In Re Jude M. ( 2020 )

10/22/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 1, 2020
IN RE JUDE M.
Appeal from the Chancery Court for Greene County
No. 2018-CV-365 Douglas T. Jenkins, Chancellor
No. E2020-00463-COA-R3-PT
This is a termination of parental rights case focusing on Jude M., the minor child (“the
Child”) of Sarah M. (“Mother”) and Andy G. (“Father”). In November 2018, Father and
his wife, Jamie G. (“Stepmother”), filed a petition in the Greene County Chancery Court
(“trial court”), seeking to terminate the parental rights of Mother and allow Stepmother to
adopt the Child. The Child previously had been removed from Mother’s custody
pursuant to an order entered by the Greene County Juvenile Court (“juvenile court”) upon
a petition for emergency custody filed by Father. Following a bench trial, the trial court
granted the termination petition upon its finding by clear and convincing evidence that
Mother had abandoned the Child by failing to visit her during the statutorily
determinative period and that conditions leading to the removal of the Child from
Mother’s custody persisted. The trial court further found by clear and convincing
evidence that it was in the Child’s best interest to terminate Mother’s parental rights.
Mother has appealed. Having determined that Petitioners failed to demonstrate the
threshold requirement of a petition having been filed in the juvenile court that alleged the
Child to be a dependent and neglected child, we reverse the trial court’s finding on the
ground of persistence of the conditions leading to removal of the Child from Mother’s
custody. We affirm the trial court’s judgment in all other respects, including the
termination of Mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery 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 KENNY W. ARMSTRONG, J., joined.
Francis X. Santore, Jr., Greeneville, Tennessee, for the appellant, Sarah M.
Alex A. Chesnut, Greeneville, Tennessee, for the appellees, Andy G. and Jamie G.
OPINION
I. Factual and Procedural Background
Mother and Father were never married and never resided together. The Child was
born in September 2011, and Father’s parentage was subsequently established. The Child
resided primarily with Mother throughout the first five years of his life, although
testimony demonstrated that Father had visited with the Child at least to some extent and
had paid child support during those years.
Mother testified during the termination hearing that she began to have difficulty
coping with her situation when the Child was approximately two years of age. According
to Mother, she and the Child were residing with Mother’s parents when Mother’s father
committed suicide while Mother and the Child were at home. Mother acknowledged that
during this time period, she developed an addiction to controlled substances. She stated
that she had been employed for several years at that time as a psychiatric nursing
assistant and had earned $15 an hour as her highest wage. However, Mother explained
that she resigned from the position she held at a Veterans Administration Medical Center
(“VA Medical Center”) one year after her father died because she felt emotionally
incapable of “sit[ting] with suicidal patients,” which her job required. Mother further
testified that after resigning, she “tried to get another job,” but was unsuccessful and “just
wasn’t functional.”
Upon a petition for emergency custody filed by Father, the juvenile court, with
Judge Kenneth N. Bailey presiding, conducted a hearing on August 30, 2016, and
subsequently entered an order on November 21, 2016, nunc pro tunc to the hearing date,
awarding “temporary physical custody” of the Child to Father. We note that Father’s
juvenile court petition was not presented at trial and is not in the record before us. In its
order, the juvenile court permitted Mother to have supervised visitation with the Child on
alternate weekends with the visits to be supervised by the Child’s maternal grandmother
(“Maternal Grandmother”). In so ordering, the juvenile court found that Mother was
“struggling to care for herself and the parties’ minor child”; that Mother did “not have a
stable residence and [was] unemployed,” preventing her from “provid[ing] for the child
financially”; and that Father was “stable, both financially and emotionally, and [could]
provide appropriate care for the minor child.” The juvenile court held Mother’s child
support obligation in abeyance and directed that upon agreement of the parties, Mother
would be able to enjoy unsupervised visitation with the Child in the future. The juvenile
court also ordered the parties to participate in mediation with the caveat that Maternal
Grandmother would be allowed to participate in mediation as well.
2
Following mediation and a subsequent hearing, the juvenile court entered an order
on December 21, 2016, approving the parties’ mediated agreement (“the Mediated
Agreement”) as “fair and equitable” and “in the best interest of the child.”1 Incorporated
into the juvenile court’s order, the Mediated Agreement provided in full:
1. Custody to Father.
2. Mother to have visitation four (4) times per month at times of
reasonable duration; supervised by a party or parties to be approved
by the Father; length of time and approval not to be unreasonably
withheld by the Father.
3. Parties to communicate with each other appropriately.
4. Mother’s time in visitation to increase as she progresses in dealing
with her issues.
5. [Maternal] Grandmother’s time in visitation not to cease absent a
negative change in the child’s circumstances.
6. Mother to be required to pass drug screens, participate in mental
health assessment and counseling, obtain employment, obtain
suitable housing, and establish and maintain a stable life.
7. Mother to execute releases for counselor to release information to
Father and Court.
8. Mother to have a drug screen monthly and upon probable cause
demand by Father within 24 hours; results provided to Court at her
expense. To cease on 3 consecutive passed monthly drug screens,
except on demand screens.
9. No driver may drive the child without license and appropriate
insurance.
Father and Stepmother (collectively, “Petitioners”) initiated the instant action by
filing a “Petition for Adoption and Termination of Parental Rights,” on November 19,
1
In its order approving the parties’ mediated agreement, the juvenile court stated that the hearing had
been conducted upon Father’s “Petition for Emergency Custody and [to] Modify Permanent Parenting
Plan.” However, the record contains no other indication that a permanent parenting plan order had ever
been entered by any court.
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2018. They alleged statutory grounds against Mother of abandonment through failure to
visit and financially support the Child in the four months preceding the petition’s filing
and persistence of the conditions leading to the Child’s removal from Mother’s custody.
