The opinion
06/03/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 1, 2020
IN RE RAHJADA W., ET AL.
Appeal from the Circuit Court for Blount County
No. E-28597 Tammy M. Harrington, Judge
___________________________________
No. E2019-01798-COA-R3-PT
___________________________________
This appeal involves a petition to terminate parental rights to three children. The trial
court found there was clear and convincing evidence to terminate on multiple grounds
and that termination is in the best interest of the children. Only the mother appealed. We
affirm the trial court’s decision to terminate the mother’s parental rights and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.
Nanette J. Landen, Knoxville, Tennessee, for the appellant, Alaina W.
Herbert H. Slatery, III, Attorney General and Reporter; and Lexie Ashton Ward,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
OPINION
I. FACTS & PROCEDURAL HISTORY
Alaina W. (“Mother”) has three minor children, S.W., S.W., and R.W.
(collectively “the children”).1 While the children’s birth certificates do not list a father, it
1
In juvenile court actions, to protect the privacy of children, the policy of this Court is to use only
the first name and last initial (and in some cases, just the initials) of the parties involved. In re C.W., 420
S.W.3d 13, 15 n.1 (Tenn. Ct. App. 2013).
is undisputed that Stephen S. (“Father”) is the putative father of all three children. 2 This
appeal involves only Mother’s parental rights since Father did not file an answer, appeal,
or appear in any prior proceedings in this case.
Prior to leaving the physical custody of their parents, the children lived in Texas
with Mother and Father. Throughout her relationship with Father, Mother was the victim
of domestic violence. After an unspecified period of time, Mother sent the children to
live with a friend in Texas. While the children lived with the friend, the children’s
maternal grandmother, Anita Y. (“Grandmother”), sent financial support to the friend,
intending for it to benefit the children. At the end of 2015, after learning the funds were
not being used to support the children, Grandmother drove to Texas, picked up the
children, and returned to Tennessee. Mother remained in Texas where she continued to
suffer domestic violence at the hands of another man, Norman B. Although she remained
in Texas, Mother retained legal custody of the children.
In 2017, the Tennessee Department of Children’s Services (“DCS”) received
multiple reports of inadequate supervision by Grandmother. On May 18, 2017, DCS
filed a petition for dependency and neglect in the Juvenile Court of Blount County,
Tennessee. On the same day, the juvenile court entered a protective order granting
temporary custody of the children to DCS. Brad Taylor was appointed as DCS case
manager for all three children. Shortly thereafter, Mother was made aware that the
children were in DCS custody. Initially, all three children were placed in the same foster
home, but the older two children were later moved together to five foster homes. On
March 9, 2018, the juvenile court found there was clear and convincing evidence to show
the children were dependent and neglected.
Mother remained in Texas for approximately ten months after DCS took custody
of the children. Mother asserts Norman B. forced her to remain in Texas, claiming he
would lock her inside their home and take certain personal belongings from her. Despite
these assertions, Mother made two trips to Tennessee before moving back permanently.
Two of the trips included visits with the children under DCS supervision. The visits took
place in December 2017 and September 2018.3 Without the consent of DCS, Mother
brought unauthorized visitors (other family members) to both visits. Mr. Taylor
described both visits as being of “incredibly poor” quality. At the first visit, the two
youngest children (ages eight and four years old at the time) had to be reminded who
their mother was. At the same visit, two of the children played on their own without
much interaction with Mother. Mother spent most of the second visit “Facetiming”
another child on her phone in a corner of the room.
2
Several of the filings list a fourth child, but due to that child’s age and lack of abuse, he is no
longer in custody of DCS and is not a subject of this case.
3
Mother’s first visit in December 2017 was the first time she had seen the children in
approximately two years.
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On August 1, 2017, the initial Family Permanency Plan was created. It was
approved and incorporated into an order by the Juvenile Court on October 2, 2017.
Mother was not present for the plan’s creation, but a copy was mailed to her address in
Texas. Subsequent plans modified the original, with the final plan being drafted on
February 4, 2019. Through these plans, Mother was required to accomplish several tasks:
(1) provide legal and safe transportation for her children or provide DCS with a
transportation plan; (2) submit to a background check; (3) attend an alcohol and drug
assessment and follow its recommendations; (4) attend a parenting assessment and follow
its recommendations; (5) attend a mental health assessment and follow its
recommendations; (6) maintain contact with DCS; (7) resolve her existing legal
obligations; (8) refrain from committing illegal acts in the future; (9) obtain stable and
safe housing for her and her children; (10) obtain a legal and sustainable income and
provide proof of such to DCS; (11) submit to random drug screens; (12) complete a
domestic violence victim course, which could be accomplished through therapy; and (13)
be an active participant in decisions regarding the children. Mother was made aware of
the requirements in each plan by DCS mailing copies to her address, by Mother speaking
on the phone with Mr. Taylor, or by Mother meeting in-person with Mr. Taylor. The
juvenile court ratified the final plan on May 6, 2019.
After DCS took custody of the children, Mr. Taylor made numerous attempts to
help Mother satisfy her duties under the permanency plan. Mr. Taylor stated he called
multiple facilities in Texas where Mother could complete her parenting assessment and
alcohol and drug assessment, paid for by DCS. He also arranged for Mother to travel
back to Tennessee by obtaining one-way bus passes, paid for by DCS.4 Once back in
Tennessee, Mr. Taylor arranged for her to live at a domestic abuse shelter in Knoxville.
