In Re Ima D.

11/22/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 1, 2021
IN RE IMA D. ET AL.
Appeal from the Juvenile Court for Hickman County
No. 20-JV-143 Amy Cook Puckett, Judge
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No. M2021-00022-COA-R3-PT
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In this case involving termination of the father’s parental rights to his children, the
Hickman County Juvenile Court (“trial court”) determined that several statutory grounds
for termination had been proven by clear and convincing evidence. The trial court further
determined that clear and convincing evidence demonstrated that termination of the
father’s parental rights was in the children’s best interest. The father has appealed.
Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile 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.
Matthew R. Muenzen, Franklin, Tennessee, for the appellant, Mark D.
Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Factual and Procedural Background
On July 1, 2020, the Tennessee Department of Children’s Services (“DCS”) filed a
petition in the trial court, seeking to terminate the parental rights of Hannah K. (“Mother”)
and Mark D. (“Father”) to their minor children, Ima D. and Jacob D. (“the Children”), who
were approximately eighteen months old and three years old, respectively, at the time of
the petition’s filing.1 In the petition, DCS stated that although Mother and Father were not
1
Mother has not appealed the trial court’s termination of her parental rights to the Children. We will
married at the time of Jacob’s birth, they were married at the time of Ima’s birth. It is
undisputed that Mother and Father resided together with the Children until Father was
incarcerated in March 2019.
DCS averred that the Children had been in state custody since April 30, 2019, based
upon a finding of dependency and neglect by the trial court. The Children were removed
from the custody of Mother and Father upon a dependency and neglect petition filed by
their paternal grandmother on April 12, 2019, alleging that Father was incarcerated and
that Mother’s whereabouts were unknown. Shortly thereafter, the Children were removed
from the custody of their paternal grandmother and placed in the custody of DCS upon a
dependency and neglect petition filed on April 30, 2019, alleging that Ima had tested
positive for methamphetamines while in the grandmother’s care.
In its termination petition, DCS asserted that Father had abandoned the Children by
failing to visit them, failing to support them, and failing to provide them with a suitable
home. DCS also asserted that Father had failed to comply with his permanency plan and
that the conditions leading to the Children’s removal from their parents’ home persisted.
In addition, DCS petitioned the trial court to determine that Father had failed to manifest
an ability and willingness to assume legal and physical custody of the Children and that
Father was guilty of severe child abuse. DCS averred that termination of Father’s parental
rights was in the Children’s best interest.
The trial court appointed a guardian ad litem for the Children by order entered on
July 28, 2020. The trial court concomitantly entered an order appointing counsel for Father
predicated upon his affidavit of indigency.
The trial court conducted a bench trial in this matter on November 5 and 6, 2020.
At the beginning of the trial, DCS’s counsel announced that the ground of severe child
abuse would not be pursued. The trial court then heard testimony from Erik Henson and
Emily James, employees of DCS; Sarah L., foster mother of the Children (“Foster
Mother”); Father; and Steven Carroll, Child Support Services administrator.
Following the hearing, the trial court entered an order on December 14, 2020,
terminating Father’s parental rights to the Children based upon the statutory grounds,
proven by clear and convincing evidence, of abandonment by failure to pay child support,
abandonment by failure to provide a suitable home, substantial noncompliance with his
permanency plans, persistence of the conditions leading to the Children’s removal, and
Father’s failure to manifest a willingness and ability to assume legal and physical custody
or financial responsibility of the Children. The trial court also determined, by clear and
convincing evidence, that termination of Father’s parental rights was in the Children’s best
interest. The trial court further determined that DCS had failed to prove the statutory
therefore confine our analysis to those facts relevant to Father’s appeal.
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ground of abandonment by failure to visit by clear and convincing evidence. In its order,
the trial court made extensive factual findings concerning the statutory grounds and best
interest factors. Father timely appealed.
II. Issues Presented
Father has raised the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred by finding clear and convincing evidence
supporting the statutory ground for termination of Father’s parental
rights of abandonment by failure to support.
2. Whether the trial court erred by finding clear and convincing evidence
supporting the statutory ground for termination of Father’s parental
rights of abandonment by failure to provide a suitable home.
3. Whether the trial court erred by finding clear and convincing evidence
supporting the statutory ground for termination of Father’s parental
rights of substantial noncompliance with the permanency plans.
4. Whether the trial court erred by finding clear and convincing evidence
supporting the statutory ground for termination of Father’s parental
rights of persistence of the conditions leading to removal of the
Children.
5. Whether the trial court erred by finding clear and convincing evidence
supporting the statutory ground for termination of Father’s parental
rights of failure to manifest a willingness and ability to assume legal
and physical custody or financial responsibility of the Children.
6. Whether the trial court erred by finding clear and convincing evidence
that it was in the Children’s best interest to terminate Father’s parental
rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. See
Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn.
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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
S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660
(Tenn. Ct. App. 2005).
***
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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).
