# In Re Leroy H.

> Court of Appeals of Tennessee · August 3, 2018

URL: https://www.frixlaw.com/law-library/cases/4301072

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** August 3, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Brandon O. Gibson
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

08/03/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 5, 2018

IN RE: LEROY H.1

Appeal from the Circuit Court for Wilson County
No. 2017-AD-73 Clara W. Byrd, Judge
___________________________________

No. M2017-02273-COA-R3-PT
___________________________________

This appeal involves the termination of a father’s parental rights to his minor child. The
child’s guardians, who had been granted custody of the child, filed a petition to terminate
the father’s parental rights. The trial court granted the guardians’ petition after finding,
by clear and convincing evidence, that four grounds for termination were proven—willful
failure to visit, willful failure to provide child support, failure to provide a suitable home,
and persistence of conditions—and that termination was in the child’s best interest. We
vacate the trial court’s finding regarding one ground for termination but otherwise affirm
the order terminating the father’s parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in
part, Affirmed in part, and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, JJ., joined.

W. Michael Kilgore, Mount Juliet, Tennessee, for the appellant, Leroy H.

Debra L. Dishmon, Lebanon, Tennessee, for the appellees, Lisa N., and Joseph N.

OPINION

I. FACTS & PROCEDURAL HISTORY

Appellant Leroy H. (“Father”) is the legal father of Leroy H., Jr. (“Child”), who
was born in July 2011. The Child’s mother, Kristen B. (“Mother”), tested positive for
cocaine upon the Child’s birth, thus prompting the involvement of the Tennessee
1
In cases involving minor children, it is this Court’s policy to redact names in order to
protect the child’s identity.
Department of Children’s Services (“DCS”). The same day, Father tested negative for
illegal substances. DCS, therefore, placed the Child with Father, and the Juvenile Court
of Wilson County, Tennessee, granted Father temporary custody.

Shortly after Father was granted temporary custody, DCS observed bruises and
marks on Mother. She claimed Father caused the injuries, and Father was subsequently
arrested. As a result, the Child was taken into protective custody and placed with Lisa N.
(“Foster Mother”) and Joseph N. (“Foster Father”) (collectively, “Foster Parents”). At a
preliminary hearing on August 7, 2011, both parents were drug screened. At that time,
Father tested positive for cocaine but Mother tested negative, and the court returned
custody of the Child to Mother.

Less than two weeks later, Father was again arrested for domestic assault against
Mother, and his bond restrictions restrained him from contact with Mother and the Child.
On August 22, 2011, Mother’s neighbors delivered the Child to DCS, explaining that
Mother left the Child with them and had not returned. DCS took the Child to the
emergency room because the infant was struggling to breathe and was shaking
uncontrollably. The Child was diagnosed with acute pneumonia, transported to
Vanderbilt Children’s Hospital, and placed in the Intensive Care Unit. Because Mother
could not be located and Father was unable to care for the Child due to his bond
restrictions, DCS filed a petition for dependency and neglect, and the juvenile court again
placed the Child in foster care for him to receive medical treatment. Upon discharge
from the hospital, the Child was again placed with Foster Parents.

On March 2, 2012, the juvenile court found the Child to be dependent and
neglected. He remained with Foster Parents until May 2012, when Mother and Father
were granted a 90-day trial home placement, and the parents regained full custody of the
Child when the 90-day trial concluded. Nevertheless, Foster Parents maintained a close
relationship with the Child.

The Child was again left in Foster Parents’ care from April to June, 2013, when
Foster Mother assisted Mother by transporting her to a domestic violence shelter. Upon
Mother’s discharge, she resumed caring for the Child. However, just one month later, on
July 16, 2013, Mother and the Child arrived at Foster Parents’ home in the back of a
police car following another domestic violence incident with Father. Mother signed an
Immediate Protection Agreement voluntarily placing the Child with Foster Parents. DCS
subsequently filed a petition to transfer temporary legal custody to Foster Parents, again
asking the court to declare the Child dependent and neglected, and the juvenile court
entered a protective custody order granting them custody.

