In Re Elijah F. ( 2022 )

11/10/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 1, 2022
IN RE ELIJAH F.
Appeal from the Juvenile Court for Davidson County
No. 2018-2919, PT256248 Sheila D. J. Calloway, Judge
___________________________________
No. M2022-00191-COA-R3-PT
___________________________________
In this case involving termination of the mother’s parental rights to her child, the Davidson
County Juvenile Court (“trial court”) determined that several statutory grounds for
termination had been proven by clear and convincing evidence. The trial court further
determined that clear and convincing evidence established that termination of the mother’s
parental rights was in the child’s best interest. The mother has appealed. Having
determined that three of the statutory grounds were not supported by sufficient findings of
fact and conclusions of law, we reverse the trial court’s judgment with respect to the
grounds of abandonment by an incarcerated parent by failure to support, abandonment by
exhibiting wanton disregard for the child’s welfare prior to incarceration, and failure to
manifest an ability and willingness to assume custody of or financial responsibility for the
child. We affirm the trial court’s judgment in all other respects, including the termination
of the mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Reversed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.
C. Michael Cardwell, Nashville, Tennessee, for the appellant, Brittany F.
Jennifer L. E. Williams, Springfield, Tennessee, for the appellees, Dale F. and Wendellyn
F.
OPINION
I. Factual and Procedural Background
Dale F. (“Grandfather”) and Wendellyn F. (“Grandmother”) (collectively,
“Grandparents”), the maternal grandparents of Elijah F. (“the Child”), filed a petition in
the trial court on March 11, 2020, seeking termination of the parental rights of Brittany F.
(“Mother”) and Elijah N. (“Father”)1 to the Child. The trial court had adjudicated the Child
dependent and neglected in an “Order of Adjudication and Disposition” entered in March
2019. Therein, the trial court related that the Child was born on November 3, 2017, and
had lived with both Mother and Father immediately after his birth until August 13, 2018,
when DCS intervened upon receiving a referral alleging that the Child lacked supervision
and had been exposed to illegal drugs by Mother and Father.
According to the trial court’s order, upon DCS’s receipt of the referral, law
enforcement officers conducted a “welfare check on this family at a hotel.” Upon arrival,
the officers discovered that there was an outstanding warrant for Father’s arrest and found
drug paraphernalia “on the parents.” Although Father admitted to the use of heroin, Mother
denied using illegal drugs. Officers indicated that Mother’s appearance was “indicative of
a drug user.” Both parents were taken into custody, beginning DCS’s involvement with
this family. On August 17, 2018, the trial court placed the Child in the temporary custody
of Grandparents.
In their petition to terminate Mother’s and Father’s parental rights to the Child,
Grandparents alleged several grounds for termination of Mother’s parental rights,
including: (1) abandonment by failure to visit, pursuant to Tennessee Code Annotated §§
36-1-113(g)(1) and 36-1-102(1)(A)(i); (2) abandonment by failure to support, pursuant to
Tennessee Code Annotated §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i); (3) failure to
substantially comply with the requirements of her permanency plan, pursuant to Tennessee
Code Annotated § 36-1-113(g)(2); (4) persistence of the conditions that led to removal of
the Child, pursuant to Tennessee Code Annotated § 36-1-113(g)(3); and (5) failure to
manifest an ability and willingness to assume legal or physical custody of or financial
responsibility for the Child, pursuant to Tennessee Code Annotated § 36-1-113(g)(14). In
an amended petition filed on April 15, 2021, Grandparents withdrew the first two
abandonment grounds alleged in the original petition and added the following grounds:
abandonment by failure to visit during the four months prior to Mother’s incarceration,
abandonment by failure to support during the four months prior to Mother’s incarceration,
and abandonment by engaging in conduct prior to incarceration exhibiting a wanton
1
The trial court entered a default judgment against Father after he had failed to file an answer to the
termination petition and failed to appear for a hearing on September 1, 2020. Father has not appealed the
court’s decision and is not a party to this appeal. We will therefore limit our review to the trial court’s
termination of Mother’s parental rights to the Child.
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disregard for the Child, all pursuant to Tennessee Code Annotated §§ 36-1-113(g)(1) and
36-1-102(1)(A)(iv).2
After conducting a bench trial on October 14, 2021, the trial court entered a final
order terminating Mother’s parental rights to the Child on January 19, 2022. The trial court
found clear and convincing evidence of the following statutory grounds for termination of
Mother’s parental rights: (1) abandonment by failure to visit, (2) abandonment by failure
to support,3 (3) abandonment by being “incarcerated willfully,”4 (4) persistence of the
conditions that led to removal of the Child from Mother’s custody, and (5) failure to
manifest an ability and willingness to assume legal and physical custody of or financial
responsibility for the Child. The court determined that the ground of failure to substantially
comply with the requirements of the permanency plan was inapplicable based on its finding
that no valid permanency plan had been developed by DCS. Upon analyzing the best
interest considerations in Tennessee Code Annotated § 36-1-113(i), the trial court
determined that termination of Mother’s parental rights was in the Child’s best interest.
Mother timely appealed.
II. Issues Presented
Mother raises the following issues for this Court’s review, which we have restated
slightly as follows:
1. Whether the trial court erred by finding clear and convincing evidence
that Mother had abandoned the Child by willfully failing to visit him
within the statutorily relevant four-month period.
2. Whether the trial court erred by finding clear and convincing evidence
that Mother had abandoned the Child by willfully failing to support
him within the statutorily relevant four-month period.
2
During trial, Grandparents explained to the trial court that the three grounds included in the amended
petition were meant to replace the two abandonment grounds included in the original petition, and they
consequently withdrew the two original abandonment grounds.
