In Re Matthew K. ( 2021 )

08/13/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 1, 2021
IN RE MATTHEW K. ET AL.
Appeal from the Circuit Court for Hamilton County
No. 19A183 W. Jeffrey Hollingsworth, Judge
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No. E2020-00773-COA-R3-PT1
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This consolidated appeal involves termination of parental rights in a case focusing on
Zayne R., the minor child of Brittney R. (“Mother”) and Joseph D., and Matthew K., the
minor child of Mother and Joshua K. In June 2019, Mother’s parents, Larry R.
(“Grandfather”) and Bertha R. (“Grandmother”) (collectively, “Grandparents”), filed two
petitions in the Hamilton County Circuit Court (“trial court”), seeking termination of
Mother’s parental rights, respectively, to Zayne R. and Matthew K. (collectively, “the
Children”). The Children had previously been removed from Mother’s custody and placed
in the custody of Grandparents pursuant to an order entered by the Hamilton County
Juvenile Court (“juvenile court”). Following a consolidated bench trial, the trial court
granted Grandparents’ termination petitions based upon its finding by clear and convincing
evidence that Mother had abandoned the Children by failing to visit and by failing to
financially support them during the statutorily determinative period. The trial court further
found that it was in the Children’s best interest to terminate Mother’s parental rights.
Mother has appealed. Discerning no reversible error, we affirm the trial court’s final orders
terminating Mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KENNY W. ARMSTRONG, JJ., joined.
Stephanie Rogers, Chattanooga, Tennessee, for the appellant, Brittney R.
Berry Foster, Chattanooga, Tennessee, for the appellees, Larry R. and Bertha R.
1
Upon review of the appellate records as transmitted from the trial court and a determination that the two
cases were tried together and involved the same appellant and appellees, this Court entered a sua sponte
order on October 30, 2020, consolidating the appellant’s appeal in case number E2020-00774-COA-R3-PT
with this appeal.
OPINION
I. Factual and Procedural Background
Zayne R. (“Zayne”) was born in June 2007. On October 25, 2016, the juvenile court
placed Zayne in the legal custody of Grandparents. At the time of trial, Zayne had remained
in Grandparents’ custody and care continuously since that date. Both Mother and
Grandmother testified during the termination trial concerning the circumstances that
precipitated the juvenile court’s award of custody of Zayne to Grandparents. According to
Mother, she had agreed for Grandparents to have custody of Zayne during a 2016 hearing
because she was “not at a point financially or mentally” to take care of him.2 Mother also
stated that although she had informed the juvenile court that it was “in the best interest of
[Zayne] for [Grandparents] to take care of him,” she had intended this arrangement to be a
temporary one.
Grandmother explained during the termination trial that she and Grandfather had
initially pursued custody of Zayne when Mother’s relationship with her then-boyfriend was
not “going right and she appeared to be getting on drugs . . . .” Grandmother also testified
that on June 5, 2016, Grandfather had received a phone call from Mother “ranting and
raving” and asking them to come get Zayne. According to Grandmother, Mother had also
sent her text messages indicating that she and Zayne were “living on the streets.”
Grandmother explained that they had “felt like Zayne was in a situation where it was
becoming unsafe for him . . . .”
Mother related during the termination trial that the juvenile court had conditioned
the return of Zayne to Mother’s custody on her ability to obtain and maintain employment,
a vehicle, and a stable residence for a period of six months. Grandmother testified that the
juvenile court had determined that it would consider returning custody to Mother if she
provided the court with proof of six months of steady employment and a stable residence,
proof of ownership of a vehicle, a note from a psychiatrist stating that she could raise a
child again, and a note from Zayne. Mother testified that the juvenile court had granted
Grandparents a measure of discretion concerning Mother’s visitation with Zayne.
Matthew K. (“Matthew”) was born in July 2018. On October 16, 2018, the juvenile
court placed Matthew in the legal custody of Grandparents. At the time of trial, he had
remained in their custody and care continuously since that date. Grandmother testified
concerning the circumstances leading to Grandparents’ custody of Matthew. Mother and
Mother’s then-boyfriend had taken one of Grandfather’s vehicles, and Grandparents did
not hear from Mother for “a couple of months” until she called them from Alabama.
2
Although the record does not provide a clear description of the juvenile court proceedings, it appears that
the Children were placed in Grandparents’ custody after the juvenile court granted Grandparents’ petitions
to adjudicate the Children dependent and neglected.
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Grandmother further explained that Mother told her that the vehicle had broken down and
that her boyfriend had left. Although the timeline is unclear from her testimony,
Grandmother stated that Mother went into premature labor due to dehydration at some
point following this trip to Alabama. When Grandmother visited Mother in the hospital,
Mother admitted to recent drug use. After Matthew was born, and upon Grandparents’
emergency petition, the juvenile court granted temporary custody of him to Grandparents.
At trial, Mother acknowledged that the juvenile court had ordered her to take a drug
test before a custody adjudication with regard to Matthew. According to Mother, she did
not submit to a drug test because she could not afford one. By the time of the “second
court date,” Mother was homeless and without a source of income. As a result, Mother did
not attend the October 16, 2018 hearing, and Matthew remained in the custody of
Grandparents. According to Grandmother, the juvenile court did not place any conditions
on Mother’s ability to regain custody of Matthew because she was not present during the
hearing. Mother acknowledged during trial that she was not in a position to regain custody
of Matthew at the time of the juvenile court hearing.
On June 4, 2019, Grandparents concomitantly filed in the trial court separate
petitions seeking termination of Mother’s parental rights concerning Zayne and Matthew
(collectively, “the Petitions”). In the Petitions, Grandparents alleged the following
statutory grounds for the termination of Mother’s parental rights as to both Children: (1)
abandonment by failure to visit the Children for a period of four consecutive months
immediately preceding the filing of the Petitions; (2) abandonment by failure to make
reasonable payments toward the support of the Children for a period of four consecutive
months immediately preceding the filing of the Petitions; and (3) persistence of the
conditions that led to the removal of the Children from Mother’s custody.3 The trial court
in its final orders referred to the four-month statutory period as February 4, 2019 through
June 3, 2019 (“Determinative Period”), and we determine that this is the correct statutory
period. 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 applicable four-month statutory period
preceding filing of the termination petition ends on the day preceding filing).
Proceeding initially without benefit of counsel, Mother filed responses to the
Petitions on June 28, 2019, raising the affirmative defense of lack of willfulness relative to
the ground of abandonment based on her failure to visit. According to Mother’s response,
Grandparents had prevented her from visiting the Children by addressing her requests to
3
Grandparents also alleged in the Petitions statutory grounds warranting termination of Joseph D.’s parental
rights to Zayne and Joshua K.’s parental rights to Matthew. On January 31, 2020, the trial court terminated
both fathers’ parental rights following a hearing conducted on December 4, 2020, at which neither father
appeared. The trial court found that the fathers had each failed to respond in any way or contest any issue
and that each had abandoned his child by failure to visit and support during the four months preceding the
filing of the Petitions. Because the fathers are not parties to this appeal, our focus will remain on the facts
relevant to the statutory grounds for termination of Mother’s parental rights.
-3-
visit with responses such as: “We have to be somewhere tonight”; “Zayne has a ball game”;
or “Not today Brittney, I have [a] doctor[’s] [appointment].” Mother asserted that she
currently had a job, stable housing, and a vehicle and that she was prepared to regain
custody of the Children. Despite these changes in circumstance, Mother acknowledged
during trial that she had never filed a petition for visitation or to regain custody of the
Children, stating that she did not know she could file such petitions.
On August 28, 2019, Mother filed a motion requesting that the trial court appoint
an attorney to represent her. By order entered September 26, 2019, the trial court appointed
counsel to represent Mother upon determining that she was indigent. The trial court also
appointed attorney Lucy C. Wright as a guardian ad litem (“GAL”) to represent the
interests of the Children.
The trial court conducted a bench trial on January 24, 2020, during which Mother
and Grandparents testified. Mother presented testimony and exhibits demonstrating a
considerable level of improvement in her life circumstances and stability. Mother testified
that she had been living with her fiancé, T.B., in Rossville, Georgia, for the previous nine
or ten months. Mother added that she and T.B. were leasing a home. In support, she
presented a lease indicating that she and T.B. were co-lessees. Mother also testified that
she had placed child locks on doors throughout the house and had obtained a crib in
preparation for regaining custody of Matthew. In addition, Mother stated that she had a
bed for Zayne, along with toys and books for the Children. Mother presented a video
depicting the condition of her home, which corroborated her testimony in this regard.
Mother added that she owned a vehicle jointly with T.B. as well and presented a certificate
of title to the vehicle identifying T.B. and Mother as co-owners. Mother further pointed
out that she had maintained employment as a “secretary/bookkeeper” at T.B.’s automotive
business where she earned $250.00 per week while working thirty-eight to forty-two hours
per week by the time of trial.
Mother reportedly sought mental health and drug treatment at Helen Ross McNabb
in 2017. According to Mother, she was diagnosed with bipolar disorder and prescribed
Abilify, which she was no longer taking. Mother further related that she traveled to Helen
Ross McNabb every other week for two and one-half months, making a total of five visits.
Mother added that the last time she had received treatment from Helen Ross McNabb was
in October 2017. Mother explained that a Helen Ross McNabb staff member diagnosed
her with bipolar disorder and reached “the conclusion that it was just because of all the
stuff I had been through, the trauma I had been through that year, so we did a short-term
plan and I went through the short-term plan and made it through that and I’ve been fine
ever since.” Mother indicated that she had not used drugs in more than two years and that
no drug use occurred in her household.
