In Re Kailyn B. ( 2022 )

10/17/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 19, 2022 Session
IN RE KAILYN B.
Appeal from the Chancery Court for Campbell County
No. 2016-CV-171 Elizabeth C. Asbury, Chancellor
___________________________________
No. E2021-00809-COA-R3-PT
___________________________________
Mother appeals the termination of her parental rights. In addition to disputing the grounds
for termination and best interest, Mother argues that the petition was fatally flawed, and
Petitioners should not have been allowed to amend after the close of their proof. We
conclude that the trial court did not err in deciding the case on its merits because the
amendments were not prejudicial to Mother and remedied the petition’s deficiencies. We
further conclude that clear and convincing evidence was presented of both the grounds for
termination and that termination was in the child’s best interest. As such, we affirm the
decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
J. STEVEN STAFFORD, P, J., W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J. and THOMAS R. FRIERSON, II, J., joined.
Kevin W. Shepherd, Maryville, Tennessee, for the appellant, Brittany M. R.
Kristie N. Anderson, Jacksboro, Tennessee, for the appellee, Dustin L. B., and Ali F. B.
OPINION
I. FACTS AND PROCEDURAL HISTORY
Respondent/Appellant Brittany M. R.1 (“Mother”) and Petitioner/Appellee Dustin
L. B. (Father) are unmarried parents of minor child Kailyn B., born in October 2008. When
1
In cases involving termination of parental rights, it is this Court’s policy to remove the full names.
of children and other parties to protect their identities.
Mother and Father ended their relationship, the child remained in the primary custody of
Mother. Father was granted co-parenting time and paid court-ordered child support.
Both Mother and Father admit being addicted to drugs, such as cocaine, early in
their relationship. In or around June 2010, Father participated in rehabilitation therapy and
ceased his drug use. By her own admission, Mother continued with her drug use and began
abusing heroin and other opioids, including Hydrocodone and Roxicodone.2
During this time where her drug use was escalating, Mother retained custody of the
child. In late 2014, Gypsy F. (“Grandmother”), Mother’s grandmother, i.e., the child’s
maternal great-grandmother, became aware that the child was missing significant amounts
of kindergarten. This truancy, coupled with Mother’s escalating drug use, led Grandmother
to contact Father about seeking custody of the child.
On November 24, 2014, Father filed an emergency custody petition in Knox County
Juvenile Court (“the juvenile court”) alleging the child to be dependent and neglected while
in the care of Mother. After a January 14, 2015 hearing, the juvenile court entered an
interim order placing the child in Father’s custody. The order reflected that Mother had
been served with the petition but had not responded or appeared. Mother was incarcerated
in Blount County for approximately three months, beginning in February 2015.
A second hearing regarding the emergency custody petition was held on April 30,
2015. Both Father and Mother appeared with counsel. Pursuant to an oral stipulation by
Mother, the juvenile court found that the child was dependent and neglected as a result “of
the Mother’s current incarceration and as a result of the Mother having issues with
substance abuse[.]” In the final order, the child was placed in the legal and physical custody
of Father. Father’s then-fiancé, now-wife, Petitioner/Appellee Ali F. B. (“Stepmother,” and
together with Father, “Petitioners”) was authorized to consent to any medical decisions
regarding the child. Mother was granted co-parenting time, to be
strictly supervised by [Grandmother] at the home of the supervisor or in an
appropriate public place approved by the Father. The dates, times, and length
for co-parenting time shall be by agreement between the Father and the
supervisor. The Mother shall not be entitled to any overnight co-parenting
time with the child. The Mother shall not have anyone else with her during
the supervised co-parenting time.
2
See State v. Smith, No. M2020-00181-CCA-R3-CD, 2021 WL 1382584 (Tenn. Crim. App. Apr.
13, 2021) (expert testimony describing both heroin and hydrocodone as opioids); State v. Dye, No. M2018-
01191-CCA-R3-CD, 2019 WL 5172275, at *4 (Tenn. Crim. App. Oct. 15, 2019) (expert testimony that
“Hydrocodone is an opiate and central nervous system depressant” and “the effects of heroin would be
similar to the effects of hydrocodone”); New Jersey Div. Child Prot. & Permanency v. J.B., No. A-4795-
14T1, 2017 WL 2979342, at *2 (N.J. Super. App. Div. July 13, 2017) (per curiam) (expert testimony
explaining that Roxicodone is the brand name of a synthetic opiate also referred to as “Roxies”).
-2-
Mother was also given a list of specific tasks to be completed prior to petitioning to modify
the visitation agreement. Among other requirements aimed at stabilizing her domestic
situation, Mother was to attend parenting classes, obtain an honest alcohol and drug
assessment, and exercise regular visitation with the child.
Father filed a petition to establish Mother’s child support obligation on March 4,
2015. Mother failed to appear for the August 24, 2015 hearing. The juvenile court’s order
established that Mother was to pay $253.00 per month beginning September 1, 2015.
Father’s prior obligation was also terminated. The order was eventually filed in August
2016, but designated nunc pro tunc to August 24, 2015.
On or about May 29, 2015, Mother entered a guilty plea to a Class E felony for false
reporting, a Class A misdemeanor for theft of property under $500.00, and a Class D felony
for theft of property over $1,000.00. Mother testified that she successfully completed a
total sentence of three and a half years supervised probation on these charges.3
Father and Stepmother filed a petition for adoption and termination of parental
rights in the Chancery Court for Campbell County (“the trial court”) on October 28, 2016.
The petition alleged that Mother’s parental rights should be terminated on the grounds of
abandonment, noncompliance with a permanency plan or a plan of care, and persistence of
conditions.4 Petitioners’ motion to permit notice by publication was granted by order of
November 15, 2016. Mother failed to answer or appear and the trial court entered a final
decree of adoption on April 27, 2017.
3
Mother’s three-month incarceration beginning in February 2015 appears to have been pre-trial
detention related to these charges.
