroom home approximately two months before trial,
and that she believed all of the children could live with her in that home. Contrary to
Mother’s belief, Amanda Kelly, the DCS caseworker at the time of trial, testified that she
visited the home and determined that it was inappropriate because two bedrooms were not
enough for Mother and all of the children, particularly because Mother intended to use one
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of the bedrooms for herself. Thus, all six children would have to share the remaining
bedroom.
In sum, during the four years between the initial removal and trial, Mother failed to
comply with almost all of the plans’ requirements. We conclude that DCS proved this
termination ground by clear and convincing evidence.
C. Persistence of conditions.
In addition to the grounds above, the trial court terminated Mother’s parental rights
pursuant to Tenn. Code Ann. § 36-1-113(g)(3). This ground is often referred to as
“persistence of conditions” and allows courts to terminate parental rights in situations
where:
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:
(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).
The persistence of conditions ground “focuse[s] on the results of the parent’s efforts
at improvement rather than the mere fact that he or she had made them.” In re Audrey S.,
182 S.W.3d at 874. The purpose behind this ground for termination is “‘to prevent the
child’s lingering in the uncertain status of foster child if a parent cannot within a reasonable
time demonstrate an ability to provide a safe and caring environment for the child.’” In re
A.R., No. W2008-00558-COA-R3-PT, 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008)
(quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct.
App. Mar. 3, 2008)). Therefore, the question we must answer is “the likelihood that the
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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).
Here, there is no dispute that all six children were removed from Mother’s custody
by court order and then adjudicated dependent and neglected more than six months before
the termination hearing began. See Tenn. Code Ann. § 36-1-113(g)(3)(A)-(B). The
conditions leading to the children’s removal included drug use, unstable housing, and
domestic violence. In the four years following the initial removal, Mother did very little
to demonstrate that the children could ever be safely returned to her custody. For instance,
her sobriety remained a concern. She completed no substance abuse treatment despite her
alcohol and drug assessment finding that her substance use constituted “ABUSE and is
near the point of dependence.” Instead, Mother consistently downplayed her substance
abuse issues. To her credit, Mother submitted to two drug screens by DCS, and both
returned a negative result. But, she refused to comply with requests for drug screens in
March, June, and July 2021. Mother also never provided any proof to DCS that she
submitted to a single drug screen with Averhealth despite a court order requiring her to do
so.
Mother’s housing remained a concern. For most of the custodial episode, Mother
lived in a “rooming house”, with her cousin, or in her vehicle. She repeatedly refused to
give her address to DCS, often claiming she was living with someone or searching for
housing. Two months before trial, Mother obtained a two-bedroom home. As previously
discussed, Ms. Kelly visited the home and determined that it was inappropriate for all of
the children.
In regard to domestic violence, we must commend Mother for ending the volatile
relationship with Mr. F., but domestic violence still remained an issue. She failed to
complete any domestic violence counseling and, at the time of trial, Mother had a pending
charge for aggravated assault with a deadly weapon that stemmed from an incident with
Mr. F. in 2019.
In addition to the foregoing, Mother refused to accept responsibility for her actions.
Rather, she insisted that DCS was to blame for the children not being in her custody. We
have previously held that a parent’s “refusal to acknowledge any deficiencies in her
parenting inspires little confidence that this condition will be remedied in the near future,
or that safe reintegration of the Child into [the parent’s] home is possible.” In re Katrina
S., No. E2019-02015-COA-R3-PT, 2020 WL 5269236, at *8 (Tenn. Ct. App. Sept. 3,
2020).
Lastly, the continuation of the parent and child relationship in this case would also
diminish the children’s chances of integrating into a permanent home. See Tenn. Code
Ann. § 36-1-113(g)(3)(A)(iii). The children’s foster parents testified that the children are
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doing well and are happy in their foster homes. All of the foster parents are interested in
adopting the children if they become available for adoption. We conclude that DCS proved
the existence of this termination ground by clear and convincing evidence.
D. Failure to manifest an ability and willingness to personally assume custody.
Finally, the trial court terminated Mother’s parental rights pursuant to Tenn. Code
Ann. § 36-1-113(g)(14). This ground requires a party to prove two elements by clear and
convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, a party must
prove that the parent failed to manifest “an ability and willingness to personally assume
legal and physical custody or financial responsibility of the child[ren].” Tenn. Code Ann.
§ 36-1-113(g)(14). Second, a party must prove that placing the children in the parent’s
“legal and physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14).
To establish the first prong, the party seeking to terminate parental rights need only
prove that a parent failed to manifest either an ability or a willingness to assume custody.
In re Neveah M., 614 S.W.3d 659, 677 (Tenn. 2020) (citing In re Amynn K., No. E2017-
01866-COA-R3-PT, 2018 WL 3058280, at *13-14 (Tenn. Ct. App. June 20, 2018)).
