In re Jamie G.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 07, 2015 Session

IN RE JAMIE G.

Appeal from the Juvenile Court for Davidson County

No. 169539 Sophia Brown Crawford, Judge

No. M2014-01310-COA-R3-PT – Filed May 29, 2015

In this termination of parental rights case, Mother appeals the trial court‟s findings of

abandonment by willful failure to support and the persistence of conditions as grounds for

termination. Mother also appeals the trial court‟s conclusion that termination was in the

child‟s best interest. Pre-adoptive parents appeal the trial court‟s decision declining to find

the ground of willful failure to visit. We affirm the trial court‟s findings of willful failure to

support and persistent conditions. Further, albeit for different reasons, we affirm the trial

court‟s decision declining to terminate Mother‟s parental rights on the ground of willful

failure to visit. We also affirm the trial court‟s finding that termination is in the child‟s best

interest, and therefore, affirm the termination of the Mother‟s parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.

GOLDIN, J., and KENNY ARMSTRONG, J., joined.

Nicholas Perenich, Jr., Nashville, Tennessee, for the appellant, Heidi G.

Jacqueline B. Dixon, Nashville, Tennessee, for the appellees, Steven C. and Kathryn C.

Cynthia H. Moore, Nashville, Tennessee, Guardian Ad Litem.

OPINION

Background

In November 2007, Jamie G. 1 (“Jamie” or “the child”) was born to Heidi G.

(“Mother”) in Nashville, Tennessee. 2 Jamie was born with several abnormalities or

disabilities, including Tetralogy of Fallot3 and DiGeorge‟s Syndrome.4 After he was born,

Jamie lived with Mother in Davidson County, Tennessee. Mother also had three other

children, all of whom she had custody of at the time of Jamie‟s birth. Mother‟s other

children include Autumn G., Austin G., and Cy G. Both Austin and Cy had some special

needs involving learning and behavioral issues. Although the proceedings concerning

Mother‟s parental rights to Jamie did not begin until January 2013, Mother has a lengthy

history with the Department of Children‟s Services (“DCS”) that dates back to 2008.

On January 11, 2008, DCS filed a Petition for Custody with Request for Emergency

Removal and Request for Child Support in the Davidson County Juvenile Court. The

petition sought to remove the children from the legal custody of Mother. Jamie was two

months old when the petition was filed. DCS‟s petition asserted that Mother had several

untreated mental health issues and became violent against maternal grandmother

(“Grandmother”), whom Mother and the children lived with at the time. The record

indicates that Grandmother contacted DCS indicating that Mother had become “very

destructive and has a tendency to tear the house up when she becomes upset.” As a result of

this petition, the children entered DCS custody.

1

In cases involving minor children, it is the policy of this Court to remove the names of minor children and

other parties in order to protect their identities.

2

The parental rights of Jamie‟s biological father were also terminated by the trial court; however, he did

not appeal. Accordingly, Mother is the sole appellant in this case.

3

Tetralogy of Fallot is defined as:

[A] congenital heart anomaly . . . The primary symptoms in the infant are .

. . difficulty in feeding, failure to gain weight, and poor development. In

older children a typical squatting position and clubbing of the fingers and

toes are evident. A pansystolic murmur is usually heard, and the second

heart sound is faint or absent. . . .

Mosby’s Medical, Nursing, & Allied Health Dictionary 1603 (5th ed. 1998). In the record, the parties refer

to Jamie‟s condition as a “hole in his heart.”

4

DiGeorge‟s Syndrome is defined as “a congenital disorder characterized by severe immunodeficiency

and structural abnormalities, including hypertelorism; notched, low-set ears; small mouth; downward

slanting eyes; cardiovascular defects; and absence of the thymus and parathyroid glands.” Mosby’s

Medical, Nursing, & Allied Health Dictionary 488 (5th ed. 1998). “[H]ypertelorism” means “a

developmental defect characterized by an abnormally wide space between organs or parts.” Id. at 794. A

common type of hypertelorism is “ocular hypertelorism,” which is an abnormally wide space between the

eyes. Id. at 1137.

2

After a hearing on February 20, 2008, before the Juvenile Court of Davidson

County, the juvenile court entered its Agreed Order of Adjudication and Disposition. This

order adjudicated Jamie, along with his siblings, dependent and neglected “because of

[Mother‟s] ongoing mental health issues and her failure to take medication consistently.”

The juvenile court also found that Mother‟s instability led to her inability to provide

sufficient housing for the children and also led to the conflict with Grandmother. The

juvenile court noted that Mother had admittedly used marijuana at the time DCS filed its

petition in January 2008. Ultimately, the juvenile court approved an agreement between

the parties providing that Grandmother would be awarded temporary custody of Jamie and

Autumn. Custody of the other two children, Austin and Cy, was awarded to Catherine P.,

who is their maternal aunt. The court ordered Catherine P. to supervise all of Mother‟s

visitation with the children, which was to occur at Catherine P.‟s house. From a practical

standpoint, it is unclear whether Mother‟s visitation with Jamie at this point only occurred

under Catherine‟s supervision because Jamie resided in Grandmother‟s home with Mother.

The juvenile court‟s order provided that it was the court‟s “standard practice to allow a one

year time frame within which the parent will be given the opportunity to remedy the

conditions that necessitated foster care placement or temporary legal custody being granted

to a relative.” To this end, the court stated that Mother had one year (until January 2009) to

“rehabilitate [her] circumstances.” As discussed in detail infra, although there were a

multitude of proceedings concerning the children over the next several years, after this

order was entered, Jamie was never returned to Mother‟s custody.

Following the entry of the juvenile court‟s order, the juvenile court continued to

monitor whether Mother was making progress. In November 2008, Mother entered Family

Treatment Court, where she tested negatively on drug screens for several months. Mother,

Grandmother, and Jamie continued to live together for nearly two years. Upon additional

review by the juvenile court, the juvenile court entered an order on September 10, 2009,

stating that “[u]sually when a commitment to sobriety is present, other aspects of a client‟s

life fall into place. Unfortunately, that has yet to be the case.” The juvenile court noted that

Mother was still unemployed and lacked her own residence or a plan to pay for her own

residence. The court also found that it was unlikely she would be able to care for the

children without Grandmother‟s assistance and also found that she “does not seize an

active parenting role for her children.”5 The juvenile court afforded Mother sixty days

from the entry of this order to demonstrate to the court that she desired to be the children‟s

primary caregiver.

5

The court noted that Mother did not know where Cy G. attended school and that she did not regularly

attend the doctor‟s appointments for her special needs children.

3

After the expiration of the sixty days, on November 6, 2009, the juvenile court

entered another order reviewing Mother‟s progress and finding that it was not in the

children‟s best interest to be in the custody of Mother. While the court noted that Mother

had made sincere, but unsuccessful, attempts at obtaining employment, the court found that

Mother did not have the “temperament, patience, or consistency” to parent the children,

especially in light of Jamie and Austin G.‟s special needs. 6 Ultimately, this order

terminated Mother‟s involvement with the Family Treatment Court. The court placed legal

custody of three of the children (Austin G., Cy G., and Jamie) with Grandmother,7 but put

no restrictions upon Mother‟s visitation. Finally, the court reminded Mother that she was

“free to file a petition for a return of custody when she sees fit to do so.”

Jamie and his two brothers lived with Grandmother from February 20, 2008, the

date of the initial grant of custody to Grandmother, until she passed away on June 7, 2011.

Shortly before Grandmother passed away, in May 2011, she contacted Kathryn C. and

Steven C. (together, “Appellees”) to give them a power of attorney over Jamie. Kathryn C.

worked for an organization that provided in-home development therapy and other services

to Jamie at Grandmother‟s home. Before Grandmother passed away, she attended a court

appearance where both Mother and Appellees were present. At this time, the court granted

legal custody of Jamie to Appellees.8 Mother made no objection at this time to the transfer

of legal custody to Appellees. Shortly thereafter, on June 7, 2011, Grandmother passed

away.

After Grandmother‟s death, several petitions were filed concerning legal custody of

the four children. Appellees filed a petition for custody of Jamie. The paternal grandparents

filed a petition for custody of Austin G. and Cy G. The maternal grandfather, Richard B.,

(“Grandfather”) filed a petition for custody of all four children. The children‟s Guardian ad

Litem (“GAL”) filed a petition for Catherine P. to have custody of Autumn G. Finally,

Mother filed a petition for a return of custody, citing a material change in circumstances.

On August 2, 2011, the juvenile court held a trial on all of the above petitions. The

juvenile court entered an order on September 2, 2011. The court dismissed Mother‟s

petition based on her failure to prove a material change in circumstances. Moreover, the

court stated that Mother failed to remedy the conditions warranting removal of the children

6

Austin suffered from behavioral issues related to autism.

7

At some point, Mother was convicted of felony child abuse against her daughter, Autumn. The record

indicates that Autumn, at this point, resided with Catherine P., but does not indicate what conduct on

Mother‟s part was the basis for this conviction.

8

After Grandmother‟s death, Austin G. and Cy G. went to live with their paternal grandparents. Autumn G.

remained with Catherine P., Mother‟s sister.

4

originally. At this time, Mother remained unemployed and lacked housing, transportation,

and a driver‟s license. The court also found that Mother had removed herself from

medications used to treat her mental health issues. Additionally, Mother had incurred

domestic assault charges just several months prior to the hearing. Accordingly, the juvenile

court awarded legal custody of Jamie to Appellees; legal custody of Austin G. and Cy G. to

the paternal grandparents; and legal custody of Autumn G. to Catherine P. Mother was

limited to once-per-month visitation with all the children and telephone visitation twice per

week. The court specifically noted:

[I]f she misses the visitation, then the Court may stop

the visitation. If the visits go well and the Mother makes good

progress on her individual issues, the Court will increase her

visitation. Specifically, the Court again advised the Mother she

needs to obtain stable housing, transportation, employment,

alcohol and drug sobriety and mental health stability.