4
Petitioners may also have attempted to raise Tennessee Code Annotated § 36-1-113(g)(14) as
grounds for termination. That section calls for termination when:
A legal parent or guardian has failed to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the child, and placing the child in the person's legal and physical custody would pose a risk
of substantial harm to the physical or psychological welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). In their petition, Petitioners argued that Mother’s “parental rights shall
be terminated in that [she is] unfit, or, alternatively, that substantial harm to the child will result if
[Mother’s] parental rights are not terminated.” This is not a perfect analog to the statutory ground. The trial
court’s treatment of this allegation is also confusing. Section 36-1-113(g)(14) is not addressed in the trial
court’s findings of fact or conclusions of law. That section is, however, cursorily addressed in the trial
court’s final judgment as being found as a ground for termination by clear and convincing evidence. Neither
party has raised the inclusion of section (g)(14) in the final judgment as an issue on appeal or otherwise
provided any argument as to its applicability to the case-at-bar, so we will not tax the length of this Opinion
with substantial discussion of the arguably alleged ground.
-3-
Mother filed a petition to modify visitation in the juvenile court in September 2018,
including exhibits in support of her allegation that she had satisfied the juvenile court’s
June 2015 requirements. Then, on March 18, 2019, Mother filed a motion to unseal the
child’s adoption file along with a petition to set aside the adoption and termination order.
By order of July 19, 2019, the trial court granted the motion to unseal and permitted Mother
to file her petition to set aside. Therein, Mother argued that the final decree of adoption
was void because the trial court granted the order of publication when Petitioners’ motion
lacked the statutorily-required affidavit of diligent search or inquiry. Petitioners responded
to Mother’s motion and Mother answered Petitioners’ initial petition for adoption and
termination. By order of March 16, 2020, designated nunc pro tunc to October 18, 2019,
the trial court declared the 2017 final decree of adoption void and ordered a new trial on
the termination petition. Visitation with the child was neither ordered nor prohibited,
pending the new trial.
The trial regarding the termination of Mother’s parental rights was held on three
separate dates: July 22, 2020, August 25, 2020, and April 14, 2021. Although each party
called witnesses on their behalf, the bulk of the proof consisted of Mother’s and Father’s
testimony. Mother admitted that the juvenile court’s pre-modification requirements were
not fully met prior to the October 2016 petition for adoption and termination. Most were
not completed until she filed her petition to modify in 2018, and some remained unsatisfied
even by the time of trial. Mother admitted that she had not been honest about her prior
opioid use during her alcohol and drug assessment, had not completed the mental health
treatment recommended as part of the assessment, and had not executed any release of the
assessment to Father or the others indicated in the juvenile court’s order. Mother also
testified that the singular parenting class she attended in 2018 was not scheduled through
the juvenile court as directed.
Mother denied receiving notice of the child support petition while incarcerated in
the Blount County Jail but admitted to knowing that Father’s child support obligation had
been terminated. Mother further acknowledged that she owed a financial responsibility to
support the child. Mother explained that she has had stable housing since 2016 and
currently lives with her husband, their child together, and her two stepchildren. Mother
testified that she currently has a steady income, noting also that at the time of trial her
husband was unemployed but receiving veteran’s benefits. It was established that Mother
worked intermittently from 2013 through 2015 and in 2017, and that her boyfriend from
2013 to 2016 provided her with roughly $180.00 per day to fund her pain pill habit.
Mother acknowledged that she was in active addiction while the child was in her
custody prior to November 2014. Mother testified that her heroin use ended after she was
released from jail in 2015 and that she ended her regular Roxicodone use in September
2016, but continued to take pills as necessary to combat withdrawal symptoms until she
quit “cold turkey” in October 2016. Mother testified that she is currently prescribed
Oxycodone and Gabapentin for lower back pain related to a car accident when she was
-4-
seventeen.5 Mother agreed that she will sometimes drive with her children in the car after
taking the medication. Mother further testified that she did not disclose to the prescribing
institution that she was previously addicted to pain medication.
Mother testified that she visited with the child under Grandmother’s supervision
approximately six times between the issuance of the permanent custody order in 2014 and
July 2016. Mother also testified that she made numerous attempts to contact Father and the
child by phone but was denied access by Father. Mother admitted that there were times the
child was visiting with Grandmother during which Mother was abusing drugs and did not
see the child. Mother explained that she did not want to take the child away from Father
and Stepmother, but only wanted to reestablish their relationship.
Father also testified. Father explained that he has stable income and housing, and
had been sober for ten years. Father testified that Mother visited with the child only one
additional time between when he obtained custody in January 2015 and the final visit in
July 2016. Father further testified that Mother contacted him a few times after the July
2016 visit and was able to speak with the child, but that Mother did not request any further
visitation. Father described the growth seen in the child after being placed in his custody,
as well as the child’s close relationship with Stepmother and Stepmother’s parents. Father
testified that the child had not asked after Mother or Mother’s family since he received
custody. Father opined that the child would be negatively affected if a relationship was
reestablished with Mother.
At the close of Petitioners’ proof on August 25, 2020, counsel for Mother made an
oral motion for involuntary dismissal6 and submitted a memorandum in support. Mother
argued that the Petitioners had not (1) proven abandonment within the relevant four-month
period prescribed by statute; (2) filed the putative father registry statement; (3) included in
the petition certain required statistical information about the child’s previous addresses or
the notice required by Tennessee Rule of Civil Procedure 9A; or (4) proven noncompliance
5
Oxycodone is an opioid similar to Hydrocodone. See Dye, 2019 WL 5172275, at *4 (expert
testimony that “[H]ydrocodone is not the same as [O]xycodone, although the drugs have similar effects”);
Russell v. Dana Corp., No. M2015-00800-SC-R3-WC, 2016 WL 4136548, at *8 (Tenn. Workers Comp.
Panel Aug. 1, 2016) (per curiam) (finding physician’s replacement of a “hydrocodone prescription with the
more powerful opioid, oxycodone” to be improper in response to “various instances of misuse”).
Gabapentin is a controlled substance prescribed for nerve pain. See State v. Franklin, No. E2019-01047-
CCA-R3-CD, 2020 WL 2570030, at *2 (Tenn. Crim. App. May 21, 2020) (expert testimony).
6
We note that while Mother’s motion was called a “Motion for Directed Verdict” and referred to
as such throughout the record in this case, it would more properly be categorized as a Motion for Involuntary
Dismissal under Tennessee Rule of Civil Procedure 41.02. See McAdams v. McAdams, No. E2019-02150-
COA-R3-CV, 2020 WL 4723762, at *2 (Tenn. Ct. App. Aug. 13, 2020) (“A Rule 50 motion for a directed
verdict differs markedly from a Rule 41.02(2) motion for involuntary dismissal. The most obvious
difference between the two is that a motion for a directed verdict has no place in a bench trial while a motion
for involuntary dismissal has no place in a jury trial.”) (citing Burton v. Warren Farmers Co-op., 129
S.W.3d 513, 520 (Tenn. Ct. App. 2002)).
