In Re Rommie H. ( 2020 )

10/30/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 5, 2020 Session
IN RE ROMMIE H.
Appeal from the Chancery Court for Sumner County
No. 2018-AD-25 Louis W. Oliver, Chancellor
___________________________________
No. M2019-01359-COA-R3-PT
___________________________________
A mother appeals the termination of her parental rights to her child. The trial court
concluded that the paternal grandparents had proven three statutory grounds for
terminating the mother’s parental rights: abandonment by failure to visit; abandonment
by failure to support; and failure to manifest an ability and willingness to assume custody
of her child. The court also concluded that termination of the mother’s parental rights
was in the child’s best interest. On appeal, the mother argues that the grandparents’
petition did not sufficiently plead the statutory grounds for termination. And even if
sufficiently pled, the mother argues that the evidence of the grounds and the child’s best
interest was less than clear and convincing. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
William Shea Forgety, Hendersonville, Tennessee, for the appellant, Jody H.
Patti B. Garner and Hannah N. Garrett, Hendersonville, Tennessee, for the appellees,
Penney R. and John R.
Erin A. Stubbs, Gallatin, Tennessee, Guardian Ad Litem.
OPINION
I.
A.
Jody H. (“Mother”) is the biological mother of three children, Hayden, Caleb, and
Rommie. Mother voluntarily surrendered her parental rights to Caleb when he was born.1
But she contends the trial court erred in terminating her parental rights to Rommie.
In 2016, Mother lived with Hayden, Rommie, and John H. (“Father”) in a two-
bedroom mobile home. As a couple, Mother and Father struggled financially. Father’s
parents were often asked to help pay their bills. Mother blamed Father for their financial
woes, citing his inability to keep a job. In August, however, Mother quit her job, leaving
Father as the sole breadwinner for the family.
Hayden, Mother’s child from a previous relationship, was nine years old. He had
been diagnosed with autism at an early age. In September 2016, he revealed that Mother
wrapped duct tape around his mouth and hands to keep him quiet. He complained that
removing the tape “hurt his hair.” His allegations prompted the Tennessee Department of
Children’s Services (“DCS”) to open an abuse investigation.
A couple of weeks later, law enforcement reported two toddlers had been
discovered in a residential neighborhood without supervision. The toddlers appeared to
be approximately one and three years old. One was dressed only in a diaper. They were
both dirty, but unharmed. A DCS investigator, along with law enforcement, canvassed
the neighborhood for information. Approximately two hours after the children were
found, Mother emerged from her home. She identified the toddlers as her niece’s
children whom she had been babysitting. She surmised that they had wandered off while
she was sleeping. Mother seemed unconcerned that the toddlers were alone outside for
several hours. According to Mother, this was not the first time they had escaped.
The DCS investigator noted that Mother’s home environment was inappropriate
for the children. The electricity had been disconnected for nonpayment. The home had
“a strong odor of urine.” The children’s beds were wet. Clothes, toys, and dirty diapers
littered the floor. The investigator also realized that Mother was the alleged perpetrator
in an open abuse investigation. When questioned about the abuse allegations, Mother
explained that “she was just playing” and “she had only done it a few times before.”
Mother was immediately arrested on child neglect charges. Hayden and Rommie,
who was just fourteen months old, were initially placed with their maternal grandmother.
1
Mother testified that friends adopted Caleb after his birth in exchange for $500.
2
About a month later, the maternal grandmother indicated she was no longer willing to
care for the children. With Mother’s consent, the juvenile court awarded temporary
custody of Rommie to her paternal grandparents, Penney R. and John R. Hayden was
placed separately with his paternal grandparents.
The juvenile court adjudicated both children dependent and neglected. And on
April 27, 2017, the court transferred custody of the children to their respective paternal
grandparents and allowed DCS to terminate services. The court determined it was in the
children’s best interest to transfer custody since Mother remained incarcerated with
unresolved legal issues. The court specified that Mother could seek a return of custody
“when . . . ready.”
Mother later pled guilty to felony child abuse and neglect for her treatment of her
oldest child. She was released on August 9, 2017, having served 10 months of a three-
year sentence. She remained on supervised probation for the next two years.
While incarcerated, Mother ended her relationship with Father. After her release,
she was hired as a full-time employee at a construction company. From October 2017
through the time of trial, she worked approximately forty hours per week, earning
between $10 and $11 an hour. With her consistent earnings, Mother’s financial situation
improved to the point that she was able to purchase a car.