Several months after the court‟s grant of custody to the Appellees, on March 15,

2012, the Appellees filed a request against Mother for child support for Jamie. The court

entered an order requiring Mother to pay child support to the Appellees in the current

amount of $285.00 per month and retroactive support in the amount of $1,995.00, totaling

$328.33 per month. The record indicates that Mother failed to pay support as ordered;

however, Mother did begin paying some support after Appellees filed their petition to

terminate her rights. Ultimately, she made seven payments totaling $989.55 for the period

between March 26, 2013, and June 17, 2013. She also made two payments totaling $168.11

for the period between July 1, 2013 and July 15, 2013.

It appears that the visitation ordered by the court on September 2, 2011, continued

until July 2012, when the Appellees filed a Motion to Suspend and/or Modify Mother‟s

Visitation based on an alleged outburst of Mother at a recent visitation. On September 13,

2012, the juvenile court magistrate entered a written order specifically stating that it was

“not terminating Mother‟s visitation but leaving it in Mother‟s control based on the fact

that continued visitation will only occur once Mother is able to demonstrate compliance

with the directives in the Court‟s Order of September 2, 2011,” wherein the court ordered

Mother to address her issues with employment, transportation, and mental health. The

juvenile court also ordered Mother to obtain a mental health assessment before she could

seek a modification of this order.

On January 28, 2013, Appellees filed a petition to terminate Mother‟s parental

rights on several grounds: abandonment by willful failure to visit, abandonment by willful

failure to support, persistence of conditions, and incompetency. At some point prior to this

filing, Mother had appealed the magistrate‟s September 13, 2012, order purporting to

5

modify her visitation to the juvenile court. Mother had no visitation with Jamie while her

appeal was pending. After a hearing on January 29, 2013, the juvenile court revised its

order and permitted Mother to have visitation with Jamie on two separate dates in February

and March.

The juvenile court held a trial on Appellees‟ termination petition on various dates

between July 15, 2013, and May 18, 2014. Jamie was six years old at the start of trial. As

can be expected, much of the testimony concerned the circumstances surrounding

Mother‟s alleged failure to exercise visitation with Jamie, her alleged failure to financially

support Jamie, and her alleged failure to remedy the conditions that warranted Jamie‟s

removal from her custody initially.

Regarding visitation with Jamie, Mother testified that she was under the impression

that her visitation with Jamie was suspended by the juvenile court magistrate‟s September

13, 2012, order, discussed supra. She also testified that, in response to the purported

suspension of her visitation, she “appealed” the September 13, 2012, order to the juvenile

court judge, who then reinstated visitation by order entered February 20, 2013. Mother also

recounted various times where she had visited with the child while he was in Appellees‟

custody.

Mother also testified that she had been arrested in connection with several episodes

of domestic violence. Sometime in 1998, Mother pleaded guilty to a charge of child abuse.

Mother‟s sister, Catherine P., called the police and alleged that Mother had picked up her

sister‟s child by his neck and threw him across the room. Mother testified that she did not

pick him up by his neck, but she did pick him up “by his overalls, and I sat him. I did not

toss him.” She testified that she pleaded guilty primarily because she wanted out of jail.

For this incident, she was placed on probation for eleven months and twenty-nine days.

Mother‟s testimony also revealed that Mother had been convicted of felony child

abuse and neglect in 2000. Again, Mother alleged that she was “manipulated to plead

guilty,” after prosecutors asserted that she had beaten a three-month-old baby. Mother‟s

testimony as to how this incident occurred is confusing. From what we can discern, she

testified that she was babysitting when the baby was attacked by a puppy. 9 Mother again

9

Mother testified:

And I took the baby and decided that I was going to clean up on my room.

And I took the baby and laid - - I had a daybed. I laid her this way on the

bed (indicating). And I had a little puppy that I had with me. And I put it

up on the bed, and it scratched its face or the baby scratched its face. I do

not exactly know. But I went and told my mother about the baby. She said

all right. I told her I was scared for the child. Because the [baby‟s] mother

(Continued…)

6

pleaded guilty, but denied responsibility. She ultimately served nine months in jail for this

offense.

In addition to her testimony regarding the misdemeanor and felony child abuse

charges, Mother testified that she had been charged several times with domestic violence.

In 1998, Mother was charged with domestic violence against her sister‟s boyfriend. Again,

in 2003, Mother was charged with domestic violence after Grandmother called police

because Mother “got mad and threw [a] plate.” In 2004, Mother was charged with domestic

violence against Grandmother. In 2011, Mother was charged with domestic violence

against her sister at Grandmother‟s house.

Most recently, on July 3, 2013, Mother and her boyfriend, Marcus B., with whom

Mother lives, were both arrested and charged with domestic assault after an incident at

their home. Marcus B. told police that the altercation began over an argument concerning

Mother‟s Facebook page. Mother testified that the incident was largely the result of a

medication she was prescribed for headaches, which caused her to become angry and

combative. Her testimony indicates that she no longer takes this medication. Mother told

the police that she locked Marcus B. out of their house, and he kicked in the door. She then

locked herself in the bathroom, and Marcus B. kicked in that door as well. Marcus B. then

threw Mother on the bed, and she bit him on his thumb and head-butted him. The police

arrested both Mother and Marcus B. Ultimately, the court issued an order prohibiting

Mother and Marcus B. from having contact until the next court hearing on August 15,

2013. Mother‟s testimony regarding her compliance with this order is conflicting. First,

Mother testified that that she and Marcus B. immediately made up and that she moved back

into the house the day following the incident, in direct contravention of the no-contact

order. Mother testified that during this time, Marcus B. taught Mother how to shoot an

AR-15, a semi-automatic firearm. At another point in her testimony, Mother stated that she

moved in with a friend for a time, but then eventually moved back in with Marcus B.

Regardless, Mother testified that she contacted Marcus B. at least twice during the period

(…continued)

would call me and ask me if I would babysit the baby because of - - the

grandmother was mean to the baby. Excuse my French. Called the baby a

“bitch” and a “whore.” But she didn‟t call it once - - that once but she

called it that twice. Also my sister Kathy [sic] said that she had caught her

saying - - that she said, “Yeah. I watch the little - - and she caught herself

calling the baby a bitch again.” And - - but the mother would call me and

whisper in the phone, “Check the baby when she gets there.” And I said,

“Tiffany, I don‟t think that your grandmother is going to do anything to

this baby.” But at this time I‟m like six months pregnant. And Kathy [sic]

went out and got the baby. She brought the baby in. Then the next thing

you know I‟m being questioned . . .

7

in which she was to have no contact with him, explaining that she needed a ride to two

separate visitations. Although it is unclear from the testimony, the no-contact order appears

to have been dissolved at the August 15, 2013, hearing on the couple‟s domestic violence

charges.

Mother also testified as to the allegation that she failed to support Jamie. Mother

testified that although she had sought employment, she was unsuccessful and, therefore,

lacked stable employment at the time of trial. Mother‟s testimony regarding her work

history demonstrates sporadic employment history at several jobs. Sometime during June

and August 2012, Mother worked as a telemarketer for approximately one week and at a

store in the mall for approximately three weeks.

During the pendency of this case, she was employed in several capacities. First, she

testified that she received some income from housecleaning. Mother stated that she earns

“anywhere between $50 to $100” cleaning houses once or twice a week. In contrast,

Marcus B. testified that he was unsure of the precise amount Mother earned from cleaning

houses, stating it was “20 to 30 bucks here and there.” Although Mother earned income

sporadically from housecleaning throughout the relevant four-month period, she testified

that she gave the money to Marcus B. because he paid their rent and provided her

transportation to court appearances and visitations.

Although she testified that she cleaned houses sometimes twice a week, Mother

stated that she only has two regular customers. She said that these customers only request

her services once per month. Mother‟s testimony is unclear as to how many other clients

she cleans for during the week. She testified, however, that she cleaned houses less often so

she would be able to attend visitation with her children. She also stated that it was difficult

to find clients. Mother acknowledged that she was aware of several ways to increase her

customer base, such as advertising on Craigslist and putting signs through her

neighborhood; however, she never did either of those things. On cross-examination,

counsel for Appellees and Mother had the following exchange:

Q. And you clean at least one house a day or maybe two,

couldn‟t you?

A. Yes.

Q. So you could conceivably make $100 a day cleaning

houses, couldn‟t you?

A. I could have, but I didn‟t.

The record is unclear as to when she began cleaning houses and the last time she earned

money cleaning houses.

8

In addition to housecleaning, Mother testified that she also earned money by

working with her boyfriend, Marcus B., who worked at an auto body shop and also

“junked” cars for additional income. Marcus B. said that this money immediately “went

right back into the gas tank” because Marcus B. drove Mother to Manchester, Tennessee,

so she could attend the proceedings involving the removal of her other children. Marcus B.

corroborated Mother‟s testimony as to his payment for her help and testified that this

arrangement continued from about September 2012 until January 2013. Mother was able to

help less when her Father‟s cancer worsened during October 2012. Mother testified that

she was actively searching for employment during the relevant time period by applying for

jobs in her area. Mother testified that she searched for employment by “walking around my

surrounding areas” and turning in applications to various employers, including Burger

King, Auto Zone, Dollar General, Save-A-Lot, Papa John‟s, Kroger, and a dry cleaning

store.