IV. Grounds for Termination of Father’s Parental Rights
Tennessee Code Annotated § 36-1-113 (2021) lists the statutory requirements for
termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction with
the juvenile court to terminate parental or guardianship rights to a
child in a separate proceeding, or as a part of the adoption proceeding
by utilizing any grounds for termination of parental or guardianship
rights permitted in this part or in title 37, chapter 1, part 1 and title 37,
chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
The trial court determined that the evidence clearly and convincingly supported a finding
of five statutory grounds to terminate Father’s parental rights. We will address each
statutory ground in turn.
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A. Statutory Abandonment
Concerning statutory abandonment, Tennessee Code Annotated § 36-1-113(g)(1)
(2021) 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; . . .
Tennessee Code Annotated § 36-1-102(1)(A) (2021) provides the following definitions of
abandonment as pertinent here:
(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;
(ii) (a) The child has been removed from the home or the physical or
legal custody of a parent or parents or guardian or guardians by
a court order at any stage of proceedings in which a petition
has been filed in the juvenile court alleging that a child is a
dependent and neglected child, and the child was placed in the
custody of the department or a licensed child-placing agency;
(b) The juvenile court found, or the court where the termination of
parental rights petition is filed finds, that the department or a
licensed child-placing agency made reasonable efforts to
prevent removal of the child or that the circumstances of the
child’s situation prevented reasonable efforts from being made
prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal,
the department or agency made reasonable efforts to assist the
parent or parents or the guardian or guardians to establish a
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suitable home for the child, but that the parent or parents or the
guardian or guardians have not made reciprocal reasonable
efforts to provide a suitable home and have demonstrated a lack
of concern for the child to such a degree that it appears unlikely
that they will be able to provide a suitable home for the child
at an early date. The efforts of the department or agency to
assist a parent or guardian in establishing a suitable home for
the child shall be found to be reasonable if such efforts equal
or exceed the efforts of the parent or guardian toward the same
goal, when the parent or guardian is aware that the child is in
the custody of the department; . . . .
1. Failure to Support the Children
Father contends that the trial court erred in finding by clear and convincing evidence
that he had abandoned the Children by failing to support them during the four months
preceding the termination petition’s filing. Although the trial court determined that this
statutory ground had been proven by clear and convincing evidence, the court made no
finding concerning the specific dates when the four-month determinative period began and
ended. We find that the beginning point of this time period should be March 1, 2020, and
the ending point should be June 30, 2020, the day before the termination petition was filed
(“Determinative Period”). See In re Joseph F., 492 S.W.3d 690, 702 (Tenn. Ct. App.
2016)(explaining that the applicable four-month statutory period preceding filing of the
termination petition “began on March 8, 2011, and concluded on July 7, 2011, the day prior
to the filing of the termination petition”) (citing In re Jacob C.H., No. E2013-00587-COA-
R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014)). Because we determine
that the trial court’s findings regarding this statutory ground are inclusive of the
Determinative Period such that we may proceed with our analysis, we further determine
the trial court’s omission of specific dates for the Determinative Period to be harmless error
under the circumstances of this case. See, e.g., In re Steven W., No. M2018-00154-COA-
R3-PT, 2018 WL 6264107, at *12 (Tenn. Ct. App. Nov. 28, 2018) (“[T]he trial court’s
determination of the entire time the Children were in protective custody as the relevant
time period could be considered harmless error if proof of abandonment through the
parent’s willful failure to visit or support were clear and convincing for the entire time
period, ‘encompass[ing] the correct determinative period.’” (quoting In re Savanna C., No.
E2016-01703-COA-R3-PT, 2017 WL 3833710, at *9 (Tenn. Ct. App. Apr. 18, 2017)).
In its final order, the trial court specifically found that although Father had been
ordered to pay child support on February 11, 2020, he had voluntarily paid only two five-
dollar payments in April 2020 during the Determinative Period. The trial court found that
although Father’s stimulus payments had been intercepted by child support services, Father
had done nothing to facilitate or allow such interception of funds to take place. The court
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also found that Father had not provided any in-kind support such as clothes, diapers, or
school supplies.
The trial court further noted that Father had tested positive for methamphetamines
in March 2020 while he was living with Mother. Regarding this incident, the trial court
stated: “Certainly, money that was presumably used to purchase meth could be used to
support the children.” The court acknowledged that Father had testified that his
employment was “off and on because of his having to comply with sex offender registry
work restrictions” and that he was also paying fees, fines, and court costs to avoid probation
violations. Notwithstanding, the court concluded that although Father had the means to
pay child support, he had chosen not to do so.
On appeal, Father contends that his child support obligation during the
Determinative Period had been satisfied inasmuch as his federal stimulus payments had
been intercepted and applied to his child support obligation in June 2020. We note,
however, that such intercepted payments are typically not considered when determining
whether a parent has failed to support his children. See In re Dustin T., No. E2016-00527-
COA-R3-PT, 2016 WL 6803226, at *13 (Tenn. Ct. App. Nov. 17, 2016) (explaining that
an intercepted tax refund did not constitute a voluntary payment of child support); In re
Kadean T., No. M2013-02684-COA-R3-PT, 2014 WL 5511984, at *7 (Tenn. Ct. App. Oct.