In terms of visitation, Mother testified that she had visited the Children between ten
and thirteen times during the Determinative Period. Mother emphasized: “I have visited
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as much as my parents have allowed me to. They’re usually too busy for me to see them
or they’ve already got plans for the day, so it’s been hard for me to see my children due to
their schedule.” Mother estimated that she had visited the Children forty times since they
were first placed in Grandparents’ custody and had written Zayne three or four letters
during that time. Mother further stated that she had been to two of Zayne’s Taekwondo
sessions but had not been able to attend any of his baseball games because Grandparents
had not notified her of when games were scheduled.
Mother presented several photographs evidencing her visits with the Children. The
first photograph, depicting Mother and Matthew, was dated March 6, 2019. Mother related
that the photograph was taken when she met Grandmother at Grandparents’ rental house
to retrieve some of the personal items that Mother had previously left. The second
photograph was of the Children and was dated March 25, 2019. Mother stated that this
photograph was made after she had asked Grandmother to bring the Children to her
workplace, where they spent three or four hours. Another photograph depicted Mother
holding Matthew at Zayne’s birthday party on June 1, 2019. These were the only
photographs proffered by Mother that had been taken during the Determinative Period.
Mother presented additional photographs and one video establishing that she had visited
with at least one of the Children approximately eight times from December 2018 to
December 2019.
Mother also offered copies of several text conversations to evince her efforts to visit
the Children. The first communication was sent from Mother to Grandmother on March
16, 2019, explaining the meaning of the Children’s names and inquiring whether Zayne
had received the Valentine’s Day letter she had sent. A text conversation from April 7,
2019, consisted of Mother communicating at 12:06 p.m.: “Hey call me when you leave
church we are at the flea market wanted to see if maybe wanted to come.” Later, Mother
texted again, this time at 4:51 p.m.: “Tell [Z]ayne to call me when you guys get a chance.”
Grandfather later responded at 5:11 p.m., stating, “I tell him to call you after church” and
“We been busy all day.”
Mother also proffered a text conversation dated May 19, 2019, reflecting that
Grandmother had invited Mother to Zayne’s twelfth birthday party. Another copy of a text
conversation reflects that Grandmother had messaged Mother on June 7, 2019, asking if
Mother could send any photographs that she might have taken during Zayne’s birthday
party. Mother responded by sending three photographs. A text conversation from June 24,
2019, evidenced that Mother had inquired of Grandmother whether she and Grandfather
would be having a birthday party for Matthew. Grandmother responded with a date and
time. The final text message, dated July 24, 2019, demonstrates that Mother contacted
Grandfather, stating: “Hey I’ve been trying to call to come see the boys. I’ve got Matthew
and [Z]ayne some stuff. Want to see them.” Only three of these text conversations
occurred during the Determinative Period. One reflected an attempt on Mother’s part to
see the Children.
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As for financial support, Mother testified: “Every time [she] called or spoke to
[Grandparents] they told [her] that they had everything taken care of.” Mother related that
she had provided baby food, formula, and cereal to Grandparents for Matthew on one
occasion in February 2019 and that she had given Zayne a shirt, pants, and underwear and
Matthew onesies at some point during the Determinative Period. Mother also articulated
that she had provided Zayne between ten and fifty dollars every time she saw him and that
she had presented the Children birthday and Christmas gifts every year.
According to Mother, she would give Zayne cash because Grandparents would not
accept money from her. Mother claimed that she did not know she had to pay monthly
support until Grandparents filed the Petitions. However, when she did learn that she was
obligated to pay monthly support, she gave her attorney $100.00 to deliver to Grandparents
in October 2019. Mother further testified, however, that because Grandparents would not
accept the $100.00, she ended further attempts to offer payments. Regarding her ability to
provide support, Mother explained that she had been making $250.00 per week since
November 2018 and that she was neither incarcerated nor disabled during the
Determinative Period.
Grandmother’s trial testimony contradicted much of Mother’s testimony.
According to Grandmother, Mother visited the Children only four times during the
Determinative Period. With respect to Matthew, Grandmother indicated that Mother had
visited him approximately fifteen times rather than forty since Grandparents had obtained
custody. Grandmother also stated that the first time Mother visited Matthew was when she
appeared at Grandparents’ home needing a place to sleep. According to Grandmother, the
next occasion Mother saw Matthew was when Grandmother transported Mother to court.
Grandmother related that she and Grandfather would not permit Mother to take Matthew
unsupervised to an event called “the Enchanted Garden” due to her lack of previous
visitation and Matthew’s separation anxiety. Grandmother noted that this was the only
time when Mother had requested to visit with Matthew outside Grandparents’ home
without their supervision. With respect to Zayne, Grandmother testified that Mother
visited with him when (1) she brought the Children to see Mother at work on March 6,
2019; (2) Mother took Zayne to the flea market on April 21, 2019; and (3) Mother attended
Zayne’s birthday party on June 1, 2019.
Regarding support, Grandmother stated that Mother never offered to provide any
type of support for the Children during the Determinative Period. Grandmother
acknowledged, however, that Mother gave Zayne a birthday gift plus $15.00 or $20.00 on
June 1, 2019. Similarly, Mother had provided the Children gifts in the past for birthdays
and Christmas. However, Grandmother denied that she and Grandfather had rejected
support from Mother, insisting: “We would not turn any help down from anybody.”
Grandmother also denied ever informing Mother that they did not need financial help,
emphasizing that they had been fortunate to have received clothing for Matthew from
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others. Grandmother did express that in January 2019, Mother offered to assist, bringing
four cans of formula and ten jars of baby food for Matthew and a pair of underwear for
Zayne.
During trial, Grandfather acknowledged that Mother had “changed her life,”
stopped using drugs, and was “doing great.” In his opinion, however, Mother could not
raise the Children. Mother’s counsel questioned Grandfather regarding whether he had
contacted his sister, M.R. (“Aunt”), after he observed that Aunt was at the court hearing on
December 4, 2019. Although Grandfather confirmed that Aunt was present and that he
had called her to inquire as to why, he denied ever instructing Aunt not to return to court.
Upon the conclusion of Grandparents’ proof, Mother sought to call three rebuttal
witnesses: Aunt, T.B., and T.B.’s mother. Opposing counsel objected on the basis that
Mother’s witness list was received the night before trial. In turn, Mother’s counsel asserted
that the rebuttal witnesses were determined to be necessary only following Grandparents’
testimony. Counsel also emphasized that all of the rebuttal witnesses were known and had
been present during the previous hearing on December 4, 2019. Counsel for Grandparents
countered, “I have no earthly idea who either of them were and . . . I haven’t had the time
to either ask them what they’re going to talk about . . . .” With reference to Rule 8.02(c)
of the Eleventh Judicial District Local Rules of Civil Practice, the trial court ruled:
[A]t least ten business days before trial[,] the parties shall file and serve by
facsimile or by hand[:] a witness list[,] including names, addresses[,] and, if
known, telephone numbers of all witnesses, including rebuttal witnesses.
And the last time we were here you convinced me that you hadn’t had time
to get prepared and that was the reason, over objection and somewhat
reluctantly on my part, to continue this matter because you convinced me that
you hadn’t had time to prepare, so we come in some two months later and
we’re getting the witness list the night before the hearing. I’m not going to
allow you to call these witnesses. I just think under these circumstances I’d
be just totally ignoring the local rules and even if Aunt Helen or whoever she
is came in and said, [Grandfather] said what you said [Aunt] said, it’s really
not going to make much difference in this case.
Prior to the trial court’s adjudication on the merits, the GAL reported that the
Children were “doing great” and recommended that Mother’s parental rights to the
Children be terminated. According to the GAL, Zayne “barely mentioned” Mother during
their one-on-one interview, and he seemed to be thriving while in the custody of
Grandparents. In the GAL’s estimation, this was a “last-ditch effort by mom” to regain
custody of the Children. Furthermore, the GAL elucidated:
Once [Mother] knew that the writing was on the wall, she kind of came forth
and tried to fight, but even then it causes me some concern that there wasn’t
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this big effort to fight. Even after she knew support was being alleged, that
she didn’t pay it. She still didn’t pay it. She could have dumped stuff on the
porch or put it in the bank and her saying that she’s tried as hard as she can,
it’s not good enough for the kids and it’s too late.
Upon the close of trial, the trial court orally dismissed Grandparents’ claim that the
conditions leading to the Children’s removal persisted, noting: “Everybody agrees she’s
remedied conditions. That’s not an issue.” In addition, the trial court afforded Mother
credit for the “tremendous progress” she had made. However, despite such progress, the
trial court found that she had abandoned the Children through her failure to visit and pay
support during the Determinative Period. Although the trial court noted that Mother had
claimed by affirmative defense that Grandparents had prevented her from visiting the
Children, the court determined Grandmother’s testimony as more credible than Mother’s
and thereby discounted Mother’s asserted defense.
In two final orders, one pertaining to each of the Children, the trial court found that
Mother had visited the Children only four times over the course of the Determinative
Period and that she had initiated only one of those visits. Significantly, the trial court
concluded that these visits constituted token visitation. The trial court accordingly
determined that Grandparents had presented clear and convincing evidence to support a
finding that Mother had abandoned the Children by failure to visit during the Determinative
Period.