Petitioners further alleged that termination of Mother’s parental rights and adoption by
Stepmother would be in the best interest of the Child.
Acting initially without benefit of counsel, Mother filed a response on January 2,
2019, objecting to termination of her parental rights. She concomitantly filed a uniform
affidavit of indigency, stating that her total monthly income was $327, comprised of $190
in food stamps and $137 from Families First. She also stated in her affidavit that her net
income for the last year she had paid taxes, 2016, had been $18,000. In March 2019, the
trial court entered orders appointing, respectively, counsel to represent Mother and
attorney Curtis Collins as a guardian ad litem (“GAL”) on behalf of the Child.
Now acting through her appointed counsel, Mother filed a motion seeking to
amend her answer and strike her pro se response on April 5, 2019. In her amended
answer, Mother denied that any grounds for termination of her parental rights existed and
objected to the petition for adoption. Specifically concerning Mother’s visitation with the
Child, Mother asserted that Maternal Grandmother had eventually told Mother “that she
was afraid that [Father] would terminate her contact with the child if she allowed
[Mother] to have in-person contact with the child.” Mother therefore admitted that her
visits with the Child had been “somewhat minimal” while asserting that this had been
“through no fault of her own.” We note that although the juvenile court initially had
designated Maternal Grandmother as the individual to supervise Mother’s visitation, the
December 2016 order provided that visitation would be “supervised by a party or parties
to be approved by the Father.”
The trial court conducted a bench trial on November 5, 2019, during which
Mother, Father, and Stepmother each testified. In addition, Petitioners presented
testimony from an individual, A.P., for whom Stepmother regularly babysat, and Mother
presented testimony from a longtime friend, C.M., who stated that he was a licensed
clinical social worker and had been employed at the VA Medical Center and another
facility alongside Mother in the past. At the close of trial, the GAL presented a
recommendation to the trial court that termination of Mother’s parental rights would be in
the Child’s best interest.
During trial, Mother testified that in the summer of 2016, she had begun “living at
the river” at the Nolichucky Gorge Campground off the Appalachian Trail and was
homeless for approximately a year. Mother maintained that prior to Father’s gaining
custody of the Child, she had often left the Child in the care of Maternal Grandmother
during this time. Mother stated that she “spent a lot of time in nature trying to not use
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drugs to cope with [her] father’s suicide” and that although she knew this method of
coping “looks bad,” she “got better.” Mother also testified that in February 2017, she
began working as a nanny for two children in exchange for a rent-free apartment over
which her employer was the landlord. According to Mother, she vacated the apartment
when her landlord/employer sold the building, which was also during the time period that
she became pregnant with her second child, a daughter who by the time of trial was
approximately one year of age.
Mother further testified that when her employment as a nanny ended, she
successfully applied for public housing in Johnson City, Tennessee, and had resided there
with her daughter in a two-bedroom apartment ever since. Mother described her current
living situation as “quiet” and “safe.” Mother indicated that her only employment outside
the home at the time of trial was cleaning three houses on a weekly alternating basis,
earning approximately $150 per month in addition to the public assistance she received.
Mother stated that she planned “on either going back to school or getting a full-time job”
when her youngest child became old enough for day care. Mother acknowledged that she
continued to smoke marijuana as a means of coping with “PTSD [post-traumatic stress
disorder] and stress and anxiety.” Although Mother testified that she had sought mental
health therapy and was currently seeing a therapist, she presented no documentation of
mental health assessment or therapy.
As a longtime friend and former co-worker of Mother’s, C.M. corroborated much
of Mother’s testimony concerning improvements in her housing situation, substance
abuse, and mental outlook. He also praised Mother’s relationship with her daughter and
opined that Mother provided excellent care of and had developed a meaningful bond with
her youngest child. Although C.M. purported to draw from his experience as a clinical
social worker, he acknowledged that he had never assisted Mother in a professional
capacity beyond making a few suggestions regarding available assistance. C.M.
acknowledged surprise when confronted with Mother’s testimony that she continued to
use marijuana.
Father testified during trial that in the months after he obtained custody of the
Child in August 2016, Mother would sometimes visit the Child at Maternal
Grandmother’s home when the Child was staying there. He stated that Mother had
communicated with him only through Facebook messaging, reviewing some messages
from Mother sent in late 2016, presented as an exhibit, in which Mother stated that she
missed the Child and wanted to see the Child while Father responded by telling Mother
that she needed to meet the requirements set forth in the juvenile court’s December 2016
order before she could visit with the Child.
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Father also reviewed a set of Facebook messages between the parents spanning the
dates of October 4, 2017, through August 17, 2019, during which time Father received
four messages from Mother asking to see the Child. Father acknowledged that in these
four instances within a nearly two-year time span, Mother had “asked a couple of times if
she could talk to [the Child], and if she could see [the Child].” His testimony and the
messages indicate that Father consistently told Mother that she needed to meet the
requirements in the December 2016 order concerning drug screens and mental health
assessment in order to resume supervised visitation with the Child. Father stated that
Mother had asserted at one time that she had completed all requirements but that she had
never produced any documentation of having done so.
Father also testified that the Child had resided with Petitioners and their four-year-
old daughter in their home in Mosheim, Tennessee, for the three years since he had been
granted custody of the Child. He presented photographs of Petitioners’ home, including
the Child’s individual bedroom and playground equipment in the backyard. Father stated
that he was employed by FedEx and that Stepmother was not employed outside the home.
Father described the Child’s relationship with Stepmother as “really good,” adding that
the Child confided in Stepmother and that they had “their little mom and son secrets.”
According to Father, the Child had been earning “excellent” grades in elementary school
and enjoyed extracurricular activities such as T-ball, basketball, and “Scouts.” Father
opined that the Child no longer had a meaningful relationship with Mother.