Despite the efforts made by DCS and Mr. Taylor, Mother completed only a few of
the requirements in the permanency plan.
Mother completed the parenting assessment, which included a drug and alcohol
assessment, but did not follow the assessment’s recommendations. The assessor
expressed concerns with the inconsistencies in her answers. The assessor believed
Mother was not being honest in answering the questions, such as marking “zero” for past
traumas and history of drug use. When questioned about why she did not follow through
on the individual therapy suggested after completing the assessment, Mother stated, “If
I’m going for parenting, . . . can’t nobody teach me how to be a parent. I teach myself.”
Additionally, Mother did not provide a transportation plan to DCS.5 She also did not
4
According to Mr. Taylor, before Mother used a bus pass to permanently move back to
Tennessee, she refused the passes, stating “[s]he felt that it was a claustrophobic situation” and that “she
didn’t want to be trapped on a bus for that long.”
5
Mother claims she is in the process of paying off previous fines to re-obtain her driver’s license
and that an older child is helping with transportation, but no proof of these payments or a written plan was
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complete her domestic violence victim classes or education group. Mother attended one
session of domestic violence victim group therapy before walking out half way through.
When she reported that the group classes were too emotionally jarring for her, Mr. Taylor
arranged for her to complete the task through individual counseling. However, Mother
failed to attend the scheduled appointments, claiming she had a work conflict. Further,
until the morning of trial, Mother did not provide written proof of her employment or
housing.
On January 25, 2019, over a year and a half after DCS took custody of the
children, Mother returned from Texas to live in Tennessee. Shortly after her return,
Mother spent 45 days in Sevier County Jail for pleading guilty to possession of stolen
property and vandalism charges. After being jailed in Sevier County, she spent two
weeks in Knox County Jail after pleading guilty to a 2009 forgery charge. Then Mother
was transferred to Blount County Jail for pleading guilty to a 2007 charge of driving on a
suspended license. Upon being released from Blount County Jail in early April 2019,
Mother requested to visit the children. Mr. Taylor conferred with the children’s
therapists on whether to approve visitation. The therapists recommended against
visitation. Heeding the therapist’s recommendation, Mr. Taylor denied Mother visitation.
Shortly thereafter, on April 8, 2019, DCS filed a Petition to Terminate Parental Rights.
Kelly Wojciechowski was appointed as the children’s guardian ad litem. Based on
the recommendations of DCS and the therapist, Ms. Wojciechowski moved to
temporarily suspend Mother’s visitation. The juvenile court granted the motion,
suspending visitation, subject to a final hearing. An initial appearance was made before
the circuit court on May 21, 2019, and Mother was appointed counsel the following day.
A final hearing on the Petition to Terminate Parental Rights was set for August 19, 2019.
Prior to the final hearing, in July 2019, Mother submitted to a drug screen. Mother
tested positive for Methamphetamine. When asked about her drug use, Mother did not
deny using drugs in July 2019 but stated that she was unaware it was Methamphetamine.
Mother stated that she was partying over a three-day weekend when she took the drug,
believing it was Ecstasy.
The circuit court conducted the final hearing on the petition for termination on
August 19, 2019. Three witnesses testified: Mr. Taylor; Heather Cupp, a licensed social
worker whose focus is child and adolescent development; and Mother. Mother stated that
she had been working at Rubbermaid for approximately four months, earning $12.50 per
hour. As proof of this employment, Mother provided copies of two months of paycheck
stubs. Mother’s lease, which she executed twelve days prior, was for a two-bedroom unit
and listed one adult and zero children as the only occupant. Despite the written language
of the lease, Mother stated the landlord knew she had children and that he would allow
provided to DCS.
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them to stay in the apartment with her. If the children were to live there with her, Mother
stated the oldest daughter would sleep in one bedroom, the two youngest would sleep in
another, and Mother would sleep on a couch. Mother claimed she faxed a copy of the
lease to Mr. Taylor prior to trial. However, Mr. Taylor testified that the first time he saw
a written copy of the lease was the morning of trial.
Mr. Taylor testified on the history of this case, his efforts to help Mother complete
the permanency plans, the children’s needs and progression, and his recommendation for
the court. Mr. Taylor stated the children expressed a desire to remain with their current
foster families. He noted that the children are “starkly different” than when they entered
custody. Mr. Taylor credited the improvements in large part to the foster placements of
each child, which were selected based on their individual needs. He stated that the
children continued to improve through therapy sessions with Ms. Cupp. He further
testified that he believed it is in the best interest of the children to terminate Mother’s
(and Father’s) parental rights rather than subjecting the children to a “constant state of
turmoil.”
Ms. Cupp testified to the children’s behavioral issues and progress while in foster
care. At the time of trial, Ms. Cupp had worked with the two youngest children for
approximately five months and with R.W. for a few weeks. Due to the short period of
therapy, Ms. Cupp stated that R.W. was still in the assessment phase. Through the
therapy sessions, Ms. Cupp determined that the two youngest daughters faced significant
behavioral issues, PTSD, and developmental delays. She also noted that all three
children are avoidant and reluctant to discuss Mother. When Ms. Cupp would bring up
Mother in the course of a conversation, the girls would become agitated, change energy
levels, or “check out” of the conversation. Speaking directly in regard to the two
youngest children, Ms. Cupp’s recommendation was for the children to maintain
consistency and permanency in the placement of their current homes. In her opinion, it
would be “very harmful” to the children to change their caregivers.
