In Re Alessa H.

08/12/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 1, 2022
IN RE ALESSA H.
Appeal from the Chancery Court for Lawrence County
No. 21-19711 Stella L. Hargrove, Chancellor
No. M2021-01403-COA-R3-PT
Following the entry of a default judgment against a mother who failed to answer the
petition to terminate her parental rights, the trial court terminated the mother’s parental
rights to her child on the grounds of (1) abandonment by failure to establish a suitable
home; (2) substantial noncompliance with the permanency plan; (3) persistence of
conditions; and (4) failure to manifest an ability and willingness to personally assume
custody or financial responsibility. The trial court further found that termination of the
mother’s parental rights was in the child’s best interest. The mother moved to set aside
the default judgment. We affirm the trial court’s denial of the motion to set aside the
default judgment. We affirm the trial court’s conclusion that clear and convincing
evidence supports the aforementioned grounds for termination. However, we remand for
the trial court to determine whether the termination of the mother’s parental rights is in
the best interest of the child pursuant to the new statutory factors which became effective
on the date the petition was filed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed in Part, Affirmed in Part; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S, and CARMA DENNIS MCGEE, J., joined.
M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Stephanie H.1
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names to
protect their identities.
Herbert H. Slatery, III, Attorney General & Reporter, Andrée Blumstein, Solicitor
General, and Amber L. Barker, Assistant Attorney General, for the appellee, Tennessee
Department of Children’s Services.
Stacie L. Odeneal, Lawrenceburg, Tennessee, Guardian ad litem.
OPINION
I. BACKGROUND
Alessa H. (“the child”) was born in 2020 to Stephanie H. (“Mother”). There is no
putative or legal father of the child. Mother also has an older child who is not in her
custody.
The proceedings underlying this appeal began when Mother’s cousin filed a
petition in the Juvenile Court for Lawrence County alleging that Mother was homeless
and requesting temporary custody of the child until Mother found a stable home. The
child was temporarily placed in Mother’s cousin’s custody. A guardian ad litem was
appointed to advocate for the child. Following a court-ordered investigation, the child
was ordered into the custody of the Tennessee Department of Children’s Services
(“DCS”) on July 6, 2020. The child has remained in DCS’s custody since that date. By
petition filed July 30, 2020, DCS alleged, among other things, that: the child was
dependent and neglected; Mother was homeless and left the child “for a significant period
of time” with her cousin; Mother lacked the means to care for the child; Mother was
“substantiated in 2017 for drug exposed child and environmental neglect of an older
child;” Mother’s cousin “has an extensive DCS history;” and that the child had a
deformational flat spot on the side of her head. Mother’s cousin subsequently dismissed
her petition. By order entered March 11, 2021, the juvenile court adjudicated the child
dependent and neglected. Mother was represented by counsel who also represents her in
this appeal. Mother stipulated to the juvenile court that she still lacked stable housing
and the proper means to provide for the child, and that she left the child with relatives
who lacked the legal means to care for the child.
In July 2020, Mother and DCS created a permanency plan which was ratified by
the court. Under the plan, Mother’s responsibilities were to: participate in and timely
arrive to therapeutic visits with the child and provide needed items; participate in
parenting education; complete an alcohol and drug assessment and follow any
recommendations; identify positive supports in the community; pass random drug
screens; maintain a means of communication in case of emergency; engage with positive
peers instead of individuals involved in substance abuse, domestic violence, or legal
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issues; take medications only as prescribed and submit to random pill counts; complete a
mental health intake and follow recommendations; maintain and prove a legal source of
income; attend the child’s medical appointments; obtain, maintain, and prove safe and
stable housing; work toward earning a driver’s license or provide a transportation plan;
pay child support; notify DCS of changes in employment, contact information, or
residence; participate in homemaker services, including budgeting; and share information
about any individuals residing in the home so that their backgrounds could be checked.
The permanency plan was twice amended and ratified, but the responsibilities remained
the same. Each plan repeated the permanency goals of return to parent and adoption.
On April 22, 2021, the guardian ad litem petitioned the Chancery Court for
Lawrence County (“trial court”) to terminate Mother’s parental to the child, alleging
several statutory grounds.2 Mother was served the petition by personal service
effectuated the following day, April 23. Because Mother failed to answer, appear, or
otherwise oppose the petition, the guardian ad litem moved for a default judgment on
June 4, 2021. Through Certified Mail, this motion was mailed to Mother at her address
of service and she received it on June 9, 2021. Pursuant to Tennessee Rule of Civil
Procedure 20.01, DCS moved to join the petition for termination of parental rights on
June 14, 2021.
On June 16, 2021, the parties appeared for an annual permanency hearing.3
Mother was represented by counsel. The juvenile court found that Mother was not in
substantial compliance with the then-current permanency plan because she did not have
safe or stable housing, she continued to fail drug screens for unprescribed medication,
and had only recently complied with mental health services.