But Mother never filed a petition to regain custody of Rommie. And she waited
five weeks after her release to contact the paternal grandparents about visiting her child,
who was then over two years old. The paternal grandparents arranged an initial visit at a
time and place convenient for Mother. Still, Mother was late. Two weeks later, Mother
called again. A second visit was arranged near Mother. And again, she was late. Both
visits were short, only about an hour.
Another month went by with no contact from Mother. When Mother resurfaced,
the paternal grandparents agreed to meet Mother and her family for dinner at a local
restaurant. The paternal grandparents later explained that the change in visitation was
Mother’s idea. She wanted to have dinner instead of playing at a playground. As usual,
Mother was late. At Mother’s request, the paternal grandparents also brought the child to
a holiday party hosted by Mother’s family that same month.
Mother visited her child four times in 2018—in January, April, June, and July.
The first three visits were each about an hour or two at a local restaurant. In July, she
attended the child’s third birthday party at the paternal grandparents’ home. And, for the
first time, she brought gifts—clothes, a toy, and a $20 gift card.
Mother’s gross earnings in 2018 were over $25,000. Her estimated living
expenses ranged between $500 and $1000 a month. In the spring of 2018, Mother met
3
Roy G. through an online dating service. Two weeks later, the couple moved in together.
After Roy G. moved in, he paid half of Mother’s living expenses. Mother agreed that, in
combination, the couple had approximately $30,000 in disposable income in 2018. But
other than the July 2018 birthday gifts, Mother never contributed toward her child’s
support.
B.
On July 31, 2018, the paternal grandparents filed a petition to adopt Rommie and
to terminate Mother’s and Father’s parental rights. The petition alleged multiple grounds
for termination against each parent. Father consented to termination of his parental rights
before trial. But Mother opposed termination of her rights.
The day before trial, April 10, 2019, Mother filed a motion to dismiss. She
contended that the paternal grandparents had failed to plead any grounds for termination
of her parental rights. After reviewing the petition and considering the arguments of
counsel, the court denied the motion to dismiss.
At trial, Mother conceded that using duct tape on her son was “the biggest mistake
of [her] life.” The incident caused her to “los[e] both of [her] kids” and “destroyed [her]
future.” But this was not an isolated incident. Proof at trial revealed other examples of
Mother’s poor parenting skills. Hayden had nearly drowned at age two while he was
with Mother and Father in a backyard pool. Mother did not notice he was in danger until
the maternal grandmother brought it to her attention. Similarly, Mother failed to notice
that her niece’s children had wandered away from her home for almost three hours.
While Rommie was in Mother’s care, she twice contracted pinworms from playing in the
cat’s litter box. Mother also admitted she and Father had used illegal drugs in the
children’s presence.
The paternal grandparents also highlighted Mother’s limited involvement in her
child’s life. She never asked the paternal grandparents about her child’s health,
education, or well-being. And she waited five weeks after her release to call to schedule
a visit. After that, she called, at best, once a month or so. And she never came to a visit
alone. She always brought the maternal grandmother, and later, Roy G. During the four
months before the petition was filed, Mother and the child spent approximately six and
one-half hours together, and none of it one-on-one. Mother made no effort to maintain
contact between visits. She never talked to her child on the telephone or followed up on
the paternal grandmother’s suggestion that she try to video chat.
For her part, Mother emphasized her improved financial situation. She had been
consistently employed since her release. She had no contact with Father. She had
complied with all of her probation requirements. She had not used illegal drugs since
March 2018. And her current home was clean and pet-free.
4
Mother brushed off the episodes from her past, mostly claiming that she was not at
fault. The near drowning incident was an accident. DCS investigated but took no action
against her. She tried to take care of the pinworm issue by treating the cat and cleaning
out the litter box. And she blamed Father for the toddlers’ escape, the lack of electricity,
and bringing drugs and inappropriate people into the home.
Still, Mother knew that DCS had recommended she complete certain tasks to
regain custody. She acknowledged that DCS had created a family plan after her arrest.
Although she completed the recommended parenting assessment, she never took
parenting classes, obtained homemaker services, or took any other steps to improve her
parenting skills.