The trial court further found that Mother had not raised an affirmative defense with
respect to Grandparents’ claim of abandonment by failure to pay support. Citing Tennessee
Code Annotated § 36-1-102(1)(H), the trial court explained that every parent who is
eighteen years or older is presumed to have knowledge of a legal obligation to support her
children. Consequently, the trial court concluded that Mother’s claim that she did not know
she needed to provide support to the Children proved unavailing. Ergo, the trial court
concluded that the ground of abandonment by failure to provide financial support for the
Children during the Determinative Period had been proven by clear and convincing
evidence. Furthermore, the trial court noted in each order that “the other grounds that may
have been raised in the petition to terminate have either been waived or conceded that there
was no basis for them.”
Following an analysis of each best interest factor, the trial court determined by clear
and convincing evidence that termination of Mother’s parental rights was in the Children’s
best interest. The trial court subsequently entered orders terminating Mother’s parental
rights respectively to Zayne and Matthew on May 4, 2020. Mother timely appealed.
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II. Issues Presented
Mother has raised the following issues on appeal, which we have restated slightly
as follows:
1. Whether the trial court erred in preventing Mother from calling
additional witnesses during trial.
2. Whether the trial court erred in finding by clear and convincing
evidence that Mother had abandoned the Children by failing to visit
and support them during the four months preceding the filing of the
Petitions.
3. Whether the trial court erred in finding by clear and convincing
evidence that termination of Mother’s parental rights was in the
Children’s best interest.
III. Standard of Review
Mother’s first issue on appeal involves the exclusion of evidence and therefore must
be reviewed under an abuse of discretion standard. Hill v. Hill, No. M2006-01792-COA-
R3-CV, 2008 WL 110101, at *4 (Tenn. Ct. App. Jan. 9, 2008). As our Supreme Court has
previously instructed:
A trial court abuses its discretion by applying an incorrect legal standard or
reaching an illogical or unreasonable decision that causes an injustice to the
complaining party. In reviewing the trial court’s exercise of discretion, we
presume that the trial court’s decision is correct and review the evidence in a
light most favorable to upholding the decision. Discretionary decisions,
however, require a conscientious judgment, consistent with the facts, that
takes into account the applicable law.
White v. Beeks, 469 S.W.3d 517, 527 (Tenn. 2015) (internal citations omitted).
Furthermore, “[c]oncluding that a trial court improperly excluded otherwise admissible
evidence does not end the inquiry.” White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn.
Ct. App. 1999). Unless the erroneous exclusion of the evidence would have affected the
outcome of the trial, this Court will not reverse the judgment based on the trial court’s
evidentiary decision. Id.The remaining issues address the trial court’s decision to terminate Mother’s
parental rights. 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
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(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507,
523-24 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d
at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and shall
not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett,
92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
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
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S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660
(Tenn. Ct. App. 2005).
***
In light of the heightened burden of proof in termination proceedings,
however, the reviewing court must make its own determination as to whether
the facts, either as found by the trial court or as supported by a preponderance
of the evidence, amount to clear and convincing evidence of the elements
necessary to terminate parental rights. In re Bernard T., 319 S.W.3d at 596-
97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010). 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. Exclusion of Evidence
Mother contends that the trial court erred in precluding her three rebuttal witnesses
from testifying during trial, predicated on her failure to comply with Eleventh Judicial
District (Hamilton County) Local Rule of Civil Practice 8.02(c) requiring parties to file
and serve a witness list at least ten business days before trial. Mother specifically argues
that (1) the trial court could not have undertaken “the thorough fact-finding” process
required for parental termination hearings based solely on the parties’ testimonies,
particularly considering that all rebuttal witnesses would have had information relevant to
the grounds of abandonment and best interest of the Children; (2) the trial court could have
imposed a sanction less harsh than barring the testimony of the three witnesses; (3)
Grandparents were not unfairly disadvantaged by the late notice and had “implicit and
explicit notice of the witnesses” because the witnesses were present in the gallery during
the December 4, 2019 hearing and Grandparents knew each witness; and (4) Mother was
not afforded a fundamentally fair procedure due to the trial court’s ruling preventing these
witnesses from testifying at trial.
Grandparents initially argue that Mother waived this issue by failing to cite relevant
authority in the argument section of her appellate brief in accordance with Tennessee Rule
of Appellate Procedure 27(a)(7). With respect to Mother’s substantive claim, Grandparents
posit that the burden was upon Mother to comply with the local rules and that the trial court
acted within its proper authority to enforce them.
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A. Waiver
As a threshold matter, we will first address Grandparents’ argument that Mother’s
failure to comply with Rule 27(a)(7) serves as a waiver of Mother’s contention that the trial
court erred by enforcing Local Rule 8.02(c) and thereby prohibiting Mother’s rebuttal
witnesses from testifying. Rule 27(a) provides in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
***
(7) An argument, which may be preceded by a summary of
argument, setting forth:
(A) the contentions of the appellant with respect to the
issues presented, and the reasons therefor, including the
reasons why the contentions require appellate relief,
with citations to the authorities and appropriate
references to the record (which may be quoted
verbatim) relied on[.]
Although Mother prefaces her postulate with language from In re Malik G. describing a
parent’s entitlement to fundamentally fair procedures in termination proceedings, she fails
to provide specific authority for any of her contentions regarding the trial court’s
enforcement of Local Rule 8.02(c). See In re Malik G., No. E2019-01040-COA-R3-PT,
2019 WL 6245483, at *10 (Tenn. Ct. App. Nov. 21, 2019). This Court has previously
concluded that “[f]ailure to cite to relevant authority constitutes a waiver of the issue.” Lett
v. Collis Foods, Inc., 60 S.W.3d 95, 105 (Tenn. Ct. App. 2001); see also City of La Vergne
v. LeQuire, No. M2016-00028-COA-R3-CV, 2016 WL 6124117, at *2 (Tenn. Ct. App.
Oct. 19, 2016) (“Tennessee courts have routinely held that the failure to cite relevant
authority in compliance with that rule constitutes a waiver of the issue.”).
Nevertheless, this Court may exercise its discretion to “suspend or relax the
procedural rules in a given case for good cause.” City of La Vergne, 2016 WL 6124117,
at *2 (citing Tenn. R. App. P. 2). In addition, “[t]he Tennessee Rules of Appellate
Procedure should be construed to afford all parties a hearing on the merits.” Paehler v.
Union Planters Nat’l Bank, 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997) (deciding the
appeal on the merits despite acknowledging that the appellant failed to comply with Rule
27); see also Tenn. R. App. P. 1 (“These rules shall be construed to secure the just, speedy,
and inexpensive determination of every proceeding on its merits.”).
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Given the significant interests at stake in the instant case, we will address Mother’s
initial issue despite her failure to cite relevant authority in support of her contentions.
Furthermore, Grandparents have not claimed that they would be unfairly prejudiced by our
consideration of this question, and Mother’s argument is not so substantially unclear as to
impede our ability to address it. See City of La Vergne, 2016 WL 6124117, at *2 (finding
good cause to decide the merits of the appeal when the deficiencies in the appellant’s brief
did not impede this Court’s ability to do so, the appellant’s argument was clear, and the
appellee did not claim that it would be unfairly prejudiced). We will therefore consider the
merits of Mother’s first issue.
B. Fundamentally Fair Procedure
Although Mother’s position is not entirely clear, we discern two primary arguments
with regard to the trial court’s enforcement of its local rule and exclusion of witness
testimony. First, Mother ostensibly argues that the trial court’s enforcement of Local Rule
8.02(c) and its resultant decision to exclude the testimony of her witnesses impaired her
ability to receive a fundamentally fair termination proceeding. Moreover, although Mother
never references the phrase, “abuse of discretion,” she also appears to argue that the trial
court abused its discretion by prohibiting her witnesses from testifying, particularly when
these witnesses could have offered evidence relevant to the grounds for termination and
the best interest of the Children.
The question of whether a trial court’s exclusion of rebuttal witnesses’ testimony
renders a parental termination proceeding fundamentally unfair appears to be a matter of
first impression for this Court.4 Mother provides no authority for her contention that the
trial court’s enforcement of its local rule and exclusion of rebuttal witnesses’ testimony
rendered the termination trial fundamentally unfair. We likewise have found no such
authority. Upon careful review, we determine that the trial court’s decision to exclude the
evidence did not render the termination trial fundamentally unfair.
A parent’s right to the care and custody of her children is “among the oldest of the
judicially recognized liberty interests protected by the Due Process Clauses of the federal
and state constitutions.” In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005).
However, the contours of due process have not always been clear. As the United States
Supreme Court noted in Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., “‘due
process’ has never been, and perhaps can never be, precisely defined,” and it is “not a
technical conception with a fixed content unrelated to time, place, and circumstances.” 452
4
This Court addressed whether a trial court abused its discretion when it precluded a parent’s rebuttal
witness from testifying at trial due to the parent’s failure to include the rebuttal witness on her filed witness
list in Hill, 2008 WL 110101, at *4. However, Hill involved the modification of a child custody plan
between two parents. Unlike the case at bar, it did not embrace the irrevocable deprivation of a parent’s
right to the “companionship, care, custody, and management” of her children. See Lassiter v. Dep’t of Soc.
Servs. of Durham Cty., N.C., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).
- 13 -
U.S. 18, 24 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).
Nevertheless, it is clear that the concept of due process “expresses the requirement of
‘fundamental fairness.’” Lassiter, 452 U.S. at 24.
