In Re Meghan M.R.

10/16/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 3, 2020
IN RE MEGHAN M. R.
Appeal from the Juvenile Court for Campbell County
No. 2019JC6 Amanda Sammons, Judge
No. E2020-00023-COA-R3-PT
A trial court terminated the parental rights of a mother based on the grounds of
abandonment by failure to visit, abandonment by failure to provide a suitable home,
substantial noncompliance with permanency plans, persistence of conditions, and failure
to manifest an ability and willingness to assume custody. The mother appealed, and we
affirm the termination on all grounds.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which CARMA DENNIS
MCGEE, and KRISTI M. DAVIS, JJ., joined.
William Wesley Brooks, Tazewell, Tennessee, for the appellant, P. R.
Herbert H. Slatery, III, Attorney General and Reporter, and Stephanie Renee Reevers,
Deputy Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Meghan R. was born to P. R. (“Mother”) and R. F. P. (“Father”) in 2009. In April
2018, when Meghan was nine years old, she was placed into the temporary custody of the
Tennessee Department of Children’s Services (“DCS” or “the Department”) after Mother
was arrested for shoplifting.1 During an interview with a DCS employee shortly after
Mother’s arrest, Meghan reported that her family had been transient for six to seven weeks
and had been living in motels in several different cities in Tennessee and Kentucky.
Meghan did not attend school during this six to seven-week period. Earlier in the year,
1
Father was incarcerated for another offense when Mother was arrested for shoplifting.
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before Mother’s arrest, DCS had received “multiple referrals” alleging substance abuse and
domestic violence in the family’s home.
The Department created family permanency plans on May 3, 2018, December 4,
2018, and May 14, 2019. The plans’ goals were returning Meghan to her parents or, if that
was not feasible, adoption. The Department filed a petition to terminate Mother’s and
Father’s parental rights on January 10, 2019. The grounds DCS asserted against Mother
included abandonment by failure to visit, abandonment by failure to provide a suitable
home, substantial noncompliance with permanency plans, persistent conditions, and failure
to manifest an ability and willingness to assume custody. Father did not contest the
termination of his rights during trial and did not file an appeal. Thus, we will not address
the grounds DCS asserted against Father or the trial court’s termination of Father’s parental
rights.
A trial was held on October 11, 2019. Witnesses included two DCS family service
workers, Mother, and Meghan’s foster mother. Crystal Hill was a family service worker
(“FSW”) from DCS who worked with Mother and Meghan from the time Meghan was
removed from her parents’ custody until August 2018, when Emely Ford took over as the
FSW of the case. Ms. Hill supervised two visits Mother had with Meghan during the four
months Ms. Hill was assigned to the case. A third visit was scheduled, but Ms. Hill testified
that Mother called on July 6, 2018, to cancel that visit. Mother underwent an alcohol and
drug (“A&D”) and mental health assessment while she was incarcerated for shoplifting;
Ms. Hill did not believe Mother followed the recommendations resulting from either of
those assessments. Ms. Hill was not aware of any other requirements of the first
permanency plan that Mother satisfied.2 A recommendation from the A&D assessment was
that Mother enroll in an intensive outpatient therapy program (“IOP”). Although Ms. Hill
remembered providing Mother with a phone number to call about an IOP, she did not think
Mother completed an IOP program.
Emely Ford worked for DCS as an FSW, and she took over the case from Ms. Hill
in early August 2018. Ms. Ford testified that she attempted to visit Mother and Father at
their home in mid-August, but the address Mother gave her was not valid. Ms. Ford spoke
with Father in her attempt to locate Mother, and Father informed Ms. Ford that Mother had
left him and was seeing another man who “sells dope.”
Ms. Ford testified that she held a child and family team meeting (“CFTM”) on
August 23, 2018, and that Mother participated in this meeting by telephone. Ms. Ford
asked Mother where she was living, and Mother told her that “she did not know the address
2
Following her incarceration for shoplifting, Mother lived with a grown daughter for a period of time, but
Ms. Hill testified that this grown daughter had a “history of assaultive behaviors” and her home would not
have been deemed an appropriate home for Meghan.
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and would have to ask the landlord.” Ms. Ford arranged for Mother to have a hair follicle
test done in late August or early September 2018, but Mother did not show up for this test.
Ms. Ford scheduled another CFTM for September 14, 2018. Ms. Ford testified that she
informed Mother about this meeting but that Mother did not participate in the CFTM on
that date.
Ms. Ford testified that she informed Mother that she was entitled to have visits with
Meghan, and Ms. Ford applied for funding to cover Mother’s transportation costs.
According to Ms. Ford, Mother did not have any visits with Meghan or make any attempts
to contact Meghan in the four months before DCS filed its petition to terminate Mother’s
parental rights. Ms. Ford testified that Mother was informed that failing to visit Meghan
could result in the termination of her parental rights. Ms. Ford acknowledged that Mother
spoke with Meghan by telephone on Meghan’s birthday, which was after DCS filed its
petition to terminate Mother’s rights.