31, 2014) (“[T]he trial court correctly concluded that the tax intercept would not be
considered in determining whether Mother failed to support her child during the relevant
period.”); In re Alyssa Y., No. E2012-02274-COA-R3-PT, 2013 WL 3103592, at *10
(Tenn. Ct. App. June 17, 2013) (explaining that interception of a parent’s tax refund was
not relevant to determining whether that parent failed to support her child). See also In re
Elijah R., No. E2020-01520-COA-R3-PT, 2021 WL 2530644, at *18 (Tenn. Ct. App. June
21, 2021) (determining that monies intercepted “from tax refunds or stimulus payments
from the federal government” would not be considered voluntary child support payments
when analyzing the statutory best interest factors). Accordingly, the only voluntary child
support payments made by Father during the Determinative Period were two five-dollar
payments made in April 2020.
Tennessee Code Annotated § 36-1-102(1)(D) (2021) provides the following
definition concerning a parent’s failure to support:
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 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[.]
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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) (2021).
The statute further provides:
For purposes of this subdivision (1), it shall be a defense to abandonment for
failure to visit or failure to support that a parent or guardian’s failure to visit
or support was not willful. The parent or guardian shall bear the burden of
proof that the failure to visit or support was not willful. Such defense must
be established by a preponderance of evidence. The absence of willfulness
is an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of
Civil Procedure[.]
Tenn. Code Ann. § 36-1-102(1)(I) (2021).
In the case at bar, as DCS points out, Father did not raise lack of willfulness as an
affirmative defense in his answer because he failed to file an answer. Moreover, we
emphasize that under the applicable version of the statute, the burden of proof for this
affirmative defense is upon Father. See Tenn. Code Ann. § 36-1-102(1)(I); In re Nicholas
C., No. E2019-00165-COA-R3-PT, 2019 WL 3074070, at *13 (Tenn. Ct. App. July 15,
2019) (“Under Tenn. Code Ann. § 36-1-102(1)[(I)], willfulness is an affirmative defense;
thus, the burden is upon [the parent] to establish that his failure to [visit or support] was
not willful.”). As this Court has previously explained:
Willfulness in the context of termination proceedings does not require the
same standard of culpability as is required by the penal code, nor does it
require that the parent acted with malice or ill will. Rather, a parent’s conduct
must have been willful in the sense that it consisted of intentional or
voluntary acts, or failures to act, rather than accidental or inadvertent acts.
In re Alysia S., 460 S.W.3d 536, 565-66 (Tenn. Ct. App. 2014) (internal citations omitted).
Nonetheless, Father appears to argue that his failure to support the Children was not
willful and/or that the support paid was not token because he did not possess the means to
provide additional support during the Determinative Period. We disagree. The proof
demonstrated that Father was employed intermittently during the Determinative Period, at
times digging graves at the pay rate of one hundred dollars per day and at other times
refurbishing pallets at the pay rate of approximately sixty to seventy dollars per week.
Father further admitted that he was residing in his mother’s home during the Determinative
Period and that his mother was helping him financially.
During trial, Father claimed that if he had paid more child support, he would have
“starved.” Moreover, according to Father, although he was physically able to work, he had
difficulty maintaining employment due to his status as a registered sex offender. Father
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acknowledged that although he had earned one hundred dollars per day for approximately
one and one-half weeks in March 2020, he had tendered no child support because he had
to pay probation fines and other bills. As this Court has previously explained, however:
“Spending money on other bills or obligations does not absolve the failure to pay court-
ordered child support. In fact, having the means to meet other financial obligations
evidences an ability to pay child support.” In re Dustin T., 2016 WL 6803226, at *14
(quoting Buttrey v. Buttrey, No. M2007-00772-COA-R3-CV, 2008 WL 45525, at *2
(Tenn. Ct. App. Jan. 2, 2008)). Father similarly conceded that although he had earned
some amount of income in May from pallet refurbishing and in June from providing grave
services, he had made no voluntary child support payments in either of those months.
Inexplicably, however, Father paid ten dollars in child support in April, a month during
which he claimed to have had no income. Father admitted that these payments were made
with his mother’s debit card.
Based on the proof presented at trial, we determine that Father’s two five-dollar
support payments made during the Determinative Period were “insignificant given
[Father’s] means” and thus constituted token support. See Tenn. Code Ann. § 36-1-
102(1)(B). We further determine that even if Father had properly pled the affirmative
defense of lack of willfulness, he failed to carry his burden of proof in that regard. We
therefore affirm the trial court’s determination that DCS proved the statutory ground of
abandonment by failure to support by clear and convincing evidence.
