IN RE ELI S.

04/09/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 3, 2020

IN RE ELI S.1

Appeal from the Juvenile Court for Bedford County

No. 2018-JV-332 Charles L. Rich, Judge

___________________________________

No. M2019-00974-COA-R3-PT

___________________________________

In this termination of parental rights case, both parents appeal the trial court’s termination

of their parental rights to their son upon numerous statutory grounds and upon its finding

that termination was in the child’s best interest. Upon our review, we conclude that the

record contains clear and convincing evidence supporting the trial court’s determinations

with respect to certain grounds though not others and that termination was in the best

interest of the child. Accordingly, we reverse portions of the court’s order finding that

certain grounds for termination were established, affirm the remainder of the grounds and

the best interest determination, and affirm the termination of Mother’s and Father’s

parental rights.

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

Part and Affirmed in Part

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and KENNY W. ARMSTRONG, J. joined.

Richard L. S., Whiteville, Tennessee, Pro Se.2

Rebecca A. Robinson, Shelbyville, Tennessee, for the appellant, Savannah S.

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

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

1

This Court has a policy of protecting the identity of children by initializing the last names of the parties.

2

Father’s attorney moved to withdraw contemporaneously with filing Father’s brief; the motion was

granted and no other counsel has entered an appearance for Father.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Eli S. was born on March 7, 2015 to Savannah S. (“Mother”) and Richard S.

(“Father”), who are not married. The Department of Children Services (“the

Department” or “DCS”) became involved with the family in October 2016 due to a

referral that Eli’s older half-brother, Tyler, who lived with Mother and Eli, was being

exposed to drugs at the home. At the time, Father was incarcerated. With the help of the

Department, Mother received in-home services through November 2016. On December

13, 2016, Mother was arrested and held in jail on charges of manufacturing

methamphetamine. Eli was found to be with his maternal grandmother by the

Department’s investigator, who filed an affidavit in juvenile court to bring him into

protective custody of the Department; on December 15, by ex parte order, he and Tyler

were brought into protective custody and entered foster care. At that time, Tyler was in a

detention facility.

On December 19, the Department filed a Petition in the Juvenile Court for Bedford

County to adjudicate Eli and Tyler dependent and neglected due to “their parents use of

illegal drugs, abandonment due to incarceration, and because they were within a structure

wherein the act of creating methamphetamine was occurring”; they were so adjudicated

by order entered October 17, 2017. The order recited that Mother waived the

adjudicatory hearing and stipulated that the facts alleged in the Petition were true and

constituted severe child abuse, perpetrated by Mother; the court relieved the Department

of the obligation to use reasonable efforts to reunite the children with Mother and ordered

that the children not be returned to Mother absent a judicial finding by clear and

convincing evidence that there was no longer a danger to the children.

Two permanency plans which were developed by DCS in the record are dated

August 2017 and March 2018; both plans were ratified by the court. Both plans

contained the following responsibilities for both parents: complete an alcohol and drug

assessment and follow all recommendations; complete a mental health intake and follow

all recommendations; resolve all outstanding legal issues; submit to random drug screens;

not expose Eli to any persons who are intoxicated or have a history of violence; secure

housing that is appropriate and safe environmentally; have the financial means to support

Eli. The August 2017 plan also imposed an obligation on both parents to provide DCS

with information regarding potential relatives who could serve as caregivers to Eli. The

August 2017 plan had dual goals of “return to parent” and “exit custody with relative”;

the March 2018 plan had the sole goal of adoption.

The Department filed a petition to terminate both parents’ rights to Eli on March

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8, 2018.3 The petition alleged that termination was warranted on the grounds of

abandonment by failure to provide a suitable home; abandonment by incarcerated parent

and engaging in conduct prior to incarceration exhibiting a wanton disregard for Eli’s

welfare; substantial noncompliance with the permanency plans sections; confinement

under a 10-year sentence when the child was under the age of 8; failure to assume legal

and physical custody; and persistence of conditions. As to Mother, the petition also

alleged the ground of severe child abuse. The petition alleged that termination was in the

best interest of Eli.

Both parents filed answers; Father admitted that grounds for termination existed

but denied that termination was in the best interest of Eli. Mother denied various

allegations of the petition concerning both the statutory grounds and that termination was

in Eli’s best interest. Trial was held on February 1, 2019, at which six witnesses testified.

II. EVIDENCE PRESENTED AT TRIAL

Kate Presnell, who worked as a DCS investigator in Shelbyville, testified that she

first became involved with the family in October 2016 after her department received a

“referral with concerns about meth use and production.” She testified about her

interviews and interactions with the family and that she referred Mother to a 60-day

intensive in-home program to help deal with her addiction as well as “with setting up

boundaries and how to parent children”; that she “did end up getting one clean drug

screen from [Mother] . . . at the end of November 2016”; that she closed her case with the

family at the end of November 2016, and became involved with them again six days later

when Tyler, who was 14 years old at the time, tested positive for methamphetamine after

appearing to be under the influence while at school. Shortly thereafter, when Mother was

arrested for manufacturing methamphetamine, Ms. Presnell testified that she began to

search for Eli, and when she located him, he was brought into protective custody by order

of the juvenile court and placed with a foster parent. Ms. Presnell testified that, in the

course of her investigation, Mother told her that “Eli was brought into the home after the

methamphetamine was cooked.”