Similarly, Mother testified that someone referred her to a manager at a local Waffle

House restaurant and said that if she would just go by “La Vergne [Waffle House] and let

them know that I did talk to her and could work for her.” Mother testified that she had not

yet turned in an application. Likewise, Mother testified that she had another job lined up at

“A Second Look Consignment” in Smyrna, Tennessee, but her testimony indicates she had

not pursued that opportunity yet. Additionally, Mother‟s records from her mental health

provider, Centerstone Community Mental Health Care Center (“Centerstone”), show that

Mother said she was “let go a[]lot” because her skills were poor, despite having earned a

high school diploma and attending some college.

Mother testified that she has filed for unemployment benefits, but she does not

receive any money from unemployment benefits. In contrast, Mother‟s Centerstone

records indicate that Mother declined to apply for disability benefits. At the same

appointment where Mother indicated her refusal to apply for disability benefits, the

counselor recommended that Mother apply via the internet for a public benefit called

Bridges to Care. Despite the fact that Mother appears to have internet access, 10 the record

does not indicate that Mother ever applied. Still, Mother receives over $497.00 per month

from a resource called Families First for her and three of her children. 11 She testified that

10

Marcus B. indicated to police after his domestic dispute with Mother that the dispute arose over the

online social networking site Facebook.

11

At some point during the trial, DCS returned custody of Austin and Cy to Mother. The two boys had

initially been placed in the custody of their paternal grandparents after being removed from Mother‟s care.

After the paternal grandparents decided they could no longer care for the boys, custody was given to the

biological father in January 2012. At some point, the biological father and the two boys were living in a

pop-up camper without running water or electricity. When DCS received a referral and contacted Mother,

(Continued…)

9

she is currently unemployed, but that she is “pretty busy.” She gets her children ready for

school in the morning and then stays at home during the day until they are finished with

school. During the day, she watches television and cleans the house.

Eventually, after the filing of the termination petition and with the assistance of a

DCS worker, Mother obtained employment at Goodwill as a “clothes grader.” During

training to become a clothes grader, Goodwill paid Mother $7.25 per hour. After Mother‟s

three weeks of training, Goodwill paid her $7.75 per hour. Mother testified that she called

the child support office immediately after being hired by Goodwill, and child support was

garnished from her check. Mother worked at Goodwill from March 3, 2013 until July 2,

2013. Goodwill ultimately terminated Mother‟s employment because she was late several

times.12

Mother testified that she still lacked a driver‟s license and transportation. 13

Generally, Marcus B. supported Mother and paid their rent and bills. Still, Mother testified

that she had obtained stable housing because she and Marcus B. lived in an apartment

together, and both signed the lease. Although Mother‟s testimony was inconsistent at

times, her testimony indicates that she lived with Marcus B. beginning in May 2012 and

that she may have lived with him even while there was an order prohibiting the couple from

contacting each other. Mother contends that she contributed to the couple‟s $1,175

monthly rent at least once in the amount of $50.00. Mother is unable to obtain

government-subsidized housing because of her felony conviction.

(…continued)

she told DCS she was unaware of these conditions. In September 2012, the boys entered foster care. DCS

developed a permanency plan for Mother to regain custody of the boys. Both boys, but especially Austin,

display severe learning and behavioral issues and were in and out of several foster homes. In July 2013, the

boys were returned to Mother for a trial home visit. On October 31, 2013, the boys were returned to

Mother‟s custody. Shortly thereafter, Autumn was returned to Mother‟s custody in January 2014.

12

We note that Mother also asserted that she had been sexually harassed by a co-worker while working at

Goodwill. She testified that a male co-worker followed her into the women‟s restroom one day and made

advances toward her. Mother filed a report against the co-worker, and he was terminated shortly after

management at Goodwill discovered that the incident had been recorded via videotape. According to

Mother, she was very upset after the incident, and she was moved to work in a different Goodwill building.

However, her co-worker‟s mother worked in Mother‟s new building, causing further issues. Although this

occurred before Mother was eventually terminated for being late too many times, it does not appear from

the record that this incident had any impact on Mother‟s termination.

13

Mother testified that she does not currently own a vehicle. She does not have a driver‟s license and has

not since approximately 2000. To obtain her license, Mother testified that she has to take the driving test

and pay a license reinstatement fee. Mother depends on Marcus B. for transportation.

10

Turning to Mother‟s testimony regarding her mental health treatment, Mother

contended that she had been compliant with her mental health therapy sessions and

medications. Mother suffered from mental health issues for years before her children were

removed from her care. Her mental health records indicate that she began treatment at

Centerstone on December 3, 1999. Her most recent cycle of treatment at Centerstone began

on September 28, 2012, shortly after the juvenile court‟s order of September 13, 2012

ordering her to address, inter alia, her mental health issues. Throughout her treatment

there, she has received several diagnoses, including intermittent explosive disorder, major

depressive disorder, cannabis dependent episodic, borderline personality disorder, and

bipolar disorder. Mother‟s Centerstone records indicate that these diagnoses resulted in

Mother suffering from periods of emotional instability, anger, and violent outbursts.

Mother stopped taking certain medications used to treat her mental health while pregnant

with Jamie. It is unclear from the record whether Mother‟s cessation of her medication was

ordered by her medical doctor. Still, Mother admitted that she did not resume taking her

prescribed medication even after Jamie‟s birth. Mother asserts however, that since the

children were removed from her care on February 20, 2008, she has consistently taken her

medication as prescribed and has consistently attended her therapy appointments. She

stated that if she was unable to attend an appointment, she promptly rescheduled.

On cross-examination, counsel for Appellees questioned Mother‟s alleged

compliance with her mental health treatment and medications. Centerstone and its

counselors keep a record of each scheduled appointment, including notes as to what was

achieved at the appointment. Numerous Centerstone records include notes from her

counselors stating that Mother “no-showed” for the appointment or canceled at the last

minute. On one record, a Centerstone representative noted that, “[Mother] claims unique

[circumstances] each time and accepts no responsibility.” Mother testified that many of

these records were simply incorrect. In all, from September 2012 until December 2012,

Mother attended four appointments and canceled or was a no-show for at least seven

appointments.

Mother‟s testimony regarding her compliance with her medication was often

confusing. During September 2012 through December 2012, Mother missed four

medication management appointments. It was at the medication management

appointments that Mother could receive refills on her prescriptions. After the termination

petition was filed in January 2013, Mother‟s attendance at her Centerstone appointments

improved. From January 2013 until October 2013, Mother attended twenty-two

appointments, and canceled or was a no-show for eleven appointments. Mother maintained

at trial that she did not feel as if the medications were working, but testified that she had

consistently been taking them. However, prior to October 2012, Mother testified that, prior

to October 2012, she had been off her medication for approximately ten months. When

Mother testified on July 15, 2013, she said that she had started taking a new medication on

11

April 2, 2013, and that was currently the longest period she had ever been compliant on one

medication. In further contradiction of Mother‟s direct testimony, the record includes as an

exhibit a letter dated January 25, 2013, from Ms. Audra Bush, a DCS case manager, to the

juvenile court wherein Ms. Bush states that Mother had expressed that she did not need all

of the medication prescribed by Centerstone and that Ms. Bush was currently having issues

with Mother‟s compliance at Centerstone.

Ms. Bush also testified at trial. Ms. Bush‟s testimony focused on Mother‟s therapy,

medication, and attempts to secure housing and employment. Ms. Bush testified that DCS

required Mother to obtain a mental health assessment, follow mental health

recommendations, be compliant with her medication management, obtain adequate and

stable housing, and secure a legal means of income.14 Ms. Bush stated that Mother and

Marcus B.‟s home was suitable for an additional child and that she did not doubt Mother‟s

housekeeping abilities. Further, she described Mother‟s attempts at securing employment

as “diligent.” She testified that, although Mother missed several of her mental health

appointments at Centerstone, “she always rescheduled those appointments.” However, on

cross-examination, Ms. Bush admitted that any public assistance Mother received was not

enough to pay her monthly rent. Still, Ms. Bush insisted that Mother‟s home was suitable

for Jamie‟s return, even though she was aware of the recent domestic violence incident

between Mother and Marcus B. She stated that she believed that Mother was compliant

with any anger management requirements set forth by DCS, but she admitted she actually

did not know whether Mother attended anger management and that she has not received

any Centerstone records indicating that she had.

At trial, Appellees, with whom Jamie currently resides, also testified. Appellees

described their time spent with Jamie, how they have bonded with him, and his

development while in their care. Kathryn C. first met Jamie when she worked doing

in-home developmental therapy for First Steps, Inc. (“First Steps”). The therapy typically

included one hour sessions of exercises to address Jamie‟s delays in motor skills and

cognitive development. Kathryn C. provided services at Grandmother‟s home to Jamie

beginning in May 2008 when he was six months old. She provided these services until

November 2010.

Regarding the in-home therapy sessions, Kathryn C. testified that she primarily

worked with Grandmother, and Mother was usually asleep when the sessions began.

Kathryn C. was required to keep notes of all visits in Grandmother‟s home, and she

indicated in her notes that Mother sometimes participated in the sessions. At trial, however,

Kathryn C. testified that Mother “was typically asleep on the couch or out of the room or .

These requirements appear to be connected to a permanency plan entered in connection to DCS‟s removal

14

of Austin and Cy, not Jamie.

12

. . playing on her phone in the kitchen. But my contact was primarily done with

[Grandmother].” 15 Kathryn C. indicated that Mother occasionally showed interest in

Jamie‟s therapy, but “[i]t kind of seemed to depend on when she had to go to court.”

