In Re Brittany W.

06/08/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 3, 2021
IN RE BRITTANY W., ET AL.
Appeal from the Juvenile Court for Cocke County
No. TPR-04796 Brad Lewis Davidson, Judge
No. E2020-01631-COA-R3-PT
This appeal concerns the termination of a mother’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Cocke
County (“the Juvenile Court”) seeking to terminate the parental rights of Jamie W.
(“Mother”) to her minor children, Brittany W. and Isaiah W. (“the Children,” collectively).
After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights
on three grounds. Mother appeals, arguing that termination of her parental rights is not in
the Children’s best interest. We find, first, that the grounds found against Mother were
proven by clear and convincing evidence. We find further, also by clear and convincing
evidence, that termination of Mother’s parental rights is in the Children’s best interest. We
affirm the Juvenile Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Tammy N. Barry, Kodak, Tennessee, for the appellant, Jamie W.
Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
Brittany was born to Mother in November 2006; Isaiah, in May 2011. DCS became
involved with this family in September 2019 when it filed an application in the Juvenile
Court for an ex parte order allowing it to investigate the family’s home.1 The Children
were living then with their maternal grandfather. DCS was acting on a referral alleging
child drug-exposure, environmental neglect, psychological harm, and lack of supervision.
The Juvenile Court subsequently entered an ex parte order allowing DCS to investigate,
requiring Mother and the grandfather to admit DCS into the home in order to examine it.
In October 2019, the Juvenile Court ordered the Children into DCS temporary
custody. The Juvenile Court found that having the Children remain in the home was
contrary to their welfare due to “concerns regarding the Children receiving proper medical
and educational care, as well as non-compliance with this Court’s Order.” The Juvenile
Court stated further that reasonable efforts had been made by DCS to prevent removal by
“attempting to investigate the family to provide services if required.” DCS then filed a
petition to have the Children adjudicated dependent and neglected. Following a hearing in
February 2020, the Juvenile Court entered an order adjudicating the Children dependent
and neglected. In its order, the Juvenile Court stated: “[Maternal grandfather] reported he
could not care for a teenage girl. The parents did not appear today. Mother is charged with
constructive notice of the hearings.”
On June 4, 2020, DCS filed a petition seeking to terminate Mother’s parental rights
to the Children. DCS alleged three grounds against Mother: (1) abandonment by failure to
support; (2) abandonment by failure to visit; and (3) failure to manifest an ability and
willingness to assume custody. DCS alleged further that termination of Mother’s parental
rights is in the Children’s best interest.
DCS’s petition was tried before the Juvenile Court in November 2020. Mother did
not appear, but she was represented by counsel. DCS case manager Jessica Dockery
(“Dockery”) was the sole witness to testify. Dockery had managed the Children’s case
since they entered state custody in October 2019. During that period, Mother
communicated with Dockery some six or seven times. The last message Dockery received
from Mother was sent in January 2020. Dockery did not hear from Mother again until
September 22, 2020 when Mother showed up at the first scheduled hearing date on the
petition (which then was continued to November). When Dockery was able to
communicate with Mother, which generally occurred through Facebook, she informed
1
The Children’s father, James W., has surrendered his parental rights. He is not a party on appeal.
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Mother about visitation dates. However, Mother never visited the Children during the
custodial period. Dockery testified that Mother had not seen the Children at all since they
entered DCS custody. Dockery stated that she continued in vain to try to contact Mother
after communications between them stopped in January 2020.
Continuing her testimony, Dockery stated that she was unaware of Mother ever
having paid any child support. Dockery testified that, before DCS filed its petition, she
had reviewed records from the Department of Human Services and found no evidence
Mother paid any child support whatsoever. Dockery testified further that Mother tested
positive for methamphetamine and amphetamine based on a mouth swab drug test
performed on September 22, 2020. Mother did not complete any other drug screens in the
custodial period. Dockery stated that she did not know where Mother was living as of trial.
Mother never allowed Dockery to inspect any residence of Mother. On September 22,
2020, Mother gave Dockery an address for where she was living. However, Dockery did
not inspect that residence, as Mother told her “that was her grandmother’s home and not
where she would be wanting the kids to return to.” According to Dockery, Mother also
told her “she was not in the position to have the children back in the home at this time.”