After a hearing in January 2014, the juvenile court once again declared the Child
dependent and neglected due to drug exposure and long term domestic violence exposure
in the parents’ home. See Tenn. Code Ann. §§ 37-1-102(b)(12)(F), (G). Later that year,
-2-
in November 2014, the court awarded Foster Parents full legal custody. The Child has
lived exclusively with Foster Parents since July 16, 2013.

On February 8, 2017, Foster Parents filed a petition in circuit court seeking the
termination of the parental rights of both Father and Mother.2 Against Father, the petition
alleged: (1) abandonment by failure to visit, (2) abandonment by failure to provide child
support, (3) abandonment by failure to provide a suitable home, and (4) persistence of
conditions.

On October 5 and October 10, 2017, the circuit court held a hearing on Foster
Parents’ petition to terminate parental rights. Father, Foster Parents, Kathryn Kranitzky
with DCS, and Debra Elkins of Safe Family Visits testified at the hearing. Mother was
also permitted to testify remotely by video conference over the objection of Father’s
counsel.

Mother testified that she had an eight-year relationship with Father, and claimed
that Father “[ha]s always been abusive.” She testified that she remained married to
Father at the time of the hearing3 but that she had not seen Father in approximately three
years. At the time of the hearing, Mother lived in South Carolina with her newborn child.

Mother testified to multiple incidents of domestic violence in the parents’ eight-
year relationship. According to Mother, she was hospitalized twice during her pregnancy
with the Child due to Father’s physical assaults on her. Mother also claimed that the
Child was born prematurely as a result of Father’s violence against her. In addition,
Mother recalled specific domestic violence incidents that led to Father’s arrest and/or her
hospitalization in October 2011, October 2013, March 2013, July 2013, and November
2014, stating that Father’s violence “[wa]s a cycle.” Mother testified that despite
Father’s participation in a batterer’s intervention program, the abuse continued. She
explained that, following the incident in November 2014, she moved out of state to get
away from Father. She further accused Father of ongoing drug and alcohol abuse.

Mother testified that, at the time of the hearing, she remained afraid of Father. She
felt that it was in the Child’s best interest to remain with Foster Parents and to not be
returned to Father. Mother explained that Foster Parents had treated her and Father well

2
Foster Parents also sought to terminate Mother’s parental rights. As we further discuss
below, Mother was not present at the hearing, and she stipulated to one of the grounds for
termination alleged against her, willful failure to visit. The trial court ruled that Foster Parents
had proved, by clear and convincing evidence, this ground for terminating Mother’s parental
rights and that termination was in the best interest of the Child. Mother has not appealed the trial
court’s order.
3
According to Mother, she and Father were married in August 2013.
-3-
and that Foster Parents had tried to help her and Father maintain a relationship with the
Child.

Debra Elkins testified that she owns Safe Family Visits, a private organization that
monitors supervised visitation. She explained that in December 2014 she was put into
contact with Father concerning supervised visits with the Child. However, she charged
$25 per hour and a $100 intake fee, and Father informed her that he was not going to pay
for services. According to Ms. Elkins, $25 per hour was “a very low rate” for her
services and that other comparable agencies charge between $75 and $100 per hour. Ms.
Elkins further explained that the $100 intake fee would have been divided between
Mother and Father, so Father would have only been responsible for $50 of this fee had he
continued with supervised visitation.

Father testified that, at the time of trial, he was living in a half-way house, which
he also described as a “three-quarter house.” He stated that he had been living there for
approximately three weeks. He admitted that he “drink[s] beer” but denied that he used
drugs. Father argued that he “probably” tested positive for cocaine in August 2011 “from
removing [Mother’s] drug activities, her paraphernalia and whatnot out of the house.”
According to Father, he was “clean and sober,” and he estimated that the last time he had
used alcohol was a month before the hearing.

Father also denied issues with domestic violence. He explained that when Mother
would leave him with the Child, it was due to Mother’s drug use, not his domestic
violence. According to Father, his arrest for domestic assault in August 2011 was a
misunderstanding. He testified that as a condition to his temporary custody of the Child,
Mother was not supposed to stay the night at his house, and he was arrested when he
attempted to force her out. However, he admitted to being arrested on numerous
occasions on domestic assault charges.