“Ability focuses on the parent’s lifestyle and circumstances.” In re Serenity W., No.
E2018-00460-COA-R3-PT, 2019 WL 511387, at *6 (Tenn. Ct. App. Feb. 8, 2019).
Willingness focuses on the parent’s attempts “to overcome the obstacles that prevent [him
or her] from assuming custody or financial responsibility for the child.” Id. Thus, a
parent’s mere desire to reunite with his or her child is insufficient to demonstrate an ability
or a willingness. In re Nicholas C., No. E2019-00165-COA-R3-PT, 2019 WL 3074070,
at *17 (Tenn. Ct. App. July 15, 2019).
Here, Mother desired to reunite with her children, but her actions failed to
demonstrate an ability or a willingness to assume custody of them. At the time the
termination petition was filed, four years after the initial removal, Mother had yet to
address her mental health, substance abuse, or domestic violence issues. See In re
M.E.N.J., No. E2017-01074-COA-R3-PT, 2017 WL 6603658, at *7 (Tenn. Ct. App. Dec.
27, 2017) (concluding that a parent must demonstrate ability and willingness as of the date
the termination petition was filed). She also lacked a legal source of income and stable
housing. We commend Mother for obtaining her current housing, but she did not obtain it
until two months before trial—long after the termination petition was filed. And, the size
of the home renders it inappropriate due to the large number of children that would need
to reside there if she regained custody of them. Moreover, despite this recent positive
change, we cannot ignore the near total lack of effort she demonstrated prior to the filing
of the termination petition.
Regarding the second prong, the evidence in the record demonstrates that placing
the children in Mother’s custody “would pose a risk of substantial harm to the physical or
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psychological welfare of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). “Substantial
harm” requires “‘a real hazard or danger that is not minor, trivial, or insignificant’” and,
“‘[w]hile 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 Maya
R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *8 (Tenn. Ct. App. Apr. 4, 2018)
(quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)). Given that Mother still
lacks adequate housing and that she has yet to address her substance abuse, domestic
violence, or mental health issues, we agree with the trial court’s finding that placing the
children with her poses a risk of substantial harm to their physical and psychological
welfare. We conclude that this ground for termination was proven by clear and convincing
evidence.
II. Best interest.
Having determined that clear and convincing evidence of at least one statutory
ground exists to terminate Mother’s parental rights, we must next consider whether the trial
court properly determined that termination of Mother’s parental rights was in the best
interest of the children. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182
S.W.3d at 860. After a court finds that clear and convincing evidence exists to support a
ground for termination, the child’s interests diverge from those of the parent and the court
focuses on the child’s best interests. In re Audrey S., 182 S.W.3d at 877. A court must
view the child’s best interest from the perspective of the child, not that of the parent. Id.
at 878. A finding that at least one ground for termination of parental rights exists does not
necessarily require that a parent’s rights be terminated. Id. at 877. Because some parental
misconduct is redeemable, our termination of parental rights statutes recognize that
“terminating an unfit parent’s parental rights is not always in the child’s best interests.” Id.The facts a court considers in its 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. Once a court makes the underlying factual findings, it should “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.” Id.
When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court must consider the nine factors enumerated in Tenn. Code Ann. §
36-1-113(i).4 A trial court is not required to find that each of the enumerated factors exists
4
The Tennessee General Assembly amended the statutory best-interest factors in 2021. See 2021 TENN.
PUB. ACTS ch. 190 § 1 (S.B. 205), eff. April 22, 2021. However, the factors applicable to this appeal are
the nine factors identified in Tenn. Code Ann. § 36-1-113(i) (2020), which were in effect when the
termination petition was filed on July 16, 2020. See In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct.
App. 2017) (holding the version of a termination statute “‘that was in force when the petition was filed
governs this case’”) (quoting In re Tianna B., No. E2015-02189-COA-R3-PT, 2016 WL 3729386, at *7
(Tenn. Ct. App. July 6, 2016)) .
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before concluding that it is in the best interest of the child to terminate a parent’s rights. In
re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Although in some circumstances
“the consideration of one factor may very well dictate the outcome of the analysis,” In re
Audrey S., 182 S.W.3d at 878, a court is still obligated to consider “all the factors and all
the proof.” In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017).
After considering all of the best interest factors, the trial court found that the factors
favored terminating Mother’s parental rights.5 See Tenn. Code Ann. § 36-1-113(i). The
evidence in the record before us does not preponderate against the trial court’s findings of
fact.
The first best interest factor considers whether a 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). As discussed
in detail above, Mother struggled to maintain stable housing for most of the four years
following the initial removal. Shortly before trial, she obtained a two-bedroom home, but
it was inappropriate because it was too small for all of the children to live there with her.