Mother’s testimony verified the majority of the case’s history and offered
explanations for some of her actions. She explained that she answered zero to domestic
violence trauma on her parenting assessment because she was no longer dealing with the
trauma. Yet, she admitted that she walked out of the domestic violence victims group
therapy because it was too difficult to deal with. Mother dismissed her shoplifting
incident by placing the majority of the blame on the woman she was with when the
incident occurred, stating she knew what the woman was doing but did not shoplift
herself. Mother also placed most of the blame on Mr. Taylor and DCS for her not
completing most of the permanency plan. In her opinion, DCS could have done more to
help her find housing and set up assessments in Texas. Mother did admit that she has not
provided financial support for the children since they left her physical custody. She
claimed she intended to provide support but that DCS did not file a case, so she
“technically” did not have a case to pay on.
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The circuit court rendered an oral ruling at the close of the final hearing. The
court found DCS met its burden to terminate Mother’s parental rights on four separate
grounds: (1) abandonment for failure to provide a suitable home; (2) substantial
noncompliance with the permanency plan; (3) persistence of conditions; and (4) failure to
manifest an ability to parent.6 The court applied the factors listed in Tennessee Code
Annotated section 36-1-113(i) and found it was in the best interest of the children to
terminate Mother’s parental rights. A final written order was entered on September 10,
2019. Mother has appealed to this Court.
II. ISSUES PRESENTED
Mother presents five issues on appeal.
1. Whether the trial court erred in finding abandonment for failure to provide a
suitable home;
2. Whether the trial court erred in finding the ground of substantial non-
compliance with the permanency plan;
3. Whether the trial court erred in finding the ground of persistent conditions;
4. Whether the trial court erred in finding a failure to manifest by act or omission
an ability and willingness to personally assume legal and physical custody or
financial responsibility for the children; and
5. Whether the trial court erred by finding that termination of Mother’s rights is
in the best interest of the children.
For the reasons stated herein, the decision of the circuit court is affirmed and
remanded.
III. STANDARDS IN TERMINATION CASES
“A parent’s right to the care and custody of her child 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 507, 521 (Tenn.
2016). However, parental rights are not absolute. Id. at 522.
A petitioner seeking to terminate the parental rights of another must prove two
6
DCS originally listed abandonment for failure to visit as a ground for termination of Mother’s
rights, but it conceded this ground on the day of trial due to her incarceration.
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elements. In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015). The petitioner must
prove (1) at least one statutory ground for termination in Tennessee Code Annotated
section 36-1-113(g), and (2) that termination of parental rights is in the best interest of the
child. Id. In making the best interest determination, a court must consider the factors
listed in Tennessee Code Annotated section 36-1-113(i). In re Carrington H., 483
S.W.3d at 535, 538–39. A petitioner seeking termination must prove both elements by
clear and convincing evidence. See, e.g., id. at 522; In re Kaliyah S., 455 S.W.3d at 552.
Meaning, the evidence must “enable[] the fact-finder to form a firm belief or conviction
regarding the truth of the facts, and [it must] eliminate[] 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)).
In parental termination cases, we review the trial court’s findings of fact de novo
with a presumption of correctness. Tenn. R. App. P. 13(d); In re Carrington H., 483
S.W.3d at 524; In re Bernard T., 319 S.W.3d at 596. Conclusions of law are also
reviewed de novo but with no presumption of correctness. Carrington H., 483 S.W.3d at
524; In re Bernard T., 319 S.W.3d at 597.
IV. DISCUSSION
Pursuant to the Supreme Court’s decision in In Re Carrington H., “in an appeal
from an order terminating parental rights the Court of Appeals must review the trial
court’s findings as to each ground for termination and as to whether termination is in the
child’s best interests, regardless of whether the parent challenges these findings.” 483
S.W.3d at 525–26. In this case, the trial court found there were four grounds for
termination of Mother’s parental rights. Therefore, we shall address each ground in turn.
A. Grounds for Termination
1. Abandonment for Failure to Provide a Suitable Home
Tennessee Code Annotated section 36-1-113(g)(1) lists “abandonment” as one
possible ground for termination of parental rights. Under certain circumstances,
“abandonment” can include a parent failing to obtain and sustain a suitable home for the
child after the child is removed from the physical or legal custody of the parent. See
Tenn. Code Ann. § 36-1-102(1)(A)(ii).7 Termination on this ground “requires a finding .
. . that a parent failed to provide a suitable home for his or her child even after DCS
assisted that parent in his or her attempt to establish a suitable home.” In re Jamel H.,
7
Prior versions of this subsection required a child to be “removed from the home of the parent.”
See, e.g., In re Ronon G., No. M2019-01086-COA-R3-PT, 2020 WL 249220, at *5 (Tenn. Ct. App. Jan.