2. Failure to Provide a Suitable Home
Father contends that the trial court erred in finding by clear and convincing evidence
that he had abandoned the Children by failing to provide a suitable home. With respect to
this abandonment ground, the trial court specifically found that the Children had been
removed from the home of Mother and Father in April 2019 and that “[w]hen the children
were removed from the custody of their parents, there were concerns that both parents had
been using methamphetamine, that [Father] was incarcerated, and that [Mother] needed
residential stability, as her whereabouts were unknown.” The court found that following
the Children’s removal from Father’s home, DCS made “reasonable efforts to assist the
parents to establish a suitable home for the children by providing or referring the following
for the parents: mental health assessment, A & D [alcohol and drug] assessment, A & D
treatment, therapeutic visitation” and that the “efforts of DCS to assist the parents in
establishing a suitable home for the children equaled or exceeded the parents’ efforts
toward the same goal.” The court determined that Father had demonstrated a lack of
concern for the Children by being arrested on new criminal charges in August 2020,
resulting in his incarceration at the time of trial. Upon our thorough review of the proof,
we conclude that the evidence presented at trial supports these findings.
The proof was undisputed that the Children were removed from Father’s home in
April 2019 and thus had been in protective custody for some eighteen months by the time
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of trial. Erik Henson, the DCS family services worker assigned to this matter, testified
concerning the efforts DCS had made toward reunification following the Children’s
removal, including scheduling an alcohol and drug assessment for Father, scheduling a
mental health assessment for Father, attempting to assist Father in finding new housing,
facilitating visitation with the Children, and providing random drug screens. The trial court
specifically found that DCS’s efforts to assist Father were reasonable, and we agree with
that determination.
Father contends that due to his initial incarceration, the efforts DCS made to assist
him were not accomplished within the first four months following removal and thus cannot
satisfy the requirements of the statute. We disagree. This Court has previously clarified
that DCS can satisfy this requirement “if it establishes that reasonable efforts were made
during any four-month period following a child’s removal.” In re Roderick R., No. E2017-
01504-COA-R3-PT, 2018 WL 1748000, at *11 n.13 (Tenn. Ct. App. Apr. 11, 2018); In re
Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL 7243674, at *13 (Tenn. Ct. App. Sep.
20, 2016).
The proof further preponderates in favor of the trial court’s finding that Father failed
to make reciprocal reasonable efforts to provide a suitable home for the Children, despite
DCS’s efforts to assist Father. During the time Father was not incarcerated, spanning from
mid-December 2019 to mid-August 2020, Father worked intermittently; lived in his
mother’s home, where one child had been exposed to methamphetamines; and cohabitated
with Mother, whom Father admitted was using heroin. Although Father completed an
alcohol and drug assessment arranged by DCS, he also failed a random drug screen in
March 2020 and failed to submit to a hair follicle drug screen after disputing the results of
the prior screen. Notably, Mr. Henson testified that Father would have been allowed in-
person, supervised visitation with the Children in March and April of 2020 had he passed
a random drug screen.2 Also, rather than resolving his prior criminal charges, Father was
instead reincarcerated on new criminal charges in August 2020. In short, during the
eighteen months the Children had been in protective custody, Father failed to improve his
situation in any manner.
We further agree that Father has demonstrated a lack of concern for the Children to
such a degree that it appears unlikely that he will be able to provide a suitable home for the
Children at an early date. Although Father claimed that he was innocent of the recent
criminal conspiracy charges and testified that he had a court date in the near future
concerning those charges, he did not know how long it would be before he might be
released from incarceration. Father acknowledged that his only option upon his eventual
2
The trial court’s February 6, 2020 order specified that Father would not be allowed to visit with the
Children unless he passed a drug screen. Although Mr. Henson acknowledged that Father did pass a
scheduled drug screen that was requested by Father, Mr. Henson clarified that Father had failed the
subsequent drug screen that was randomly administered.
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release would be to resume residing with his mother in a home that DCS had found to be
inappropriate because Ima was exposed to methamphetamines while living there.
In addition, Foster Mother testified that Ima suffered from significant health issues
such that she had undergone four surgeries in recent months and had required three
hospitalizations. Father acknowledged at trial that he was unable to provide a home for the
Children at that time by reason of his incarceration and that he would struggle to do so
upon his release. In a prior case involving a child with medical needs, this Court explained:
[A] suitable home requires more than a physical space. [The subject child]
is a child with permanent injuries who requires constant care. For him, a
suitable home requires the presence of a care giver who can supply the care
and attention he needs. By her own admission, Mother is not currently that
person. We recognize that Mother is not seeking custody of [the child] at
this time. We also recognize, however, that it is unlikely that [the child] can
return to his Mother’s home at any time in the near future.
In re A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002).
Similarly, here, Father could not have the Children in his custody at the time of trial,
and his circumstances indicated that he would not be able to provide a suitable home for
the Children in the near future. Based upon the proof presented, we determine that the
evidence preponderates in favor of the trial court’s finding, by clear and convincing
evidence, existence of the statutory ground of abandonment by failure to provide a suitable
home.
B. Substantial Noncompliance with Permanency Plans
The trial court also found by clear and convincing evidence that Father had failed
to substantially comply with the statement of responsibilities set forth in the permanency
plans. Tennessee Code Annotated § 36-1-113(g)(2) (2021) provides as an additional
ground for termination of parental rights:
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant
to the provisions of title 37, chapter 2, part 4[.]
