# In Re Gaberiel S.

> Court of Appeals of Tennessee · December 11, 2018

URL: https://www.frixlaw.com/law-library/cases/4349584

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** December 11, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge Frank G. Clement, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4349584

## How later opinions describe it (automated extraction)

- holding that the parents “would be unable to provide the child with a suitable home in the foreseeable future” where the parents’ level of cooperation was “very minimal”

## Opinion text

12/11/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 4, 2018

IN RE GABERIEL S. ET AL.

Appeal from the Juvenile Court for Dekalb County
Nos. 2017-JV-115, 2015-JV-157 Bratten H. Cook II, Judge

No. M2018-00522-COA-R3-PT

A father appeals the termination of his parental rights to his four children. The juvenile
court found five statutory grounds for termination: (1) abandonment by willful failure to
support; (2) abandonment by failure to provide a suitable home; (3) substantial
noncompliance with the permanency plans; (4) persistence of conditions; and (5) failure
to manifest an ability and willingness to personally assume custody or financial
responsibility of the children. The court also found that termination of the father’s
parental rights was in the children’s best interest. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which CHARLES
D. SUSANO JR., and BRANDON O. GIBSON, JJ., joined.

James Marlon Judkins, Smithville, Tennessee, for the appellant, Robert Alan S.1

Herbert H. Slatery III, Attorney General and Reporter, and Jordan Keith Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

Lena Ann Buck, Smithville, Tennessee, for the minor children, Gaberiel S., Cody S.,
Ryan S., and Tristian S.

OPINION

Robert Alan S. (“Father”) is the father of four sons: Gaberiel (born in 2002), Cody
(born in 2004), Ryan (born in 2006), and Tristian (born in 2008).2 The family has a very

1
This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
long history with the Tennessee Department of Children’s Services (“DCS”). Prior to this
case, DCS had been involved with them for the past eight years, having received fourteen
previous referrals involving the family. Sixty-six allegations of abuse and/or neglect were
made against the parents, the parents were “indicated” for abuse or neglect against the
children thirteen times, and DCS placed services in the home on twenty different
occasions. More recently, the children were removed from the home in February 2014
and placed in state custody for over a year. The children were returned to the home in
April 2015, at which point DCS was still providing services for the family.

Since the children’s return to the parents’ custody in April 2015, the family’s
problems continued. The police were called to the home multiple times due to domestic
violence. Father condoned fighting and wrestling matches between the children. He
taught them that it was acceptable to call Mother expletive names and told the children
that they did not have to obey women.

There were also concerns of environmental and nutritional neglect. In September
2015, Gaberiel and Cody developed staph infections in sores on their arms and legs, and
the wounds were “open, uncovered, and untreated.” After a call to DCS, the boys were
finally taken to the doctor and given an antibiotic. In November 2015, the family went
without water and electricity “for several weeks,” and the home “was in total disarray
with clothes . . . strewn everywhere and dirty dishes all over the kitchen.” Later that
month, Cody came to school “extremely dirty and smelly,” and he “was wearing the same
pants from the day before that were very soiled.” The next week, Gaberiel arrived at
school wearing shoes that were too small, one of which was torn open at the toe. School
personnel reported that the children often asked for food, claiming that there was none in
the home.

Moreover, Gaberiel and Cody were not receiving their psychotropic medications
as prescribed. School personnel reported that there had been at least three times that
school year that Cody had been without his medicine for multiple days and that the
children regularly missed doctors’ appointments to refill their prescriptions, or shared
similar medications with their siblings whenever one ran out. On December 3, 2015,
Cody was taken from school by ambulance to the emergency room because he was
suffering from withdrawal symptoms from being off his medications.

Drug exposure was also a concern. The children reported that Father and his
girlfriend, Ellissa M., with whom he was living at the time, smoked marijuana and sold
pills. On December 8, 2015, Father’s girlfriend tested positive for drugs and seemed “to
be in a very intoxicated state.” Father refused to submit to a drug test that day. Three days

2
The mother, Christy Lee S. (“Mother”), also had her parental rights terminated, but she has not
appealed. Therefore, our focus in this opinion is only on the facts relevant to Father.

2
later, he tested positive for benzodiazepine, for which he did not have a prescription.
Nevertheless, Father denied drug use.

On December 11, 2015, the children were removed from the parents’ home and
placed in state custody due to domestic violence in the home, medical neglect,
environmental neglect, and the parents’ substance abuse. Shortly thereafter, DCS filed a
petition in the Juvenile Court of Dekalb County to declare the children dependent and
neglected.

Two permanency plans were developed in this case. The first permanency plan
was developed on December 29, 2015. The plan required Father to: pay child support for
each child according to the child-support guidelines; ensure visitations were meaningful
and age-appropriate; bring healthy drinks and snacks to visits; refrain from bringing non-
approved individuals to visits; provide proof of safe and stable housing for a minimum of
three consecutive months; allow DCS to conduct announced and unannounced home
visits; provide proof of legal income sufficient to provide for the family; attend and
successfully complete counseling geared toward parenting children with special
education, mental health, and physical wellbeing needs; demonstrate what was learned
through counseling; submit to a psychological evaluation with a clinical-parenting
component and competency evaluation; and sign releases of information for all service
providers. Father was given an explanation of his responsibilities under the plan and had
a clear understanding of what he needed to complete, in part because he had been through
this process with DCS before and successfully completed the necessary steps to regain
custody of his children on previous occasions.