Additionally, Kathryn C. testified that Mother would often yell at others in the home to

“shut up . . . because she was trying to sleep.” Kathryn C. also indicated that she was

concerned regarding the constant smoking in the home because of Jamie‟s heart condition.

She also testified that Mother often would say “That‟s not my responsibility,” when

requested to get the children ready or to change Jamie‟s diaper.

Jamie began to live with Appellees immediately after Grandmother passed away.

Steven C., Kathryn C.‟s husband, testified that Appellees‟ extended family supported the

decision, and Jamie‟s developmental issues had improved since the child had come to live

with them. Steven C. testified that he, Kathryn C., and Jamie shared a close bond.

Appellees and their witnesses generally testified that Mother‟s outbursts often

disrupted visitation while Jamie remained in Appellee‟s custody. At one visitation at a

local McDonald‟s restaurant, Mother became violent with her elderly father who was also

attending the visitation. Her father had recently been diagnosed with Stage IV cancer.

Mother cursed at him, screamed, and shoved him. According to Appellees, Jamie was in

close proximity. Mother also became combative with her sister, Catherine P., at a visitation

when Catherine brought her own children to the visitation. Mother believed Catherine‟s

children would take away from her visitation with Jamie. According to Appellees, Mother

began arguing with her sister, which brought the visitation to an end. These disruptions

often resulted in upsetting Jamie, and he would begin screaming, crying, and banging his

head against things.

Appellees indicated that Mother had a difficult time understanding Jamie during

phone visitation and became impatient with him as he was talking. Appellees testified that

they did not believe that Mother understood what appropriate phone behavior for Jamie

was, given his age and special needs. Appellees and their witnesses also testified that

Mother paid no support or made any provisions of in-kind support for the child prior to the

filing of the termination petition; instead, they testified that they only received child

support payments from Mother when it was garnished from her wages earned at Goodwill,

beginning after the filing of the termination petition.

Appellees also introduced the child‟s school records, which showed that he was

progressing academically. Appellees testified that they have taken the child for evaluations

at Vanderbilt University Medical Center, including speech development and occupational

Kathryn C. testified that the focus of her notes was not to judge the engagement of the parent or child‟s

15

caregiver at therapy, but rather to note the child‟s progress. For this reason, she testified that her notes often

did not include that Mother failed to engage with Jamie‟s therapy.

13

therapy evaluations. According to Appellees, they are involved at the school where Jamie

attends kindergarten and plan on enrolling him in a summer camp with other children.

Testimony from Jamie‟s pediatrician also showed that he has received appropriate

and regular medical attention while in Appellees‟ care. Jamie‟s pediatrician, Dr. Dana

Haselton, testified that the child‟s genetic conditions cause a variety of issues, including

heart issues and delays in speech and hearing development. Eventually, the child will need

surgery to correct some of the issues associated with these disorders. Dr. Haselton testified

that a review of the child‟s medical records shows that he had not been seen regularly by a

doctor prior to living with the Appellees. Dr. Haselton testified that, since she began seeing

Jamie, she has noticed significant improvements in Jamie‟s ability to maintain eye contact,

communicate, and engage with people. According to Dr. Haselton, Mother has never

attended a single appointment with the child, nor has she made any effort to contact Dr.

Haselton‟s office in any way about the child‟s medical conditions. When questioned about

the child‟s health, however, Mother was able to generally testify about the child‟s current

condition and the challenges that might result from his disorders.

After the conclusion of the trial, on June 6, 2014, the juvenile court entered a written

order regarding the termination of Mother‟s parental rights. The juvenile court concluded

that clear and convincing evidence existed as to two grounds for termination: (1)

abandonment by willful failure to support; and (2) persistence of conditions. 16

Additionally, the juvenile court concluded that clear and convincing evidence existed to

support termination of Mother‟s parental rights on the ground of abandonment by willful

failure to visit, but declined to conclude that it was terminating Mother‟s rights on this

ground because it found other grounds existed. The juvenile court also found that it was

in the best interest of Jamie for Mother‟s rights to be terminated. From this order, Mother

now appeals.

Issues

As we perceive it, Mother presents four issues:

1. Whether the juvenile court erred in finding that clear and

convincing evidence existed to prove that Mother willfully

abandoned the child by failing to pay support;

2. Whether the juvenile court erred in finding that clear and

convincing evidence existed to prove the ground of persistence

of conditions; and

16

The trial court declined to find that clear and convincing evidence supported the ground of incompetence.

Neither party raised this ground as an issue on appeal. Accordingly, we do not address it in this Opinion.

14

3. Whether the juvenile court erred in finding that clear and

convincing evidence existed to prove that termination of

Mother‟s parental rights was in the best interest of the child.

Appellees raise an additional issue for appeal:

1. Whether the juvenile court erred in finding that clear and

convincing evidence existed to prove that Mother willfully

abandoned the child by failing to visit.

Standard of Review

Under both the United States and Tennessee Constitutions, a parent has a

fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,

405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996).

Thus, the state may interfere with parental rights only if there is a compelling state interest.

Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)).

Our termination statutes identify “those situations in which the state‟s interest in the

welfare of a child justifies interference with a parent‟s constitutional rights by setting forth

grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434

S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos.

M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn.

Ct. App. Apr. 29, 2005)). A person seeking to terminate parental rights must prove

both the existence of 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 D.L.B., 118 S.W.3d 360,

367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Because of the fundamental nature of the parent‟s rights and the grave consequences

of the termination of those rights, courts require a higher standard of proof in deciding

termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for

termination and the best interest inquiry must be established by clear and convincing

evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and

convincing evidence “establishes that the truth of the facts asserted is highly probable . . .

and eliminates any serious or substantial doubt about the correctness of the conclusions

drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such

evidence “produces in a fact-finder‟s mind a firm belief or conviction regarding the truth of

the facts sought to be established.” Id.

In light of the heightened standard of proof in termination of parental rights cases, a

reviewing court must modify the customary standard of review as set forth in Tennessee

Rule of Appellate Procedure 13(d). As to the juvenile court‟s findings of fact, our review is

de novo with a presumption of correctness unless the evidence preponderates otherwise.

15

Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the juvenile

court or as supported by the preponderance of the evidence, clearly and convincingly

establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d

835, 838 (Tenn. 2002). When the resolution of an issue in a case depends upon the

truthfulness of witnesses, the trial judge, who has had the opportunity to observe the

witnesses and their manner and demeanor while testifying, is in a far better position than

this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415

(Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The

weight, faith, and credit to be given to any witness's testimony lies in the first instance with

the trier of fact, and the credibility accorded will be given great weight by the appellate

court. Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

Grounds for Termination

In their petition to terminate Mother‟s parental rights to Jamie, Appellees alleged

three related, but distinct, grounds for termination of Mother‟s parental rights:

abandonment by willful failure to visit, abandonment by willful failure to support, 17 and

the persistence of conditions. We address each in turn.

Abandonment Generally

Appellees first alleged abandonment by willful failure to visit and abandonment by

willful failure to support pursuant to Tennessee Code Annotated Section 36-1-113(g)(1)

and Tennessee Code Annotated Section 36-1-102(1)(A)(i) respectively. In pertinent part,

Tennessee Code Annotated Section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights

may be based upon any of the grounds listed in this subsection

(g). The following grounds are cumulative and non-exclusive,

so that listing conditions, acts or omissions in one ground does

not prevent them from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in §

36-1-102, has occurred; . . . .

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines

“abandonment,” in relevant part as follows:

17

The parental duty of support is separate and distinct from the parental duty of visitation. In re Audrey S.,

182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).

16

(1)(A) For purposes of terminating the parental or guardian

rights of a parent or parents or a guardian or guardians of a

child to that child in order to make that child available for

adoption, “abandonment” means that:

(i) For a period of four (4) consecutive months immediately

preceding the filing of a proceeding or pleading to terminate

the parental rights of the a [sic] parent or parents or a 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 a guardian or guardians either have willfully failed

to visit or have willfully failed to support or have willfully

failed to make reasonable payments toward the support of the

child; . . . .

Tenn. Code Ann. § 36-1-102(1)(A)(i).

The statutory definition of “abandonment” requires us to focus on the “period of

four (4) consecutive months immediately preceding the filing of a proceeding or pleading

to terminate the parental rights[.]” Tenn. Code Ann. § 36-1-102(1)(A)(i). In the present

case, the four-month period for purposes of establishing abandonment by failure to visit

and support is September 27, 2012, until January 27, 2013, the day before the petition was

filed.

In order for a court to terminate a parent‟s parental rights on the ground of

abandonment, that abandonment must be willful. In In re Audrey S., 182 S.W.3d 838

(Tenn. Ct. App. 2005), this Court discussed willfulness in the context of termination of

parental rights cases:

The concept of “willfulness” is at the core of the

statutory definition of abandonment. A parent cannot be found

to have abandoned a child under Tenn. Code Ann. §

36-1-102(1)(A)(i) unless the parent has either “willfully”

failed to visit or “willfully” failed to support the child for a

period of four consecutive months . . . . In the statutes

governing the termination of parental rights, “willfulness”

does not require the same standard of culpability as is required

by the penal code. Nor does it require malevolence or ill will.

Willful conduct consists of acts or failures to act that are

intentional or voluntary rather than accidental or inadvertent.

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

17

agent, knows what he or she is doing, and intends to do what he

or she is doing . . . .

* * *

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. In re M.J.B., 140 S.W.3d at

654; see also Shorter v. Reeves, 72 Ark.App. 71, 32 S.W.3d

758, 760 (2000); In re B.S.R., 965 S.W.2d 444, 449 (Mo. Ct.