Mr. Edward Linton, family services worker with DCS, testified that he was

assigned Eli’s case shortly after he came into protective custody on December 15, 2016,

and worked the case until early October 2017. Mr. Linton discussed his initial interaction

with Mother, during which she appeared “very disheveled,” with “dark circles under her

eyes” and told him she “was having trouble sleeping”; that Mother told him in February

2017 that she had been accepted at Buffalo Valley treatment center for drug treatment

and that he was impressed that Mother “took the initiative to check on Buffalo Valley . . .

when . . . it’s a difficult road to change to a sober lifestyle . . . but she seemed like she –

she wanted that.”

3

The rights of Mother with respect to her older child, Tyler, are not at issue in this proceeding.

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Mr. Linton testified that “the initial perm[anency] plan was developed within the

first 30 days”; that he went over the responsibilities of Mother, which were the same as

set forth in the August 2017 permanency plan.4 Mr. Linton testified that he met with

Mother again in March and August 2017. Mr. Linton testified that the initial plan

imposed the same requirements on Father, who understood the requirements of the plan

but “wasn’t as focused on the requirements as he was on the need to get out of

incarceration.” He also testified that Father “asked a lot about . . . Tyler, who’s not his

son but his stepson, but he did not ask that much – as much about Eli or about the welfare

or what was going on with [Mother].” Mr. Linton testified that both parents were

incarcerated the entire time he had the case and that it was “very difficult” to provide

services for the parents during their incarceration, though he did meet with them to “find

out their needs and assess what was going on and prep work for if they were released.”

Mr. Linton testified that while in the care of his foster parent, Eli “always

appeared to be happy” and was “a very cute, active child, solid built”; that his

relationship with his foster mother as “very strong” and that she “is a committed

advocate for Eli”; that Eli seemed to be very well cared for in the foster mom’s home,

which was “calm and spacious”; and that if Eli was taken away from the foster mother’s

home, it would be a “shock” to Eli.

Kimberly Goney, family services worker for the Department, testified that she was

assigned Eli’s case in November 2017, at which time both parents were incarcerated, and

that she had never met with Mother or Father but sees Eli “at least twice a month.” She

testified that she created a revised parenting plan in March of 2018 which added the

requirement that the parents “not expose Eli to any persons using illegal substances, as

well as submit to random drug screens”; that the parents had remained incarcerated

throughout the time that she was the family services worker and had not completed any

of the requirements of the permanency plans; that she had not been able to provide any

services to them while they were incarcerated, and that the Department had been relieved

of the requirement to use reasonable efforts to reunite Eli with Mother due to the severe

abuse adjudication against her. She testified that neither parent has any type of

relationship with Eli and that neither has seen him since he came into protective custody.

Ms. Goney testified that from her visits with Eli, he appears to be a “very happy, healthy

three-year-old boy.”

Mother testified as to the criminal charges to which she pled guilty and the

sentences she received; that she had been granted parole and “ha[s] a bed waiting for

[her] at Doors of Hope.” Judgments entered into evidence show that she pled guilty on

March 2, 2018 to felony charges of promotion of methamphetamine manufacture and

initiation of process in the manufacturing of methamphetamines; she was sentenced to

4

The initial permanency plan is not in the record.

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three years on the first charge and ten years on the second, to run concurrently with the

three-year sentence.

Mother testified that her drug of choice was marijuana, and that before she was

arrested for manufacturing methamphetamines, she had been using meth for “maybe a

year,” starting “not too long after Eli was born” and using it “[s]ometimes every other

day”; that she stopped using methamphetamines during the period that she had in-home

services so that she could pass the drug screens; that she was not the one making

methamphetamine in December 2017 but that she allowed a man to manufacture it in her

home.5

Mother testified that she met with Mr. Linton and later Ms. Goney to develop the

permanency plans and that she understood the requirements of the plans. With respect to

the plans’ requirements, Mother testified that she had been taking care of her legal

responsibilities, gained lawful employment by working in the kitchen of the prison every

day, for 40 hours per week at a rate of 17 cents an hour, and that she was “pretty sure

they did a mental health intake and A[lcohol]&D[rug] assessment when [she] got into

prison”; and that she had been attending a “hope recovery class which is an NA class”

and was also in parenting classes. When questioned further, Mother requested and was

granted 30 days to supply paperwork showing that she had had a drug and alcohol

assessment and a mental health intake.6 Mother also testified that she loved her children

and was doing “everything possible to better myself so I can be a parent to them, a better

parent to them and get them back and regain my bond with them”; that she had been

keeping in contact with Eli and sent him Christmas presents; and as follows:

5

In the order terminating the parents’ rights, the court credited Ms. Presnell’s testimony that Mother “had

admitted to her that [Mother] had been making methamphetamine in the house where the kids were living

and that she would bring the children back into the house afterward.”