3
The trial court’s order does not specify whether its finding of the grounds of abandonment by failure to
visit and abandonment by failure to support pertain to Tennessee Code Annotated § 36-1-102(1)(A)(i) or §
36-1-102(1)(A)(iv), the latter applying to a parent who has been incarcerated for all or part of the statutory
four-month period. Mother, however, does not argue that the trial court considered the incorrect statutory
grounds of abandonment, and the trial court expressly found in its order that Mother had been incarcerated
for periods of the four months preceding the petition’s filing. Thus, we will review the court’s findings as
if applied to the proper statutory grounds of abandonment by an incarcerated parent pursuant to Tennessee
Code Annotated § 36-1-102(1)(A)(iv).
4
The trial court’s finding that Mother had been willfully incarcerated presumably refers to the abandonment
ground of exhibiting wanton disregard for the Child’s welfare prior to incarceration.
-3-
3. Whether the trial court erred by finding clear and convincing evidence
that Mother had abandoned the Child by engaging in conduct that
exhibited a wanton disregard for the Child’s welfare prior to her
incarceration.
4. Whether the trial court erred by finding clear and convincing evidence
that the conditions that led to the Child’s removal from Mother’s
custody persisted.
5. Whether the trial court erred by finding clear and convincing evidence
that Mother had failed to manifest an ability and willingness to assume
legal and physical custody of or financial responsibility for the Child.
6. Whether the trial court erred by finding clear and convincing evidence
that termination of Mother’s parental rights was in the Child’s best
interest.
Grandparents add an additional issue, restated slightly as follows:
7. Whether the trial court erred by finding insufficient evidence that
Mother had failed to substantially comply with a permanency plan.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. See
Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn.
2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de
novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524
(citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
-4-
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:
The parental rights at stake are “far more precious than any property right.”
Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of
parental rights has the legal effect of reducing the parent to the role of a
complete stranger and of [“]severing forever all legal rights and obligations
of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1);
see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to “fundamentally
fair procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“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
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as highly
probable, rather than as simply more probable than not. 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 light of the heightened burden of proof in termination proceedings,
however, the reviewing court must make its 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 Bernard T., 319 S.W.3d at 596-
97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
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IV. Statutory Grounds for Termination of Mother’s Parental Rights
Tennessee Code Annotated § 36-1-113 (Supp. 2022) lists the statutory requirements
for termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction with
the juvenile court to terminate parental or guardianship rights to a
child in a separate proceeding, or as a part of the adoption proceeding
by utilizing any grounds for termination of parental or guardianship
rights permitted in this part or in title 37, chapter 1, part 1 and title 37,
chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
Inasmuch as Mother has challenged the trial court’s findings and conclusions as to each
statutory ground, we will address each ground in turn.
A. Statutory Abandonment
Concerning statutory abandonment, Tennessee Code Annotated § 36-1-113(g)(1)
(Supp. 2022) provides as relevant to this action:
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the grounds listed in this subsection (g). The
following grounds are cumulative and nonexclusive, so that listing
conditions, acts or omissions in one ground does not prevent them
from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred; . . .
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The version of Tennessee Code Annotated § 36-1-102(1)(A) (2020) in effect when the
instant action was filed provided the following definitions of abandonment as pertinent
here:
(iv) A parent or guardian is incarcerated at the time of the filing of a
proceeding, pleading, petition, or amended petition to terminate the
parental rights of the parent or guardian of the child who is the subject
of the petition for termination of parental rights or adoption, or a
parent or guardian has been incarcerated during all or part of the four
(4) consecutive months immediately preceding the filing of the action
and has:
(a) Failed to visit, has failed to support, or has failed to make
reasonable payments toward the support of the child for four
(4) consecutive months immediately preceding the parent’s or
guardian’s incarceration;
(b) Failed to visit, has failed to support, or has failed to make
reasonable payments toward the support of the child during an
aggregation of the first one hundred twenty (120) days of non-
incarceration immediately preceding the filing of the action; or
(c) Has engaged in conduct prior to incarceration that exhibits a
wanton disregard for the welfare of the child[.][5]
1. Abandonment by Incarcerated Parent
Pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv)
We begin our review of the grounds of abandonment by failure to visit and failure
to support by addressing the applicable four-month determinative period as outlined in the
statute. In their original petition, Grandparents asserted abandonment grounds for failure
to visit and failure to support pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(i),
which applies to the four months immediately preceding the filing of the termination
petition and does not apply to parents who are incarcerated during all or part of the four-
month period. Upon learning that Mother had been incarcerated for part of the four-month
period, Grandparents filed an amended petition alleging the proper statutory grounds for
abandonment by failure to visit and failure to support when the parent is incarcerated
5
Effective April 29, 2022, Tennessee Code Annotated § 36-1-102(1)(A)(iv)(c) has been amended
to state: “With knowledge of the existence of the born or unborn child, engaged in conduct prior
to, during, or after incarceration that exhibits a wanton disregard for the welfare of the child[.]”
See 2022 Tenn. Pub. Acts, Ch. 937, § 17 (H.B. 2070).
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during all or part of the four-month period pursuant to Tennessee Code Annotated § 36-1-
102(1)(A)(iv).
The trial court, however, incorrectly determined that the relevant four-month period
began on January 15, 2021, and ended on April 15, 2021. The court’s determination only
amounts to a three-month period and was erroneously predicated upon the filing of
Grandparents’ amended termination petition on April 15, 2021. This Court has previously
clarified that “where an ‘amendment’ to a termination petition d[oes] not constitute a
separate and distinct petition, the proper four month period to consider [i]s the four months
preceding the filing of the original petition, not the amendment.” In re Chase L., No.
M2017-02362-COA-R3-PT, 2018 WL 3203109, at *9 (Tenn. Ct. App. June 29, 2018); see
In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *5 (Tenn. Ct. App.
July 22, 2020) (“As this amended petition was not a ‘separate and distinct’ petition from
the original . . . the proper period to consider abandonment was . . . the four months
preceding the filing of the original petition.”). In this case, the amended petition was not a
“separate and distinct” petition from the original given that Grandparents clarified within
the amended petition that it did not supersede but rather served to amend the original
petition. See In re Braelyn S., 2020 WL 4200088, at *5. Moreover, the amended petition
corrected the errors in the first petition by considering Mother’s periods of incarceration
during the four-month period preceding the original petition. Ergo, the four-month
statutory period should have been based upon the date the original petition was filed.