Regarding where the Children were placed, Dockery stated that they were living in a DCS
foster home in Hamblen County. This was not a pre-adoptive home and DCS was still in
the process of looking for a pre-adoptive home for the Children. Asked how the Children
felt about being adopted, Dockery testified: “They both want to be adopted. Brittany is
more vocal about the adoption versus Isaiah. Brittany has actually written a letter to her
mother and myself, and she also wanted to make sure that Judge Davidson had a copy of
that letter.” Brittany’s letter was entered into evidence. In her letter, Brittany stated that
she did not want to live with Mother, and wanted to be adopted. Brittany referenced
Mother’s drug use and lack of a home. Brittany urged Mother to “sign your rights over.”
Brittany concluded by stating that she loved Mother but did not want to see her “without
supervision.” Asked how the Children were doing, Dockery testified “exceptionally well.”
However, Isaiah, age nine, had some struggles in school about not wanting to do his
homework. As to Brittany, she was “excelling in school” and her medical needs were being
met. Dockery testified that on September 22, 2020, she tried to persuade Mother to get
started on services geared toward possible reunification with the Children but Mother
shunned her. Dockery testified that, in her view, termination of Mother’s parental rights
would be in the Children’s best interest.
On cross-examination, Dockery acknowledged that Mother participated in a “legal
risk meeting” on September 23, 2020. Asked about her unsuccessful attempts to stay in
contact with Mother, Dockery stated that she used the numbers Mother gave her. In
addition, Dockery checked jail rosters to see if Mother was incarcerated somewhere.
Regarding drug screens, Dockery stated that Mother had refused a hair follicle test. Asked
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if either child still loved Mother, Dockery stated: “Both children will tell you that they still
love their mother. However, they feel that they would be better off being adopted.”
In November 2020, the Juvenile Court entered an order terminating Mother’s
parental rights to the Children. The Juvenile Court found, by clear and convincing
evidence, that three grounds for termination of parental rights were proven against Mother:
(1) failure to visit; (2) failure to support; and (3) failure to manifest an ability and
willingness to assume custody. The Juvenile Court found further, also by clear and
convincing evidence, that termination of Mother’s parental rights is in the Children’s best
interest. In its parental rights termination order, the Juvenile Court stated, in part:
Mother’s [participation] in her children’s lives over the past year has
been abysmal. CM Dockery, the only witness to testify, stated that she had
perhaps six communications from Mother during the 13 months that this
matter has been open. CM Dockery reported that she could initially reach
the Mother over Facebook, but that with time, all communication had died
out until she appeared at the hearing on September 22, 2020. At that time,
CM Dockery stated that she had a few more communications with the
Mother, arranged several services to begin immediately, and provided a drug
screen for Mother. However, Mother failed to maintain communication past
the second day after her miraculous return, failed her drug screen for
methamphetamine, and refused to cooperate with services provided by DCS,
despite the quick and efficient turnaround and the willingness of DCS to
work with her this late in the termination process.
The Court heard unrefuted testimony from CM Dockery that Mother
had not paid child support and had not visited with the children during the
four-month period prior to filing. This Court finds that from February 4,
2020, to June 3, 2020, the Mother had no[] contact with the children and paid
nothing towards their support. It is apparent from this lack of care for the
children’s welfare and her own relationship with them that Mother had no
ability or willingness to parent the children. In addition, based on her recent
failed drug screen for methamphetamine coupled with her lack of housing,
the Courts finds that the children would not be safe if placed back with the
Mother at this time.
While the Court understands that the children will be moving to a new,
pre-adoptive home, and therefore some change for them is inevitable, it is
this Court’s explicit finding that taking them from a stable home and placing
them with Mother who is currently without adequate housing, would be
detrimental to their health. The children have no relationship with their
Mother; although CM Dockery admitted that they do still love her, she also
reported to the Court that the children, and particularly Brittany, are adamant
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that they not return home to their Mother. In addition, the Court heard ample
testimony that the Mother has not made any changes to her lifestyle and that
she would be an unfit parent for the children due to her continued drug use.
Brittany’s letter in particular was proof positive that Mother’s continued
relationship with the children only harms them psychologically and does
nothing more for them than prevent them from obtaining a permanent
placement with loving, adoptive parents.
***
[Failure to Visit]
The Court finds that, at the time of the filing of the Petition, the
Mother has failed to visit the children. DCS filed its Petition to Terminate
Parental Rights on June 4, 2020, making the relevant statutory time period
between February 4, 2020, and June 3, 2020. During this time period, the
Court finds that Mother visited the children zero times. The Court further
finds that Mother has never visited the children during their time in state’s
custody.
The Court finds that Mother was in no way incapacitated or prevented
from visiting with the children during the four month period. The Court finds
that the Respondent knew of her duty to visit because such was addressed in
the underlying Dependency and Neglection Petition with which Mother was
served; DCS also attempted to set up visitation for her and the children, but
Mother did not attend.
