In Re C.N.

01/10/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1, 2021

IN RE C.N.1 ET AL.

Appeal from the Juvenile Court for Sumner County

No. 2018-JV-506 David Howard, Judge

___________________________________

No. M2020-01021-COA-R3-PT

___________________________________

Tennessee Department of Children’s Services (“DCS”) removed six then-children from the

custody of Deanna D. (“Mother”) and David D. (“Father”), in August 2018 after receiving

multiple referrals regarding the family. After the children were in foster care for over a

year, DCS filed a petition to terminate Mother’s and Father’s parental rights. DCS alleged,

as statutory grounds for termination, abandonment by failure to visit, abandonment by

failure to establish a suitable home, failure to manifest an ability and willingness to assume

custody of the children, persistence of conditions, severe abuse, and, in regards to Father

only, a prison sentence of more than two years for conduct against a child. The trial court

found that DCS proved each ground for termination by clear and convincing evidence and

that termination was in the children’s best interests. Mother and Father each appeal.

Following a thorough review of the record, we affirm in part and reverse in part. We affirm

the trial court’s ultimate holding that the parental rights of both Mother and Father should

be terminated.

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

Part, Reversed in Part, and Remanded

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

J.R., P.J., M.S. and CARMA DENNIS MCGEE, J., joined.

Matthew Edwards, Hendersonville, Tennessee, for the appellant, David D.

Cal Bowen, Jackson, Tennessee, for the appellant, Deanna D.

Herbert H. Slatery III, Attorney General and Reporter, and Jordan K. Crews, Assistant

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

1

In actions involving juveniles, it is this Court’s policy to protect the privacy of the children by

using only the first name and last initial, or only the initials, of the parties involved.

OPINION

BACKGROUND

Mother and Father (together, “Parents”) are the biological parents of D.D., G.D.,

T.D., S.D., and K.D. (together, the “Children”). The oldest child, C.N., is Mother’s child

and Father’s step-child; however, C.N. has lived with Parents since she was an infant and

was raised by Father.2 Parents testified at trial that DCS was involved with them for many

years and visited Parents’ home frequently. These visits often had to do with Father’s

disciplinary methods, which Mother described at trial as abnormal. Specifically, Mother

testified that Father had waterboarded C.N. in the past and that C.N. was made to do naked

sit-ups or push-ups as punishment. DCS records reflect that the older children corroborated

these allegations, and that punishment inflicted on C.N. was done in the presence of the

other children.

In August of 2018, DCS received new referrals regarding the Children. The oldest

three, C.N., D.D., and G.D., were interviewed by a DCS worker and law enforcement on

August 23, 2018, and gave consistent reports of physical and psychological abuse. C.N.

and D.D. expressed fear that Father’s father (“Grandfather”), with whom the family lived,

would harm the Children’s cat in retaliation for the Children’s removal. It was also noted

that two of the younger children, S.D. and T.D., were not toilet-trained despite the fact that

S.D. was almost five and T.D. was eight at the time. Additionally, T.D. was nonverbal and

was not attending school. Soon thereafter, DCS filed an emergency petition for legal

custody of the Children in the Juvenile Court for Sumner County (the “trial court”),

alleging that all three older children were interviewed separately but gave consistent

accounts of abuse within the home. In particular, the petition alleged that C.N. disclosed

being forced to do naked sit-ups in front of Father and Grandfather, as well as being told

by Father that he would shoot C.N. in the back of the head. The petition also averred that

D.D. disclosed to DCS having seen C.N. be locked under the kitchen sink and that

Grandfather killed animals in front of the Children. DCS records note that during a forensic

interview, T.D. mimed “the action of a shot gun then the gun hitting [] something which

2

At the time of their removal by DCS, C.N. was just shy of sixteen, D.D. was fourteen, G.D. was

twelve, T.D. was eight, S.D. was four, and K.D. was nearly two. C.N.’s biological father was also named

as a defendant in this action but never participated. In any event, C.N. reached the age of majority

approximately two months after the trial court entered its order terminating Parents’ rights. Under the

circumstances, we conclude that this case is moot as to C.N. See In re Jeffery B., No. W2012-00924-COA-

R3-PT, 2012 WL 4854719, at *1 n.2 (Tenn. Ct. App. Oct. 12, 2012); In re K.H., No. W2008-01144-COA-

R3-PT, 2009 WL 1362314, at *12 (Tenn. Ct. App. May 15, 2009); see also Tenn. Code Ann. § 36-1-102

(13), (39) (defining “child” as “any person or persons under eighteen (18) years of age[,]” and defining

“parental rights” as “the legally recognized rights and responsibilities to act as a parent, to care for, to name,

and to claim custodial rights with respect to a child”); but see In re Jeremy C., No. M2020-00803-COA-

R3-PT, 2021 WL 754604, at *6 n.5 (Tenn. Ct. App. Feb. 26, 2021) (reviewing trial court’s decision to

terminate mother’s parental rights despite son reaching age of majority during the pendency of the appeal).

C.N. is nonetheless important for the factual background of this case and is discussed for that purpose.

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[T.D.] vocalized to be the dog.” Older children C.N. and D.D. confirmed to DCS that

Grandfather had killed the family’s dog in front of T.D. An order removing the Children

from Parents’ custody was entered on August 23, 2018, and a preliminary hearing was set

for August 29, 2018. A no-contact order was entered against Father as to Mother and the

Children.3

The Children were placed in DCS custody and Father was arrested and charged with

aggravated child abuse involving a child under the age of eight. Father testified at trial that

the criminal charge stemmed from the allegations made by C.N. Father remained

incarcerated until June 17, 2019, and his participation in the DCS case was minimal until

his release. Upon entering DCS custody, the Children were all in poor condition. Although

they were dressed appropriately, the Children had an odor. T.D. was eight years old but

knew approximately twenty-five words and still wore diapers. Several of the Children had

speech delays. S.D., the four-year-old, appeared to have the developmental capacity of a

two-year-old, was not toilet-trained, and referred to everyone as “mommy.” G.D. was

withdrawn. The Children underwent forensic interviews, during which the Children

disclosed witnessing domestic violence within the home and overhearing Father making

statements about wanting to have sex with C.N. DCS notes reflect that Father denied all

of the Children’s allegations and blamed abuse of the younger children on C.N. Father

relayed that in the past, C.N. and a friend had waterboarded T.D., the eight-year-old, and

that C.N. had previously waived a gun and a knife at the younger children. Mother also

later reported to a DCS caseworker that C.N. and a friend had once locked T.D. in a

bathroom, gagged and hit him. Mother also disclosed fear that C.N. and the same friend

had molested S.D., the four-year-old.