6

The record contains papers from Mother that includes a memorandum from her supervisor in the kitchen

who described her as “reliable and respectful” and said that she works Wednesday through Sunday; a

“drug test results” list, containing two negative drug screens in November and December 2018; an

“Offender Hearing Decision Notification” from the Board of Parole showing their final decision of

“recommend past release date”; a program assignment notice showing that Mother was enrolled in “group

therapy,” which she described as a “substance abuse class.” No drug and alcohol assessment or mental

health intake is included in the record; however, the termination order states that:

[Mother] supplied the Court with a late-filed exhibit on March 5, 2019, entitled Mental

Health Intake Appraisal completed upon her arrival at the Tennessee Department of

Correction. This intake reflects that [Mother] reported long-time use of

methamphetamine, from ages 23 to 31, despite her testimony that she had only being

using methamphetamine for about a year at the time of her arrest in 2016. The intake was

performed on August 1, 2018 by E. Glenn Barnes, Ed. D., in order to determine if

[Mother] was suitable for the general population of the prison and does not meet the

requirements of an alcohol and drug evaluation or mental health evaluation.

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I believe if given a chance, I -- once I’m out, which shouldn’t be too much

longer now, I will be able to provide a place for my child to be at. I will

stay away from all the drug influence and people like that. And I have this

program that is going to help me ensure all this.

Father testified that he has been in and out of incarceration since 2011 and, at the

time Eli was born, was on probation for the manufacture, delivery, and sale of

methamphetamine. He testified that he was present for Eli’s birth and that he, Mother,

and Eli lived together until his probation was revoked “[b]ecause [he] was incarcerated

on a felony possession of a firearm.” He testified that he had been continuously

incarcerated since August 7, 2016 and that in February of 2017, he was sentenced to

serve a four year sentence for which he had previously been granted probation, to be

served consecutive to an eight year sentence.

Certified judgments showing Father’s criminal history shows that he pled guilty in

July 2012 felony charges of the initiation of process in the manufacturing of

methamphetamines and to the manufacture, delivery, and sale of methamphetamines, for

which he was sentenced to eight years, with all but six months of each sentence

suspended and Father put on probation. In February 2017, Father violated his probation

and was required to serve the eight-year sentence that was originally imposed. On

December 5 2013, Father pled guilty to the manufacture of methamphetamine, and was

sentenced to five years, 12 months of which was to be served and then he would be

released to five years of supervised probation; in March 2017, Father was found to have

violated the terms of his probation and his five-year sentence was put into effect. In

February 2017, Father pled guilty to being a convicted felon in possession of a weapon

for which he was sentenced to four years, which was suspended and he was placed on

four years of probation; this sentence was to be consecutive to the sentence he received

that month.

Father testified that Mr. Linton explained the terms of the permanency plan to

him, which he understood; that he is “on a waiting list to get into a therapeutic

community in TDOC custody”; and that he was taking classes and “bettering [him]self

while [he’s] here [in prison].” Father did not elaborate on the classes he was taking or

submit documentation evidencing his enrollment. He also testified that he had given Mr.

Linton and Ms. Presnell the names of his mother and sister in hopes of placing Eli with

them, and expressed frustration that they were not considered as potential placements.

Ms. Susan J., Eli’s foster parent, testified that she had been Eli’s foster care

placement since December 15, 2016. She testified about the day that 19-month-old Eli

came into her care, explained the nature of their relationship, and gave various examples

of how it has grown; that Eli is the only child in her home and that he is “very much” a

part of her extended family and showed the court numerous photos of him with her niece

and nephew and other cousins during different holidays and at various family gatherings

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on the farm where she and her sister both have houses, as well as with her two dogs; Ms.

J. testified about Eli’s dental needs and how he had to be put under anesthesia to put caps

on several of his back teeth due “a lot of softening.”

She testified that Mother had occasionally written letters to Eli, which she read to

him, and that Father had not written letters. She testified that she wished to adopt Eli and

had space in her home and suitable finances to provide for him; that she was adopted

herself; and that she would facilitate communication between Eli and his birth parents, if

she were allowed to adopt him, because she “want[s] him to know everybody.”

III. THE RULING OF THE TRIAL COURT

An order was entered on April 29, 2019, in which the court found the following

grounds for termination were proven as to both Mother and Father: abandonment by

failure to provide a suitable home (Tennessee Code Annotated sections 36-1-113(g)(1)

and 36-1-102(1)(A)(ii)); abandonment by an incarcerated parent whose conduct prior to

incarceration exhibits a wanton disregard for the welfare of the child (sections 36-1-

113(g)(1) and 36-1-102(1)(A)(iv)); substantial noncompliance with the permanency plans

(sections 36-1-113(g)(2) and 37-2-403(a)(2)); confinement under a 10-year sentence

when the child was under the age of 8 (section 36-1-113(g)(6)); failure to assume legal

and physical custody (section 36-1-113(g)(14)); and persistence of conditions (section

36-1-113(g)(3)). As to Mother, the court also held that the evidence established that she

had severely abused Eli (section 36-1-113(g)(4)). The court also made findings with

respect to the best interest factors at Tennessee Code Annotated section 36-1-113(i),

concluded that factors (1), (4), (5), (6), and (7) were applicable, and held that termination

was in Eli’s best interest.