-5-
with a permanency plan, as none existed as defined under statute. On September 22, 2020,
Petitioners filed a motion for leave to amend their petition to include the notice required
by Tennessee Rule of Civil Procedure 9A.
After considering Mother’s motion and Petitioners’ response and motion to amend,
the trial court explained in its September 30, 2020 opinion that there was enough proof to
go forward on the abandonment issue, Petitioners had substantially complied with the
statistical information statute, and Mother would not be prejudiced by allowing Petitioners
to include the Rule 9A notice. The trial court also allowed the late filing of the putative
father registry statement but agreed with Mother that there was no permanency plan at
issue. Petitioners then filed their second motion for leave to amend, adding to the petition
information regarding the child’s residency over the previous five years, on April 7, 2021,
prior to the presentment of Mother’s proof.
On May 3, 2021, the trial court issued its findings of fact and conclusions of law.
As to Petitioner’s second motion to alter or amend, the trial court did not specifically state
that the motion was granted, but rather ruled that there had been “compliance with
providing other statutorily required averments in the pleadings.” The trial court then
concluded that two grounds for termination—abandonment by both willful failure to visit
and willful failure to support—had been proven by clear and convincing evidence,7 and
that termination of Mother’s parental rights was in the best interest of the child. The final
judgment terminating Mother’s parental rights was entered July 1, 2021. The judgment
reflected the trial court’s findings of abandonment by failure to support and failure to visit,
as well as termination of Mother’s rights being in the best interest of the child. Mother filed
her notice of appeal to this Court on July 15, 2021.
II. ISSUES RAISED
As we perceive it, this appeal involves two procedural issues and two substantive
issues:
1. Whether the trial court erred in granting Petitioners’ motions to amend after the
close of their proof.
2. Whether the trial court erred in not dismissing the petition based on its cumulative
deficiencies.
3. Whether the trial court erred in finding grounds for termination by clear and
convincing evidence.
4. Whether the trial court erred in finding it to be in the best interest of the child to
terminate Mother’s parental rights.
III. ANALYSIS
7
The trial court specifically found that Petitioners failed to prove persistence of conditions.
-6-
A.
We begin with Mother’s procedural arguments that the trial court erred by allowing
Petitioners to cure the deficiencies in the petition rather than dismissing the petition at the
close of Petitioners’ proof. Mother argues that the petition was defective in three main
respects.8 Mother first contends that the petition failed to comply with Tennessee Code
Annotated section 36-1-113(d)(3)(A)(i)9 in that the petition was filed before the putative
father registry was consulted. Mother further argues that the petition did not contain certain
statistical information concerning the residences of the child during the previous five years
as required by Tennessee Code Annotated section 36-6-224.10 Finally, Mother argues that
the petition failed to include the notice required by Tennessee Rule of Civil
Procedure 9A.11
8
Mother initially discusses the deficiency relating to the Petitioners’ service by publication that
lead to the April 27, 2017 final decree of adoption. However, the trial court agreed with Mother’s petition
to set aside that order, and voided the final decree based on improper service. Mother also points to
Petitioners’ reference to a permanency plan as evidence of the petition’s deficiency. The trial court
acknowledged that a permanency plan as defined in Tennessee Code Annotated section 37-2-402(9) was
inapplicable to this case and granted Mother’s motion for involuntary dismissal on that ground. As such,
section 36-1-113(g)(2) was not a basis for the trial court’s termination of Mother’s parental rights.
9
The statute in effect when the petition was filed read in pertinent part:
(3)(A) The petition, or allegations in the adoption petition, shall contain a verified
statement that:
(i) The putative father registry maintained by the department has been consulted within ten
(10) working days of the filing of the petition and shall state whether there exists any claim
on the registry to the paternity of the child who is the subject of the termination or adoption
petition[.]
Tenn. Code Ann. § 36-1-113 (2016).
10
The statute provides in pertinent part:
(a) Subject to the provisions of § 36-4-106(b), in a child-custody proceeding, each party,
in its first pleading or in an attached affidavit, shall give information, if reasonably
ascertainable, under oath, as to the child's present address or whereabouts, the places where
the child has lived during the last five (5) years, and the names and present addresses of
the persons with whom the child has lived during that period. . . .
Tenn. Code Ann. § 36-6-224.
11
Rule 9A reads:
In addition to meeting all other applicable rules governing the filing of pleadings,
any complaint or petition seeking a termination of parental rights shall contain the
following notice: “Any appeal of the trial court's final disposition of the complaint
or petition for termination of parental rights will be governed by the provisions of
Rule 8A, Tennessee Rules of Appellate Procedure, which imposes special time
limitations for the filing of a transcript or statement of the evidence, the completion
-7-
Mother argues that the culmination of multiple deficiencies in the petition was not
simply harmless error and the order allowing adoption and termination should be set aside.
In support of her argument, Mother looks to In re Natalie R.C., No. E2011-01185-COA-
R3-PT, 2011 WL 4924170 (Tenn. Ct. App. Oct. 18, 2011), a termination case involving a
petition with similar deficiencies. There, the parties agreed that the petition to terminate
the father’s parental rights was missing the required notice of special appellate timing in
termination cases, the required statement about consulting the putative father registry, the
required statistical information regarding the child’s residence, and the required language
regarding the effect of termination. Id. at *2–4. Mother correctly quotes this Court in its
conclusion that: “[h]owever technical these omissions may seem, given the number of
omissions considered in the context of a termination of parental rights, they may not be
overlooked or excused.” Id. at *5. Yet Mother omits the very next sentence which reads:
“We, however, do not agree with Father that these defects are fatal and require the petition
to be dismissed.” Id. Instead, this Court determined the defects to be “such that they can
be corrected . . . if given the opportunity[.]” Id. The order terminating the father’s rights
was therefore vacated and the case was remanded to allow the petitioner the chance to
remedy the deficiencies in her petition. Id. Thus, the case stands for the exact opposite
proposition as Mother would have us believe—in the face of multiple deficiencies,
petitions for termination of parental rights may be amended rather than dismissed. And
unlike in In re Natalie R.C., the Petitioners here corrected the deficiencies in their petition
prior to the final judgment.