Ms. Ford testified about Mother’s requirements under the permanency plans and
stated that she asked Mother multiple times whether she needed help completing any of the
plans’ steps. Ms. Ford asked Mother to come in to the DCS office for a random drug screen
on October 30, 2018, February 4, 2019, and February 25, 2019. Mother refused to come
in for any of these screens. On April 15, 2019, Mother admitted to Ms. Ford that she had
used methamphetamine. Mother came in for drug tests on August 15 and September 10,
2019, and the results of both of these tests were negative for drug use. On September 12,
2019, however, Mother tested positive for benzodiazepenes and oxycodone.3
Ms. Ford testified that she telephoned Mother on October 30, 2018, and asked
Mother to come in to the DCS office to go over the permanency plan. Ms. Ford testified
that Mother said she could not come in and that she was going to be homeless two days
later. Ms. Ford tried to set up a different date to review the permanency plan, but Mother
would not agree to another date. On November 13, 2018, Ms. Ford held another CFTM,
and Mother participated in this meeting by telephone. Mother contacted Ms. Ford on
December 20, 2018, to say she was trying to enroll in parenting classes, but as far as Ms.
Ford was aware, Mother did not complete these classes. Ms. Ford testified that she did not
know of any requirements under the permanency plans that Mother had completed. When
asked what Mother’s “current status” was at the time of trial, Ms. Ford responded:
The last time I had talked with [Mother], she was staying with her mother
and she was working with the Homeless Coalition to try to find housing.
3
Mother’s attorney elicited testimony from Mother that she had undergone a medical procedure shortly
before the drug screen on September 12, 2019, and that the anesthesia used for the procedure may have
explained the positive drug test. No evidence was introduced, however, showing that the medications
Mother may have received in the hospital included benzodiazepenes or oxycodone.
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Neither [Mother nor Father] have income at this time. Transportation is still
an issue.
Ms. Ford testified that Mother contacted her in January 2019 asking for help finding a
domestic violence shelter. Mother told Ms. Ford that she was scared of her boyfriend and
that he “was not nice, was mean to her.” This same boyfriend accompanied Mother to
court on the day of the trial. Ms. Ford stated that as of the time of trial, she did not believe
Mother had addressed her substance abuse issues or made any child support payments.
Ms. Ford described how Meghan was doing in her foster home:
Meghan is doing exceptionally well in her foster home. Meghan has straight
A’s. Meghan is participating in all kind of different sports. When Meghan
first came -- came into custody, she was a very anxious child. That has
subsided. She is a very sassy, outgoing ten year old. Meghan is very bonded
to the foster mother and the foster mother’s family. They’re all one big tight-
knit family and they help each other out.
....
Meghan has told me directly that she wants to be adopted. Meghan has
already picked out her new name that she wants it to be when she’s adopted.
Meghan loves where she’s at. She loves her school. She loves the fact that
she lives in a calm house and that nobody’s fighting, and that was directly
from her.
Ms. Ford testified that Mother had begun visiting with Meghan following the
Department’s filing of the termination petition and that the visits had a negative effect on
Meghan. Ms. Ford explained:
Meghan was anxious after the visits . . . . Her and her foster mother had
decided to be - - eat healthier and they had thrown some junk food in the
trash. And Meghan had got it out of the trash can [following a visit with
Mother] and was going to take it for school lunch. And as soon as she did it,
she went to the foster mom and told her that she was sorry and that she knew
it was not good. And then after the visits [with Mother] stopped again, she
was back to her normal self.
Mother confirmed in her testimony that she did not visit Meghan or write her any
letters in the four months before DCS filed its termination petition. When asked whether
she completed any steps outlined in the permanency plans, Mother responded that she had
an A&D assessment done shortly after Meghan was removed from her custody. She
acknowledged that outpatient therapy had been recommended and that she had failed to
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complete this recommendation. Mother stated that she had another A&D assessment done
in July 2019 and that it was again recommended that she attend “outpatient mental health
counseling.” As of the time of trial, Mother testified that she was receiving regular therapy
for mental health, but not intensive outpatient therapy to address any substance abuse.
When Mother was asked why she had not availed herself of substance abuse treatment, she
responded, “There’s no proof that I’m a drug addict.”
Mother admitted that she failed to provide DCS with proof of housing, proof of
income, or proof of transportation. Mother testified about her employment since the time
Meghan was removed from her custody. She stated that she worked at an amusement park
in Gatlinburg for about a month in or around December 2018 and at a motel in Lenoir City
from the end of April to the beginning of June 2019. Mother acknowledged that she
“picked up criminal charges in Loudon County” for receiving stolen property in June 2019.
The record contains a certified copy of this criminal charge, indicating that Mother was
arrested for “theft of property.”