During the first four months after the children’s removal from the home
(December 11, 2015, to April 11, 2016), DCS supervised visits, attempted to conduct a
home visit with the parents, conducted several Child and Family Team Meetings
(“CFTMs”), attempted to arrange public transportation, requested funding for
transportation, and attempted to arrange and requested funding for Father’s psychological
evaluation. Despite DCS’s efforts, Father “did not complete anything” under the
permanency plan. He never participated in counseling geared toward parenting children
with special needs. Nor did he did complete his psychological evaluation. Initially, DCS
requested funding for an evaluation with Scott Herman, but Father refused to be seen by
Mr. Herman and requested that the evaluation be completed by John Crody instead. DCS
acquiesced and scheduled four appointments with Mr. Crody. Mr. Crody informed Father
that he needed to participate in several appointments to complete the evaluation, and the
family services worker for DCS called Father several times to remind him of the
appointments. Nevertheless, Father attended only one of the four appointments.

On May 11, 2016, the juvenile court entered an order adjudicating the children
dependent and neglected.

3
A second permanency plan was developed on June 16, 2016. It added
requirements that Father: follow the recommendations of the psychological evaluation;
attend all recommended follow-up appointments regarding mental health and parenting;
maintain appropriate and safe housing; ensure that all monthly expenses were paid;
develop a budget with the family service worker; and report to DCS within twenty-four
hours any changes in circumstances, including address, phone number, and employment.
Father participated in the development of the plan by phone, and Sarah Halliburton, the
family service worker for the family at that time, discussed with Father his
responsibilities under the plan.

The parents appealed the juvenile court’s dependent and neglected finding to the
circuit court for a de novo hearing, which was held on November 2, 2016; however,
neither parent attended. In an order filed on December 12, 2016, the circuit court found
that the children were dependent and neglected, stating:

It is clear that the mother and father both had access to TennCare. Neither
the mother nor the father took the children to their medical appointments.
The children continued to run out of their medications, which was life or
death for Cody because he has diabetes. It was also important for Gaberiel
and Cody because they each have mental health issues that are being
treated. The lack of medication hurt the children in their school work.

The circuit court ordered DCS to retain custody of the children and suspended
visitation between the parents and children, noting that the parents could petition the
juvenile court to regain their visitation rights.

The juvenile court held an annual permanency hearing on December 19, 2016,
which Father did not attend. The court found that Father was not in compliance with the
current permanency plan because Father had “(1) missed three psychological
appointments; (2) refused to provide proof of income; (3) continually refuses to let the
case manager in the home; (4) not maintained contact with the case manager; and (5)
missed several visits with his children,” and further ordered that the children remain in
foster care. Father also failed to attend the next three hearings in January, July, and
October 2017, during which the court reviewed and ratified the most current permanency
plans. Father also failed to attend the next annual permanency hearing on December 13,
2017.

On January 3, 2017, DCS petitioned the Dekalb County Juvenile Court to
terminate Mother and Father’s parental rights as to their four sons. Trial was held on
January 9, 2018. The juvenile court heard testimony from Sarah Halliburton, a family
support worker with DCS; Angie Brown, team leader for foster care with DCS; DCS
investigator Deandrea Miller; and Father. Mother failed to appear at trial.

4
Deandrea Miller is the investigator with DCS who was assigned to the family’s
case leading up to the children’s removal from the home in December 2015. Ms. Miller
stated the family had a “very, very long history” with DCS, including numerous issues
with domestic violence. Ms. Miller worked with the family for years, off and on,
providing services in an attempt to keep the family together. She testified that the reasons
the children were taken into DCS custody in this case were for environmental neglect,
medical maltreatment, nutritional neglect, educational neglect, and drug exposure.

Ms. Miller stated that when she was assigned to the case initially, Father and
Mother lived in the house with their four children, along with Father’s girlfriend, Ellissa
M., her two children, and another man named Jim H. According to Ms. Miller, the home
“was a disaster” prior to the children’s removal. There were clothes strewn everywhere,
trash on the floor, and multiple animals in the home. The children did not have beds, only
mattresses on the floor with no sheets. Additionally, “The kids would brag they had over
1,000 DVDs, but yet they didn’t have a bed to sleep on.” Ms. Miller also testified that the
children were frequently hungry and did not get enough to eat.

Ms. Miller continued to work with the family after Cody was taken to the
emergency room in December 2015 for medication withdrawal symptoms. Ms. Miller
explained that Gaberiel and Cody were prescribed several different psychotropic
medications and that they were not getting their medications as prescribed. Ms. Miller
testified that Mother and Father were separated by this time and that Father was staying
with his girlfriend. Mother told Ms. Miller that Father did not help her get the children to
their doctor’s appointments or “do anything for … the kids.” Father attended some of the
CFTMs, but Ms. Miller said he refused to submit to some of the drug tests and essentially
“chose not to provide any support” for his family.

Additionally, Father allowed the children to disrespect their mother by calling her
names, cursing at her, and hitting her. Ms. Miller heard Gaberiel say to his mother, “Shut
up, you effing C-[*]-N-T.” Gaberiel told Ms. Miller “that’s how his daddy talks to him,
and his daddy told him that they could all talk to their mama that way.” Gaberiel also told
Ms. Miller, “My daddy told me we don’t have to listen to what women say.”

Ms. Miller was also involved with the removal of Father’s girlfriend Ellissa’s
children from her home around the same time period. DCS removed the children due to
drug use by Ellissa and Father. Ms. Miller testified that Father tested positive for
“benzos” at the time DCS took custody of Ellissa’s children, but he never showed anyone
a valid prescription for the medication. Elissa eventually regained custody of her
children, but by court order, Father is not allowed to be left alone with her children. Ms.
Miller testified that Elissa’s trailer was appropriate for her and her two children but not
for Father’s four children because it was only a two-bedroom trailer, and there was not
adequate space for the children.

