In Re Neveah A. ( 2020 )

04/16/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 18, 2020 Session
IN RE NEVEAH A.
Appeal from the Juvenile Court for Hamblen County
No. J170060 Janice Hope Snider, Judge
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No. E2019-01628-COA-R3-PT
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The trial court terminated a mother’s parental rights to her child on the grounds of
abandonment by failure to support, abandonment by failure to provide a suitable home,
and substantial noncompliance with the permanency plan. The trial court terminated a
father’s parental rights to his child on the grounds of abandonment by failure to provide a
suitable home and substantial noncompliance with the permanency plan. The trial court
also found that termination of the mother’s and father’s parental rights was in the best
interest of the child. Finding clear and convincing evidence in support of the trial court’s
determinations, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.
W. Ellis Baltz, Morristown, Tennessee, for the appellant, Ashley P.
Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Gabriel A.
Herbert H. Slatery, III, Attorney General & Reporter, and Lexie A. Ward, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. BACKGROUND
Neveah A. (“the Child”) was born to Ashley P. (“Mother”) and to Gabriel A.
(“Father”) in February 2014. Mother and Father have never been married to each other.
On June 1, 2017, following a physical altercation between Mother and Father during
which the Child was bruised, she was removed from their home. The same day, upon the
Department of Children’s Services’ (“DCS”) contemporaneous petition, the trial court
entered a protective custody order granting temporary legal custody of the Child to her
maternal great aunt and uncle. Mother and Father agreed that probable cause sustained
the Child’s emergency removal and, accordingly, waived the preliminary hearing.
Following Mother’s and Father’s stipulations,1 on July 5, 2017, the court adjudicated the
Child dependent and neglected and ordered temporary legal custody to remain with the
Child’s great aunt and uncle. Mother and Father were permitted supervised visitation.
Approximately one month later, the Child’s great aunt and uncle asked to be
relieved from their duties, citing Mother’s aggressive behavior of cursing and yelling at
them. By order entered August 9, 2017, the court awarded custody of the Child to DCS,
who then placed her in a foster home.
On September 6, 2017, DCS developed a permanency plan with Mother and
Father. It was ratified on February 12, 2018. Pursuant to the plan, Mother and Father
were required to, among other things, set up child support payments; acquire stable
housing and provide rent and utility receipts; follow Tennessee Early Intervention
Services’ recommendations and attend the Child’s dental cleanings; obtain, maintain, and
prove employment to DCS; provide proof of reliable transportation; provide proof of
completing anger management courses; provide proof of completing domestic violence
classes; submit to random drug screens, medication verification, and pill counts; resolve
all legal issues and refrain from incurring new charges; and schedule and attend mental
health assessments and follow all recommendations.2
DCS, primarily through Family Service Worker, Ms. Turner, reviewed the above
requirements with the parents and tried to help them successfully complete the
requirements. For instance, DCS helped Mother to schedule anger management,
automatic positive thinking, parenting, and domestic violence classes. Ms. Turner tried
to acquire home supplies for Mother, helped her schedule a mental health assessment,
and tried to help her apply to Morristown Housing Authority. Mother refused this help
because she did not want to “live in the projects.” As for Father, his sporadic contact
with DCS and failure to return messages impeded Ms. Turner’s ability to help him.
Seeing Father during court hearings was the most effective way DCS communicated with
1
Mother stipulated that the facts DCS alleged in the petition were true, save Paragraph 10 which read as
follows: “The child stated ‘Daddy did it.’ After talking with the child, she later disclosed that ‘mommy
and daddy hit me.’” Father stipulated that he and Mother engaged in a domestic altercation in front of the
Child, that he spanked the Child, and left bruises on her.
2
A second permanency plan was developed with the input of Mother, her counsel, Foster Parent, and
DCS on May 10, 2018, and ratified on August 27, 2018. It reiterated the initial plan’s requirements and
added a requirement for Mother to schedule and complete an alcohol and drug assessment and follow all
recommendations.
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him. Nevertheless, DCS explained the permanency plan requirements to Father; offered
to help with housing; accommodated his work schedule by arranging weekend visitation
with the Child; told him where to complete assessments; and offered to pay for services.
At first, Mother cooperated and worked to complete the permanency plan
requirements of anger management, parenting, and automatic positive thinking classes.