On June 23, 2021, the trial court held a hearing on the termination petition and all
pending motions. Fourteen minutes before trial, Mother, appearing pro se, filed an
answer to the termination petition. The Clerk and Master’s Office notified the other
parties of Mother’s filing. The trial court granted DCS’s motion to join the action.
Following its questioning of Mother and an unfavorable credibility finding, the trial court
granted the motion for default judgment. The trial proceeded on the termination petition.4
2
Upon proper motion, the trial court struck the termination ground of severe child abuse,
Tennessee Code Annotated section 36-1-113(g)(4).
3
See Tenn. Code Ann. § 37-2-409.
4
“The court may enter a default judgment against any party to the . . . termination proceeding
upon a finding that service of process has been validly made against that party in accordance with the
Tennessee Rules of Civil or Juvenile Procedure and the statutes concerning substituted service; however,
in termination proceedings, proof must be presented as to legal grounds and best interest pursuant to § 36-
1-113.” Tenn. Code Ann. § 36-1-117(n).
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DCS family service worker, Bianca Cathey, and foster parent, Andrea M., testified.5 The
child was then seventeen months old.
By order entered August 30, 2021, the trial court found clear and convincing
evidence of the following grounds for termination of Mother’s parental rights and those
of any putative fathers: (1) abandonment by failure to establish a suitable home; (2)
substantial noncompliance with the permanency plan; (3) persistence of conditions; and
(4) failure to manifest an ability and willingness to personally assume custody or
financial responsibility. The trial court also determined that termination of Mother’s
parental rights was in the child’s best interest.
On September 22, 2021, Mother pro se moved the trial court to reconsider and/or
set aside the default judgment asserting, “this isn’t fair because I didn’t get to participate
and give my side of the story.” She also requested and was appointed counsel. The
guardian ad litem responded to the motion and the trial court heard it on October 1, 2021.
The trial court found that Mother was properly served with the termination petition and
the motion for default. The trial court further credited Mother’s testimony that she did
not read the pleadings underlying the termination proceedings because they were too
upsetting to her. Finding that Mother failed to establish a legal basis to set aside the
default judgment pursuant to Tennessee Rule of Civil Procedure 60.02, the trial court
denied Mother’s motion by order entered October 28, 2021. Mother appealed from that
order.
II. ISSUES
Mother raises two issues on appeal:
A. Whether the trial court erred in granting a default judgment against her.
B. Whether the trial court erred in denying Mother’s motion to set aside the
default judgment.
Mother challenges neither the trial court’s findings on the four statutory grounds
supporting termination of her parental rights nor the trial court’s finding that termination
was in the child’s best interest. Nevertheless, we shall review them. See In re
Carrington H., 483 S.W.3d 507, 525–26 (Tenn. 2016) (holding that “in an appeal from an
order terminating parental rights the Court of Appeals must review the trial court’s
5
The testimony will be discussed in greater detail below as relevant to the issues on appeal.
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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.”).
Accordingly, we consolidate the additional issues on appeal as follows:
C. Whether clear and convincing evidence supports the trial court’s findings of
the statutory grounds for termination.
D. Whether clear and convincing evidence supports the trial court’s findings that
termination of Mother’s parental rights was in the best interest of the child.
III. STANDARD OF REVIEW
“In reviewing a trial court’s decision to grant or deny relief pursuant to Rule
60.02, we give great deference to the trial court.” Henry v. Goins, 104 S.W.3d 475, 479
(Tenn. 2003). “A Rule 60.02 motion for relief from a judgment is within the sound
discretion of the trial court and the court’s ruling on a Rule 60.02 motion may not be
reversed on appeal unless it is determined that the court abused its discretion.” Holiday
v. Shoney’s South, Inc., 42 S.W.3d 90, 92 (Tenn. Ct. App. 2000) (citations omitted); see
also Turner v. Turner, 473 S.W.3d 257, 268 (Tenn. 2015). An abuse of discretion occurs
only when the trial court has “applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the party complaining.”
Henry, 104 S.W.3d at 479 (citations omitted). “The abuse of discretion standard does not
permit an appellate court to merely substitute its judgment for that of the trial court.” Id.Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn.
Ct. App. 1988). This right “is among the oldest of the judicially recognized liberty
interests protected by the Due Process Clauses of the federal and state constitutions.” In
re M.J.B., 140 S.W.3d 643, 652–53 (Tenn. Ct. App. 2004). “Termination of a person’s
rights as a parent is a grave and final decision, irrevocably altering the lives of the parent
and child involved and ‘severing forever all legal rights and obligations’ of the parent.”
Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. §
36-1-113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).
Although parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See In Re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Blair v. Badenhope,
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77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence
of the existence of the grounds for termination. In re Drinnon, 776 S.W.2d at 97. A
parent’s rights may be terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best interest[]
of the child.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). “Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re Audrey S., 182 S.W.3d at 861 (citations omitted). It produces in a fact-
finder’s mind a firm belief or conviction regarding the truth of the facts sought to be
established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83
S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:
An appellate court reviews a trial court’s findings of fact in termination
proceedings using the standard of review in Tenn. R. App. P. 13(d). 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 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.
