In Re Keagan P.

08/05/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 1, 2019

IN RE KEAGAN P.

Appeal from the Circuit Court for Blount County

No. E-27956 Tammy M. Harrington, Judge

No. E2019-00055-COA-R3-PT

A trial court terminated a father’s parental rights on the basis of abandonment by failure

to visit and substantial noncompliance with a permanency plan. The father appealed, and

we affirm the termination.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY

and CARMA DENNIS MCGEE, JJ., joined.

Molly Jo Hardin, Knoxville, Tennessee, for the appellant, John R.P.

Herbert H. Slatery, III, Attorney General and Reporter, and Jeffrey D. Ridner, Assistant

Attorney General, for the appellee, Tennessee Department of Children’s Services.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Teresa M.H. (“Mother”) and John R.P. (“Father”) are the parents of Keagan P.,

who was born in 2015. Keagan was removed from his parents’ care and placed in the

temporary custody of the Department of Children’s Services (“DCS” or “the

Department”) in August 2017 when he was found living in a homeless shelter with

Mother.1 Mother and Father were awarded supervised visitation pursuant to a

1

Keagan’s siblings, who are not at issue in this appeal, were placed into DCS custody a week earlier when

a neighbor realized they were living in a house with no adult(s), no electricity, and no running water.

During a preliminary dependency and neglect hearing involving Keagan’s siblings on August 16, 2017,

the juvenile court magistrate issued a bench order that Keagan be removed and placed into DCS’s custody

when she learned that he was living with Mother in a homeless shelter.

preliminary hearing order dated August 16, 2017. At an adjudicatory/dispositional

hearing on November 16, 2017, the trial court ordered DCS and the parents to have a

conference call each month to set up the next month’s visitation schedule. Mother and

Father were required to confirm their visits with the DCS case manager twenty-four

hours in advance of each scheduled visit, and DCS was directed to assist the parents with

their travel expenses by providing them with gas cards.2

The Department initially prepared a Family Permanency Plan on August 28, 2017,

with the permanency goal of returning Keagan and his siblings to their parents. This plan

was ratified by the trial court on November 16, 2017, and it had a goal target date of

February 28, 2018. The parents were not making progress with the requirements set forth

in this plan, so a second permanency plan was created on April 2, 2018. In addition to

the goal of returning Keagan and his siblings to their parents, the second plan included

the permanency goal of adoption. This plan was ratified by the trial court on May 11,

2018. Father’s responsibilities under the second plan were identical to those set forth in

the first plan, with a few responsibilities added. Father was required to visit Keagan at

least twice each month. He was permitted to have visitation in person and via e-mail,

phone calls, and letters. His in-person visits were to be supervised initially, with the level

of supervision diminishing as he met his responsibilities under the plan. Father was also

required to do the following: maintain a substance-free lifestyle without legal infractions;

complete an alcohol and drug assessment and follow all recommendations; sign a release

of information to allow DCS access to the results of the assessments; submit to random

drug screenings upon request by DCS; sign releases for background checks in Tennessee

and West Virginia; contact the family service worker (“FSW”) weekly to provide an

update on his living and job situation and his progress on recommendations resulting

from assessments; maintain safe housing free of environmental hazards; and complete

parenting assessments, provide the FSW with a certificate of completion, and follow

recommendations. Father was required to provide proof to the FSW of reliable

transportation, legal income, and stable housing to show he could support himself and

Keagan.

The Department placed Keagan and his siblings together in a foster home that was

over 100 miles away from Father. The permanency plan directed Father to provide a

transportation plan to the FSW one week prior to each scheduled visit to enable the FSW

to prepare the necessary paperwork to submit a request for a gas card to assist Father with

his travel costs. On April 26, 2018, Father signed a statement on the second permanency

plan indicating that the plan had been discussed with him and that he agreed with the

plan. He also signed a statement the same day indicating that he had received a copy of

2

The trial court terminated both Mother’s and Father’s parental rights, but only Father appeals the

termination. Thus, we will not address any issues relating to Mother or Mother’s responsibilities under

the permanency plans.

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the Criteria and Procedures for Termination of Parental Rights (“CPT”) and that he was

given an explanation of its contents.3

From August 2017 to April 11, 2018, when DCS filed its termination petition,

Father exercised his visitation rights with Keagan just two or three times. He failed to

maintain contact with DCS or complete any of the substantive requirements of the second

permanency plan. The Department filed its petition to terminate Father’s parental rights

on April 11, 2018. The grounds for termination DCS asserted against Father include

abandonment by failure to visit, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-

1-102(1)(A)(i),4 and substantial noncompliance with the permanency plan, pursuant to

Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2). Father did not file an answer to

the petition.