Petitioners’ first motion for leave to amend involved adding to their petition the
notice required by Tennessee Rule of Civil Procedure 9A and was filed September 22,
2020. Because Mother was represented by competent counsel, the trial court found no
prejudice to Mother in allowing Petitioners to amend the petition to include the Rule 9A
notice. Petitioners’ second motion to amend was filed April 7, 2021, and included statistical
data about the child’s previous addresses as required by Tennessee Code Annotated section
36-6-224. The motion was never expressly granted by the trial court. In its September 30,
2020 opinion, the trial court acknowledged the missing information but found that
Petitioners had substantially complied with the statute. Then, when the motion to amend
was discussed prior to Mother putting on her proof, the trial court referred the parties to
the September opinion, explaining that, “[a]s far as I’m concerned, that’s been addressed.”
Later, in its May 3, 2021 opinion, the trial court acknowledged Petitioners’ compliance
with “statutorily required averments.” Taken together, these statements indicate that the
trial court found that Petitioners could amend their petition to include the missing
information and that the resulting amended petition was sufficiently compliant with the
and transmission of the record on appeal, and the filing of briefs in the appellate
court, as well as other special provisions for expediting the appeal. All parties must
review Rule 8A, Tenn. R. App. P., for information concerning the special
provisions that apply to any appeal of this case.”
Tenn. R. Civ. P. 9A.
-8-
statutory requirements such that any remaining deficiencies were not fatal. Cf. Morgan
Keegan & Co. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013) (“[W]hen construing orders
and judgments, effect must be given to that which is clearly implied, as well as to that
which is expressly stated.”).
Both of Petitioners’ amendments fall under Tennessee Rule of Civil Procedure
15.01. The admonition that “leave [to amend a pleading] shall be freely given when justice
so requires” in Rule 15.01 reflects Tennessee’s “history of favoring amendments.” City of
Oak Ridge v. Levitt, 493 S.W.3d 492, 499 (Tenn. Ct. App. 2015). Indeed, “Tennessee law
and policy have always favored permitting litigants to amend their pleadings to enable
disputes to be resolved on their merits rather than on legal technicalities.” Hardcastle v.
Harris, 170 S.W.3d 67, 80 (Tenn. Ct. App. 2004) (collecting cases dating to 1814). So
while the decision to permit an amendment is discretionary, the mandatory language of
Rule 15.01 “substantially lessens the exercise of pre-trial discretion on the part of a trial
judge.” Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 656
(Tenn. Ct. App. 2017) (quoting Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975)).
In addressing motions to amend, trial courts have been directed to “consider several
factors, including ‘undue delay in filing the amendment, lack of notice to the opposing
party, bad faith by the moving party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and the futility of the amendment.’”
Id. (quoting Gardiner v. Word, 731 S.W.2d 889, 891–92 (Tenn. 1987)). Of these, the
potential prejudicial effect of the proposed amendment is the most important to the trial
court’s analysis. Hardcastle, 170 S.W.3d at 81 (citing 6 Charles A. Wright et al., Federal
Practice and Procedure § 1487 (3d ed. 2022) (addressing consideration of motions to
amend under the identical rule of federal civil procedure)). Mother argues that both motions
should have been denied based on undue delay, repeated failure to cure deficiencies, and
undue prejudice.
Delay alone is insufficient to justify denying a motion to amend. March v. Levine,
115 S.W.3d 892, 909 (Tenn. Ct. App. 2003) (citing Moore v. City of Paducah, 790 F.2d
557, 562 (6th Cir. 1986)). Yet, unexplained delay coupled with other factors, like prior
knowledge of facts underlying a newly-added cause of action or undue prejudice to the
other party, could constitute such undue delay as to proscribe amendment. Id. (citations
omitted). Thus, even in its contemplation of other factors, a trial court must consider an
amendment’s prejudicial effect. A trial court’s analysis of the prejudicial effect of a
proposed amendment is a fact-intensive exercise. Hardcastle, 170 S.W.3d at 81. The court
must consider how its decision whether to grant the request to amend would affect the
parties, requiring an inquiry into “(1) the hardship on the moving party if the amendment
is denied; (2) the reasons for the moving party’s failure to include the claim, defense, or
other matter in its earlier pleading; and (3) the injustice to the opposing party should the
motion to amend be granted.” Id. (citing Wright, et al., supra, at § 1487).
-9-
A trial court’s decision on a motion to amend is reviewed under an abuse of
discretion standard. Blackwell, 523 S.W.3d at 656 (citing Fann v. City of Fairview, 905
S.W.2d 167, 175 (Tenn. Ct. App. 1994)). Therefore, we “presume that the trial court’s
discretionary decision is correct, and we consider the evidence in the light most favorable
to the decision.” Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011)
(citations omitted). Here, the evidence supports allowing Petitioners to amend.
Some of the relevant factors certainly weigh against allowing the amendment in this
case. For one, Petitioners, to this day, have never offered any explanation for the delay in
filing a correct petition. And they needed two amendments to achieve a substantially
correct petition. On the other hand, however, there is no allegation that Petitioners were
acting in bad faith. Moreover, Petitioners did file both their amendments shortly after
Mother’s motion for involuntary dismissal brought this matter to their attention. This is far
earlier than the petitioner in In Re Natalie, who was given an opportunity to correct
deficiencies in her petition for the first time after an appeal. 2011 WL 4924170, at *5. And
the hardship faced by Petitioners if the amendment was not granted is harsh; their petition,
which alleges that the parent of a child abandoned that child and has no relationship with
her, would be denied on a technicality.
What is more, the trial court found that these technical deficiencies had no effect on
Mother. In other words, Mother suffered no prejudice due to the technical deficiencies. The
trial court’s finding is in line with the holdings of other cases that amending a termination
petition to include the Rule 9A notice is not prejudicial to responding parties and that
failure to include the notice is harmless error. In re Bentley D., No. E2016-02299-COA-
R3-PT, 2018 WL 1410903, at *4 (Tenn. Ct. App. Mar. 21, 2018) (finding no prejudice
where neither original petition or amendment contained Rule 9A notice); In re J.G.H., Jr.,
No. W2008-01913-COA-R3-PR, 2009 WL 2502003, at *12 (Tenn. Ct. App. Aug. 17,
2009) (holding that “the trial court did not err in denying Mother’s oral motion to dismiss
or in allowing the [petitioners] to file an amendment to their petition to include the required
notice”); In re S.R.M., No. E2008-01359-COA-R3-PT, 2009 WL 837715, at *15 (Tenn.