Mother’s attorney asked Mother to explain to the judge why she should be able to
regain custody of Meghan. Mother replied:
Because I’m getting housing. I’m getting the mental health that I should
have got a long time ago from suffering from PTSD. And that’s improved.
Even my therapist said that I was improving. You could see that there was
improvements since I’ve been coming there. And I’m trying to get my
disability. If that gets denied, I mean, I can go back to work, you know, just
certain things I can’t do due to my back injury. You know, I have
degenerative back disease. But transportation, I mean, I’m in the process of
getting a vehicle. So, I mean, I can use public transportation until then. I
mean, I love her. You know, that’s my daughter.
Meghan’s foster mother testified that she was interested in adopting Meghan. The
foster mother described Meghan’s behavior when Meghan was first placed with her after
entering DCS custody: “She was very quiet, very nervous, scared. She would use the
bathroom on herself. Took food from the fridge when she wasn’t supposed to.” The foster
mother said that after living with her for a year and a half, Meghan was now “completely
different”:
She’s very happy. She doesn’t get anxious about things anymore. She just
kind of goes with the flow. Doesn’t have like that nervous energy about her
anymore. She’s healthier. She’s lost about twenty-five pounds. Just happy
to go to school. Happy to get up. She has friends. Just enjoys her life at
home. . . . Right now she is doing running club, clogging, and school choir.
In the summer she does swimming and in the spring she does softball.
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The foster mother identified a letter addressed to the judge that Meghan had handwritten.
The foster mother explained that she did not direct Meghan to write this letter; Meghan
decided to write it on her own. The letter was introduced into evidence, and it stated, in
pertinent part:
Dear Judge, I am very happy living with [my foster mother]. I want her to
adopt me. I get to do lots of activities I did not get to do before. I feel safe
here and I like my new school. Thank you for reading my letter.
After the close of evidence the trial court announced its decision from the bench
terminating Mother’s rights and followed up its oral ruling with a written order dated
December 6, 2019. The court addressed each ground for termination and concluded that
clear and convincing evidence existed to support the grounds of abandonment by failure to
visit, abandonment by failure to provide a suitable home, substantial noncompliance with
the permanency plans, persistence of conditions, and failure to manifest an ability and
willingness to assume custody of Meghan. The court then conducted a best interest
analysis and concluded the evidence clearly and convincingly showed that it was in
Meghan’s best interest to terminate Mother’s parental rights.
Mother appeals, arguing that the evidence did not clearly and convincingly show
that she willfully failed to visit Meghan in the four months before DCS filed its termination
petition. She also argues that the trial court failed to make sufficient findings of fact and
conclusions of law to support the termination of her rights under the other grounds or to
support its best interest analysis. The Department raises no other issues on appeal.
II. STANDARD OF REVIEW
The Tennessee Supreme Court has described the appellate review of parental
termination cases as follows:
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.
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
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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 507, 523-24 (Tenn. 2016) (citations omitted); see also In
re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).
The termination of a parent’s rights is one of the most serious decisions courts make.
As the United States Supreme Court has said, “[f]ew consequences of judicial action are
so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S. 745, 787
(1982). “Terminating parental rights has the legal effect of reducing the parent to the role
of a complete stranger,” In re W.B., IV, Nos. M2004-00999-COA-R3-PT, M2004-01572-
COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005), and of “severing
forever all legal rights and obligations of the parent or guardian,” Tenn. Code Ann. § 36-
1-113(l)(1).
A parent has a fundamental right, based in both the federal and state constitutions,
to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d 674, 678
(Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995)
(citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right “is among the oldest
of the judicially recognized fundamental liberty interests protected by the Due Process
Clauses of the federal and state constitutions.” In re Carrington H., 483 S.W.3d at 521
(citing U.S. CONST. amend. XIV, § 1; TENN. CONST. art. 1, § 8). While this right is
fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights in
certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d at 250-51. Our
legislature has listed the grounds upon which termination proceedings may be brought. See
Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, and a parent’s
rights may be terminated only where a statutory basis exists. In re Angela E., 303 S.W.3d
at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Jones v. Garrett, 92 S.W.3d
835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).
To terminate parental rights, a court must find by clear and convincing evidence the
existence of at least one of the statutory grounds for termination and that termination is in
the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S., 455 S.W.3d
533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). ‘“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 Carrington H., 483 S.W.3d at 522 (quoting In re Bernard
T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)). “Evidence satisfying the clear
and convincing evidence standard establishes that the truth of the facts asserted is highly
probable.” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). As a reviewing
court, we “must ‘distinguish between the specific facts found by the trial court and the
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combined weight of those facts.”’ In re Keri C., 384 S.W.3d 731, 744 (Tenn. Ct. App.
2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007)). Then, we
must determine “whether the combined weight of the facts . . . clearly and convincingly
establishes all of the elements required to terminate” a parent’s rights. Id. “When it comes
to live, in-court witnesses, appellate courts should afford trial courts considerable deference
when reviewing issues that hinge on the witnesses’ credibility because trial courts are
‘uniquely positioned to observe the demeanor and conduct of witnesses.’” Kelly v. Kelly,
445 S.W.3d 685, 692 (Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn.
2000)).