Beyond the essential requirements of notice and an opportunity to be heard in a
meaningful time and manner, see In re Carrington H., 483 S.W.3d at 534, fundamental
fairness is also difficult to precisely define, see Lassiter, 452 U.S. at 24 (noting that
“fundamental fairness” is a “requirement whose meaning can be as opaque as its
importance is lofty”). However, the United States Supreme Court has delineated three
elements to balance when determining exactly what due process requires of courts. Those
three factors are as follows:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Although we have located no Tennessee
appellate decision addressing this particular question, and as a result no Tennessee decision
applying these elements to this specific issue, the Michigan Court of Appeals has done so
in a decision, In re S.M., that we discern to be instructive and persuasive. See In re S.M.,
No. 220706, 2000 WL 33389746 (Mich. Ct. App. Dec. 26, 2000); see also Summers
Hardware & Supply Co. v. Steele, 794 S.W.2d 358, 362 (Tenn. Ct. App. 1990) (“Cases
from other jurisdictions . . . are always instructive, sometimes persuasive, but never
controlling in our decisions.”). We therefore will address in turn each due process element
as applied to the facts of this case.
1. Private Interest Affected
The private interest at stake in this action is one of great significance and
constitutional import because a parent’s right to the care and custody of her children is a
fundamental and “recognized liberty interest[].” In re Audrey S., 182 S.W.3d at 860.
Moreover, the United States Supreme Court has explained that “a parent’s desire for and
right to ‘the companionship, care, custody and management of his or her children’ is an
important interest that ‘undeniably warrants deference and, absent a powerful
countervailing interest, protection.’” Lassiter, 452 U.S. at 27 (quoting Stanley v. Illinois,
405 U.S. 645, 651 (1972)). The termination of a person’s parental rights has been described
by the United States Supreme Court as a “unique kind of deprivation,” Lassiter, 452 U.S.
at 27, and recognized as “final and irrevocable,” Santosky v. Kramer, 455 U.S. 745, 759
(1982). By reason of the magnitude of the termination of parental rights, a “parent’s
interest in the accuracy and justice of the decision to terminate his or her parental status is,
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therefore a commanding one.” Lassiter, 452 U.S. at 27. As such, the stakes involved for
Mother are “profoundly high” and would weigh in favor of a finding that the preclusion of
Mother’s rebuttal witnesses’ testimony rendered the termination proceeding fundamentally
unfair. In re Audrey S., 182 S.W.3d at 861.
2. Risk of an Erroneous Deprivation of Private Interest
The second element to be considered is the risk that Mother would be erroneously
deprived of her interest in the care and custody of the Children through the procedure used.
In this case, the procedure relates to the trial court’s enforcement of its local rule and
consequent exclusion of testimonial evidence. Whether the trial court risked erroneously
depriving Mother of her parental rights fundamentally depends on whether the testimony
of her witnesses could have affected the outcome of the trial.
We note that the question of a risk of erroneous deprivation of Mother’s parental
rights is significantly impacted by Mother’s failure to make an offer of proof at trial in
compliance with Tennessee Rule of Evidence 103(a). This failure ordinarily renders the
issue waived. See Hill, 2008 WL 110101, at *5 (“Generally, the appellate courts will not
consider issues relating to the exclusion of evidence when this tender of proof has not been
made.”). Tennessee Rule of Evidence 103(a) provides:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the
party is affected, and
***
(2) Offer of Proof. In case the ruling is one excluding
evidence, the substance of the evidence and the specific
evidentiary basis supporting admission were made
known to the court by offer or were apparent from the
context.
Therefore, we generally cannot assign error to the trial court’s exclusion of evidence
if the party failed to offer the trial court the substance of the evidence. Hill, 2008 WL
110101, at *5. A party may make an offer of proof by “presenting the actual testimony,
stipulating the content of the excluded evidence, or presenting a summary, oral or written,
of the excluded evidence.” Id. In Hill, this Court decided that it could not determine
whether the trial court’s erroneous exclusion of a parent’s rebuttal witness testimony at a
trial involving modification of custody had affected the outcome of the trial because the
mother had not submitted an offer of proof. Id. at *6. The Hill Court concluded in pertinent
part:
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An erroneous exclusion of evidence, however, does not require reversal
unless we can determine the evidence would have affected the outcome of
the trial had it been admitted. The appellate courts cannot make such a
determination without knowing what the excluded evidence would have
been.
Id. at *5 (internal citations omitted).
In Tennessee, two exceptions exist relative to the requirement for parties to make
an offer of proof. Id. One exception is provided by the rule itself, stating that error may
be found if “the substance of the evidence and the specific evidentiary basis supporting
admission . . . were apparent from the context.” Tenn. R. Evid. 103(a)(2). The remaining
exception derives from this Court’s adoption of an exception expounded in First Nat’l Bank
& Trust Co. v. Hollingsworth, 931 F.2d 1295, 1305 (8th Cir. 1991), and occurs when the
“exclusion of evidence seriously affects the fairness of the trial.” Hill, 2008 WL 110101,
at *5 (citing First Nat’l Bank & Trust Co. v. Hollingsworth, 931 F.2d 1295, 1305 (8th Cir.
1991)). Considering the question before us, we determine that neither exception applies to
our analysis.
Regarding the first exception, although we find that a portion of Aunt’s testimony
was apparent from the context, this is insufficient to cure Mother’s failure to make an offer
of proof. Based on Mother’s counsel’s questioning of Grandfather, it appears that Mother
was intending to call Aunt to testify that Grandfather had contacted her and asked her not
to testify on Mother’s behalf. This is the only substance of expected testimony from any
of the three witnesses that is apparent from the context at trial. Although Mother’s counsel
informed the trial court that she needed to “have additional testimony to rebut claims that
were made and statements that were made here on the record” and included in her appellate
brief that these rebuttal witnesses had “relevant information related to the grounds for
termination and a best interest analysis,” these broad statements do not constitute a
sufficient offer of proof and do not illuminate the substance of what these witnesses’
testimony would have been at trial.
In the absence of an offer of proof, we have been provided no foundation upon
which to analyze whether the exclusion of Mother’s witnesses’ testimony would have
affected the outcome of the trial and thereby placed Mother’s parental rights at risk of being
erroneously terminated. Although we could surmise that these witnesses would have
offered relevant information to specifically rebut Grandmother’s claims regarding
visitation and Grandmother’s denial that she and Grandfather prevented Mother from
visiting the Children, Mother’s counsel did not proffer that evidence. Consequently, we
will not presume that the testimony of Mother’s rebuttal witnesses would have affected the
outcome of the trial or that the trial court’s decision to prohibit these witnesses from
testifying created a risk of erroneous deprivation of Mother’s parental rights.
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As noted previously, we find the Michigan Court of Appeals’ decision in In re S.M.,
a parental termination case, persuasive concerning this query. 2000 WL 33389746. The
trial court in In re S.M. excluded testimony from the father’s witnesses because he filed a
witness list after the trial court’s deadline and failed to include sufficient information for
the opposing party to investigate the witnesses. Id. at *1. The trial court rejected the
father’s request for a one-week adjournment, citing the court’s “congested docket, the risk
of violating the six-month rule of MCR 5.972,5 and the inconvenience to the children’s
mother . . . who had traveled to the court from North Carolina.” Id. at *1. In determining
whether the trial court’s enforcement of its scheduling order and exclusion of the evidence
violated the due process requirements for a termination proceeding, the appellate court
considered the due process elements enumerated in Lassiter and Mathews. Id. at *3.
The Michigan appellate court ultimately concluded that there was no risk of an
erroneous deprivation of the father’s parental rights considering that the father’s witnesses
were all character witnesses, they did not observe the incidents that the petitioner alleged,
and they would have “offered little support to respondent’s defense . . . .” Id. In sum, the
father could not show that the outcome of the trial would have been different had the trial
court permitted him to present the witnesses. Id. Inasmuch as Mother failed to make an
offer of proof before the trial court in the instant action, we determine that she similarly
cannot demonstrate that the outcome of the trial would have been different or that the trial
court risked erroneously terminating her parental rights.
This second element also includes the probable value of additional or substitute
procedural safeguards. One such potential safeguard was a continuance, which would have
avoided unfairness to Grandparents by affording them time to adequately prepare to cross-
examine the rebuttal witnesses while allowing Mother to present her witnesses at a later
date. Although Mother suggests in her appellate brief that the trial court could have
continued the trial for another ten business days in order to render Mother’s witness list
compliant with Local Rule 8.02(c), she did not request a continuance at trial. Mother also
failed to ask for a recess during which to provide opposing counsel additional time to
prepare. Mother failed entirely to propose a substitute procedural safeguard to the
exclusion of her witness testimony. See Bank of Fayette Cty. v. Woody, No. W2010-
01798-COA-R3-CV, 2011 WL 2572052, at *3 (Tenn. Ct. App. June 30, 2011) (“[T]here
is insufficient evidence in the record to show that the trial court abused its discretion in
failing to grant a continuance . . . especially when no request for continuance was made.”).
In any event, even had Mother proposed an alternative to the trial court’s exclusion of her
witnesses’ testimony, without knowing the substance of this evidence, we cannot determine
what, if any, value this additional procedural safeguard would have had on the trial.
5
Like Tennessee, Michigan requires courts to hold the trial on the petition to terminate parental rights
within six months after the filing of the petition. See Tenn. Code Ann. § 36-1-113(k).