Specifically, Father admitted that he was arrested in March 2011, twice in August
2011, October 2011, April 2013, May 2013, and November 2014 for domestic assault.
He also admitted that he was arrested in June 2017 for public intoxication and in
September 2017 for violating an order of protection against an ex-girlfriend. Father
further admitted that he had been accused of domestic violence by a recent girlfriend just
a few months before the hearing.

Regarding visitation, Father admitted that he had not requested a visit with the
Child in at least two years. However, according to Father, he could not afford the fees for
supervised visitation with the Child due to the costs of parenting classes, domestic
violence classes, and his alcohol ankle monitor. He insisted that when he was contacted
by Safe Family Visits in late 2014, he was told that he would have to pay $175 “to do the
paperwork” plus $75 per hour while visiting with the Child. Father admitted that even
after he had finished paying the aforementioned costs, he did not attempt to set up
-4-
supervised visitation again and that it had been more than a year since he had even
inquired about visitation.

As to his income, Father testified that he had worked for an individual for the past
12 years “refurbish[ing] houses.” He stated that he also worked for a brick mason, and
between the two jobs, he worked a minimum of 40 hours per week. Father explained that
he made $12 per hour in cash and that taxes were not taken out of his earnings. He
testified that his current expenses were $150 per week to stay at the “three-quarter
house.” Although Father adamantly claimed he paid his child support every month, he
admitted that in the months preceding the filing of the Foster Parents’ petition, he did not
pay enough to cover even the minimal child support he had been ordered to pay by the
juvenile court.

Kathryn Kranitzky, a former DCS employee, testified that she was a team leader
working in a supervisory position over the case from 2013 to 2014. She stated that,
throughout her involvement with the family, her main concerns for the Child were
“[o]ngoing domestic violence concerns, that the child was subject to ongoing drug
exposure, alcohol exposure, and lack of supervision . . . as well as psychological harm.”
She testified that Father tested positive for cocaine “on more than one occasion” and that
he also failed alcohol swab tests and would often fail to show up for scheduled drug
screens.

Ms. Kranitzky also testified that Father was generally uncooperative with DCS.
She explained that both he and Mother would make efforts to cooperate with DCS in the
two weeks leading up to a court hearing, but then, according to Ms. Kranitzky, DCS
would be unable to contact the parents for months at a time. She also stated that Father
did not consistently exercise visitation with the Child.

Ms. Kranitzky testified that in May 2014 she became particularly concerned after
an incident with Mother and Father. She began looking for Mother when she was not
responding to Ms. Kranitzky’s attempts to contact her. Ms. Kranitzky testified that she
stopped by the parents’ home, but Father claimed he did not know where Mother was,
suggesting that Ms. Kranitzky try to call her cell phone. Ms. Kranitzky explained that
she eventually found Mother crying and with visible bruises on her arms. Mother
claimed that father had assaulted her and had stolen her money and cell phone. Ms.
Kranitzky testified that police escorted Mother back to the home to pick up her
belongings, and the Child witnessed Mother and Father again “g[e]t aggressive with each
other.”

She also testified that on one occasion during her time working on the parents’
case, Father was arrested outside of Mother’s place of employment. When police arrived,
Father was holding an open container of beer and several more were found in his car.

-5-
Ms. Kranitzky opined that it was in the Child’s best interest to remain with Foster
Parents. She explained that his parents would continue to expose him to an unstable and
unsafe environment and that Foster Parents are the only family he has ever known.

Foster Mother testified that she was a stay-at-home mother and that her husband
was the pastor of their church. She stated that the Child was placed in their home when
he was approximately four weeks old and that he had lived with her family for five of his
six years of life. She testified that, at least initially, her goal was certainly to reunify the
Child with his parents. She explained that she opened her home to Mother and Father in
hopes to make a difference in their lives. She assisted Mother by driving her to various
shelters and keeping the Child while Mother remained in the shelters. Mother testified
that her family was the Child’s “safe place” during this time in his life. At the time of
trial, however, Foster Mother no longer believed that reunification was possible.

Foster Father testified that he and his wife initially made significant efforts to help
Mother and Father maintain a strong relationship with the Child but that over time,
Father’s behavior led Foster Parents to shift their focus to the Child’s wellbeing. He
testified that the Child has never asked to see either of his parents; however, he testified
that the Child appeared to have at least some memories of his Father. Foster Father
recalled one incident when the Child was three or four years old when the Child saw
Foster Parents’ oldest son drinking a root beer out of a brown bottle. According to Foster
Father, the Child got upset and insisted that drinking that “makes you mean.”