5
Angie Brown is a team leader for foster care with DCS. Ms. Brown testified that
she has had an ongoing relationship with the family, having worked with Father since
2010, offering services through DCS to help keep the family intact. In fact, in her
nineteen years with DCS, Ms. Brown testified that this family received more services
than any other she has ever witnessed, with the goal of trying to steer the family in the
“right direction.” Ms. Brown stated DCS tried to help Father learn to be a better parent to
his children with special needs but said the family would inevitably “fall apart” as soon
as DCS ended their involvement.

Ms. Brown was assigned to the current case in December 2015, when the children
were removed from the home. Ms. Brown testified that the children were taken into DCS
custody due to

neglect. They weren’t taking their medications as prescribed. They . . . had
their psychotropic meds in their pockets on the school bus to take at school.
. . . And they c[a]me to school where they hadn’t had baths and just a lot of
neglect. A lot of violence, possible drug use in the home, a lot of adults
[were] living in the home.

Regarding the home environment, Ms. Brown testified that “it’s been years of
chaos [and] fighting.” According to Ms. Brown, at the time the children were removed,
the family lived in the house along with Father’s girlfriend, Ellissa M., her two children,
and another man. Ms. Brown said there were several issues making the home
inappropriate including issues with domestic violence that had been “ongoing for years,”
periods of time where the home had no water or electricity, and no food. Furthermore,
Ms. Brown testified that Father did nothing to remedy any of those deficiencies. Ms.
Brown also said Father taught the boys to fight and wrestle and allowed the children to
use objects to hit one another during home wrestling matches.

Ms. Brown went on to say that in the years she had worked with the family, they
had always managed to remain intact with the help of DCS. This time was seemingly
different, because around the same time of the children’s removal, Mother and Father
separated. Ms. Brown remarked that “this time, it’s like they separated, went on their
separate ways, and left the kids with us. And it was odd.” She continued, “I figured, you
know, we’d be dysfunctional together trying to make it functional like we had all these
years, but they changed.”

Ms. Brown learned that Father moved to Woodbury to stay with his girlfriend, but
Father refused to allow DCS to visit him there. In the past, Father had always been
compliant with DCS and worked with caseworkers to regain custody of his children.
Now, Ms. Brown said “it [was] like we didn’t see him anymore” after he started dating
his girlfriend. Ms. Brown offered Father gas cards to assist in paying for transportation to
visit his children, which Father refused to accept, and she attempted to set up visits with

6
his children, but Father “didn’t visit much.” Ms. Brown also tried to schedule his
psychological assessment, but Father did not feel the appointments were necessary.
Additionally, Father would not maintain contact with Ms. Brown, making it difficult to
assist him in completing necessary steps to the permanency plans.

Ms. Brown testified that in the two years this case has been pending, Father has
made “zero progress” in complying with DCS to regain custody of his children. She was
not aware of Father providing any nonmonetary support, such as clothes, food, toiletries,
books or toys, to the children throughout the case. Father did submit to a drug screen on
the day of trial, which he passed, but on that same day he also told Ms. Brown that he
would not be able to parent Cody and Gaberiel due to their special needs. Father also
admitted to her that day he still does not have stable housing and that he moves back and
forth between his mother’s and his girlfriend’s house. Ms. Brown testified that the
children have been in and out of DCS custody their entire lives, that they need stability
and permanence, and that it is in the children’s best interests that Father’s parental rights
be terminated.

Sarah Halliburton, a family support worker with DCS, was assigned to this case
from April 2016 through November 2016. During that timeframe, she assisted with the
development of the second permanency plan and testified about the reasonable efforts
made to assist Father in completing the requirements of the plan. Ms. Halliburton
testified that Father has not paid any child support in the last two years since his children
were removed. Father told Ms. Halliburton that he had a job and was working; however,
he refused to give her any information about where he worked or how much money he
made.

Ms. Halliburton also testified that Father failed to visit the children regularly.
During the time she was assigned to the case, Father attended eight out of a possible
twenty-seven scheduled visits. Of the eight visits, none of the visits were with Gaberiel or
Cody, and two of the visits were shortened because Father left during the visit or ended
the visit early. Ms. Halliburton testified that the last time Father saw Gaberiel and Cody
was April 2016, and the last time he saw Ryan and Tristian was August 2016.

DCS made extensive efforts to assist Father in completing his psychological
evaluation requirement. After refusing to see Dr. Herman, Ms. Halliburton set up a series
of appointments with John Crody, Father’s preferred provider, in June and July of 2016.
Father only attended one of the four scheduled appointments despite multiple calls and
follow-ups with Father. Ms. Halliburton next attempted to schedule an appointment for
Father with Dr. Sewell in September 2016, which Father also did not attend. Finally, Ms.
Halliburton scheduled a November 2016 appointment with Dr. Herman which, not
surprisingly, Father did not attend. Ms. Halliburton testified that she ensured Father had
transportation to all scheduled appointments and even offered Father gas cards on
multiple occasions, which Father refused.

7
Father was required to attend a parenting class specifically geared towards
parenting children with special needs. Ms. Halliburton explained that Cody has bipolar
disorder, ADHD, ODD, and he is diabetic. Gaberiel has a mild form of autism, and
Tristian has speech, motor, and cognitive developmental delays. Father, however, did not
complete the parenting class.