Mother was also aware of her obligation to support her child. According to
Mother, she never paid any support because the paternal grandparents never asked and
she had her own bills to pay. As for her infrequent visits with her child, she complained
that the paternal grandparents were in control. She would have visited more if she had
been allowed. But she agreed that the paternal grandparents never interfered with her
visitation. They responded to her visit requests and tried to accommodate her schedule.
The trial court concluded that the paternal grandparents had shown, by clear and
convincing evidence, three grounds for termination of Mother’s parental rights—
abandonment by failure to support, abandonment by failure to visit, and failure to
manifest an ability and willingness to assume physical custody or financial responsibility
for the child. The court further concluded that the evidence was clear and convincing that
termination of Mother’s parental rights was in the child’s best interest.
II.
A parent has a fundamental right, based in both the federal and state constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at
250. State statute identifies those circumstances in which the government’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights. See Tenn.
Code Ann. § 36-1-113(g) (Supp. 2019).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
Parties seeking termination of parental rights must first prove the existence of at least one
of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for
5
termination are shown, they then must prove that terminating parental rights is in the
child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,
215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). This heightened burden of proof serves “to minimize the possibility of erroneous
decisions that result in an unwarranted termination of or interference with these rights.”
Id. “Clear and convincing evidence” leaves “no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the
fact-finder’s mind regarding the truth of the facts sought to be established. In re Bernard
T., 319 S.W.3d at 596.
We review the trial court’s findings of fact “de novo on the record, with a
presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de
novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct.
App. 2007).
A.
We first address Mother’s argument that the petition did not provide adequate
notice of the alleged grounds for termination of her parental rights. Parental rights can
only be terminated on grounds that were alleged in the termination petition. See In re
M.J.B., 140 S.W.3d 643, 655-56 (Tenn. Ct. App. 2004). Notice is “a fundamental
component of due process.” In re W.B., M2004-00999-COA-R3-PT, 2005 WL 1021618,
at *13 (Tenn. Ct. App. Apr. 29, 2005); see also Keisling v. Keisling, 92 S.W.3d 374, 377
(Tenn. 2002) (“Basic due process requires ‘notice reasonably calculated under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.’” (citation omitted)). Pleadings should give
the opposing party enough notice of the issues to prepare a defense. Keisling, 92 S.W.3d
at 377. In the context of parental termination, due process requires that the parent be
notified of the alleged grounds for termination. In re Jeremiah N., No. E2016-00371-
COA-R3-PT, 2017 WL 1655612, at *8 (Tenn. Ct. App. May 2, 2017).
6
We conclude that the petition adequately apprised Mother that the paternal
grandparents were pursuing abandonment by failure to support and failure to visit as
grounds for termination of Mother’s parental rights. See Tenn. Code Ann. § 36-1-
102(1)(A)(i) (Supp. 2018). In relevant part, the petition alleged
24. Pursuant to T.C.A. § 37-1-113, the Mother has abandoned the child by
her willful failure to support the child for four (4) months immediately
preceding the filing of this petition or the support paid in the four months
immediately preceding the filing of this petition was token support. Mother
has not contributed to the support of the child since October, 2016. Mother
is able bodied and capable of working and supporting the child and she has
made no attempt to support the child and has provided no justifiable excuse
for failing to support the child.
....
26. The Mother has abandoned the child in that she has failed to seek
reasonable visitation with the child for four (4) months immediately
preceding the filling of this petition and has failed to visit or the visits in the
four (4) months immediately preceding the filing of this petition were token
visits merely to maintain minimal contact, as defined in T.C.A. § 36-1-102.
Mother complains that the statutory grounds for termination are listed in Tennessee Code
Annotated § 36-1-113(g), not “T.C.A. § 37-1-113” or “T.C.A. § 36-1-102.” That may be
true, but these citations did not deprive Mother of adequate notice. See Tenn. R. Civ. P.
8.05(1) (allowing the pleader to “either specifically refer to the statute or state all of the
facts necessary to constitute such breach so that the other party can be duly apprised of
the statutory violation charged”). The petition alleged that Mother abandoned her child,
one of the statutory grounds for termination. See Tenn. Code Ann. § 36-1-113(g)(1).
And it alleged all of the facts necessary to satisfy the first definition of abandonment. See
id. § 36-1-102(1)(A)(i).