Foster Parents both believed that it was in the Child’s best interest to remain in
their care, explaining “we’re all he knows.” They believed the Child would not be safe
with Mother or Father and that he had shown no signs of missing them. They further
testified that they wished to adopt the Child.

Following the hearing, on November 1, 2017, the trial court entered an order
terminating both parents’ parental rights to the Child. As to Father, it found that all four
grounds alleged had been proven by clear and convincing evidence and that it was in the
Child’s best interest for Father’s parental rights to be terminated. Father filed a timely
notice of appeal.

II. ISSUES PRESENTED

Father presents the following issues, which we have slightly reworded, for our
review on appeal:

1. Whether the trial court erred when it allowed Mother to testify via video
conference over Father’s objection.

2. Whether the trial court erred when it found that it was in the best interest of the
-6-
Child to terminate Father’s parental rights.

For the following reasons, the decision of the circuit court is affirmed in part and
vacated in part.

III. STANDARD OF REVIEW

“In Tennessee, proceedings to terminate parental rights are governed by statute.”
In re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code Annotated section
36-1-113 “sets forth the grounds and procedures for terminating the parental rights of a
biological parent.” Id. at 546. Pursuant to the statute, parties who have standing to seek
termination of parental rights must prove two elements. Id. at 552. First, they must
prove the existence of at least one of the statutory grounds for termination listed in
Tennessee Code Annotated section 36-1-113(g). Id. Second, the petitioner must prove
that terminating parental rights is in the child’s best interest, considering, among other
things, the factors listed in Tennessee Code Annotated section 36-1-113(i). Id. Because
of the constitutional dimension of the rights at stake in a termination proceeding, the
petitioner must prove both of these elements by clear and convincing evidence. In re
Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In
re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002)). “Clear and convincing evidence” has been defined as
“‘evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” In re Adoption of Angela E., 402 S.W.3d 636,
640 (Tenn. 2013) (quoting In re Valentine, 79 S.W.3d at 546). It produces a firm belief
or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established. In re Bernard T., 319 S.W.3d at 596.

Due to the heightened burden of proof in parental termination cases, we adapt our
customary standard of review on appeal. In re Audrey S., 182 S.W.3d 838, 861 (Tenn.
Ct. App. 2005). First, we review the trial court’s factual findings de novo in accordance
with Tennessee Rule of Appellate Procedure 13(d), presuming each finding to be correct
unless the evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at
639. Then, we make our own determination regarding “whether the facts, either as found
by the trial court or as supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.” In re
Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016) (citing In re Bernard T., 319 S.W.3d
at 596-97). “The trial court’s ruling that the evidence sufficiently supports termination of
parental rights is a conclusion of law, which appellate courts review de novo with no
presumption of correctness.” Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn.
2009)).

-7-
IV. DISCUSSION

A. Mother’s Testimony via Video Conference

At the outset, Father argues that the trial court erred by allowing Mother to testify
against him at the termination hearing via video conference. Prior to testimony, Mother’s
counsel made an oral motion seeking permission for Mother to testify by telephone.
Mother’s counsel explained that Mother was residing out of state and that she was willing
to stipulate to one of the grounds for termination of her parental rights. Father’s counsel
did not object to Mother testifying with regard to the termination of her own parental
rights; however, Father’s counsel did object to Mother testifying against Father via
telephone. At the trial court’s request, Mother obtained access to a device permitting
audio-visual transmission and was permitted to testify by such means against Father, over
the objection of Father’s counsel.

Testimony in civil cases is generally governed by Tennessee Rule of Civil
Procedure 43.01,4 which provides:

In all actions at law or equity, the testimony of witnesses shall be taken
pursuant to the Tennessee Rules of Evidence. Also, for good cause shown
in compelling circumstances and with appropriate safeguards, the court
may permit presentation of testimony in open court by contemporaneous
audio-visual transmission from a different location.

The Advisory Commission’s comment to the rule reiterates that “three conditions must be
satisfied: good cause, compelling circumstances, and adequate safeguards.” Tenn. R.
Civ. P. 43.01 Advisory Comm. Cmt. On appeal, Father contends that none of these
conditions were satisfied. We disagree.