- 17 -
Notwithstanding the absence of an offer of proof from Mother, we can discern to
some degree that there was little risk of an erroneous deprivation of Mother’s parental
rights because her own testimony supported the trial court’s findings that she had failed to
support the Children during the Determinative Period and failed to counter Grandparents’
claims that Mother’s visitation with the Children was anything more than token.6 With
regard to her failure to support, Mother acknowledged that she did not provide regular
support to the Children when she proffered that she was unaware she had an obligation to
do so. Mother has failed to explain how additional testimony from other witnesses would
have affected the trial court’s conclusion that Mother failed to provide support during the
Determinative Period when her own testimony confirmed such failure.
Concerning her failure to visit, Mother testified that she had visited the Children
between ten and thirteen times during the Determinative Period and that she would have
visited more regularly had it not been for Grandparents’ obstruction. However, in contrast
to Grandmother, Mother did not provide specific dates and could only testify that she
“probably” visited the Children a certain number of times in February and May of 2019.
In addition, Mother presented only one text message conversation occurring during the
Determinative Period reflecting an unsuccessful attempt, and her only attempt, to schedule
a visit with the Children on the same day, affording Grandparents little advance notice.
Therefore, inasmuch as Mother’s own testimony and documentary evidence did not
rebut the trial court’s findings that she had failed to support the Children and failed to
engage in more than token visitation with them, we determine that there was little risk that
the trial court would erroneously deprive Mother of her parental rights by declining to
allow her to present testimony by her rebuttal witnesses in violation of the court’s local
rule.
3. Government’s Interest
The third element to be considered is the government’s interest, “including the fiscal
and administrative burdens that the additional or substitute procedures would entail.”
Mathews, 424 U.S. at 321. In this case, the trial court maintained a responsibility to protect
a stated government interest in an expeditious adjudication for the benefit of the Children.
As our Supreme Court has previously noted:
In parental termination proceedings, the burdens of extended litigation fall
most heavily upon children—those most vulnerable and most in need of
protection, stability, and expeditious finality. “There is little that can be as
detrimental to a child’s sound development as uncertainty over whether he is
to remain in his current ‘home,’ under the care of his parents or foster parents,
especially when such uncertainty is prolonged.” “Due to the immeasurable
6
We will address the statutory grounds for termination in depth in a subsequent section of this Opinion.
- 18 -
damage a child may suffer amidst the uncertainty that comes with such
collateral attacks, it is in the child’s best interest and overall well[-]being to
limit the potential for years of litigation and instability.”
In re Carrington H., 483 S.W.3d at 533 (internal citations omitted). This interest in
“expeditious finality” is also codified in Tennessee Code Annotated § 36-1-113(k) (Supp.
2020), which provides:
The court shall ensure that the hearing on the petition takes place within six
(6) months of the date that the petition is filed, unless the court determines
an extension is in the best interests of the child. The court shall enter an order
that makes specific findings of fact and conclusions of law within thirty (30)
days of the conclusion of the hearing. If such a case has not been completed
within six (6) months from the date the petition was served, the petitioner or
respondent shall have grounds to request that the court of appeals grant an
order expediting the case at the trial level.
In addition, the General Assembly has expressly stated its intent that “the permanency of
the placement of a child who is the subject of a termination of parental rights proceeding
or an adoption proceeding not be delayed any longer than is absolutely necessary consistent
with the rights of all parties . . . .” Tenn. Code Ann. § 36-1-124(c) (Supp. 2020).
Notably, this Court has previously rejected a parent’s due process claim based on
the trial court’s denial of her second request for a continuance to allow her more time to
travel from out of state to appear at the trial and its subsequent rejection of her request to
testify via telephone. See In re D.T., No. E2017-00051-COA-R3-PT, 2018 WL 2357655,
at *5-7 (Tenn. Ct. App. May 24, 2018). As a result of the mother’s failure to appear at the
trial and the trial court’s denial of her request to testify telephonically, the mother did not
testify. Id. at *3. However, instead of concluding that the trial court’s procedural and
scheduling rulings violated the mother’s right to a fundamentally fair termination
proceeding, this Court determined that she had been the author of her own misfortune,
noting that “[o]ther than her own shortcomings, the record indicates nothing that would
have prevented mother from attending trial.” Id. at *5. In reaching this conclusion, this
Court cited the trial court’s findings that the mother had “ample notice of the trial date,”
“was well aware of the purpose of the proceedings,” and had “sufficient income” to
“effectuate any travel plans.” Id. Similarly, in the case at bar, Mother bore responsibility
for her failure to timely identify witnesses by waiting until the day before trial to notify the
opposing parties that she planned to call three rebuttal witnesses.
Finally, we note that “Tennessee court rules, statutes, and decisional law are already
replete with procedures, some previously described herein, designed to ensure that parents
receive fundamentally fair parental termination proceedings.” In re Carrington H., 483
U.S. at 533. We decline to add to these protections the requirement that trial courts must
- 19 -
disregard their local rules, as well as a party’s failure to comply with said rules, in order to
ensure that parents can present rebuttal witnesses, particularly when the party had ample
time to comply with the local rules and then failed to afford herself of procedural
safeguards at trial by failing to make an offer of proof or request a continuance.
Moreover, Tennessee Rule of Appellate Procedure 36(a) provides: “Nothing in this
rule shall be construed as requiring relief be granted to a party responsible for an error or
who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.” Mother was responsible for failing to provide the opposing
side with a witness list by the deadline prescribed by the local rules after being granted a
nearly two-month continuance at her request. Not only did Mother fail to avail herself of
procedural safeguards in the trial court, she also failed to preserve any objection or provide
this Court with sufficient proof to properly evaluate her due process claim. Considering in
total that Mother failed to establish that a risk existed that the trial court would erroneously
deprive her of her parental rights, the trial court maintained a responsibility to protect a
clear government interest in an expeditious adjudication, and Mother failed to request any
substitute procedural safeguard, we hold that Mother’s termination proceeding was
fundamentally fair.
C. Abuse of Discretion
Having concluded that the trial court’s preclusion of witness testimony did not
violate Mother’s right to a fundamentally fair termination proceeding, we now must
determine whether the trial court’s exclusion of evidence constituted an abuse of discretion.
It is a long-standing principle that “trial courts are accorded a wide degree of latitude in
their determination of whether to admit or exclude evidence, even if such evidence would
be relevant.” Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001); see
Pennington v. Pennington, No. M2007-00181-COA-R3-CV, 2008 WL 1991117, at *3
(Tenn. Ct. App. May 7, 2008) (“Trial courts have broad discretion with respect to the
admission or exclusion of evidence and the enforcement of local rules.”).
Our Supreme Court, in describing this standard, has instructed:
Under the abuse of discretion standard, a trial court’s ruling “will be
upheld so long as reasonable minds can disagree as to [the] propriety of the
decision made.” A trial court abuses its discretion only when it “applie[s] an
incorrect legal standard, or reache[s] a decision which is against logic or
reasoning that cause[s] an injustice to the party complaining.” The abuse of
discretion standard does not permit the appellate court to substitute its
judgment for that of the trial court.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (internal citations omitted).
- 20 -
Ordinarily, when determining the proper sanction for a party’s failure to name a
witness on a witness list, trial courts should consider:
the explanation given for the failure to name the witness, the importance of
the testimony of the witness, the need for time to prepare to meet the
testimony, and the possibility of a continuance. In the light of these
considerations, the court may permit the witness to testify, or it may exclude
the testimony, or it may grant a continuance so that the other side may take
the deposition of the witness or otherwise prepare to meet the testimony.
Pennington, 2008 WL 1991117, at *3 (quoting Strickland v. Strickland, 618 S.W.2d 496,
501 (Tenn. Ct. App. 1981)).
In Pennington, the trial court had excluded the testimony of the mother’s witnesses,
other than herself, proffered during a hearing concerning modification of custody because
she had failed to comply with the local rule mandating that parties exchange the names of
witnesses at least seventy-two hours in advance of trial. Id. at *3. The mother presented
an offer of proof for only one witness’s testimony. This Court ultimately concluded that
the trial court had erred by not considering all of the relevant factors regarding this witness.
Id. at *5. However, this Court further determined that the trial court had not abused its
discretion by excluding the testimony of the mother’s other witness because she had made
no offer of proof with regard to that witness’s testimony. Id.
Similarly, as previously reviewed, Mother did not make an offer of proof concerning
the testimony of any of her rebuttal witnesses. Therefore, we cannot ascertain the
substance of the testimony or determine that it would have affected the outcome of the trial
had it been admitted. Inasmuch as Mother failed to submit an offer of proof for the rebuttal
witnesses, we determine that the considerations outlined in Pennington are of limited
relevancy in the present case. Therefore, as in Hill, see 2008 WL 110101, Mother has been
unable to show that the testimony of her witnesses would have affected the outcome of the
trial. Consequently, we discern no abuse of discretion in the trial court’s exclusion of such
evidence.
V. Statutory 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
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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.
In its final orders, the trial court concluded that the evidence clearly and convincingly
supported a finding of two statutory grounds to terminate Mother’s parental rights:
abandonment by failure to visit and abandonment by failure to support pursuant to
Tennessee Code Annotated §§ 36-1-113(g)(1) and -102(1)(A). 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
- 22 -
guardians either have failed to visit or have failed to support or have failed
to make reasonable payments toward the support of the child; . . .