Furthermore, although Grandparents stated in the amended petition that Mother had
failed to visit and failed to support the Child during an aggregate total of four months
immediately preceding her incarcerated periods and the filing of the petition, the trial court
did not piece together a 120-day period in which Mother was not incarcerated. See In re
Travis H., No. E2016-02250-COA-R3-PT, 2017 WL 1843211, at *9 (Tenn. Ct. App. May
5, 2017) (“[T]he trial court was required to determine the four-month period by piecing
together Father’s periods of non-incarceration prior to the filing of the termination
petition.”). In accordance with Tennessee Code Annotated § 36-1-102(1)(A)(iv)(b), when
a parent is incarcerated during part of the four-month period immediately preceding the
filing of the termination petition, courts should consider the first 120 days of
nonincarceration immediately preceding the filing of the petition.6
Therefore, the trial court should have considered the first 120 days during which
Mother was not incarcerated preceding March 11, 2020, the filing date of the original
petition. In its final order, the court determined that Mother had been incarcerated from
July 18, 2019, through January 16, 2020. Thus, counting backwards from March 10, 2020,
see In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct.
6
On appeal, Grandparents concede that the trial court erred in calculating the determinative period based
on the filing date of the amended petition and in failing to aggregate the periods of Mother’s
nonincarceration. However, Grandparents contend that these errors were harmless.
-8-
App. Feb. 20, 2014) (concluding that the applicable four-month statutory period preceding
filing of the termination petition ends on the day preceding filing), to January 17, 2020,
establishes a period of fifty-four days during which Mother was not incarcerated. Mother
was also incarcerated from May 17, 2019, through May 29, 2019. Therefore, the next
period of nonincarceration would have been May 30, 2019, to July 17, 2019, creating a
period of forty-nine days during which Mother was not incarcerated. Prior to her
incarceration in May 2019, Mother had not been incarcerated since November 16, 2018.
Thus, the final period of nonincarceration that the trial court should have considered would
have been April 30, 2019, to May 16, 2019, amounting to seventeen days. Therefore, the
relevant, aggregated four-month statutory period for the abandonment grounds of failure
to visit and failure to support would be April 30, 2019, to May 16, 2019; May 30, 2019, to
July 17, 2019; and January 17, 2020, to March 10, 2020 (“Determinative Period”).
Although the trial court did not calculate the correct Determinative Period, this
Court has previously concluded that a court’s “miscalculation of the relevant four-month
period can be considered harmless when the trial court made sufficient findings of fact that
encompassed the correct determinative period,” see In re J’Khari F., No. M2018-00708-
COA-R3-PT, 2019 WL 411538, at *9 (Tenn. Ct. App. Jan. 31, 2019), and when the court’s
“findings of fact and conclusions of law include sufficient information to consider the
correct four-month period,” see In re Braelyn S., 2020 WL 4200088, at *5. In the present
case, the trial court included within its final order the periods of Mother’s incarceration,
which has rendered the correct Determinative Period ascertainable by this Court. We will
now consider whether the trial court made sufficient findings of fact to encompass the
Determinative Period with respect to the abandonment grounds of failure to visit and failure
to support.
a. Failure to Visit
In its final order, the trial court found that Mother had engaged in “no meaningful
visitation with the child since the fall of 2018.” Given that the court’s finding as to the
abandonment ground included a three-year period spanning and encompassing the
Determinative Period, we conclude that the court’s miscalculation of the applicable four-
month statutory period constituted harmless error. In addition, upon careful review of the
record, we conclude that the evidence does not preponderate against the court’s
determination that there had been no meaningful visitation between Mother and the Child
in over three years.
During trial, Mother acknowledged that she had not visited the Child in several
years and that she had not seen the Child since he was an infant. By the time of the trial,
the Child was nearly four years old. Mother testified that in the three years since the Child
had been in Grandparents’ custody, she had visited the Child once when the Child was still
an infant. Grandmother testified that Mother had only visited the Child one time since
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Grandparents had obtained custody, which visit occurred in October 2018, well before the
beginning of the Determinative Period.
On appeal, Mother contends that her failure to visit the Child was not willful
inasmuch as the trial court suspended Mother’s visitation when it entered its Order of
Adjudication and Disposition on March 21, 2019.7 In its order, the trial court provided that
Mother would not have any contact with the Child until she presented herself before the
court so that it could decide whether visitation would be in the Child’s best interest. Mother
also argues that she attempted to visit the Child by filing a motion to dissolve the no-contact
order and request visitation on March 19, 2021, nearly two years after the no-contact order
had been implemented.
With respect to a parent’s willfulness in failing to visit or financially support,
Tennessee Code Annotated § 36-1-102(1)(I) (Supp. 2022) provides:
For purposes of this subdivision (1), it shall be a defense to
abandonment for failure to visit or failure to support that a parent or
guardian’s failure to visit or support was not willful. The parent or guardian
shall bear the burden of proof that the failure to visit or support was not
willful. Such defense must be established by a preponderance of evidence.
The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of
the Tennessee Rules of Civil Procedure[.]