Once a ground for termination is established by clear and convincing evidence, the
trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303
S.W.3d at 251. “The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for termination.” Id.
at 254. The existence of a ground for termination “does not inexorably lead to the
conclusion that termination of a parent’s rights is in the best interest of the child.” In re
C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June
26, 2006).
III. ANALYSIS
A. Grounds for Termination
1. Abandonment by Failure to Visit
One ground for terminating a parent’s rights is abandonment, as that term is defined
in Tenn. Code Ann. § 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). The Department
alleged that Mother abandoned Meghan by failing to visit her within the four months
preceding the date it filed its termination petition. The Department filed its termination
petition on January 10, 2019. Thus, the relevant four-month period is September 10, 2018,
through January 9, 2019. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL
689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that statutory four-month period
covers four months preceding day termination petition was filed and does not include day
petition was filed).
When DCS filed its petition, “abandonment” was defined, in relevant part, as
follows:
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
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failed to visit or have failed to support or have failed to make reasonable
payments toward the support of the child.
Tenn. Code Ann. § 36-1-102(1)(A)(i). The statute defines the phrase “failed to visit” as:
the failure, for a period of four (4) consecutive months, to visit or engage in
more than token visitation. That the parent had only the means or ability to
make very occasional visits is not a defense to failure to visit if no visits were
made during the relevant four-month period.
Id. § 36-1-102(1)(E).
The statute defining abandonment by failing to visit was amended in 2018, and a
petitioner is no longer required to prove that a parent in a termination proceeding acted
“willfully” in failing to visit her child.4 However, the respondent may assert as an
affirmative defense that her failure to visit or support was not “willful.” Under the current
statute,
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[.]
Id. § 36-1-102(1)(I). Because willfulness is an affirmative defense, the burden of proof is
on Mother to establish that her failure to visit was not willful. See In re Kolton C., No.
E2019-00736-COA-R3-PT, 2019 WL 6341042, at *5 (Tenn. Ct. App. Nov. 26, 2019); In
re Nicholas C., No. E2019-00165-COA-R3-PT, 2019 WL 3074070, at *13 (Tenn. Ct. App.
July 15, 2019).
“Willful conduct consists of acts or failures to act that are intentional or voluntary
rather than accidental or inadvertent.” In re Audrey S., 182 S.W.3d at 863. We have
previously stated that “willfulness” does not “require malevolence or ill will.” Id.
Conduct is “willful” if it is the product of free will rather than coercion. Thus,
a person acts “willfully” if he or she is a free agent, knows what he or she is
doing, and intends to do what he or she is doing.
4
Until July 1, 2018, the petitioner was required to prove that the respondent “ha[s] willfully failed to visit
or ha[s] willfully failed to support or ha[s] willfully failed to make reasonable payments toward the support
of the child.” Tenn. Code Ann. § 36-1-102(1)(A)(i) (2017).
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Failure to visit or support a child is “willful” when a person is aware of his
or her duty to visit or support, has the capacity to do so, makes no attempt to
do so, and has no justifiable excuse for not doing so. Failure to visit or to
support is not excused by another person’s conduct unless the conduct
actually prevents the person with the obligation from performing his or her
duty, or amounts to a significant restraint of or interference with the parent’s
efforts to support or develop a relationship with the child[.]
Id. at 863-64 (citations omitted); see also In re Adoption of Angela E., 402 S.W.3d 636,
640 (Tenn. 2013) (“A parent cannot be said to have abandoned a child when his failure to
visit or support is due to circumstances outside his control.”); In re Kolton C., 2019 WL
6341042, at *5.
The trial court determined that DCS proved this ground by clear and convincing
evidence. The court found that “[Mother] testified that she did not visit the child during
the relevant time period” and that “FSW Ford testified that [during] the four months prior
to the filing of the Petition for Termination of Parental Rights, [Mother] did not visit the
[child]. The mother was not in jail or incapacitated in any way.” Ms. Ford testified that
she attempted to arrange therapeutic visits during this four-month period, but the provider
of these services was unable to reach Mother to schedule the visits.
Mother argues in her appellate brief that the Department failed to show that her
failure to visit was “willful.” As explained above, however, the relevant statute was
amended in 2018 with the result that Mother had the burden of proving at trial that her
failure to visit Meghan was not willful. This she failed to do. The record supports the trial
court’s findings of fact. As a result, we affirm the trial court’s conclusion that DCS
established the ground of abandonment by failure to visit by clear and convincing evidence.
2. Abandonment by Failure to Provide Suitable Home
Abandonment by failing to provide a child with a suitable home is another ground
for terminating a parent’s rights in Tennessee. Tennessee Code Annotated section 36-1-
102(1)(A)(ii) defines this form of abandonment as follows:
(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;
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(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 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[.]