This case was tried on November 21, 2018. Father was in West Virginia during

the trial and was permitted to participate in the proceedings by phone. Father’s attorney

attended and participated in the trial. The court heard live testimony by Mother, Ms. J.

(the foster mother), and Frenchie Mitchell (the current FSW). Roben Hartsell was the

FSW from August 2017 through July 8, 2018, and she gave a deposition on October 16,

2018, that was admitted into evidence.

Following the presentation of evidence, the trial court issued a ruling from the

bench terminating Father’s parental rights based on the two grounds DCS asserted against

him. The court then issued a written order on December 12, 2018. Father appeals,

challenging the trial court’s determination that clear and convincing evidence supports

both the grounds for termination and the best interest analysis.

II. STANDARD OF REVIEW

The Tennessee Supreme Court has described the appellate review of parental

termination cases as follows:

An appellate court reviews a trial court’s findings of fact in

termination proceedings using the standard of review in Tenn. R. App. P.

13(d). Under Rule 13(d), appellate courts review factual findings de novo

on the record and accord these findings a presumption of correctness unless

3

The record reflects that Father did not attend the meeting with DCS when the initial permanency plan

was established and discussed in August 2017, but he participated in the meeting by phone. Father signed

a statement on January 18, 2018, indicating that he had received a copy of the CPT and that he was given

an explanation of its contents.

4

The Department alleged that Father willfully failed to visit, within the meaning of Tenn. Code Ann. § 36-

1-102(1)(E), and that the visits Father had with Keagan constituted “token visitation,” within the meaning

of Tenn. Code Ann. § 36-1-102(1)(C).

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the evidence preponderates otherwise. In light of the heightened burden of

proof in termination proceedings, however, the reviewing court must make

its own determination as to whether the facts, either as found by the trial

court or as supported by a preponderance of the evidence, amount to clear

and convincing evidence of the elements necessary to terminate parental

rights. The trial court’s ruling that the evidence sufficiently supports

termination of parental rights is a conclusion of law, which appellate courts

review de novo with no presumption of correctness. Additionally, all other

questions of law in parental termination appeals, as in other appeals, are

reviewed de novo with no presumption of correctness.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also

In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).

The termination of a parent’s rights is one of the most serious decisions courts

make. As the United States Supreme Court has said, “[f]ew consequences of judicial

action are so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S.

745, 787 (1982). “Terminating parental rights has the legal effect of reducing the parent

to the role of a complete stranger,” In re W.B., IV, Nos. M2004-00999-COA-R3-PT,

M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005),

and of “severing forever all legal rights and obligations of the parent or guardian,” Tenn.

Code Ann. § 36-1-113(l)(1).

A parent has a fundamental right, based in both the federal and state constitutions,

to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,

651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.

McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d

674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn.

1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right “is among

the oldest of the judicially recognized fundamental liberty interests protected by the Due

Process Clauses of the federal and state constitutions.” In re Carrington H., 483 S.W.3d

at 521 (citing U.S. CONST. amend. XIV, § 1; TENN. CONST. art. 1, § 8). While this right

is fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights

in certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d at 250-51. Our

legislature has listed the grounds upon which termination proceedings may be brought.

See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, and a

parent’s rights may be terminated only where a statutory basis exists. In re Angela E.,

303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Jones v.

Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620, 622

(Tenn. Ct. App. 1998).

To terminate parental rights, a court must find by clear and convincing evidence

the existence of at least one of the statutory grounds for termination and that termination

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is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S., 455

S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

‘“Clear and convincing evidence enables the fact-finder to form a firm belief or

conviction regarding the truth of the facts, and eliminates any serious or substantial doubt

about the correctness of these factual findings.”’ In re Carrington H., 483 S.W.3d at 522

(quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)).

“Evidence satisfying the clear and convincing evidence standard establishes that the truth

of the facts asserted is highly probable.” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct.