As previously explained by this Court, “willfulness” does not require the same standard of
culpability as is required by the criminal code, and it does not require “malevolence or ill
will.” In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). Rather “[w]illful
conduct consists of acts or failures to act that are intentional or voluntary rather than
accidental or inadvertent,” and such conduct is the “product of free will rather than
coercion.” Id.Mother’s postulate that she did not willfully fail to visit the Child due to the no-
contact order is unavailing. Our Supreme Court has previously addressed similar facts in
which a father advanced the position that he did not willfully fail to visit his children due
to existence of an order suspending his visitation rights. See In re Adoption of Angela E.,
402 S.W.3d 636, 642 (Tenn. 2013). The High Court rejected the father’s argument and
7
Although Mother failed to file an answer to either one of Grandparents’ petitions, we determine that this
affirmative defense was “tried in this case by implied consent.” See Tenn. R. Civ. P. 15.02 (“When issues
not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.”); see, e.g., In re Serenity S., No. E2019-00277-COA-
R3-PT, 2020 WL 522439, at *7 (Tenn. Ct. App. Jan. 31, 2020). Much of the testimony during trial involved
Mother’s ability to visit the Child due to the trial court’s no-contact order. In addition, Mother included the
affirmative defense in her proposed order, and Grandparents address Mother’s argument without raising
the specter of waiver on appeal. See id.- 10 -
concluded that the prior order suspending the father’s visitation rights did not preclude a
finding that he had willfully failed to visit the children. Id. The Court’s conclusion was
based upon the fact that the father had failed to visit the children for nearly three years at
the time the termination petition was filed, he had taken no steps to have his visitation
rights reinstated beyond filing a petition to reinstate visitation, and he had not attempted to
visit his children until after the termination petition had been filed. Id. Ultimately, the
Court concluded that “this is not a case in which a parent was actively trying to maintain
visitation.” Id.Similarly, in the case at bar, Mother waited until two years after the Order of
Adjudication and Disposition had been entered and a year after Grandparents had filed the
termination petition to initiate her petition to dissolve the no-contact order and to reinstate
her visitation rights. Although Mother was not present at the hearing during which the trial
court issued its no-contact order, Mother testified that Grandmother had informed her of
the no-contact order. Mother added that she did not believe Grandmother until her court-
appointed attorney validated Grandmother’s information after the termination petition had
been filed and the Determinative Period had concluded. Nevertheless, Mother could have
accessed court records to inquire about the no-contact order and its conditions for
reinstatement of visitation upon learning of it from Grandmother. See In re Kiara C., No.
E2013-02066-COA-R3-PT, 2014 WL 2993845, at *6 (Tenn. Ct. App. June 30, 2014) (“If,
however, as Father asserts, he knew that the order of protection had been entered against
him, it follows that he at least knew which court had entered it and certainly could have
accessed that court record to discover the expiration date.”).
Alternatively, if Mother did not know which court to contact, Mother at the very
least could have communicated with DCS to inquire about the no-contact order and its
conditions. According to Mother’s sister, Ashley G. (“Aunt”), DCS had contacted her
multiple times attempting to reach Mother. Aunt eventually achieved contact with Mother
through Facebook and informed Mother that she needed to communicate with DCS. Aunt
testified that Mother retorted that she “did not need to work through DCS to get her children
back.” Aunt testified that she instructed Mother that DCS wanted to help her establish a
relationship with the Child but that Mother was “adamant that she did not have to do that.”
Based on Aunt’s testimony, Mother knew DCS had been attempting to contact her and
purposefully chose to disregard this information.
Moreover, when asked at trial whether she knew court proceedings concerning the
Child were ongoing, Mother answered affirmatively, and when questioned as to whether
she ever went to the court to retrieve a copy of “anything dealing with” the Child, Mother
responded: “No. He was with my parents. I did not think it was going to come to this.
Like I thought that everything was going to eventually work itself out originally when this
all happened.” Accordingly, we determine that Mother has failed to demonstrate that she
was actively attempting to maintain visitation with the Child.
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We therefore cannot conclude that Mother actively attempted to maintain visitation
with the Child or that the trial court’s order suspending her visitation rights rendered her
failure to visit involuntary, particularly given the fact that Mother merely needed to present
herself to the court in order for the court to reconsider its suspension of her visitation rights.
Consequently, inasmuch as Grandparents have demonstrated that Mother failed to visit the
Child during the Determinative Period, we conclude that the record contains clear and
convincing evidence supporting this statutory ground of abandonment.
b. Failure to Support
With respect to the statutory abandonment ground of failure to support, pursuant to
Tennessee Code Annotated § 36-1-102(1)(A)(iv), the trial court determined:
Mother has provided no financial support for the child since placement with
[Grandparents]. The mother testified that she is currently employed and has
a stable source of income. However, she has failed to provide any support
to [Grandparents].
On appeal, Mother contends that when she inquired whether Grandparents “needed any
assistance for [the Child] [Grandparents] always refused.” In addition, Mother posits that
she “attempted to send Christmas gifts and letters, but [Grandparents] have failed to
provide them to [the Child].”8
Relevant to this ground, the trial court determined that Mother had provided no
financial support during the three-year period Grandparents had maintained custody of the
Child. However, the court did not include findings of fact or conclusions of law addressing
Mother’s affirmative defense of lack of willfulness. Specifically, the court failed to address
Mother’s contention that Grandparents made her “feel” as though they would not accept
her offers of support. Considering that Mother raised the affirmative defense of lack of
willfulness during trial and in her proposed order, the court should have concluded in its
final order whether Mother carried her burden to establish by a preponderance of evidence
that she did not willfully fail to support the Child during the Determinative Period. See
Tenn. Code Ann. § 36-1-102(1)(I). We therefore must reverse the court’s finding of this
statutory ground of abandonment.
8
We again note that Mother failed to file an answer to either one of Grandparents’ petitions and, thus, did
not raise lack of willfulness as an affirmative defense to this statutory ground of abandonment. We,
however, determine that this affirmative defense was “tried in this case by implied consent.” See Tenn. R.
Civ. P. 15.02; see, e.g., In re Serenity S., 2020 WL 522439, at *7. Mother testified during trial that
Grandparents made her feel as though she could not assist them financially and that often she could not
achieve contact with them. In addition, Grandmother responded to Mother’s claim, testifying that she and
Grandfather never prevented her from providing child support to them. Furthermore, Mother provided this
defense in her proposed order, and Grandparents addressed Mother’s argument without raising the issue of
waiver on appeal.
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c. Wanton Disregard
Concerning the statutory ground of wanton disregard, Tennessee Code Annotated
§ 36-1-102(1)(A)(iv)(c) provides:
(iv) A parent or guardian is incarcerated at the time of the filing of a
proceeding, pleading, petition, or amended petition to terminate the
parental rights of the parent or guardian of the child who is the subject
of the petition for termination of parental rights or adoption, or a
parent or guardian has been incarcerated during all or part of the four
(4) consecutive months immediately preceding the filing of the action
and has:
***
(c) Has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child; . . . .