App. 1998); In re Estate of Teaschenko, 393 Pa.Super. 355,

574 A.2d 649, 652 (1990); In re Adoption of C.C.T., 640 P.2d

73, 76 (Wyo. 1982). . . .

The willfulness of particular conduct depends upon the

actor‟s intent. Intent is seldom capable of direct proof, and

triers-of-fact lack the ability to peer into a person‟s mind to

assess intentions or motivations. Accordingly, triers-of-fact

must infer intent from the circumstantial evidence, including a

person‟s actions or conduct.

In re Audrey S., 182 S.W.3d at 863–64 (internal citations and footnotes omitted).

In determining whether a parent‟s conduct was willful, it may become necessary in

a given case to evaluate events occurring prior to the start of the four-month period. Thus,

events occurring prior to the four-month period may bear on the willfulness of the parent‟s

conduct during the four-month period. See In re Alex B.T., No.

W2011-00511-COA-R3-PT, 2011 WL 5549757, at *6 (Tenn. Ct. App. Nov. 15, 2011)

(“Courts often consider events that occurred prior to the relevant period to determine if

there was interference with the biological parent‟s attempts to visit or support the

child[.]”); see also In re Keri C., No. E2010-00381-COA-R3-PT, 2010 WL 4739706, at

*16 (Tenn. Ct. App. Nov. 22, 2010) (explaining that the parent‟s conduct prior to the

four-month period is “relevant background and context for the necessarily fact-intensive

evaluation” of the parent‟s conduct during the four-month period).

“Whether a parent failed to visit or support a child is a question of fact. Whether a

parent‟s failure to visit or support constitutes willful abandonment, however, is a question

of law.” In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H.,

215 S.W.3d at 810). As previously discussed, this Court reviews questions of law de novo

with no presumption of correctness. Id.

18

Abandonment by Willful Failure to Support

We begin with the termination of Mother‟s rights based on the juvenile court‟s

conclusion that Mother abandoned Jamie by her willful failure to support him during the

relevant four months preceding the termination petition. For purposes of this subdivision of

abandonment, “willfully failed to support” or “willfully failed to make reasonable

payments toward such child‟s support” means the “willful failure, for a period of four (4)

consecutive months, to provide monetary support or the willful failure to provide more

than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D).

Token support is defined as support that “under the circumstances of the individual case, is

insignificant given the parent‟s means.” Id. at (1)(B).

In this case, there is no question that Mother provided no support for the child

during the relevant four-month period. Instead, the only question on appeal involves

whether that failure was willful. In the context of support, a parent‟s “[f]ailure to support a

child is „willful‟ when a person is aware of his or her duty to support, has the capacity to

provide the support, makes no attempt to provide the support, and has no justifiable excuse

for not providing the support.” In re Jarett M., No. W2014-01995-COA-R3-PT, 2015 WL

1647924, at *5 (Tenn. Ct. App. Apr. 13, 2015) (citing In re M.L.D., 182 S.W.3d 890, 896

(Tenn. Ct. App. 2005)).

Here, the juvenile court made the following specific findings concerning the ground

of abandonment by willful failure to support in its June 6, 2014 order:

29. [Mother] was ordered to pay child support to [Appellees]

pursuant to an Order Setting Support entered by this Court on

March 15, 2012[.] She was ordered to pay $285.00 per month

in current support and $43.33 [per month] in retroactive

support for a monthly total of $328.33. [Mother] has willfully

failed to pay child support as ordered. In the four months prior

to the filing of the Petition in this matter, [Mother] did not pay

child support. [The record] shows seven payments totaling

$989.55, for the period March 26, 2013 through June 17, 2013

. . . and two payments totaling $168.11, for the period July 1,

2013 through July 15, 2013.

30. [Mother] is abled bodied and capable of working. [Mother]

submitted no proof that she was disabled or incapable of

working. This was true from September 28, 2012 through

January 28, 2013. During this time, she did not have children

to care for and she in fact worked during this period of time.

Both [Mother] and her boyfriend, Marcus B[.], testified that

19

she frequently worked for him and he paid her for this work.

She also worked cleaning houses during this time period.

During her testimony, she even mentioned the name of at least

one, if not more, of her customers.

Based on the above findings, the juvenile court concluded that clear and convincing

evidence existed to terminate Mother‟s parental rights on the ground of abandonment by

willful failure to support. Mother appeals this determination and argues that her failure to

pay such support was not willful because she did not have the ability to pay.

Mother was clearly aware of her duty to provide support to Jamie as set forth in the

March 15, 2012 child support order in the amount of $328.33 monthly. Despite Mother‟s

acknowledgement of her support obligation, Mother testified that she did not pay child

support in the relevant four month period. Mother contends that her failure was not willful

due to her limited income, stemming from her unemployment, and the cost of her monthly

expenses.

A thorough review of the record leads this Court, like the trial court, to conclude that

Mother‟s failure to support the child was willful. First, the record indicates that Mother did

earn some sporadic income during the relevant four-month period, both by cleaning houses

and helping her boyfriend with his employment. Mother testified, however, that all of this

income was required to pay the couple‟s expenses. The record does indicate that Mother

typically turned over any income to Marcus B. for household bills, transportation, and gas.

Other than these sporadic jobs that offered little in the way of support, however,

Mother had no stable employment that would allow her to support the child. Simply

because Mother was unemployed or underemployed and not disabled does not necessarily

mean that her lack of paying child support was willful. In re M.P.J., No.

E2008-00174-COA-R3-PT, 2008 WL 3982912, at *10 (Tenn. Ct. App. 2008) (discussed in

detail, infra). Instead, the inquiry becomes whether the parent‟s unemployment or

underemployment is willful. Id. Upon review of the record in this case, it appears that

Mother, despite some effort on her behalf, has remained unemployed because of her

intentional failure to follow through with several opportunities to become employed.

Although Mother‟s testimony reveals numerous places of employment where Mother has

applied for a job, Mother‟s testimony also reveals that she has turned down or failed to

pursue multiple employment opportunities that would produce income. See In re M.P.J.,

2008 WL 3982912, at *10 (“In light of Father‟s testimony that he was offered employment

and he declined that employment, we conclude that his unemployment was voluntary.”).

Mother‟s testimony generally indicates apathy toward the concept of finding suitable

employment in an effort to support her children. For example, Mother indicated that she

had lined up employment opportunities at Waffle House and a local consignment store.

20

Instead of pursuing these opportunities, Mother testified that she often stayed at home and

watched television or cleaned during the day. In addition, Mother testified that she could

have advertised her cleaning services to increase her customer base, allowing her to make

up to $100.00 per day, but that she simply declined to make the effort. Mother‟s failure to

pursue these opportunities does not appear to have been due to any external issues beyond

her own control. Instead, Mother‟s failure to earn sufficient income to support her son

appears to simply have been the product of her own refusal to make an effort to do so. For

example, Mother‟s counselor at Centerstone noted that Mother expressed animosity

toward all authority figures mentioned, including bosses, and that Mother simply did not

want to do some of the jobs she might be qualified for, such as working at a fast food

restaurant. Moreover, from the record, it appears that Mother lost the jobs that she did have

due to her own failure to comply with the rules of her employment. Under these

circumstances, we must conclude that Mother‟s inability to support her child is a product of

her own making.

We note that some recent Tennessee cases have come to different conclusions

regarding whether a parent‟s failure to support his or her child is willful. These cases,

however, are easily distinguishable from the case-at-bar. First, in In re Adoption of Angela

E., 402 S.W.3d 636 (Tenn. 2013) the child‟s mother and stepfather sought to terminate the

parental rights of the child‟s biological father for his alleged willful failure to support. Id. at

640. The child‟s biological father, a medical doctor, earned income of approximately

$150,000.00 annually. The biological father undisputedly provided support in the amount

of $3,500.00 during the relevant four-month period. Under a previous court order,

however, the biological father was ordered to pay $10,000.00 during this period. Id. The

child‟s mother argued that biological father‟s payment was meager given his means, and

that, therefore, his support payment should be deemed token. Id. (citing Tenn. Code Ann. §

36-1-102(1)(B)). On appeal, the Tennessee Supreme Court first considered the evidence in

the record regarding the biological father‟s income and expenses, which evidence it

deemed “limited at best.” Id. The Court determined that it could not evaluate the biological

father‟s capacity to pay more support than he had paid because of the sparse evidence. Id.

at 641. Ultimately, the Court agreed with the trial court‟s conclusion that “Father‟s

payment of $3500 during the four months immediately preceding the petition for

termination precluded a finding of abandonment.” Id.

Another recent case, In re Noah B.B, held that clear and convincing evidence did

not exist as to a mother‟s willful failure to support when the petitioners failed to show the

mother‟s financial means, expenses, or obligations during the relevant four-month period.

In re Noah B.B., No. E2014-01676-COA-R3-PT, 2015 WL 1186018, *9 (Tenn. Ct. App.

Mar. 12, 2015). Unlike the father in Angela E., however, the mother in Noah B.B. was

unemployed and had not paid any support to the child during the relevant four-month

period. Like in Angela, the evidence regarding her capacity to pay support was meager.

21

See id. at *8. Mother testified that she graduated from high school, had “a little bit of

college” education, and was physically healthy. Id. At the time of trial, she stated she was

unemployed but searching for a job. Id. Noting the insufficiency of evidence concerning

the mother‟s capacity to pay, the court opined that “[i]t is not enough for a petitioner to

„simply prove that [m]other was not disabled during the relevant timeframe‟ and therefore

assume that she was capable of working and paying child support.” Id. at *9 (citing In re

Josephine E.M.C., No. E2013-02040-COA-R3-PT, 2014 WL 1515485, at *18 (Tenn. Ct.