16, 2020) (discussing prior cases). Currently, section 36-1-102(1)(A)(ii) applies when a child is removed
from the home, legal custody, or physical custody of the parent. Tenn. Code Ann. § 36-1-
102(1)(A)(ii)(a). This amendment was in effect prior to DCS filing its petition in this case.
-7-
E2014-02539-COA-R3-PT, 2015 WL 4197220, at *6 (Tenn. Ct. App. July 13, 2015)
(citing Tenn. Code Ann. § 36-1-102(1)(A)(ii)). In assisting the parent, DCS must make
“reasonable efforts” by utilizing its superior resources and training to assist the parent in
finding a home. In re Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076,
at *7 (Tenn. Ct. App. Apr. 20, 2016); In re Jamel H., 2015 WL 4197220, at *6.
“Reasonable efforts entail more than simply providing parents with a list of service
providers and sending them on their way.” In re Matthew T., 2016 WL 1621076, at *7
(quoting Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 790, 800–01 (Tenn. Ct. App.
2008)). DCS will be found to have made “reasonable efforts” if its actions are equal to or
greater than the parent’s. Tenn. Code Ann. § 36-1-102(1)(A)(ii)(c). DCS must make
these “reasonable efforts” for a four-month period following the removal of the children.
See id.; In re Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL 7243674, at *13
(Tenn. Ct. App. Dec. 15, 2016).8
In making efforts to establish a home, the parent must provide “more than an
adequate physical space.” In re Matthew T., 2016 WL 1621076, at *7; In re A.D.A., 84
S.W.3d 592, 599 (Tenn. Ct. App. 2002). A suitable home includes adequate care and
attention being given to the child. In re Matthew T., 2016 WL 1621076, at *7.
In the present case, the children were in the physical custody of Grandmother, but
in the legal custody of Mother at the time of removal. DCS was awarded legal and
physical custody of the children in the course of the dependency and neglect action on
May 18, 2017. The trial court found DCS made numerous efforts to help Mother move
from Texas to Tennessee. Based on Mr. Taylor’s testimony, which was largely
undisputed by Mother, we agree. After DCS was awarded custody of the children, Mr.
Taylor provided Mother with bus passes on multiple occasions, arranged for her to stay at
a domestic abuse shelter in Knoxville, and made multiple attempts to contact her to track
her progress and needs. Mr. Taylor testified that helping a parent move to Tennessee
from another state was not a normal course of action for DCS. His doing so indicates
DCS used its heightened resources and insight to try and help Mother reunite with the
children. Mr. Taylor also ensured Mother’s travel and initial board would be free of
charge to her.
In contrast, before and after the children entered DCS custody, Mother continued
to live in homes filled with domestic violence. She claims she was forced to remain in
Texas by her abuser, Norman B. Yet, she was able to travel to Tennessee on two separate
occasions before moving back in January 2019. We must agree with the trial court that,
prior to January 2019, there is “no proof that [Mother] made any effort at all” to find a
8
“As we have explained in other cases, the statute under present consideration ‘does not limit the
window during which DCS may satisfy its obligation to make reasonable efforts to the four-month period
directly following statutory removal.’” In re H.S., No. M2019-00808-COA-R3-PT, 2020 WL 1428777,
at *7 n.4 (Tenn. Ct. App. Mar. 20, 2020) (quoting In re Jakob O., 2016 WL 7243674, at *13).
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suitable home. Even once Mother returned to Tennessee, her actions do not compare to
the efforts made by DCS.
The lease Mother entered into on August 7, 2019 does not show that she has
established a suitable home for the children. The lease shows nothing more than a “brick
and mortar home” for Mother, listing one adult and zero children as the only permitted
inhabitants. Due to Mother’s failure to provide DCS with timely notice of her dwelling,
DCS did not have an opportunity to inspect the home before the hearing. Additionally,
Mother admitted to partying and taking illicit drugs within a month of trial. We believe
this may indicate her home will not be free from illicit drugs or that Mother is unwilling
to provide a stable home for the children. See, e.g., In re Matthew T., 2016 WL 1621076,
at *7; In re Aaralyn O., No. W2017-01411-COA-R3-PT, 2018 WL 468246, at *1, *7
(Tenn. Ct. App. Jan. 18, 2018) (holding the father’s continued drug use after the children
were removed from his physical custody evidenced he was “either unable or unwilling to
maintain a safe and stable home”). Mother’s decision to forgo domestic violence victim
therapy and her discrediting the value of parental counseling further demonstrate her lack
of effort to establish a healthy home for the children. See In re Matthew T., 2016 WL
1621076, at *7 (quoting In re M.F.O., No. M2008-01322-COA-R3-PT, 2009 WL
1456319, at *5 (Tenn. Ct. App. May 21, 2009)) (stating “a parent’s compliance with
counseling requirements is ‘directly related to the establishment and maintenance of a
suitable home’”).
For these reasons, we find that DCS made reasonable efforts to help Mother
establish a suitable home for the children and that Mother’s efforts do not match those of
DCS. The record shows by clear and convincing evidence that Mother has failed to
provide a suitable home for the children. As a result, grounds exist for termination of her
parental rights under Tennessee Code Annotated sections 36-1-113(g)(1) and -
102(1)(A)(ii).