Ms. Halliburton contacted Father numerous times to schedule announced visits to
Father’s home. Father habitually cancelled these visits and refused to give Ms.
Halliburton an updated address saying, “it wasn’t needed.” In August 2016, after
obtaining Father’s address independently, Ms. Halliburton went to Father’s house for an
unannounced visit, but no one was home. Later that month, Father sent her a text message
that said, “Please do not contact me any further.” Aside from “one or two CFTMs,”
Father has not participated in this case since the children were declared dependent and
neglected. Father also refused to sign releases as required under the permanency plans to
allow DCS to obtain necessary records. Ms. Halliburton opined that in all likelihood,
Father would not complete the goals and requirements of the permanency plans in the
near future because Father had not completed any of the requirements to date and had not
maintained contact with DCS. Ms. Halliburton further opined that the children would
suffer further abuse and neglect if returned to Father.

Contrary to what the DCS employees testified, Father claimed that when DCS
became involved with the current removal of his children in late 2015, he was not living
in the same house as Mother and the children. Instead, Father testified that he was living
with his girlfriend and her two children in Woodbury, Tennessee. Father testified that the
children lived with Mother after he and Mother separated because, at that time, he did
“not have a job” or a home of his own. Father admittedly had “no way of feeding them”
or supporting them, and acknowledged he “left a terrible impact on the kids,” that he has
to “live with … every day.”

When asked about the accusations of using derogatory language in the home,
Father admitted he encouraged his children to use improper language when addressing
their mother. Father said he did not realize that encouraging such language would affect
his children negatively.

Father had been “very compliant” with DCS “for many years” but testified that he
grew “tired of it.” Father claimed Ms. Halliburton bullied him and gave him an ultimatum
of complying with the permanency plans’ requirements or risk losing visitation with his
children. Father stated he had allowed DCS caseworkers inside his home on multiple
occasions over the years but that he started refusing the visits from DCS once he felt
bullied by Ms. Halliburton.

8
Because of the children’s various health and educational needs, the children were
placed in different schools and cities across the state. One reason Father gave for not
visiting the children was that he gets “very restless on long drives” and has “the patience
of a squirrel.” Father said the reason he refused to accept the gas cards from DCS was
because he did not want to depend on government assistance.

Regarding his required psychological evaluation, Father admitted he only went to
see John Crody for one of the four scheduled appointments because Father felt like the
appointments were “a big waste of [his] time.” When asked about his attendance at
various hearings throughout the case, Father mistakenly believed he had only missed two
hearings. The evidence showed, however, that Father had missed at least six hearings.
Father did recall speaking with Ms. Brown in the basement of the courthouse on the
morning of one of the hearings but said that he got upset and left prior to the hearing. As
a result, Father admittedly missed court on that day.

Father answered questions about his educational background and employment
history. He testified that he graduated from high school and completed an art institute
program. Father proceeded to list several jobs he had over the past two years, which
consisted mostly of seasonal work in farming, and testified that he was currently working
for J. Davis Construction approximately thirty hours per week. Father stated he did not
disclose his employment status or income to DCS because he did not feel like it was
anyone else’s business how much money he made. Initially, Father refused to answer
questions about his income on the witness stand, prompting a direct order from the judge,
before finally stating that he currently made eleven dollars per hour with his construction
job. Additionally, Father admitted he did not have a house or car payment and that his
major monthly expenses consisted of food because Father stated he was “a big boy” and
“lik[ed] to eat.”

DCS produced a report indicating that no child support had been paid to date by
Father for any of the children. Father disputed this report, producing documentation of
child support ordered and paid beginning in July 2017, some six months after the
termination petition was filed.

Father admitted he had not yet secured suitable housing at the time of trial but
stated “even if … they had to live in a tent with me,” he should be permitted to live with
his four children in a tent and pretend they were temporarily “camping, [and] having
fun.” In the alternative, Father conceded, “Even if they gotta stay in foster care, I’ll chalk
that one up, because I know sooner or later, they’ll be 18, and I get to see them again.
And I’ll let them boys belt me right in the nose.”

In an order filed on February 20, 2018, the juvenile court terminated Father’s
parental rights on the grounds of abandonment by willful failure to support, abandonment
by failure to provide a suitable home, substantial noncompliance with the permanency

9
plans, persistence of conditions, and failure to manifest an ability and willingness to
personally assume custody or financial responsibility of the children. The juvenile court
also found that terminating Father’s parental rights was in the children’s best interest.
Father now appeals.

ISSUES

Father raises the following issues, which we have restated slightly:

1. Whether clear and convincing evidence of any statutory grounds supports the
juvenile court’s decision to terminate Father’s parental rights.
2. Whether clear and convincing evidence supports the juvenile court’s finding that
termination was in the children’s best interest.

STANDARD OF REVIEW

Tennessee Code Annotated section 36-1-113 “sets forth the grounds and
procedures for terminating the parental rights of a biological parent.” In re Kaliyah S.,
455 S.W.3d 533, 546 (Tenn. 2015). “To terminate parental rights, a trial court must
determine by clear and convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in the child’s best interest.”
In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). We review findings of fact made
by the trial court de novo upon the record “accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence is otherwise.” In re
F.R.R., 193 S.W.3d at 530 (quoting Tenn. R. App. P. 13(d)).

However, because of the heightened burden of proof in termination proceedings,
this court must make its own determination “as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.” In re
Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re Bernard T., 319 S.W.3d 586,
596-97 (Tenn. 2010). The trial court’s ruling regarding whether the evidence sufficiently
supported termination is a conclusion of law, which we review de novo with no
presumption of correctness. See In re Carrington H., 483 S.W.3d at 524.