Concerning this statutory ground, the trial court stated in pertinent part:
Mother’s instability and [F]ather’s criminal activity were crucial
factors in the children’s removal. . . .
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Father blamed his having to comply with the sex offender registry as
causing the majority of his problems with housing and working. [Father]
testified that he has worked for a grave digging company and refurbishes
pallets for spare money. He testified that he chose to pay court fines and
costs and probation fees rather than child support.
Failed drug screens by both parents prevented in-person visitation.
[Father and Mother] have not substantially complied with the responsibilities
of the permanency plans. . . .
Even if [F]ather were to be released from incarceration soon, he would
still need to acquire housing, and he would need additional time to comply
with the permanency plans. Father still needs to demonstrate stable housing,
employment and sobriety. He needs to complete a mental health intake and
follow any recommendations. Furthermore, he would need to begin in-
person visitation with the children. Additionally, [Father] needs to resolve
pending criminal charges in Hickman County. . . .
[Father and Mother] knew the consequences of their failure to
substantially comply with the permanency plan because they received an
explanation of the Criteria and Procedures for Termination of Parental Rights
in August of 2019. They both were present and represented by counsel on
September 24, 2019, when the Juvenile Court ratified the permanency plan
developed on September 4, 2019.
[Father] presently does not have a legal source of income due to
incarceration, has not provided any type of gifts or financial contribution for
the care of the children except $10 and involuntary stimulus interceptions
since the children were removed from their custody in April of 2019.
Upon thorough review of the record, we determine that the evidence preponderates in favor
of the trial court’s findings.
To terminate parental rights pursuant to Tennessee Code Annotated § 36-1-
113(g)(2), the parent’s noncompliance with the permanency plan must be substantial. See
In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002). Additionally, our Supreme Court has
held that “the real worth and importance of noncompliance should be measured by both
the degree of noncompliance and the weight assigned to that requirement.” Id. This Court
has explained the following regarding the ground of substantial noncompliance with the
permanency plan:
Mere noncompliance is not enough to terminate a parent’s rights. In
re Valentine, 79 S.W.3d [643,] 548 [(Tenn. Ct. App. 2004)]. Additionally,
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the unsatisfied requirement(s) must be important in the plan’s scheme. Id.A “[t]rivial, minor, or technical” deviation from the permanency plan’s
requirements does not qualify as substantial noncompliance. In re M.J.B.,
140 S.W.3d [643,] 656 [(Tenn. Ct. App. 2004)] (citing In re Valentine, 79
S.W.3d at 548). Improvements in compliance are construed in favor of the
parent. In re Valentine, 79 S.W.3d at 549 (citing State Dept. of Human Servs.
v. Defriece, 937 S.W.2d 954, 961 (Tenn. Ct. App. 1996)). Yet, we must
determine compliance in light of the permanency plan’s important goals:
In our view, a permanency plan is not simply a list of tasks with
boxes to be checked off before custody is automatically
restored. Rather, it is an outline for doing the things that are
necessary to achieve the goal of permanency in children’s
lives. We think that where return to parent is the goal, parents
must complete their responsibilities in a manner that
demonstrates that they are willing and able to resume caring
for their children in the long-term, not on a month-to-month
basis.
In re V.L.J., No. E2013-02815-COA-R3-PT, 2014 WL 7418250, at *8 (Tenn.
Ct. App. Dec. 30, 2014).
In re Abbigail C., No. E2015-00964-COA-R3-PT, 2015 WL 6164956, at *20-21 (Tenn.
Ct. App. Oct. 21, 2015).
In the instant action, Mr. Henson testified that a permanency plan was developed
for Father on September 4, 2019, which was subsequently ratified by the trial court on
September 24, 2019. Father’s responsibilities pursuant to this plan included: being
released from jail and complying with the rules of his probation; not incurring additional
criminal charges; submitting to a mental health assessment and an alcohol and drug
assessment; submitting to random drug screens; participating in supervised, therapeutic
visitation; establishing a legal source of income and stable housing; and obtaining a driver’s
license or valid transportation plan.
A second permanency plan was ratified by the trial court on April 14, 2020. Father’s
responsibilities pursuant to this plan were largely the same, including: paying child support
as ordered by the court; submitting to random drug screens; complying with the rules of
his probation; not incurring additional criminal charges; submitting to a mental health
assessment and an alcohol and drug assessment; participating in supervised, therapeutic
visitation; establishing a legal source of income and stable housing; and obtaining a driver’s
license or valid transportation plan. We determine, as did the trial court, that all of these
responsibilities were reasonably related to the goal of reunification.
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Relevant to these requirements, Father was released from jail in December 2019 and
subsequently submitted to an alcohol and drug assessment. Mr. Henson testified that
Father complied with no other action steps of his plans. Father failed to pay child support
as ordered, failed a randomly administered drug screen, and failed to establish stable
income or housing. Father never submitted to a mental health assessment and never
obtained his driver’s license. In addition, Father was reincarcerated in August 2020
following his arrest for new criminal conspiracy charges.