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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. 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 Carrington H., 483 S.W.3d at 523–24 (citations omitted); see also In re Gabriella
D., 531 S.W. 3d 662, 680 (Tenn. 2017).
Lastly, in the event that the “resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying, is in a far better position than
this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct.
App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). “Thus, this court
gives great weight to the credibility accorded to a particular witness by the trial court.”
In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn.
Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
IV. DISCUSSION6
A.
On appeal, Mother argues that the trial court erred in granting the guardian ad
litem’s motion for default judgment in the first instance. “When a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules and that fact is made to appear by affidavit or otherwise,
judgment by default may be entered” in accordance with Tennessee Rule of Civil
Procedure 55.01. Tenn. R. Civ. P. 55.01. A party “against whom a default judgment is
sought shall be served with a written notice of the application at least five days before the
hearing on the application.” Id. The parties do not dispute that Mother was personally
served with the petition to terminate her parental rights on April 23, 2021, the day after it
was filed in the trial court. Accordingly, Mother had thirty days, until May 24, 2021,7 to
6
We will reference the statutes which were in effect when the guardian ad litem filed the petition
for termination of parental rights on April 22, 2021.
7
Because the thirty-day period expired on a Sunday (May 23, 2021), Mother’s deadline to file an
answer was on the following day. See Tenn. R. Civ. P. 6.01.
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answer the petition. She failed to do so by that date. As a result, the guardian ad litem
moved for a default judgment on June 4, 2021. The parties do not dispute that Mother
was timely served with the notice of the motion for default judgment set to be heard on
June 23, 2021. Mother filed an answer moments before the hearing.
Mother appeared for the June 23 hearing during which the trial court elicited her
testimony as to the circumstances of her delayed response. At first, Mother testified that
she delayed filing an answer to the petition because she “wasn’t sure how to do it.”
Mother explained that she did not complete the tenth grade and that she “can comprehend
certain things but [has] comprehension problems as it is.” Mother affirmed that she
understood the directive on the face of the civil summons to defend the termination
petition within thirty days of service. Mother also testified that her appointed attorney in
the underlying dependency and neglect proceedings advised that she could file an answer
any time before trial. Then, Mother testified that counsel instructed her to bring him the
termination petition because he was unfamiliar with such documents. The trial court
found Mother’s testimony was not credible because the trial court was familiar with that
attorney and knew him to be experienced with and knowledgeable about parental
termination proceedings. The trial court ruled that trial would proceed by default against
Mother. During opening statements, the trial court revisited its ruling and offered Mother
another opportunity to clarify her testimony. The court reminded Mother that she was
under oath and confirmed that she understood the concept of perjury. Mother stated that
she spoke with counsel about the petition to terminate parental rights the same week she
was served, but doubled down on her testimony about the purported advice she received
regarding the timeline in which to file an answer.
The trial court found that Mother’s testimony was incredible in its entirety, that
she failed to timely respond to the petition as required by law, and that Mother was
“disingenuous in her efforts to delay” the proceedings. Upon review, and keeping in
mind the great weight that the trial court’s credibility findings are afforded on appeal,8 we
discern no reversible error in the trial court’s decision to grant the motion for default
judgment pursuant to Rule 55.01.
8
See, e.g., Weatherford v. Weatherford, No. W1999-01014-COA-R3-CV, 2000 WL 1891057, at
*4 (Tenn. Ct. App. Dec. 29, 2000) (“The weight, faith, and credit to be given to any witness’s testimony
lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by
the appellate court.”).
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B.
Mother contends that the trial court erred in denying her motion to set aside the
default judgment pursuant to Tennessee Rule of Civil Procedure 60.02. “For good cause
shown the court may set aside a judgment by default in accordance with Rule 60.02.”
Tenn. R. Civ. P. 55.02. Rule 60.02 specifies the grounds upon which a party may be
granted relief as follows:
On motion and upon such terms as are just, the court may relieve a party or
the party’s legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (3) the
judgment is void; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that a judgment should have
prospective application; or (5) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1) and (2) not more than one year after the judgment,
order or proceeding was entered or taken.
Tenn. R. Civ. P. 60.02. Although courts construe Rule 60.02 “with liberality to afford
relief from a default judgment,” the movant bears the burden of showing “why the
movant was justified in failing to avoid the mistake, inadvertence, surprise or neglect.”
Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 866–67 (Tenn. 1985) (quoting
Tenn. State Bank v. Lay, 609 S.W.2d 525, 527 (Tenn. Ct. App. 1980)).