At a child and family team meeting (“CFTM”) on August 29, 2018, Mother relayed

that she was fearful of Father and Grandfather and accused Grandfather of abusing

prescription medication. Mother had also left the family home on August 23, 2018 and

was staying in a motel paid for by DCS. After the motel, DCS arranged for Mother to stay

in a women’s shelter for a few weeks. In early September 2018, Mother chose to return to

Kentucky where she is from and where her parents (the “Maternal Grandparents”) still

reside. DCS entered into an initial permanency plan with Parents on September 11, 2018.

Mother participated in the creation of the initial plan. Although Father was incarcerated,

he was represented by counsel at the ratification hearing for the permanency plan. Among

other things, the plan required Father to undergo a psychological evaluation with an I.Q.

component, complete anger management and parenting classes, provide DCS with a legal

means of income, allow DCS to complete a walk-through of Father’s home, and abide by

the protective order. As to Mother, the plan required a psychological evaluation, individual

3

The no-contact order itself is not in the record; however, no one disputes that Father was ordered

not to have contact with the Children, and the no-contact order was discussed in testimony. See In re Alexis

S., No. M2018-00296-COA-R3-PT, 2018 WL 6267180, at *5 n.6 (Tenn. Ct. App. Nov. 30, 2018).

Grandfather was also purportedly subject to a no-contact order between him and the Children, although this

order also is not in the record.

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therapy, safe and stable housing, open communication with DCS, and a parenting

assessment.

The Children were placed in a foster home together, and Mother was allowed two

hours of supervised visitation per week plus phone calls with the Children. In an October

2018 provider summary, DCS noted that “[Mother] is currently in the process of securing

housing [for the Children]. Once she is in appropriate housing and DCS can do a home

visit to verify the residence is appropriate, placement with [Mother] will be considered.”

Nonetheless, DCS noted early in the case that Mother struggled with mental health issues

and a non-specified intellectual impairment.4 Mother struggled with appropriate

communication with the Children, and Mother was informed in late September 2018 that

her phone calls would be restricted until DCS could talk to Mother’s lawyer. DCS noted

in its file that the Children “were constantly under the impression they were going home

and they would have different dates in mind and information that [the FSW] . . . did not

give them.” Mother also contacted the Children at all hours of the day and night, and even

after the contact was restricted, Kayla H. (“Foster Mother”) discovered an extra phone in

the possession of C.N. One day, Mother called the Children’s FSW multiple times and

claimed that Foster Mother had pulled a gun on C.N. and that C.N.’s teeth had been

knocked out. However, when the FSW checked on C.N. at school, C.N. was fine. Mother

also requested that Foster Mother be prohibited from attending T.D.’s IEP meetings at

school.

At first, Mother regularly saw the Children and frequently communicated with them

via phone and Skype. Mother reported in September of 2018 that Maternal Grandparents

were providing Mother with a house. Additionally, the Children showed some

improvement. By September, T.D. was attending school and his teachers developed a

bathroom schedule to help with toilet-training. T.D. was largely toilet-trained by October

2018. S.D.’s toilet-training and communication had also somewhat improved by October

2018, and all of the Children were enrolled in various forms of therapy. G.D. and C.N. had

cavities filled, and K.D. was treated for some hearing loss as well as some speech therapy.

While D.D.’s mental health was a concern and it was noted that he had trouble with his

anger, he began seeing a therapist to better learn how to express himself. Additionally,

Foster Mother’s husband, Steve H. (“Foster Father” or together with Foster Mother, “Foster

Parents”), discovered that D.D. had a talent for repairing electronic devices. D.D. began

helping Foster Father with his business, which entailed putting electrical in houses, and

Foster Father began teaching D.D. about saving money and budgeting. Overall, the record

shows that the Children’s physical and emotional condition improved once placed with

Foster Parents, and the Children and Mother were able to attend some therapeutic visitation

with one another. Given Mother’s living arrangements, DCS provided Mother with

transportation vouchers to help Mother attend visitation and therapy.

4

Mother testified at trial that she was involved in a car accident in 1997 during which she was

knocked unconscious for two hours and suffered a serious head injury.

-4-

Some visitation and phone calls with Mother were successful and appropriate, and

in December 2018, DCS noted that Mother had “completed all of the assessments DCS

asked her to do.” The situation with Mother deteriorated, however, towards the end of

2018. Mother continued to contact the Children outside of the scheduled hours, refused to

provide Foster Mother with immunization records for S.D., and again called the Children’s

school and demanded that Foster Mother be restricted from attending the Children’s IEP

meetings. When asked about this, Mother claimed that her Facebook had been hacked and

denied calling the school regarding the IEP meetings. Both Mother and Maternal

Grandparents had to be counseled about making baseless accusations against Foster

Mother. Mother also had to be counseled about bringing too many people to therapeutic

visitation, because at one visit Mother brought a friend who filmed and took pictures of the

session.

Pursuant to the Interstate Compact on the Placement of Children (“ICPC”), DCS

submitted a request for an inspection of Mother’s home to Kentucky’s Department for

Health and Family Services. The request for placement was denied on December 18, 2018

because Kentucky’s Department for Community Based Services (“DCBS”) determined

Mother’s home was not suitable for the Children. Mother’s brother was living in the home;

the DCBS report notes that the brother had been charged with felony wanton endangerment

involving a firearm. DCBS also reported that during its visit, Mother would not get off of

her phone in order to be interviewed and would not answer questions about her plans for

the Children. It also did not appear to DCBS that Mother actually lived in the home;

although there were beds, there were no personal items of Mother’s and most items were

being stored in bins. Finally, DCBS expressed concern over Mother’s mental health,

explaining that Mother had shown up at the DCBS office several times demanding a home

study be conducted immediately, and was generally hostile, confused, evasive, and difficult

to work with.