***
[Failure to Support]
The Court finds that at the time of the filing of the Petition, Mother
has failed to support the children. DCS filed its Petition to Terminate
Parental Rights on June 4, 2020, making the relevant statutory time period
between February 4, 2020, and June 3, 2020. During this time period, the
Court, finds that [Mother] has made zero payments towards the support of
these children.
The Court finds that Mother was in no way incapacitated or prevented
from supporting the children during the four month period. The Court finds
that Mother knew of her duty to support because such was addressed in the
underlying Dependency and Neglect Petition with which Mother was served.
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***
[Failure to Manifest an Ability and Willingness to Assume Custody]
The Court finds that in the time since the children have come into
state’s custody the Respondent manifested no willingness nor ability to
parent the children. Mother has not visited with the children and has not
made an effort to maintain contact with DCS to work services. In addition,
when Mother did appear on September 22, 2020, and CM Dockery asked her
about her living situation and if she could come out and see the [home] to
determine if it could be appropriate for the children, Mother responded that
she was not ready for the children to come live with her there and that she
would be attempting to find new housing. In addition, when Mother was
provided an opportunity to participate in a Child and Family Team Meeting
or to participate in a parenting assessment to start working the plan, Mother
was notably absent.
As to whether or not the children would be safe if returned to Mother’s
custody, as recently as September 22, 2020, Mother failed a drug screen for
methamphetamine. In addition, she self-reported to CM Dockery that her
home was not appropriate for the children and that she would be seeking a
new residence. At this time, the Court is unable to say for sure that Mother
even has housing; it would be unsafe, therefore, to release the children to her
without knowing the situation into which they would be released.
***
[Best Interest]
The Court carefully considered the factors as enumerated in
Tennessee Code Annotated §36-1-113(i) in regards to the best interest of the
child and finds that the factors weigh in favor of a finding by clear and
convincing evidence that terminating the parental rights of Mother is in the
best interest of the children.
Pursuant to §36-1-113(i) and associated case law such as White v.
Moody, 171 S.W.3d 919 (Tenn. Ct. App. 2004) and In Re Giorgianna H.,
205 S.W.3d 508 (Tenn. Ct. App. 2006), once a parent has been found to be
unfit, the interests of the parent and the child diverge. The focus of the
proceeding shifts to the best interest of the child.
The Court finds the following in regards to each of the factors
enumerated in §36-1-113(i) by a preponderance of the evidence:
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(1) There is no evidence that Mother has made any changes in her
life. CM Dockery testified that she had not taken advantage of services over
the past two months despite CM [Dockery’s] diligent attempts to have
services arranged. In addition, Mother continued to test positive for illicit
substances as recently as September 22, 2020.
(2) The Court finds that DCS made beyond reasonable efforts for
Mother in the short time that she remained in communication, in particular
over the past two months. CM Dockery arranged for a wide array of services
in a short amount of time, but Mother was not willing to work the plan or put
forth any effort in this short time.
(3) As stated above, Mother has not visited with the children in the
entirety of the time that they have been in DCS custody.
(4) The Court finds that there is a relationship between the children
and Mother; however, the relationship is negative and only causes
unreasonable psychological harm to the children. Brittany wrote a letter to
the court that was particularly disheartening as she displayed an unhealthy
knowledge of her Mother’s ongoing drug use.
(5) The Court finds that it would be particularly harmful for either
child to be placed back in the same situation from which they were originally
removed. There could be no benefit from placing the children with the
Mother or even allowing her to have continued contact.
(6) This Court usually does not find this ground because of the
evidence that would be required to show psychological harm; however, the
Court, in considering the letter that Brittany obviously felt compelled to write
regarding her Mother’s drug use and the concerns that she would have with
going home with Mother, warrant a finding in this case that Mother’s
behaviors have negatively psychologically impacted the children in this
matter, especially Brittany.
(7) Based on testimony from this hearing, the Court cannot even say
for sure that Mother has a home, let alone one to which the children could
safely return; quite the contrary, it was undisputed in testimony that even
Mother did not think that her housing would be appropriate for the children.
(8) Although Mother does continue to use methamphetamine as
recently as September of this year, this Court does not find that this factor
particularly weighs in favor of termination at this time.
(9) As stated above, this Court finds that Mother has not paid any
support for the children at this time.
Mother timely appealed to this Court.