Stepmother corroborated Father’s testimony regarding the Child’s progress while
living in their home and lack of interaction with Mother. Stepmother testified that she
provided much of the routine daily care for the Child before and after school. Stepmother
described her relationship with the Child as “great” and indicated that she loved the Child
and desired to legally be his mother, a role she opined that she already fulfilled for him.
Upon cross-examination, Stepmother stated that she had talked with the Child about
Mother and that the Child knew Mother was his “real mom.” She also testified, however,
that the Child referred to Mother by her first name while he called Stepmother, “Mama.”
Stepmother acknowledged that she had told the Child that if Mama was “what he was
comfortable calling [her], then that’s what he could call [her].”
Petitioners’ additional witness, A.P., testified that she had known Stepmother for
seven or eight years and that Stepmother regularly babysat A.P.’s child in Petitioners’
home for a few hours on weekday afternoons after school. A.P. described having
witnessed a close relationship between Stepmother and the Child.
Although a transcript was filed in November 2019 of the trial court’s oral ruling
delivered at the close of trial, the trial court did not enter a final written order until
February 25, 2020, incorporating the transcript of the oral ruling at that time. In its final
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order, the trial court found by clear and convincing evidence that Mother had abandoned
the Child by failing to visit him during the four months preceding the filing of the
termination petition and that the conditions leading to removal of the Child from
Mother’s custody persisted. However, the trial court also found that Mother had
successfully defended against the ground of abandonment by failure to financially
support the Child because her failure to support had not been willful. Having determined
that two statutory grounds had been established, the trial court further determined by
clear and convincing evidence that termination of Mother’s parental rights was in the
Child’s best interest. The trial court directed “guardianship rights” to the Child to be
“vested in [Stepmother] for the purposes of adoption.” Mother timely appealed.
II. Issues Presented
On appeal, Mother presents three issues, which we have restated slightly as
follows:
1. Whether the trial court erred in finding by clear and convincing
evidence that Mother had abandoned the Child by failing to visit or
have meaningful contact with him during the statutorily
determinative period.
2. Whether the trial court erred in finding by clear and convincing
evidence that the conditions leading to the Child’s removal from
Mother’s custody were persistent and ongoing.
3. Whether the trial court erred in finding by clear and convincing
evidence that termination of Mother’s parental rights was in the
Child’s best interest.
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
7
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,
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).
***
8
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). In addition, as our Supreme Court has explained, this
Court is required “to review thoroughly the trial court’s findings as to each ground for
termination and as to whether termination is in the child’s best interests.” In re
Carrington H., 483 S.W.3d at 525.
IV. Grounds for Termination of Mother’s Parental Rights
Tennessee Code Annotated § 36-1-113 (Supp. 2020) 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.
The trial court determined that the evidence clearly and convincingly supported a finding
of two statutory grounds to terminate Mother’s parental rights: (1) abandonment through
9
failure to visit the Child and (2) persistence of the conditions leading to the Child’s
removal from Mother’s custody. We will address each statutory ground in turn.
A. Abandonment by Failure to Visit
Concerning statutory abandonment, Tennessee Code Annotated § 36-1-113(g)(1)
(Supp. 2020) 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; . . .
Regarding the definition of abandonment applicable to this ground, Tennessee Code
Annotated § 36-1-102(1) (Supp. 2020) provides in relevant part:
(A)(i) For a period of four (4) consecutive months immediately preceding
the filing of a proceeding, pleading, petition, or any amended petition to
terminate the parental rights of the parent or parents or the guardian or
guardians of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent or parents or the guardian or
guardians either have failed to visit or have failed to support or have failed
to make reasonable payments toward the support of the child; . . .
The trial court found that clear and convincing evidence demonstrated Mother’s
failure to visit “or have meaningful contact” with the Child during the four months
preceding the filing of the termination petition. The four-month statutorily determinative
period for purposes of abandonment by failure to visit or support began on July 19, 2018,
and concluded on November 18, 2018, the day prior to the filing of the termination
petition (“Determinative Period”).2 See In re Joseph F., 492 S.W.3d 690, 702 (Tenn. Ct.
App. 2016) (citing In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085,
2
We note that at the beginning of trial, the parties agreed that the statutorily determinative period for
purposes of the abandonment grounds alleged in this action spanned July 19, 2018, through November
19, 2018. Because we find that this one-day difference in the conclusion of the determinative period does
not affect our analysis of abandonment in this case, we determine the inclusion of the day of the petition’s
filing, November 19, 2018, in the determinative period to be harmless error. See, e.g., In re Jacob C.H.,
No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb 20, 2014).
10
at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that the applicable four-month statutory
period preceding filing of the termination petition ends on the day preceding filing)).
Mother does not dispute the trial court’s finding that she did not visit the Child
during the Determinative Period. Mother contends, however, that the trial court erred in
finding clear and convincing evidence of this statutory ground because she purportedly
carried her burden to demonstrate by a preponderance of the evidence that her failure to
visit was not willful. Effective July 1, 2018, the General Assembly amended Tennessee
Code Annotated § 36-1-102(1) to render the absence of willfulness to be solely an
affirmative defense for cases filed as of the amendment’s effective date. See 2018 Tenn.
Pub. Acts, Ch. 875, § 2 (H.B. 1856). Inasmuch as the termination petition in the instant
action was filed on November 19, 2018, the amendment eliminating “willfully” from this
definition of statutory abandonment applies, see id., as does the following statutory
subsection added by the amendment:
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[.]
Tenn. Code Ann. § 36-1-102(1)(I) (Supp. 2020).