App. Apr. 17, 2014)). Because there was also a suggestion that mother‟s unemployment18

was due to a prior back injury and her testimony that her criminal record prevented her

from obtaining employment, there was some question as to whether mother may have had a

justifiable excuse for the unemployment. Under these circumstances, the Court of Appeals

concluded that there was simply insufficient evidence in the record to meet the high clear

and convincing burden. Id. at *9.

The cases of Angela E. and Noah B.B. indicate that a court can only determine

willfulness of a parent‟s failure to support where there is sufficient evidence regarding the

parent‟s ability to pay. The facts presented in Angela E. and Noah B.B. are simply not

analogous to this case. First, unlike in Angela E. where the biological father actually did

make some payments to support the child during the relevant four-month period, Mother

has not paid anything during the relevant time frame in this case. 19 Thus, in Angela E.,

the issue was not whether biological father had some capacity to pay support and instead

voluntarily chose not to make an effort to meet his support obligation, but instead involved

whether biological father could have paid more, given his means. Biological father‟s

expenses were, therefore, highly relevant to that determination. The facts in Noah B.B. are

somewhat closer to the facts here, but involve evidence that was simply not presented in

this case: that mother‟s inability to obtain employment may have been the result of issues

outside her control. Thus, neither Angela E. nor Noah B.B. require this Court to hold that

Mother‟s failure to pay support in this case was not willful.

Furthermore, we do not interpret either Angela E. or Noah B.B. as holding that

there cannot be a finding of willful failure to support a child even where the evidence

supports a finding of willful unemployment. Indeed, other cases have held the opposite.

For example, in In re M.P.J., No. E2008-000174-COA-R3-PT, 2008 WL 3982912 (Tenn.

18

The Court of Appeals noted that there was not even sufficient evidence in the record to actually

determine whether the mother was actually unemployed during the relevant period. Id. at *9.

19

In addition, we are cognizant of the evidence demonstrating that Mother paid child support after the

filing of the petition when it was garnished from her Goodwill wages. However, Tennessee Code

Annotated Section 36-1-102(1)(F) provides that “[a]bandonment may not be repented of by resuming

visitation or support subsequent to the filing of any petition seeking to terminate parental or guardianship

rights or seeking the adoption of a child[.]”

22

Ct. App. Aug. 27, 2008), the mother sought to terminate biological father‟s parental rights

for, inter alia, abandonment by failure to support. It was undisputed that the biological

father was unemployed during the relevant four-month period. The Court of Appeals,

however, stated that the dispositive issue was not whether biological father was

unemployed, but whether the unemployment was willful. Because the evidence showed

that the biological father was offered employment, but declined to accept that employment,

the Court of Appeals held that his unemployment was voluntary. Id. at *10. The Court of

Appeals concluded that because biological father‟s inability to pay resulted from his

voluntary unemployment, his failure to pay was willful for purposes of Tennessee Code

Annotated Section 36-1-102. Id. (“Had he accepted the employment offer, he would have

had an income and could have made at least some support payments.”).

From the record as a whole, we conclude that Mother has abandoned Jamie based on

her willful failure to support him. The juvenile court‟s ruling on this ground is affirmed.

Although only one ground for termination of parental rights must be met, the Tennessee

Supreme Court has directed this Court to review the findings of fact and conclusions of law

as to each of the juvenile court‟s grounds for termination in order to avoid unnecessary

remand. See In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we

continue on to consider whether the ground of abandonment by willful failure to visit was

also established in this case.

Abandonment by Willful Failure to Visit

Another way to prove abandonment is by establishing “the willful failure, for a

period of four (4) consecutive months, to visit or engage in more than token visitation.”

Tenn. Code Ann. § 36-1-102(1)(E). Again, there is no dispute in this case that Mother had

no visitation with the child during the relevant four-month period. Mother argues,

however, that her failure to visit with the child was not willful because she was prevented

from visiting the child by an order of the juvenile magistrate and that she was actively

pursuing legal action to overturn that order during the four-month period. From the record,

we agree.

As previously discussed, prior to the filing of the termination petition, the juvenile

magistrate suspended Mother‟s visitation pending further orders of the court. In its

September 13, 2012 order, the magistrate said:

The Court is not terminating Mother‟s visitation but leaving it

in Mother‟s control based on the fact that continued visitation

will only occur once Mother is able to demonstrate compliance

with the directives in the Court‟s Order of September 2, 2011,

wherein Mother was advised that “she needs to obtain stable

23

housing, transportation, employment, alcohol and drug

sobriety, and mental health stability.”

The magistrate required Mother to complete a mental health assessment and stated

that, once Mother completed the above requirements, she could present herself to the court

for further modification of visitation. Mother appealed the magistrate‟s order to the

juvenile court judge. During the pendency of the appeal of this order to the juvenile judge,

Mother completed a mental health assessment and received treatment. Ultimately, by

written order entered February 20, 2013, the juvenile court judge reinstated visitation,

listing a certain time and place for Mother to have visitation with Jamie on two separate

occasions.

Ultimately, in terminating Mother‟s parental rights, the juvenile court found that

Mother‟s non-compliance with the court order of September 2, 2011, (i.e. the order

denying Mother custody of all four children) was what caused the suspension of her

visitation. Specifically, the court stated that Mother was put “on notice through [the

court‟s] numerous orders requiring her to address the issues which resulted in the initial

removal of her children.” Because Mother waited over a year from the September 2, 2011,

order to make any effort to address these issues (e.g., receiving a mental health assessment)

and only did so after the magistrate specifically suspended her visitation, the juvenile court

found that Mother caused the suspension of visitation. Accordingly, the juvenile court

found Mother‟s failure to visit was willful.

Still, despite its detailed findings indicating that Mother‟s failure to visit was

willful, the juvenile court‟s written order states: “[F]inding other grounds for termination

of parental rights, the Court will not enter a finding regarding abandonment for willful

failure to visit.” We note that trial courts should address all of the alleged grounds for

termination to prevent delay in rendering a final decision. In re D.L.B., 118 S.W.3d 360,

367 (Tenn. Ct. App. 2003). While we realize the juvenile court made detailed findings of

fact regarding this ground, it is unclear to this Court why the juvenile court determined that

the existence of other grounds for termination would prohibit the court from finding the

existence of another ground inappropriate. Our Supreme Court has stated:

The trial court is required to find only one statutory ground for

termination of parental rights. See Tenn. Code Ann. §

36-1-113 (2001). However, given the importance of

establishing the permanent placement of a child who is the

subject of a termination of parental rights proceeding, the trial

court should include in its final order findings of fact and

conclusions of law with regard to each ground presented. If the

trial court addresses each ground that is raised in a termination

24

proceeding, the child‟s permanent placement will not be

unnecessarily delayed due to a remand for findings on alternate

grounds.

Id.

The discrepancy in the juvenile court‟s order does not change our standard of

review. Additionally, we still consider whether the facts, either as found by the trial court

or supported by a preponderance of the evidence, clearly and convincingly establish the

ground of abandonment by willful failure to visit. Tenn. R. App. P. 13(d); Jones v. Garrett,

92 S.W.3d 835, 838 (Tenn. 2002). Accordingly, we turn to the Mother‟s contention that

because of the suspension of her visitation in the September 2, 2011 order, and her appeal

of that order, Mother‟s failure to visit was not willful.

In its ruling as to this ground, the juvenile court does not discuss the testimony of

Mother, but appears to base its decision solely on the fact that its order stated that visitation

could be modified based on Mother‟s compliance with certain conditions. The juvenile

court‟s order makes no reference to Mother‟s appeal of the suspension of her visitation to

the juvenile court judge. Nor does the court discuss whether Mother prosecuted her appeal

within the relevant four-month time period. While the juvenile court does render some

findings of fact as to this ground, intent should be determined by the sum of a party‟s

actions and conduct. In re Audrey S., 182 S.W.3d at 864. Here, it is clear that Mother

made efforts to appeal and argue the suspension of her visitation. Additionally, shortly

after the September 13, 2012 order suspending her visitation, she obtained a mental health

assessment and began treatment presumably in an effort to regain visitation.

The Tennessee Supreme Court considered a similar issue in In re Adoption of

A.M.H., 215 S.W.3d 793 (Tenn. 2007), which involved a termination of rights petition

filed by the guardians of the child against the child‟s biological parents on the ground of

abandonment by willful failure to visit. Id. at 796. The biological parents of the child

undisputedly exercised no visitation with the child in the relevant four-month period. Id. at

801–02. However, immediately prior to the four-month period, custodial parents refused to

permit the biological parents to take the child from the guardians‟ home for family pictures

and the police were called to escort the biological parents off the guardians‟ property. Id. at

801. Less than a month later, the biological parents sought judicial intervention to regain

physical and legal custody of their child. A few months later, the biological parents filed a

petition to regain custody of the child, and parents were actively litigating that case when

the guardians filed their termination petition. Id. at 802. The Tennessee Supreme Court

concluded that these facts failed to establish willful failure to visit, stating:

25

Here, we are presented with a situation in which the parents of

[the child] actively pursued legal proceedings to regain

custody of [the child] during the “abandonment” period but

failed to visit for a period of four consecutive months

immediately prior to the filing of a petition for termination of

parental rights. . . .We hold that the evidence in this case does

not support a finding that the parents intentionally abandoned

the [child].

Id. at 810. The Court further explained its holding, opining:

Th[e] undisputed evidence does not support a finding that the

[biological] parents‟ failure to visit [the child] was willful.