During January of 2019, some of the Children regressed. While Mother was still

frequently talking to the Children over the phone, DCS notes show that these calls were

not always productive. In particular, Mother had difficulty communicating with T.D., who

mainly communicated with Mother through short phrases and grunting. Around this time,

T.D. reverted to defecating on himself and hiding his underwear in the vents of Foster

Parents’ home. S.D. was physically aggressive towards her siblings and had difficulty

expressing herself appropriately, and C.N. was secretly using social media despite having

been prohibited from doing so. On February 26, 2019, DCS filed an emergency petition

to suspend Mother’s visitation, claiming that bouts of regression were occurring after

contact with Mother and that generally, the communications between Mother and the

Children were inappropriate and problematic.5 DCS also noted that the ICPC request to

5

For example, in one phone call, Mother told D.D. to be careful and not to accept “bribes” from

anyone. In another phone call, Mother kept stating that Foster Mother was not feeding the Children.

-5-

Kentucky had been denied and that DCBS was concerned about Mother’s mental health.

DCS requested that Mother undergo an additional mental health assessment. The trial court

granted this petition in an order entered March 20, 2019, nunc pro tunc to February 27,

2019.

Mother’s visitation was never reinstated.6 While Mother claimed at trial that she

was unable to get another mental health evaluation due to circumstances outside of her

control, DCS averred that Mother failed to get the assessment notwithstanding DCS’s best

efforts. Additionally, Kentucky denied two more ICPC requests for placement with

Mother. The second request was sent in March of 2019. A DCBS caseworker met with

Mother and Maternal Grandparents on April 10, 2019 at Maternal Grandparents’ home.

Mother’s brother was also living in this home at the time. The ICPC documents provide

that Mother, Maternal Grandparents, and the brother were all living in the three-bedroom

house and that there was no room for the Children. The case worker also noted that the

brother was under a “DVO” by his ex-wife and had a criminal history. Further, DCBS

explained that it had concerns about both Mother’s and Maternal Grandparents’ ability to

care for the Children, stating that “the family does have intellectual limitations that would

impair their ability to care for the [C]hildren.” Additionally, no one in the family was able

to verbalize a plan for transporting the Children to and from school or for accommodating

the Children’s special needs.

DCBS attempted a third and final home inspection in May 2019. Mother reported

that she was again living in her parents’ rental house, and a DCBS case worker went to the

house on May 15, 2019. It appeared to the case worker that no one actually lived in the

house, and the case worker was unable to reach Mother. The case worker did speak to a

neighbor, however, who signed an affidavit providing that no one lived in the house, that

Mother would sometimes come to check the mail, and that Mother had approached the

neighbor’s husband about “how to write up a fake lease.” The request for placement was

denied and DCBS recommended that due to Mother’s disabilities, she be referred to a

program called UK Comprehensive Assessment Training Services (“CATS”), which

provides various psychological assessments, therapies, and resources for those who

qualify. Accordingly, by May of 2019, Kentucky’s DCBS concluded that the Children

could not be placed with Mother without further assessment and support for her disabilities.

In the meantime, Father was released from jail on June 17, 2019, after having plead

guilty to attempted aggravated child abuse of a child under the age of eight, pursuant to

Tennessee Code Annotated section 39-15-402. Father’s total effective sentence was twelve

years, but he was released and was serving the remainder of his sentence on supervised

probation. Upon discovering that Father was released from jail, D.D. expressed fear about

returning to Father and told the FSW that D.D. was afraid Parents would reconcile. Despite

6

DCS records reflect, however, that Mother continued to contact the Children and Foster Mother

via social media in violation of the no-contact order.

-6-

having been toilet-trained for several months, T.D. experienced episodes of encopresis and

enuresis after learning about Father’s release. Additionally, the FSW and Foster Mother

suspected Mother and C.N. were communicating secretly because C.N. told the younger

children that they would be going home soon. T.D.’s accidents increased after hearing this.

Although the no-contact order between Father and the Children was still in place,

Father attended a CFTM on September 17, 2019, and was told he needed to complete a

parenting assessment, parenting classes, and therapy before supervised visitations could

begin.7 The record shows that Father completed a parenting class on August 21, 2019, as

well as an anger management class on October 8, 2019. On October 29, 2019, Father filed

a motion asking for visitation with the Children, averring that Father was following the

permanency plan as well as the conditions of his probation. The trial court entered an order

denying this motion on November 22, 2019, concluding only that the request was denied

based “on the record as a whole.”

DCS filed a petition to terminate Parents’ rights to the Children in the trial court on

November 14, 2019. The grounds alleged against Mother were abandonment by failure to

visit, abandonment by failure to provide a suitable home, failure to manifest an ability and

willingness to assume custody of the Children, persistence of conditions, and severe child

abuse. The grounds alleged against Father were the same, in addition to the ground of a

prison sentence of two or more years for conduct against a child amounting to severe abuse.

Parents responded to the petition, denying that grounds for termination existed and that

termination was in the Children’s best interests. Neither parent saw the Children between

the filing of the petition and trial. Mother did not complete the additional mental health

assessment requested by DCS, but Father underwent a psychological evaluation on April

29, 2020. By this time, Father was still living with Grandfather.

The Children remained together in their placement. Although the record shows that

the Children had improved since their removal, they were still struggling in many ways as

of January 2020. T.D. had continued issues with bowel control, nightmares, and

bedwetting, and communicated to the FSW his ongoing fear of “mean dad.” The youngest

two children, S.D. and K.D., still required speech therapy. While they could communicate

in some ways, T.D., S.D., and K.D. were still essentially nonverbal. K.D. was known to

hoard food and overeat. G.D. still tended to be withdrawn and to internalize stress; D.D.

parented the other children8 and could not always control his anger. All of the foregoing

coincided with the Children learning about the termination proceedings.

Trial was held on July 9, 2020 and July 10, 2020. Parents were divorced by the time

of trial and Mother was still living in Scottsville, Kentucky. Mother admittedly had not

7

Mother was invited to this CFTM but did not attend.