In its oral ruling incorporated into the final order, the trial court noted that “it’s a
defense for [Mother] if the failure to visit . . . was not ‘willful.’” The trial court then
specified the following, in pertinent part, regarding the statutory ground of abandonment
by failure to visit:
The [juvenile] court specifically said [Mother] can visit. But then a couple
of clicks later, the court put some hooks on it. Put some conditions on it,
and they’re not, in my experience in the legal field for twenty some-odd
years, they’re not very hard conditions. . . . This is just a very simple
agreement to which [Mother] signed [her] name, whether [she] read it or
understood it or not, [she] signed [her] name to it. It became an order of the
court. Once [the juvenile court] signed off on it and made it an order in
November of 2016, I don’t see anything, I’ve not been shown anything by
[Mother’s] lawyer, where [she] ever challenged that or anything. And those
conditions are not that bad.
11
[Mother’s] admission that [she] still to this day can’t pass a drug test
for marijuana is a very significant admission . . . . It has legal effect. . . .
[Mother has] a friend up here in [C.M.] . . . . He’s a good one. But he’s
somewhat misinformed about [Mother’s] conduct . . . . And I don’t think
that the truth would deter him from bragging on [Mother], but I do think he
didn’t quite possess all the facts that he needed to back up some of his
opinions that he gave. But at any rate, he came here and he stuck up for
[Mother], and the Court appreciates him. The Court appreciates his attitude
toward the system, and he’s been involved in it. He’s a very able-bodied
witness in a case like this. But the Court can’t quite take everything he said
for a hundred percent because he was a little bit misinformed by [Mother].
And the fact that [Mother] can’t pass a drug test means that, in my opinion
– I agree with the Guardian Ad Litem – when this Order says father –
approval not to be unreasonably held by the father for visitation, the Court
believes the father was reasonable in not accommodating [Mother’s]
visitation until [she] showed him a clean drug screen. We now know that
[Mother was] taking drug screens the whole time and they weren’t clean.
For that, and other reasons, I do think by clear and convincing
evidence that the ground of failure to visit has been proven[.]
Although the trial court did not expressly state that Mother’s failure to visit was
willful, the court did state that the ground had been proven while also noting Mother’s
willfulness defense. We therefore determine that the finding of willfulness in the
establishment of the ground over Mother’s defense was clearly implied within the trial
court’s order. The trial court specifically found that in failing to visit the Child during the
determinative period, Mother had failed to meet the requirements set forth in the juvenile
court’s December 2016 order to allow resumption of visitation with the Child; that those
requirements were not overly onerous; that Father had been reasonable in refusing to
accommodate Mother’s occasional requests for visits until she could produce a clean drug
screen; and that Mother admittedly, even at the time of trial, could not have passed a drug
screen as required by the juvenile court’s order due to her marijuana use. Upon thorough
review of the record, we agree with the trial court on these points.
In support of her argument that her failure to visit the Child during the
Determinative Period was not willful, Mother primarily contends that Petitioners
“thwarted” her efforts to visit “every step of the way.” We disagree. Our review of the
Facebook messages between the parents reveals that although Father was not particularly
pleasant or welcoming in response to Mother’s occasional requests to visit the Child, he
did consistently refer to the visitation requirements of the juvenile court’s December
2016 order and inform Mother that she could visit the Child when she met the
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requirements. A parent’s failure to visit a child 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 838, 864 (Tenn. Ct. App. 2005) (internal citations omitted).
The requirements in the December 2016 order upon which Petitioners rely were as
follows:
Mother to be required to pass drug screens, participate in mental
health assessment and counseling, obtain employment, obtain suitable
housing, and establish and maintain a stable life.
Mother to execute releases for counselor to release information to
Father and Court.
Mother to have a drug screen monthly and upon probable cause
demand by Father within 24 hours; results provided to Court at her
expense. To cease on 3 consecutive passed monthly drug screens, except
on demand screens.
(Paragraph numbering omitted.) At the outset, we note that Mother was visiting with the
Child initially in late 2016 at Maternal Grandmother’s home, although the number and
duration of these visits is not clear from the record. At issue are Father’s denials of
visitation to Mother when she sporadically began to make requests to resume visitation
after periods of not seeing the Child. According to testimony and the Facebook
messages, Mother made approximately four requests within nearly a two-year time span
inclusive of the Determinative Period.
The list of the requirements in the first paragraph quoted above from the
December 2016 order contain a mix of initially short-term, measurable tasks for which
Mother could have provided documentation to Father (pass a drug screen and undergo a
mental health assessment) and long-term, broader goals (establish and maintain a stable
life). We emphasize that we do not find that it would have been reasonable for
Petitioners to have interpreted the December 2016 order as requiring Mother to “establish
and maintain a stable life” before she could resume supervised visitation with the Child.
However, Father’s demands in his messages to Mother, and as Mother herself described
them in testimony, were that she present proof of a clean drug screen and mental health
assessment or counseling before she could resume visitation. We determine these
demands to be reasonably aligned with the December 2016 order, particularly the specific
requirement in the order that Mother “have a drug screen monthly and upon probable
13
cause demand by Father within 24 hours” with the “results provided to [the juvenile
court] at her expense.”
We recognize Mother’s testimony that despite her agreement during mediation to
sign releases for the juvenile court and Father to obtain information, she did not want
Father to have full access to her mental health records. However, Mother presented no
proof that she had attempted to even partially comply with this requirement by any
means, which may have included providing sealed documentation to the juvenile court or
to Father’s counsel or even simply documentation that she had undergone a mental health
assessment without providing the content of such. Mother testified that she had sought
mental health counseling and was in counseling at the time of trial; however, she
produced no documentation to support this claim.3
Mother acknowledged that at the time the Child was removed from her custody
and placed with Father, she had spiraled deeply into substance abuse as a way to cope
with grief, stress, and anxiety, and that she “just wasn’t functional.” Although Mother
related that she did not understand all of the ramifications of the Mediated Agreement
when she entered into it, she did undisputedly sign the agreement. As the trial court
found, considering the situation that Mother had been in at the time of removal, the
juvenile court’s requirements that she produce documentation of a clean drug screen and
participation in “mental health assessment and counseling” in order to maintain visitation
with the Child were not unreasonable. When questioned regarding whether she had
attempted to meet any of the requirements, Mother responded: “I had drug tests, but
there’s marijuana in my system, and from what I understand, unless I had a clean drug
screen, I’m not able to see him.” Mother’s response indicates that she understood the
path forward to initiate visits with the Child and did not follow it.