The record shows that, at the time of the hearing, Mother was living in South
Carolina caring for her four-week-old child, and she testified that she did not have
reliable means of transportation to travel to Tennessee for the termination hearing. The
record further shows that Father had a history of domestic assault incidents with Mother
both before and after the Child’s birth, and Mother testified that she was afraid of Father.

4
Tennessee Rule of Civil Procedure 1 provides in pertinent part:

Subject to exceptions as are stated in particular rules, the Rules of Civil Procedure
shall govern procedure in the circuit or chancery courts in all civil actions,
whether at law or in equity, and in all other courts while exercising the civil
jurisdiction of the circuit or chancery courts. These rules shall be construed to
secure the just, speedy, and inexpensive determination of every action.

-8-
Although Mother sought to testify via telephone, the trial court required her to obtain
means to testify by video conference before her testimony could continue.5 The court
also required Mother to provide her driver’s license so that all parties were satisfied as to
her identity.

Moreover, “[a] provision using permissive terms such as ‘may’ is generally
regarded as discretionary.” In re Joel B., No. M2012-00590-COA-R3-JV, 2014 WL
4071908, at *3 (Tenn. Ct. App. Aug. 18, 2014) (citing Steppach v. Thomas, 346 S.W.3d
488, 505 (Tenn. Ct. App. 2011)). And, as this Court has previously explained:

Our trial courts possess broad discretionary authority to control their
dockets and the proceedings in their courts, Hessmer [v. Hessmer], 138
S.W.3d [901,] 904 [(Tenn. Ct. App. 2003], and the appellate courts do not
disturb the exercise of such discretion unless the trial court has acted
unreasonably, arbitrarily, or unconscionably. Hodges v. Attorney Gen., 43
S.W.3d 918, 921 (Tenn.Ct.App.2000). Further, we “will not reverse a
discretionary judgment of the trial court unless it affirmatively appears that
such discretion has been explicitly abused to great injustice and injury of
the party complaining.” Douglas v. Estate of Robertson, 876 S.W.2d 95, 97
(Tenn.1994) (citing Tenn. R.App. P. 36(b); Bruce v. Bruce, 801 S.W.2d
102, 107 (Tenn.Ct.App.1990)).

Barnett v. Tennessee Orthopaedic All., 391 S.W.3d 74, 79 (Tenn. Ct. App. 2012).

Nothing in this record indicates that the trial court abused its discretion, and Father
has failed to demonstrate how he was prejudiced by the trial court’s decision. We,
therefore, conclude that the trial court did not err in allowing Mother to testify.

B. Grounds for Termination

Although Father challenges the trial court’s finding that termination of his parental
rights is in the Child’s best interest, he does not raise any issues regarding the four
grounds that the court determined were present for terminating his parental rights. Still,
the Tennessee Supreme Court has held that “in an appeal from an order terminating
parental rights the Court of Appeals must review the trial court’s findings as to each
ground for termination and as to whether termination is in the child’s best interests,
regardless of whether the parent challenges these findings on appeal.” In re Carrington
H., 483 S.W.3d at 525-26. We, therefore, will review each of the four grounds in turn.

5
Both the parties and the trial court inconsistently refer to the method of Mother’s audio-
visual transmission testimony as either “Facetime” or “Facebook video conference.” It is unclear
from the record which service was used in this instance, but the record does indicate that audio-
visual transmission was “live,” or contemporaneous with the court proceedings.
-9-
1. Willful Failure to Support

Parental rights may be terminated for abandonment under Tennessee Code
Annotated sections 36-1-102(1)(A)(i) (2017) and 36-1-113(g)(1) (2017) when a parent
willfully fails to support his or her child for four consecutive months.6 Such failure to
support is willful when (1) the person is aware of his or her duty to support, (2) has the
capacity to support, (3) makes no attempt to support, and (4) has no justifiable excuse for
not providing support. In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005). In
determining a parent’s capacity to pay support, it is not enough for a petitioner to “simply
prove that [the parent] was not disabled during the relevant timeframe” and therefore
assume that he or she was capable of working and providing support. In re Josephine
E.M.C., No. E2013-02040-COA-R3-PT, 2014 WL 1515485 at *18 (Tenn. Ct. App. Apr.
17, 2014), perm. app. denied (Tenn. July 23, 2014). The petitioner has the burden of
proving a parent’s income and ability to pay when establishing willful failure to support.
In re Anna B., No. M2016-00694-COAR3-PT, 2017 WL 436510, at *7 (Tenn. Ct. App.
Feb. 1, 2017) (no perm. app. filed). This can be established through evidence, showing
the parent was able to support the child. In re Noah B.B., E2014-01676-COA-R3-PT,
2015 WL 1186018 at *9 (Tenn. Ct. App. Mar. 12, 2015) (no perm. app. filed).