We reach the same conclusion with respect to the statutory ground in Tennessee
Code Annotated § 36-1-113(g)(14). The petition alleged
30. The Respondents have failed to manifest an ability and willfulness [sic]
to assume legal and physical custody of the child;
31. Placing custody of the child in the Respondents’ legal and physical
custody would pose [a] risk of substantial harm to the physical or
psychological welfare of the child[.]
7
Mother maintains that these allegations could describe a ground for termination
applicable only to putative fathers. See id. § 36-1-113(g)(9)(A)(iv). But when the
petition was filed, Father was the child’s legal parent, not a putative father.2 See id.
§§ 36-1-102(29)(A)(iv), (44). And the putative father ground does not include the
language in paragraph 31. See id. § 36-1-113(g)(9)(A)(iv). Read together, these
paragraphs fully describe the ground for termination in Tennessee Code Annotated § 36-
1-113(g)(14), which applies to legal parents. See id. § 36-1-113(g)(14) (“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[.]”).
While the petition is not perfect, the allegations were sufficient to put Mother on
notice of the grounds at issue. So we turn to whether the paternal grandparents
established, by clear and convincing evidence, at least one ground for termination of
Mother’s parental rights.
B.
1. Abandonment
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Id. § 36-1-113(g)(1). Abandonment as a ground for the termination is
defined in five different ways. See id. § 36-1-102(1)(A). The chancery court concluded
that Mother abandoned her child under the first definition.
At the time the petition was filed, the definition of abandonment included the
failure “to visit or . . . to support or . . . to make reasonable payments toward the support
of the child” during the four months immediately preceding the filing of the petition to
terminate parental rights. Id. § 36-1-102(1)(A)(i).3 Our focus here is on Mother’s
conduct between March 31, 2018, and July 30, 2018, the day before the petition was
filed. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6
(Tenn. Ct. App. Feb. 20, 2014) (concluding that the day before the petition is filed is the
2
Mother admitted in her answer that Father executed a voluntary acknowledgement of paternity.
See Tenn. Code Ann. § 24-7-113(a) (2017).
3
We find Mother’s argument that the petition failed to put her on notice that she bore the burden
of proof on lack of willfulness unavailing. The petition notified Mother that abandonment for failure to
support and failure to visit were at issue. And the trial court properly applied the definition of
abandonment that was in effect at the time the petition was filed. See In re Braxton M., 531 S.W.3d 708,
732 (Tenn. Ct. App. 2017).
8
last day in the relevant four-month period). The chancery court found that Mother
willfully failed to visit and to support her child during the relevant four-month period.
a. Failure to Visit
Mother visited her child three times during the relevant period, in April, June, and
July. The trial court found that these visits were merely token. See Tenn. Code Ann.
§ 36-1-102(1)(E) (A parent has failed to visit if the parent “engage[d] in [no] more than
token visitation” during the relevant four-month period.). A visit is token if it is “nothing
more than perfunctory” or the visits are so infrequent or short “as to merely establish
minimal or insubstantial contact with the child.” Id. § 36-1-102(1)(C). In determining
whether Mother’s visits were token, evidence of “the parent’s conduct and the
relationship between the child and the parent” outside of the four-month period provides
“relevant background and context.” See In re Keri C., 384 S.W.3d 731, 749 (Tenn. Ct.
App. 2010).
The evidence does not preponderate against the trial court’s finding that Mother’s
visits were token. The child was only fourteen months old when Mother was arrested.
They had no contact at all for almost a year after Mother’s arrest. The majority of that
time Mother was incarcerated. But even after her release, she waited five weeks before
seeking to visit her child. The paternal grandparents questioned whether the child even
recognized Mother after such a long separation. Rather than scheduling regular visits,
Mother was content with infrequent, short visits at a local restaurant. Even then, Mother
was chronically late and never spent one-on-one time with her child. Mother never called
her child or tried to arrange a video chat between visits. See In re Amelia M., No. E2012-
02022-COA-R3-PT, 2013 WL 4715043, at *9 (Tenn. Ct. App. Aug. 30, 2013)
(“Telephone calls may be relevant . . . as contact between parent and child.”). While
Mother gave conflicting testimony on some of these points, the trial court did not credit
her testimony. And we will not second guess the court’s credibility determination. See
Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733-34 (Tenn. 2002) (“[F]indings with
respect to credibility and the weight of the evidence . . . may be inferred from the manner
in which the trial court resolves conflicts in the testimony and decides the case.”).