8

At one point, D.D. disclosed to his FSW that D.D. felt the need to monitor the other children’s

behavior because this previously kept him out of trouble with Father and prevented “whoopins.”

-7-

had visitation with the Children since the suspension of her visitation the previous year.

While Mother also admitted that she had not completed a second psychological evaluation,

she maintained that her insurance would not cover it and that DCS was supposed to arrange

it for her. Mother testified that she sent confirmation of her insurance to DCS and that

DCS never scheduled the evaluation for her. Mother also maintained that she did not need

a second evaluation.

Mother testified that she was in a car accident in 1997 in which she sustained a

serious head injury. Mother stated that she has been “nervous” ever since and receives

social security and disability due to her injuries and her “manic depressive.” When

questioned about whether Father abused the Children, Mother was evasive and had

difficulty answering the questions. For example, the following exchange between Mother,

DCS, and the Court is reflective of Mother’s testimony as a whole:

Q. (By Ms. Fisher) So did you feel like your children

wouldn’t be safe with [Father]?

A: That’s an answer the good Lord would only know.

Q. But in your opinion, how do you feel about that?

A. (No response).

The Court: Do you believe that the [Children] are safe

with [Father]?

The Witness: Well, they want to be with me, so . . .

The Court: Okay. And I understand that.

The Witness: And it’s under the – it’s a safety, you

know.

The Court: But do you – Ms. Fisher’s question and my

question, I suppose, is, do you believe the [Children] are safe

with [Father]? Regardless of whether they’re going to be with

you or not, do you believe that they’re safe with

him?

The Witness: Is there any way I can speak to my lawyer

for a minute?

The Court: Well, not right now.

-8-

Mr. Zanger: You’ve got to answer his question, Deanna.

The Court: I mean, if you believe so, then, that’s okay,

and if you don’t believe that they would be, that’s ok, too. You

just have to tell me.

Mr. Zanger: Your Honor, if I may try to move things

along. Deanna, just tell the truth.

The Witness: How do you answer that?

Mr. Zanger: With the truth. We talked about this.

Answer the question truthfully.

The Witness: No.

The Court: Thank you. Appreciate it.

Much of Mother’s testimony proceeded in this manner. Although Mother testified

that she did not believe the Children were safe with Father, she also testified that she would

intervene if and when Father needed to “cool it.” When asked about whether she had ever

seen Father hit or push the Children, Mother’s response was “I would tell him to cool it.

Because when you understand people, you know, you help out.” Another exchange

between the guardian ad litem and Mother proceeded as follows:

Q. Okay. My question to you is, were [the Children]

emotionally abused by [Father]?

A. The way I see it and weigh the abilities that I know of the

[C]hildren and everybody else, yes.

Q. Okay. So the next question to that would be, were [the

Children] physically abused by [Father]?

A. Only God would know the answer and the person that did,

you know what I mean?

Despite her evasive testimony, Mother agreed that Father’s discipline of the

Children “wasn’t normal,” and that she had previously seen Father punish C.N. in “the

nude” and that C.N. was “waterboarded.” Mother also indicated that she saw “handprints”

on D.D. and that on one occasion, T.D. communicated to Mother that Grandfather had

beaten T.D.’s legs with a gun stock. According to Mother, T.D. communicated this by

showing Mother the bruises and then bringing Mother the gun. Mother also testified that

-9-

the Children would disclose to her incidents of physical abuse, but Mother also claimed

that she never witnessed abuse herself. Regarding the family dog, Mother testified that the

Children disclosed to her that Grandfather killed the dog with a board in front of T.D.

Mother also testified that she herself was fearful of Father and Grandfather.

Mother was very critical of DCS and maintained that DCS did not sufficiently assist

Mother. Mother testified that she provided DCS with proof that her insurance would not

pay for a second psychological exam and that DCS never acted upon this information.

Regarding visitation, Mother explained that DCS provided her with transportation

vouchers but that Mother had difficulty using them in Kentucky, rather than in Tennessee.

Mother testified that DCS promised to provide her with gas cards but that this never

materialized. While Mother agreed that DCS paid for Mother to stay in a motel just after

her removal from the family home and then took Mother to a women’s shelter for a short

period of time, Mother maintained that DCS did nothing to further assist her. Mother also

alleged that the family’s DCS team leader once assaulted Mother at a meeting, and

maintained that DCS and Foster Mother instructed the Children to tell lies about Mother.

Mother remained adamant at trial that the Children should return to her care and that DCS

had no grounds to remove the Children in the first place.

Father denied all allegations of abuse and maintained that he pled guilty to attempted

aggravated child abuse as a “best interest” plea to get out of jail. Although Father was

sentenced to twelve years, he was serving the remainder of the sentence on probation.

Father took great issue with Mother’s testimony and denied having made C.N. do

calisthenics in the nude. Father also maintained that the family dog died of natural causes.

Generally, Father testified that Mother and C.N. were out to get him and that while he may

have raised his voice at the Children too often, he never physically harmed any of them.

Rather, Father testified that C.N. was violent towards the younger children on more than

one occasion, and that C.N. was the one who “waterboarded” T.D. Father recounted this

particular event as follows:

Q. So did you tell DCS back in 2018 that you had seen [Mother]

waterboard T.D. before?

A. No, but the deal with the waterboarding, is – falls – I was at an

auction or I was turkey hunting that day. I came home. [T.D.] was standing

right there in the living room. He was shaking. He had a towel wrapped

around him. In turn, I asked [T.D.] In turn, which, you know, his vocabulary

isn’t that good. In turn, what happened, I walked over there [sic] pulled the

towel. He had handprints on him. He was bruised from head to toe. And the

way I understood it, [C.N.’s friend], and C.N.’s the one that done that.

And the way I understand it, [Mother] was supposed to help bust in

the door to help, I guess, get him. And what I was told that he was held under

- 10 -

the faucet in the bathtub. I was told he had a rag stuck in his mouth. He

demonstrated, as [Mother] kind of put it, that he kept showing like, you

know, something got shoved in his mouth. And I was told by [C.N.] that

[T.D.] was followed by [C.N.’s friend].