With reference to this termination ground, this Court has previously explained:
Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the commonsense
notion that parental incarceration is a strong indicator that there may be
problems in the home that threaten the welfare of the child. Incarceration
severely compromises a parent’s ability to perform his or her parental duties.
A parent’s decision to engage in conduct that carries with it the risk of
incarceration is itself indicative that the parent may not be fit to care for the
child. Taxonomy of Children’s Rights, 11 WM. & MARY BILL RTS. J. at
958. However, parental incarceration is not an infallible predictor of parental
unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s second test
for abandonment does not make incarceration alone a ground for the
termination of parental rights. An incarcerated or recently incarcerated
parent can be found guilty of abandonment only if the court finds, by clear
and convincing evidence, that the parent’s pre-incarceration conduct
displayed a wanton disregard for the welfare of the child. Thus, the parent’s
incarceration serves only as a triggering mechanism that allows the court to
take a closer look at the child’s situation to determine whether the parental
behavior that resulted in incarceration is part of a broader pattern of conduct
that renders the parent unfit or poses a risk of substantial harm to the welfare
of the child.
In re Audrey S., 182 S.W.3d at 866 (footnote omitted) (emphasis added). Moreover, this
Court has stated that “probation violations, repeated incarceration, criminal behavior,
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substance abuse, and the failure to provide adequate support or supervision for a child can,
alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare
of a child.” Id. at 867-68.
Although the trial court made some findings of fact that would be relevant to this
statutory ground of abandonment, the court never explicitly concluded that it found clear
and convincing evidence to establish that Mother had abandoned the Child by exhibiting
wanton disregard for the Child’s welfare prior to her incarceration. In fact, the court failed
to mention the phrase, “wanton disregard,” in its order. The court merely concluded that
Mother had abandoned the Child “in that she has been incarcerated willfully” during the
four consecutive months prior to the filing of Grandparents’ petition. This conclusion is
insufficient in that it does not address Mother’s pre-incarceration conduct or whether that
conduct exhibited a wanton disregard for the Child’s welfare. We therefore cannot
conclude that the trial court provided sufficient findings of fact or conclusions of law to
affirm this ground for termination.
B. Failure to Substantially Comply with Permanency Plan
The trial court determined that Grandparents failed to prove the statutory ground of
substantial noncompliance with a permanency plan by clear and convincing evidence. In
making this determination, the court noted that the Child had been in foster care for a few
days before Grandparents obtained custody of him on August 18, 2018, and that a “valid
permanency plan was never developed by DCS as defined by the statute.” On appeal,
Grandparents contend that Mother’s admission during trial that she did not complete any
of the purported tasks of the plan is sufficient evidence to support a finding of this ground.
We disagree.
In order to prove the ground of substantial noncompliance with a permanency plan,
“it is essential that the plan be admitted into evidence.” See In re T.N.L.W., No. E2006-
01623-COA-R3-PT, 2007 WL 906751, at *4 (Tenn. Ct. App. Mar. 26, 2007). This Court
has unequivocally explained that “the permanency plan must be admitted into evidence
before the trial judge can consider it and it must be properly included in the record on
appeal before we can consider it.” Dep’t of Children’s Servs. v. D.W.J., No. E2004-02586-
COA-R3-PT, 2005 WL 1528367, at *3 (Tenn. Ct. App. June 29, 2005). Moreover,
testimony alone cannot provide the clear and convincing evidence required to prove this
termination ground.
In In re T.N.L.W., this Court elucidated:
As in D.W.J., a case worker in this case testified as to some of the
requirements of the plan. This is not sufficient. The permanency plan must
be introduced into evidence in a case where termination is sought on ground
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of substantial noncompliance with the plan pursuant to Tenn. Code Ann. §
36-1-113(g)(2).
In re T.N.L.W., 2007 WL 906751, at *5. Therefore, the fact that Mother may have
acknowledged during trial that she did not accomplish purported goals of the permanency
plan cannot be relied upon by Grandparents to establish this statutory ground. Inasmuch
as the permanency plan was not admitted into evidence during trial, we conclude that the
trial court properly determined that insufficient evidence supported this ground.9
C. Persistence of the Conditions Leading to the Child’s Removal
The trial court found that clear and convincing evidence supported the ground of
persistence of the conditions that led to removal of the Child from Mother’s home or
physical or legal custody. Regarding this statutory ground, Tennessee Code Annotated §
36-1-113(g)(3) (Supp. 2022) provides:
(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian 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
guardian, 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 or guardian;
(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 or guardian in the near future; and
(iii) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable, and permanent home;
9
A review of the transcript of the evidence reveals that Grandparents attempted to present as evidence what
they called a permanency plan. However, the trial court sustained Mother’s objection to its admittance
because Mother played no part in its development or creation and therefore would be unable to authenticate
it. Grandparents do not challenge the trial court’s ruling on appeal, and we will therefore not review this
evidentiary ruling.
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(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard[.]
Mother argues that the conditions that led to the Child’s removal were no longer present or
were likely to be remedied at an early date at the time of the trial. In support, Mother cites
her testimony that she no longer was using illegal drugs by the time of trial and that she
had maintained stable housing and employment for several months prior to the trial.
In its final order, the trial court found that the Child had been removed from
Mother’s custody for more than six months as a result of drug exposure, lack of
supervision, and incarceration and that these conditions continued to persist at the time of
the trial. The court also noted that Mother had resided at ten to fifteen different locations
during the Child’s life, although at the time of trial she testified that she currently
maintained stable housing and employment. With respect to Mother’s history of illegal
drug use, the court found that Mother had been “drug free for several months” but that this
had been a recent change. Mother testified that as recently as June 2021, she had tested
positive for amphetamines, methamphetamines, and suboxone. Consequently, the court
determined that Mother’s illegal drug use persisted since the Child’s removal.