At that time, Mother also maintained a safe and clean home suitable for the Child, a job
at Waffle House, and appropriate regular visitation with the Child. Accordingly, Mother
was granted a 90-day trial home placement with the Child beginning on February 12,
2018, while Father was permitted DCS-supervised visitation. During the trial placement,
the Child stayed overnight with her maternal grandmother “quite a bit” because Mother’s
work ended late at night.
In March 2018, Ms. Turner smelled marijuana in Mother’s home. Mother failed a
drug screen for marijuana the same day. DCS devised action steps that Mother agreed to
complete to avoid the Child’s return to foster care. These action steps included
permitting DCS random home visits, continuing mental health treatment, submitting to
drug screens, and weekly providing DCS her work schedule. A week later, it was
revealed that Mother was allowing Father unsupervised visitation with the Child, thus
placing both parents in violation of the court’s order for trial home placement.
Additionally, Mother denied DCS access to both the home and Child, refused to comply
with random drug screens, and did not submit her work schedule. On DCS’s
recommendation, the court terminated the trial home visit by order entered April 9, 2018.
Mother then refused Ms. Turner’s request to bring the Child to the DCS office, so Ms.
Turner and the police drove to Mother’s apartment to retrieve the Child. Upon seeing
them, Mother sped away with the Child in the car before the police apprehended her two
miles down the road. Following a hearing on April 11, 2018, the court ordered Mother
“to attend an intake appointment with a licensed mental health professional because [she]
reported she uses marijuana daily for anxiety and that she has previously been diagnosed
with bipolar disorder, borderline personality disorder, and anxiety.” The Child was
returned to the foster home.
During the months that followed, Mother and Father struggled to meet several of
the requirements of the permanency plans. Their visits with the Child decreased
significantly. Father did not maintain contact with DCS. Mother and Ms. Turner’s
relationship became contentious. On December 12, 2018, DCS petitioned the Juvenile
Court to terminate Mother’s and Father’s parental rights. The case proceeded to a final
hearing on June 26, 2019. Mother, Father, the foster parent, the Child’s maternal
grandmother, and Ms. Turner testified.3 All parties were represented by counsel and a
guardian ad litem represented the Child’s interests. By order entered August 13, 2019,
the trial court granted the petition and terminated Mother’s parental rights on the grounds
3
The testimony will be outlined below as relevant to the issues on appeal.
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of (1) abandonment by failure to support, (2) abandonment by failure to provide a
suitable home, and (3) substantial noncompliance with the permanency plan. The trial
court terminated Father’s parental rights on the grounds of (1) abandonment by failure to
provide a suitable home and (2) substantial noncompliance with the permanency plan.
The court found that termination of Mother’s and Father’s parental rights was in the best
interest of the Child. Both parents timely appealed.
II. ISSUES
We consolidate and restate the issues on appeal as follows:
A. Whether clear and convincing evidence supports the trial court’s
finding that Mother abandoned the Child by failure to support.
B. Whether clear and convincing evidence supports the trial court’s
finding that Mother and Father abandoned the Child by failure to provide a
suitable home.
C. Whether clear and convincing evidence supports the trial court’s
finding that Mother and Father were substantially noncompliant with the
permanency plans.
D. Whether clear and convincing evidence supports the trial court’s
finding that termination was in the best interest of the Child pursuant to
Tennessee Code Annotated section 36-1-113(i).
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn.
Ct. App. 1988). This right “is among the oldest of the judicially recognized liberty
interests protected by the Due Process Clauses of the federal and state constitutions.” In
re M.J.B., 140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s
rights as a parent is a grave and final decision, irrevocably altering the lives of the parent
and child involved and ‘severing forever all legal rights and obligations’ of the parent.”
Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. §
36-1-113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).
Although parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See In Re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Blair v. Badenhope,
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77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence
of the existence of the grounds for termination. In re Drinnon, 776 S.W.2d at 97. A
parent’s rights may be terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best
interest[] of the child.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). “Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re Audrey S., 182 S.W.3d at 861 (citations omitted). It produces in a fact-
finder’s mind a firm belief or conviction regarding the truth of the facts sought to be
established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83
S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:
An appellate court reviews a trial court’s findings of fact in termination
proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
Rule 13(d), appellate courts review factual findings de novo on the record
and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. 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.
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
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novo with no presumption of correctness. Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness.
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also
In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).