App. 2005). As a reviewing court, we “must ‘distinguish between the specific facts

found by the trial court and the combined weight of those facts.”’ In re Keri C., 384

S.W.3d 731, 744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156

(Tenn. Ct. App. 2007)). Then, we must determine “whether the combined weight of the

facts . . . clearly and convincingly establishes all of the elements required to terminate” a

parent’s rights. Id. “When it comes to live, in-court witnesses, appellate courts should

afford trial courts considerable deference when reviewing issues that hinge on the

witnesses’ credibility because trial courts are ‘uniquely positioned to observe the

demeanor and conduct of witnesses.’” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014)

(quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)).

Once a ground for termination is established by clear and convincing evidence, the

trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303

S.W.3d at 251. “The best interests analysis is separate from and subsequent to the

determination that there is clear and convincing evidence of grounds for termination.” Id.

at 254. The existence of a ground for termination “does not inexorably lead to the

conclusion that termination of a parent’s rights is in the best interest of the child.” In re

C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June

26, 2006).

III. ANALYSIS

A. Grounds for Termination

1. Abandonment by Failure to Visit

The termination of a parent’s rights may be based on the ground of abandonment,

as that term is defined in Tenn. Code Ann. § 36-1-102. Tenn. Code Ann. § 36-1-

113(g)(1). The Department alleged that Father abandoned Keagan by willfully failing to

visit him, as set forth in Tenn. Code Ann. § 36-1-102(1)(A)(i). When DCS filed the

termination petition, that statute provided, in relevant part:

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 or parents or the guardian or guardians of the child who is the

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subject of the petition for termination of parental rights or adoption, that the

parent or parents or the guardian or guardians . . . have willfully failed to

visit . . . the child.

Tenn. Code Ann. § 36-1-102(1)(A)(i) (2018).5 The applicable statute defines “willfully

failed to visit” as “the willful failure, for a period of four (4) consecutive months, to visit

or engage in more than token visitation.” Id. § 36-1-102(1)(E) (2018). “Token

visitation” is defined as “visitation, under the circumstances of the individual case, [that]

constitutes nothing more than perfunctory visitation or visitation of such an infrequent

nature or of such short duration as to merely establish minimal or insubstantial contact

with the child.” Id. § 36-1-102(1)(C). The statute further provides that “[a]bandonment

may not be repented of by resuming visitation . . . subsequent to the filing of any petition

seeking to terminate parental or guardianship rights or seeking the adoption of a child.”

Id. § 36-1-102(1)(F). The Department filed the termination petition on April 11, 2018.

Thus, the relevant four-month period is December 10, 2017, through April 10, 2018. See

In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct.

App. Feb. 20, 2014) (explaining that statutory four-month period covers four months

preceding day termination petition was filed and does not include day petition was filed).

“Willful conduct consists of acts or failures to act that are intentional or voluntary

rather than accidental or inadvertent.” In re Audrey S., 182 S.W.3d at 863. To prove the

ground of abandonment by failure to visit, DCS must show by clear and convincing

evidence that Father “had the capacity to do so, made no attempt to do so, and had no

justifiable excuse for not doing so.” In re Adoption of Angela E., 402 S.W.3d 636, 640

(Tenn. 2013) (citing In re Audrey S., 182 S.W.3d at 864).

The willfulness of particular conduct depends upon the actor’s intent. Intent

is seldom capable of direct proof, and triers-of-fact lack the ability to peer

into a person’s mind to assess intentions or motivations. Accordingly,

triers-of-fact must infer intent from the circumstantial evidence, including a

person’s actions or conduct.

In re Audrey S., 182 S.W.3d at 864 (citations omitted); see also Tenn. Dep’t of Children’s

Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004). Whether Father failed

5

The statute defining “abandonment” was amended effective July 1, 2018. As amended, Tenn. Code Ann.

§ 36-1-102(1)(A) no longer includes the term “willful” in its definition of “abandonment.” Instead, 2018

Tenn. 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. To establish this defense, the parent

(or guardian) must prove by a preponderance of the evidence that the failure to visit or support was not

willful. Because this change is substantive rather than procedural or remedial, however, the amended

statute does not apply retroactively to this case. See In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004).

Instead, this case is governed by the law in effect when the termination petition was filed in April 2018.

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to visit Keagan is a question of fact. See In re Adoption of Angela E., 402 S.W.3d at 640.

Whether his failure to visit constitutes willful abandonment under the statute, however, is

a question of law that we review de novo, according the trial court’s determination no

presumption of correctness. See id. (citing In re Adoption of A.M.H., 215 S.W.3d 793,

810 (Tenn. 2007)).