Both Mother and Father appeal. Father challenges the conclusion that he had

abandoned Eli due to his incarceration under a sentence of ten years or more. Mother

challenges the court’s best interest determination.7 In our review, we are obliged to

7

Mother also raises the issue of whether “Counsel for Appellant fail[ed] to act in an effective manner in

assisting her in supplying documents to demonstrate her efforts to comply with the permanency plan and

effectuate a lasting change in her circumstances.” Mother’s brief fails to contain any argument relating to

this issue; consequently, she has waived the issue. See Tenn. R. App. P. 27(a)(7)(A); Tenn. R. Ct. App. 6.

Notwithstanding, we have reviewed the transcript, which shows that Mother’s attorney engaged in

vigorous cross examination of witnesses and secured additional time to submit documentation to the court

regarding Mother’s attempts to comply with the permanency plans; the order shows that the court

considered the documents which were submitted on her behalf. Upon the record presented, the actions of

her counsel did not prevent Mother from receiving a fundamentally fair proceeding. See In re Carrington

H., 483 S.W.3d 507, 535-536 (Tenn. 2016) cert. denied sub. nom. Vanessa G. v. Tenn. Dep’t of

Children’s Servs., 137 S. Ct. 44 (2016) (in which the Tennessee Supreme Court analyzed a parent’s claim

of ineffective assistance of counsel by determining whether the actions of counsel prevented the parent

from receiving a fundamentally fair proceeding).

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consider whether the evidence clearly and convincingly establishes that each ground

upon which the court terminated the parents’ rights. In re Carrington, 483 S.W.3d 507,

525-26 (Tenn. 2016) cert. denied sub. nom. Vanessa G. v. Tenn. Dep’t of Children’s

Servs., 137 S. Ct. 44 (2016) (“[I]n an appeal from an order terminating parental rights[,]

the Court of Appeals must review the trial court’s findings as to each ground for

termination and as to whether termination is in the child’s best interests, regardless of

whether the parent challenges these findings on appeal.”).

IV. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children.

Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,

809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain

circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of

Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on

termination of parental rights provide the only authority for a court to terminate a parent’s

rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be

terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-

113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d

620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one

ground need be proved, so long as it is proved by clear and convincing evidence. In the

Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

Because the decision to terminate parental rights affects fundamental

constitutional rights and carries grave consequences, courts must apply a higher standard

of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court

may terminate a person’s parental rights only if (1) the existence of at least one statutory

ground is proved by clear and convincing evidence and (2) it is shown, also by clear and

convincing evidence that termination of the parent’s rights is in the best interest of the

child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Tennessee law ensures fundamental

fairness in termination proceedings by requiring a heightened standard of proof—clear

and convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1); In re Carrington H.,

483 S.W.3d 507, 522 (Tenn. 2016). In light of the heightened standard of proof in these

cases, a reviewing court must adapt the customary standard of review set forth by Tenn.

R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the

court’s findings of fact, our review is de novo with a presumption of correctness unless

the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id.

We must then determine whether the facts, “as found by the trial court or as supported by

the preponderance of the evidence, clearly and convincingly establish the elements”

necessary to terminate parental rights. Id. In this regard, clear and convincing evidence is

“evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence” and which “produces a firm belief or conviction in

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the fact-finder’s mind regarding the truth of the facts sought to be established.” In re

Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted).

V. ANALYSIS

A. Grounds for Termination

1. Abandonment by Engaging in Conduct that Exhibits Wanton

Disregard

Tennessee Code Annotated section 36-1-102(1)(A)(iv) defines abandonment, in

pertinent part, as follows:

A parent or guardian is incarcerated at the time of the institution of an

action or proceeding to declare a child to be an abandoned child, or the

parent or guardian has been incarcerated during all or part of the four (4)

months immediately preceding the institution of such action or proceeding,

and either has willfully failed to visit or has willfully failed to support or

has willfully failed to make reasonable payments toward the support of the

child for four (4) consecutive months immediately preceding such parent's

or guardian’s incarceration, or the parent or guardian has engaged in

conduct prior to incarceration that exhibits a wanton disregard for the

welfare of the child.

(Emphasis added.) As this Court stated in In re Audrey S.:

[The above statutory definition] reflects the commonsense notion that

parental incarceration is a strong indicator that there may be problems in

the home that threaten the welfare of the child. Incarceration severely

compromises a parent’s ability to perform his or her parental duties. A

parent’s decision to engage in conduct that carries with it the risk of

incarceration is itself indicative that the parent may not be fit to care for the

child. However, parental incarceration is not an infallible predictor of

parental unfitness. . . the parent’s incarceration serves only as a triggering

mechanism that allows the court to take a closer look at the child’s situation

to determine whether the parental behavior that resulted in incarceration is

part of a broader pattern of conduct that renders the parent unfit or poses a

risk of substantial harm to the welfare of the child.