IV. DISCUSSION
Only Mother appeals the grounds for termination. Both Mother and Father appeal
the trial court’s finding that termination was in the Child’s best interest. Father does not
appeal the statutory grounds supporting the trial court’s termination decision. In such
cases, our Supreme Court offered the following instruction:
[I]n 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.
In re Carrington H., 483 S.W.3d at 525-26 (internal citation and footnote omitted).
Accordingly, we will review the court’s findings.
A.
Abandonment by Failure to Support
Parental rights may be terminated for abandonment, as defined in Tennessee Code
Annotated section 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). The statute defines
“abandonment,” in pertinent part, as follows:
For a period of four (4) consecutive months immediately preceding the
filing of a . . . petition, or any amended petition to terminate the parental
rights of the parent or parents . . . of the child who is the subject of the
petition for termination of parental rights . . . that the parent or parents . . .
have failed to support or have failed to make reasonable payments toward
the support of the child.
Tenn. Code Ann. § 36-1-102(1)(A)(i). The statute defines “failed to support” or “failed
to make reasonable payments toward such child support” as:
the failure, for a period of four (4) consecutive months, to provide monetary
support or the failure to provide more than token payments toward the
support of the child. That the parent had only the means or ability to make
small payments is not a defense to failure to support if no payments were
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made during the relevant four-month period[.]
Tenn. Code Ann. § 36-1-102(1)(D).
Since July 1, 2018, a petitioner such as DCS is no longer required to prove
willfulness as an element of abandonment by failure to support, but the respondent may
assert as an affirmative defense pursuant to Tennessee Rule of Civil Procedure 8.03 that
his or her failure to support was not “willful.” Tenn. Code Ann. § 36-1-102(1)(I). Thus,
the burden is on Mother to prove by a preponderance of the evidence that her failure to
support the Child was not willful. Id.; In re Kolton C., No. E2019-00736-COA-R3-PT,
2019 WL 6341042, at *7 (Tenn. Ct. App. Nov. 26, 2019)
Failure to visit or support a child is “willful” when a person is aware of his
or her duty to visit or support, has the capacity to do so, makes no attempt
to do so, and has no justifiable excuse for not doing so. Failure to visit or
to support is not excused by another person’s conduct unless the conduct
actually prevents the person with the obligation from performing his or her
duty, or amounts to a significant restraint of or interference with the
parent’s efforts to support or develop a relationship with the child[.]
In re Audrey S., 182 S.W.3d at 864 (citations omitted).
DCS filed the petition on December 12, 2018, so the relevant four-month period is
August 12, 2018 to December 11, 2018. See In re Jacob C.H., No. E2013-00587-COA-
R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (statutory four-month
period covers four months preceding day termination petition was filed and does not
include day petition was filed). Mother was ordered to pay $10.00 monthly child support
and did indeed set up payments through the child support office. However, she only paid
$40.00 total, a fact that she does not dispute. The exhibits and Ms. Turner’s testimony
show that Mother’s first payment of child support was on November 28, 2017, and the
last on May 15, 2018. Therefore, she paid nothing during the relevant four months. On
cross-examination by Mother’s counsel, Ms. Turner confirmed that “there has not been a
long period of time where [Mother] wasn’t employed,” although there were times that
DCS could not confirm a particular employer. The parties do not dispute that Mother had
the capacity and means to pay $10.00 per month for child support.
On appeal, Mother argues that her “testimony at trial clearly evidenced a genuine
lack of willfulness on her part.” Mother testified that she thought the child support was
being deducted from her paychecks because it had been “from the beginning of when this
all started.” This was her reason for not remitting direct payments to the child support
office. She testified that she did not notice that the payments were not being deducted
from her paycheck and, anyhow, she would “not notice ten dollars missing out of [her]
account.” Mother confirmed that she was aware of her duty to pay child support both
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from the permanency plan and from the Criteria for Procedures of Parental Rights stating
that failure to pay is a ground for termination. Mother admittedly never thought to call
the child support office or Ms. Turner to inform them of her multiple job changes nor
took any steps to verify that child support was actually being paid. Nor did Mother
directly pay child support during periods of time when she lacked a consistent paycheck.
The record reflects that it was Mother’s own inactions that caused the Child to be
unsupported by her. What she characterizes as a lack of willfulness we recognize as
apathy to an important parental responsibility. We find that Mother has failed to
establish by a preponderance of the evidence that her failure to pay support for the Child
within the four months preceding the filing of the termination petition was not willful.