In support of her contention that Petitioners prevented her from visiting the Child,
Mother relies on this Court’s decision in In re Justin P., No. M2017-01544-COA-R3-PT,
2018 WL 2261187 (Tenn. Ct. App. May 17, 2018) as “very applicable” to the case at bar.
To the contrary, we find Justin P. to be factually distinguishable. In Justin P., the parties,
as part of their prior divorce proceedings, had entered into a permanent parenting plan
order that contained a “‘special provision’” stating that the parties would not “‘consume
alcohol and/or drugs in the presence of the minor children’” and that if the mother
became “‘abusive during residential sharing, the children may call the father to pick them
up.’” In re Justin P., 2018 WL 2261187, at *1. The father and stepmother subsequently
filed a petition to terminate the mother’s parental rights on the ground of, as pertinent on
appeal, willful failure to visit as governed by the prior version of the statute. Id. at *1-2.
3
Mother did testify that at one point she had brought a letter written by her therapist to the juvenile court
clerk’s office but that upon learning that a termination petition had been filed against her, she had not
filed the letter.
14
The trial court in Justin P. found clear and convincing evidence of this statutory
ground while also finding, inter alia, that the father had “‘unilaterally stopped’” the
mother’s visitation “‘[a]fter the children had reported to [Father] that [Mother] had
endangered them with her conduct related to drinking.’” Id. at *3. This Court reversed
the trial court’s finding, determining that the special provision in the permanent parenting
plan, which again provided only that the children could call the father to pick them up if
the mother began drinking or became abusive, did “not give Father the right, without
court approval, to unilaterally stop Mother’s visitation, nor [did] it give Father the
authority to convert her unsupervised visitation to supervised visitation and then to use
her failure to visit as a ground to terminate her parental rights.” Id. at *4.
In contrast, Father’s demands in the instant action that Mother provide
documentation of a clean drug screen and some type of mental health assessment prior to
resumption of supervised visitation with the Child were aligned with the requirements in
the juvenile court’s December 2016 order. Father did not unilaterally stop Mother’s
visitation or convert her visitation from unsupervised to supervised without court
approval as the father did in Justin P. See id. When questioned regarding the provision
for a supervised visitation schedule in the December 2016 order that would permit
“Mother’s time in visitation to increase as she progresses in dealing with her issues,”
Father testified that the initial schedule was intended to be “a transitional period” once
Mother met the requirements but that “she never made it that far.” The record reveals no
indication that Father ever prevented Mother from providing the juvenile court or him
with documentation of compliance with the requirements of the juvenile court’s order.
We emphasize that under the applicable version of the statute, the burden of proof
for this affirmative defense is upon Mother. See Tenn. Code Ann. § 36-1-102(1)(I); In re
Nicholas C., No. E2019-00165-COA-R3-PT, 2019 WL 3074070, at *13 (Tenn. Ct. App.
July 15, 2019) (“Under Tenn. Code Ann. § 36-1-102(1)[(I)], willfulness is an affirmative
defense; thus, the burden is upon [the parent] to establish that his failure to visit was not
willful.”). As this Court has previously explained:
Willfulness in the context of termination proceedings does not require the
same standard of culpability as is required by the penal code, nor does it
require that the parent acted with malice or ill will. In re Audrey S., 182
S.W.3d at 863; see also In re S.M., 149 S.W.3d 632, 642 (Tenn. Ct. App.
2004). Rather, a parent’s conduct must have been willful in the sense that it
consisted of intentional or voluntary acts, or failures to act, rather than
accidental or inadvertent acts. In re Audrey S., 182 S.W.3d at 863. “A
parent cannot be said to have abandoned a child when his failure to visit or
support is due to circumstances outside his control.” In re Adoption of
15
Angela E., 402 S.W.3d [636,] 640 [(Tenn. 2013)] (citing In re Adoption of
A.M.H., 215 S.W.3d [793,] 810 [(Tenn. 2007)] (holding that the evidence
did not support a finding that the parents “intentionally abandoned” their
child)).
In re Alysia S., 460 S.W.3d 536, 565-66 (Tenn. Ct. App. 2014). The evidence does not
preponderate against a finding that Mother failed to carry her burden of proof to establish
lack of willfulness as an affirmative defense.
We therefore conclude that the evidence does not preponderate against the trial
court’s finding by clear and convincing evidence that Mother failed to visit the Child
during the determinative period. The trial court did not err in terminating Mother’s
parental rights to the Child based upon this statutory ground.
B. Abandonment by Failure to Support
In the conclusion of Petitioners’ appellate brief, they state within a set of
parentheses: “it is also respectfully submitted that the Mother, by clear and convincing
evidence, abandoned the child by failing to support the child.” The trial court found that
Petitioners had not proven this statutory ground by clear and convincing evidence upon
determining that Mother had successfully established lack of willfulness as an affirmative
defense to her failure to support the Child. See Tenn. Code Ann. §§ 36-1-102(1)(A)(i),
36-1-102(1)(I). Petitioners did not raise this issue in their statement of the issues. See
Champion v. CLC of Dyersburg, LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App. 2011) (“An
issue not raised in an appellant’s statement of the issues may be considered waived.”).
Because Petitioners failed to properly raise an issue concerning the statutory ground of
failure to support, we deem the issue waived on appeal.