Based on the evidence presented, we conclude that Father failed to substantially
comply with the goals and responsibilities of the permanency plans. Father did not
“complete [his] responsibilities in a manner that demonstrate[d] that [he was] willing and
able to resume caring for [the Children] in the long-term.” See in re V.L.J., No. E2013-
02815-COA-R3-PT, 2014 WL 7418250, at *8 (Tenn. Ct. App. Dec. 30, 2014). We
therefore determine that clear and convincing evidence supported this statutory ground for
termination as well.
C. Persistence of Conditions Leading to Removal
The trial court also found clear and convincing evidence of the statutory ground of
persistence of the conditions leading to removal of the Children from Father’s home or
physical and legal custody. Regarding this statutory ground, Tennessee Code Annotated §
36-1-113(g)(3) (2021) provides:
(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a
court order entered at any stage of proceedings in which a petition has
been filed in the juvenile court alleging that a child is a dependent and
neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent or
guardian, or other conditions exist that, in all reasonable
probability, would cause the child to be subjected to further
abuse or neglect, preventing the child’s safe return to the care
of the parent or guardian;
(ii) There is little likelihood that these conditions will be remedied
at an early date so that the child can be safely returned to the
parent or guardian in the near future; and
(iii) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable, and permanent home;
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(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard[.]
In the case at bar, the Children were removed from Father’s home in April 2019
following the filing of a dependency and neglect petition. We reiterate that Father’s
criminal activity, resulting in his incarceration, was a substantial factor leading to removal.
At the time of trial, which was approximately eighteen months following the Children’s
removal, Father was once again incarcerated due to additional criminal charges that he
incurred while the Children were in protective custody. Because of Father’s incarceration,
the Children could not be returned to his care.
In addition, Father testified that he did not know when he would be released from
incarceration. Father conceded that even if he were released immediately, he would have
no choice but to return to his mother’s home, where Ima had been exposed to
methamphetamines. Father also admitted at trial that he was currently unable to care for
the Children or support them. Moreover, as the trial court noted in its final order, Father
had failed to “use[] the opportunity between incarcerations to secure stable housing, despite
having the resources of DCS at his disposal.”
The trial court further found:
While [Father’s] incarceration led to the children’s removal, the
children’s prolonged stay in foster care is the result of decisions made by
[F]ather to resume criminal activity after his release from jail. There is little
likelihood that these conditions will be remedied at an early date so that these
children can be returned to their father’s care soon. When Father acquires
housing, he would need considerable time to demonstrate sobriety and
stability.
Based on the length of time that the Children had been in DCS custody, the evidence
supports the trial court’s determination that there was little likelihood that the conditions
leading to removal would be remedied at an early date so that the Children could be
returned safely to Father. Furthermore, it is clear that continuation of the parent-child
relationship would inhibit the Children’s ability to integrate into a stable home. We
therefore determine that clear and convincing evidence also established this statutory
ground for termination.
D. Failure to Manifest an Ability and Willingness to Assume Legal and Physical
Custody of or Financial Responsibility for the Child
Father also argues that the trial court erred by finding that DCS had proven by clear
and convincing evidence that he had failed to manifest an ability and willingness to assume
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legal and physical custody of or financial responsibility for the Child. Concerning this
statutory ground, Tennessee Code Annotated § 36-1-113(g)(14) (2021) provides:
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[.]
To prove this ground, DCS was required to show by clear and convincing evidence that (1)
Father failed to manifest either an ability or willingness to assume custody or financial
responsibility of the Child and (2) returning the Child to Father’s custody would pose a
risk of substantial harm to the Child’s welfare. In re Neveah M., 614 S.W.3d 659, 674, 677
(Tenn. 2020); In re Jeremiah S., No. W2019-00610-COA-R3-PT, 2020 WL 1951880, at
*6 (Tenn. Ct. App. Apr. 23, 2020) (“Under this ground for termination, the petitioner must
prove each element by clear and convincing evidence.”).
The trial court found as follows with respect to this statutory ground:
As of the date of the filing of the TPR [termination of parental rights]
petition and the TPR hearing, [Mother] and [Father] had not manifested an
ability and willingness to assume legal and physical custody of their children.
They had not progressed to in-person visitation despite having known what
steps they needed to take to begin in-person visitation.
Mother did not appear in court to express her desire to personally
assume responsibility of the children. Father has been re-arrested and
incarcerated multiple times while the children have been in foster care. He
has been in jail continuously since August of 2020. At that time, the children
had been in foster care for approximately sixteen months.
Neither parent has filed a pleading with the Juvenile Court asking for
the children to be returned to their custody. It is unsafe to return the children
to [Mother’s] care until she has demonstrated stability and sobriety and
willingness to support her children. Father’s incarceration and on-going
criminal activity reveals neither a willingness nor an ability to assume legal
and physical custody of or financial responsibility of them. Even if [F]ather’s
criminal charges were to be resolved soon, [Father] would need to establish
sober and stable living for a meaningful period. He would need to pass drug
screens upon request by DCS. [Father] and [Mother] would need to bond
with their children.
