In Re Tristan H.

03/22/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 3, 2022 Session
IN RE TRISTAN H.
Appeal from the Juvenile Court for Sumner County
No. 2018-JV-167 David Howard, Judge
___________________________________
No. M2021-00618-COA-R3-PT
___________________________________
This is an appeal from a termination of parental rights proceeding. As to the mother of the
child at issue, we vacate the trial court’s termination of her parental rights due to procedural
concerns that are acknowledged by the Department of Children’s Services. With respect
to the father of the child, however, we conclude that one ground for termination was
properly established. We further conclude that the evidence clearly and convincingly
shows that the termination of the father’s parental rights is in the child’s best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in
Part; Affirmed in Part; Reversed in Part; and Remanded.
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Bruce N. Oldham, Gallatin, Tennessee, for the appellant, Brenn H.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor
General, and Courtney J. Mohan, Assistant Attorney General, for the appellee, Tennessee
Department of Children’s Services.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
At issue in this case is the child Tristan H.1 (“Tristan”). Tristan is the son of Brenn
H. (“Father”) and Rachel L. (“Mother”). Although the parental rights of both Father and
Mother were terminated by the trial court in the underlying proceedings, our factual
presentation herein is largely tailored to Father for reasons that will be evident in our
1
In termination cases, it is the policy of this Court to redact certain names in order to sufficiently
protect the identities of the children involved.
ensuing discussion.
In March 2018, Tristan’s paternal grandmother (“Grandmother”) filed a petition in
Juvenile Court raising fears she had about Tristan’s safety. In relevant part, Grandmother
averred that Father and Mother “continue to endanger [Tristan] by their daily substance
abuse of alcohol.” Grandmother’s petition also referenced domestic violence concerns,
and she requested that she be given temporary custody of Tristan. Grandmother was
subsequently awarded temporary custody, but in August of that same year, Tristan was
placed in the custody and control of the Department of Children’s Services (“the
Department”). At that time, a Juvenile Court magistrate found that Grandmother was
“unable to protect” Tristan. Tristan subsequently entered the foster care system and was
placed with his current foster home in September 2018.
A number of permanency plans were created following Tristan’s placement in the
Department’s custody, and these plans were in large part similar with respect to the
responsibilities they imposed on Father. Among other things, the plans attempted to
address concerns that existed as to Father’s substance abuse, housing situation, and
financial stability. In January 2020, over a year after the first permanency plan was
developed, the Department filed its termination petition against him and Mother. In the
petition, the Department alleged that Father had “not substantially complied with the
responsibilities and requirements set out for him in the permanency plans” and contended
that the termination ground commonly known as persistence of conditions was applicable,
as well as the termination ground codified at Tennessee Code Annotated section 36-1-
113(g)(14). A trial on the petition took place in April 2021.
The proof at trial highlighted various concerns that existed as to Father’s stability
and ability to provide care for Tristan, including but not limited to concerns that existed
over Father’s alleged use of drugs. The proof also highlighted the positive environment
surrounding Tristan’s foster placement. Tristan, who had entered foster care several
months before his first birthday, was over three years old by the time of trial.
The first witness to testify, Joe Beavers (“Mr. Beavers”), stated that he had been the
Department case manager for this matter since December 2018. Mr. Beavers noted that
although Father had completed an alcohol and drug assessment and recommended alcohol
and drug education, he had subsequently tested positive for methamphetamine.2 More
alcohol and drug education followed, but after another hair follicle test, Father again tested
positive for methamphetamine. Mr. Beavers testified that a second isomer test run at the
lab was able to confirm “100 percent” that it was methamphetamine.3
2
Father also tested positive for amphetamine. Mr. Beavers testified that he was able to confirm
that Father took Adderall (an amphetamine), although he had not actually seen a prescription for it.
3
Father had reportedly previously claimed that he tested positive due to “medication.”
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These results obviously were a source of concern for the Department. Mr. Beavers
tried to get other drug screens of Father, and he testified that there were times when Father
“would not come in.” Mr. Beavers further testified that, on other occasions when Father
did show up, Father “went ahead to the restroom instead of waiting . . . after he agreed to
do the screen, he went ahead and went to the restroom instead of waiting for me.”