C. Persistence of Conditions Leading to the Child’s Removal
The trial court also found clear and convincing evidence of the statutory ground of
persistence of the conditions leading to removal of the Child from Mother’s home or
physical and legal custody. Regarding this statutory ground, Tennessee Code Annotated
§ 36-1-113(g)(3) (Supp. 2020) provides:
(3)(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:
16
(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;
(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard[.]
Under the current version of this statutory section, governing here, a threshold
requirement for application of this ground is that it be based on an order removing the
child that was “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.” Tenn. Code
Ann. § 36-1-113(g)(3)(A) (emphasis added).4 Upon careful review, we determine that
Petitioners failed to establish this threshold requirement.
The juvenile court’s order removing the Child from Mother’s physical and legal
custody to award temporary custody to Father was entered on November 21, 2016, nunc
pro tunc to August 30, 2016. The juvenile court noted in the order that it had heard the
matter “on the Petition for Emergency Custody” filed by Father. However, Father’s
emergency petition is not in the record, and the juvenile court did not note either in the
temporary custody order or its subsequent order approving the parties’ mediated
agreement whether Father had specifically alleged in his petition that the Child was
dependent and neglected as to Mother.
4
In contrast, under the prior version of the statute, which as to this ground governed termination petitions
filed prior to July 1, 2018, this ground was applicable only if a juvenile court had adjudicated the child to
be dependent and neglected as to the parent or parents whose parental rights were at issue. See In re
Audrey S., 182 S.W.3d at 876 (reversing the trial court’s finding of clear and convincing evidence of the
statutory ground of “persistence of conditions” because the juvenile court’s order changing custody of the
child from the father to the mother “contain[ed] no express judicial finding of dependency, neglect, or
abuse, and an order changing custody of a minor child does not necessarily imply such a finding”) (citing
the version of Tenn. Code Ann. § 36-1-113(g)(3) then in effect).
17
The trial court in its final order analyzed the persistence of the conditions set forth
in the November 2016 order without noting the absence of Father’s emergency petition or
questioning whether Father had made allegations during the juvenile court proceedings
that the Child was a dependent and neglected child. We note that neither party has
addressed this threshold requirement on appeal. However, given the precious and
fundamental constitutional rights at stake, this Court must review whether every element
of a statutory ground for termination of Mother’s parental rights has been met. See In re
Carrington H., 483 S.W.3d at 524.
Within the context of a jurisdictional dispute, this Court has previously reviewed
the substance of a parent’s petition to determine whether the allegations amounted in
substance to allegations of dependency and neglect, pursuant to the statutory definition of
a dependent and neglected child, when the petitioning parent failed to invoke the
statutory language in the petition. See Cox v. Lucas, No. E2017-02264-COA-R3-CV,
2018 WL 5778969, at *7 (Tenn. Ct. App. Nov. 2, 2018), reversed on other grounds by
Cox v. Lucas, 576 S.W.3d 356 (Tenn. 2019) (determining that allegations in the father’s
petition for emergency custody “were tantamount to allegations of dependency and
neglect” based on the statutory definition). Having been provided with no juvenile court
petition to enable us to make this comparison, we have examined the juvenile court’s
orders for findings related to allegations of dependency and neglect, comparing the
juvenile court’s findings to the statutory definition.
Tennessee Code Annotated § 37-1-102(b)(13) (Supp. 2019) provides that a
dependent and neglected child is one
(A) Who is without a parent, guardian or legal custodian;
(B) Whose parent, guardian or person with whom the child lives, by
reason of cruelty, mental incapacity, immorality or depravity is unfit
to properly care for such child;
(C) Who is under unlawful or improper care, supervision, custody or
restraint by any person, corporation, agency, association, institution,
society or other organization or who is unlawfully kept out of
school;
(D) Whose parent, guardian or custodian neglects or refuses to provide
necessary medical, surgical, institutional or hospital care for such
child;
18
(E) Who, because of lack of proper supervision, is found in any place
the existence of which is in violation of law;
(F) Who is in such condition of want or suffering or is under such
improper guardianship or control as to injure or endanger the morals
or health of such child or others;
(G) Who is suffering from abuse or neglect;
(H) Who has been in the care and control of one (1) or more agency or
person not related to such child by blood or marriage for a
continuous period of six (6) months or longer in the absence of a
power of attorney or court order, and such person or agency has not
initiated judicial proceedings seeking either legal custody or
adoption of the child;
(I) Who is or has been allowed, encouraged or permitted to engage in
prostitution or obscene or pornographic photographing, filming,
posing, or similar activity and whose parent, guardian or other
custodian neglects or refuses to protect such child from further such
activity; or
(J)(i) Who has willfully been left in the sole financial care and sole
physical care of a related caregiver for not less than eighteen (18)
consecutive months by the child’s parent, parents or legal custodian
to the related caregiver, and the child will suffer substantial harm if
removed from the continuous care of such relative;
(ii) For the purposes of this subdivision (b)(13)(J):
(a) A related caregiver shall include the child’s biological, step or
legal grandparent, great grandparent, sibling, aunt, uncle or
any other person who is legally or biologically related to the
child; and
(b) A child willfully left with a related caregiver as defined in
subdivision (b)(13)(J)(ii)(a) because of the parent’s military
service shall not be subject to action pursuant to § 37-1-183[.]
In its November 2016 order, the juvenile court found that Mother was “struggling
to care for herself and the parties’ minor child” and that she did “not have a stable
19
residence and [was] unemployed” such that she could not “provide for the child
financially.” In the December 2016 order, the juvenile court approved the parties’
mediated agreement as “fair and equitable” and “in the best interest of the child” but
made no specific findings related to allegations against Mother. Although the juvenile
court stated in its November 2016 order that the matter was set for “final hearing” in
December 2016, the juvenile court did not state in either order that the hearing giving rise
to the order was a preliminary, adjudicatory, or dispositional hearing based on allegations
of dependency and neglect. See In re Audrey S., 182 S.W.3d at 874 (“The statutes and
rules governing procedure in the juvenile courts provide for three types of hearings in
cases where a child is alleged to be dependent, neglected, or abused: (1) preliminary
hearings; (2) adjudicatory hearings; and (3) dispositional hearings.”).