2. Substantial Noncompliance with the Permanency Plan
Termination of parental rights may occur under Tennessee Code Annotated
section 36-1-113(g)(2) if “[t]here has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan.” In re Jamel H.,
2015 WL 4197220, at *7 (citing Tenn. Code Ann. § 36-1-113(g)(2)) (alteration in
original). Such plans are developed to ensure each foster child is cared for and the
parent’s responsibilities under the plan help serve the child’s needs. See id. Termination
may occur for substantial noncompliance if the plan’s requirements are “reasonable and
related to remedying the conditions which necessitate[d] foster care placement.” In re
Valentine, 79 S.W.3d 539, 547 (Tenn. 2002). See also In re Ronon G., 2020 WL 249220,
at *8; In re Jamel H., 2015 WL 4197220, at *7; In re M.J.B., 140 S.W.3d 643, 656
(Tenn. Ct. App. 2004). If the trial court does not make a finding on the plan’s
reasonableness, this Court will review the issue de novo. In re Jamel H., 2015 WL
-9-
4197220, at *7 (citing In re Valentine, 79 S.W.3d at 547).
To terminate parental rights under this subsection, a parent’s noncompliance with
a permanency plan must be “substantial.” “Determining whether a parent has
substantially complied with a permanency plan involves more than merely counting up
the tasks in the plan to determine whether a certain number have been completed and
‘going through the motions’ does not constitute substantial compliance.” In re
Carrington H., 483 S.W.3d at 537 (citing In re Valentine, 79 S.W.3d at 547) (emphasis
added). More proof is required than showing “that a parent has not complied with every
jot and tittle of the permanency plan.” In re Ronon G., 2020 WL 249220, at *8 (quoting
In re M.J.B., 140 S.W.3d at 656). “Trivial, minor, or technical deviations from a
permanency plan’s requirements will not be deemed to amount to substantial
noncompliance.” Dep’t of Children’s Servs. v. T.M.B.K., 197 S.W.3d 282, 293 (Tenn. Ct.
App. 2006). Instead, DCS must show “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 548–59; In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at
*12 (Tenn. Ct. App. June 3, 2003)).
Turning to the ruling in this case, the trial court found substantial noncompliance
with the permanency plan. The plan required Mother to accomplish the following tasks:
obtain legal and safe transportation or provide DCS with a transportation plan, resolve
her legal issues and refrain from participating in illegal activities in the future, attend an
alcohol and drug assessment and follow its recommendations, attend parenting and
mental health assessments and follow their recommendations, obtain stable and safe
housing for her and the children, obtain a legal income and provide proof of such to DCS,
and complete a domestic violence victim course. The children were brought into DCS
custody as a result of Mother failing to provide a safe home for them to live in and
because they were not given adequate care and supervision. From our review of the
record, we find Mother’s obligations under the permanency plan to be reasonably related
to the conditions that necessitated DCS taking custody of the children. See In re
Valentine, 79 S.W.3d at 547.
Although Mother made some progress completing the requirements of the plan, in
total her actions have resulted in substantial noncompliance. At trial, Mother testified to
working at Rubbermaid for the past four months, earning $12.50 per hour. However, Mr.
Taylor and DCS did not receive written verification of her employment until the morning
of trial. Even then, the pay stubs presented by Mother only showed employment in June
and July 2019. Also, Mother resolved many of her past legal troubles upon her return to
Tennessee. However, her incarceration for those prior cases, came after she plead guilty
to possession of property and vandalism charges in 2019. Her attorney’s claim that
Mother’s shoplifting incident was the result of her being “in the wrong place at the wrong
time” is not a sufficient justification for her actions. She was noncompliant with the
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permanency plan’s requirement that she refrain from participating in illegal activities.
She violated this requirement again when she “partied all night” over a three-day period
in July while partaking in ecstasy.9 She also admitted to “using” substances in December
of 2018. Despite Mother taking accountability for her prior issues, her recent actions
seem to follow a pattern of participation in illegal activity.
Despite DCS’s efforts to aid Mother in completing her assessments and therapy,
she did not comply with those portions of the permanency plan. DCS first arranged for
Mother to complete her parenting assessment in Texas. Mother eventually completed the
assessment, which included a drug and alcohol assessment, but her responses were
heavily questioned. The assessor expressed concerns to Mr. Taylor that Mother “sped
through” the assessment and was not honest with many of her answers. DCS also made
significant efforts to help Mother complete her domestic violence victim class by
arranging individual therapy, but Mother did not attend the therapy sessions. When
asked about whether she would be open to individual therapy, her responses were
perplexingly inconsistent. Initially, she stated, “If I’m going for parenting, no, can’t
nobody teach me how to be a parent.” Later, she tried to explain the comment by stating,
“You can’t teach something that [is] already in me. . . . [B]eing a mother is already in
me.” Mother’s refusal to be honest and forthcoming in completing the assessments, and
her subsequent refusal to follow their recommendations was a failure to comply with the
responsibilities required of her in the permanency plan.