The concerns about Father’s drug usage were not allayed by the time of trial, as Mr.
Beavers testified that he still had concerns that Father was using illegal drugs. Mr. Beavers
stated that the Department had funded a hair follicle test in October 2020, noting further
that “[Father] stated that he would go to Workforce Essentials where it’s done, and he did
not go.” Mr. Beavers continued on in his testimony, stating, “We also requested another
in November, and he stated that he would go, and he did not go.” According to Mr.
Beavers, Father did not give an excuse or offer an explanation but had instead responded
with concern as to why Mother did not have to do hair follicle tests.4
Concerning Father’s employment status, Mr. Beavers noted that Father had
represented during a January 2021 Child and Family Team Meeting that he was not
working. Further, he testified that Father did not produce any documents showing that he
had been employed. Although Mr. Beavers stated that he had offered on several occasions
to drive Father around to look for jobs and housing, Father reportedly never took advantage
of that offer. Father had shown Mr. Beavers verification of food stamps, but he reportedly
never provided documentation of alleged unemployment benefits. Mr. Beavers testified
that he had expressed to Father the need to have an income to support himself and Tristan,
and he further noted that Father had “maybe” made one child support payment.
As for Father’s housing situation, Mr. Beavers testified that Father had often stated
throughout the case that he did not have housing. He also testified, however, that Father
had recently represented that he uses Grandmother’s home as housing. Father’s indication
that he lived with his mother caused Mr. Beavers to have concern for Tristan’s safety,
testifying, “It was a removal house and there was some environmental issues in the past
when Tristan was removed. I did go to attempt to visit the home to see if there were any
other safety issues, and he stated that I could not come in the home.” Although Father had
denied access to the home because he said he was “going to be leaving,” Mr. Beavers noted
that the two of them had “stood on the porch and talked for ten minutes.” As Mr. Beavers
later stated, “And I asked him a couple times because we’d been standing on the porch, so
we might as well go in.” Because he was denied access to the home, Mr. Beavers could
not confirm whether there had been any amelioration of the environmental concerns in the
home. Later during the trial, old photos of the home were introduced, depicting a highly
cluttered interior.5
4
Mr. Beavers testified that he never requested hair follicle screens on Mother because he needed
to “know where she was in order to [make the] request.”
5
Although Father claimed during his testimony that the home was different now, he admitted that
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According to Mr. Beavers, Father had not signed a lease or mortgage for a home
outside of Grandmother’s home. He further testified that the Department had made Father
aware that his mother’s home was not appropriate housing on multiple occasions, and the
proof at trial revealed significant concerns connected to the relationship between Father
and Grandmother. For instance, Mr. Beavers testified that Father was arrested in April
2020 on a “gun charge, a domestic violence charge,” with Grandmother being the alleged
victim. As reflected in the affidavit of complaint regarding this incident:
[Officers] seperated [sic] [Grandmother and Father]. Upon investigation . . .
[Grandmother] stated . . . that she was scared that [Father] was going to hurt
her. . . . [Grandmother] stated that [Father] was threatening her with the gun.
She said that he was going to shoot her. Upon talking to [Father] he stated
to me that if he could not get his safe out of the house that it would not end
up good. Officer Hardin went inside and talked to [Grandmother]. Officer
Hardin and myself talked about the situation. Officer Hardin stated to me
that [Grandmother] told him that [Father] [threatened] to shoot up the
Womans Rescue Mission in Nashville where [Father’s] girl[]friend was
staying at. . . . After [Father] was in custody, Officer Hardin searched the bag
that was laying on the porch and found a 44 mag revolver with 4 bullets in
the cylinder. [Father] was charged with a prior domestic in 2017.
Father ultimately pleaded guilty to this domestic assault charge (albeit while later denying
at trial that he had made threats to Grandmother), and as evidenced by his own testimony
discussed infra, law enforcement continued to be entangled in the lives of Father and
Grandmother even through the next year.