182 S.W.3d 838, 866 (Tenn. Ct. App. 2005). Both Mother and Father’s undisputed

criminal history prior to their present incarceration, particularly that involving

methamphetamine, evidences their wanton disregard for the welfare of Eli. The fact that

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Mother allowed methamphetamine to be manufactured in the home where her child

resided underscores the conduct prior to incarceration that posed a risk of substantial

harm to the Eli’s welfare. In addition to his involvement with drugs, the revocation of

Father’s probation shows a broader pattern of conduct that poses a substantial risk of

harm to Eli. We conclude that the record contains clear and convincing evidence

establishing this ground for termination.

2. Substantial Noncompliance with the Permanency Plans

The statute setting forth the ground of “substantial noncompliance” reads: “There

has been substantial noncompliance by the parent or guardian with the statement of

responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.” Tenn. Code.

Ann. § 36-1-113(g)(2). In In re C.M., this Court said that, in order “[t]o carry its burden

of proving this ground, DCS must show” the following:

[T]hat the permanency plan includes a “statement of responsibilities” that

“clearly communicate[s] to the parent: ‘this is what you must do to regain

custody of your child.’” . . . DCS must also show that the permanency

plan’s requirements are “reasonable and related to remedying the conditions

that caused the child to be removed from the parent’s custody in the first

place.” . . . Further, DCS must 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.”

No. E2018-02108-COA-R3-PT, 2019 WL 3812421, at *4-5 (Tenn. Ct. App. Aug. 14,

2019) (internal citations omitted).

The two permanency plans in the record were created in August 2017 and March

2018 and were ratified by the court; Mr. Linton testified that “the initial perm[anency]

plan was developed within the first 30 days.” Both parents testified that they had the

plans explained to them by Department case workers. Both plans contained the following

responsibilities for both parents: complete an alcohol and drug assessment and follow all

recommendations; complete a mental health intake and follow all recommendations;

resolve all outstanding legal issues; submit to random drug screens; not expose Eli to any

persons who are intoxicated or have a history of violence; secure housing that is

appropriate and safe environmentally; have the financial means to support Eli. Neither

parent challenges the requirements of the permanency plans.

Father does not dispute that he signed and understood the terms of the permanency

plans and that he has failed to comply with all requirements. Similarly, while Mother

testified she had made “significant progress in complying with the conditions set forth in

the Permanency Plans,” the record makes clear that many important ones remained

incomplete as of the time of trial; the record does not show, for instance, any drug or

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mental health assessment, or counseling or treatment in accordance with the

recommendations stemming from such an assessment, Mother received while in prison.

Mother does not challenge the requirements of the permanency plans, which the trial

court found, and the record supports, were reasonable and related to remedying the

conditions that caused Eli to be removed from Mother’s custody; the requirements in the

plan addressed the drug-related behaviors that led to the parents’ incarceration as well as

the familial consequences of those behaviors. The tasks that were to be performed were

substantial and, left uncompleted, the parents’ noncompliance was substantial. This court

has held that substantial noncompliance with a permanency plan does not have to be

willful to justify termination of parental rights. In re Joseph L., No. M2011-02058-COA-

R3-PT, 2012 WL 2389609, at *9 (Tenn. Ct. App. June 25, 2012). Accordingly, we hold

that the record clearly and convincingly supports a holding that termination was

warranted on the ground of both parents’ substantial noncompliance with the permanency

plan.

3. Failure to Manifest an Ability and Willingness to Assume Custody

A parent’s rights may be terminated on the ground that:

[a] parent or guardian has failed to manifest, by act or omission, an

ability and willingness to personally assume legal and physical custody or

financial responsibility of the child, and placing the child in the person's

legal and physical custody would pose a risk of substantial harm to the

physical or psychological welfare of the child[.]

Tenn. Code Ann. § 36-1-113(g)(14). This ground requires the party seeking termination

of a parent’s rights to prove two elements by clear and convincing evidence. Tenn. Code

Ann. § 36-1-113(c)(1), (g)(14). First, the party must prove that the parent failed to

manifest “an ability and willingness to personally assume legal and physical custody or

financial responsibility of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). Second,

the party must prove that placing the children in the parent’s “legal and physical custody

would pose a risk of substantial harm to the physical or psychological welfare of the

child[ren].” Tenn. Code Ann. § 36-1-113(g)(14).

In In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7

(Tenn. Ct. App. May 31, 2018), a panel of this Court held that a party seeking to

terminate a parent’s rights must prove by clear and convincing evidence that the parents

failed to manifest both an ability and a willingness to personally assume legal and

physical custody of the child or that they failed to manifest an ability and a willingness to

personally assume financial responsibility for the child. When evaluating ability, we

focus “on the parent’s lifestyle and circumstances.” Id. “When evaluating willingness,

we look for more than mere words.” Id. Rather, a parent must have demonstrated

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willingness “by attempting to overcome the obstacles that prevent them from assuming

custody or financial responsibility for the child.” Id.

In light of the above standards and the evidence in the record, we agree with the

trial court that Mother’s history of drug abuse and both parents’ repeated criminal

conduct and resulting incarceration demonstrates that each lacks the ability to parent Eli.