In determining whether a default judgment should be vacated, Tennessee courts
also must consider, in addition to the justifications provided under Rule 60.02, the
following three criteria: 1) whether the default was willful; 2) whether the defendant has
asserted a meritorious defense; and 3) the amount of prejudice which may result to the
non-defaulting party. Reynolds v. Battles, 108 S.W.3d 249, 251 (Tenn. Ct. App. 2003)
(citing Barbee, 689 S.W.2d at 866). “The first element—willfulness—is a threshold
inquiry when a party seeks relief from a default judgment based on excusable neglect.”
In re Justin A.H., No. M2013-00292-COA-R3-CV, 2014 WL 3058439, at *14 (Tenn. Ct.
App. June 7, 2014) (citing Discover Bank v. Morgan, 363 S.W.3d 479, 493–94 (Tenn.
2012)). “If the court finds that the defaulting party has acted willfully, the judgment
cannot be set aside on ‘excusable neglect’ grounds, and the court need not consider the
other factors.” Discover Bank, 363 S.W.3d at 494. Making “deliberate choices” amounts
to willful conduct. Id. at 493.
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In her motion, Mother requested the trial court to set aside the default judgment
because, in her view, it was unfair that she “didn’t get to participate and give [her] side of
the story” during the termination proceeding. On appeal, Mother argues excusable
neglect based on the fact that she has a ninth-grade education and “did what she knew to
do.” During the hearing on Mother’s Rule 60.02 motion, Mother testified that she
stopped reading the petition to terminate parental rights because the allegations about
substance abuse were upsetting to her. The trial court noted that the first mention of
Mother’s drug use was on page four of the petition. Mother explained that she delayed
filing an answer because she needed help understanding the petition and because counsel
in the underlying dependency and neglect proceeding had advised that she could file the
answer on the day of trial, an assertion previously found incredible by the trial court.
Mother admitted to understanding that she could have requested court-appointed counsel
to represent her in the termination proceedings because she had such in two other
proceedings. She thought she would be able to defend herself.
In its order denying the Rule 60.02 motion, the trial court credited Mother’s
assertions, but did not find credible her reasons to excuse the significant delay in filing an
answer. We affirm this finding. Moreover, the record demonstrates that Mother’s
conduct was willful. By her testimony, she deliberately failed to read the petition to
terminate parental rights in its entirety. With purpose, she consulted prior counsel
regarding the pleadings and then deliberately ignored the pleadings until the morning of
trial, offering no logical explanation for this course of action. Mother also deliberately
chose to represent herself in the termination proceedings. Because the record
demonstrates that Mother’s conduct was willful, we need not examine the other factors to
determine whether she has established excusable neglect. Discover Bank, 363 S.W.3d at
494. Consequently, under these circumstances, we conclude that the trial court did not
abuse its discretion in denying Mother’s motion to set aside the default judgment. We
affirm the trial court’s decision and its finding that Mother did not establish a legal basis
to set aside the judgment by default.
C.
As stated above, the trial court granted the termination petition against Mother
based upon the following statutory grounds: (1) abandonment by failure to establish a
suitable home; (2) substantial noncompliance with the permanency plan; (3) persistence
of conditions; and (4) failure to manifest an ability and willingness to personally assume
custody or financial responsibility. We will discuss each ground in turn.
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Abandonment by Failure to Establish a Suitable Home
A parent may be found to have abandoned his or her child by failing to establish a
suitable home. Tenn. Code Ann. § 36-1-113(g)(1). This ground for the termination of
parental rights is established when:
(a) The child has been removed from the home or the physical or
legal custody of a parent or parents . . . 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 . . . to establish a suitable home for the child, but that the
parent or parents . . . 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 . . . 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 . . . toward the same goal, when the parent . . . is aware that the
child is in the custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii). This ground for termination requires DCS to
make reasonable efforts to assist a parent in obtaining a suitable home. Tenn. Code Ann.
§ 36-1-102(1)(A)(ii)(c); In re Kaliyah S., 455 S.W.3d 533, 555 n.32 (Tenn. 2015).
Although the statute requires DCS to make reasonable efforts toward the establishment of
a suitable home for “a period of four (4) months following the physical removal” of the
children, “the statute does not limit the court’s inquiry to a period of four months
immediately following the removal.” In re Jakob O., No. M2016-00391-COA-R3-PT,
2016 WL 7243674, at *13 (Tenn. Ct. App. Dec. 15, 2016). A suitable home requires
“‘more than a proper physical living location.’” In re Daniel B., No. E2019-01063-COA-
R3-PT, 2020 WL 3955703, at *4 (Tenn. Ct. App. July 10, 2020) (quoting Tenn. Dep’t of
Children’s Servs. v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3
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(Tenn. Ct. App. Nov. 29, 2007)). It requires a “safe and stable environment in which a
child can live and ‘the presence of a care giver who can supply the care and attention a
child needs.’” In re James V., No. M2016-01575-COA-R3-PT, 2017 WL 2365010, at *5
(Tenn. Ct. App. May 31, 2017) (quoting In re Malaki E., No. M2014-01182-COA-R3-
PT, 2015 WL 1384652, at *9 (Tenn. Ct. App. Mar. 23, 2015)) (citation omitted).