According to Father, T.D. was approximately four years old when this occurred, and C.N.

was eleven or twelve. Father further testified that C.N. pointed a gun at one of her younger

brothers on another occasion. While Father maintained that no animals were killed in front

of the Children, Father recalled an incident in which T.D. killed a duck with a brick and

Father skinned the duck and cooked it for dinner.

Father testified that he had “given up” on toilet-training the Children because

Father was “tired of DCS coming to the house” and “accusing [Father] of stuff.” According

to Father, the toilet-training and most of the parenting fell to Mother, and Father believed

T.D. would “come into it on his own.” Father also testified that he had seen Mother grab

the Children and “sl[ing] them on the couch by their arm” and hit them with a paddle.

In response to DCS’s allegation that Father failed to communicate with them

throughout the custodial period, Father testified that his criminal defense attorney advised

him not to speak to DCS before the resolution of the criminal case. Father also stated that

he was trying to abide by the no-contact order. By the time of trial, Father had completed

his psychological evaluation and testified that he had been going to therapy. Father also

offered pictures reflecting several repairs around his home, including new dry wall, paint,

and new flooring in the kitchen and bathroom. Although Father testified that he would be

nervous to see the Children and regain custody, he maintained that he never abused the

Children and that they could safely be returned to him. Father still lived with Grandfather

by the time of trial.

The trial court also heard from Father’s sister, Amanda D. Amanda D. and her two

children lived out of state but would come and visit the family one to three times per year

and would stay for varying periods of time. Amanda D. testified that she saw Father do

the “usual yelling” at the Children but only when necessary. On the other hand, Amanda

D. also testified that she had seen Mother grab T.D. by his arms and throw him onto the

couch, and that Amanda D. witnessed Mother calling C.N. “stupid” and “ignorant.”

Ultimately, Amanda D. maintained that Father loves the Children and echoed Father’s

position that Mother and C.N. fabricated the allegations against Father.

Ty Turner, a DCS caseworker who was assigned to the family in January 2020, also

testified. Mr. Turner testified that in order for DCS to pay for Mother’s second

psychological evaluation, Mr. Turner needed proof from Mother that her insurance would

not cover the assessment. DCS offered into evidence a chain of emails between Mr. Turner

and Mother’s attorney showing that Mother’s attorney sent Mr. Turner a copy of Mother’s

insurance card but the picture was blurry. Mr. Turner maintained that he would have tried

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to help Mother obtain the second assessment had she and her attorney provided DCS the

necessary information. Regarding Father, Mr. Turner testified that Father had been

attempting to comply with the permanency plan and had completed his classes as well as a

psychological evaluation.

Regarding the Children, Mr. Turner testified that they were still doing well in Foster

Parents’ home at the time of trial. Despite certain restrictions due to COVID-19, Mr.

Turner was still able to see the Children face-to-face regularly, and they seemed bonded to

Foster Parents. Mr. Turner testified that he was able to communicate some with T.D. but

that T.D. often spoke too quickly for Mr. Turner to understand. Mr. Turner did not testify

as to whether Foster Parents wish to adopt any of the Children.

The trial court entered its final order on July 17, 2020, determining that DCS proved

all alleged grounds for termination as to both Mother and Father. The trial court also

determined that termination of Parents’ rights was in the Children’s best interests. Both

Mother and Father filed a timely notice of appeal to this Court.9

ISSUES PRESENTED

With regard to Parents, we consider the following issues:

1) Whether the trial court correctly determined that DCS proved the grounds for

termination by clear and convincing evidence.10

2) Whether the trial court correctly determined that DCS proved, by clear and

convincing evidence, that termination is in the Children’s best interests.

STANDARD OF REVIEW

Our Supreme Court has explained that:

A parent’s right to the care and custody of her child is among the oldest of

9

Upon motion by DCS, we remanded this case back to the trial court on March 31, 2021, for

correction of a clerical mistake in the trial court’s final order. An amended order was entered May 18,

2021.

10

In his brief, Father challenges only three statutory grounds: abandonment by failure to visit,

abandonment by failure to provide a suitable home, and failure to manifest an ability and willingness to

assume custody of the Children. Nonetheless, pursuant to our Supreme Court’s holding in In re Carrington

H., 483 S.W.3d 507, 524 (Tenn. 2016), we must make our “own determination as to whether the facts,

either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and

convincing evidence of the elements necessary to terminate” Father’s parental rights. Mother challenges

all of the grounds found against her.

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the judicially recognized fundamental liberty interests protected by the Due

Process Clauses of the federal and state constitutions. Troxel v.

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley

v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972); In re

Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female

Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d

573, 578–79 (Tenn. 1993). But parental rights, although fundamental and

constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at

250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors....’

Tennessee law, thus, upholds the [S]tate’s authority as parens patriae when

interference with parenting is necessary to prevent serious harm to a

child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,

429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,

102 S. Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d at 522–23. Tennessee Code Annotated section 36-1-113

provides the various grounds for termination of parental rights. See Tenn. Code Ann. § 36-

1-113(g). “A party seeking to terminate parental rights must prove both the existence of

one of the statutory grounds for termination and that termination is in the child’s best

interest.” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (citing Tenn.

Code Ann. § 36-1-113(c)).

In light of the substantial interests at stake in termination proceedings, the

heightened standard of clear and convincing evidence applies. In re Carrington H., 483

S.W.3d at 522 (citing Santosky, 455 U.S. at 769). This heightened burden “minimizes the

risk of erroneous governmental interference with fundamental parental rights[,]” and

“enables the fact-finder to form a firm belief or conviction regarding the truth of the

facts[.]” Id. (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)). “The clear-and-

convincing-evidence standard ensures that the facts are established as highly probable,

rather than as simply more probable than not.” Id. (citing In re Audrey S., 182 S.W.3d 838,

861 (Tenn. Ct. App. 2005)). Accordingly, the standard of review in termination of parental

rights cases is as follows:

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

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

13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at

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

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

evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In

re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215

S.W.3d 793, 809 (Tenn. 2007). In light of the heightened burden of proof in

termination proceedings, however, the reviewing court must make its own

determination as to whether the facts, either as found by the trial court or as

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supported by a preponderance of the evidence, amount to clear and

convincing evidence of the elements necessary to terminate parental

rights. In re Bernard T., 319 S.W.3d at 596–97. The trial court’s ruling that

the evidence sufficiently supports termination of parental rights is a

conclusion of law, which appellate courts review de novo with no

presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re

Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions of

law in parental termination appeals, as in other appeals, are reviewed de novo

with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 483 S.W.3d at 523–24.