Father did not testify at the trial. Ms. Hartsell, who was Keagan’s FSW from

August 2017 through July 8, 2018, testified by deposition that Father visited Keagan just

one time during the relevant four-month period, on March 8, 2018. Ms. Hartsell

explained that in November 2017 the trial court ordered DCS to schedule a Child and

Family Team Meeting (“CFTM”) each month to accommodate the parents, who had

different schedules, to allow them to select visitation dates that worked for them. Ms.

Hartsell submitted an affidavit that was included as an exhibit at trial in which she stated

that CFTMs were scheduled in advance and took place on November 30, 2017, January

5, 2018, February 2, 2018, March 2, 2018, April 2, 2018, and May 7, 2018. Father was

notified by e-mail and text, and by phone when possible. Ms. Hartsell testified that

Father attended fewer than three CFTMs. There is no evidence of the number of visits

Father scheduled, but he does not dispute that he visited Keagan only once during the

relevant four-month period.

Father cites In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007), to support

his contention that he was thwarted in his attempts to visit Keagan more because Keagan

was living in a foster home that was over 100 miles away. In that case, the Tennessee

Supreme Court stated that “a parent who attempt[s] to visit and maintain relations with

his child, but [is] thwarted by the acts of others and circumstances beyond his control,

[does] not willfully abandon his child.” In re Adoption of A.M.H., 215 S.W.3d at 810.

Unlike this case, A.M.H.’s custodians did not allow the child’s parents to see A.M.H. as

often as her parents wanted. Id. at 800. On the day of A.M.H.’s second birthday, her

parents wanted to take her with them to have a family photograph made, but A.M.H.’s

custodians refused to let her go. Id. at 801. The police were called and told A.M.H.’s

parents they would be arrested if they returned to the custodians’ house. Id. As a result,

A.M.H.’s parents did not visit A.M.H. in the four months preceding the filing of the

termination petition. Id. The parents took steps to regain custody of their child during

that time, however, by filing a petition to regain custody, initiating two juvenile court

hearings, and contacting the local media. Id. at 810. Under these circumstances, the

Tennessee Supreme Court concluded that the parents’ failure to visit their child during

the relevant four-month period was not willful. Id.

In this case, by comparison, no evidence was introduced that Keagan’s foster

parents were unwilling to allow Father to visit Keagan or that Father was thwarted by

anyone else in his attempts to visit with Keagan. Ms. Hartsell was asked if she helped the

parents obtain gas cards to defray some of their travel costs.

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Q: Were you able to assist them with gas cards?

A: I was not able to complete CSRs for gas cards.

Q: Why not?

A: I couldn’t get the parents to meet with me to complete the paperwork

needed by Fiscal to be able to submit for the gas cards.

Q: Okay. Now, can you please explain what a CSR is.

A: A CSR is a Case Service Request. We need a specific document, a

TennCare eligibility document, in order -- signed by the parents in order to

pay for certain services through the Department.

Q: What, if anything, were you able to provide for the parents on this

matter?

A: I wasn’t able to assist them with gas cards or anything for transportation

mainly because I wasn’t able to have enough communication or contact

with them to complete the proper paperwork to do so.

Q: Did you experience times that you were frequently unable to make

contact with the parents?

A: Yes.

Q: Can you elaborate on that.

A: That was -- I mean, that happened through most of the duration of the

case. I was provided phone numbers that were disconnected. I recall by the

first hearing in November being provided at least nine phone numbers by

parents that were disconnected or not working. Just being able to make

contact -- there were times that, you know, I needed to get in touch with the

parents. There were times I had no contact information or no reliable

contact information except for e-mail addresses. However, there were many

periods of time where I just couldn’t make any contact with all three of the

parents actually.[6]

Ms. Hartsell then explained that even when the parents scheduled a visit, a majority of

the visits did not take place.

6

In addition to Mother, the Department sought the termination of two different fathers in this case.

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Q: And then the meetings that they did participate in and we actually

scheduled a visit, would they show up for those visitations?

A: They didn’t show up for a majority of the visits that were scheduled.

Q: And do you remember why they said that they couldn’t show up for

these visits or why they missed the visits after they scheduled them on their

own schedule?

A: Some of the reasons were they did not confirm the visits timely, which

is a part of the Permanency Plan. They have to confirm the visits timely in

order to move forward with the visits, because these are long-distance

visits. Also due to just either forgetting or no communication in general.