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Father asserts that the trial court erred by determining that he had failed to manifest
a willingness to assume custody of the Children. Father expressed his love for the Children
at trial and stated that he desired to have custody returned to him if he were able to be
released from incarceration while also acknowledging that this was a somewhat selfish
desire on his part because the Children were doing well with their foster parents. We note,
however, that a parent’s actions can demonstrate a lack of willingness to assume custody
of or financial responsibility for the child. See In re Keilyn O., No. M2017-02386-COA-
R3-PT, 2018 WL 3208151, at *8 (Tenn. Ct. App. June 28, 2018) (finding that a parent had
failed to manifest a willingness to assume custody because, inter alia, she “was
incarcerated and had completed virtually none of her plan responsibilities” by the time of
trial); In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *15 (Tenn.
Ct. App. June 20, 2018) (“Father’s actions, including his continued criminal activity and
his failure to financially support the Child, raise doubt as to Father’s actual willingness to
assume custody or financial responsibility for the Child.”).
Even assuming, arguendo, that Father has demonstrated the willingness to assume
legal and physical custody of the Children, the evidence preponderates in favor of a
determination that Father has failed to manifest the ability to assume legal and physical
custody. Our Supreme Court has recently noted the “nearly identical” language between a
statutory ground applicable to putative fathers and the first prong of the statutory ground
provided in Tennessee Code Annotated § 36-1-113(g)(14). See In re Neveah M., 614
S.W.3d at 677. In holding that § 36-1-113(g)(14) “places a conjunctive obligation on a
parent or guardian to manifest both an ability and willingness to personally assume legal
and physical custody or financial responsibility for the child,” the High Court cited with
approval its earlier discussion in In re Bernard T. of the same statutory language in § 36-
1-113(g)(9)(A)(iv):
Although our discussion of this language was not dispositive of the In
re Bernard T. appeal, this Court affirmed termination of parental rights where
the father had “manifested a commendable willingness to assume legal
custody of all the children” but “conceded that he was unable to support the
children financially and that he could not provide them with a stable
residence.” 319 S.W.3d at 604. We concluded that the father’s “testimony
alone provide[d] clear and convincing evidence that [the father] [did] not
presently have the ability to assume legal and physical custody of any of the
children.” Id. at 604-05.
In re Neveah M., 614 S.W.3d at 677. Therefore, in order to establish this ground for
termination of Father’s parental rights to the Children, DCS was required to prove that
Father had failed to manifest either the willingness or the ability to assume legal and
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physical custody of the Children. See id.3 Due to his continuing criminal activity and
resultant incarceration, as well as his lack of progress concerning stable income, housing,
sobriety, and other requirements before he could regain custody, Father clearly lacked the
ability to assume legal and physical custody of the Children.
As part of this statutory ground, DCS was also required to prove that returning the
Children to Father’s custody would pose a risk of substantial harm to the Children’s
welfare. In re Neveah M., 614 S.W.3d at 674, 677. This Court has previously observed:
The courts have not undertaken to define the circumstances that pose a risk
of substantial harm to a child. These circumstances are not amenable to
precise definition because of the variability of human conduct. However, the
use of the modifier “substantial” indicates two things. First, it connotes a
real hazard or danger that is not minor, trivial, or insignificant. Second, it
indicates that the harm must be more than a theoretical possibility. While
the harm need not be inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more likely than not.
In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *8 (Tenn. Ct. App.
Apr. 4, 2018) (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).
In this case, the trial court found as follows concerning the issue of substantial harm:
[Foster Mother] has provided a safe, stable home for the children for
a year and half. [Ima] was approximately three months old when she first
went to live in the home of [Foster Mother]. Mr. Henson testified that she
and Jacob are thriving in [Foster Mother’s] home. Removing them from this
home would have a harmful effect on them.
The evidence does not preponderate against these findings of fact. This Court has
previously determined that removing a child who has “bonded and thrived” with his current
family and placing a child in the custody of a near-stranger would amount to substantial
harm. See In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *17
(Tenn. Ct. App. July 22, 2020) (determining that the child would be at risk of substantial
psychological harm if custody were restored to the father who had been apart from the
child for five years and was a “virtual stranger”); In re Antonio J., No. M2019-00255-
3
Father asserts that because In re Neveah M. was not decided by our Supreme Court until December 2020,
which was subsequent to the November 2020 trial herein, it cannot be applied in this case. We find Father’s
argument in this regard to be unavailing. In the Neveah opinion, our High Court was interpreting the
language of a statutory ground that had been enacted by our legislature in 2016. In addition, the Supreme
Court in Neveah affirmed an earlier decision of this Court, In re Amynn K., 2018 WL 3058280, at *14,
which had interpreted this statutory ground in the same manner.
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COA-R3-PT, 2019 WL 6312951, at *9 (Tenn. Ct. App. Nov. 25, 2019) (concluding that
placing the children in the mother’s custody would put them at risk of substantial harm
because the children were “very young” when they were removed and had “little to no
contact” with the mother for more than a year).