DISCUSSION

I. Grounds for Termination

The trial court terminated Mother’s and Father’s parental rights to the Children

pursuant to multiple statutory grounds. We address each statutory ground, as it pertains to

each parent, in turn.

A. Abandonment by Failure to Visit

Tennessee Code Annotated section 36-1-113(g) provides that abandonment, as

defined in section 36-1-102, is a ground for terminating parental rights. Tenn. Code Ann.

§ 36-1-113(g)(1) (2017 & Supp. 2019). Section 36-1-102 provides that abandonment

occurs, among other instances, when:

[f]or a period of four (4) consecutive months immediately preceding the

filing of a proceeding, pleading, petition, or any amended petition to

terminate the parental rights of the parent or parents . . . of the child who is

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

the parent or parents . . . have failed to visit or have failed to support or have

failed to make reasonable payments toward the support of the child.

Id. § 36-1-102(1)(A)(i). Abandonment by failure to visit occurs when a parent, “for a

period of four (4) consecutive months, [fails] to visit or engage in more than token

visitation.” Tenn. Code Ann. § 36-1-102(1)(E). “Token visitation” is “visitation, under

the circumstances of the individual case, [that] constitutes nothing more than perfunctory

visitation or visitation of such an infrequent nature or of such short duration as to merely

establish minimal or insubstantial contact with the child.” Id. § 36-1-102(1)(C). A parent

may assert the absence of willfulness, which must be proven by a preponderance of the

evidence, as an affirmative defense to abandonment by failure to visit. Id. § 36-1-102(1)(I).

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Father

Here, the salient time period for Father’s failure to visit is July 13, 2019 through

November 13, 2019.11 The trial court made the following relevant findings of fact and

conclusions of law regarding Father’s failure to visit the Children:

[T]he two primary impediments to the Father’s visitation were the

September 2018 no contact order and the fact that [Father] was incarcerated

for approximately ten months of the [C]hildren’s custodial episode. During

this time, however, it is interesting to note that the Father testified that his

Criminal Court attorney had advised him not to cooperate with DCS. It was

not until he was released from incarceration that he began working services,

some of which were completed before the Petition for Termination had been

filed and some of it well after the Petition had been filed.

The Court finds by clear and convincing evidence that the Father has

abandoned the [C]hildren for his failure to visit. Though the Father’s visits

were impeded by the 2018 order and his August 2018 to June 2019

incarceration, the Father was released from incarceration on June 17, 2019,

but did not seek a visitation schedule until October 29, 2019. The Petition to

Terminate Parental Rights was filed November 14, 2019. Technically, this

would be within the four months as contemplated by Tenn. Code Ann. § 36-

1-102. By this point, however, the Court was already aware of the Father’s

conviction for Attempted Aggravated Child Abuse of a Child Under 8 Years

which gave the Court further pause as it related to Father’s ability to have

visitation.

On appeal, Father argues that his failure to visit the Children was due to the trial

court’s no-contact order and was therefore not willful. Father further argues that he proved

lack of willfulness by a preponderance of the evidence, per Tenn. Code Ann. section 36-1-

102(1)(I), and that the trial court failed to make a finding as to this argument.

When a parent’s contact with a child is limited by court order, the parent may

abandon the child through failure to visit if “the parent has the ability to demonstrate a

change in situation or behavior that would warrant reinstating visitation but fails to do

so[.]” In re Kiara C., No. E2013-02066-COA-R3-PT, 2014 WL 2993845, at *6 (Tenn. Ct.

App. June 30, 2014); see also In re Jason S., No. E2020-01479-COA-R3-PT, 2021 WL

1575469, at *6 (Tenn. Ct. App. Apr. 22, 2021) (mother willfully failed to visit children by

failing to present court with evidence of sobriety, despite no-contact order providing that

11

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

Feb. 20, 2014) (for purposes of abandonment, the four-month period “includes the four months preceding

the day the petition to terminate parental rights is filed but excludes the day the petition is filed”).

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visitation could be reinstated should mother do so); In re Jaylah W., 486 S.W.3d 537, 552

(Tenn. Ct. App. 2015) (citations and bracketing omitted) (“When a parent chooses not to

cooperate with certain conditions, such as obtaining a drug and alcohol abuse assessment,

that choice in refusing to cooperate constitutes a willful decision to discontinue visitation.”)

(internal quotations omitted). For example, in In re Alexis S., No. M2018-00296-COA-

R3-PT, 2018 WL 6267180, at *6 (Tenn. Ct. App. Nov. 30, 2018), the mother’s visitation

was suspended due to ongoing problems with substance abuse. Because Mother failed to

address those issues, we concluded that the “[m]other’s awareness of the steps necessary

to reinstate her visitation rights and her inaction with respect to those steps constituted a

willful decision to discontinue her visitation with the [c]hildren.” Id.

The question before us, then, is whether Father proved that he attempted to change

his situation such that the no-contact order could be lifted and his visitation reinstated.

Upon thorough review of the record, we conclude that Father made this showing and

proved, by a preponderance of the evidence, that his failure to visit the Children was not

willful.

Father was undisputedly prohibited from having contact with the Children during

the relevant four-month period. Nonetheless, Father attended a CFTM on September 17,

2019 and inquired about supervised visitation. DCS records reflect that Father was told he

needed to complete a parenting assessment and parenting classes, and attend therapy before

his visitation could be reinstated. Father completed parenting classes and an anger

management course. Father then filed a motion for visitation on October 29, 2019, which

provides that Father would accept whatever visitation the court deemed appropriate. This

motion was denied, and the order denying the motion does not explain what was required

of Father to regain visitation. The order provides simply that the request for visitation was

denied based on the “record as a whole.” It is unclear from the trial court’s order what was

specifically required of Father to regain visitation. See In re Jaylah W., 486 S.W.3d at 551

(failure to visit was willful when order denying request for visitation contained clear

directives as to how mother could regain visitation and “provided a mechanism” for doing

so).12 The foregoing militates against a finding that Father “had the ability to demonstrate

a change in situation or behavior that would warrant reinstating visitation but fail[ed] to do

so[.]” In re Kiara C., 2014 WL 2993845, at *6. Rather, during the relevant four-month

period, Father quickly began completing the tasks required by DCS.