Here, the child was ordered by the juvenile court into DCS’s custody on July 6,
2020. The juvenile court found that DCS made reasonable efforts to prevent removal.
DCS subsequently filed a petition alleging that the child was dependent and neglected.
The record shows that DCS made reasonable efforts to assist Mother in establishing a
suitable home for the child. These included developing permanency plans, attempting to
arrange homemaker services, and offering parenting instruction. Ms. Cathey testified that
Mother had been living with a housemate, Mr. R., since July 2020. DCS determined that
Mr. R. had a negative history with DCS. He also had a history of physical abuse and
domestic violence, including a recent conviction for domestic assault. For those reasons,
Mother was instructed that Mr. R. was an inappropriate roommate. Nevertheless, Mother
continued to live with Mr. R. and related to Ms. Cathey that she did not understand why
the child could not return to live in such a situation. The week before trial, Mother
requested that Mr. R. be added to the permanency plan. At trial, it was established that
Mr. R.’s brother and a dog with violent tendencies were also living in the home and that
Mother was financially supporting all of them. Ms. Cathey walked through the home
during the week preceding trial and reported that the living room and bathroom were
clean, but that there were roaches and unsafe flooring elsewhere. At trial, it was also
established that lack of housing was not a new issue for Mother because her oldest child
was removed from her custody in 2017 due to housing instability, environmental neglect,
and drug exposure. By the time of trial, Mother still lacked legal or physical custody of
her oldest child.
In this case, DCS’s efforts to assist Mother exceeded her own efforts to establish a
suitable home. See Tenn. Code Ann. § 36-1-102(1)(A)(ii)(c) (“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[.]”). Ms. Cathey advised Mother that once she
provided DCS with legal proof of the residence (e.g., a lease or rent receipts), DCS could
provide Mother with homemaker services and help her prepare an itemized budget to
ensure she could financially maintain the home in the future. Mother did not provide
proof of housing, so she could not receive these services.
Under the circumstances of this case, we, like the trial court, conclude that Mother
abandoned the child by failing to establish a suitable home for her. This ground was
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proven by clear and convincing evidence and we affirm the trial court’s judgment
terminating Mother’s parental rights on this ground.
Substantial Noncompliance with the Permanency Plan
A court may terminate a parent’s parental rights when the parent is in “substantial
noncompliance . . . with the statement of responsibilities in a permanency plan.” Tenn.
Code Ann. § 36-1-113(g)(2). To terminate parental rights under this ground, the court
“must first find that the plan requirements are reasonable and related to conditions that
necessitate foster care placement.” In re Hannah H., No. E2013-01211-COA-R3-PT,
2014 WL 2587397, at *10 (Tenn. Ct. App. June 10, 2014). “Conditions necessitating
foster care placement may include conditions related both to the child’s removal and to
family reunification.” In re Valentine, 79 S.W.3d at 547. “The trial court must then find
that the noncompliance is substantial.” In re Hannah H., 2014 WL 2587397, at *10
(citation omitted). When determining whether a parent’s noncompliance with a plan was
substantial, the court must do more than “count[] up the tasks in the plan to determine
whether a certain number have been completed.” In re Carrington H., 483 S.W.3d at
537. DCS must show “that the parent’s noncompliance is substantial in light of the
degree of noncompliance and the importance of the particular requirement that has not
been met.” In re M.J.B., 140 S.W.3d at 656 (citing In re Valentine, 79 S.W.3d at 548–59;
In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12 (Tenn. Ct. App.
June 3, 2003)).
In the period that followed the child’s removal, DCS created three permanency
plans, all of which were ratified by the juvenile court. The permanency plans required
Mother to: participate in and timely arrive to therapeutic visits with the child and provide
needed items; participate in parenting education; complete an alcohol and drug
assessment and follow any recommendations; identify positive supports in the
community; pass random drug screens; maintain a means of communication in case of
emergency; engage with positive peers instead of individuals involved in substance
abuse, domestic violence, or legal issues; take medications only as prescribed and submit
to random pill counts; complete a mental health intake and follow recommendations;
maintain and prove a legal source of income; attend the child’s medical appointments;
obtain, maintain, and prove safe and stable housing; work toward earning a driver’s
license or provide a transportation plan; pay child support; notify DCS of changes in
employment, contact information, or residence; participate in homemaker services,
including budgeting; and share information about any individuals residing in the home so
that their backgrounds could be checked.