10
ANALYSIS

I. GROUNDS FOR TERMINATION

A. Abandonment by Willful Failure to Support

Abandonment is one statutory ground for the termination of parental rights. Tenn.
Code Ann. § 36–1–113(g)(1). Tennessee Code Annotated section 36–1–102 defines
“abandonment” by failure to support, in relevant part, to mean

For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent . . . of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent . . . willfully failed to support or
ha[s] willfully failed to make reasonable payments toward the support of
the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i) (2017).3 A parent’s conduct is willful if the parent
“ha[s] the capacity to provide the support, make[s] no attempt to provide support, and
ha[s] no justifiable excuse for not providing the support.” Dep’t of Children’s Servs. v.
Culbertson, 152 S.W.3d 513, 525 (Tenn. Ct. App. 2004); see also In re Audrey S., 182
S.W.3d 838, 864 (Tenn. Ct. App. 2005). If a parent is financially unable to support a
child, then the failure to support is not willful. In re Audrey S., 182 S.W.3d at 864 fn. 33.

Parents who are eighteen years of age or older are presumed to be aware of their
legal obligation to support their children. See Tenn. Code Ann. § 36-1-102(1)(H).
Moreover, a parent’s duty to pay support “exists even in the absence of a court order to
do so.” In re Michaela V., No. E2013-00500-COA-R3-PT, 2013 WL 6096367, at *8
(Tenn. Ct. App. Nov. 19, 2013) (quoting Culbertson, 152 S.W.3d at 523–24).

3
As this Court recently explained in In re Gabriel B.:

The statute defining “abandonment” was amended effective July 1, 2018, and as
amended, Tenn. Code Ann. § 36-1-102(1)(A) no longer includes the term “willful” in its
definition of “abandonment.” Instead, Pub. Ch. 875, § 2, codified at Tenn. Code Ann. §
36-1-102(1)(I), makes the absence of willfulness an affirmative defense to abandonment
for failure to visit or support. The parent (or guardian) will have to prove by a
preponderance of the evidence that the failure to visit or support was not willful.

No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 fn. 7 (Tenn. Ct. App. July 23, 2018). Because
this change is substantive, the amended statute does not apply retroactively to this case. Id. (citing In re
D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004)).

11
Here, DCS filed the termination petition on January 3, 2017. Thus, the relevant
four-month period runs from September 2, 2016 to January 2, 2017. Although Father was
aware of his obligation to pay support, he paid no child support whatsoever until ordered
by a court to do so in July 2017, six months after the termination petition was filed,
which is outside the relative time period. Father also provided no nonmonetary support
for the children, such as clothing or food. The evidence showed that Father was able-
bodied and capable of working and, in fact, worked several jobs throughout the relevant
time period. Additionally, his expenses were minimal. Father testified his only major
expense was food, as he had no house payment or car payment. He therefore could have
provided some financial support for his children but willfully chose not to do so. See In
re Damon G., No. W2010-02164-COA-R3-PT, 2011 WL 826811, at *3 (Tenn. Ct. App.
Mar. 10, 2011) (affirming the trial court’s finding that parents willfully failed to support
their children where they “made no attempt to provide for their [children’s] financial
support” despite limited income). For these reasons, we find there is clear and convincing
evidence that Father abandoned the children by willfully failing to support them.

B. Abandonment by Failure to Provide a Suitable Home

Abandonment is also grounds for parental termination under Tenn. Code Ann. §
36-1-113(g)(1) where the parent is found to have abandoned the children by willfully
failing to establish a suitable home. According to Tenn. Code Ann. § 36–1–102, in
relevant part, abandonment may be found when:

(ii)(a) The child has been removed from the home or the physical or legal
custody of a parent … by a court order at any stage of proceedings in which
a petition has been filed in the juvenile court alleging that a child is a
dependent and neglected child, and the child was placed in the custody of
the department …;

(b) The juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department … made reasonable efforts
to prevent removal of the child or that the circumstances of the child’s
situation prevented reasonable efforts from being made prior to the child’s
removal; and

(c) For a period of four (4) months following the physical removal, the
department … made reasonable efforts to assist the parent … to establish a
suitable home for the child, but that the parent … ha[s] not made reciprocal
reasonable efforts to provide a suitable home and ha[s] demonstrated a lack
of concern for the child to such a degree that it appears unlikely that they
will be able to provide a suitable home for the child at an early date. The
efforts of the department … to assist a parent … in establishing a suitable
home for the child shall be found to be reasonable if such efforts equal or

12
exceed the efforts of the parent … toward the same goal, when the parent
… is aware that the child is in the custody of the department[.]

Tenn. Code Ann. § 36-1-102(1)(A)(ii). Thus, the statute requires DCS to prove, with
respect to the relevant four-month time period, three elements: (1) Father failed to make
reasonable efforts to provide a suitable home, (2) DCS “made reasonable efforts to assist
[Father] ... to establish a suitable home,” and (3) Father “demonstrated a lack of concern
for the child[ren] to such a degree that it appears unlikely that [he] will be able to provide
a suitable home for the child[ren] at an early date.” In re Billy T.W., No. E2016-02298-
COA-R3-PT, 2017 WL 4317656, at *7 (Tenn. Ct. App. Sept. 27, 2017) (quoting Tenn.
Code Ann. § 36–1–102(1)(A)(ii)). In this case, the relevant four-month time period
following the children’s removal runs from December 12, 2015, to April 12, 2016.

A suitable home “requires more than a proper physical living location.” In re
Hannah H., No. E2013–01211–COA–R3–PT, 2014 WL 2587397, at *9 (Tenn. Ct. App.
June 10, 2014) (quoting 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.” Id. Additionally, a parent’s failure to cooperate with DCS
and comply with the requirements of various counseling services is “directly related to
the establishment and maintenance of a suitable home,” In re M.F.O., No. M2008-01322-
COA-R3-PT, 2009 WL 1456319, at *5 (Tenn. Ct. App. May 21, 2009), and a suitable
home “requires the presence of a care giver who can supply the care and attention [a
child] needs.” In re A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002).