Lack of willfulness is an affirmative defense to a claim of abandonment for failure
to visit or support. Tenn. Code Ann. § 36-1-102(1)(I). Mother did not meet her burden
of proof on this defense.4 See id. Our supreme court has stated that “a parent who
attempt[s] to visit and maintain relations with [her] child, but [i]s thwarted by the acts of
others and circumstances beyond [her] control, [does] not willfully abandon [her] child.”
In re Adoption of A.M.H., 215 S.W.3d at 810. At trial, Mother complained that the
4
Mother contends that the trial court erred in finding that Mother did not raise the affirmative
defense of willfulness in her answer or at trial. The trial court’s error, if any, was harmless because
Mother did not meet her burden of proof.
9
paternal grandparents controlled when she could visit her child. But she conceded that
they never interfered with her efforts to visit. They always responded to her calls and
tried to accommodate her schedule.
We conclude that the evidence is clear and convincing that Mother abandoned her
child by failure to visit during the four months preceding the filing of the petition. Her
three visits were merely token. And she failed to establish that her failure to visit was not
willful.
b. Failure to Support
The July 2018 birthday gifts were Mother’s only contributions toward the support
of her child. The trial court found this support was token. See Tenn. Code Ann. § 36-1-
102(1)(D). Support is token if it is “insignificant given the parent’s means.” Id. § 36-1-
102(B). The evidence does not preponderate against the trial court’s finding. Mother had
gross earnings of over $25,000 in 2018. Even accounting for her living expenses, she had
sufficient disposable income to contribute to her child’s support. Maternal grandmother,
who was intimately familiar with Mother’s finances, testified that Mother could afford to
pay at least $30 a week in child support.
The evidence also does not preponderate against the trial court’s finding that
Mother’s failure to support her child was willful. See id. § 36-1-102(1)(I). A “[f]ailure
to . . . support a child is ‘willful’ when a person is aware of his or her duty to . . . support,
has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not
doing so.” In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005). Mother was
aware of her duty to support and certainly had sufficient means. Her excuse was that the
paternal grandparents “didn’t ask, even though I asked them if they needed anything, and
just having to pay my own bills.” The paternal grandparents denied Mother ever offered
any support. And the trial court did not credit Mother’s testimony on that point. See
Richards, 70 S.W.3d at 733-34. The paternal grandparents’ failure to ask for help,
standing alone, is not a justifiable excuse. A parent’s obligation to pay child support
exists without a court order, much less a request from the child’s custodian. See State,
Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 523-24 (Tenn. Ct. App. 2004).
We also conclude that the evidence in this record is clear and convincing that
Mother abandoned her child by failure to make reasonable payments toward the support
of the child. The few items she provided were merely token. And she failed to prove a
lack of willfulness.
10
2. Failure to Manifest Ability and Willingness to Assume Custody or Financial
Responsibility
Finally, the court found termination of parental rights appropriate under Tennessee
Code Annotated § 36-1-113(g)(14). Under this ground, a parent’s rights may be
terminated if he or she
[1] has failed to manifest, by act or omission, an ability and willingness to
personally assume legal and physical custody or financial responsibility of
the child, and [2] placing the child in the person’s legal and physical
custody would pose a risk of substantial harm to the physical or
psychological welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). Both prongs must be established by clear and
convincing evidence. See In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL
1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019).
The paternal grandparents established by clear and convincing evidence that
Mother failed to manifest both an ability and willingness to personally assume legal and
physical custody and financial responsibility for her child.5 While Mother claimed she
was willing to assume custody, she never showed it. She never sought a return of
custody after her release from incarceration. She seemed content with short, sporadic
visits. She displayed no interest in her child’s health, education, or well-being. She did
very little to establish a meaningful relationship with her child. She never contributed to
her child’s support. As for ability, she may have overcome some financial hurdles, but
she has yet to take any action to improve her parenting skills.