Here, the trial court reaffirmed the juvenile court’s finding that Mother’s
responsibilities under the parenting plans were reasonable and related to the conditions
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necessitating foster care. For most of the custodial episode, Mother demonstrated little to
no effort to address the permanency plans’ requirements. Ms. Cathey testified that
although Mother consistently participated in therapeutic visitation and paid child support,
she did not consistently comply with the other important requirements. As discussed
above, Mother never remedied her housing situation to where it could be safe for the
child. Ms. Cathey noted that Mother never shared proof of housing or of utilities, which
prevented DCS from providing homemaker services. Further, Ms. Cathey recounted that
although Mother participated in mental health treatment, she missed appointments, did
not receive services for a couple of months, and waited until near the time the termination
petition was filed before consistently attending. Mother completed an alcohol and drug
assessment and intensive outpatient treatment, but unfortunately failed a drug screen for
amphetamines afterward in April 2021. She never provided DCS with documentation of
her sponsor or of a means of communication in case of an emergency, so Ms. Cathey
understandably questioned whether Mother appreciated the importance of sobriety as it
relates to the ability to safely and appropriately parent a young child. In Ms. Cathey’s
view, Mother “participated in parenting education, although there was trouble scheduling
and [she] would fall asleep due to being tired from work during the sessions.” Mother
did not try to earn a driver’s license and conjectured that Mr. R.’s brother could ensure
that the child was taken to medical appointments. She did not otherwise have a
transportation plan. Mother attended only three of the child’s medical appointments at
Vanderbilt9 and none of the local appointments including those related to feeding therapy.
Ms. Cathey explained that, as a result, Mother missed valuable learning opportunities.
She also expressed concern about reuniting the child with a mother who lacked
knowledge about her child’s medical history or required care.
We “determine compliance in light of the permanency plan’s important goals.” In
re Bonnie L., 2015 WL 3661868, at *8. This Court has previously explained:
As we see it, the compliance required with a permanency plan is that which
is necessary to overcome the reasons that children are removed from a
parent and placed in foster care. Regaining custody requires parents to
complete certain tasks and maintain compliance with the plan to the point
that it is appropriate and safe to return the children to them. 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
9
These appointments were related to the child’s skull development and treating the flat spot on
her head.
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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). The evidence does not preponderate against the trial court’s finding that
“[Mother’s] moments of compliance coincide in time with moments of increasing risk to
her role as parent” or its finding that Mother’s noncompliance was substantial. We
affirm the trial court’s determination that the evidence clearly and convincingly
established that Mother was in substantial noncompliance with the permanency plans.
Accordingly, we affirm the trial court’s judgment terminating Mother’s parental rights
based upon this ground.
Persistence of Conditions
“Persistence of conditions” may be established as a ground for termination of
parental rights when:
(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;
(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard[.]
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Tenn. Code Ann. § 36-1-113(g)(3).
Termination of parental rights requires clear and convincing evidence of all three
factors. In re Valentine, 79 S.W.3d at 550. Additionally, the persistence of conditions
ground may only be applied “where the prior court order removing the child from the
parent’s home was based on a judicial finding of dependency, neglect, or abuse.” In re
Audrey S., 182 S.W.3d at 874. The statute does not require that only the original
conditions leading to removal be used to establish grounds for termination. On the
contrary, the statute specifically includes both “[t]he conditions that led to the child’s
removal . . . or other conditions [ ] that, in all reasonable probability, would cause the
child to be subjected to further abuse or neglect[.]” Tenn. Code Ann. § 36-1-
113(g)(3)(A)(i). “A parent’s continued inability to provide fundamental care to a child,
even if not willful, . . . constitutes a condition which prevents the safe return of the child
to the parent’s care.” In re Navada N., 498 S.W.3d at 605 (omission in original) (quoting
In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct. App.
Oct. 13, 2008)). When DCS’s efforts to help “improve the parenting abilities, offered
over a long period of time, have proved ineffective, the conclusion that there is little
likelihood of such improvement as would allow the safe return of the child to the parent
in the near future is justified.” In re T.S., No. M1999-01286-COA-R3-CV, 2000 WL
964775, at *7 (Tenn. Ct. App. July 13, 2000). The purpose behind the “persistence of
conditions” ground for terminating parental rights is “to prevent the child’s lingering in
the uncertain status of foster child if a parent cannot within a reasonable time demonstrate
an ability to provide a safe and caring environment for the child.” In re Dakota C.R., 404
S.W.3d 484, 499 (Tenn. Ct. App. 2012) (citing In re A.R., 2008 WL 4613576, at *20).
Here, the child was removed from Mother by court order and then adjudicated
dependent and neglected more than six months before the termination hearing. See Tenn.
Code Ann. § 36-1-113(g)(3)(A)–(B). The conditions leading to the child’s removal
included Mother’s lack of stable housing and means to provide for her and Mother’s
leaving the child with a relative who also lacked the means to provide for her. In the
eleven months following the child’s removal, Mother did not remedy these conditions.