The juvenile court’s finding that Mother was “struggling to care for herself and the
parties’ minor child” may indicate neglect of the Child, but whether the Child actually
suffered neglect as part of Mother’s “struggling” is unclear from the juvenile court’s
findings. See Tenn. Code Ann. § 37-1-102(b)(13)(G). Likewise, this finding could
indicate that Mother was “unfit” to provide care for the Child, but it is certainly not clear
from the juvenile court’s order that this was “by reason of cruelty, mental incapacity,
immorality or depravity.” See id. at § 37-1-102(b)(13)(B). We conclude that whether
Father alleged that the Child was a dependent and neglected Child in his emergency
petition cannot be discerned from the juvenile court’s findings.
Having determined that Petitioners have failed to provide this Court or the trial
court with Father’s juvenile court petition and that whether Father alleged that the Child
was a dependent and neglected child in his juvenile court petition is not discernible from
the juvenile court’s orders, we further determine that the statutory ground of persistence
of the conditions leading to removal of the Child is not applicable to this action. We
therefore reverse the trial court’s finding as to this statutory ground for termination of
Mother’s parental rights.
V. Best Interest of the Child
Mother contends that Petitioners did not present sufficient evidence to support the
trial court’s finding by clear and convincing evidence that termination of her parental
rights was in the best interest of the Child. We disagree. 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 240, (Tenn. 2010))). Tennessee Code Annotated §
20
36-1-113(i) (Supp. 2020) provides a list of factors the trial court is to 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).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the
home, or whether there is such use of alcohol, controlled substances
or controlled substance analogues as may render the parent or
21
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 explained 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 [240,] 254 [(Tenn. 2010)].
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).
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.
22
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).
In the instant action, the trial court concluded that the statutory factors weighed
against maintaining Mother’s parental rights to the Child. In its oral ruling incorporated
into the final order, the trial court specifically found regarding these factors:
I now proceed on to the best interest analysis, and summarily I do say that
the Court finds it’s in the best interest for this termination to occur. And I
find that by clear and convincing evidence, and I think the overriding factor
for the Court – and I’m considering all nine of these factors, and I’m going
to go through them individually – but the overriding factor for the Court is
stability. And the fact that we don’t have to wait, we don’t have to
continue to work with somebody, I mean we’ve got stability here, available,
and that’s the overriding factor to the Court. This child deserves a stable,
safe, loving environment, and I believe that the adoptive parents can
provide that.
With respect to the exact factors in the statute, number one is . . .
whether the parent or guardian has made such an adjustment of
circumstance, conduct, conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian. As the Guardian Ad
Litem pointed out when he argued, [Mother’s] own admissions are that [she
23
is] still conducting illegal activity, whether [she] look[s] at it that way or
not. That weighs in favor of termination, in the Court’s opinion.
Number two, whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available social services for
such duration or time that lasting adjustment does not reasonably appear
possible. Insofar as this is not a DCS [Department of Children’s Services]
case, I’m of course not going to consider that factor.
Number three, whether the parent or guardian has maintained regular
visitation or contact with the child. That weighs in favor of termination.
Number four, whether a meaningful relationship has otherwise been
established between the parent and the guardian and the child. As the
Guardian Ad Litem acknowledged when he argued, and the Court believes
the argument is valid, [Mother] had a relationship, but it’s gone by the
wayside because [Mother] continue[s] to smoke marijuana. I mean,
basically – I know [Mother] had a lot of other stuff going on, and I know
that in [her] mind [she] feel[s] like [she] needed that marijuana [to keep]
from doing something much more nefarious in [her] own mind, but at the
same time, the Court has to look at the facts in kind of a cold-hearted way,
calculating way, and that’s the facts. So that weighs in favor of
termination.
Number five, the effect a change of caretakers and physical
environment is likely to have on the child’s emotional, psychological, and
medical condition. I do think it would damage the child emotionally if the
child went back into [Mother’s] custody.
Number six, 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. Again, I agree with the Guardian
Ad Litem that that one doesn’t apply here.
Number seven, whether the physical environment of the parent’s or
guardian’s home is healthy, safe, whether there is criminal activity in the
home, or whether there is such use of alcohol or controlled substances or
substance analog[ues] as may render the parent or guardian consistently
unable to care for the child in a safe and stable manner. I don’t find that
those things exist in the father’s household. The father runs a good
24
household, free of criminal and controlled substances. Criminal activity
and controlled substances. Mother does not, just to sum it up.
Number eight, 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. The Court finds that the mother has been through a very, very
low point, low points in her life. Some of it maybe she brought on herself,
some of it was due to outside circumstances. But she has been unable to
take care of this child, and just now presently getting back to the point
where she probably could take care of the child. She admits that she can’t
take care of the child financially at the present time, but she believes, and
[C.M.] believes, that she’s getting to the point where she can take care of
the child. But again, I think that weighs in favor of termination, because
she’s really – if she’s there, she just got there.
Number nine, whether the parent or guardian has paid child support
consistent with the child support guidelines. That weighs in favor of
termination. I don’t see any willful qualifications in that particular statute,
and I just summarily say that she hasn’t paid, she admits she hasn’t paid,
and therefore she’s not financially supported the child, and that would
weigh in favor of termination.
So, all those findings with regard to best interest are made by clear
and convincing evidence standard[.]