Q: And all three parents usually would drive together for a visit, correct,

most of the time?

A: To my knowledge, yes.

Q: Okay. And they would state that they didn’t have any transportation

problems getting to these visits, correct, usually?

A: Normally they would let me know that there weren’t any problems

getting to visits if they had planned to go.

Q: But then after the fact if they missed the visits, some of the reasons they

would say was because of transportation issues?

A: Correct.

Q: And you also offered to provide a transportation plan or gas cards to

them?

A: The offer has always been on the table to assist the parents with

transportation. However, there are certain responsibilities that the parents

have to also -- that the parents also have in order to be able to provide

transportation for them.

Q: And have the parents ever asked you for any of those services?

A: The parents have not asked me to complete the paperwork to submit for

a gas card, no.

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In its written order, the trial court found that Father’s single visit to Keagan during

the relevant four-month period “amounted to mere token visitation.” The court found

there could have been more visits, “especially with the Department convening monthly

child and family team meetings.” Because Keagan was living in a foster home that was

over 100 miles away, the court addressed the issue of gas cards that were available to

help defray Father’s travel costs:

Counsel for [Father] raised an issue regarding gas cards; i.e. whether DCS

should have provided those and whether that is a defense. This Court has

considered that but does not find it to be a significant barrier to visitation

for [Father]. The Department is not in the business of handing out gas

cards just to hand them out. They have to be responsible and report where

those gas cards go and what happens to them. The parent has to do

something to get those gas cards; to have a (transportation) plan; to fill out

the necessary paperwork. One can see how a contrary scheme could be

abused. There is nowhere in the proof that [Father] tried to obtain the gas

cards and [was] denied.

The court found the evidence was clear and convincing that DCS explained to Father his

obligation to visit Keagan and the consequences associated with his failure to visit, and it

held that DCS met its burden of proving abandonment by failure to visit by clear and

convincing evidence.

We agree with the trial court’s analysis. Father presented no evidence that he

attempted, without success, to contact any DCS employee to schedule a visit, that he sent

letters or cards to Keagan, or that he called the foster parents in an effort to speak with

Keagan during the relevant four-month period. Because the issue of willfulness is based

on one’s intent to do or not do something, we infer Father’s intent from his failure to

attend more CFTMs to schedule visits and his failure to exercise his rights to visit

Keagan more than one time in the four months at issue for no apparent reason. See In re

Audrey S., 182 S.W.3d at 864 (stating intent must be inferred from circumstances,

including parent’s actions or conduct). We conclude, based on the circumstances, that

Father’s single visit in March 2018 constituted merely “token visitation,” as defined by

Tenn. Code Ann. § 36-1-102(1)(C), and we affirm the trial court’s determination that

DCS proved by clear and convincing evidence that Father abandoned Keagan by willfully

failing to visit him during the relevant four-month period, in accordance with Tenn. Code

Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i) (2018).

2. Substantial Noncompliance with Permanency Plan

Terminating a parent’s rights for substantial noncompliance with a permanency

plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) requires the petitioner to show,

initially, “that the requirements of the permanency plan are reasonable and related to

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remedying the conditions that caused the child to be removed from the parent’s custody

in the first place.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (citing In re

Valentine, 79 S.W.3d at 547-49, and In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App.

2003)); see Tenn. Code Ann. § 37-2-403(a)(2)(C) (“[s]ubstantial noncompliance by the

parent with the statement of responsibilities provides grounds for the termination of

parental rights . . .”). If the trial court fails to make a finding regarding the

reasonableness of the parent’s responsibilities under the permanency plan, the reviewing

court must review this issue de novo. In re Valentine, 79 S.W.3d at 547. The petitioner

must then demonstrate “that the parent’s noncompliance is substantial in light of the

degree of noncompliance and the importance of the particular requirement that has not

been met.” In re M.J.B., 140 S.W.3d at 656 (citing In re Valentine, 79 S.W.3d at 548-49,

and In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12 (Tenn. Ct.

App. June 3, 2003)). “Substantial” has been defined as “[i]mportant, essential, and

material; of real worth and importance.” BLACK’S LAW DICTIONARY (10th ed. 2014).

When considering whether a parent’s noncompliance is substantial for purposes of

terminating his or her parental rights, “the real worth and importance of noncompliance

should be measured by both the degree of noncompliance and the weight assigned to that

requirement.” In re Valentine, 79 S.W.3d at 548.