This ground for termination requires DCS to make reasonable efforts to assist the
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). For purposes of this statute, a “suitable
home” requires both a “‘proper physical living location’” and that the home “‘be free of
drugs and domestic violence.’” In re Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App.
2016) (quoting In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at
*9 (Tenn. Ct. App. June 10, 2014)). 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).
It is not solely the Department’s responsibility to establish a suitable home for
Mother; she must make reasonable effort as well. See In re Matthew T., No. M2015-00486-
COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016). When a parent is
aware that her child is in the Department’s custody, the Department’s efforts may be found
to be reasonable if its efforts “equal or exceed the efforts of the parent or guardian toward
the same goal.” Tenn. Code Ann. § 36-1-102(1)(A)(ii)(c); see also In re Matthew T., 2016
WL 1621076, at *7.
When Mother was arrested in April 2018, Father was incarcerated for another
offense and DCS was unable to find another family member to take custody of Meghan.
The juvenile court issued a temporary bench order that day finding that probable cause
existed to believe Meghan was dependent and neglected and ordering Meghan to be placed
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in the temporary custody of DCS because there was “no less drastic alternative to the
removal of the child from the home.” The trial court found that “due to the emergency
nature of the child’s condition or other circumstances, the lack of preventative efforts was
reasonable.” The Department thus established the first two requirements of the termination
ground of abandonment by failure to provide a suitable home. See Tenn. Code Ann. § 36-
1-102(1)(A)(ii)(a), (b).
Ms. Hill was the FSW when Mother was arrested. Ms. Hill testified that Mother’s
“drug issues” prevented Meghan from returning to Mother’s custody. When asked about
the Department’s efforts to assist Mother with providing a suitable home for Meghan, Ms.
Hill responded:
DCS assisted with paying for the parents to have a mental health assessment
and A&D assessment while they were incarcerated through Covenant
Counseling. We - - I also provided the parents with a phone number for
Covenant Counseling to continue the recommendations of those assessments
once they were released from jail.
We have found that a parent’s compliance with counseling recommendations may be
“directly related to the establishment and maintenance of a suitable home” because the
problems and conditions towards which the counseling is focused “address matters which
make the home environment suitable for raising children and which keep them from
becoming dependent and neglected.” In re M.F.O., No. M2008-01322-COA-R3-PT, 2009
WL 1456319, at *5 (Tenn. Ct. App. May 21, 2009).
Ms. Hill stated that Mother was living with a grown daughter in LaFollette during
part of the time Ms. Hill was the FSW but that this daughter “had a history of assaultive
behaviors.” This home, therefore, would not have been a suitable place for Meghan to live.
Ms. Hill testified that DCS did what it could to assist Mother to satisfy the A&D
recommendation of enrolling in an IOP by providing the phone number of an individual
who could enroll Mother in an appropriate program. She stated that Mother’s mental health
assessment resulted in a recommendation for individual therapy. Ms. Hill did not know
whether Mother began individual therapy or not.
Ms. Ford testified that shortly after she took the case over from Ms. Hill in early
August 2018, she tried to complete a home visit. She was unsuccessful, however, because
the address Mother had given her was incorrect. No apartment was located at the address
Mother gave Ms. Ford. Ms. Ford asked Mother for a home address during a CFTM meeting
on August 23, 2018, and Mother responded that she did not know the address but would
ask the landlord. Ms. Ford testified that she did not have regular contact with Mother.
Mother participated in the CFTM on August 23 by phone, and Ms. Ford did not have
contact with Mother again until November 2018.
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The trial court found that Mother testified that she “did not complete anything to
provide a suitable home for the child during the first four months after the child was
removed” and that Mother “never completed the domestic violence classes as required”
under the first permanency plan. Concluding that DCS established the ground of
abandonment by failure to provide a suitable home by clear and convincing evidence, the
court wrote:
The mother did not have a suitable home. FSW Hill testified that [Mother]
did not complete random drug screens when requested by DCS. FSW Crystal
Hill testified that she had to drive [Mother] to and from visits with the child
[during the first few months after Meghan’s removal from Mother’s custody]
because she did not have transportation. Instead of providing a suitable home
for the child, [Mother] got into an abusive relationship . . . . A year after the
removal of the child from the home, [Mother] remains homeless and
continues to have substance abuse issues.
The record supports the trial court’s findings of fact. Despite the Department’s
efforts to provide Mother with services so that she could establish a suitable home for
Meghan, Mother failed to follow through with the recommendations. When DCS tried to
make home visits, Mother either failed to provide the FSW with an accurate address or told
the FSW she did not know her address and would have to ask the landlord. Mother then
failed to provide the FSW with an address so that the FSW could make a home visit.