In determining that clear and convincing evidence existed demonstrating Mother’s
failure to visit with the Children during the applicable four months, the trial court
specifically found that Mother visited the Children only four times during the
Determinative Period and that only one of those visits had been initiated by her. The trial
court also found that Grandmother’s testimony denying that she and Grandfather had
prevented Mother from visiting the Children was more credible than Mother’s testimony
claiming otherwise. Mother contests the trial court’s finding that her visits with the
Children were nothing more than token visitation and argues that “she was prevented from
having more regular and an increased number and duration of visits by [Grandparents].”
We conclude, however, that the trial court did not err in determining that Mother had
abandoned the Children by failing to visit them.
Mother contends that she carried her burden of proving that her failure to visit the
Children was not willful but rather the result of Grandparents’ obstructive conduct.
According to Tennessee Code Annotated § 36-1-102(1)(I), a showing on behalf of the
parent that her failure to visit was not willful is an affirmative defense to abandonment.
The parent bears the burden of proving this affirmative defense by a preponderance of the
evidence. Tenn. Code Ann. § 36-1-102(1)(I). As previously explained by this Court,
“willfulness” does not require the same standard of culpability as is required by the
criminal code, and it does not require “malevolence or ill will.” In re Audrey S., 182
S.W.3d at 863. Rather “[w]illful conduct consists of acts or failures to act that are
intentional or voluntary rather than accidental or inadvertent,” and such conduct is the
“product of free will rather than coercion.” Id. Furthermore, a parent’s failure to visit is
“not excused by another person’s conduct unless the conduct actually prevents the person
with the obligation from performing his or her duty . . . or amounts to a significant restraint
of or interference with the parent’s efforts to support or develop a relationship with the
child . . . .” Id. at 864 (internal citations omitted). Conduct that would amount to a
significant restraint or interference with a parent’s ability to visit includes “blocking access
to the child,” “keeping the child’s whereabouts unknown,” and “vigorously resisting a
parent’s efforts to visit the child.” Id. at 864, n.34.
Accordingly, Mother was required to prove during trial that Grandparents had
“actually prevent[ed]” her from visiting the Children or significantly restrained or
interfered with her efforts to do so. Id. at 864. To that end, Mother testified that she had
visited the Children as frequently as Grandparents had allowed. According to Mother,
Grandparents were “usually too busy for [her] to see [the Children].” Mother also testified
that when she would contact Grandmother to visit the Children, Grandmother’s response
would be “she’s too busy,” “[t]hey’re going out of town,” “they don’t have time,” or “they
already have plans.” Mother insisted that as a result of Grandparents’ busy schedule, it had
been difficult for her to visit the Children. Mother asserted that her visits with the Children
- 23 -
would last “[a]s long as [Grandparents] allowed.” When questioned whether she had any
text messages from Grandparents stating that “we’re not going to let you see the kids,”
Mother claimed that she had “a bunch of them” but that they were on a phone that she had
broken.7
Grandmother denied ever having informed Mother that she could not see the
Children. She added that Mother decided when visits were concluded. According to
Grandmother, “the only time [Grandparents] told her no on anything” was when Mother
wanted to take Zayne and Matthew to an event known as “the Enchanted Garden.”
Grandmother explained that they did not permit her to take Matthew because he was
experiencing “really bad attachment anxiety” and that Mother had not been with him
enough to make him feel comfortable without Grandparents present. When asked whether
she had ever allowed Mother to take Matthew anywhere alone, Grandmother responded
that Mother had “never asked. That was the first time she’s ever asked.”
Grandmother further elaborated, “If [Mother] would come to visit and get to know
Matthew, we would have no problem with her taking him, but we are not going to send a
baby with somebody that he does not know.” In an apparent reference to the latter half of
2018, Grandmother explained that Mother would “call every once in a while,” requesting
Grandparents to bring Matthew to visit her and Joshua (Matthew’s father). However,
Grandparents “felt like it was [Joshua’s and Mother’s] duty to put in a little effort to come
and see us because, you know, everything seemed to be falling on us to do it and they never
come to see him.”
Grandmother further testified that she had invited Mother to Zayne’s sporting events
and Taekwondo sessions but could not remember an occasion when Mother asked to attend
any. Grandmother acknowledged that it could be difficult scheduling visits with Mother
without advance notice due to Zayne’s many extracurricular activities. Zayne was involved
in baseball and basketball, played trombone, participated in Taekwondo, and went to
church on Wednesdays and Sundays, all of which made unplanned visits difficult to
arrange.
We determine that Grandparents’ busy schedule, seemingly due in large part to
Zayne’s numerous extracurricular activities, did not constitute a significant restraint on or
interference with Mother’s ability to visit the Children so as to constitute a viable defense
to Mother’s failure to visit. Although Mother relies on In re Adoption of A.M.H. in support
of her position, we find that the antagonistic relationship between the guardians and parents
in that case was markedly different from the relationship between Mother and
7
In Mother’s filed answers to the Petitions, she never alleged that Grandparents explicitly forbade her from
visiting the Children. The allegations in Mother’s answers amounted to a claim that she had been unable
to visit the Children as a result of Grandparents’ busy schedules. Mother acknowledged in her answer to
the petition regarding Matthew that Grandparents had told her that she could come see the Children any
time. However, she averred that the “day never happens” due to Grandparents’ busy schedules.
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Grandparents here. In Adoption of A.M.H., the guardians of the child called the police in
response to the parents’ attempt to visit the child, and the parents were told not to return
upon threat of arrest. 215 S.W.3d 793, 801 (Tenn. 2007). In addition, during the
determinative period, the parents “actively pursued legal proceedings to regain custody of
A.M.H. . . . .” Id. at 810. As a result of this explicit example of prevention, restraint, and
interference, this Court concluded that the parents had not willfully abandoned their child
“[w]here . . . the parents’ visits with their child have resulted in enmity between the parties
and where the parents redirect their efforts at maintaining a parent-child relationship to the
courts . . . .” Id. at 810. In the case at bar, Mother never filed a petition for visitation,
petition to regain custody, or action concerning Grandparents’ alleged obstruction.
Furthermore, the type of interference that Mother alleges contrasts with the type and
seriousness of the interference present in Adoption of A.M.H.
Mother’s circumstances also differ from the facts of In re Mattie L., 618 S.W.3d
335, at 350-51 (Tenn. 2021), where our Supreme Court concluded that the mother had
interfered with the father’s ability to visit their child. In that case, the mother had sent
emails to the father declaring “no money, no kid” in reference to the father’s failure to pay
child support. Id. at 349. Evidence also demonstrated that the mother had violated the trial
court’s visitation order; refused to respond to emails and text messages from the father;
refused to provide the father the address where she, the stepfather, and the child lived;
directed the child’s school to deny the father access to the child; and sometimes blocked
the father’s phone number. Id. at 351. Mother presented no evidence of similar
interference or obstructive tactics in the case at bar. The circumstances establishing
prevention, restraint, or interference, which were present in In re Adoption of A.M.H. and
In re Mattie L., do not exist in this case.
Instead, the evidence presented at trial supports a determination that Mother’s
inability to visit with the Children stemmed from her failure to make reasonable efforts to
arrange visitation by affording Grandparents’ advance notice of the days she desired to
visit the Children, particularly in light of Zayne’s numerous extracurricular activities. See
In re S.Y., 121 S.W.3d 358, 369 (Tenn. Ct. App. 2003) (concluding that the children’s
guardian did not bear the “sole burden for maintaining contact with the parent and
organizing visitation schedules” but that the parent had “a duty to make every reasonable
effort to arrange and insist upon visitation with her children”). For example, Mother’s lack
of reasonable effort to arrange and insist upon visitation is evinced by the text message
conversation Mother presented from April 7, 2019. Specifically, Mother texted
Grandfather at approximately noon while she visited a flea market, asking whether
Grandparents and the Children would like to come to the flea market as well. Grandfather
responded to the text around 5:00 p.m., indicating that they had been busy all day.
Grandparents’ failure to dismiss their Sunday plans to join Mother at a flea market without
any advance notice does not constitute the form of prevention, significant restraint, or
interference contemplated by Tennessee Code Annotated § 36-1-102(1)(I).
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Mother has also cited In re Keri C., 384 S.W.3d 731 (Tenn. Ct. App. 2010), in
support of her contention that Grandparents’ actions rendered Mother’s failure to visit not
willful. Mother asserts that, unlike Grandparents, the guardians in In re Keri C. had
accommodated the mother’s ability to visit. According to Mother, the guardians of the
child in In re Keri C. had “welcomed Mother into their home, invited Mother to Keri’s
birthday party, invited Mother to lunch, and at times invited Mother to attend church with
the family.” We note, however, that the evidence in the instant action established that
Grandparents had welcomed Mother into their home on numerous occasions and had
invited her to both of the Children’s birthday parties. Moreover, Grandparents had invited
Mother to celebrate holidays and had invited Mother to attend Zayne’s 2018 Christmas
concert, church with them as a family, and a therapy session for Zayne. Mother’s reliance
on In re Keri C. is unavailing. Following our thorough review of the proof presented, we
conclude that Mother failed to demonstrate a significant restraint on or interference with
Mother’s ability to visit the Children so as to constitute a viable defense to Mother’s failure
to visit.
We now turn to the trial court’s finding that Mother’s visits constituted token
visitation. “Token visitation” is visitation that “constitutes nothing more than perfunctory
visitation or visitation of such an infrequent nature or of such short duration as to merely
establish minimal or insubstantial contact with the child.” Tenn. Code Ann. § 36-1-
102(1)(C). Whether a parent’s visitation with her child is merely token in nature is a “fact-
intensive inquiry” and requires us to “examine the frequency, duration, and quality of the
visits that occurred.” In re Keri C., 384 S.W.3d at 748-50.