Considering the children were removed from Mother’s legal custody due to
unstable and unsafe living conditions and due to her lack of stability as a parent and
provider, we cannot say her noncompliance with the permanency plan was trivial or
minor. See T.M.B.K., 197 S.W.3d at 293. For many of the permanency plan’s crucial
requirements, Mother either did not comply, was untruthful, or waited until the morning
of trial to offer written proof, which was not without its faults. When presented with new
information on the morning of the hearing, it was impossible for DCS to investigate
Mother’s new home or income. In light of these circumstances, we find Mother’s
noncompliance to be substantial. See In re M.J.B., 140 S.W.3d at 656. Her actions
demonstrate she is unwilling or unable to “resume caring for [the] children” on a long-
term basis. See In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at
*3 (Tenn. Ct. App. May 31, 2018). Mother was made aware of the original permanency
plan and its subsequent revisions by receiving mailed copies of the plan or discussing the
plan directly with Mr. Taylor. Therefore, we find there is clear and convincing evidence
to show substantial noncompliance with the permanency plan.
3. Persistence of Conditions
9
Mother dismisses her testing positive for Methamphetamine by explaining she believed it to be
Ecstasy at the time she took it. We cannot dismiss this supposed confusion as easily since both are illicit
drugs.
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We next address the trial court’s findings regarding persistence of conditions.
This ground for parental termination applies when:
The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a court
order entered at any stage of proceedings in which a petition has been
filed in the juvenile court alleging that a child is a dependent and
neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent or
guardian, or other conditions exist that, in all reasonable probability,
would cause the child to be subjected to further abuse or neglect,
preventing the child’s safe return to the care of the parent or
guardian;
(ii) 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 guardian in the near future; and
(iii) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable, and permanent home.
Tenn. Code Ann. § 36-1-113(g)(3)(A).
“A parent’s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the
parent’s care.” In re Navada N., 498 S.W.3d 579, 605 (Tenn. Ct. App. 2016) (omission in
original) (quoting In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20
(Tenn. Ct. App. Oct. 13, 2008)). A parent’s inability to eliminate the conditions that led
to a child’s removal need not be willful. Id. at 606 (citing In re T.S. & M.S., No. M1999-
01286-COA-R3-CV, 2000 WL 964775, at *6 (Tenn. Ct. App. July 13, 2000)); In re
Jaylah W., 486 S.W.3d 537, 555–56 (Tenn. Ct. App. 2015). When efforts made by DCS
to help “improve the parenting abilities, offered over a long period of time, have proved
ineffective, the conclusion that there is little likelihood of such improvement as would
allow the safe return of the child to the parent in the near future is justified.” In re T.S. &
M.S., 2000 WL 964775, at *7.
Mother argues she has remedied the conditions that led to the children’s removal
by returning to Tennessee and no longer living in an abusive household. The trial court
concluded that the children entered DCS custody and were adjudged dependent and
neglected due to a pattern of Mother’s unstable housing, her lack of support for the
children, her prior drug use, her prior legal issues, and inadequate supervision of the
children. We agree with the trial court’s findings.
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The children entered DCS custody on May 17, 2017. They were adjudged
dependent and neglected on March 9, 2018. This occurred after Mother sent the children
to live with a friend in Texas and Grandmother took the children to Tennessee. Mother
was hesitant to return to Tennessee, in part, due to her then-outstanding warrants in this
state. In the 27 months between DCS taking custody and the trial in this case, Mother did
not provide any financial support for the children, she failed to address her trauma as a
domestic violence victim, and she failed to provide DCS with sufficient proof of adequate
and stable housing.10 Like the trial court, we find Mother’s reasons for these
shortcomings to be unpersuasive.
Further, this court has previously interpreted this subsection to include “other
conditions” that may not have originally contributed to the children entering custody. In
In re Audrey S. we stated:
The statute refers both to the original “conditions which led to the child’s
removal” and to “other conditions” which in all reasonable probability
would cause a child to be subjected to “further abuse and neglect.”
In re Audrey S., 182 S.W.3d 838, 872 (Tenn. Ct. App. 2005) (citation omitted) (citing
Tenn. Code Ann. § 36-1-113(g)(3)(A)(i)). To protect the children from further neglect in
the future, it is appropriate for this Court to consider conditions that persist, even if they
did not contribute to the children’s removal in May 2017. Such conditions include
Mother’s continued legal trouble, her lack of follow-through on assessment
recommendations, and her “cavalier” and unapologetic drug use one month prior to trial.
These conditions relate directly to Mother’s ability and willingness to provide adequate
support and care for the children. They did not contribute to the children entering DCS
custody, but their continuance may subject the children to future neglect if they are
placed in Mother’s custody. Considering the children were in DCS custody for 27
months prior to trial, we must agree with Mr. Taylor that additional time is unlikely to
result in Mother remedying any of these conditions.
Pursuant to subsection (iii) in section 36-1-113(g)(3)(A), we also find that the
continuation of Mother’s relationship with the children would “greatly diminish[] the
child[ren]’s chances of early integration into a safe, stable, and permanent home[.]”
Tenn. Code Ann. § 36-1-113(g)(3)(A)(iii). Mr. Taylor and Ms. Cupp both testified at
length that the best outcome for the children would be to remain in their current foster
homes rather than be subject to further movement and uncertainty. Ms. Cupp also stated
10
Again, Mother presented a written lease at trial to show she obtained adequate housing for
herself and the children. However, the lease alone does not prove Mother obtained adequate housing, and
the face of the lease raises numerous concerns as to whether the children would be allowed to live at the
property.