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Discussion
Although not stated exactly as such, Mother raises a single issue on appeal: whether
the Juvenile Court erred in finding that termination of Mother’s parental rights is in the
Children’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clauses of the federal and state constitutions.2 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388.
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, 102 S.Ct. 1388 (recognizing
that a decision terminating parental rights is “final and irrevocable”). In light
2
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
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of the interests and consequences at stake, parents are constitutionally
entitled to “fundamentally fair procedures” in termination proceedings.
Santosky, 455 U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d
640 (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, 102 S.Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). “Clear and convincing evidence enables the fact-finder to
form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than not.
In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R.,
183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
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.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds3 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is separate
3
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
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from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
Although several factors relevant to the best interests analysis are statutorily
enumerated,4 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “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.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n. 15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
4
Tenn. Code Ann. § 36-1-113(i).
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13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). 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. The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion
of law, which appellate courts review de novo with no presumption of
correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Mother does not challenge any of the three grounds found against her. Our Supreme
Court, however, has instructed “that in an appeal from an order terminating parental rights
the Court of Appeals must review the trial court’s findings as to each ground for
termination and as to whether termination is in the child’s best interests, regardless of
whether the parent challenges these findings on appeal.” In re Carrington H., 483 S.W.3d
at 525-26 (footnote omitted). Therefore, we will review each of the three grounds found
against Mother. The grounds at issue are set out in statute as follows:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and nonexclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
***
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(14) A parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or financial
responsibility of the child, and placing the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child;
Tenn. Code Ann. § 36-1-113(g) (Supp. 2020).5
Two different types of abandonment are at issue on appeal—failure to visit and
failure to support. They are defined by statute as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a parent
or parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding, pleading, petition, or any amended petition to
terminate the parental rights of the parent or parents or the guardian or
guardians of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent or parents or the guardian or
guardians either have failed to visit or have failed to support or have failed
to make reasonable payments toward the support of the child;
***
(B) For purposes of this subdivision (1), “token support” means that the
support, under the circumstances of the individual case, is insignificant given
the parent’s means;
(C) For purposes of this subdivision (1), “token visitation” means that the
visitation, under the circumstances of the individual case, 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;
(D) For purposes of this subdivision (1), “failed to support” or “failed to
make reasonable payments toward such child’s support” means the failure,
for a period of four (4) consecutive months, to provide monetary support or
5
We apply the parental rights termination statutes as they were in effect on June 4, 2020, the date the
petition was filed.
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the failure to provide more than token payments toward the support of the
child. That the parent had only the means or ability to make small payments
is not a defense to failure to support if no payments were made during the
relevant four-month period;
(E) For purposes of this subdivision (1), “failed to visit” means the failure,
for a period of four (4) consecutive months, to visit or engage in more than
token visitation. That the parent had only the means or ability to make very
occasional visits is not a defense to failure to visit if no visits were made
during the relevant four-month period;
***
(H) Every parent who is eighteen (18) years of age or older is presumed to
have knowledge of a parent’s legal obligation to support such parent’s child
or children;
(I) For purposes of this subdivision (1), it shall be a defense to abandonment
for failure to visit or failure to support that a parent or guardian’s failure to
visit or support was not willful. The parent or guardian shall bear the burden
of proof that the failure to visit or support was not willful. Such defense must
be established by a preponderance of evidence. The absence of willfulness
is an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of
Civil Procedure;
Tenn. Code Ann. § 36-1-102(1) (Supp. 2020).
We first address whether the Juvenile Court erred in finding the ground of failure to
visit. As found by the Juvenile Court, the relevant statutory period is February 4, 2020
through June 3, 2020. The Juvenile Court found that Mother failed to visit the Children
during this period and indeed throughout the whole custodial period. Mother has not
asserted the affirmative defense of lack of willfulness. The evidence does not preponderate
against the Juvenile Court’s findings relative to this ground. We find, as did the Juvenile
Court, that the ground of abandonment by failure to visit was proven by clear and
convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of failure
to support. Again, the relevant statutory period is February 4, 2020 through June 3, 2020.
The Juvenile Court found that Mother failed to provide any support for the Children during
the statutory period. Mother has not asserted the affirmative defense of lack of willfulness.
The evidence does not preponderate against the Juvenile Court’s findings relative to this
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ground. We find, as did the Juvenile Court, that the ground of abandonment by failure to
support was proven by clear and convincing evidence.
Concluding our review of grounds, we address whether the Juvenile Court erred in
finding the ground of failure to manifest an ability and willingness to assume custody.