Here, the children were removed from the home December 11, 2015, and were
later adjudicated dependent and neglected. In the four months following the children’s
removal and beyond, DCS attempted to help Father establish a suitable home by
supervising visits, attempting to conduct home visits, conducting several CFTMs,
attempting to arrange public transportation so that Father could visit his children,
requesting funding for transportation, attempting to arrange and requesting funding for
Father’s psychological evaluation, offering to provide Father with gas cards, and
encouraging Father to complete his tasks under the permanency plans.

Father, however, failed to make reciprocal efforts. During the first four months
after the children’s removal, Father lived with his girlfriend, whose own children were
taken into DCS custody at the same time DCS removed Father’s children from his home.
DCS attempted to conduct a home study, which Father refused, and he did not complete
any services designed to address the conditions that led to the children’s removal. Father
never provided DCS with proof of safe and stable housing, nor did he allow DCS to
conduct announced or unannounced home visits.

Father also never completed any counseling geared towards parenting children
with special needs. Moreover, on the morning of trial, Father admitted to Ms. Brown he

13
would not be able to parent Cody or Gaberiel due to their special needs. He also told Ms.
Brown that morning that he was “bouncing from house to house right now,” alternating
between living with his mother and staying at his girlfriend’s house. There is not
adequate space for Father’s four boys to live with Father, his girlfriend, and her two
children in her two-bedroom trailer. Father admittedly had very few monthly expenses
aside from food, yet he testified that he was still trying to save up money for utility
deposits so he could obtain housing of his own. Moreover, Father made the outlandish
argument that he should be permitted to pitch a tent and live with the children there for
the unforeseeable future.

Father’s lack of cooperation with DCS and failure to improve his own living
situation demonstrated that he would not be able to provide a suitable home for the
children at an early date. See State Dep’t of Children’s Servs. v. M.P., 173 S.W.3d 794,
805–06 (Tenn. Ct. App. 2005) (holding that the parents “would be unable to provide the
child with a suitable home in the foreseeable future” where the parents’ level of
cooperation was “very minimal”). Despite this case pending for two years, Father does
not have housing of his own, let alone housing that is suitable for his children. Therefore,
we find there is clear and convincing evidence that Father abandoned the children by
failure to provide a suitable home.

C. Substantial Noncompliance

A parent’s parental rights may be terminated when the parent is in “substantial
noncompliance ... with the statement of responsibilities in a permanency plan.” Tenn.
Code Ann. § 36–1–113(g)(2). Terminating parental rights based on substantial
noncompliance “requires more proof than that a person has not complied with every jot
and tittle of the permanency plan.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App.
2004). To succeed on this ground, the trial court must find “that the requirements of the
permanency plan are reasonable and related to remedying the conditions that caused the
child to be removed from the parent’s custody in the first place.” Id. The trial court must
then find that the noncompliance is substantial. Id.

Here, two permanency plans were developed before DCS filed the termination
petition. In the order terminating Father’s parental rights, the juvenile court found that
Father’s responsibilities under the plans “were all reasonably related to remedying the
conditions that necessitate[d] foster care.” Ms. Brown testified that Father had a clear
understanding of what he was expected to do under the permanency plans “because [he
had] completed [the] steps before” and successfully completed requirements of previous
permanency plans. Father, however, completed nothing under the plans this time.

Father did not complete his psychological evaluation or participate in counseling
geared toward parenting children with special needs, nor did he maintain regular
visitation with the children. From the children’s removal in December 2015 to the

14
suspension of Father’s visitation rights in December 2016, Father missed thirty-four
scheduled visits, and of the few visits he did attend, he ended two of them early. Father
never petitioned the court to reinstate his visitation rights. He had not visited Ryan and
Tristian since August 12, 2016 — almost seventeen months before trial. And he had not
visited Gaberiel and Cody since April 5, 2016 — twenty-one months before trial.

Father did not maintain regular contact with DCS. Ms. Halliburton attempted to
schedule appointments with Father on several occasions, but Father either refused or
cancelled the appointments and ultimately sent a text message to Ms. Halliburton stating,
“Please do not contact me any further.” Ms. Brown testified that in the years she had
worked with Father, he had always remained in contact with her and complied with DCS
to keep the family intact. This time, Ms. Brown acknowledged things were different.
After the parents separated, she said Father went his separate way, “and left the kids with
[DCS].”

Father did not provide DCS with proof of legal income. He refused to tell any of
the caseworkers where he was working or how much money he made, stating that he did
not think it was their business, and Father refused to develop a budget as required by the
plan. He also paid no child support whatsoever until July 2017 — six months after DCS
filed the termination petition — even though he had the ability to do so.

Furthermore, as discussed above, Father did not comply with his responsibilities
related to maintaining a suitable home. He never provided DCS with proof of safe and
stable housing, nor did he allow DCS to conduct announced or unannounced home visits.
The morning of trial, he told Ms. Brown that he still had not obtained stable housing for
the children, and he admitted that he was currently was “bouncing from house to house.”

For these reasons, we find there is clear and convincing evidence that Father was
substantially noncompliant with his responsibilities under the permanency plans.