Because Foster Parents’ petition to terminate Father’s parental rights was filed on
February 8, 2017, the relevant four-month time period was October 8, 2016, to February
7, 2017. The evidence at the hearing showed that Father was employed full time during
the relevant four-month period making approximately $12 per hour. The juvenile court
ordered him to pay $50 per week in child support.7 However, the evidence demonstrates

6
Effective July 1, 2018, Tennessee Code Annotated section 36-1-102(1)(A) no longer
includes the term “willful” in its definition of “abandonment.” Instead, under section 36-1-
102(1)(I), “it shall be a defense to abandonment for failure to visit or failure to support that a
parent or guardian’s failure to visit or support was not willful.” Thus, the parent or guardian will
have to prove the affirmative defense of the absence of willfulness by a preponderance of the
evidence. Tenn. Code Ann. § 36-1-102(1)(I). However, “[b]ecause this change is substantive
rather than procedural or remedial . . . , the amended statute will not be applied retroactively to
this case.” In re Gabriel B., No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 n.7
(Tenn. Ct. App. July 23, 2018) (citing In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004)).
7
The only child support order present in the record is an order from the juvenile court
filed in September 2013. In it, the juvenile court stated that Father “shall pay support in the
amount of $50.00 per week beginning September 23, 2013, as temporary token support, until
such time as the same is modified by this Court” (emphasis added). However, the record does
not indicate that this order was ever modified. As we have explained before, “[t]he relevant
statutes require a willful failure to support or to make reasonable payments toward the child’s
support, meaning, a willful failure to provide monetary support or more than token payments
toward the support of the child.” In re Kylea K., No. E2017-02097-COA-R3-PT, 2018 WL
- 10 -
that from October 8, 2016, to February 7, 2017, Father paid a total amount of $639 in
child support, which the trial court noted was an average of $37 per week.

Although the trial court found “by clear and convincing evidence that Father had
the ability to adequately support the child,” we cannot agree given the lack of evidence in
the record concerning Father’s expenses. Father testified that he paid $150 per week to
live in the “three-quarter house” at the time of trial. However, he did not testify to his
rent obligations or other living expenses during the relevant four-month period, and no
other evidence was offered concerning such expenses. The burden to prove abandonment
by willful failure to support rests on the petitioner. “[W]e cannot fault a parent for the
absence of evidence regarding his or her financial situation.” In re James V., No.
M2016-01575-COA-R3-PT, 2017 WL 2365010, at *5 (Tenn. Ct. App. May 31, 2017). In
a termination case, “[t]he burden is not on the parent to demonstrate an inability to pay;
the burden is on the petitioner to prove by clear and convincing evidence that the parent
had the capacity to pay, made no attempt to do so, and had no justifiable excuse for not
doing so.” Id. (citing In re Adoption of Angela E., 402 S.W.3d at 641). The burden is on
the petitioner “to illicit lucid and intelligible evidence regarding [the parent’s] ability to
pay support and whether [his or] her failure to do so was justified so as to remove any
‘serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” In re Destiny H., No. W2015-00649-COA-R3-PT, 2016 WL 722143, at *10
(Tenn. Ct. App. Feb. 24, 2016) (quoting In re Valentine, 79 S.W.3d at 546). “A trial court
cannot be left to speculate about this important element of failure to support.” In re L.J.,
No. E2014-02042-COA-R3-PT, 2015 WL 5121111, at *7 (Tenn. Ct. App. Aug. 31,
2015).