As to the parents’ willingness to assume physical and legal custody, Father’s

testimony in this regard occurred during a discussion of Eli’s best interest; Father stated

that it was for Eli “to be with someone who actually knows him from the time of birth

and someone who’s gonna take care of him like . . . he is their own child[; . . . that is my

only child and ain’t nobody gonna love that boy the way I do.” He testified that he has

“been accepted into a halfway house” and that his “sister is able to get [Eli].” We do not

discern from this testimony a willingness on the part of Father to assume custody of Eli,

which necessitates a willingness to make necessary life changes and adjustments to

accommodate raising a child. We conclude that the record supports the determination

that Father did not demonstrate a willingness to assume Eli’s custody, and sustain this

ground for termination of his rights.

For her part, Mother testified that once she was paroled, she planned to join the re-

entry program at Doors of Hope, which requires a commitment of at least six months; she

testified that after completion of the program, she would be able to get a home of her own

so that she would “be able to provide a place for my child.” This testimony shows that

that Mother was willing to take custody of Eli in the future but did not have, and would

not have for at least six months following her uncertain release date, the ability to take

physical custody of Eli. Given the need to prove that Mother had failed both to manifest

an ability and a willingness to assume custody, we conclude that DCS failed to prove that

Mother was unwilling to assume custody.

As we consider the second element of this ground, substantial risk of harm, we are

guided by the holding in Ray v. Ray:

The courts have not undertaken to define the circumstances that pose a risk

of substantial harm to a child. These circumstances are not amenable to

precise definition because of the variability of human conduct. However,

the use of the modifier “substantial” indicates two things. First, it connotes

a real hazard or danger that is not minor, trivial, or insignificant. Second, it

indicates that the harm must be more than a theoretical possibility. While

the harm need not be inevitable, it must be sufficiently probable to prompt a

reasonable person to believe that the harm will occur more likely than not.

83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted).

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In this case, both parents are currently incarcerated and, for purposes of this

analysis, Eli would not be able to be returned to the custody of either parent. Father’s

history of criminal activity and repeated incarcerations, prompted by violating his

probation, is strong evidence of a “real hazard or danger that is not minor, trivial, or

insignificant” if Eli were returned to him. See In re O.M., No. E2018-01463-COA-R3-

PT, 2019 WL 1872511, at *4 (Tenn. Ct. App. Apr. 26, 2019) (holding that “placing a

child with a parent who ha[s] knowingly engaged in repeated criminal conduct that

necessitated [the parent’s] re-incarceration would place the child at risk of physical or

psychological harm.”) (quoting In re Amynn K., 2018 WL 3058280, at *15). With

respect to Mother as we consider this ground, however, the evidence is not clear and

convincing that “a reasonable person [would] believe that harm will occur more likely

than not” if Eli were returned to her custody.8

Accordingly, we conclude that there is clear and convincing evidence supporting

termination of Father’s parental rights on this ground, but not Mother’s.

4. Severe Child Abuse

Tennessee Code Annotated section 36-1-113((g)(4) states as a ground for

termination of parental right that “[t]he parent or guardian has been found to have

committed severe child abuse as defined in § 37-1-102 . . . against the child who is the

subject of the petition. . .”. In turn, section 37-1-102(b)(22)(D)(2016), in effect when the

petition was filed, defines “severe child abuse” to include “[k]nowingly allowing a child

to be present within a structure where the act of creating methamphetamine, as that

substance is identified in § 39-17-408(d)(2), is occurring.” Evidence as to this ground for

termination came from the testimony of Mother and Ms. Presnell, who both testified

about the manufacture of methamphetamine that took place at the home where Eli

resided. In addition, the order adjudicating Eli dependent and neglected stated that “The

mother, Savannah [S] waives the Adjudicatory Hearing and stipulates that the facts

alleged in the Petition . . . are true, and further that those facts constitute severe child

abuse”; as counsel for the Department represented at the hearing and the court so held,

that order was not appealed. This is clear and convincing evidence supporting

termination of Mother’s rights on the ground of severe child abuse.

5. Remaining Grounds

Turning to the remaining grounds upon which termination of both parents’ rights

was based, the Department has elected to not defend the trial court’s holdings of

8

This holding is limited to this ground for termination and has no bearing on our consideration of

whether termination of Mother’s rights is in Eli’s best interest, which is made from the perspective of the

child, not the parent. See White v. Moody, 171 S.W. 3d. 187 (Tenn. Ct. App. 2004).

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abandonment by failure to provide a suitable home9 and the persistence of conditions10 as

to both parents; with respect to Father, the Department has also elected not to defend the

ground that he was incarcerated under a sentence of confinement of ten years or more.

Upon our review of the evidence, as set forth below, we agree that those grounds are not

clearly and convincingly established.

The grounds of abandonment by failure to provide a suitable home and persistence

of conditions each require that the child be removed from the home of the parent in order

to serve as a ground of termination. In re Navada N., 498 S.W.3d 579, 597 (Tenn. Ct.