D. Persistence of Conditions

The juvenile court also found that terminating Father’s parental rights was
appropriate under Tennessee Code Annotated § 36–1–113(g)(3), a ground commonly
referred to as “persistence of conditions.” See In re Audrey S., 182 S.W.3d at 871. This
ground for termination occurs when:

[t]he child has been removed from the home of the parent … 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

15
abuse or neglect and that, therefore, prevent the child’s safe return to the
care of the parent …, still persist[s];

(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 … in the
near future; and

(C) The continuation of the parent … 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) (2017). The goal of this ground is to avoid having a
child linger in foster care if a parent cannot demonstrate the ability to provide a safe and
caring environment for the child within a reasonable amount of time. In re Arteria H.,
326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other grounds by In re Kaliyah
S., 455 S.W.3d 533 (Tenn. 2015). Therefore, the question before the court is “the
likelihood that the child can be safely returned” to the parent’s custody, “not whether the
child can safely remain in foster care.” In re K.A.H., No. M1999–02079–COA–R3–CV,
2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000).

Here, the children were removed from the home in December 2015, well over the
six month requirement under this ground. At the time of trial, the conditions that led to
the children’s removal persisted. DCS removed the children from the home due to
domestic violence in the home, medical neglect, environmental neglect, and the parents’
substance abuse. Father, however, completed none of the services designed to address
those concerns. As previously discussed, he did not complete a psychological evaluation,
nor did he participate in counseling geared toward parenting children with special needs,
establish safe and stable housing, or otherwise complete the goals under the permanency
plans.

The conditions were unlikely to be remedied at an early date. Father had over two
years to cooperate with DCS and make the necessary adjustments that would enable the
children’s safe return to his care. Yet, as discussed above, he did nothing to address the
issues that led to the children’s removal. Father did not pay child support until six months
after the termination petition was filed and never provided DCS with proof of legal
income. Accordingly, Ms. Brown did not believe that Father would be able to provide a
suitable home in the near future. She further testified that in the two years this case has
been pending, Father has made “zero progress” in complying with DCS to regain custody
of his children, and Ms. Halliburton believed that, due to Father’s failure to complete the
necessary services, he was “not willing to work to get [his] children back.” DCS could
not declare Father’s housing suitable in part because he refused to let DCS on the
property.

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Continuation of the parent-child relationship greatly diminished the children’s
chances of early integration into a safe, stable, and permanent home. As discussed above,
at the time of trial, Father had not addressed the conditions that led to the children’s
removal or obtained safe and stable housing and was therefore in no position to care for
the children. Meanwhile, the children’s conditions had improved. Ryan and Tristian were
doing well in their resource home; they had no behavioral issues and were succeeding
academically. Cody had made progress at Parkridge Valley Academy. He received an
individualized education program “to meet his specialized learning needs,” and his
behavior and social skills had improved. Gaberiel received individual counseling through
Centerstone and anger management through My Friend’s House, and he no longer
required mental-health medication.

As is the case here, where DCS made “efforts to provide help to improve the
parenting abilities” over a long period of time, and those efforts have proved ineffective,
we can justifiably conclude “that there is little likelihood of such improvement as would
allow the safe return” of the children to Father in the near future. In re T.S., No. M1999-
01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000). For these
reasons, we affirm the juvenile court’s termination of Father’s parental rights on the
ground of persistence of conditions.

E. Ability and Willingness to Assume Custody

The juvenile court also found that termination of Father’s parental rights was
appropriate due to Father’s failure to show an ability and willingness to assume custody
of the children. Under this ground, a parent’s rights may be terminated when the parent

has failed to manifest, by act or omission, an ability and willingness to
personally assume legal and physical custody or financial responsibility of
the child, and placing the child in the person’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological
welfare of the child.

Tenn. Code Ann. § 36-1-113(g)(14). With this ground for termination, the petitioner must
prove two elements by clear and convincing evidence. In re Maya R., No. E2017-01634-
COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018). First, the petitioner
must prove that the parent “has failed to manifest … an ability and willingness to
personally assume legal and physical custody or financial responsibility of the child.”
Tenn. Code Ann. § 36-1-113(g)(14). Second, the petitioner must prove that placing the
child in the parent’s custody “would pose a risk of substantial harm to the physical or
psychological welfare of the child.” Id.

17
Father failed to manifest an ability and willingness to assume legal and physical
custody of the children.4 When the first permanency plan was developed on December
29, 2016 — just two weeks after the children were removed — DCS explained to Father
his responsibilities under the plan, and he appeared to have a clear understanding of those
responsibilities. Six months later, in June 2016, Ms. Halliburton provided Father with a
copy of the TPR Criteria and discussed it with him. Nevertheless, Father did not complete
a psychological evaluation, participate in the counseling geared toward parenting children
with special needs, establish safe and stable housing (or provide proof thereof), or
otherwise complete his responsibilities under the permanency plans.

Father also failed to manifest an ability and willingness to assume financial
responsibility of the children. As discussed above, Father was capable of working and
worked at several different places while this case was pending. Father did not have a
house or car payment and admitted that his major monthly expenses consisted of food,
because he was “a big boy” and “lik[ed] to eat.” Yet the evidence showed Father paid no
child support whatsoever until July 2017, six months after DCS filed the termination
petition, and moreover, he never provided any of the children with any nonmonetary
support such as clothes, food, toiletries, books or toys.

Moreover, the same evidence supports the determination that placing the children
in Father’s legal and physical custody would pose a risk of substantial harm to their
physical or psychological welfare. As discussed above, Father had not established safe
and stable housing or otherwise completed his tasks under the permanency plans aimed at
remedying the conditions that necessitated the children’s placement in foster care. Ms.
Brown testified that domestic violence in the home had been ongoing for years, and she
described the wrestling matches Father condoned between the children in the family
living room, during which Father allowed the children to use objects to hit one another.
Additionally, Father taught the children that it was acceptable to curse at their mother and
call her ugly names, and he explicitly told the children that they did not have to listen to
what women said. Father later admitted he did not realize the impact his teachings had on
the children’s mindsets and behavior. Father made “zero progress” in remedying his
situation and even admitted on the day of trial that he did not have the ability to parent his
two children with special needs. Meanwhile, the children were doing well in foster care
and had made progress in their various schools.