At trial, Mother related that she had visited the Children “probably two or three”
times in February 2019, two or three times in March 2019, three or four times in April
2019, “probably twice” in May 2019, and once in June 2019. She added that each visit
lasted between one and five hours. Grandmother, on the other hand, testified that Mother
had visited the Children only four times during the Determinative Period. These occasions
occurred when (1) Grandmother and Matthew met Mother at Grandparents’ rental house
to remove Mother’s personal possessions on March 6, 2019; (2) Grandmother took the
Children to see Mother at her workplace on March 25, 2019; (3) Mother took Zayne to the
flea market on April 21, 2019; and (4) Mother saw both the Children at Zayne’s birthday
party on June 1, 2019. Grandmother noted that only one of these visits lasted longer than
three hours. Furthermore, Grandmother explained that Mother would stay for a few hours
on holidays and birthdays but that other visits would last “just not long at all.” According
to Grandmother, Mother made only one request to see the Children during the
Determinative Period. Moreover, the documentary evidence presented by Mother fails to
support her alleged number of visits, instead indicating that she visited the Children only
on March 6, 2019; March 25, 2019; and June 1, 2019.
In an effort to bolster her credibility, Mother has cited In re Keri C., 384 S.W.3d
731, contrasting her testimony about her visits with the mother’s testimony in In re Keri
- 26 -
C. According to Mother, she was “certain of each visit she was able to have with her
children,” whereas the mother in In re Keri C. was “‘not for sure’ whether she had any . . .
visits in September 2007.” See In re Keri C., 384 S.W.3d at 740. However, our review of
the evidence presented at trial demonstrates that Mother was uncertain how many visits
she had during the Determinative Period, which further supports the trial court’s credibility
determination. Mother did not provide specific dates beyond the dated photos she entered
into evidence, and she was equivocal about the number of visits for February 2019 and
May 2019.
Significantly, the trial court determined Grandmother’s testimony to be more
credible than Mother’s and cited Grandmother’s list of visits in its oral and written findings
when concluding that Mother had abandoned the Children by failing to visit. We will not
second-guess the trial court’s credibility finding. As this Court has previously stated:
The credibility of witnesses is a matter that is peculiarly within the
province of the trial court. That court has a distinct advantage over us: it
sees the witnesses in person. Unlike an appellate court—which is limited to
a “cold” transcript of the evidence and exhibits—the trial court is in a
position to observe the demeanor of the witnesses as they testify. This
enables the trial court to make assessments regarding a witness’s memory,
accuracy, and, most importantly, a witness’s truthfulness. The cases are
legion that hold a trial court’s determinations regarding witness credibility
are entitled to great weight on appeal. In the absence of unrefuted authentic
documentary evidence reflecting otherwise, we are loathe to substitute our
judgment for the trial court’s findings with respect to the credibility of the
witnesses.
Lockmiller v. Lockmiller, No. E2002-02586-COA-R3-CV, 2003 WL 23094418, at *4
(Tenn. Ct. App. Dec. 30, 2003); see also Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999) (“[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary”). Giving proper deference
to the trial court’s credibility findings, we determine that the evidence does not
preponderate against the trial court’s finding that Mother had only visited the Children four
times during the Determinative Period.8
Upon careful review, we agree with the trial court’s determination that Mother’s
visits were token in nature. Considering the specific circumstances of this case, four visits
during the Determinative Period were of such an infrequent nature as to fit the statutory
definition of “token visitation.” See In re Keri C., 384 S.W.3d at 750-51 (concluding that
8
Because two of these four visits were with only one child and not both, Mother only visited with each
child three times. The March 6, 2019 visit was solely with Matthew. The April 21, 2019 visit was only
with Zayne. The March 25, 2019 and June 1, 2019 visits were with both of the Children.
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the record contained clear and convincing evidence that the mother’s visitation with the
child was token when she only visited four times during the determinative period); see also
In re Jayvien O., No. W2015-02268-COA-R3-PT, 2016 WL 3268683, at *6-7 (Tenn. Ct.
App. June 7, 2006) (concluding that four visits during the determinative period constituted
token visitation). Considering that the trial court credited Grandmother’s testimony
regarding the number and duration of visits, we find no error in the trial court’s conclusion
that Mother’s visitation during the Determinative Period was token in nature.
We therefore conclude that the evidence does not preponderate against the trial
court’s finding by clear and convincing evidence that Mother failed to engage in more than
token visitation with the Children during the Determinative Period. The trial court did not
err in terminating Mother’s parental rights to the Children based upon this statutory ground.
B. Abandonment by Failure to Support
Statutory abandonment can also be based on a parent’s failure to financially support
a child, which occurs when a parent, “for a period of four (4) consecutive months, [fails]
to provide monetary support or . . . more than token payments toward the support of the
child.” Tenn. Code Ann. § 36-1-102(1)(D). Support is considered “token” when “the
support, under the circumstances of the individual case, is insignificant given the parent’s
means.” Tenn. Code Ann. § 36-1-102(1)(B). An adult parent is presumed to know that he
or she has a duty to provide support. Tenn. Code Ann. § 36-1-102(1)(H); see also In re
Braxton M., 531 S.W.3d 708, 724 (Tenn. Ct. App. 2017) (“[I]t is well settled in Tennessee
that every parent is presumed to have knowledge of a parent’s duty to support his or her
minor children regardless of whether a court order to that effect is in place”).
A parent may assert, as an affirmative defense, that the failure to provide financial
support was not willful. Tenn. Code Ann. § 36-1-102(1)(I). However, the parent bears
“‘the burden of proof that the failure to . . . support was not willful’ and must establish the
lack of willfulness by a preponderance of evidence.” In re Braelyn S., No. E2020-00043-
COA-R3-PT, 2020 WL 4200088, at *8 (Tenn. Ct. App. July 22, 2020) (quoting Tenn. Code
Ann. § 36-1-102(1)(I)). “Failure to support is willful when a parent is aware of the duty to
support and has the ability but makes no attempt to provide support and has no justifiable
excuse for failure to do so.” In re Mattie L., 618 S.W.3d at 345.
In its final orders, the trial court repeated its findings that Mother had not paid any
financial support during the Determinative Period. The trial court also stated in its written
orders that Mother’s claim that she did not know she had a legal obligation to provide
support to the Children was unavailing given that parents over the age of eighteen are
presumed to be aware of this duty.
Although Mother’s argument primarily centers on the trial court’s finding that she
abandoned the Children by failing to visit, Mother further contends in her appellate brief
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that Grandparents prevented her from financially supporting the Children. At trial, Mother
testified that every time she “called or spoke to [Grandparents] in person,” they told her
that they had “everything taken care of” and that they did not need help. Claiming that
Grandparents had refused Mother’s offer to assist financially with the Children, Mother
also testified that she would give Zayne between ten and fifty dollars every time she visited
with him.
In contrast, Grandmother testified that Grandparents had never refused financial
assistance from Mother, stating: “We would not turn any help down from anybody” and
“We’ve taken it from anybody that’s offered.” Grandmother explained that she had never
told Mother that they did not need assistance and that, in fact, they could have used help.
When questioned regarding whether Grandparents had received any type of support,
including “school supplies, formula, clothes, or any other type of any kind of support or
cash or check or money order” from Mother, Grandmother responded that they had
received no support during the Determinative Period, with the exception of Mother’s gift
and money for Zayne’s birthday on June 1, 2019. Other than birthday and Christmas gifts
for the Children, Grandmother identified only one time outside the Determinative Period
when Mother offered to contribute to the expenses of raising the Children. According to
Grandmother, in January 2019, Mother inquired whether they needed anything for the
Children, and Grandmother responded with a list, which included diapers and formula for
Matthew and pants and shirts for Zayne. Grandmother added that although Mother
indicated she did not have much money, she ultimately provided four cans of formula and
ten jars of baby food for Matthew and a pair of underwear for Zayne.
Although the trial court did not make a specific finding with regard to Mother’s
allegation that Grandparents had refused her offers of support, the court did determine
that Mother’s claim of ignorance of her duty to pay support was not an affirmative
defense. In addition, the trial court credited Grandmother’s testimony, which included
Grandmother's denial that Grandparents had refused any financial assistance from
Mother. We determine that the evidence presented at trial preponderates in favor of the
trial court’s finding, by clear and convincing evidence, that Mother failed to provide
financial support during the Determinative Period and failed to establish an affirmative
defense regarding this statutory ground.
Although Grandmother and Mother both testified that Mother had provided Zayne
with a birthday gift and money, and Mother presented evidence that she had sent Zayne ten
dollars for Valentine’s Day, we determine that these gifts amounted to token support. See
In re Braxton M., 531 S.W.3d at 721 (affirming the trial court’s finding that Christmas gifts
given during the determinative period, as well as some articles of clothing, constituted
nothing more than token support). In addition, the trial court properly concluded that
Mother’s statements that she was unaware of her duty to provide support constituted no
defense to her failure to do so because adult parents are presumed to know of this duty.
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See In re Archer R., No. M2019-01353-COA-R3-PT, 2020 WL 820973, at *7 (Tenn. Ct.
App. Feb. 19, 2020) (“[T]he legislature presumes a parent who is at least eighteen years
old is aware of his or her obligation to support his or her child, regardless of whether a
court has entered an order requiring child support to be paid.” (citing Tenn. Code Ann. §
36-1-102(1)(H))).