She continued to live with inappropriate male roommates, one of whom had a history of
domestic violence. About two months before trial, Mother failed a drug screen for
amphetamines. “It is generally without dispute that a home where drugs are being abused
is not safe for a child.” In re Daylan D., No. M2020-01647-COA-R3-PT, 2021 WL
5183087, at *10 (Tenn. Ct. App. Nov. 9, 2021). Additionally, the evidence adduced at
trial revealed that Mother recently lost her job due to poor attendance and failed to report
this to DCS as required. This fact reasonably called into question her ability to provide
for the child’s needs at an early date.
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Following removal, the child underwent extensive medical treatment to correct a
flat spot on her head. Mother missed most of the appointments as well as the child’s
necessary feeding therapy. By contrast, while in foster care, the child was cared for by
someone who was in tune with her needs, so she completed both the medical treatment
and the feeding therapy. Ms. Cathey testified that when the child was dropped off for
visits with Mother, she screamed for the foster parent, a person with whom she has
developed a significant attachment. With the foregoing considerations in mind, and also
considering the length of time the child has been in DCS’s custody, we affirm the trial
court’s finding that “[t]he continuation of the legal parent-child relationship between the
child and [Mother] as it currently exists greatly diminishes the child’s ability to be
integrated into a permanent legal parent/child relationship.” See Tenn. Code Ann. § 36-
1-113(g)(3)(A)(iii).
We have determined that there is clear and convincing evidence sufficient to prove
the ground of persistence of conditions, Tennessee Code Annotated section 36-1-
113(g)(3). Accordingly, we affirm the trial court’s judgment terminating Mother’s
parental rights based upon this ground.
Failure to Manifest an Ability and Willingness to Assume Custody or Financial
Responsibility
Pursuant to Tennessee Code Annotated section 36-1-113(g)(14) parental rights
may be terminated when:
A legal 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)(14). This ground requires the petitioner to prove two
elements by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14);
In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020). First, a petitioner must prove that
the parent failed to manifest an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child. In re Neveah M., 614 S.W.3d at
674. Second, a petitioner must prove that placing the child in the parent’s legal and
physical custody would pose a risk of substantial harm to the physical or psychological
welfare of the child. Id.
As to the first element, our Supreme Court has instructed as follows:
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[S]ection 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. If 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.
Id. at 677 (citation omitted).
As to the second element, whether placing the child in the parent’s custody “would
pose a risk of substantial harm to the physical or psychological welfare of the child,” we
have explained:
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 Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct.
App. Oct. 11, 2018) (quoting Ray, 83 S.W.3d at 732 (footnotes omitted)).
The record before us reveals that, from the child’s infancy, Mother failed to
manifest an ability to care for her. “Ability focuses on the parent’s lifestyle and
circumstances.” In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL 1313237, at
*8 (Tenn. Ct. App. Mar. 22, 2019) (citing In re Maya R., No. E2017-01634-COA-R3-PT,
2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018)). As discussed in our review of
the testimony above, Mother’s lifestyle and circumstances included: sharing a home with
a dog with violent tendencies and with two unemployed men, one of whom was
convicted of domestic assault; her own unemployment at the time of trial; a failure to
maintain sobriety; and a lack of transportation.
The trial court questioned Mother’s willingness to assume legal and physical
custody or financial responsibility of the child finding:
Not only has [Mother] failed to overcome the obstacles that prevent her
from assuming custody or financial responsibility for the child, but she has
largely ignored there are obstacles that exist as she has demonstrated by her
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refusal to obtain proper housing, consistently participate in services, or
even respond to the underlying petition in this matter.
The evidence in the record does not preponderate against this finding.
We also agree with the trial court’s assessment of the evidence regarding the
element of substantial harm:
[T]estimony has established the continued need for the child to be in the
care and custody of safe, appropriate, and attentive caregivers who are able
to articulate and implement measures to meet the child’s needs. It is clear
[Mother] is not that caregiver. Furthermore, the Court finds [Mother] is not
willing to be considered as such, and any hope of [the] same lies with
placement through foster care. The Court finds [DCS] has carried the
burden relative to the second prong and placing the child in the custody of
[Mother] who has not meaningfully participated in services nor has any hint
of stability about her would pose a certain risk of immediate and irreparable
harm to the child.
By the time of trial, the child had been in the foster parent’s care since her infancy
and was bonded to the foster parent. The child was progressing with her medical
treatment. With the foregoing considerations in mind, we believe that the child’s
placement in Mother’s custody would pose a risk of substantial harm to her welfare. We
conclude that DCS proved by clear and convincing evidence that Mother failed to
manifest both an ability and willingness to assume custody or financial responsibility of
the child and that placing her in Mother’s care would pose a risk of substantial harm to
the physical or psychological welfare of the child.
D.
Best Interest of the Child
Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, the trial court was required to consider whether
termination of Mother’s parental rights was in the best interest of the child. See Tenn.
Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860.