Mr. Beavers asserted that the problem in this case was that the Department would
help Father “move forward a step” but that then Father would “take two steps back.” In
addition to concerns about Father’s drug usage, housing situation, and income, Mr. Beavers
reported that Father had not completed any form of domestic violence counseling. He
further testified that Father had not been to therapy since 2018. Mr. Beavers was concerned
that Father was not able to take care of Tristan and expressed fear that Father’s continued
drug problems would put Tristan at risk of harm. Moreover, Mr. Beavers noted that Father
had never moved to unsupervised visitation with Tristan. According to Mr. Beavers,
Tristan has several allergies, and Father had almost given Tristan food that he should not
have on more than one occasion.
Mr. Beavers testified that Tristan was “doing very well” in his foster home and was
bonded with the foster mother, who Tristan calls “mom.” Mr. Beavers additionally noted
that Tristan and another child in the foster home are extremely close, and he expressed
concern that moving Tristan from his foster home would be disruptive.
the Department would not know that the home was satisfactory other than through his word.
-4-
Following Mr. Beavers’ testimony, the trial court heard from Dominique Chandler
(“Mr. Chandler”), an Omni Visions employee who supervised Father’s visitations with
Tristan. Mr. Chandler did not have any major concerns with the visitations that occurred
in this case in terms of the actual interactions between Father and Tristan, but he did note
that “punctuality has been an issue.” Mr. Chandler claimed that Father was not punctual
“[a]rguably every visit,” being “[b]etween 10 and 15 minutes” late. Mr. Chandler also
testified that Father had missed certain visitations, including two in the month before trial.
Next to testify was Tristan’s foster parent, Christina W. (“Foster Mother”). Foster
Mother testified that Tristan came to stay with her when he was nine months old. She
stated that she has two other children and that Tristan is “best friends, best buddies” with
her oldest son. She claimed that Tristan calls her “My mommy or Mommy,” and when
asked if she would be willing to adopt Tristan, Foster Mother indicated that she would.
Although Foster Mother stated that she believed Father and Tristan had a bond, she testified
that she thinks Tristan is young enough to adapt.
For his part, Father acknowledged during his trial testimony that he had periods
during the case when he was unemployed. He also stated, however, that there were periods
where he had employment. Father testified that he previously worked through a temp
services provider, and that in November 2020, he had worked at a “mattress place” before
subsequently quarantining himself after seeing a doctor. When asked if he had ever held a
job for longer than two weeks during this case, Father noted that he had “helped with my
brother.” Although he further claimed that there was another place where he had worked
for at least two weeks, Father acknowledged that he had not provided the Department with
proof of employment. Father testified that he had reapplied for unemployment benefits
“about seven weeks ago, and . . . started getting benefits about five and a half weeks in.”
Father appeared to suggest that his overall situation had changed by the time of trial and
would continue to progress favorably. He testified that he got a car two weeks before trial,
and given the availability of that resource, he agreed, when asked, that he should be given
more time to turn things around.
On the issue of drugs, Father’s testimony indicated that none of the drugs he was
prescribed are classified as methamphetamines. Regarding alcohol use, Father testified
that he last had a drink two months before trial, and although he stated that he had
previously attended Alcoholics Anonymous and got up to step eight on the twelve-step
program, he was no longer attending. As for his living situation and his relationship with
Grandmother, Father acknowledged his guilty plea to a domestic assault charge. He also
testified that Grandmother calls the police more than the average person. He admitted that
law enforcement had been out to the home as recently as the year of trial, and he testified
that Grandmother would ask him to leave her home about once or twice a year. When
asked why his mom requested him to leave, Father replied that it “depends on what kind
of mood she’s in.” Although Father was still living with Grandmother, he claimed that she
was in the process of moving. He also testified that if he “get[s] enough for a place before
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that” he would not be moving with her.
On May 6, 2021, the trial court entered an order terminating the parental rights of
both Mother and Father. As to Father specifically, the trial court found that three grounds
for termination were established, including Father’s failure to manifest a “willingness and
ability to personally assume legal custody and physical custody or financial responsibility
of the child.” See Tenn. Code Ann. § 36-1-113(g)(14). The trial court also concluded that
the termination of Father’s parental rights was in Tristan’s best interests. This appeal
followed.