We affirm the trial court’s determination that DCS proved by clear and convincing
evidence that Mother abandoned the Child by failing to support her within the meaning of
Tennessee Code Annotated sections 36-1-113(g)(1), 36-1-102(1)(A)(i), and 36-1-
102(1)(D).
B.
Abandonment by Failure to Provide a Suitable Home
A parent may be found to have abandoned his or her child by failing to establish
a suitable home. Tenn. Code Ann. § 36-1-113(g)(1). This ground for the termination of
parental rights is established when:
(a) The child has been removed from the home or the physical or legal
custody of a parent or parents . . . by a court order at any stage of
proceedings in which a petition has been filed in the juvenile court alleging
that a child is a dependent and neglected child, and the child was placed in
the custody of the department or a licensed child-placing agency;
(b) The juvenile court found . . . that the department or a licensed child-
placing agency made reasonable efforts to prevent removal of the child or
that the circumstances of the child’s situation prevented reasonable efforts
from being made prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent or parents
. . . to establish a suitable home for the child, but that the parent or parents .
. . have not made reciprocal reasonable efforts to provide a suitable home
and have demonstrated a lack of concern for the child to such a degree that
it appears unlikely that they will be able to provide a suitable home for the
child at an early date. The efforts of the department or agency to assist a
parent . . . in establishing a suitable home for the child shall be found to be
reasonable if such efforts equal or exceed the efforts of the parent . . .
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toward the same goal, when the parent . . . is aware that the child is in the
custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii). A “suitable home” means more than adequate
“physical space” – it requires that the appropriate care and attention be given to the child
as well. In re A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002). This court has
determined that a suitable home is one that is free from drugs and domestic violence.
Dep’t of Children’s Servs. v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941,
at *3 (Tenn. Ct. App. Nov. 29, 2007). Additionally, matters related to counseling and
assessments are “directly related to the establishment and maintenance of
a suitable home.” In re M.F.O., No. M2008-01322-COA-R3-PT, 2009 WL 1456319, at
*5 (Tenn. Ct. App. May 21, 2009).
This ground requires DCS to make reasonable efforts to assist the parent. Tenn.
Code Ann. § 36-1-102(1)(A)(ii); In re Kaliyah S., 455 S.W.3d 533, 553 n.29, 554 n.31,
555 n.32 (Tenn. 2015). DCS’s efforts to assist a parent “may be found to be reasonable if
such efforts exceed the efforts of the parent or guardian toward the same goal.” Tenn.
Code Ann. § 36-1-102(1)(A)(ii). “[P]arents desiring the return of their children must also
make reasonable and appropriate efforts to rehabilitate themselves and to remedy the
conditions that required DCS to remove their children from custody.” In re Shameel S.,
No. E2014-00294-COA-R3-PT, 2014 WL 4667571, at *5 (Tenn. Ct. App. Sep. 19, 2014)
(quoting In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006) overruled on
other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015)).
In this case, following a physical altercation between the parents, the Child was
bruised and removed from the home on June 1, 2017. As the trial court noted, originally
the parents’ conduct, rather than the space itself, rendered the home unsuitable for the
Child because both parents were using illicit substances and engaging in violence at
home at the time. The Child was adjudicated dependent and neglected in July 2017 and
entered DCS custody in August 2017 because her great aunt and uncle could no longer
care for her. The parties do not dispute, and we find, that from this point on, DCS made
reasonable efforts to help Father and Mother each establish a suitable home. As to
Father, these efforts included numerous attempts by Ms. Turner to contact him, assist
him, accommodate his work schedule, and visit his residence. DCS was never permitted
entry into the home Father lived in at the time of trial and he simply did not maintain
contact with DCS. Father visited the Child twice over the nearly twenty-seven months
that she was in DCS’s custody. In short, the record clearly shows that Father
demonstrated a lack of interest, effort, and ability to provide the Child with a suitable
home.