Concerning Mother’s periods of incarceration, the trial court determined that
Mother continued to be re-incarcerated on a number of occasions since the Child’s removal
and that she was most recently incarcerated in January and February of 2021. Ultimately,
the court concluded that the conditions that led to the Child’s removal persisted, that the
Child would be subject to further abuse and neglect if returned to Mother, that there was
little likelihood that the conditions would be remedied at an early date, and that the
continuation of the parent/child relationship was diminishing the Child’s chance of an early
integration into a stable and permanent home. Following our thorough review of the
record, we conclude that the evidence does not preponderate against the trial court’s
findings.
It is undisputed that the Child had been removed from Mother’s custody for more
than six months at the time of trial and that his removal had been due to drug exposure,
lack of supervision, and the parents’ incarceration. With respect to her illegal drug use,
Mother’s own testimony supported the trial court’s conclusion that this condition persisted.
Mother testified that the last time she had used illicit drugs was approximately eight weeks
prior to trial. Mother candidly described her alternating periods of sobriety and relapse as
a “roller coaster ride,” demonstrating a level of unpredictability with respect to her
recovery. She explained that the longest she had abstained from illegal drug use was six
to eight months. In addition, as mentioned by the trial court, Mother had tested positive
for illegal drugs as recently as June 2021. Thus, nearly three years after the Child’s removal
from her custody, Mother had not yet established a significant, lasting sobriety.
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In reviewing the trial court’s findings, we note this Court’s previous instruction:
[I]t is imperative for courts handling parental termination cases to view
substance abuse realistically. The power of various addictive substances
over the addict has been acknowledged by this Court. See, e.g., In re:
M.J.M., No. M2004-02377-COA-PT, 2005 WL 873302, at *10 (Tenn. Ct.
App. April 14, 2005) (“. . . we must accurately understand this challenge [the
mother] faces to overcome her methamphetamine addiction.
Methamphetamine is powerfully addictive. It has one of the highest
recidivism rates of all abused substances.”) (citation omitted). Recovery
from addiction will frequently entail “false starts and set backs, as well as
successes and, regrettably, backsliding.” Id. at *11. Parents who suffer from
addiction “can turn their lives around,” but must be given the time and
opportunity to do so. In re: D.J.R., No. M2005-02933-COA-R3-JV, 2007
WL 273576, at *5-6 (Tenn. Ct. App. Jan. 30, 2007) (citing Ray v. Ray, 83
S.W.3d 726, 734 (Tenn. Ct. App. Jan. 30, 2007)).
In re Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at *12 (Tenn. Ct. App.
June 16, 2011).
In this case, Mother testified that she had taken steps to address her illegal drug use.
Mother related that she had completed a drug rehabilitation program at a facility named,
“Buffalo Valley,” in September or October of 2018. She also stated that she had received
drug addiction treatment through Vanderbilt’s Center for Women’s Health (“Vanderbilt”)
after she was released from jail in November 2020. She participated in treatment at
Vanderbilt throughout her entire pregnancy with her third child but ceased once she gave
birth on March 29, 2021. After “losing contact with Vanderbilt,” she proceeded “downhill”
again, and her third child was removed from her custody a few months following her birth
due to Mother’s “unstable living” and relapse into illegal drug use. After DCS gained
custody of her third child, Mother began another drug rehabilitation program known as
“Cedar’s Recovery.” Mother testified that she had been excelling in the program and had
been meeting with a counselor through the program on a bi-weekly basis. Since starting
the Cedar’s Recovery program, Mother had relapsed into drug use once.
Although we commend Mother for her perseverance and continued efforts to
maintain sobriety, a pattern of relapsing drug use remains a problem for Mother. When
considering that she had three years to achieve and maintain sobriety, we cannot conclude
that she has been afforded insufficient time to turn her life around or that eight weeks of
sobriety constitutes a remedy to this condition. See In re Navada N., 498 S.W.3d 579, 606
(Tenn. Ct. App. 2016) (“While this Court has previously recognized that ‘[r]ecovery from
addiction will frequently entail “false starts and set backs, as well as successes and,
regrettably, backsliding,”’ Mother has shown that it is uncertain if she will ever be able to
stop abusing cocaine, let alone in the near future.”); see also In re J.C.D., 254 S.W.3d 432,
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442 (Tenn. Ct. App. 2007) (“While we hope that these most recent efforts by Mother to
overcome her drug dependency problem lead to a permanent resolution of her problem,
they are insufficient to overcome the facts of her previous multiple relapses . . . .”).
We also conclude that the evidence in the record does not preponderate against the
trial court’s findings related to Mother’s repeated incarceration. Mother has been in and
out of the Davidson County or Wilson County jails six different times during the three
years since the Child was removed from her custody, and her most recent period of
incarceration was January 12, 2021, through February 4, 2021, a mere nine months before
the trial. During trial, Mother also reported that she had an upcoming criminal court
hearing scheduled for November 14, 2021, to address the unresolved indictment issued in
Wilson County. Thus, at the time of the trial, Mother continued to confront the possibility
of re-incarceration.
Based upon our review of the record, we agree with the trial court that clear and
convincing evidence established that the conditions leading to the Child’s removal
continued to persist at the time of trial. We accordingly affirm the trial court’s
determination of the existence of this statutory ground for termination.
D. Failure to Manifest an Ability and Willingness to Assume Legal and Physical
Custody of or Financial Responsibility for the Child
The trial court also found clear and convincing evidence supporting the ground of
failure to manifest an ability and willingness to assume legal and physical custody of or
financial responsibility for the Child. Concerning this statutory ground, Tennessee Code
Annotated § 36-1-113(g)(14) (Supp. 2022) provides:
A 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[.]
To prove this ground, Grandparents were required to establish by clear and convincing
evidence that (1) Mother failed to manifest either an ability or willingness to assume
custody of or financial responsibility for the Child and (2) returning the Child to Mother’s
custody would pose a risk of substantial harm to the Child’s welfare. In re Neveah M., 614
S.W.3d 659, 674, 677 (Tenn. 2020); In re Jeremiah S., No. W2019-00610-COA-R3-PT,
2020 WL 1951880, at *6 (Tenn. Ct. App. Apr. 23, 2020) (“Under this ground for
termination, the petitioner must prove each element by clear and convincing evidence.”).