Where, as here, the [biological] parents‟ visits with their

child have resulted in enmity between the parties and where

the [biological] parents redirect their efforts at maintaining a

parent-child relationship to the courts the evidence does not

support a “willful failure to visit” as a ground for

abandonment. Therefore, we hold that there has been no

willful abandonment and reverse the termination of parental

rights.

Id. at 810–11 (footnote omitted). Thus, the Tennessee Supreme Court held that even where

a parent has not visited a child in the relevant four-month period, that fact alone is

insufficient to support a finding of willful failure to visit where visitation has been thwarted

by the other party and the parent is actively pursuing legal proceedings to regain custody or

visitation with the child.

From our review of the record, the facts in this case are somewhat analogous to In re

Adoption of A.M.H. because Mother was pursuing visitation with Jamie by appealing the

order suspending visitation and attempting to comply with the juvenile magistrate‟s

requirements during the relevant period. Although the record in this case does not provide

her legal basis for pursuing the appeal of the magistrate‟s September 13, 2012, suspension

of her visitation, the record does indicate that she did appeal that order. Furthermore, the

juvenile judge did indeed enter an order overturning the magistrate‟s ruling and providing

that Mother was entitled to visitation. It is unclear from the record as to whether the

juvenile judge reinstated Mother‟s visitation because it concluded that the juvenile court

erroneously suspended Mother‟s visitation or whether it found that Mother had complied

with the magistrate‟s requirements. Regardless, Mother successfully obtained

reinstatement of her visitation, and there is no dispute that she resumed visiting with the

child once she was permitted to do so.

26

Pursuant to Tennessee Code Annotated Section 37-1-107, Mother was required to

file her appeal within five days to prevent the order suspending her visitation from

becoming a final order. Thus, it appears that Mother‟s appeal was pending during the entire

relevant four month period. It also appears that Mother followed through with her appeal as

it was heard by the juvenile judge on January 29, 2013, one day after the filing of the

termination petition. Thus, we can infer that, at some point during the four months

preceding the termination petition, Mother set her appeal of the juvenile magistrate‟s order

for a hearing. Accordingly, during the four-month period before the petition was filed,

albeit after numerous chances to correct certain lifestyle and mental health issues or risk

losing visitation, Mother was actively pursuing visitation with Jamie.

We also note that Mother regularly attended visitation with Jamie before the

relevant four-month period, and this regular visitation allowed Jamie to maintain some sort

of relationship with Mother. Thus, Mother‟s previous efforts to visit with Jamie support

our conclusion that Mother did not willfully fail to visit the child. See generally In re Mark

A.L., 2013 WL 5536801.

Because Mother was clearly making an effort to reestablish visitation with Jamie

during the relevant four-month period, we must conclude that the Appellees failed to

establish by clear and convincing evidence that Mother willfully failed to visit with the

child pursuant to Tennessee Code Annotated Section 36-1-102.

Persistence of Conditions

We next consider the issue raised by Mother regarding the juvenile court‟s finding

of persistence of conditions. Persistence of conditions requires the trial court to find, by

clear and convincing evidence, that:

The child has been removed from the home of the parent or

guardian by order of a court for a period of six (6) months and:

(A) The conditions that led to the child‟s removal or other

conditions that in all reasonable probability would cause the

child to be subjected to further abuse or neglect and that,

therefore, prevent the child‟s safe return to the care of the

parent(s) or guardian(s), still persist;

(B) There is little likelihood that these conditions will be

remedied at any early date so that the child can be safely

returned to the parent(s) or guardian(s) in the near future; and

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(C) 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 parent‟s continued inability to provide fundamental care to a child, even if not

willful, . . . constitutes a condition which prevents the safe return of the child to the parent‟s

care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct.

App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-CV, 2000

WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the conditions

which led to the removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6

(citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990)).

“Where . . . efforts to provide help to improve the parenting ability, offered over a long

period of time, have proved ineffective, the conclusion is that there is little likelihood of

such improvement as would allow the safe return of the child to the parent in the near

future is justified.” Id. The purpose behind the “persistence of conditions” ground for

terminating parental rights is “to prevent the child‟s lingering in the uncertain status of

foster child if a parent cannot within a reasonable time demonstrate an ability to provide a

safe and caring environment for the child.” In re A.R., No. W2008-00558-COA-R3-PT,

2008 WL 461675, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re D.C.C., No.

M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).

In concluding that the ground of persistence of conditions was proved by clear and

convincing evidence, the juvenile court stated:

[Mother] has failed to support Jamie G[.]; failed to exercise

regular visitation; failed to maintain a stable source of income,

housing, or transportation; and failed to comply with the

directives of the Centerstone personnel including directives in

regards to prescription medications for her previously

diagnosed mental health disorders.

It is undisputed that the child in this case was removed from Mother‟s home by

order of the Davidson County Juvenile Court more than six months prior to the initiation of

the termination proceedings. However, Mother argues that the record lacks sufficient

evidence to support the juvenile court‟s conclusion that the conditions that led to the

child‟s removal, specifically Mother‟s untreated mental conditions and her lack of support,

still persist and would, in all reasonable probability, subject the child to further abuse or

neglect. Upon a thorough review of the record, we respectfully disagree with Mother‟s

argument.

28

Mother‟s mental health and her treatment thereof were at issue in juvenile court

proceedings involving Mother as far back as January 2008. While Mother disputes that her

mental conditions make her unfit to parent, the juvenile court made specific credibility

findings as to Mother‟s testimony concerning her mental health treatment. As it relates to

Mother‟s medication management, the trial court found:

Although [Mother] continues to insist that she is compliant

with the medication necessary to address her serious mental

health diagnoses, her testimony is again not credible and is in

contradiction to the Centerstone Mental Health records.

In addition to the specific findings of credibility, the trial court also noted generally

that it simply did not consider Mother to be a credible witness. Findings of fact based on

witness credibility are given great deference on appeal. It is well-settled that when the

resolution of issues in a case depends upon the truthfulness of witnesses, the trial judge

who has the opportunity to observe the witnesses and their manner and demeanor while

testifying is in a far better position than this Court to decide those issues. See McCaleb v.

Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834,

837 (Tenn. Ct. App. 1997). The trial court‟s findings on credibility, whether express or

implicit, are entitled to great deference on appeal. See Taylor v. McKinnie, No.

W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug. 5, 2008).

Here, the juvenile court‟s finding of the persistence of conditions was clearly based upon

its credibility finding that Mother had not made as much progress as she indicated in her

testimony. Accordingly, where the trial court‟s factual determinations are based on its

assessment of witness credibility, this Court will not reevaluate that assessment absent

clear and convincing evidence to the contrary. Franklin Cnty. Bd. of Educ. v. Crabtree,

337 S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838

(Tenn. 2002)).

It is undisputed that Mother suffers from a variety of mental health issues, including

intermittent explosive disorder, major depressive disorder, cannabis dependent episodic,

borderline personality disorder, and bipolar disorder. Because of these mental health

issues, the juvenile court repeatedly ordered Mother to endeavor to remedy these problems,

including by attending Centerstone counseling and diligently taking her prescribed

medication. Relying in large part on Mother‟s Centerstone records, the trial court

concluded that Mother had not succeeded in remedying her problems and that it was

unlikely that she would do so in the future. Accordingly, we will first consider those

records.

According to Mother‟s Centerstone records, Mother‟s mental health issues resulted

in poor impulse control, irritability, frustration, lack of anger management skills, and lack

29

of coping skills. Her records further indicate that Mother exhibited “[e]xtremely poor”

judgment. Mother‟s records reflect that she was often unwilling to take responsibility for

missed appointments or for her prior convictions for child abuse. The records also indicate

that Mother was not properly attending scheduled appointments at Centerstone. For

example, during the approximately four-month period prior to the filing of the termination

petition, Mother missed more appointments than she attended at Centerstone and was not

making progress in addressing her mental health concerns. Furthermore, because Mother‟s

missed appointments often involved medication management, it is clear that Mother could

not be fully compliant with her prescribed medication because she did not attend

appointments wherein she was to obtain refills on her prescriptions. Nothing in the records

indicates that Mother had made any progress in addressing the mental health issues that

kept her from parenting the child.

Despite the detailed Centerstone records indicating that Mother often cancelled or

no-showed for her appointments, Mother asserted that these records were incorrect.

Mother, however, offered no credible evidence to support a finding that these records were

erroneous or altered to place Mother in an unfavorable light. Additionally, on appeal,

Mother offers no clear and convincing evidence to set aside the trial court‟s credibility

finding. Accordingly, we agree that Mother was simply not credible on this issue.

Mother asserts, however, that her compliance is supported by other evidence in the

record, including the testimony of Ms. Bush, the DCS worker. Ms. Bush‟s testimony

likewise contradicted the other evidence in the record, and at times, her own prior

statements. For example, Ms. Bush admitted that she filed a letter with the trial court just

days before Appellees‟ termination petition was filed.20 In this letter, Ms. Bush detailed

Mother‟s refusal to follow Centerstone‟s directives and the fact that her mental health

issues remained largely unchecked. This letter, coupled with the Centerstone records and

the other testimony at trial, clearly and convincingly demonstrate that Mother was not

compliant with the juvenile court‟s order to address her mental health issues. After

considering all of the testimony and the Centerstone records, the trial court‟s ruling

demonstrates that it gave more weight to the detailed and lengthy records from Centerstone

than to Mother and Ms. Bush‟s contradictory testimony. Based on the evidence in the

record and the trial court‟s credibility finding, we agree that the evidence in the record

supports the juvenile court‟s factual findings regarding Mother‟s compliance with her

mental health directives.