STANDARD OF REVIEW
“A biological parent’s right to the care and custody of his or her child 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.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App.
2007). “Although this right is fundamental and superior to claims of other persons and the
government, it is not absolute.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007).
“It continues without interruption only as long as a parent has not relinquished it,
abandoned it, or engaged in conduct requiring its limitation or termination.” In re M.J.B.,
140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). In Tennessee, “[w]ell-defined circumstances
exist under which a parent’s rights may be terminated.” In re Roger T., No. W2014-02184-
COA-R3-PT, 2015 WL 1897696, at *6 (Tenn. Ct. App. Apr. 27, 2015). Pursuant to the
Tennessee Code, parties who have standing to seek the termination of a parent’s parental
rights must prove two things. They must first prove at least one of the statutory grounds
for termination. In re J.C.D., 254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-1-
113(c)(1)). Then, they must prove that termination of parental rights is in the child’s best
interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).
Because the decision to terminate a parent’s parental rights has “profound
consequences,” trial courts must apply a higher standard of proof in deciding termination
cases. In re M.L.P., 228 S.W.3d at 143. “To terminate parental rights, a court must
determine that clear and convincing evidence proves not only that statutory grounds exist
but also that termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). “Clear and convincing evidence
is evidence that eliminates any substantial doubt and that produces in the fact-finder’s mind
a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-COA-R3-PT, 2007 WL
2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007). This heightened burden of proof
“minimizes the risk of erroneous decisions.” In re M.L.P., 228 S.W.3d at 143.
Due to the heightened burden of proof required under the statute, we must adapt our
customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005). “First, we must review the trial court’s specific findings of fact de novo in
accordance with Tenn. R. App. P. 13(d).” In re M.J.B., 140 S.W.3d at 654. “Second, we
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must determine whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required to
terminate a biological parent’s parental rights.” Id.DISCUSSION
Although only Father filed a notice of appeal from the trial court’s judgment, this
Court previously had certain concerns connected to Mother and whether or not she had
proper notice of this appeal. We requested supplemental briefing regarding certain of our
concerns in a February 8, 2022 order,6 while also seeking clarification from the trial court
clerk as to whether an affidavit of diligent inquiry under Tennessee Code Annotated section
36-1-117(m)(3) had been filed with the trial court as it related to efforts to serve Mother
with the petition to terminate her parental rights. When the trial court clerk thereafter
submitted an affidavit indicating that no such filing had been made as to Mother, a party
who was served by publication and against whom the case was tried in absentia, we entered
an order requesting supplemental briefing on that issue as well. In relevant part, we
directed briefing on the question of “whether the termination of Mother’s rights should be
vacated due to the absence of an affidavit of diligent inquiry from the trial court record.”
The Department, which is represented by the Office of the Attorney General, has
since submitted supplemental briefing acknowledging that the termination of Mother’s
rights should be vacated due to the absence of an affidavit of diligent inquiry from the trial
court record. In relevant part, the Department concedes that, although the trial court
authorized service on Mother by publication, it did so in a manner that “does not meet the
statutory requirement.” Father’s supplemental briefing echoes the Department’s service
concerns as to Mother, arguing that this Court has “no choice but to vacate the judgment
against the Mother.”
In light of what the record shows on this issue and the Department’s concession
about the matter, we agree that vacating the termination of Mother’s parental rights is the
appropriate course of action. As this Court has stressed before, service of a biological
parent is not a perfunctory act but has constitutional dimensions. In re Z.J.S., No. M2002-
02235-COA-R3-JV, 2003 WL 21266854, at *6 (Tenn. Ct. App. June 3, 2003). Although
service by publication can be permissible, Tennessee law requires, as already alluded to,
that any motion for an order for publication in a termination proceeding “be accompanied
by an affidavit of the petitioners or their legal counsel attesting, in detail, to all efforts to
determine the identity and whereabouts of the parties against whom substituted service is
sought.” Tenn. Code Ann. § 36-1-117(m)(3). Here, there is no dispute that this was not
done. Consistent with the Department’s argument on the issue and acknowledgment of its
6
This Court may in its discretion consider issues other than those that have been presented in order
to, among other reasons, prevent injury to the interests of the public and prevent prejudice to the judicial
process. Tenn. R. App. P. 13(b).