App. 2016); In Re Jayden B.T., No. E2014-00715-COA-R3-PT, 2015 WL 3876573, at

9

Tennessee Code Annotated section 36-1-102(1)(A)(ii), as worded when the petition was filed, defines

abandonment in this regard as follows:

(ii) The child has been removed from the home of the parent or parents or the guardian or

guardians as the result of a petition filed in the juvenile court in which the child was

found to be a dependent and neglected child, as defined in § 37-1-102, and the child was

placed in the custody of the department or a licensed child-placing agency, that the

juvenile court found, or the court where the termination of parental rights petition is filed

finds, that the department or a licensed child-placing agency made reasonable efforts to

prevent removal of the child or that the circumstances of the child’s situation prevented

reasonable efforts from being made prior to the child’s removal; and for a period of four

(4) months following the removal, the department or agency has made reasonable efforts

to assist the parent or parents or the guardian or guardians to establish a suitable home for

the child, but that the parent or parents or the guardian or guardians have made no

reasonable efforts to provide a suitable home and have demonstrated a lack of concern for

the child to such a degree that it appears unlikely that they will be able to provide a

suitable home for the child at an early date. The efforts of the department or agency to

assist a parent or guardian in establishing a suitable home for the child may be found to

be reasonable if such efforts exceed the efforts of the parent or guardian toward the same

goal, when the parent or guardian is aware that the child is in the custody of the

department[.]

10

The statutory ground commonly referred to as “persistence of conditions” is set forth at

Tennessee Code Annotated section 36-1-113(g)(3), which reads as follows:

The child has been removed from the home of the parent or guardian by order of a court

for a period of six (6) months and:

(A) The conditions that led to the child’s removal or other conditions that in all

reasonable probability would cause the child to be subjected to further abuse or neglect

and that, therefore, prevent the child’s safe return to the care of the parent or parents or

the guardian or guardians, still persist;

(B) There is little likelihood that these conditions will be remedied at an early

date so that the child can be safely returned to the parent or parents or the guardian or

guardians in the near future; and

(C) The continuation of the parent or guardian and child relationship greatly

diminishes the child’s chances of early integration into a safe, stable and permanent

home[.]

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*10 (Tenn. Ct. App. June 23, 2015), perm. app. denied (Tenn. Sept. 25, 2015). Father

testified that he has been incarcerated since August 7, 2016; thus he was not living in the

home, and had not been for several months, at the time Eli was removed from Mother’s

care and placed in protective custody. Thus, these grounds are inapplicable to Father.

As to Mother, we note that her incarceration prevented her from being able to

make efforts to provide a suitable home and precluded DCS from assisting her in

establishing a suitable home. Accordingly, the ground of abandonment by failure to

provide a suitable home was not clearly and convincingly established as to Mother. See

In re Jamel H., No. E2014-02539-COA-R3-PT, 2015 WL 4197220, at *7 (Tenn. Ct. App.

July 13, 2015) (holding that “this ground is inapplicable . . . when [the child] was

removed from [the other parent]’s care and when DCS admittedly could not assist Father

in establishing a suitable home while he was incarcerated.”). With respect to the ground

of persistence of conditions, the was no evidence that Mother’s manufacturing of

methamphetamine persisted since she has been incarcerated and, due to her incarceration,

no assessment could be made as to whether the conditions prior to her arrest persisted.

Accordingly, the elements of the ground of persistence of conditions were not clearly and

convincingly established as to Mother.

As to section 36-1-113(g)(6), which requires that the parent or guardian be

“confined in a correctional or detention facility of any type . . . under a sentence of ten

(10) or more years” and that the child be under eight years of age, the evidence shows

that Father’s four-year sentence, while consecutive to his eight-year sentence, was to be

served on probation. Accordingly, the evidence does not support termination of Father’s

rights on this ground, as he was to be confined in a correctional facility for only eight

years.

In summary, we reverse the trial court’s holdings with respect to the ground of

abandonment by the failure to provide a suitable home as to both Mother and Father, the

ground of persistence of conditions as to both Mother and Father, the ground of failure to

manifest an ability and willingness to assume custody as to Mother and the ground of

confinement under a ten-year sentence as to Father. We affirm the holdings that the

evidence clearly and convincingly established the grounds of abandonment by engaging

in conduct that exhibited a wanton disregard for Eli’s welfare as to both parents,

substantial non-compliance with the permanency plans as to both parents, failure to

manifest an ability and willingness to assume custody as to Father, and as to Mother, the

ground of severe child abuse was also clearly and convincingly established.

B. Best Interest Determination

Once a ground for termination has been proven by clear and convincing evidence,

the trial court must then determine whether it is in the best interest of the child for the

parent’s rights to be terminated, again using the clear and convincing evidence standard.