Ct. App. Mar. 27, 2009) (“Father was not prejudiced by any initial noncompliance with
Tenn. R. Civ. P. 9A. Any error was harmless and does not require reversal. The Juvenile
Court did not err in allowing DCS to amend the petition.” (citation omitted)). Under these
circumstances, the trial court’s decision to allow Petitioners the opportunity to correct the
deficiencies in their petition was a reasonable “choice among several acceptable
alternatives.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). As such, the
trial court did not abuse its discretion in allowing these amendments. Given the
amendments, Mother’s arguments that the petition lacked either the required Rule 9A
notice or necessary statistical information such that it should have been dismissed are
without merit.
The only remaining deficiency raised by Mother is the failure to include the
statement regarding the putative father registry. In its response to Mother’s motion to
- 10 -
dismiss, the trial court allowed Petitioners to late file the statement.12 Petitioners allege that
the statement was filed before the completion of trial. The trial court acknowledged that
the statement was in the court file in its findings of fact and conclusions of law. The
statement does not, however, appear in the record designated upon appeal. “In the absence
of a transcript or statement of the evidence, we conclusively presume that the findings of
fact made by the trial court are supported by the evidence and are correct.” In re M.L.D.,
182 S.W.3d 890, 895 (Tenn. Ct. App. 2005) (citing J.C. Bradford & Co. v. Martin Constr.
Co., 576 S.W.2d 586, 587 (Tenn. 1979)). Here, without the benefit of a full appellate
record, we are unable to adequately review the trial court’s finding that the statement was
filed. Thus, we cannot dispute that the petition’s deficiencies were fully remedied prior to
the issuance of the trial court’s final judgment. Because Petitioners were properly given a
chance to correct their petition and have done so, the trial court did not err in not dismissing
the petition but resolving the case on its merits.
B.
We move next to the substantive issues, namely the trial court’s findings that clear
and convincing evidence supported termination of Mother’s parental rights. Parental rights
are “among the oldest of the judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re Carrington H.,
483 S.W.3d 507, 521 (Tenn. 2016) (collecting cases). In Tennessee, termination of parental
rights is governed by statute, which identifies “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., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)).
“[P]arents are constitutionally entitled to fundamentally fair procedures in parental
termination proceedings.” In re Carrington H., 483 S.W.3d at 511. These procedures
include “a heightened standard of proof—clear and convincing evidence.” Id. at 522
(citation omitted); accord In re Addalyne S., 556 S.W.3d 774, 782 (Tenn. Ct. App. 2018)
(“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.”).
Thus, a party seeking to terminate a parent’s rights must prove by clear and
convincing evidence (1) the existence of at least one of the statutory grounds in section
36-1-113(g), and (2) that termination is in the child’s best interest. In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002). The clear and convincing evidence standard applicable here
is “more exacting than the ‘preponderance of the evidence’ standard, although it does not
12
The admissibility of evidence rests squarely within the sound discretion of the trial court and will
not be disturbed absent clear abuse. Young v. Young, 971 S.W.2d 386, 392 (Tenn. Ct. App. 1997)
(collecting cases).
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demand the certainty required by the ‘beyond a reasonable doubt’ standard. In re S.R.C.,
156 S.W.3d 26, 29 (Tenn. Ct. App. 2004) (citation omitted). “Clear and convincing
evidence enables the fact-finder to form a firm belief or conviction regarding the truth of
the facts, and eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Carrington H., 483 S.W.3d at 522. The standard “ensures that the
facts are established as highly probable, rather than as simply more probable than not.” Id.
(citing In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005)).
In termination 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. See Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 523–24. “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 Carrington H., 483 S.W.3d at 524 (citation omitted).
1. Grounds for Termination
Mother does not expressly raise the issue that the trial court erred in finding clear
and convincing evidence of grounds for termination. Instead, she mentions the trial court’s
finding of abandonment within her discussion of the petition’s procedural deficiencies. We
will nevertheless address each of the grounds for termination discussed by the trial court.
See id. at 525–26 (holding that “in an appeal from an order terminating parental rights the
Court of Appeals must review the trial court’s findings as to each ground for termination
and as to whether termination is in the child’s best interests, regardless of whether the
parent challenges these findings on appeal”). The grounds at issue in this appeal are
therefore: (1) abandonment based on willful failure to visit and (2) abandonment based on
willful failure to support.13
Tennessee Code Annotated section 36-1-113(g)(1) provides abandonment by a
parent as a ground for the termination of parental rights. In turn, Tennessee Code Annotated
section 36-1-102 defines the term “abandonment.” At the time the termination petition was
filed, in October 2016, abandonment was defined, in pertinent part, as follows:
For purposes of terminating the parental or guardian rights of a parent or
13
We again note that Petitioners may have attempted to raise a failure to manifest the ability or
willingness to assume custody or responsibility for the child as a ground for termination in their petition.
However, the ground was not argued at trial or addressed in the parties’ briefs. Thus, even if the ground
had been raised, it has since been abandoned. Furthermore, no additional findings of fact or conclusions of
law regarding this ground appear in the record. See Tenn. Code Ann. § 36-1-113(k) (requiring specific
findings of fact and conclusions of law in termination orders). We therefore decline to review this ground
further, as although In re Carrington H. directs us to address each ground found by the trial court, we do
not interpret that directive as requiring such a fruitless endeavor.
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parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent . . . of the child who is the subject of the petition for termination
of parental rights or adoption, that the parent . . . either [has] willfully
failed to visit or [has] willfully failed to support or [has] willfully failed
to make reasonable payments toward the support of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A) (2016). That section further provided that a willful
failure to visit consists of “the willful failure, for a period of four (4) consecutive months,
to visit or engage in more than token visitation[.]” Id. § 36-1-102(1)(E). “Token visitation”
was defined as visitation 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). In this case, the
four-month period at issue spans from June 28, 2016, to October 27, 2016.
Mother first finds fault with the trial court’s finding of a willful a failure to visit
because she had visited with the child within the four-month period prescribed by statute.
Our analysis of this issue is somewhat complicated because the proof at trial as to visitation
was not strictly limited to the four-month period at issue. Both parties agree that at least
one visit did take place during this period, in July 2016. Father’s testimony is that there
may have been one additional visit during the four-month period, as he said that another
visit occurred in either May or June 2016.14 Regardless, Father testified that both visits
were improper based on Mother’s failure to comply with the juvenile court’s restrictions.