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failure on this matter, we therefore vacate the termination of Mother’s parental rights and
remand for the maintenance of further proceedings as to her that are not inconsistent with
this Opinion.
In our view, our decision to vacate the termination of Mother’s parental rights
mollifies any potential concerns associated with Mother’s awareness, or lack thereof, of
these appellate proceedings. Continuing on to address the substance of Father’s appeal
does not prejudice her, nor does it, of course, prejudice Father, who initiated this appeal in
response to the final judgment entered against him. Accordingly, we now proceed to
address the substance of this appeal as it concerns the termination of Father’s parental
rights.
Although three grounds for termination were found against Father, the Department
concedes on appeal that the record lacks sufficient evidence to support the persistence of
conditions ground for termination codified at Tennessee Code Annotated section 36-1-
113(g)(3). We accordingly reverse the trial court’s reliance on that ground for termination
and turn our attention to the remaining grounds found against Father, both of which the
Department defends on appeal.
Substantial Noncompliance with the Permanency Plan Requirements
Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), 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). In conjunction with terminating a parent’s 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). “The trial court must then find
that the noncompliance is substantial.” Id. Although the termination statute does not
define what conduct constitutes substantial noncompliance, terminating parental rights
under this ground “requires more proof than that a parent has not complied with every jot
and tittle of the permanency plan.” In re M.J.B., 140 S.W.3d at 656. The significance of
the noncompliance “should be measured by both the degree of noncompliance and the
weight assigned to that requirement.” In re Valentine, 79 S.W.3d at 548. “Terms which
are not reasonable and related are irrelevant, and substantial noncompliance with such
terms is irrelevant.” Id. at 548-49. Because determining whether substantial
noncompliance exists is a question of law, we review the issue de novo with no
presumption of correctness. Id. at 548.
Pursuant to Tennessee Code Annotated section 36-1-113(k), the trial court’s order
must contain “specific findings of fact and conclusions of law.” See Tenn. Code Ann. §
36-1-113(k). The requirement for specific findings in termination orders is a highly
significant one and “reflects the Tennessee General Assembly’s recognition of the
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necessity of individualized decisions in these cases.” In re C.R.B., No. M2003-00345-
COA-R3-JV, 2003 WL 22680911, at *3 (Tenn. Ct. App. Nov. 13, 2003). Moreover, it
“reflects the legislature’s understanding that findings of fact and conclusions of law
facilitate appellate review and promote the just and speedy resolution of appeals.” Id.“Meticulous compliance” with the mandates of Tennessee Code Annotated section 36-1-
113(k) is required, In re Maria B.S., No. E2011-01784-COA-R3-PT, 2012 WL 1431244,
at *3 (Tenn. Ct. App. Apr. 25, 2012), and “[w]hen a trial court fails to enter
an order containing adequate findings of fact and conclusions of law with regard to all
alleged grounds for termination, the Tennessee Supreme Court has instructed the appellate
courts to remand the case to the trial court for the preparation of appropriate written
findings of fact and conclusions of law.” In re C.R.B., 2003 WL 22680911, at *4. We
have previously urged judges and litigants to be thorough in the preparation of orders,
particularly when the rights of parents and minor children are involved. In re Jaylah W.,
486 S.W.3d 537, 554 n.18 (Tenn. Ct. App. 2015).
In this matter, there is a technical concern as to whether the trial court applied the
proper standard governing this ground for termination. Whereas the trial court’s order
contains a general conclusory recital at the end of its analysis on this ground that Father is
“in substantial noncompliance,” its preceding analysis raises some questions as to what
standard was actually applied and considered. First, we observe that the court remarked
that continuing “problems” with the case “equate[d] to substantial noncompliance.” It is
unclear how this speaks to the statutory standard. Substantial noncompliance is evaluated
in reference to the “statement of responsibilities in a permanency plan.” Tenn. Code Ann.