4
This ground for termination is a fairly recent addition to the statutory framework, effective as of
July 1, 2016. See 2016 Tenn. Pub. Acts, Ch. 919 § 20 (S.B. 1393). Currently, there is an apparent split of
authority regarding the interpretation of Tenn. Code Ann. § 36-1-113(g)(14). The issue remains unsettled
whether this ground can be relied upon to terminate parental rights if a parent has manifested a
willingness but not an ability to assume legal and physical custody or financial responsibility for the
child. In re Amynn K., E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12 (Tenn. Ct. App. June 20,
2018). Here, Father failed to manifest both an ability and a willingness to take care of the children, so we
need not address the varying interpretations of Tenn. Code Ann. § 36-1-113(g)(14).

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For these reasons, we affirm the juvenile court’s termination of Father’s parental
rights on this ground.

II. BEST INTEREST

After at least one ground for parental termination has been established by clear
and convincing evidence, the court must then determine whether termination is in the
child’s best interest. Tenn. Code Ann. § 36-1-113(c)(1)–(2); White v. Moody, 171 S.W.3d
187, 192 (Tenn. Ct. App. 2004). In making that determination, the court views the child’s
best interests “from the child’s, rather than the parent’s, perspective.” In re Audrey S.,
182 S.W.3d at 878. Our legislature has identified nine statutory factors for the court to
consider in conducting a best-interests analysis. They include:

(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;

(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;

(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;

19
(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). A trial court does not have to find the existence of each
of these nine factors before it may conclude that termination is in the child’s best interest.
In re Navada N., 498 S.W.3d 579, 607 (Tenn. Ct. App. 2016). “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.” Id. However, as the Tennessee Supreme Court recently held,

this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.

In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017). Neither is the trial court required
to total up each of the factors and determine whether the sum of them weighs in favor or
against the parent. In re Audrey S., 182 S.W.3d at 878. “The relevancy and weight to be
given each factor depends on the unique facts of each case.” Id.

Here, the juvenile court analyzed the nine statutory factors and found that
terminating Father’s parental rights was in the children’s best interest.

Father has not made any adjustments of circumstances, conduct, or conditions as
to make it safe and in the best interest of the children to be in the home. See Tenn. Code.
Ann. § 36-1-113(i)(1). The same conditions exist today that existed at the time of the
removal. Father admittedly does not know how to care for children with special needs,
and there is no evidence of any kind of safe and stable housing for the children.

Additionally, Father failed to make any lasting adjustments after reasonable efforts
by DCS for such a length of time that a lasting adjustment no longer appears to be
reasonably possible. See Tenn. Code. Ann. § 36-1-113(i)(2). To assist Father in
reunification with the children, DCS supervised visits, attempted to conduct home visits,
conducted several CFTMs, attempted to arrange public transportation, requested funding
for transportation, attempted to arrange and requested funding for Father’s psychological
evaluation, offered to provide Father with gas cards, and encouraged Father to complete

20
his tasks under the permanency plans. Per the juvenile court’s order, “For at least seven
(7) years, [DCS] has tried to prevent getting to the place we are at today.” Despite having
all of these available resources, Father refused to remain in contact with DCS or accept
the services offered to him.

Father has not maintained regular visitation or contact with the children. See Tenn.
Code. Ann. § 36-1-113(i)(3). It has been over a year-and-a-half since Father saw Ryan or
Tristian, and close to two years since he has seen Gaberiel or Cody. Any meaningful
relationship Father might once have had with the children is no longer established. See
Tenn. Code. Ann. § 36-1-113(i)(4). Ms. Halliburton testified that Father had
demonstrated no interest whatsoever in the welfare of the children. The physical
environment of Father’s home was not healthy or safe for the children. See Tenn. Code
Ann. § 36-1-113(i)(7). At the time of trial, Father still had not obtained stable housing for
the children and went “back and forth” between his girlfriend’s home and his mother’s
home—who, along with her husband, was physically unable to care for the children.
Father did not pay child support consistent with the child-support guidelines. See Tenn.
Code Ann. § 36-1-113(i)(9). Evidence showed that Father did not pay any child support
whatsoever until July 2017—six months after DCS filed their termination petition, and
there was no evidence that Father provided any kind of nonmonetary support for the
children.

Finally, a change of caretakers and physical environment would have a negative
effect on the children’s emotional, psychological, and medical conditions. See Tenn.
Code Ann. § 36-1-113(i)(5). As discussed above, Father demonstrated a complete lack of
concern for the children and had done nothing throughout the two-year custodial period
to remedy the conditions that led to the children’s removal. Father seemingly
acknowledged that the children would need to remain in foster care. He testified that he
would “chalk that one up,” and let the “boys belt [him] right in the nose” as a result of his
failed parenting skills. Meanwhile, the children were doing well in foster care and had
made progress. Ryan and Tristian were doing well in their resource home. They had no
behavioral issues and were succeeding academically. Cody was receiving an
individualized education program “to meet his specialized learning needs,” and his
behavior and social skills had improved. Gaberiel received individual counseling and
anger management, and he no longer required mental-health medication.

It is clear that in making its finding, the juvenile court thoroughly examined the
nine statutory best interest factors and found that terminating Father’s parental rights was
in the children’s best interest. The record fully supports this finding. Therefore, we affirm
the juvenile court’s decision that terminating Father’s parental rights was in the best
interest of the children.

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IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Robert Alan S.

________________________________
FRANK G. CLEMENT JR., P.J., M.S.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4349584. Public record. Not legal advice.