Perhaps more importantly, the trial court stated in its final order that by the time it

ruled on Father’s motion for visitation, “the Court was already aware of the Father’s

conviction for Attempted Aggravated Child Abuse of a Child Under 8 Years which gave

12

Additionally, because the actual no-contact order is not contained in the record, it is unclear

whether that order explained how Father could reinstate visitation. See In re Jason S., 2021 WL 1575469,

at *6 (concluding that mother’s failure to visit was willful notwithstanding no-contact order where

“pursuant to the no-contact order, [m]other was allowed to seek visitation upon filing to reinstate it and

presenting herself to the court”).

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the Court further pause as it related to Father’s ability to have visitation.” As best we can

discern from the record before us, the trial court never intended to allow Father visitation

with the Children due to Father’s conviction for attempted aggravated child abuse,

regardless of Father’s attempts at reunification. While under the circumstances we take no

issue with that ruling, by the same token Father cannot be said to have willfully failed to

visit the Children.

In light of the steps taken by Father during the relevant four-month period, and the

trial court’s above statement, we agree that Father proved by a preponderance of the

evidence that his failure to visit the Children was not willful. See Tenn. Code Ann. § 36-

1-102(1)(I). The termination of Father’s parental rights pursuant to this ground is therefore

reversed.

Mother

Like Father, Mother’s visitation with the Children was restricted by the time of trial.

The trial court’s findings and conclusions regarding Mother’s failure to visit provide in

pertinent part as follows:

The Court finds by clear and convincing evidence that the Mother has

abandoned the [C]hildren for her failure to visit. Though, obviously disputed

by the Mother, it would appear to the Court that she began with consistent

in-person and telephone visitation. It would further appear to the Court that

the Mother’s own conduct created the circumstances under which her

visitation was suspended. But even suspended, the Court indicated

resumption of visitation could occur upon the completion of a second

evaluation. At no time does it appear the Mother moved to resume visits or

complete the evaluation.

In contrast to Father, we agree with the trial court that Mother was fully aware of

the impediments to her visitation and simply failed to remedy the situation. Mr. Turner

testified at trial that he could help Mother obtain DCS funding for a second psychological

evaluation but that he first needed proof that Mother’s insurance would not cover an

assessment. Mr. Turner testified that he had multiple conversations with Mother and her

counsel about this and that Mr. Turner never received the information he needed. Mother

testified at trial that she saw a doctor about doing the assessment but did not want to pay

for it out of pocket. Moreover, “Mother’s own conduct led to the suspension of the

visitation[,]” and Mother continued the same behavior after the suspension. In re Addison

P., No. E2016-02567-COA-R3-PT, 2017 WL 1861781, at *8 (Tenn. Ct. App. May 8,

2017). Specifically, Mother continued to contact Foster Mother and the Children at

inappropriate times and over social media. Consequently, Mother had “the ability to

demonstrate a change in situation or behavior that would warrant reinstating visitation” but

failed to do so. In re Kiara C., 2014 WL 2993845, at *6.

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On appeal, Mother asserts that there is no evidence in the record as to why Mother’s

first psychological evaluation was insufficient or why Mother needed a second evaluation.

Nonetheless, Mother cites no legal authority explaining how this relates to Mother’s failure

to visit the Children. Moreover, we disagree with Mother’s characterization of the record.

The record reflects that DCS required further evaluation of Mother due to her erratic

behavior, inappropriate communications with the Children, and Kentucky’s refusal to

approve Mother’s home. Mother’s argument lacks merit.

Mother undisputedly failed to visit the Children during the relevant four-month

period and did not establish at trial that her failure to seek and reinstate visitation was not

willful. See Tenn. Code Ann. § 36-1-102(1)(I). Accordingly, we agree with the trial court

that this ground was proven by clear and convincing evidence as to Mother.

B. Abandonment by Failure to Provide a Suitable Home

Abandonment can also occur when:

(a) The child has been removed from the home or the physical or legal

custody of a parent or parents or guardian or guardians by a court order at

any stage of proceedings in which a petition has been filed in the juvenile

court alleging that a child is a dependent and neglected child, and the child

was placed in the custody of the department or a licensed child-placing

agency;

(b) 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

(c) For a period of four (4) months following the physical removal, the

department or agency 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 not made

reciprocal 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 shall be found to be

reasonable if such efforts equal or 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.

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Id. § 36-1-102(1)(A)(ii)(a)-(c).

Here, we “consider[] whether a child has a suitable home to return to after the child’s

court-ordered removal from the parent.” In re Adaleigh M., No. E2019-01955-COA-R3-

PT, 2021 WL 1219818, at *3 (Tenn. Ct. App. Mar. 31, 2021). To terminate parental rights

under this ground, the trial court must find “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., No. E2014-02539-COA-R3-PT,

2015 WL 4197220, at *6 (Tenn. Ct. App. July 13, 2015). A suitable home requires “‘more

than a proper physical living location.’” In re Daniel B., No. E2019-01063-COA-R3-PT,

2020 WL 3955703, at *4 (Tenn. Ct. App. July 10, 2020) (quoting Tenn. Dep’t of Children’s

Servs. v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App.

Nov. 29, 2007)). A suitable home entails “[a]ppropriate care and attention” for the child,

In re Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct.

App. Apr. 20, 2016), and that the home is “free of drugs and domestic violence.” In re

Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June

10, 2014). DCS must make “reasonable efforts” to assist the parent by doing more than

simply providing a list of service providers. In re Matthew T., 2016 WL 1621076, at *7.