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that the children become avoidant or agitated when Mother is brought up in therapy
sessions. Based on this testimony, DCS has shown that furthering Mother’s relationship
with the children is likely to diminish their chances of entering a safe and permanent
home where they can continue to recover from their past trauma.
Based on the forgoing reasoning, we affirm the trial court’s finding that grounds
for termination exist under Tennessee Code Annotated section 36-1-113(g)(3)(A) for
persistent conditions.
4. Failure to Manifest a Willingness and Ability to Parent
Tennessee Code Annotated section 36-1-113(g)(14) states another ground for
termination when two elements are shown by clear and convincing evidence. In re Dylan
S., No. E2108-02036-COA-R3-PT, 2019 WL 5431878, at *7 (Tenn. Ct. App. Oct. 23,
2019); In re Keilyn O., No. M2017-02386-COA-R3-PT, 2018 WL 3208151, at *8 (Tenn.
Ct. App. June 28, 2018). First, the petitioner 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.” In re Keilyn O., 2018 WL 3208151, at *8. Second,
it must prove “that placing the children in [the parent’s] custody would pose a risk of
substantial harm to the physical or psychological welfare of the children by the same
quantum of proof.” Id.
This ground for parental termination is relatively new, added to section 36-1-
113(g) in July 2016. See Tenn. Code Ann. § 36-1-113. In a short time, a split of
authority has developed in this Court regarding the first element in the section. See In re
Colton B., No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *9–10 (Tenn. Ct. App.
Oct. 29, 2018) (detailing the differing approaches).11 However, this split of authority is
only relevant “in cases where a parent manifests a willingness to assume custody and
financial responsibility but is simply unable to do so.” In re Dylan S., 2019 WL
5431878, at *8. “[W]here the parent has manifested neither a willingness nor an ability
to assume custody and responsibility, this Court has upheld termination of the parent’s
parental rights on this ground.” Id. (citing In re J’Khari F., No. M2018-00708-COA-R3-
PT, 2019 WL 411538, at *15 (Tenn. Ct. App. Jan. 31, 2019); In re Colton B., 2018 WL
5415921, at *9–10). Based on the facts presented in this case, we do not find the need to
address the split of authority that has developed on this ground. During the 27 months
the children had been in DCS custody, Mother failed to manifest either a willingness or
11
Certain panels have required “the petitioner to prove both an inability and an unwillingness of
the parent to assume custody or financial responsibility for the child.” In re Colton B., 2018 WL
5415921, at *9. Others have required proof “that a parent has failed to meet the requirement of
manifesting both a willingness and an ability to assume legal and physical custody of the child or has
failed to meet the requirement of manifesting both a willingness and an ability to assume financial
responsibility of the child.” In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *14
(Tenn. Ct. App. June 20, 2018).
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an ability to parent the children. Mother’s recent choices show she is living a transient
and erratic lifestyle despite returning to Tennessee. See In re Jonathan M., No. E2018-
00484-COA-R3-PT, 2018 WL 5310750, at *5 (Tenn. Ct. App. Oct. 26, 2018) (stating
“[a]bility focuses on the parent’s lifestyle and circumstances”). Furthermore, her conduct
since the children entered DCS custody shows she is unwilling to parent the children in a
suitable manner. See id. (stating “[w]hen evaluating willingness, we look for more than
mere words”). See also In re Amynn K., 2018 WL 3058280, at *15 (stating despite the
parent’s repeated statements that he is willing to parent, “[his] actions, including his
continued criminal activity and his failure to financially support the Child, raise doubt as
to [his] actual willingness to assume custody or financial responsibility for the Child”).
Mother used illicit drugs only a month prior to trial; she executed a lease only
twelve days before trial, which fails to list the children as occupants; she did not
substantially comply with the permanency plan; and she has not provided any financial
support for the children since they left her physical custody. Mother’s actions during the
two visits with the children in December 2017 and September 2018 further show she is
unwilling to establish a parental connection. In December 2017, Mother admits that the
middle daughter “pretty much stayed in a corner and played with [another sibling].” For
the majority of the September 2018 visit, Mother sat in a corner “Facetiming” another
child rather than spending time with the children that are the subject of this case.
Mother’s actions and lifestyle choices show that she has not manifested an ability or
willingness to parent the children. As a result, we find that DCS has met its burden of
proof by clear and convincing evidence on the first element of this ground. See In re
Keilyn O., 2018 WL 3208151, at *8.
Focusing on the second element, we conclude that placing the children in the
custody of Mother would subject them to a risk of substantial physical and psychological
harm. The evidence presented by DCS shows that another change in households is likely
to disrupt the children’s growth and well-being. Mr. Taylor and Ms. Cupp both testified
regarding the children’s improvements since entering custody. They also stated that
removing the children from their current placements would likely be harmful to the
children’s emotional and psychological well-being. Therefore, we affirm the trial court’s
finding regarding failure to manifest an ability or willingness to parent.
B. Best Interest of the Children
“When at least one ground for termination of parental rights has been established,
the petitioner must then prove by clear and convincing evidence that termination of the
parent’s rights is in the child’s best interest.” In re Navada N., 498 S.W.3d at 606 (citing
White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). To make this
determination, courts consider and apply the factors listed in Tennessee Code Annotated
§ 36-1-113(i). Id. at 607. The factors are as follows:
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(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.