Ms. Hartsell testified that Keagan and his siblings entered DCS custody due to

environmental neglect and homelessness. Keagan’s siblings were living on their own in a

house that had no electricity or running water when they were removed, and Keagan was

located in a homeless shelter with Mother a short time later. Ms. Hartsell did not initially

know that there were any alcohol or drug concerns, but she learned that the parents

suffered from substance abuse after Keagan and his siblings were placed into the State’s

custody. The trial court found that the requirements of the permanency plans were

reasonably related to remedying the conditions which necessitated the children’s removal

into foster care and that they were in the best interests of the children and the parents.

The court also found that the requirements were “doable.” Father does not contest these

findings.

Ms. Hartsell testified in her deposition that the only plan requirement Father

completed was the execution of releases for background checks. In an affidavit

submitted as an exhibit during the trial, Ms. Hartsell stated that DCS attempted to provide

the parents assistance with “in-home A&D, mental health, and parenting assessments. . . .

[Father] reported that he had contacted Helen Ross McNabb for an A&D assessment and

a mental health assessment was scheduled for June.” However, the record reflects that

Father did not follow through with the scheduled assessments and that he failed to

complete any other steps required of him under the permanency plan. The record shows

that on November 30, 2017, Father informed a FSW that he had just quit a job at Packard

Sanitation but would be starting a job at Beverage Control later that day. A short time

later the FSW asked Father about his job at Beverage Control, and Father responded that

he was not yet working there. Father never provided DCS with any proof of

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employment. Father was arrested on November 30, 2017, and charged with theft of

merchandise, which was a Class A misdemeanor. At the time of trial nearly a year later,

there was an outstanding warrant for Father’s arrest.

In arguing he was not in substantial noncompliance with the permanency plan,

Father relies on a Foster Care Review Board Summary dated April 26, 2018, that was

included as an exhibit in the record. Father and his attorney appeared at the Foster Care

Review Board (“the Board”) meeting on April 26, 2018; no one from DCS was at this

meeting. The Board reviewed the second permanency plan and identified the parents’

responsibilities, indicating whether the parents had “completed,” were “actively

participating,” or were “not compliant” with each task on the plan. For Father, the Board

included the following responsibilities: (1) maintain housing, income, and transportation;

(2) A&D assessment; (3) mental health assessment; and (4) parenting assessment. The

Board indicated that Father was “actively participating” in each task; it did not indicate

that any task had been completed.7 Under the “Recommendations” section, the Board

found that Father had complied with “his most significant responsibilities in the

permanency plan,” and it instructed Father to “continue to work the perm plan and follow

treatment recommendations.” The Board stated that the need for foster care still existed

and that the Board did not recommend a change in the plan’s permanency goals of

“return to parent” and “adoption.”

Ms. Hartsell was the only one to testify about the Board’s summary, and she

explained her understanding of it. According to her, the Board checked the boxes

indicating that Father was “actively participating” in the tasks listed in the summary

because “he was at the time doing something or discussed that he had been doing

something” in furtherance of the requirements. The Board’s statement that Father had

complied with his most significant responsibilities is inconsistent with the testimony

elicited from Ms. Hartsell and Frenchie Mitchell, the two DCS employees who worked

with Keagan, his siblings, and the parents. Ms. Hartsell worked with the children and

parents from the time the children entered DCS custody in August 2017 until July 9,

2018, when she transferred the case to Ms. Mitchell, who worked with the children and

parents until the time of trial on November 21, 2018. Ms. Hartsell testified that the only

plan requirement that Father satisfied was signing the releases allowing DCS to conduct

background checks. When Ms. Mitchell was asked whether Father “completed anything

on the permanency plan,” she responded, “No, he has not.” Thus, although it may not

have been inaccurate to record that Father was actively working on some of the plan’s

requirements as of the date of the Board’s meeting on April 26, 2018, no evidence was

presented that he had completed any of the substantive requirements addressing the

reasons that Keagan and the other children were removed from their parents’ custody by

the plan’s target date of October 2, 2018. Father’s reliance on In re Valentine does not

7

The Board also identified “parenting classes” as one of Father’s responsibilities, but no level of

completion or participation was noted for this task.

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further his cause because, unlike Father, the mother in that case either fully or primarily

satisfied the most substantive and important responsibilities of her permanency plan: she

obtained stable housing, attended parenting classes, and attended all but one scheduled

visitation with her child in the year prior to the termination hearing. In re Valentine, 79

S.W.3d at 548-49.