Providing a suitable home for Meghan was a requirement under each of the
permanency plans, yet when DCS asked Mother what it could do to assist her to meet any
of the permanency plan’s requirements, Mother did not ask for any help with obtaining a
home before the petition to terminate her rights was filed. See Tenn. Code Ann. § 36-1-
102(1)(A)(ii)(c). Mother was unable to point to any efforts she made towards providing
Meghan with a suitable home, and we find that the efforts by DCS exceeded any efforts by
Mother to achieve this goal. See id. Finally, the evidence demonstrated that “it appear[ed]
unlikely that [Mother] [would] be able to provide a suitable home for the child at an early
date.” Id. We conclude that the evidence supports the trial court’s determination that DCS
established each element of the ground of abandonment by failure to provide a suitable
home by clear and convincing evidence.
3. Substantial Noncompliance with Permanency Plans
The termination of parental rights statute identifies substantial noncompliance with
permanency plans as a ground for termination. See Tenn. Code Ann. § 36-1-113(g)(2).
Terminating a parent’s rights for this reason requires the petitioner to show, initially, “that
the requirements of the permanency plan are reasonable and related to remedying the
conditions that caused the child to be removed from the parent’s custody in the first place.”
In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (citing In re Valentine, 79 S.W.3d
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at 547, and In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App. 2003)); see also Tenn. Code
Ann. § 37-2-403(a)(2)(C) (“Substantial noncompliance by the parent with the statement of
responsibilities provides grounds for the termination of parental rights . . .”). If the trial
court fails to make a finding regarding the reasonableness of the parent’s responsibilities
under the permanency plan, the reviewing court must review this issue de novo. See In re
Valentine, 79 S.W.3d at 547.
The petitioner must then demonstrate “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 548-49, and In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL
21266854, at *12 (Tenn. Ct. App. June 3, 2003)). “Substantial” has been defined as
“[i]mportant, essential, and material; of real worth and importance.” BLACK’S LAW
DICTIONARY (11th ed. 2019).
The initial permanency plan, dated May 3, 2018, is not in the appellate record, but
Ms. Hill testified about the requirements of this plan. The plan required Mother to
complete A&D and mental health assessments and to follow the recommendations of each
assessment. Moreover, as Ms. Hill testified, Mother was required to complete the
following:
Random drug screens. And I did call the mom in for a random drug screen
and she failed to show. Maintain stable housing, legal income, stable or
reliable transportation, no further legal activities, parenting classes, attend all
court hearings and follow all court orders, a hundred dollars of child support
each month. Of course, monthly visitation with Meghan and complete
domestic violence classes.
The second and third plans are included in the record. These later plans are dated
December 4, 2018, and May 14, 2019.
The second plan required Mother to complete the following steps: (1) pay child
support of $100 per month; (2) address her substance abuse problems by completing an
A&D assessment and following all recommendations, submitting to random drug screens,
and completing domestic violence classes and following all recommendations; (3) maintain
her mental health by completing a mental health assessment and following all
recommendations; (4) obtain a safe and stable environment free of domestic violence,
drugs, and abuse by acquiring and maintaining stable housing and updating DCS of any
telephone and address changes; (5) have legal income to support Meghan by obtaining
reliable transportation and ensuring Meghan is safe at all times; (6) obtain skills to parent
Meghan properly by attending parenting classes and providing proof of class completion
to DCS; (7) resolve all legal concerns by attending all court dates and hearings and
following court orders and refraining from engaging in any further illegal activities; (8)
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remain current on all child support orders; and (9) maintain a bonded relationship with
Meghan. The third permanency plan included many of the same requirements as the
second plan. In addition, it stated that Mother admitted to using methamphetamine in April
2019 and that she sought help at that time to find a shelter/rehabilitation. It also stated that
Mother alleged she was a victim of domestic violence.
The trial court ratified all three plans and found that the requirements of each plan
were “reasonable, related to remedying the conditions that necessitate[d] foster care, and
in the child’s best interest.” In addressing this ground for termination, the trial court wrote:
The mother completed an alcohol and drug assessment but did not follow the
recommendations. The mother has not addressed her drug abuse at all. The
mother did not complete a mental health assessment and recommendations.
The mother did not have stable housing, transportation, and income. The
mother did not comply with random drug screens. The mother did not remain
in contact with DCS. The mother did not participate in visitation with the
child. The mother did not complete domestic violence classes. The mother
did not complete parenting classes. The mother did not pay child support.
Therefore, the mother was in substantial noncompliance with the
permanency plan.
The record supports these findings. Mother does not contend that she completed any of
the requirements under the plans, and she does not dispute that the steps she was required
to complete under the plans were reasonable and related to the reason Meghan was removed
from her custody. Instead, she argues that the trial court failed to specifically find that the
plan requirements were reasonable and related to conditions that necessitated foster care
placement. However, the trial court made this finding each time it held a permanency
hearing to approve the permanency plans; these hearings took place on June 13, 2018,
December 5, 2018, and May 29, 2019. We affirm the trial court’s determination that the
evidence clearly and convincingly established that Mother was in substantial
noncompliance with the permanency plans.