In its final order, the trial court delineated findings of fact related to Mother’s failure
to manifest an ability and willingness to assume custody of or financial responsibility for
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the Child but made no such findings related to the essential element of risk of substantial
harm. The court merely concluded that placing the Child back in Mother’s custody would
pose a risk of substantial harm to him but failed to provide specific findings of fact in
support of this legal conclusion. This Court has previously emphasized that it is imperative
for trial courts to enter an order with specific facts and conclusions of law, stating: “The
absence of appropriate findings supporting this ground for termination is not a trivial
concern. With respect to termination cases, the trial court is specifically directed by statute
to ‘enter an order that makes specific findings of fact and conclusions of law.’” In re
Mickeal Z., No. E2018-01069-COA-R3-PT, 2019 WL 337038, at *13 (Tenn. Ct. App. Jan.
25, 2019) (quoting Tenn. Code Ann. § 36-1-113(k)); see In re O.W., No. W2019-01127-
COA-R3-PT, 2020 WL 97727, at *9 (Tenn. Ct. App. Jan. 9, 2020) (“There is no bright-
line test by which to assess the sufficiency of factual findings, but ‘the findings of fact must
include as much of the subsidiary facts as is necessary to disclose to the reviewing court
the steps by which the trial court reached its ultimate conclusion on each factual issue.’”)
(quoting Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013)).
Notably, this Court has previously reversed a finding of the existence of this
statutory ground when the trial court provided no findings of fact regarding why placing
the subject children back in the parent’s custody would pose a risk of substantial harm to
their welfare. See In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651,
at *5 (Tenn. Ct. App. Sept. 18, 2018) (reversing the trial court because it “made no findings
regarding why placing the Children back in Father’s custody would risk substantial harm
to their welfare”); see also In re Dominic B., No. E2020-01102-COA-R3-PT, 2021 WL
774185, at *9 (Tenn. Ct. App. Mar. 1, 2021) (“[A] finding that placing the child in the
parent’s custody would pose a risk of substantial harm to the child is a necessary
component of the statutory ground.”). Considering that the trial court in the case at bar did
not include specific findings of fact to support its legal conclusion that returning the Child
to Mother’s custody would pose a risk of substantial harm to the Child’s welfare, we are
compelled to reverse the court’s judgment with respect to this statutory ground. See In re
Mickeal Z., 2019 WL 337038, at *13 (opting to reverse the judgment with respect to the
deficient statutory ground rather than remand for the preparation of sufficient findings of
fact when this Court’s ultimate disposition includes the affirmance of the trial court’s
termination of the parent’s rights).
V. Best Interest of the Child
When a parent has been found to be unfit by establishment of at least one statutory
ground for termination of parental rights, as here, the interests of parent and child diverge,
and the focus shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at
877; see also In re Carrington H., 483 S.W.3d at 523 (“The best interests analysis is
separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” (quoting In re Angela E., 303 S.W.3d at 240)).
Tennessee Code Annotated § 36-1-113(i) provides a list of factors the trial court is to
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consider when determining if termination of parental rights is in a child’s best interest.
This list is not exhaustive, and the statute does not require the court to find the existence
of every factor before concluding that termination is in a child’s best interest. See In re
Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy
and weight to be given each factor depends on the unique facts of each case.”).
Furthermore, the best interest of a child must be determined from the child’s perspective
and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) in effect
when the termination petition was filed in the instant action listed the following factors for
consideration:10
(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;
10
Effective April 22, 2021, the General Assembly has amended Tennessee Code Annotated § 36-1-113(i)
by deleting the previous subsection in its entirety and substituting a new subsection providing, inter alia,
twenty factors to be considered in determining a child’s best interest in a case involving termination of
parental rights. See 2021 Tenn. Pub. Acts, Ch. 190 § 1 (S.B. 205). However, because the termination
petition in this case was filed prior to the effective date of the amendment, the statutory best interest factors
provided in the prior version of the statute are applicable here. See, e.g., In re Braxton M., 531 S.W.3d 708,
732 (Tenn. Ct. App. 2017).
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(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.
As our Supreme Court has instructed regarding the best interest analysis:
“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d at 254.
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests 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[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
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Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending 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.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
Upon considering the statutory factors, the trial court in the instant action
determined that clear and convincing evidence demonstrated that termination of Mother’s
parental rights to the Child was in his best interest. As for the first factor, the court found
that Mother had struggled to maintain safe and stable housing, overcome her drug addiction
issues, and remain out of jail throughout the life of the Child, despite having begun to make
some recent adjustments to her circumstances. On appeal, Mother contends that she has
adjusted her circumstances, conduct, and conditions. In support, Mother explains that she
has maintained stable housing and employment for several months and has complied with
the requisites of Cedar’s Recovery program. Nevertheless, as previously noted, Mother
acknowledged using illegal drugs as recently as eight weeks prior to trial and testified that
she may face re-incarceration due to a pending criminal indictment. Accordingly, the
evidence preponderates in favor of the trial court’s findings concerning this factor.
With respect to the second factor, the trial court found that Mother had been
unsuccessful in affecting a lasting adjustment to her life but determined that there had been
no reasonable efforts made by any available social services agencies. The court, however,
did not indicate whether this factor weighed in favor of or against termination. DCS’s
involvement with this case is unclear from our review of the record. Although DCS
initiated the removal of the Child from Mother’s custody, Grandparents maintained
custody of the Child and initiated the termination of Mother’s parental rights.
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Nevertheless, Grandmother testified that DCS attempted to get in touch with Mother to
develop a permanency plan and visited Grandparents’ home to monitor the Child every
week. Aunt also testified that DCS attempted to contact Mother multiple times.