Grandmother acknowledged that there were two incidents involving Mother’s visitation
with the child not following the juvenile court’s order, although she was unable to say
exactly when Mother visited. So then, at best, Father testified that Mother participated in a
maximum of two visits during the four-month period, with both marred by misconduct.
In contrast, Mother testified that she had actually visited with the child six or seven
times after Father received custody, with the final visit being in July 2016. Mother’s
testimony was unclear as to when the other visits occurred and she provided no proof other
than her testimony to support the number of visits. Faced with this dispute, the trial court
chose to credit the testimony of Father and Grandmother over that of Mother. The trial
court is the “arbiter of witness credibility of those who testify live before it.” In re Hope
G., No. E2021-01521-COA-R3-PT, 2022 WL 4391897, *6 (Tenn. Ct. App. Sept. 23,
2022). A trial court’s determination of issues that hinge on witness credibility should be
afforded “considerable deference.” Id. (quoting Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn.
14
Father further testified that these were the only two visits that Mother had with the child in the
approximately five-year period from his January 2015 receipt of custody until trial in 2020.
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2014)). “[A]ppellate courts will not re-evaluate a trial judge’s assessment of
witness credibility absent clear and convincing evidence to the contrary.” Wells v.
Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
Here, Mother has not presented clear and convincing evidence to overturn the trial
court’s credibility findings on this issue. For one, Mother’s testimony was entirely unclear
as to when any of these alleged visits took place. Moreover, Mother conceded that she has
previously been dishonest about her efforts to comply with the juvenile court’s order in
order to regain custody. Finally, it appears that there is no dispute that Mother failed to
engage in any visitation after July 2016. Thus, at the very least, Mother failed to engage in
any visitation for approximately three out of the four months that make up the relevant
four-month period. Given the other proof in the record, including the testimony of Father
and Grandmother, the trial court did not abuse its discretion in discrediting Mother’s
unsubstantiated testimony. Thus, the trial court’s finding that Mother participated in one or
possibly two visits during the four-month period is affirmed.
The record further supports the trial court’s finding that Mother’s efforts were token
during this time frame. According to the proof presented, at some point in July 2016,
Mother, Grandmother, various other family members, and the child went to lunch and a
movie. There is no indication that Mother and the child were able to cultivate a meaningful
relationship in the roughly two-hour visit while watching a movie with other family
members present. Other than the failure to follow the juvenile court’s supervision
requirements there is no indication in the record that the previous visit was any more
significant. Thus, even if we view the evidence in the light most favorable to Mother and
say the earlier visit was within the relevant period, the dearth of earlier visits coupled with
a purely perfunctory July 2016 visit supports the trial court’s finding that the visitation
within the relevant four-month period was merely “token” within the meaning of
Tennessee Code Annotated section 36-1-102(1)(C) (2016). See, e.g., In re Matthew T., No.
M2015-00486-COA-R3-PT, 2016 WL 1621076, at *12 (Tenn. Ct. App. Apr. 20, 2016)
(four visits in a four-month period constituted token visitation); In re E.L.R., No. E2014-
00394-COA-R3-PT, 2014 WL 6735394, at *7 (Tenn. Ct. App. Dec. 1, 2014), perm. app.
denied (Tenn. Feb. 25, 2015) (seeing the child five times in the four month period was
token visitation); In re Joseph G., No. E2012-2501-COA-R3-PT, 2013 WL 3964167, at
*9 (Tenn. Ct. App. July 31, 2013) (weekly visits for only two of the four months
constituted token visitation); In re Hope A. A., No. E2012-01209-COA-R3-PT, 2013 WL
1933026, at *11 (Tenn. Ct. App. May 10, 2013) (five visits for a total of ten hours was
insufficient); In re Keri C., 384 S.W.3d at 750 (four or five visits was token visitation).
Mother argues, however, that any failure to visit after July 2016 was the result of
Father’s interference and thus not willful as required by statute.15 Mother argued at trial
15
The current version of this statute does not include willfulness in the definition of abandonment.
Tenn. Code Ann. § 36-1-102(1)(A) (2022). Instead, it provides an affirmative defense to a charge of
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that she made numerous attempts to speak with the child and was prevented from doing so
by Father. Father denied preventing Mother from speaking to the child when she called,
and further argued that neither Mother nor Grandmother requested any visitation after the
July 2016 visit. Citing her failure to seek visitation from 2016 until 2018, the trial court
found that Mother’s failure to engage in more than token visitation was willful.
“A parent’s failure to visit a child is considered willful when the parent is aware of
his or her duty to visit, has the capacity to visit, makes no attempt to visit, and has no
justifiable excuse for his or her failure to visit.” In re Hope G., 2022 WL 4391897, at *8
(citing In re Audrey S., 182 S.W.3d at 864). Willful conduct is “the product of free will
rather than coercion.” In re Audrey S., 182 S.W.3d at 863. Therefore, a parent’s “[f]ailure
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.” Id. at 864 (citations omitted).
Mother testified that she attempted to call and speak with the child on numerous
occasions but was rebuffed by Father each time. Mother also testified she purchased a cell
phone for the child, which Father discarded. In contrast, Father testified that Mother had
called only one or two times after the July 2016 visit and was able to speak with the child
each instance. Father testified that no further requests for visitation were made by either
Mother or Grandmother during any of these calls. Father did not, however, deny that he
discarded the phone purchased for the child.
Under these circumstances, we must affirm the trial court’s finding as to willfulness.
Faced with Father’s testimony that Mother never attempted to set up visitation after July
2016, Mother once again offered no proof beyond her unsupported testimony. Importantly,
Grandmother did not claim to have attempted to facilitate visitation between Mother and
the child only to rebuffed by Father. Given our earlier discussion of Mother’s credibility
on this issue, the trial court was therefore well within its discretion to credit Father’s
testimony that Mother did not attempt to visit after July 2016. In re Hope G., 2022 WL
4391897, *6.
Father’s decision to discard the child’s cell phone, while relevant, does not alter our
conclusion. For one, the juvenile court’s order makes clear that all visitation scheduling
was to go through Father. It does not appear unreasonable for him to rely on the prior order
and insist that communication go through him. Moreover, Father’s decision to not allow
the cell phone does not amount to a significant restraint on Mother’s ability to visit. In fact,
abandonment that the failure to visit or support was not willful. Id. § 36-1-102(1)(I) (2022). The statute in
effect at the time the petition was filed included willfulness in its definition of abandonment. Thus,
Petitioners needed to prove Mother’s abandonment was willful by clear and convincing evidence to meet
their burden of proof. Id. § 36-1-102(1)(A) (2016).