4. Persistence of Conditions
A parent’s rights may be terminated when the parent fails to remedy the conditions
that caused removal of the child and there is little likelihood that the parent will remedy
those conditions in the near future. See Tenn. Code Ann. § 36-1-113(g)(3)(A). The proof
required to establish this ground for termination is as follows:
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:
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(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.
Tenn. Code Ann. § 36-1-113(g)(3)(A).
The termination statutes recognize that a child needs “a permanent, stable
environment.” In re Eddie F., No. E2016-00547-COA-R3-PT, 2016 WL 7029285, at *7
(Tenn. Ct. App. Dec. 2, 2016) (citing In re K.A.H., No. M1999-02079-COA-R3-CV, 2000
WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000)). The purpose behind the persistence
of conditions ground 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.’” Id. (quoting In re Dakota C.R., 404 S.W.3d 484,
499 (Tenn. Ct. App. 2012)).
Addressing this ground for termination, the trial court wrote:
[T]he Court finds that there is clear and convincing evidence that the
conditions which led to the removal persist to this date. The child was
initially removed from the parents due to homelessness and substance abuse.
Other conditions in the home exist that, in all reasonable probability, would
lead to further neglect or abuse of the child in that [Mother] [has] failed to
address [her] substance abuse and [she] has also demonstrated a lack of
stability. There is little chance that those conditions will be remedied soon
so that the child can be returned safely to the home because, for eighteen
months, DCS made reasonable efforts . . . to help [Mother] remedy them, to
no avail. Continuation of the parent/child relationship greatly diminishes the
child’s chances of being placed into a safe, stable and permanent home.
The evidence shows that Meghan was removed from Mother’s custody by a juvenile court
order finding she was dependent and neglected more than six months before DCS filed the
termination petition, as the statute requires. According to the third permanency plan,
Mother informed Ms. Ford (or someone else from DCS) that she had used
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methamphetamine in April 2019, a year after Meghan was removed from Mother’s
custody, that Mother needed help finding a shelter, and that she was a victim of domestic
violence. On June 9, 2019, Mother was arrested and charged with theft of property. By
the time of trial, Mother was receiving therapy, but she still had not begun to address any
substance abuse issues. Despite receiving three different recommendations for IOP
treatment from three different A&D assessments, Mother refused to acknowledge that she
had a substance abuse problem. At trial Mother stated that she was living with her mother
but that she had plans to move into an apartment. No proof was offered, however, that this
apartment would be suitable for Meghan. Mother testified that she was engaged to the
same man she had previously told Ms. Ford mistreated her and who had caused her to seek
refuge in a domestic violence shelter.
The record does not indicate that Mother has remedied the conditions that caused
Meghan to be removed from her custody or that she is likely to remedy the conditions
anytime soon. At the time of trial, Meghan was happy in the home of a foster mother who
was interested in adopting her. Continuing the mother/child relationship would greatly
diminish Meghan’s opportunity to be integrated into the safe, stable, and permanent home
her foster mother was offering to provide. We agree with the trial court’s determination
that DCS established the persistence of conditions ground of termination by clear and
convincing evidence.
5. Failure to Manifest an Ability and Willingness to Assume Custody
Parental rights may be terminated when the evidence clearly and convincingly
shows the following:
A parent or guardian has failed to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial
responsibility of the child, and placing the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). This ground for termination requires DCS to prove
two elements by clear and convincing evidence:
First, DCS 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[ren].” Tenn. Code Ann. § 36-1-113(g)(14). DCS
must then prove that placing the children in [the parent’s] “legal and physical
custody would pose a risk of substantial harm to the physical or
psychological welfare of the child[ren].” Id.
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In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App.
Apr. 4, 2018). We have addressed the meaning of the phrase “substantial harm” in the
parental termination context as follows:
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.
Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted).
The trial court concluded that DCS proved this ground by clear and convincing
evidence, stating:
[T]he Court finds that there is clear and convincing evidence that [Mother]
has failed to manifest an ability and willingness to assume legal and physical
custody of the child. . . . It has been eighteen months since the child was
placed in DCS custody. [Mother] has failed to demonstrate stability and the
ability to appropriately and safely parent the child during [her] visits with
her. Placing the child in the mother’s legal and physical custody would pose
a risk of substantial harm to the physical or psychological welfare of the
child. She has an unaddressed substance abuse issue and no stable home to
which the child could return.
We agree with the trial court’s assessment that the evidence clearly and convincingly
demonstrated that Mother failed to manifest a willingness and an ability to assume legal
and physical custody of Meghan and that placing her in Mother’s legal and physical
custody would pose a risk of substantial harm to her physical and psychological welfare.