As to Mother, DCS’s efforts included reviewing and discussing the termination
criteria with her, creating two permanency plans with her input, scheduling visitation,
scheduling required classes, soliciting the donation of home supplies, and entering a case
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service request for a mental health assessment. Mother made reciprocal efforts at first,
enough to be granted a trial home placement with the Child. After this, Mother stopped
following through with her responsibilities, including the action steps. Even after the
court terminated the brief trial home placement, Mother ignored the court’s order to
schedule a second mental health intake appointment. The testimony establishes that she
attended only seven therapy appointments between May 2018 and the termination
hearing date, citing her busy work schedule and her feeling that the therapy was
unhelpful. Mother was dismissed from counseling services and medication management
services because of noncompliance. She stopped taking her medication due to adverse
side effects, but against a doctor’s advice. DCS asked Mother to discuss the side effects
with her medication management professional, but she did not. We have previously
found that a “Mother’s own failure to comply with her mental health treatment regimen
demonstrated her lack of concern for the Child[] and resulted in her inability to provide a
suitable home environment.” In re Roderick R., No. E2017-01504-COA-R3-PT, 2018
WL 1748000, at *12 (Tenn. Ct. App. Apr. 11, 2018), perm. app. denied (July 12, 2018).
Mother also failed drug screens and specifically avoided urine screens altogether.
During a March 2019 hearing, instead of submitting to a court-ordered drug screen, she
told the court that she was “tired of all this shit.” On appeal, Mother states that her home
is now “safe and clean,” just as it was before the termination hearing.4 She correctly
notes that no evidence establishes that she used marijuana in the Child’s presence.
Notwithstanding, we reiterate Ms. Turner’s and the trial court’s main concern that Mother
admittedly uses marijuana “pretty much every day” to self-medicate for aggression,
anger, and anxiety. That fact, coupled with Mother’s demonstrated noncompliance with
mental health treatment, show that she would not soon be ready to provide a suitable
home or environment for the Child. See In re M.F.O., 2009 WL 1456319 at *5.
We conclude that there is clear and convincing evidence to support the trial court’s
determination that Father’s and Mother’s parental rights should be terminated on the
ground of abandonment by failure to provide a suitable home.
C.
Substantial Noncompliance with Permanency Plan
Tennessee law requires the development of a plan of care for each foster child and
further requires that the plan include parental responsibilities that are reasonably related
to the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of
parental rights exists when a petitioner proves by clear and convincing evidence that
“[t]here has been substantial noncompliance by the parent or guardian with the statement
of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2). To
4
At the time of the final hearing, Mother and Father were living together again. They shared a three-
bedroom, two-bathroom house with a yard.
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establish noncompliance, the trial court must initially find “that the requirements of
the permanency plans are reasonable and related to remedying the conditions that caused
the child to be removed from the parent’s custody in the first place.” In re M.J.B., 140
S.W.3d at 656; see In re Valentine, 79 S.W.3d at 547. When the trial court does not
make such findings, the appellate court should review the issue de novo. In re Valentine,
79 S.W.3d at 547. Second, the court must find that the parent’s noncompliance is
substantial, In re M.J.B., 140 S.W.3d at 656, meaning that the parent must be in
“noncompliance with requirements in a permanency plan that are reasonable and related
to remedying the conditions that warranted removing the child from the parent’s
custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12
(Tenn. Ct. App. June 3, 2003). To assess a parent’s substantial noncompliance with
a permanency plan, the court must weigh “both the degree of noncompliance and the
weight assigned to that particular requirement.” Id. Conversely, “[t]erms which are not
reasonable and related are irrelevant, and substantial noncompliance with such terms is
irrelevant.” In re Valentine, 79 S.W.3d at 548-49. “Substantial” is defined as “of real
worth and importance,” Black’s Law Dictionary (11th ed. 2019), and “the real worth and
importance of noncompliance should be measured by both the degree of noncompliance
and the weight assigned to that requirement.” In re Valentine, 79 S.W.3d at 548.
Notably, this ground for termination does not require that DCS “expend
reasonable efforts to assist a parent in complying with the permanency plan
requirements.” In re Skylar P., No. E2016-02023-COA-R3-PT, 2017 WL 2684608, at *7
(Tenn. Ct. App. June 21, 2017); see also In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a
termination proceeding, the extent of [the Department’s] efforts to reunify the family is
weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a
precondition to termination of the parental rights of the respondent parent.”).