The trial court expressly found that the following factors weighed against
maintaining Mother’s parental rights to the Child: factor one (whether Mother had made
an adjustment of circumstance, conduct, or conditions), factor three (whether Mother had
maintained regular visitation or other contact), factor four (whether a meaningful
relationship had been established between Mother and the Child), factor five (the effect a
change of caretakers and physical environment would have on the Child), factor seven
(whether the physical environment of Mother’s home is healthy and safe), factor eight
(whether Mother’s mental and/or emotional status would prevent her from effectively
providing safe and stable care and supervision for the Child), and factor nine (whether
Mother had paid child support).
The trial court found that two statutory factors were inapplicable to the best
interest analysis. As the trial court noted, factor two (whether a parent has effected a
lasting adjustment after reasonable efforts by made by social service agencies) is not
applicable because neither the Department of Children’s Services nor any other social
25
services agency was involved in this action. As to factor six (whether Mother had shown
abuse or neglect toward the Child), the trial court found persuasive a statement made by
the GAL during his closing recommendation that factor six did “not apply.” We note that
Mother arguably admitted to her own neglect of the Child during the time period prior to
the Child’s removal from her custody when Mother was living “at the river” and
apparently left the Child in Maternal Grandmother’s primary care. Father testified that
after viewing a video that had been on the Child’s iPad when the Child was in Mother’s
custody, Father became concerned that the Child “was not in a safe place and was not
being watched the way he should have been.” However, Father made no specific
allegations during these proceedings regarding the care the Child had received other than
to allege that Maternal Grandmother, rather than Mother, had been the Child’s primary
caregiver for most of his first five years. Father acknowledged that the Child was in no
way developmentally delayed when he came into Father’s custody. We determine that
factor six weighs neither for nor against termination of Mother’s parental rights.
In support of her argument that the trial court erred in finding that it was in the
Child’s best interest to terminate her parental rights, Mother first asserts that the trial
court should have found factor nine concerning her nonpayment of child support to be
inapplicable because she was under no court order to pay support. However, it is well
established that a parent’s “obligation to pay support exists even in the absence of a court
order to do so.” State, Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 523-24
(Tenn. Ct. App. 2004); see also Tenn. Code Ann. § 36-1-102(1)(H) (Supp. 2020) (“Every
parent who is eighteen (18) years of age or older is presumed to have knowledge of a
parent’s legal obligation to support such parent’s child or children[.]”). Mother’s
argument in this regard is unavailing.
Mother next asserts that factors one, four, and seven “must be found in her favor”
because, respectively, she made an adjustment in her conditions, had a meaningful
relationship with the Child at one time, and was confronted with no proof that her home
was unsafe. As to factor one, this argument fails to take into account that the parent’s
“adjustment of circumstance, conduct, or conditions” must be “as to make it safe and in
the child’s best interest to be in the home of the parent or guardian.” See Tenn. Code
Ann. § 36-1-113(i)(1). The trial court found that Mother had improved her circumstances
and commended Mother on her progress to date. However, the trial court also found that
Mother was “still conducting illegal activity” in the form of regular marijuana use,
placing the safety and stability of her home in question. This finding also implicates
factor seven and the “physical environment” of Mother’s home due to the use of
“controlled substances . . . as may render the parent or guardian consistently unable to
care for the child in a safe and stable manner.” See id. at § 36-1-113(i)(7).
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Regarding factor four, the trial court found that Mother “had a relationship, but it’s
gone by the wayside.” Mother argues that this factor should weigh in her favor because
“a meaningful relationship had been [in] existence at one time.” However, this Court has
previously recognized that “[a]n absence of contact between a parent and child for an
extended period of time can lead to, in effect, the ‘death’ of the relationship.” See In re
Dylan S., No. E2018-02036-COA-R3-PT, 2019 WL 5431878, at *4 (Tenn. Ct. App. Oct.
23, 2019) (citing In re Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at
*16 (Tenn. Ct. App. June 16, 2011)). Mother testified at trial that when she saw the
Child “on [a] Facebook call when [her] niece snuck and showed [her the Child] on
videos,” “[i]t was the first time [she had] seen him in three years.” Testimony regarding
the Child’s attitude toward Mother supported and the GAL’s recommendation reinforced
the trial court’s finding that a meaningful relationship between Mother and the Child no
longer existed at the time of trial. The evidence does not preponderate against the trial
court’s findings concerning factors one, four, and seven.
Finally, Mother argues that factors three and five should not weigh against
maintaining Mother’s parental rights to the Child. Having determined that the statutory
ground of abandonment by failure to visit was established by clear and convincing
evidence, we further determine that Mother’s argument concerning factor three is
unavailing. As to factor five, Mother posits that any evidence presented that the Child’s
“routine would be disrupted if [Mother’s] bonds with him could be restored” was
“inconsequential.” To the contrary, the trial court in its best interest analysis focused on
the Child’s need for stability, finding that Petitioners could provide “a stable, safe, loving
environment” for the Child. Moreover, given Mother’s admittedly sporadic history of
attempts to reconnect with the Child, the evidence does not preponderate against the trial
court’s finding that a change of caretakers and physical environment to Mother’s care
would likely “damage the child emotionally.”
Based on our thorough review of the evidence in light of the statutory factors, we
conclude that the evidence presented does not preponderate against the trial court’s
determination by clear and convincing evidence that termination of Mother’s parental
rights was in the best interest of the Child. Having also determined that a statutory
ground for termination was established, we affirm the trial court’s termination of
Mother’s parental rights to the Child.
VI. Conclusion
For the foregoing reasons, we reverse the trial court’s finding regarding the
statutory ground of persistence of the conditions leading to removal of the Child from
Mother’s custody. 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
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trial court, pursuant to applicable law, for enforcement of the trial court’s judgment
terminating Mother’s parental rights and collection of costs assessed below. Costs on
appeal are assessed equally to the appellant, Sarah M, and the appellees, Andy G. and
Jamie G.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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