Considering that Mother testified that she had obtained and maintained employment
since November 2018 and had been earning $250.00 per week, we find that she was capable
of making some type of reasonable payment of support for the Children. See, e.g., In re
Keilyn O., No. M2017-02386-COA-R3-PT, 2018 WL 3208151, at *7 (Tenn. Ct. App. June
28, 2018) (determining that a parent’s income of $800 per month evinced her ability to pay
child support); In re Brantley B., No. M2016-02547-COA-R3-PT, 2017 WL 4877456, at
*3 (Tenn. Ct. App. Oct. 30, 2017) (determining that a parent’s income of $200 per week
evidenced her ability to pay child support). Mother neither posited at trial nor in her brief
on appeal that she was incapable of providing support. Furthermore, Tennessee Code
Annotated § 36-1-102(D) provides: “That the parent had only the means or ability to make
small payments is not a defense to failure to support if no payments were made during the
relevant four-month period.” The trial court did not err in terminating Mother’s parental
rights based upon this statutory ground as well.
VI. Best Interest of the Children
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, 254
(Tenn. 2010))). Tennessee Code Annotated § 36-1-113(i) 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).
- 30 -
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) in effect
when the Petitions were filed lists the following factors for consideration:9
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home
is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or
controlled substance analogues as may render the parent or guardian
consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
9
Effective April 22, 2021, the General Assembly has amended Tennessee Code Annotated § 36-1-113(i)
by deleting the previous subsection in its entirety and substituting a new subsection providing, inter alia,
twenty factors to be considered in determining a child’s best interest in a case involving termination of
parental rights. See 2021 Tenn. Pub. Acts, Ch. 190 § 1 (S.B. 205). However, because the termination
petitions in this case were filed prior to the effective date of the amendment, the statutory best interest
factors provided in the prior version of the statute are applicable here. See, e.g., In re Braxton M., 531
S.W.3d at 732.
- 31 -
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 under the
applicable set of statutory factors:
“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.
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
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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 Children. In each of its final orders,
the trial court made the following findings:
Whether the parent or guardian has made such an adjustment of
circumstance, conduct, and conditions as to make it safe and in the child’s
best interest to be in the home of the guardian. The Court finds that [Mother]
has made adjustments but the Court does not find that it’s in the best interest
of the child to be in her home.
Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social service agencies for
such duration of time that lasting adjustment does not necessarily appear
possible. This particular factor has not been shown in this case. It appears
that [Mother] has been clean for twenty[-]five (25) months and there’s no
evidence to the contrary.
Whether the parent or guardian has maintained regular visitation or
early contact with the child. The Court finds the few visits that took place in
the four months before this petition was filed were token visits as that term
is defined in the statute. The Court finds [Mother] initiated only one of those
visits and the other three visits that took place were a result of invitations by
[Grandmother] to [Mother] to celebrate birthdays and holidays in the home.
Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child. The Court finds that a
meaningful relationship between [Mother] and the subject child has not been
established.
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The effect a change in caretakers and physical environment is likely
to have on the child’s emotional, psychological, and medical condition. The
Court finds that removing the child from the home of their grandparents
would be devastating and have a severe negative effect on their
psychological, medical, and emotional condition.
Whether the parent or guardian or other persons 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. The Court finds there’s absolutely no evidence
whatsoever of any of that happening in this case or even an allegation that
any of that took place.
Whether the physical environment of the parent[] or guardian’s home
is healthy and safe, whether there’s criminal activity in the home and whether
there’s such use of alcohol or controlled substances as may render the parent
or guardian consistently unable to care for the child in a safe and stable
manner. The court finds this factor has not been proven. There’s no evidence
of any of that behavior taking place at this time in [Mother’s] home.
Whether the parent or guardian’s mental or emotional status would be
detrimental to the child to prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child. It appears to the
Court that [Mother] is doing well now. This particular factor is not relevant
to this case.
Whether the parent or guardian has paid child support. The Court
finds that [Mother] has failed to provide any support for the subject child.
The Court finds that it is in the best interest of the subject child that
the parental rights of [Mother] be terminated.10
(Paragraph numbers omitted.)
Mother posits that the trial court’s best interest determination was unsupported by
clear and convincing evidence. In stating this contention, Mother presents many of the
same arguments she raised against the trial court’s findings that Mother had statutorily
abandoned the Children. Mother argues that the trial court made its decision “based partly
on a finding that [Grandparents’] testimony was more credible than Mother’s.”
10
The trial court’s best interest findings in its order terminating Mother’s parental rights to Zayne are
identical to its best interest findings in its order terminating Mother’s parental rights to Matthew.
- 34 -
Specifically, Mother argues that Grandparents’ “refusal to acknowledge the reality of
Mother’s improved situation” lends credibility to Mother’s testimony that Grandparents
refused to allow consistent visits with the Children and refused Mother’s offers of support.
However, as stated previously, we afford proper deference to the trial court’s credibility
determinations. See Jones, 92 S.W.3d at 838.
Furthermore, the record belies Mother’s argument in this regard. Grandfather
testified that Mother had changed her life and quit using drugs, giving Mother credit for
her improved situation. Notwithstanding, upon review of the trial court’s orders, we
determine that any testimony from Grandparents that could be construed as minimizing
Mother’s change in circumstances did not impact that trial court’s findings. The trial court
referenced and noted Mother’s “tremendous progress” and weighed two factors in favor of
the retention of her parental rights based on the adjustments she had made in her life.
Mother again stresses that Grandparents refused to allow her to see the Children in
contending that the trial court erroneously weighed factor four (whether a meaningful
relationship has otherwise been established between the parent or guardian and the child)
in favor of terminating Mother’s parental rights. Mother specifically argues that her
“inability to bond is due to the same refusal by Petitioners to allow Mother to have
sufficient time to establish her own bond . . . .” Inasmuch as we have previously concluded
that Mother failed to prove her allegation that Grandparents prevented her from visiting the
Children, we also find her argument that Grandparents prevented her from bonding with
the Children unpersuasive. Mother visited each child a total of three times during the
Determinative Period. Grandmother described Mother as “somebody that [Matthew] does
not know,” and the GAL noted that Zayne had “barely mentioned” Mother in her interview
with him. As such, the trial court did not err in concluding that no meaningful relationship
between Mother and the Children had been established.
Mother also urges that the trial court erred by weighing factor five (the effect a
change of caretakers and physical environment is likely to have on the child’s emotional,
psychological, and medical condition) in favor of terminating her parental rights. In
support of her position, Mother cites In re Adoption of A.M.H., in which this Court
concluded: “Evidence that A.M.H. will be harmed from a change in custody because she
has lived and bonded with the [guardians] during the pendency of the litigation does not
constitute the substantial harm required to prevent the parents from regaining custody.”
215 S.W.3d at 797. However, the trial court did not predicate its weighing of this factor
solely on the number of years the Children had resided with Grandparents.
The trial court noted that Zayne was “flourishing” under Grandparents’ care and
custody and that Grandparents were the only parents Matthew had ever known. See In re
Addalyne S., 556 S.W.3d 774, 794 (Tenn. Ct. App. 2018) (concluding that a change in
caretakers would have a negative effect on the child because her grandparents had raised
her since she was born and provided her with a “stable, loving home, as well as financially
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support[ing] her”). In addition, Grandmother’s testimony indicated that Zayne was
thriving in their care—in school, with friendships, with his many extracurricular activities,
and in the therapy that Grandparents had arranged for him. We conclude that the evidence
presented at trial supported the court’s finding that a change in caretakers and physical
environment would have a “devastating” impact on the Children.
Apart from repeating her arguments with reference to Grandmother’s credibility,
Mother primarily asserts that the trial court should have afforded her improvement and
adjustment of circumstances, conduct, and conditions sufficient significance such that this
factor would have outweighed all other factors weighing in favor of terminating her
parental rights. However, the trial court had no obligation to assign such weight to
Mother’s progress, particularly when the evidence presented at trial indicated that Mother
maintained no meaningful relationship with the Children. See In re Addalyne S., 556
S.W.3d at 795 (“This Court has previously indicated that in some cases the lack of a
meaningful relationship between a parent and child is the most important factor . . . .”); see
also In re Terry S.C., No. M2013-02381-COA-R3-PT, 2014 WL 3808911, at *18 (Tenn.
Ct. App. July 13, 2014) (concluding that “perhaps most importantly, [the mother] has failed
to maintain regular visitation with the children and therefore has no meaningful
relationship with them”). Here, Mother failed to establish a meaningful relationship with
the Children by failing to visit with them regularly. This significant fact, in conjunction
with the trial court’s determination that Mother had failed to visit and provide support and
that a change of caretakers would be devastating for the Children, clearly supports the trial
court’s conclusion that the best interest of the Children would be served by terminating
Mother’s parental rights.
Based on our careful review of the evidence, 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 Children. Having also determined that statutory grounds were established by the same
standard of proof, we affirm the trial court’s termination of Mother’s parental rights to the
Children.
VII. Conclusion
For the foregoing reasons, we affirm the trial court’s final orders terminating
Mother’s parental rights in all respects. This case is remanded to the trial court, pursuant
to applicable law, for enforcement of the trial court’s orders terminating Mother’s parental
rights to the Children and collection of costs assessed below. Costs on appeal are assessed
to the appellant, Brittney R.
s/ Thomas R. Frierson, II_____________
THOMAS R. FRIERSON, II, JUDGE
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