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In re Valentine, 79 S.W.3d at 546. The Legislature has set out a list of factors at

Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the

child’s best interest.11 The list of factors in the statute “is not exhaustive, and the statute

does not require every factor to appear before a court can find that termination is in a

child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing

Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL

970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-

PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue

we are also mindful of the following instruction in White v. Moody:

[A]scertaining a child’s best interests in a termination proceeding is a fact-

intensive inquiry requiring the courts to weigh the evidence regarding the

statutory factors, as well as any other relevant factors, to determine whether

irrevocably severing the relationship between the parent and the child is in

11

The factors at Tennessee Code Annotated section 36-1-113(i) are:

In determining whether termination of parental or guardianship rights is in the best

interest of the child pursuant to this part, the court shall consider, but is not limited to, the

following:

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

conduct, or conditions as to make it safe and in the child’s best interest to be in

the home of the parent or guardian;

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

reasonable efforts by available social services agencies for such duration of time

that lasting adjustment does not reasonably appear possible;

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

contact with the child;

(4) Whether a meaningful relationship has otherwise been established between

the parent or guardian and the child;

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

on the child’s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent or

guardian, has shown brutality, physical, sexual, emotional or psychological

abuse, or neglect toward the child, or another child or adult in the family or

household;

(7) Whether the physical environment of the parent’s or guardian’s home is

healthy and safe, whether there is criminal activity in the home, or whether there

is such use of alcohol, controlled substances or controlled substance analogues as

may render the parent or guardian consistently unable to care for the child in a

safe and stable manner;

(8) Whether the parent’s or guardian’s mental and/or emotional status would be

detrimental to the child or prevent the parent or guardian from effectively

providing safe and stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with the

child support guidelines promulgated by the department pursuant to § 36-5-101.

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the child’s best interests. The child’s best interests must be viewed from

the child’s, rather than the parent’s, perspective.

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).

In the case at bar, the trial court made the following findings with respect to Eli’s

best interest:

The Court concludes that Tenn. Code Ann. §36-1-113(i)(1) is

present in that Respondents [Father] and [Mother] have not made such an

adjustment of circumstance, conduct or conditions as to make it safe and in

the child’s best interest to be in their homes; that Tenn. Code Ann. §36-1-

113(i)(4) is present in that there is no meaningful relationship between

Respondents, [Father] and [Mother], and the child; that Tenn. Code Ann.

§36-1-113(i)(5) is present in that a change of caregivers resulting in a return

to Respondents at this stage of the child’s life will have a detrimental effect

on the child; that Tenn. Code Ann. §36-1-113(i)(6) is present in that

Respondent [Mother], has shown abuse toward the child, Eli A[.] S[.]; and

that Tenn. Code Ann. §36-1-113(i)(7) is present in that the physical

environment of the Respondents’ homes are not healthy and safe for the

child, there is criminal activity in each parent’s home, and there is such use

of alcohol, controlled substances or controlled substance analogues as may

render the parents consistently unable to care for the child in a safe and

stable manner.

Finally, the Court concludes that termination of Respondents’

parental rights to the child, Eli A[.] S[.], is in the child’s best interest

because the child has established a strong bond with his foster parent who

wishes to adopt him.

On appeal, Father does not make any argument with respect to the trial court’s

holding that termination of his rights is in Eli’s best interest. The record shows that,

throughout Eli’s life, Father has engaged in conduct that is not only detrimental to

himself, but which demonstrates that he has no intention to establish a meaningful parent-

child relationship with Eli; he does not contest that termination of his rights is in Eli’s

best interest. We conclude that the holding is supported by clear and convincing

evidence.

Mother argues:

[T]here was scant proof offered on the best interest of the child with no

evidence offered regarding the health needs, educational needs or

psychological needs of the child. There was no testimony given as to the

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effect that a change of caregivers would have on the child at this time.

There was no evidence of any sort to show any detrimental effect in failing

to terminate the parental rights of Appellant.

Having considered Mother’s arguments and thoroughly reviewed the proof, we

conclude that the preponderance of the evidence supports the trial court’s findings. The

record shows that Mother’s home, from which Eli was removed, was not a safe place,

given the criminal conduct of both parents and Mother’s drug abuse and the

manufacturing of methamphetamine to which Eli was exposed. In addition, both parents

are currently incarcerated, which has resulted in not developing a relationship with Eli, a

lack of visitation and failure to provide any sort of support for Eli, who deserves the

stability, permanence, and safe, loving home that is available to him. Contrary to

Mother’s arguments, Mr. Linton testified that removing Eli from the home would be a

“shock” to him, and in light of the testimony of Ms. J. and the Department’s case

workers, there is clear and convincing evidence in the record from which to conclude that

Eli’s health needs have been addressed and that he is thriving mentally, physically, and

emotionally in his current pre-adoptive home, where he has a strongly bonded

relationship with the foster parent. The combined weight of the facts is clear and

convincing evidence that it is in Eli’s best interest to terminate the parental rights of

Mother and Father.

VI. CONCLUSION

In light of the foregoing, we reverse the termination of Mother’s and Father’s

parental rights on the grounds of abandonment by the failure to provide a suitable home

and persistence of conditions, the ground of failure to manifest an ability and willingness

to assume custody of Eli as to Mother, and the ground of incarceration under a sentence

of more than ten years as to Father. We affirm termination of both parents’ rights on the

grounds of abandonment by engaging in conduct that exhibits wanton disregard for the

welfare of the child and substantial non-compliance with the permanency plans; with

respect to Father, we affirm termination on the additional ground of his failure to

manifest an ability and willingness to assume custody of Eli; and we affirm the

termination of Mother’s rights on the ground of severe child abuse. We affirm the

holding that termination of both Mother and Father’s parental rights is in Eli’s best

interest.

_________________________________

RICHARD H. DINKINS, JUDGE

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