Effective April 22, 2021, the General Assembly 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). Thus, “the amended statute applies only
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to petitions for termination filed on or after April 22, 2021.” In re Riley S., No. M2020-
01602-COA-R3-PT, 2022 WL 128482, at *14 n.10 (Tenn. Ct. App. Jan. 14, 2022) perm.
app. denied (Tenn. Mar. 17, 2022). The statute, as amended, provides:
(i)(1) In determining whether termination of parental or guardianship rights
is in the best interest of the child, the court shall consider all relevant and
child-centered factors applicable to the particular case before the court.
Those factors may include, but are not limited to, the following:
(A) The effect a termination of parental rights will have on the child’s
critical need for stability and continuity of placement throughout the child’s
minority;
(B) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological, and medical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting
the child’s basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental
attachment, and if not, whether there is a reasonable expectation that the
parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact
with the child and used the visitation or other contact to cultivate a positive
relationship with the child;
(F) Whether the child is fearful of living in the parent’s home;
(G) Whether the parent, parent’s home, or others in the parent’s household
trigger or exacerbate the child’s experience of trauma or post-traumatic
symptoms;
(H) Whether the child has created a healthy parental attachment with
another person or persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons
other than parents and caregivers, including biological or foster siblings,
and the likely impact of various available outcomes on these relationships
and the child’s access to information about the child’s heritage;
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(J) Whether the parent has demonstrated such a lasting adjustment of
circumstances, conduct, or conditions to make it safe and beneficial for the
child to be in the home of the parent, including consideration of whether
there is criminal activity in the home or by the parent, or the use of alcohol,
controlled substances, or controlled substance analogues which may render
the parent unable to consistently care for the child in a safe and stable
manner;
(K) Whether the parent has taken advantage of available programs,
services, or community resources to assist in making a lasting adjustment of
circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent
in making a lasting adjustment in cases where the child is in the custody of
the department;
(M) Whether the parent has demonstrated a sense of urgency in establishing
paternity of the child, seeking custody of the child, or addressing the
circumstance, conduct, or conditions that made an award of custody unsafe
and not in the child’s best interest;
(N) Whether the parent, or other person residing with or frequenting the
home of the parent, has shown brutality or physical, sexual, emotional, or
psychological abuse or neglect toward the child or any other child or adult;
(O) Whether the parent has ever provided safe and stable care for the child
or any other child;
(P) Whether the parent has demonstrated an understanding of the basic and
specific needs required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to
creating and maintaining a home that meets the child’s basic and specific
needs and in which the child can thrive;
(R) Whether the physical environment of the parent’s home is healthy and
safe for the child;
(S) Whether the parent has consistently provided more than token financial
support for the child; and
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(T) Whether the mental or emotional fitness of the parent would be
detrimental to the child or prevent the parent from consistently and
effectively providing safe and stable care and supervision of the child.
(2) When considering the factors set forth in subdivision (i)(1), the prompt
and permanent placement of the child in a safe environment is presumed to
be in the child’s best interest.
(3) All factors considered by the court to be applicable to a particular case
must be identified and supported by specific findings of fact in the court’s
written order.
(4) Expert testimony is not required to prove or disprove any factor by any
party.
Tenn. Code Ann. § 36-1-113(i).
Here, the guardian ad litem filed the petition to terminate parental rights on the
exact date that the amended statute went into effect. Therefore, the amended statute
applies to this action. In making the best interest determination, the trial court applied the
previous best interest factors. On appeal, the guardian ad litem politely acknowledges
that she mistakenly argued the previous factors at trial. This Court has observed that the
nine old factors “are included in the new version of factors that went into effect in April
2021.” In re Da’Moni J., No. E2021-00477-COA-R3-PT, 2022 WL 214712, at *23
(Tenn. Ct. App. Jan. 25, 2022) perm. app. denied (Tenn. Apr. 1, 2022). However, the
statute as amended adds a number of “additional factors that should be considered, if
relevant.” In re Riley S., 2022 WL 128482, at *14 n.10; see also Dawn Coppock,
Happier Childhoods and Better Best Interest Factors, 57 Tenn. B.J. 24, 26 (July/Aug.
2021) (stating that courts are not “required to make findings for each enumerated factor,
but are directed to identify the factors relevant to the case at bar, including any other
‘child-centered factors’ and to make specific findings of fact regarding only the factors
considered”). Accordingly, we reverse the trial court’s finding that termination of
Mother’s parental rights is in the child’s best interest and remand this case to the trial
court for findings on the applicable, expanded new best interest factors. The trial court’s
findings on the applicable factors will provide an adequate and proper record for our
review of the court’s best interest determination. We recognize that time has marched on
during this litigation, so the trial court may, in its discretion, consider additional evidence
on remand. In light of our holding in section B. above, the proceedings shall continue by
default against Mother.
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V. CONCLUSION
The judgment of the trial court is affirmed in part and reversed in part. The case is
remanded for findings on the applicable best interest factors and such further proceedings
as may be necessary and consistent with this Opinion. Costs of the appeal are taxed to
the appellant, Stephanie H.
_________________________________
JOHN W. McCLARTY, JUDGE
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