From our review of the Centerstone records and the testimony at trial, it is clear that

Mother‟s mental issues have not been remedied and, therefore, “prevent the child‟s safe

20

The letter does not indicate to whom it was directed. It appears that the letter merely served to

memorialize Ms. Bush‟s observations in the trial court‟s file.

30

return to the care of” Mother. Tenn. Code Ann. § 36-1-113(g)(3). Here, testimony shows

that Mother has had violent outbursts, directed at Grandmother, Grandfather, and Marcus

B. Mother‟s recent inappropriate behavior at visitation has caused the child considerable

distress. Even more distressing, Mother has pleaded guilty or been convicted of three

separate charges of child abuse and has been arrested for domestic violence on several

occasions. Rather than treating the mental illnesses that led to these violent episodes,

Mother failed to diligently follow Centerstone‟s requirements, often missing appointments

and failing to attend appointments dealing with her medication management. Mother‟s

conditions, which often lead her to become easily aggravated, frustrated, and violent,

simply make her unable to parent Jamie, a special needs child.

Additionally, it appears that Mother simply refuses to take responsibility for her

own actions. While Mother‟s refusal to admit that she has failed to properly attend

Centerstone Counseling, as the records clearly show, is somewhat troubling to this Court,

we are far more concerned with Mother‟s refusal to take responsibility for the multiple

times that she had been charged with abuse of a child. In every case, Mother testified that

these charges were false, but in every case, Mother either pleaded guilty or was found to

have committed a crime against a child. This Court has previously considered a parent‟s

refusal to take responsibility for his or her anger management issues in concluding that the

ground of persistent conditions had been established. See State Dept. of Children’s Servs.

v. D.A.B., No. E2006-01490-COA-R3-PT, 2006 WL 3694449, at *15 (Tenn. Ct. App. Dec.

15, 2006) (considering father‟s refusal to accept responsibility for his anger management

problem as evidence that the conditions that led to the child‟s removal persisted). Here,

Mother not only refuses to take responsibility for her anger management issues, but she

refuses to take responsibility for her prior convictions for child abuse.

The evidence also shows that Mother remains unemployed, lacks a stable source of

income, remains without a driver‟s license or transportation, and lacks a safe and stable

home environment. 21 Essentially, Mother has refused or been unable to make any

meaningful change in her circumstances. For example, regarding her inability to maintain

employment, Mother‟s Centerstone records from November 12, 2012 indicate that Mother

expressed animosity toward all authority figures mentioned, including her bosses, and that

Mother “does not want to do many [of the jobs] she might be qualified for (eg. Mother

21

The witness from DCS, Ms. Bush, testified that Mother did not have stable housing before moving in

with Marcus B. However, at trial, Ms. Bush testified that Mother did have stable housing at the time of trial,

despite the fact that Mother did not earn enough income to cover her own rent and the fact that both Mother

and Marcus B. had been recently arrested for domestic violence. It appears that the trial court did not find

that Ms. Bush‟s conclusion that Mother had suitable housing was credible. The juvenile court found, and

we agree, that “but for Marcus B[.], [Mother] would more likely than not be without housing[.]” The

precariousness of Mother‟s situation is exacerbated by the fact that Mother and Marcus B. were involved in

a recent domestic violence incident, which certainly indicates that their relationship is less-than-stable.

31

stated that she “[didn‟t] want to do fast food or I‟ll get fat and be diabetic.”) Mother

testified several times that she would rather be a stay-at-home mother than be employed.

Mother‟s testimony indicates that, while she has submitted several employment

applications, she has no sincere interest in financially supporting her children. Essentially,

even after numerous opportunities, Mother has not regained control of her circumstances.

She is still financially unstable, making her unable to financially support Jamie and provide

him with a stable environment. Mother is essentially in the same position she was when

Jamie was removed from her care initially.

Last, the continuation of the parent-child relationship between Mother and Jamie

would greatly diminish Jamie‟s chance to integrate into a permanent home with Appellees,

as evidenced by the negative effects produced at visitation with Mother. As detailed in the

testimony, Jamie often becomes emotionally upset and disturbed because of Mother‟s

behavior at visitation. A continuation of this confusing and problematic parent-child

relationship would disrupt Jamie‟s integration into a new, stable home. Based on the

foregoing, we conclude that the juvenile court did not err when it found that the ground of

persistence of conditions was proved by clear and convincing evidence.

Best Interest of the Child

When 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. White v. Moody, 171 S.W.3d 187, 192 (Tenn.

Ct. App. 1994). When a parent has been found to be unfit (upon establishment of

ground(s) for termination of parental rights), the interests of parent and child diverge. In

re Audrey S., 182 S.W.3d at 877. The focus shifts to the child‟s best interest. Id.

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. Id. However, when the interests of the parent and

the child conflict, courts are to resolve the conflict in favor of the rights and best interest of

the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child‟s best interest must be

viewed from the child‟s, rather than the parent‟s, perspective.” Moody, 171 S.W.3d at

194.

The Tennessee Legislature has codified certain factors that courts should consider in

ascertaining the best interest of the child in a termination of parental rights case. These

factors include, but are not limited to, the following:

(1) Whether the parent or guardian has made such an

adjustment of circumstance, conduct, or conditions as to make

it safe and in the child's best interest to be in the home of the

parent or guardian;

32

(2) Whether the parent or guardian has failed to affect 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 or

controlled substances 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). This Court has noted that, “this list [of factors] is not

exhaustive, and the statute does not require a trial court to find the existence of each

enumerated factor before it may conclude that terminating a parent‟s rights is in the best

interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).

Depending on the circumstances of an individual case, the consideration of a single factor

or other facts outside the enumerated, statutory factors may dictate the outcome of the best

interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:

33

Ascertaining a child‟s best interests does not call for a rote

examination of each of Tenn. Code Ann. § 36-1-113(i)‟s nine

factors and then a determination of whether the sum of the

factors tips in favor of or against the parent. The relevancy and

weight to be given each factor depends on the unique facts of

each case. Thus, 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 (citing White v. Moody, 171 S.W.3d at 194).

Based upon the foregoing discussion, it is clear that Mother has struggled to make

an adjustment of circumstances, conduct, or conditions so as to make it safe and in Jamie‟s

best interest to be in her care. Despite DCS‟s efforts and efforts of various support

agencies, Mother has failed to make a lasting adjustment, as evidenced by the fact that she

remains unemployed and without a driver‟s license or transportation. More importantly, it

is unclear whether her current mental state would promote Jamie‟s well-being if returned to

her, as evidenced by Mother‟s most recent arrest for domestic violence against Marcus B.

Despite efforts to find employment, Mother has failed to support Jamie. Further, she has

failed to maintain an active role in the developmental and medical aspects of Jamie‟s life.

The record indicates that Jamie has done well in Appellees‟ care. Kathryn C.

testified that Jamie entered her home on May 31, 2011. She testified that she has witnessed

Mother‟s failure to understand Jamie‟s developmental struggles and has witnessed Mother

become frustrated with him. She also testified that Mother‟s outbursts often caused

visitations to go awry, which resulted in Jamie becoming angry, screaming, and banging

his head. Kathryn C. also testified that Jamie has bonded extremely well with her family,

including her husband Steven C. She stated that Jamie has adapted well since the birth of

Appellees‟ biological child, and the two children behave like brothers.

Regarding Jamie‟s well-being in Appellees‟ care, both Appellees‟ testified that

Jamie is progressing academically, medically, and developmentally. Kathryn C. testified

that the child‟s medical condition will require routine monitoring and extensive medical

treatment in the future. Appellees have ensured that the child receives appropriate medical

care; in contrast, testimony shows that Mother often declined to participate in the child‟s

therapy and has failed to make any effort with regard to the child‟s physical health, either

before or after the Appellees began caring for the child. Jamie‟s school records also

indicate that Appellees are involved with his education and that he is succeeding in school

as well.

Finally, from the totality of the circumstances, it appears that a change in caretaker

and a change in physical environment would likely have a negative effect on Jamie at this

34

stage. While living with Appellees, Jamie has received regular medical care and has

enjoyed stability, both of which have resulted in an improvement in his behavior and other

areas of cognitive development. To remove him at this point and place him in what is still

an unstable environment with Mother would likely undo these positive changes.

Applying the foregoing statutory factors, and for the stated reasons, it is clear that

Mother has not made a lasting change in her conduct or condition that would allow Jamie

to return to her care at an early date. She has not supported Jamie financially and still

remains unemployed. She has recently been arrested for domestic violence. While this

Court does not doubt Mother‟s love for Jamie, the record does not support her assertion

that she would be able to provide Jamie with the emotional, medical, and developmental

support that he requires at this stage in his young life. From the totality of the

circumstances, we conclude that clear and convincing evidence exists to support the trial

court‟s conclusion that termination of Mother‟s parental rights is in Jamie‟s best interest.

Conclusion

For the foregoing reasons, we affirm the juvenile court‟s order terminating Mother‟s

parental rights to Jamie on the grounds of abandonment by willful failure to support and

persistence of conditions. We affirm the juvenile court‟s order declining to terminate

Mother‟s parental rights to Jamie on the ground of abandonment by willful failure to visit.

We also affirm the juvenile court‟s order finding it in the best interest of Jamie to terminate

Mother‟s parental rights. This case is remanded to the juvenile court for such further

proceedings as may be necessary and are consistent with this Opinion. Costs of this appeal

are assessed against Appellant Mother. Because Mother is proceeding in forma pauperis in

this appeal, execution may issue for costs if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

35