Although Mother testified that she wanted to resume custody of Meghan because she was
her mother and she loved her, the trial court’s findings regarding Mother’s failure to
address her substance abuse, her lack of housing, her lack of income, her failure to maintain
contact with DCS, her failure to visit with Meghan on a regular basis, and her arrest in
Loudon County are all supported by the record by clear and convincing evidence and point
to the contrary. See In re A.V.N., No. E2020-00161-COA-R3-PT, 2020 WL 5496678, at
*11-12 (Tenn. Ct. App. Sept. 10, 2020). The testimony by FSW Ford and Meghan’s foster
mother, and Meghan’s letter to the trial court judge, constitute clear and convincing
evidence that returning Meghan to Mother at this point would pose a risk of substantial
harm to her physical and psychological welfare. We affirm the trial court’s termination of
Mother’s rights on this ground.
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B. Best Interest Analysis
After concluding that clear and convincing evidence existed to terminate Mother’s
parental rights, the trial court conducted a best interest analysis and determined that it was
in Meghan’s best interest for Mother’s rights to be terminated. See Tenn. Code Ann. § 36-
1-113(c)(2); In re Audrey S., 182 S.W.3d at 860. The factors a trial court is to consider in
determining whether terminating a parent’s rights is in a child’s best interests are set forth
in Tenn. Code Ann. § 36-1-113(i). They include the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child's emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult in
the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to § 36-5-
101.
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“Facts relevant to a child’s best interests need only be established by a
preponderance of the evidence, although DCS must establish that the combined weight of
the proven facts amounts to clear and convincing evidence that termination is in the child’s
best interests.” In re Carrington H., 483 S.W.3d at 535 (citing In re Kaliyah S., 455 S.W.3d
at 555). Courts are not to conduct a “rote examination” of the factors set forth in the statute
to determine whether or not the factors add up to favor a parent. In re Audrey S., 182
S.W.3d at 878. Rather, “[t]he relevancy and weight to be given each factor depends on the
unique facts of each case,” and “depending 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.” Id. (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).
The best interests of a child “must be viewed from the child’s, rather than the parent’s,
perspective.” In re Audrey S., 182 S.W.3d at 878. When the best interests of a child
conflict with those of the parent, “such conflict shall always be resolved to favor the rights
and the best interests of the child.” Tenn. Code Ann. § 36-1-101(d).
The trial court addressed each of the best interest factors as follows:
1. It is in the child’s best interest for termination to be granted because
[Mother] [has] not made changes in [her] conduct or circumstances that
would make it safe for the child to go home. [Mother] continue[s] to use
illegal drugs, [has] not maintained consistent visitation with the child, and
has not maintained stable housing.
2. It is in the child’s best interest for termination to be granted because
[Mother] [has] not made lasting changes in [her] lifestyle[] or conduct after
reasonable efforts by the state to help, so that lasting change does not appear
possible. Despite help from the state as described above, [Mother]
continue[s] to use illegal drugs, [has] not recently maintained consistent
visitation with the child and has not maintained stable housing.
3. It is in the child’s best interest for termination to be granted because
[Mother] [has] not maintained regular visitation or other contact with the
child.
4. It is in the child’s best interest for termination to be granted because the
changing[of] caregivers at this stage of her life will have a detrimental effect
on her. She has done well in the foster home. She is loved and is bonded to
the foster parent who wishes to adopt her.
5. It is in the child’s best interest for termination to be granted, because
[Mother] [has] abused or neglected the child.
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[6]. It is in the child’s best interest for termination to be granted because there
is crime in [Mother’s] home. [Mother] [has] continued to incur new criminal
charges.
[7]. It is in the child’s best interest for termination to be granted because
[Mother] abuse[s] drugs, rendering [her] consistently unable to care for the
child in a safe and stable manner.
[8]. It is in the child’s best interest for termination to be granted because
[Mother’s] mental or emotional state would be detrimental to the child and
would prevent [her] from effectively parenting the child.
[9]. It is in the child’s best interest for termination to be granted because
[Mother] [has] shown little or no interest in the welfare of the child.
Mother introduced evidence that, after not seeing Meghan for several months, she
began visiting Meghan again in the spring of 2019 and had three visits between May and
the date of trial on October 11, 2019. Although Mother enjoyed the visits, Meghan’s foster
mother testified that the visits were difficult for Meghan and made her anxious. Ms. Ford
testified that Meghan told her that she did not want to see her parents because she was not
“comfortable.” Ms. Ford explained:
[Meghan] had tried to call them five months in a row and nobody would
answer the phone or they didn’t have time. And [Meghan] said it was easier
to not call than to call them and not get an answer.
We conclude that the trial court’s findings concerning Meghan’s best interest is
supported by the record and that the evidence clearly and convincingly demonstrates that
it is in Meghan’s best interest to terminate Mother’s parental rights. As a result, we affirm
the trial court’s termination of Mother’s parental rights to Meghan.
IV. CONCLUSION
We affirm the trial court’s judgment terminating Mother’s parental rights. Costs of
this appeal shall be taxed to Mother, P.R., for which execution shall issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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