With respect to this ground, our Supreme Court has explained that “[i]f a person seeking
to terminate parental rights proves by clear and convincing proof that a parent or guardian
has failed to manifest either ability or willingness, then the first prong of the statute is
satisfied.” In re Neveah M., 614 S.W.3d 659, 677 (Tenn. 2020) (emphasis in original).
The second prong of the statute requires us to consider whether placing the child in the
person’s legal and physical custody would pose a risk of substantial harm to the physical
or psychological welfare of the child. The Juvenile Court found that Mother failed to
manifest either the ability or the willingness to assume custody of the Children. The
Juvenile Court found further that returning the Children to Mother would be unsafe in view
of her recent positive drug screen for methamphetamine, her self-report that her home was
not appropriate for the Children, and the open question as to whether Mother has any
housing at all. These findings reflect a risk of substantial harm to the Children’s physical
or psychological welfare were they to be placed with Mother. The evidence does not
preponderate against the Juvenile Court’s findings relative to both prongs of this ground.
We find, as did the Juvenile Court, that the ground of failure to manifest an ability and
willingness to assume custody was proven by clear and convincing evidence.
The final issue we address, and the sole issue raised by Mother, is whether the
Juvenile Court erred in finding that termination of Mother’s parental rights is in the
Children’s best interest. In making a best interest determination, courts consider a number
of non-exclusive factors set out in statute as follows:
(i) In determining whether termination of parental or guardianship rights is
in the best interest of the child pursuant to this part, the court shall consider,
but is not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
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(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 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.
Tenn. Code Ann. § 36-1-113(i) (Supp. 2020).
Mother argues that the Juvenile Court erred in finding that termination of her
parental rights is in the Children’s best interest. Mother contends specifically that the
Juvenile Court erred in its findings as to best interest factors (4), (5), and (6). Mother
argues that she had a meaningful relationship with the Children, particularly Brittany; that
the Children are not placed in a pre-adoptive home and face being uprooted; and that there
was insufficient proof showing Brittany suffered psychological harm and no evidence at
all regarding psychological harm to Isaiah.
The Juvenile Court found that, while Mother and the Children have a relationship,
the relationship is of a negative nature. In making this finding, the Juvenile Court stated
that Brittany’s letter was “particularly disheartening.” Indeed, it was. In her letter, Brittany
expressed love for Mother and held out the possibility of seeing her again after she reached
majority age. However, Brittany also was clear that she wanted to be adopted and urged
Mother not to fight the proceedings against her. Brittany referred to Mother’s drug use and
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lack of a home. Beyond Brittany’s letter, it is difficult to characterize Mother and the
Children’s relationship as “meaningful” when Mother never once visited the Children
throughout the entire custodial period. Mother offered no explanation for this failure.
With regard to Mother’s point that the Children are not in a pre-adoptive home, she
is correct in that it is a less than ideal arrangement. The sooner the Children achieve
permanency, the better. However, the evidence reflects that the Children are, for the most
part, doing well in their placement. Moreover, the fact that the Children are not yet in a
pre-adoptive home in no way means that a return to Mother’s care would be in their best
interest. Mother has failed to visit or support the Children. She tested positive for
methamphetamine and has no housing to speak of. Mother failed to stay in contact with
DCS. In effect, Mother vanished for much of the case. In no sense would a return to
Mother’s care inure to the Children’s best interest more so than their current placement,
even if the Children will not remain in it permanently.
Lastly, Mother contends that Brittany’s letter, in itself, does not constitute sufficient
evidence that Brittany was psychologically harmed by Mother. Mother notes further that
there is no mention as to whether Isaiah suffered any psychological harm. Mother observes
that no expert testimony or medical evidence was introduced as to psychological harm to
either child. We do not believe the Juvenile Court erred in its interpretation of Brittany’s
letter, which reflects the child’s grappling with her love for Mother but also her desire to
be adopted. However, even if Mother is correct and the Juvenile Court misapplied this
particular factor with respect to psychological harm, the overwhelming weight of the best
interest analysis still favors termination of Mother’s parental rights. Mother has been
absent in the lives of the Children. Mother has done nothing to show she is able or willing
to parent the Children.
The evidence does not preponderate against the Juvenile Court’s findings relative
to the Children’s best interest. We find by clear and convincing evidence, as did the
Juvenile Court, that termination of Mother’s parental rights is in the Children’s best
interest.
Conclusion
The judgment of the Juvenile Court terminating Mother’s parental rights is affirmed,
and this cause is remanded to the Juvenile Court for collection of the costs below. The
costs on appeal are assessed against the Appellant, Jamie W., and her surety, if any.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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