Without evidence establishing that Father had the ability to pay child support
during the relevant time period, we conclude that Foster Parents failed to prove this
ground of abandonment by clear and convincing evidence. Therefore, we reverse the
trial court’s termination on this ground.

2. Willful Failure to Visit

Parental rights may also be terminated for abandonment when there has been a
willful failure to visit. Tenn. Code Ann. §§ 36-1-102(1)(A)(i), 36-1-113(g)(1). Failure to

3084530, at *6 (Tenn. Ct. App. June 21, 2018) (citing Tenn. Code Ann. § 36-1-102(1)(D)).
Token support is support that “under the circumstances of the individual case, is insignificant
given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). Because we conclude that the
record does not contain adequate evidence of Father’s ability to pay child support, we also
decline to further consider whether $50 per week was truly “token support” given Father’s
means. The evidence here is insufficient to make that determination. See In re Adoption of
Angela E., 402 S.W.3d at 641.

- 11 -
visit is willful when a parent knows of his or her duty to visit, has the capacity to do so,
makes no attempt to do so, and does not have a justifiable excuse for not doing so. In re
Audrey S., 182 S.W. 3d at 864.

The trial court found that, in addition to abandonment by failure to support, Father
had abandoned the Child through willful failure to visit. After reviewing the evidence,
we agree that this ground was proven by clear and convincing evidence. Under this
ground for termination, the relevant four-month time period was also October 8, 2016, to
February 7, 2017.

Father admitted at trial that he did not visit the Child during the relevant four-
month period. In fact, Father testified at the hearing on the petition that he had not seen
the Child in over two years. He did not allege that he was prevented from seeing the
Child, and he admitted that he had not asked for or inquired about visitation since 2014.
Thus, because Father knew of his duty to visit and could provide no justifiable excuse for
failing to do so, we affirm the trial court’s finding on this ground.

3. Failure to Provide a Suitable Home

Parental rights may also be terminated when the parent has failed to establish a
suitable home for the child. Abandonment by failure to provide a suitable home occurs
when:

The child has been removed from the home of the parent or parents or the
guardian or guardians as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as defined
in § 37-1-102, and the child was placed in the custody of the department or
a licensed child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds, that the
department or a licensed child-placing agency made reasonable efforts to
prevent removal of the child or that the circumstances of the child’s
situation prevented reasonable efforts from being made prior to the child’s
removal; and for a period of four (4) months following the removal, the
department or agency has made reasonable efforts to assist the parent or
parents or the guardian or guardians to establish a suitable home for the
child, but that the parent or parents or the guardian or guardians have made
no reasonable efforts to provide a suitable home and have demonstrated a
lack of concern for the child to such a degree that it appears unlikely that
they will be able to provide a suitable home for the child at an early date.

Tenn. Code Ann. § 36-1-102(1)(A)(ii). A suitable home in the context of this ground for
parental termination requires a safe, stable environment and the presence of a caregiver
that can meet the child’s needs. In re James V., 2017 WL 2365010, at *5. It requires
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“more than a proper physical living location.” State v. C.W., No. E2007-00561-COA-R3-
PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007). “It requires that the home
be free of drugs and domestic violence.” In re Hannah H., No. E2013-01211-COA-R3-
PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014).

Here, the trial court found and Father admitted that—although he claimed to be
sober—he was living in a “three-quarter house” at time of the hearing. He provided the
court with two addresses of his residences prior to the “three-quarter house,” one of
which was the address of an apparent ex-girlfriend8 where he had mail sent and
occasionally resided. However, it was unclear which residence Father intended to return
to once he left the “three-quarter house.”

Further, Father vehemently denied ever using drugs, despite a wealth of evidence
to the contrary. This, combined with Father’s history of domestic violence and his failure
to obtain stable housing, leads us to conclude that this ground was also proven by clear
and convincing evidence. As the trial court aptly explained, “Father has made no efforts
to provide a suitable home for the child, and his failure to make even minimal efforts to
improve his home and personal condition demonstrates a lack of concern for the child to
such a degree that it appears unlikely that a suitable home will be provided by Father.”
We agree with the trial court’s finding that the Child was removed from Father’s home as
the result of a petition that led to the Child being found dependent and neglected, that
DCS made reasonable efforts to assist Father in establishing a suitable home for the
Child, and that Father failed to do so.