§ 36-1-113(g)(2). That “problems” exist with a parent in a given case may be relevant to
any number of issues in a termination proceeding (and even tangentially so to this ground
for termination), but the inquiry under this ground is specifically whether the parent is in
“substantial noncompliance . . . with the statement of responsibilities in a permanency
plan[.]” Id. It is unclear from the trial court’s reference to “problems”—and its equation
of “problems” to substantial noncompliance—whether the court actually conducted the
required analysis. Furthering our concern on this issue is the fact that when the trial court
did specifically reference the responsibilities of the permanency plan, the court noted that
Father had “still not substantially complied” with applicable requirements. This is a
concern, because as we have noted in previous decisions, “[t]he relevant issue is not
Father’s substantial compliance with regard to the permanency plan. Instead, the
appropriate standard is whether there has been ‘substantial noncompliance.’” In re K.W.,
No. M2021-00408-COA-R3-PT, 2021 WL 5783355, at *10 (Tenn. Ct. App. Dec. 7, 2021).
Here, inasmuch as there is uncertainty in light of the included findings as to whether the
trial court actually applied the correct standard under the statute, we vacate this ground for
termination with respect to Father. Given our ultimate disposition herein, however, which
includes an affirmance of the trial court’s termination of Father’s parental rights, we do not
remand for further findings pursuant to the proper standard.
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Failure to Manifest an Ability and Willingness to Personally Assume Custody or Financial
Responsibility of the Child
The remaining ground for termination at issue is codified at Tennessee Code
Annotated section 36-1-113(g)(14). That statute provides that a parent’s rights may be
terminated when he or she
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 the Department
to establish two elements by clear and convincing evidence. In re Maya R., No. E2017-
01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018). The
Department must first “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].’” Id. (quoting Tenn. Code Ann. § 36-1-113(g)(14)). Second, the Department
“must . . . 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. (quoting Tenn. Code Ann. § 36-1-113(g)(14)).
As to the first of the aforementioned prongs, the Tennessee Supreme Court has
recently clarified that the statute “places a conjunctive obligation on a parent . . . to manifest
both an ability and willingness to personally assume legal and physical custody or financial
responsibility for the child.” In re Neveah M., 614 S.W.3d 659, 677 (Tenn. 2020).
Therefore, “[i]f a person seeking to terminate parental rights proves by clear and
convincing proof that a parent or guardian has failed to manifest either ability or
willingness, then the first prong of the statute is satisfied.” Id.In finding that this ground was established, the trial court acknowledged that there
was proof indicating that Father had a willingness for reunification with Tristan.
Nonetheless, the court observed “that this case began in 2018, that termination was filed in
2020, and that even a year after the filing of said termination there have been no significant
changes made.” The court stated that “promises cannot be enough and chances have been
exhausted. Change must occur.” In relevant part, the trial court observed that Father had
“never demonstrated consistent financial capability” and “only asked for more time.”
Further findings were made as to the inappropriateness of Father’s living situation, with
the court noting that this too was something Father was allegedly “working on” but without
a “concentrated effort to relocate.” Reintroducing the child to Father’s home environment,
the court found, “would pose a risk of substantial harm.” The trial court further referenced
the testimony at trial as to how Father “sometimes presented the child with inappropriate
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food.”
Having reviewed the record transmitted to us on appeal, we agree with the trial
court’s conclusion that this ground was sufficiently established. As it specifically relates
to Father’s failure to manifest an ability to assume custody of Tristan, we take stock of,
among other things, all the evidence pointing to drug use by Father and Father’s failure to
establish suitable living quarters for Tristan. We agree with the trial court that Father’s
home situation is particularly problematic and evidences a failure on Father’s part to show
he is capable of assuming custody of Tristan. Although representations were made that
change might be in the air in the future, the fact remains that Father was still living with
Grandmother. As the trial court noted, there was a “continued police presence” at that
home, and Father and Grandmother were previously involved in a domestic violence
incident during the pendency of this custodial episode. Based on this record, Father has
simply not demonstrated an ability to assume custody of Tristan, and we agree with the
trial court that placing Tristan in Father’s custody would pose a risk of substantial harm to
him. Beyond the concerns pertaining to drug use and Father’s home, there is of course the
undisputed fact that Tristan has been in the stability of his current foster family for the
overwhelming majority of his life.