The trial court found that if Father had been willing, DCS would have assisted him

in the following ways:

to complete the alcohol and drug assessment and follow the

recommendations; to complete parenting classes; to find a suitable home

without any illegal activity; to complete a parenting assessment and follow

recommendations; to obtain reliable transportation and suitable income; and

to submit to and pass drug screens.

The court found that Ms. Hartsell went over the second permanency plan with Father,

that Father was aware of the plan’s requirements, and that Father was aware of the

consequences from his failure to complete the steps on the plan. The court concluded

that the requirements of Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2) were

satisfied by clear and convincing evidence. We agree that DCS proved Father’s

substantial noncompliance with the second permanency plan by clear and convincing

evidence and affirm the trial court’s decision with regard to this ground.

B. Best Interest Analysis

After concluding that clear and convincing evidence existed to terminate Father’s

parental rights on the grounds DCS asserted against him, the trial court conducted a best

interest analysis and determined that it was in Keagan’s best interest for Father’s rights to

be terminated. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at

860. The factors a trial court is to consider in determining whether terminating a parent’s

rights to a child is in a child’s best interests are set forth in Tenn. Code Ann. § 36-1-

113(i).

Courts are not to conduct a “rote examination” of the factors set forth in the statute

to determine whether the factors add up to favor a parent or not. In re Audrey S., 182

S.W.3d at 878. Rather, “[t]he relevancy and weight to be given each factor depends on

the unique facts of each case,” and “depending upon the circumstances of a particular

child and a particular parent, the consideration of one factor may very well dictate the

outcome of the analysis.” Id. (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct.

App. 2004)). “Facts relevant to a child’s best interests need only be established by a

preponderance of the evidence, although DCS must establish that the combined weight of

the proven facts amounts to clear and convincing evidence that termination is in the

child’s best interests.” In re Carrington H., 483 S.W.3d at 535 (citing In re Kaliyah S.,

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455 S.W.3d at 555). The best interests of a child “must be viewed from the child’s,

rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. When the best

interests of a child conflict with those of the parent, “such conflict shall always be

resolved to favor the rights and the best interests of the child.” Tenn. Code Ann. § 36-1-

101(d).

At the time of trial, Keagan and his siblings had been in the same foster home for

nine months. The foster mother, Ms. J., described Keagan as follows:

He wakes up happy and goes to bed happy. He is a very bright little boy.

Very smart. All of the children are very intelligent children, very smart

children.

She described her bond with Keagan:

Keagan, he loves me. I love that boy. He’s a momma’s boy. I’ll be in the

choir and he’s hollering out for me when my husband is holding him for me

and hurry to get back to my seat.

Ms. J. testified that the children all call her “Mom, Momma, Mommy,” and they refer to

her husband as “Dad or Daddy.” The children refer to their foster home as their home

and are very proud of their bedrooms. Ms. J. testified that she and her husband love

Keagan and his siblings and that they are interested in adopting all four children. When

asked what her long-term vision was for the health and well-being of the children, Ms. J.

responded:

My long-term vision for each of these children is that they will be

productive members in society as I continue to provide for them a healthy,

happy, loving, secure, safe home.

The record reflects that Father visited Keagan three or four times during the

pendency of this case: in November 2017, March 2018, and April 2018, and possibly in

September 2017.8 Father was living in West Virginia at the time of trial. Ms. Mitchell

testified that Father had not visited Keagan in the six months prior to trial. Ms. Mitchell

stated that she tried to contact Father numerous times by way of phone and email but was

never able to reach him. She left him voice messages, but he never returned her calls.

Father attended one CFTM in July 2018, when he scheduled a visit with Keagan, but the

visit never took place because Father failed to confirm the visit the day before, as

required. Father did not contact Ms. Mitchell after the scheduled visit to apologize for

not making it or to reschedule the visit.

8

Ms. Hartsell was unable to remember whether Father visited Keagan in September 2017, and Father

provided no evidence of the dates of his visits.