Tenn. Code Ann. § 36-1-113(i).12
12
This subsection of the Code appears the same as it did on the date of the filing of the subject
petition in April 2019.
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“The relevancy and weight to be given each factor depends on the unique facts of
each case.” In re Audrey S., 182 S.W.3d at 878. The list is nonexclusive, In re
Carrington H., 483 S.W.3d at 523, and a court is not required “to find the existence of
each factor before it concludes that terminating a parent’s rights is in the child’s best
interest.” In re Matthew T., 2016 WL 1621076, at *16 (citing In re Dominique L.H., 393
S.W.3d 710, 719 (Tenn. Ct. App. 2012)). The determination “must be viewed from the
child’s, rather than the parent’s, perspective.” White, 171 S.W.3d at 194. “[W]hen the
interests of the parent and the child conflict, courts are to resolve the conflict in favor of
the rights and best interest of the child.” In re Navada N., 498 S.W.3d at 607 (citing
Tenn. Code Ann. § 36–1–101(d)).
As we have discussed at length, Mother has not shown that her new lease or
present lifestyle enable her to provide a stable and suitable home for the children. This
weighs against reunification under factor (1). Regarding factor (2), the steps Mother has
taken to comply with the requests of DCS and the permanency plan are minor compared
to what has been asked of her. Mr. Taylor testified to the scheduling and rescheduling of
assessments and therapy as well as the efforts he went to in order to help Mother satisfy
her responsibilities. In the end, it does not appear that she has made “a lasting
adjustment” after “reasonable efforts” made by DCS. As for factor (3), Mother visited
the children only twice after they left her physical custody. The only other contact that
she appears to have made was a phone call on R.W.’s birthday. Christmas and birthday
gifts were not exchanged, and regular phone calls were not made. Upon returning to
Tennessee, Mother did not immediately request visitation. It was not until April 2019
that DCS filed a Petition to Terminate Parental Rights, halting visitation. In the absence
of regular visitation, factor (3) weighs in favor of termination.
In relation to factors (4), (5), and (6) collectively, Mr. Taylor’s and Ms. Cupp’s
testimony on the children’s relationship (or lack thereof) with Mother and their growth
since entering DCS custody is compelling. Mr. Taylor stated that when the children
entered DCS custody, “they were starkly different [children] than the kids that [DCS is]
working with today.” He further explained that the middle daughter has made “a
complete 180,” recently receiving a public service award at her school; R.W. continues to
“transition[] into a completely lovely young lady;” and the youngest is now a polite and
respectful child. Mr. Taylor also testified that the children continue to receive therapy
every other week and that the constant transitioning between homes is frustrating to them.
Ms. Cupp testified on the lack of connection the children have with Mother. She stated
none of the children bring her up during therapy, and when Ms. Cupp would do so, the
children became avoidant. Ms. Cupp was pleased with the progress the children are
making and stated a change in caregivers would be “very harmful” to the two youngest
daughters’ psychological condition.
In contrast to the children’s current placements, Mother and the children appear to
lack a meaningful connection or bond. Again, the children make efforts to avoid talking
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about Mother while in therapy and often react negatively when she is discussed. Mother
also had trouble remembering at least one of the children’s birthdays both at trial and
when completing her parenting assessment. She claimed her forgetfulness was because
she had “so many kids and grandkids [she] can’t keep track of them all.” Mother’s own
attorney admitted that Mother’s relationship with the children is “not great.” Based on
the lack of a meaningful connection between Mother and the children, the children’s
positive growth in their current placements, and the potential for psychological or
emotional harm if Mother was to regain custody, we find that factors (4), (5), and (6)
show that parental termination is in the best interest of the children.
We find the record is devoid of sufficient evidence to properly address factors (7)
and (8), but that is not fatal to this best interest determination. See In re Matthew T.,
2016 WL 1621076, at *16.
Regarding factor (9), Mother admits that she has not provided any financial
support for the children since they left her physical custody. Her explanation that she
called the child support office but “[didn’t] technically [] have a case” to pay on is
unpersuasive. Even prior to DCS taking custody of the children, there is no proof that
Mother made any efforts to provide financial support to either Grandmother or her friend
in Texas. Factor (9) also weighs in favor of termination.
Taken as a whole, we find the application of the factors listed in Tennessee Code
Annotated section 36-1-113(i) shows it is the best interest of the children to terminate
Mother’s parental rights.
V. CONCLUSION
For the foregoing reasons, we affirm the trial court’s order terminating Mother’s
parental rights to the children. We affirm the trial court’s finding that there is sufficient
evidence to support the grounds of abandonment for failure to establish a suitable home,
substantial noncompliance with the permanency plan, persistence of conditions, and
failure to manifest an ability and willingness to parent. We affirm the trial court’s
conclusion that it is in the children’s best interest to terminate Mother’s parental rights.
Thus, we affirm the trial court’s ultimate decision to terminate Mother’s parental rights to
these children.
This case is remanded to the trial court for such further proceedings as may be
necessary and are consistent with this Opinion. Costs of this appeal are assessed against
Appellant, Alaina W., for which execution may issue if necessary.
_________________________________
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CARMA DENNIS MCGEE, JUDGE
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