In the case at bar, removing the Children from their foster parents, who have cared
for them since Ima was three months of age and Jacob was less than two years old, and
placing them in Father’s custody would undoubtedly pose a risk of substantial harm to the
Children. Father is a virtual stranger to the Children and has been incarcerated for a
substantial portion of their lives. By the time of trial, Father had not seen the Children in
person for more than eighteen months. Foster Mother testified that the Children did not
mention Father and did not appear to understand who Father was.
Furthermore, the evidence presented at trial overwhelmingly supports the trial
court’s conclusion that the Children had bonded and thrived with their foster parents.
Foster Mother testified that the Children referred to her and her husband as “Mom” and
“Dad” and that they had also bonded with their foster siblings. Foster Mother stated that
she believed removing the Children from their home would be traumatic for the Children
because it was the only home the Children had ever known or could remember. We agree
with the trial court’s determination that removing the Children from their foster parents’
home would present a risk of substantial harm to the Children’s welfare.
Upon careful review, we conclude that clear and convincing evidence supported the
trial court’s finding that Father had failed to manifest an ability to assume legal and
physical custody of or financial responsibility for the Children and that placing the Children
in Father’s custody would put the Children’s welfare at risk of substantial harm. Ergo, this
statutory ground for termination of Father’s parental rights has been established, and the
trial court’s conclusion is affirmed.
V. 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 838,
877 (Tenn. Ct. App. 2005); see also In re Carrington H., 483 S.W.3d at 523 (“The best
interests analysis is separate from and subsequent to the determination that there is clear
and convincing evidence of grounds for termination.” (quoting In re Angela E., 303 S.W.3d
240, (Tenn. 2010))). Tennessee Code Annotated § 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.”).
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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).
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) in effect
when the petition was filed in the instant action listed the following factors for
consideration:4
(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;
4
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
petition in this case was 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 708,
732 (Tenn. Ct. App. 2017).
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(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for the
child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant
to § 36-5-101.
As our Supreme Court has explained regarding the best interest analysis:
“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d [240,] 254 [(Tenn. 2010)].
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d [533,] 555 [(Tenn. 2015)] (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
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
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statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the
circumstances of a particular child and a particular parent, the consideration
of one factor may very well dictate the outcome of the analysis.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In the instant action, the trial court concluded that the statutory factors weighed
against maintaining Father’s parental rights to the Child. In its final order, the trial court
made extensive factual findings, too lengthy to recount here, concerning each of the above
statutory factors. Following our thorough review of the evidence in this matter, we
conclude that the trial court’s factual findings are supported by a preponderance of the
evidence.
The evidence presented demonstrates that Father has not “made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in the child[ren]’s best
interest” to be in his home. See Tenn. Code Ann. § 36-1-113(i)(1). Father was incarcerated
at the time of trial on new criminal charges and had failed to complete most of the action
steps of his permanency plans, including the requirements that he establish safe and
permanent housing, maintain a legal source of income, demonstrate sobriety, and pay child
support as ordered.
Furthermore, Father did not avail himself of opportunities to improve his situation
during the time that he was not incarcerated. Despite reasonable efforts by DCS to assist
Father with housing, a mental health assessment, random drug screens, and other efforts,
Father failed to make progress toward visitation with the Children during the eight months
that he was free from incarceration. Instead, Father incurred new criminal charges and was
reincarcerated, such that after having lost custody of his Children for a period of eighteen
months, Father was in no better position to resume custody at the time of trial than he had
been at the time of the Children’s removal.
Concerning his contact with the Children, Father had participated in short video
calls with the Children in the months leading up to trial. However, the proof did not
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establish that Father had a meaningful relationship with the Children. Foster Mother stated
that the Children never mentioned Father and never referred to him as “Dad.” The evidence
did demonstrate, however, that the Children were bonded to their foster parents and were
thriving in their care. Foster parents were meeting all of the Children’s physical, emotional,
and medical needs. As such, the proof demonstrated that a change of caretakers and
physical environment was likely to have a detrimental effect on the Children’s emotional,
psychological, and medical conditions.
Although no evidence was presented that Father had ever shown brutality or abuse
toward anyone in his home, there was evidence demonstrating that the home where Father
resided when he was not incarcerated was not healthy or safe due to criminal activity in the
home and the presence of controlled substances or controlled substance analogues. Ima
was exposed to methamphetamines at three months old while residing in the paternal
grandmother’s home, which was the home Father intended to return to after his release.
Inasmuch as Father had never completed a mental health assessment, no evidence
was presented concerning his mental state. Evidence was presented, however, that Father
had failed to pay child support as ordered.
Accordingly, based on the proof presented at trial concerning the best interest
factors, we conclude that the trial court properly determined, by clear and convincing
evidence, that termination of Father’s parental rights was in the Children’s best interest.
We therefore affirm the termination of Father’s parental rights in all respects.
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VI. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment terminating Father’s
parental rights to the Children. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the trial court’s judgment terminating Father’s parental
rights to the Children and collection of costs assessed below. Costs on appeal are assessed
to the appellant, Mark D.
s/ Thomas R. Frierson, II_____________
THOMAS R. FRIERSON, II, JUDGE
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