The evidence is equally clear and convincing that returning the child to Mother’s
custody would pose a risk of substantial harm to her child’s physical or psychological
welfare. Mother argued at trial that she was financially secure, had ended her
relationship with Father, and no longer had a cat. But these changes, while positive, did
not address the core problem—Mother’s failure to pay appropriate attention to the
children in her care. So we can conclude the child, more likely than not, faced a real
5
This Court has split over the proper interpretation of the first prong of Tennessee Code
Annotated § 36-1-113(g)(14). See In re Ellie K., No. M2019-01269-COA-R3-PT, 2020 WL 1943522, at
*9-11 (Tenn. Ct. App. Apr. 23, 2020) (describing the Court’s differing views on the first prong). The
split concerns whether a parent must fail to manifest both an ability and willingness to assume custody or
financial responsibility or whether a parent must fail to manifest either an ability or willingness to assume
custody or financial responsibility. Compare In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL
2447044, at *7 (Tenn. Ct. App. May 31, 2018), with In re Amynn K., No. E2017-01866-COA-R3-PT,
2018 WL 3058280, at *14 (Tenn. Ct. App. June 20, 2018). Here, under either view, the paternal
grandparents met their burden of proof.
11
hazard or danger of harm if returned to Mother. See Ray v. Ray, 83 S.W.3d 726, 732
(Tenn. Ct. App. 2001).
C.
Because “[n]ot all parental misconduct is irredeemable,” our parental termination
“statutes recognize the possibility that terminating an unfit parent’s parental rights is not
always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.
2005). So even if a statutory ground for termination is established by clear and
convincing evidence, we must also determine whether termination of parental rights is in
the child’s best interests. Tennessee Code Annotated § 36-1-113(i) lists nine factors that
courts must consider in making a best interest analysis. The “factors are illustrative, not
exclusive, and any party to the termination proceeding is free to offer proof of any other
factor relevant to the best interests analysis.” In re Gabriella D., 531 S.W.3d 662, 681
(Tenn. 2017). In reaching a decision, “the court must consider all of the statutory factors,
as well as any other relevant proof any party offers.” Id. at 682. The best interest
analysis is a fact-intensive inquiry, and each case is unique. White v. Moody, 171 S.W.3d
187, 193-94 (Tenn. Ct. App. 2004).
The focus of this analysis is on what is best for the child, not what is best for the
parent. In re Marr, 194 S.W.3d at 499. Additionally, the analysis should take into
account “the impact on the child of a decision that has the legal effect of reducing the
parent to the role of a complete stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). Although “[f]acts relevant to a
child’s best interests need only be established by a preponderance of the evidence, . . . the
combined weight of the proven facts [must] amount[] to clear and convincing evidence
that termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d 507,
535 (Tenn. 2016).
The trial court found that all nine factors favored termination. Based on this
record, we find the evidence preponderates against the trial court’s finding on factors
seven and eight.
The seventh factor focuses on the parent’s home environment. See Tenn. Code
Ann. § 36-1-113(i)(7) (“Whether the physical environment of the parent’s . . . home is
healthy and safe, whether there is criminal activity in the home, or whether there is such
use of [intoxicants] as may render the parent . . . consistently unable to care for the child
in a safe and stable manner[.]”). The trial court found this factor favored termination
based on the condition of Mother’s home at the time of her arrest and her failure to obtain
homemaker services. But the only proof in this record concerning Mother’s home
environment at the time of trial was that the home was clean and pet-free. And the
paternal grandparents submitted no evidence of any criminal activity or current drug use
in the home. This factor favors Mother.
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The eighth factor evaluates the parent’s mental and emotional health, asking
“[w]hether the parent’s . . . mental and/or emotional status would be detrimental to the
child or prevent the parent . . . from effectively providing safe and stable care and
supervision for the child.” Id. § 36-1-113(i)(8). There is no proof in this record that
Mother has any mental or emotional issues. This factor also weighs against termination.
Still, we reach the same conclusion as the trial court. The combined weight of the
proven facts amounts to clear and convincing evidence that termination of Mother’s
parental rights is in the child’s best interest. Mother has never addressed her poor
parenting skills. She paid no child support, and her contact with her child has been
sporadic, at best. The child is thriving in her current environment. She has spent “two-
thirds of her young life” in the paternal grandparents’ care. They want to adopt her.
There is no evidence that the child has a meaningful relationship with Mother. By
contrast, the child has developed a strong bond with the paternal grandparents. From the
child’s perspective, it is evident that a change in caregivers is likely to have a detrimental
impact on her emotional and psychological well-being.
III.
Mother had sufficient notice of the grounds for termination of her parental rights.
The record contains clear and convincing evidence to support terminating Mother’s
parental rights on three statutory grounds. The record also contains clear and convincing
evidence that termination is in the child’s best interest. So we affirm the termination of
Mother’s parental rights.
_________________________________
W. NEAL MCBRAYER, JUDGE
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