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Mother admitted that she sometimes chose to do illegal drugs rather than visit with her
child and that she continued to use illegal drugs regularly well into the four-month period.
Under these circumstances, the evidence does not preponderate against the trial court’s
finding that Mother willfully failed to engage in more than token visitation with her child
in the relevant four-month period. Accordingly, we affirm the trial court’s termination of
Mother’s rights on the ground of abandonment by willful failure to visit.
The second ground for termination of Mother’s parental rights involved
abandonment by willful failure to support. At the time the petition was filed, willful failure
to support involved a “willful failure, for a period of four (4) consecutive months, to
provide monetary support or the willful failure to provide more than token payments
toward the support of the child” Tenn. Code Ann. § 36-1-102(1)(D) (2016). There is no
dispute that Mother has not made any payments toward child support to date. The question,
therefore, is whether Mother’s failure to support the child was willful. “A parent’s failure
to support is ‘willful’ when the parent (1) knows of his or her duty to support, (2) has the
ability to provide support, (3) makes no effort to provide support, and (4) has no justifiable
reason for not providing support.” In re Jeremiah N., No. E2016-00371-COA-R3-PT,
2017 WL 1655612 (Tenn. Ct. App. May 2, 2017) (citing In re Audrey S., 182 S.W.3d
at 864).
As to the first, third, and fourth elements of willfulness, Mother blames her
nonpayment of the court-ordered child support on a lack of notice based on her
incarceration. Mother was incarcerated in Blount County for approximately three months
beginning in February 2015. The child support hearing took place August 24, 2015. The
order entered August 12, 2016 reflected that Mother was not in attendance but that a copy
was sent to two of her last known addresses. Mother also admitted that she knew that
Father’s child support obligation was terminated, which took place at the same hearing
initiating Mother’s obligation. Mother further testified that she knew the child needed
financial support. Regardless of Mother’s actual notice of her court-ordered child support
obligation, parents are “presumed to have knowledge of a parent’s legal obligation to
support such parent’s child.” Tenn. Code Ann. § 36-1-102(1)(H) (2016). Mother’s
argument in this regard is, respectfully, without merit.
As to the second willfulness element, Mother claims that there was no proof
presented that she was actually able to provide financial support. Petitioners argue that
Mother chose to spend the money she had access to during the relevant period on illegal
drugs, rather than on supporting the child. We agree with Petitioners.
This Court has determined that evidence showing the parent worked only
intermittently during the relevant period is insufficient on its own to establish the parent’s
ability to pay support. In re Addalyne S., 556 S.W.3d at 789 (citing In re T.W., No. E2017-
00317-COA-R3-PT, 2018 WL 1831109, at *8 (Tenn. Ct. App. Apr. 17, 2018)). Generally,
an ability to pay requires proof of both income and expenses. Id. (collecting cases).
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Similarly, the purchase of illegal drugs alone is insufficient to prove that Mother’s failure
to provide support was willful. Id. at 788 (citing In re Kira G., No. 2016-01198-COA-R3-
PT, 2017 WL 1395521, at *6 (Tenn. Ct. App. April 18, 2017) (“Although illegal drug abuse
and the purchase or sale of illegal drugs may well be relevant to determining whether a
parent willfully has failed to support his or her child while supporting his or her drug use,
illegal drug activity by itself does not establish willfulness.”)).
However, In re Addalyne S. is factually distinguishable from the present case.
There, the mother was gainfully employed during the relevant period, although no evidence
in the record described the mother’s hourly pay or weekly hours worked. Id. Instead, the
evidence showed that the mother was able to buy general necessities as well as illegal
drugs. Id. This Court determined that illegal drug use was not enough on its own to
establish willful failure to support when the mother was also making gifts to the child. Id.
at 789.
The proof in this case, however, is different: Mother had consistent access to
significant amounts of money and none of it was put toward supporting the child.
Specifically, Mother’s testimony established that she was receiving considerable amounts
of money before and during the relevant four-month period and spent that money on illegal
drugs rather than provide any financial support to the child. Mother testified that her
boyfriend from 2013 through late 201616 provided her with roughly $180.00 per day to
fund her pain pill addiction, as well as additional money for “[a]nything [she] wanted.”
This period of time clearly encompasses the relevant four-month period. Mother testified
that there was nothing prohibiting her from employment during the relevant four-month
period, but that it was a choice not to work. Furthermore, it was established that Mother
was living with and supported by either family or boyfriends during the relevant period.
Together, the information in the record establishes that Mother chose to spend
significant amounts of money on daily drug use yet provided no financial support to the
child at all. Under these circumstances, we believe that the evidence was sufficient to
eliminate any serious or substantial doubt as to Mother’s capacity to support the child
during the relevant time. Coupled with Mother’s knowledge of her obligation to support
the child and her continued failure to provide even token support, we conclude that there
was clear and convincing evidence that Mother’s failure to support the child was willful.
Thus, the trial court’s termination of Mother’s rights on the ground of abandonment by
failure to support is affirmed.
2. Best Interest
Because we have determined that at least one statutory ground has been proven for
terminating Mother’s parental rights, we must now decide if Petitioners have proven, by
16
We emphasize that this is not Mother’s now-husband.
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clear and convincing evidence, that termination of Mother’s rights is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.
App. 1994). The factors that courts should consider in ascertaining the best interest of
children 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 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;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home
is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or controlled
substance analogues as may render the parent or guardian consistently
unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child;
or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to
§ 36-5-101.
T.C.A. § 36-1-113(i) (2016).17 “This list 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 at
17
The current version of this statute includes eleven additional factors to be considered. Tenn. Code
Ann. § 36-1-113(i)(1) (2022). Neither party asserts that the revised version of the statute is applicable in
this case, so we will refer to the factors in place at the time the petition was filed. We use the 2016 version
of section 36-1-113(i) throughout this Opinion.
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667 (citations omitted). Likewise, determining a child’s best interest does not entail simply
conducting “a rote examination” of each factor and then totaling the number of factors that
weigh for or against termination. In re Audrey S., 182 S.W.3d at 878. Instead, 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.” Id. (citing
White, 171 S.W.3d at 194).
The factual findings made in connection with 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 533, 555 (Tenn., 2015) (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.” Id. (citations omitted).