The trial court found that “the requirements of the permanency plan for the parents
were reasonably related to the grounds for removal and the goal of the parents’ re-
unification with their child.” At trial, Father testified that he completed only one step of
either the first or second permanency plan: attending a domestic violence class. He
waited until the trial date to provide proof of completion to DCS. Father also paid child
support, and submitted to a random drug screen one week before trial, but failed to
complete any other requirements or engage in this case generally. For her part, Mother
completed many of the permanency plan steps early in the proceedings, including anger
management, nurturing parenting, and domestic violence education. Although Mother
was unemployed at the time of the final hearing and was relying on her mother for rides,
she mostly maintained employment and reliable transportation after agreeing to the
permanency plans.5 However, as detailed in sections A. and B. above, Mother did not
5
Ms. Turner testified that Mother’s employment was inconsistent, lasting only a few weeks at each job,
and that some employers could not verify she was on their payroll.
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financially support the Child, was uncooperative with drug testing,6 did not make an
effort to receive adequate mental health treatment, was dismissed from counseling for
missing too many appointments, and did not cease using marijuana daily. The trial court
specifically found that these were “‘core’ steps central to both the reasons for removal
and re-unification of parent and child.” We agree. Mother does not argue otherwise.
There is clear and convincing evidence in the record to support the trial court’s
determination that Mother and Father were in substantial noncompliance with the
permanency plan and each met the statutory requirements for parental termination on that
basis.
D.
Best Interest of the Child
Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, we must consider whether termination was in the
best interest of the child. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182
S.W.3d at 860. In making this determination, we are guided by the following non-
exhaustive list of factors:
(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child . . . the court shall consider, but is
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;7
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
6
Ms. Turner testified that Mother once threw a drug screen at her.
7
“[I]n a termination proceeding, the extent of DCS’s efforts to reunify the family is weighed in the
court’s best-interest analysis, but proof of reasonable efforts is not a precondition to termination of the
parental rights of the respondent parent.” In re Kaliyah S., 455 S.W.3d at 555.
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(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 or controlled substances 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 [section] 36-5-101.
Tenn. Code Ann. § 36-1-113(i). “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 parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).
We acknowledge Mother’s love for the Child. We also acknowledge that Father
paid child support. Tenn. Code Ann. § 36-1-113(i)(9). However, the fact remains that
neither parent has made a lasting adjustment of circumstances in the years that the Child
has been in DCS custody, despite DCS’s reasonable efforts to assist. Tenn. Code Ann. §
36-1-113(i)(1), (2). Further, questions remain as to Mother’s ability to provide a safe and
stable home for the Child as evidenced by her continued daily use of a mind-altering
controlled substance to self-medicate for serious diagnosed mental health conditions.
Tenn. Code Ann. § 36-1-113(i)(7), (8). Mother was unconcerned with her duty to pay
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child support. Tenn. Code Ann. § 36-1-113(i)(9).
At trial, Father did not dispute that he had visited the Child only twice since she
was placed in DCS’s custody and testified that he did not know basic things about the
Child, such as her bedtime, favorite food or show, or what comforts her. Tenn. Code
Ann. § 36-1-113(i)(3), (4). The testimony establishes that Mother visited the Child at the
beginning of these proceedings, but the visits decreased as time went on. From May 1 to
November 29, 2018, Mother visited the Child only five times. She visited the Child the
week before trial, nearly six months after the previous visit.8 Tenn. Code Ann. § 36-1-
113(i)(3). Mother explained that she would cancel some visitations with the Child
because she “was just too depressed and could not get out of bed” or she “had work” or
she “worked too much and was really tired.”
We credit the trial court’s finding that there has been and could still be a
meaningful relationship between Mother and the Child. Tenn. Code Ann. § 36-1-
113(i)(4). However, apart from the two-month trial home placement, the Child has lived
in a pre-adoptive foster home since August 2017, and is getting along “great,” according
to the foster parent. The Child should continue permanency and stability in the home of
the foster parent, whom she calls “mom.” Tenn. Code Ann. § 36-1-113(i)(5).
The evidence in the record does not preponderate against the trial court’s factual
findings. Based on these facts and the record as a whole, we conclude that clear and
convincing evidence supports a finding that termination of Mother’s and Father’s
parental rights is in the Child’s best interest. Accordingly, we affirm the trial court.
V. CONCLUSION
The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary and consistent with this Opinion. Costs of the appeal
are taxed to the appellants, Ashley P. and Gabriel A., for which execution may issue if
necessary.
_________________________________
JOHN W. MCCLARTY, JUDGE
8
Mother walked out of this visit early without a word because she was upset that the Child called her
“Ashley.” The Child asked Ms. Turner, “why doesn’t Ashley want me?”
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