She ended her volatile relationship with Mr. F., but she failed to complete any domestic
violence counseling. She also failed to complete any substance abuse treatment and or any
mental health treatment. Therefore, Mother made no “adjustment of circumstance,
conduct, or conditions as to make it safe and in the child[ren]’s best interest” to be in her
home. Id.The second best interest factor focuses on a parent’s potential for lasting change by
examining “[w]hether the parent . . . has failed to effect a lasting adjustment after
reasonable efforts by available social services agencies for such duration of time that
lasting adjustment does not reasonably appear possible.” Id. § 36-1-113(i)(2). For four
years, DCS made reasonable efforts to assist Mother in effecting a lasting adjustment by
creating several permanency plans, discussing the requirements of those plans with her,
scheduling and funding assessments, scheduling visits with the children when Mother
provided her updated contact information, and notifying her of court dates, child and family
team meetings, and foster care review boards. Despite DCS’s efforts, Mother failed to
remedy the conditions that led to the children’s removal and made little to no effort to
comply with the requirements of the permanency plans. Instead, she refused to take
responsibility for her actions and chose to blame DCS for her losing custody of the children.
Mother’s failure to make an adjustment in her circumstances despite having four years to
do so demonstrates “that lasting adjustment does not reasonably appear possible.” Id.
Next, the trial court found that a meaningful relationship did not exist between
Mother and the children because she did not regularly visit them. See id. § 36-1-113(i)(3)-
5
The trial court determined that factor six did not apply to Mother. We agree and will not discuss it in
the body of this opinion.
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(4) (“Whether the parent . . . has maintained regular visitation” and “[w]hether a
meaningful relationship has otherwise been established between the parent . . . and the
child.”). Ms. Cade testified that the last in-person visit Mother attended occurred in
November 2018. The Department scheduled in-person visits in 2019, but Mother attended
none of them. When DCS limited visits to those by videoconference in 2020, Mother
attended some of them, but she barely engaged with the six children at issue in this appeal.
Rather, she focused on the infant, Mary. Ms. Kelly stated that, when she would set up
visits with Mother, the two older children would tell her that they did not want to visit with
Mother. Although the younger children did not express a desire not to visit with Mother,
they had only a vague memory of her because she had not visited in two years. Thus, the
children did not really engage with her during the videoconference visits. We agree with
the trial court’s finding that Mother did not establish a meaningful relationship with the
children due to her failure to regularly visit them.
The trial court also found that changing the children’s caretakers and physical
environment would have a negative effect on their well-being. See id. § 36-1-113(i)(5).
The children are happy and doing well in their respective foster homes. They are bonded
to the foster parents and refer to them as “mom” and/or “dad”. Although the children are
in different foster homes, the foster parents have ensured that the siblings maintain a
bonded relationship by visiting regularly. The respective foster parents want to adopt the
children should they become available for adoption. Mother, on the other hand, failed to
make any meaningful change in her circumstances and repeatedly refused to accept
responsibility for her actions that led to the children’s removal.
Factor seven considers whether there is criminal activity in the home and whether a
parent is often unable to care for a child due to substance abuse. Id. § 36-1-113(i)(7). At
the time of trial, Mother had a pending charge for aggravated assault with a deadly weapon.
She also had yet to address her substance abuse issues. She failed to complete any
substance abuse treatment, and although she did test negative for illegal substances on two
occasions before trial, she refused to submit to several requests for drug screens during the
months preceding trial despite knowing that those refusals would be counted as positive
drug screens.
Factor eight focuses on a parent’s mental or emotional status. See id. § 36-1-
113(i)(8). The mental health assessment Mother completed in 2018 indicated that she
needed treatment for “a moderately severe psychological or emotional problem.”
Nevertheless, Mother refused to complete an updated mental health assessment when the
children returned to DCS custody in 2019, adamantly claiming that she did need mental
health treatment because she did not have any mental health issues.
Lastly, factor nine considers whether a parent has paid child support. Id. § 36-1-
113(i)(9). Despite claiming to be employed for much of the four-year period following the
initial removal, Mother never paid child support. Other than providing some diapers and
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formula for Serenity shortly after her birth, Mother provided no other assistance to the
children.
Based on the foregoing, we conclude that the combined weight of the proven facts
amounts to clear and convincing evidence that termination of Mother’s parental rights is in
the best interest of the children.
CONCLUSION
We affirm the trial court termination of Mother’s parental rights on all five statutory
grounds and affirm the trial court’s conclusion that termination of Mother’s parental rights
is in the best interest of the children. Costs of this appeal are assessed against the appellant,
Betty F., for which execution may issue if necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
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