Best Interests
When at least one ground for termination has been properly established against a
parent, as is the case here, we turn our focus to whether termination of the parent’s parental
rights is in the child’s best interests. “Because not all parental conduct is irredeemable,
Tennessee’s termination of parental rights statutes recognize the possibility that
terminating an unfit parent’s parental rights is not always in the child’s best interest.” In
re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013). Accordingly, “[w]hen at least
one ground for termination of parental rights has been established, the petitioner must then
prove, by clear and convincing evidence, that termination of the parent’s rights is in the
child’s best interest.” Id. at 572.
When conducting a best interests analysis, conflicts between the interests of the
parent and child are to be resolved in “favor of the rights and best interest of the child.” Id.at 573 (citing Tenn. Code Ann. § 36-1-101(d)). Importantly, the best interests analysis
“must be viewed from the child’s, rather than the parent’s, perspective.” White v. Moody,
171 S.W.3d 187, 194 (Tenn. Ct. App. 2004). In Tennessee, the General Assembly has
codified a list of nine non-exclusive factors that trial courts are to consider when
conducting a best interests inquiry in termination of parental rights proceedings.7 These
7
Although not pertinent to this case, we observe that the best interest inquiry was recently modified
by statute. See 2021 Tenn. Pub. Acts., ch. 190, § 1; In re Miley D., No. M2020-01416-COA-R3-PT, 2021
WL 2948776, at *5 n.5 (Tenn. Ct. App. July 14, 2021) (noting that the General Assembly listed additional
factors to be considered under an amended version of the best interest statute).
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factors are as follows:
(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.
Tenn. Code Ann. § 36-1-113(i). “Ascertaining a child’s best interests does not call for a
rote examination” of these factors, 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.” In re Audrey S., 182 S.W.3d at 878.
When the trial court considered the best interest factors, it noted that “Father’s
circumstances have . . . generally remained unchanged.” The trial court noted that Father’s
home environment “remained problematic and unstable” and referenced Father’s domestic
violence conviction involving Grandmother. It further noted Father’s “tenuous” financial
situation. Father was, the court observed, “stuck in neutral, with promises to change, but
no lasting efforts to make those changes.” The trial court gave Father credit for
participating in therapeutic visitation with the child, but it noted a number of remaining
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concerns that existed. Beyond the issue of housing, which the court described Father as
having “no solid or definite plan to change,” the court noted, among other things, that there
was no record that Father had completed domestic violence counseling. The court further
observed that concerns over continued substance abuse remained.
Although Father had regularly visited with Tristan, the trial court characterized their
relationship as “limited” given the early age at which Tristan left his care and the fact that
their subsequent visitations were all supervised. The trial court further found that
“removing the child from an environment in which he is thriving would wreck both his
short and long term potential.” Moreover, the trial court cited “continued concerns for the
potential of continued domestic violence” given, among other things, the domestic violence
that had previously taken place between Father and Grandmother. In painting with a broad
brush to summarize the narrative it had gleaned from the proof, the court remarked, “[T]he
only consistency shown by the Father is a lack of consistency.”
We discern no error in the trial court’s weighing of the above considerations and its
ultimate best interests conclusion in light of same. The proof clearly shows, as the trial
court readily acknowledged, that multiple concerns remain as to Father’s ability to serve
as a proper custodian and parent for Tristan. This is so despite the fact that Tristan has
been removed from Father’s care for several years now. Tristan, in fact, has been in Foster
Mother’s care for the majority of his life. He is doing extremely well in that placement
according to the proof, and he deserves permanency and stability as he continues to grow
in his young life. Accordingly, we are of the opinion that there is clear and convincing
evidence to support the conclusion that termination of Father’s rights is in Tristan’s best
interests.
CONCLUSION
The trial court’s termination of Mother’s parental rights is vacated. As to Father,
we reverse the trial court’s reliance on the persistence of conditions ground for termination
given the Department’s concession that the ground was not sufficiently supported. Further,
in light of our discussion herein, we vacate the substantial noncompliance with permanency
plan ground relied upon by the trial court. The trial court’s termination of Father’s parental
rights is otherwise affirmed.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
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