Considering the trial court’s finding that no reasonable efforts had been made by available
social services agencies and the lack of clarity in the record concerning DCS’s role or
efforts throughout the duration of Grandparents’ custody of the Child, we cannot conclude
that this factor weighs in favor of termination. Consequently, we determine that this factor
should weigh against termination.
Concerning the third statutory factor, whether Mother has maintained regular
visitation or contact with the Child, and the fourth factor, whether a meaningful relationship
has been established between the two, the trial court found that neither regular visitation
and contact nor a meaningful relationship between Mother and the Child had been
established. In a previous section of this Opinion, we have affirmed the trial court’s finding
that Mother failed to visit the Child during the Determinative Period. Notwithstanding,
Mother posits that she sent letters, a birthday card, and Christmas presents to the Child
when she was incarcerated. In contrast, Grandmother testified that Mother “really didn’t
stay in contact much” and that she would typically only contact them when she needed
money, was high, or was incarcerated. With respect to the regularity of Mother’s letters,
Grandmother indicated that the letters were sporadic, testifying that “sometimes they
would come within a couple of weeks, and then after that, nothing.” We conclude that the
evidence does not preponderate against the trial court’s finding related to Mother’s lack of
regular visitation or contact.
As relevant to the fourth factor, Aunt related that the Child has bonded to
Grandparents and views them as his parents. Grandmother stressed that the Child has no
relationship with Mother and does not even know who Mother is. Therefore, the evidence
does not preponderate against the court’s findings related to this factor.
As for the fifth factor, the trial court determined that a change of caretakers and
physical environment likely would have a negative effect on the Child. The court stated
that the Child was “extremely bonded” to Grandparents and “excelling in every respect in
their care.” Grandmother articulated that the Child had required medical treatment when
they gained custody of him. Grandparents updated his immunizations and sought medical
treatment for a problem with his hip. Grandmother further testified that the Child perceives
her as his mother, and Aunt testified confirming the same. According to Grandmother, the
Child was well-adjusted to their home and was stable and happy in their care and custody.
Furthermore, Mother testified that she was not yet in a position to maintain custody of the
Child as of the date of the trial. Thus, taking the Child from a secure and safe environment
and returning him to Mother’s unpredictable environment would certainly have a
deleterious effect on the Child. The evidence does not preponderate against the court’s
findings regarding this factor.
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Respecting the sixth factor, whether the Child had been subjected to abuse or neglect
while in Mother’s care, the trial court found that Mother had been the “perpetrator of
neglect” by exposing the Child to her drug usage, not supervising the Child, and
abandoning the Child. In the court’s “Order of Adjudication and Disposition,” it
determined that the Child had been removed from Mother’s custody when police conducted
a “welfare check” at the family’s hotel room and found drug paraphernalia in the parents’
possession. As a result of the parents’ apparent illegal drug usage and subsequent arrest,
the court adjudged the Child to be dependent and neglected. Accordingly, we conclude
that the evidence does not preponderate against the court’s weighing of this factor in favor
of termination.
Similarly, with respect to the seventh factor, the trial court found that Mother could
not provide the Child with a safe and stable home environment due to her history of drug
abuse. Although it considered that Mother had testified that she was “drug free” for several
months, the court concluded that her history of drug abuse weighed heavily against her.
We agree. As previously examined by this Court, Mother has not established a lasting
sobriety, given her testimony that she had repeatedly relapsed in the three years since the
Child’s removal and had used illegal drugs as recently as eight weeks prior to trial. We
thus conclude that the evidence does not preponderate against the trial court’s findings with
respect to this factor.
Concerning the eighth factor, the trial court merely concluded: “The mental and/or
emotional status of the Mother would be detrimental to the child’s health.” The court
provided no findings of fact to support this legal conclusion. We, therefore, are constrained
to disagree with the court’s weighing of this factor in favor of termination of Mother’s
parental rights.
Relative to the ninth factor, the court found that Mother had “failed to pay child
support consistently with the child support guidelines promulgated by the Department.”
As we have previously concluded, the trial court made no findings regarding Mother’s
defense that her failure to pay was not willful. We therefore conclude that the ninth factor
weighs neither for nor against terminating Mother’s parental rights to the Child.
Upon careful review, we determine that the weight to be given to the second and
eighth factors should militate against termination and that factor nine should weigh neither
for or against termination. We otherwise affirm the trial court’s determination that the
remaining factors weighed heavily in favor of termination as well as its overall conclusion
that clear and convincing evidence demonstrated that termination of Mother’s parental
rights to the Child was in the Child’s best interest. By the time of trial, three years had
elapsed during which Mother could have adjusted her conduct and circumstances, but
instead she continued to struggle with relapsing illegal drug use. In addition, the possibility
of her re-incarceration still loomed and must be accounted for in considering the best
interest of the Child.
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The Child had spent nearly his entire life in the custody of Grandparents, and the
evidence established that the Child had bonded closely with them and considered them to
be his parents. The Child had settled into a safe and healthy home environment while
Mother continued in her efforts to turn her life around. After three years, the Child should
not be forced to wait longer for permanence. We therefore agree with the trial court’s
determination that clear and convincing evidence established that termination of Mother’s
parental rights is in the best interest of the Child.
VI. Conclusion
For the foregoing reasons, we reverse the trial court’s determinations regarding
abandonment by an incarcerated parent by failure to support, pursuant to Tennessee Code
Annotated §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv)(b); abandonment by exhibiting
wanton disregard for the Child’s welfare prior to incarceration, pursuant to Tennessee Code
Annotated §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv)(c); and failure to manifest an ability
and willingness to assume legal and physical custody of or financial responsibility for the
Child, pursuant to Tennessee Code Annotated § 36-1-113(g)(14). We affirm the trial
court’s judgment in all other respects, including the termination of Mother’s parental rights
to the Child. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment terminating Mother’s parental rights to the Child
and collection of costs assessed below. Costs on appeal are assessed to the appellant,
Brittany F.
s/ Thomas R. Frierson, II _____________
THOMAS R. FRIERSON, II, JUDGE
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