In this case, no delicate balancing of the factors is required. Virtually all of the statutory
factors militate, more or less heavily, in favor of terminating Mother’s parental rights, one
of the factors is inapplicable, and only one of the factors weighs against termination.
Factors (3), (4), (5), and (9) weigh most heavily in favor of terminating Mother’s
rights. It is likely true that Mother had a meaningful relationship with the child prior to
Father obtaining custody, when the child was approximately seven. However, the child is
now approximately fourteen years old. It has been more than six years since Mother’s last
visit with the child in July 2016. The child has not seen Mother for roughly half of her life.
See Tenn. Code Ann. § 36-1-113(i)(3). The testimony at trial was that the child calls
Stepmother “Mom” and has not asked about Mother or Mother’s family since going to live
with Father and Stepmother. At this point, no meaningful relationship remains between
Mother and the child. See id. § 36-1-113(i)(4). It is therefore highly likely that
reintroducing the child to Mother now would have serious negative effects on the child’s
emotional or psychological condition. See id. § 36-1-113(i)(5); see also In re Jaydin A.,
No. M2018-02145-COA-R3-PT, 2019 WL 6770494, at *8 (Tenn. Ct. App. Dec. 12, 2019)
(“Although no proof was specifically presented that a change in caretakers would be
harmful to the child, common sense dictates that removing a child from the only family she
has ever known and placing her with a stranger who has historically chosen to put his own
desires ahead of the child’s needs would cause harm to the child.”). And regardless of her
knowledge of her court-ordered obligation to do so, Mother has yet to provide any financial
support toward the care or wellbeing of the child despite her admitted knowledge that the
child needs to be supported. See Tenn. Code Ann. § 36-1-113(i)(9).
Factors (1), (6), and (7), while requiring a closer consideration, also weigh in favor
of terminating Mother’s parental rights. The trial court acknowledged that Mother has
taken significant steps to improve her situation and the evidence supports these findings.
Mother has stable housing and gainful employment. Mother has another child and is a
stepparent to her husband’s two children. See id. § 36-1-113(i)(1). There has been no
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further criminal activity or incidents of domestic violence, and Mother has ceased use of
illegal drugs. See id. § 36-1-113(i)(6), (7). However, Mother now has a prescription for
pain pills similar to those to which she was previously addicted. While her current use of
controlled substances may be legal, considering Mother’s pattern of prevarication
regarding her drug use—both during her court-ordered drug and alcohol assessment and to
the prescribing pain clinic—this Court has serious misgivings about Mother’s continued
use of opioids. See id. § 36-1-113(i)(7); In re Navada N., 498 S.W.3d 579, 595 (Tenn. Ct.
App. 2016) (“[A] suitable home requires more than a proper physical living location. It
requires that the home be free of drugs and domestic violence.” (internal quotation
omitted)). We further note that the child was removed from Mother’s custody due to issues
of neglect caused by Mother’s drug use. See Tenn. Code Ann. § 36-1-113(i)(6). Moreover,
even Mother’s attempt to regain visitation came years after the cessation of visitation when
Mother still had not accomplished the requirements set forth by the juvenile court. In
particular, neither the alcohol and drug assessment nor the parenting classes were
completed properly. We have held in similar circumstances that such effort is simply “too
little, too late.” See In re Emily N.I., No. E2011-01439-COA-R3-PT, 2012 WL 1940810,
at *16 (Tenn. Ct. App. May 30, 2012) (explaining that the parents’ “refusal to complete a
number of the requirements until after the termination petition was filed . . . was simply
‘[t]oo little, too late’” given the length of time the child had been removed from the parents’
custody); In re A.W., 114 S.W.3d 541, 546 (Tenn. Ct. App. 2003) (holding that the
mother’s improvement only a few months prior to trial was “[t]oo little, too late”).
Factor (2), regarding lasting adjustment after reasonable efforts by social services,
was found by the trial court to be inapplicable to the case at hand. The evidence supports
this finding as rehabilitative efforts by social services were not at issue. See Tenn. Code
Ann. § 36-1-113(i)(2). Therefore, this factor does not carry any weight here.
The trial court also found factor (8), regarding the parent’s mental and/or emotional
status, to be inapplicable. However, no proof was presented that Mother’s mental or
emotional status would be detrimental to the child or prevent Mother from effectively
providing safe and stable care and supervision. See id. § 36-1-113(i)(8). Thus, factor (8)
would actually weigh against terminating Mother’s rights. See, e.g., In re Jayda J., No.
M2020-01309-COA-R3-PT, 2021 WL 3076770, at *28 (Tenn. Ct. App. July 21, 2021)
(holding that because no evidence was presented as to a factor, the factor weighed against
termination); In re Taylor B.W., 397 S.W.3d 105, 113 (Tenn. 2013) (affirming the holding
that the absence of proof as to a factor meant the factor did not favor termination).
Thus, while not all the factors in this case favor termination equally, more factors
weigh in favor of termination than weigh against it. But we do not determine the best
interest of a child merely by totaling the number of factors that weigh for or against
termination; instead, that determination often depends on the relevancy and weight of each
factor. See In re I.E.A., 511 S.W.3d 507, 518 (Tenn. Ct. App. 2016) (quoting In re Audrey
S., 182 S.W.3d at 878). Mother has not visited with the child since July 2016 or provided
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financial support since the child was placed in Father’s custody in 2015. Moreover, the
child has developed a close relationship with Stepmother over the last several years and no
longer has a meaningful relationship with Mother, such that she would be negatively
affected by reestablishing contact with Mother. Here, from the child’s perspective, we must
conclude that the most important factors are the lack of meaningful relationship between
the child and Mother and the detrimental effect that a change in caretakers would cause.
See In re Addalyne S., 556 S.W.3d at 795–96 (“This Court has previously indicated that
in some cases the lack of a meaningful relationship between a parent and child is the most
important factor[.]”). With all of the above considerations in mind, we conclude that there
was clear and convincing evidence to establish that termination of Mother’s parental rights
was in the best interest of the child. Accordingly, we affirm the trial court’s ultimate
decision to terminate Mother’s parental rights.
IV. CONCLUSION
Based on the foregoing, the judgment of the Chancery Court for Campbell County
is affirmed and this cause is remanded for further proceedings as are necessary and
consistent with this Opinion. Costs are taxed to Appellant, Brittany M. R., for which
execution may issue, if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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