4. Persistence of Conditions

Grounds for termination of parental rights may also exist when there are persistent
conditions that could subject the child to further neglect or abuse present in the home.
Tennessee Code Annotated section 36-1-113(g)(3) states that persistent conditions are
present when the child has been removed from the parent’s custody by order of a court
for a period of six 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 or parents or the guardian or guardians, still persist;

(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent or parents or
the guardian or guardians in the near future; and

8
Father’s “friend girl,” at the time of the hearing, had an order of protection against him.
As the trial court noted, “so legally he is not supposed to be at her residence.”
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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)-(C). Each of these elements must be proven by
clear and convincing evidence. In re Valentine, 79 S.W.3d at 550. Termination on this
ground prevents a child from lingering in uncertainty as a foster child if his or her parent
cannot demonstrate an ability to provide a safe and caring environment for the child
within a reasonable time. In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL
4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008). “An essential prerequisite to
establishing persistence of conditions is evidence of a ‘prior court order removing the
child from the parent’s home . . . based on a judicial finding of dependency, neglect or
abuse.’” In re Aiden R., No. E2015-01799-COA-R3-PT, 2016 WL 3564313, at *9 (Tenn.
Ct. App. June 23, 2016) (quoting In re Audrey S., 182 S.W.3d at 874).

The juvenile court also found this ground for termination against Father, and we
must agree. The Child was removed from Father’s custody by the requisite court order in
July 2013 due to exposure to drugs and domestic violence. The evidence shows that, at
the time of the hearing, these conditions persisted. Father’s ongoing domestic violence
issues were demonstrated by his admitted arrest record. And as discussed above,
although Father denied using drugs, Ms. Kranitzky with DCS reported that Father tested
positive for cocaine on more than one occasion. Moreover, Father admitted to having an
alcohol problem, and though he claimed that he was sober at the time of trial, he testified
that he continued to live in a “three-quarter house.”

In addition, the Child is currently in the care of a foster family that wishes to
adopt, and to delay this integration into a permanent home would be unfair to the Child,
who needs stability. Therefore, we affirm the juvenile court’s termination of Father’s
parental rights on this ground.

C. Best Interest

Because the trial court properly found the existence of multiple statutory grounds
for termination, we must review the trial court’s finding that termination of parental
rights is in the Child’s best interest. Tennessee Code Annotated section 36-1-113(i)
provides a list of factors that are relevant when deciding what is in a child’s best interest.
However, the list is not exhaustive, and the court is not required to find the existence of
every factor before concluding that termination is in a child’s best interest. In re Joseph
F., 492 S.W.3d 690, 706 (Tenn. Ct. App. 2016). “The child’s best interests must be
viewed from the child’s, rather than the parent’s, perspective.” White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004). “[W]hen the interests of the parent and the
child conflict, courts are to resolve the conflict in favor of the rights and best interest of
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the child.” In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013) (citing Tenn.
Code Ann. § 36-1-101(d)).

On appeal, Father argues that the record contains no evidence to support a finding
that the Child’s best interest would be served by terminating his rights. The trial court,
however, found termination to be in the Child’s best interest because Father failed to
maintain regular visitation or contact with the Child for nearly three years at the time of
the hearing such that no meaningful relationship between Father and the Child remained.
The juvenile court also considered that Foster Parents had provided the Child a safe,
stable home for five out of the Child’s six years of life, and that changing caregivers and
physical environment would have a detrimental effect on him. The court further
considered that the Child had bonded with Foster Parents, their other children, and their
extended family and that the family wished to adopt the Child.

Our thorough review of the record leads us to agree with the trial court’s findings
regarding the Child’s best interest. In addition, we note that this record establishes that
the Child would not likely be safe in Father’s care due to ongoing domestic violence and
substance abuse concerns, which Father has done little to address in the six years since
the Child was removed from his home. We, therefore, conclude that termination of
Father’s parental rights is in the best interest of the Child.

V. CONCLUSION

For the aforementioned reasons, the decision of the trial court is hereby vacated in
part and affirmed in part and remanded for further proceedings. Costs of this appeal are
taxed to the appellant, Leroy H, for which execution may issue if necessary.

_________________________________
BRANDON O. GIBSON, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4301072. Public record. Not legal advice.