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The trial court considered the factors set forth in Tenn. Code Ann. § 36-1-113(i)

that apply to the facts of this case and determined that the evidence clearly and

convincingly established that it was in Keagan’s best interest for Father’s parental rights

to be terminated. The court wrote:

The Court finds that the facts and circumstances in this case warrant

a finding of best interest by clear and convincing evidence. . . . There is no

allegation that [Father] has been prevented from visiting either by being in

custody or unable to visit. Exhibit 8 reflects that there is an outstanding

warrant for his arrest. While this Court does not know how exactly to view

that warrant, it is clear that it does not bode well for [Father]. He would not

be able to parent a child with an outstanding warrant for his arrest and

[Father] does not personally appear for this termination of parental rights

trial. While he may have a bond, there must be more than that; there must

be an ability to provide care for his child. This Court carefully considered

the factors as enumerated in Tenn. Code 36-4-113(i). The Court has

carefully considered the following factors in particular as weighing strongly

in favor of finding that the State has met its burden of proof, namely:

(1) Whether the parent or guardian has made such an adjustment of

circumstance, conduct, or conditions as to make it safe and in the children’s

best interest to be in the home of the parent or Guardian;

As has been stated, . . . [Father] is out of State with a warrant for his arrest.

This Court has no knowledge where [Father] resides, where he works, what

he does, nothing.

(2) Whether the parent or guardian has failed to effect a lasting adjustment

after reasonable efforts have been made.

As has been stated, this Court has addressed the extent to which DCS made

efforts and the extent to which it could and does not find factor (2) to be

determinative in this case.

(3) Whether the parent or guardian has maintained regular visitation or

other contact with the child(ren);

This Court has already addressed visitation with respect to [Father]. . . .

(4) Whether a meaningful relationship has otherwise been established

between the parent or Guardian and the child(ren).

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There is no doubt in the opinion of this Court that the children love their

parents and that the parents love their children. The issue though is not love

but whether there is a meaningful relationship. Considering the ages of the

children and the time that they have spent in foster care, it would be

difficult to say that a meaningful relationship has otherwise been

established. This Court finds that there is not a meaningful relationship

between [Father] and . . . Keagan.

(5) The effect a change of caretakers and physical environment is likely to

have on the child(ren)’s emotional, psychological and medical condition;

The proof is clear and convincing that “all the boxes are checked.” [Keagan

is] taken care of. [He is] more than taken care of. [He is] thriving. [He is]

involved in activities. [He] travel[s]; [he is] involved in church activities.

There has been a therapy program that has been completed. Those all good

things weigh in favor of establishing permanency outside of the biological

parents’ care.

(7) Whether the physical environment of the parent’s home is healthy and

safe, whether there is criminal activity in the home. . . .

There is no proof before this Court that weighs in favor of the parents

whatsoever. There are no homes to consider.

This Court had no assessments to consider with respect to factor 8 (parent’s

mental health) and finds that there is no relevant proof with respect to factor

9 (child support).

Long-term foster care is “disfavored” by the legislature, and the best interest

factors set out in Tenn. Code Ann. § 36-1-113(g) “relate to the likelihood that the child

will be able to leave foster care and return to the parent’s home in the near future.” In re

C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *8 (Tenn. Ct. App. June

26, 2006). “If that likelihood is remote, the best interest of the child often lies in

termination of parental rights so that the child can attain the security and stability of a

permanent home through adoption.” Id.

Father relies on testimony by Ms. Hartsell and by Mother for his argument that the

trial court erred in ruling that it was in Keagan’s best interest for his rights to be

terminated. Ms. Hartsell testified that Father was loving and nurturing towards Keagan

and that Keagan was “familiar with” Father when the two were together. Mother testified

that Father and Keagan had a stronger bond than Mother had with Keagan and that “Dad”

was the only word Keagan said when he was removed from her custody. As the trial

court wrote, “While [Father] may have a bond [with Keagan], there must be more than

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that; there must be an ability to provide care for his child.” Keagan was about twenty

months old when he was placed into DCS custody, and he was less than three years old at

the time of trial. Considering Keagan’s age and the limited times he saw Father in the

year prior to trial, it would be a stretch for this Court to find, from Keagan’s point of

view, that a meaningful relationship existed between Father and Keagan.

Father presented no evidence of any steps he has taken to improve his situation

since the time Keagan was removed from Mother’s and his custody. We conclude that

the evidence in the record supports the trial court’s best interest analysis by clear and

convincing evidence. Accordingly, we affirm the trial court’s determination that

terminating Father’s parental rights is in Keagan’s best interest.

IV. CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against the appellant, John R.P., for which execution may issue if

necessary.

________________________________

ANDY D. BENNETT, JUDGE

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