The Department should utilize its superior resources in assisting with establishment of a

suitable home, but “[its] efforts do not need to be ‘Herculean.’” In re Hannah H., 2014

WL 2587397, at *9 (quoting Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 790, 801

(Tenn. Ct. App. 2008)), overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533

(Tenn. 2015); see also In re Matthew T., 2016 WL 1621076, at *7. Sole responsibility

does not lie with DCS, and “[p]arents must also make reasonable efforts towards achieving

the goals established by the permanency plan to remedy the conditions leading to the

removal of the child.” In re Hannah H., 2014 WL 2587397, at *9.

While the statute requires DCS to make reasonable efforts towards the establishment

of a suitable home for “a period of four (4) months following the physical removal” of the

child, “the statute does not limit the court’s inquiry to a period of four months immediately

following the removal.” In re Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL

7243674, at *13 (Tenn. Ct. App. Dec. 15, 2016).

Father

Here, the trial court found that Father failed to establish a suitable home due to

Father’s continued dependence on Grandfather. The trial court explained:

During his incarceration, Father refused to work with DCS. Once

released from incarceration, it appears that he returned to what had been the

family’s home and continued to reside with [Grandfather]. He also began to

work services. Since being released, he has completed his Parenting Course,

Anger Management Course, psychological assessment, and is moving

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forward with therapy.

To Father’s credit, he has also worked on the physical circumstances

of his home environment. The photos he provided as an Exhibit to his

testimony show an older home, yes, but clean and appropriate. Mr. Turner’s

testimony confirmed that the Father’s home is appropriate with no safety

concerns. He even successfully addressed the one issue mentioned by DCS.

A negative concerning the Father’s environment is the ambiguity of

his income. There was much ado made about the Father’s financial situation,

as it appears to the Court that the only financial data he submitted to DCS

and to the Court itself indicates only the [Grandfather’s] income. While it

appears to this Court that the Father farms for a living, he supplied no income

data to support his claims of sufficient income.

Finally, another concern is the fact the Father remains in the residence

with [Grandfather]. In addition to the very troubling testimony about this

man, particularly the allegations of abuse against both the [C]hildren and the

family dog, this Court issued a no contact order between him and the

[C]hildren that has never been modified or set aside. While the Father may

choose to deny the allegations as false, the Court would have serious

concerns about returning the [C]hildren to the Father’s home while

[Grandfather] continued to live there.

On appeal, Father’s sole argument is that because the trial court found Father’s

home was physically appropriate, DCS did not prove this ground by clear and convincing

evidence. In contrast, DCS asserts that Father would not work with DCS during Father’s

incarceration and that even after he was released from jail, Father continued to reside with

Grandfather and did not establish a legal source of income. DCS urges that during the four

months following the Children’s removal, August 23, 2018 through December 23, 2018,

DCS made reasonable efforts to help Father establish a suitable home and that because

Father would not meet with DCS, this ground has been proven by clear and convincing

evidence.

The record does not preponderate against the finding that Father’s home remains

unsuitable for the Children and that DCS made reasonable efforts to assist Father. 13 While

13

DCS argues that the relevant four-month period in this case is the period immediately following

the Children’s removal, August 23, 2018, through December 23, 2018. Nonetheless, efforts to establish a

suitable home are naturally hampered when a parent is incarcerated. See, e.g., In re James W., No. E2020-

01440-COA-R3-PT, 2021 WL 2800523, at *8 n.8 (Tenn. Ct. App. July 6, 2021); In re Eli S., No. M2019-

00974-COA-R3-PT, 2020 WL 1814895, at *11 (Tenn. Ct. App. Apr. 9, 2021); In re Allyson P., No. E2019-

01606-COA-R3-PT, 2020 WL 3317318, at *8 (Tenn. Ct. App. June 17, 2020). For this reason, in In re

James W., this Court looked to a four-month period “follow[ing] the children’s removal from [m]other’s

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it is undisputed that the physical structure of Father’s residence is safe and appropriate, a

suitable home requires “more than a proper physical living location.” In re Daniel B., 2020

WL 3955703, at *4. Grandfather’s presence in the home was an issue from the outset of

this case, inasmuch as Father’s permanency plan required him to have a residence free from

unsafe and dangerous people. The record corroborates the trial court’s concerns regarding

Grandfather, and by the time of trial Father had had nearly two years to establish a home

away from Grandfather. Although Father denied all abuse allegations regarding

Grandfather, the trial court clearly did not credit this testimony. See Edmunds v. Delta

Partners, L.L.C., 403 S.W.3d 812, 824–25 (Tenn. Ct. App. 2012) (noting that even in the

absence of an express credibility finding, a “finding on credibility may be implied from the

manner in which the trial court decided the case”). Further, Father does not dispute on

appeal the existence of a no-contact order between Grandfather and the Children, but also

fails to make any argument as to why the home is nonetheless safe. Insofar as a suitable

home is one “free of . . . domestic violence[,]” In re Hannah H., 2014 WL 2587397, at *9,

we conclude, as the trial court did, that Grandfather’s presence renders Father’s home

unsuitable. It is unlikely this issue will be resolved at an early date.

Further, throughout the custodial period, even when Father was incarcerated, DCS

made reasonable efforts to assist Father with establishing a suitable home; indeed, early in

the case DCS attempted to meet with Father and he declined. Although DCS made further

efforts to assist Father when he was released from prison, Father never attempted to

establish a home away from Grandfather and instead focused on renovating the home.

“Ultimately, [ ] we must ‘analyze the reasonableness of DCS’s efforts to assist a parent on

a ‘case-by-case basis in light of the unique facts of the case.’” In re Edward R., No. M2019-

01263-COA-R3-PT, 2020 WL 6538819, at *10 (Tenn. Ct. App. Nov. 6, 2020) (quoting

In re Kaden W., No. E2018-00983-COA-R3-PT, 2019 WL 2093317, at *7 (Tenn. Ct. App.

May 13, 2019)). Under the circumstances of this case, we conclude, as the trial court did,

that Father failed to establish a suitable home for the Children. This ground was proven

by clear and convincing evidence.

custody and span[ning] a period during which [m]other was not incarcerated[,]” as opposed to the four-

month period directly following the children’s removal from the mother’s custody. 2021 WL 2800523, at

*8 n.8. In the present case, there is a dearth of evidence regarding Father and DCS during the period directly

following the Children’s removal; the record reveals only that DCS attempted to arrange a meeting at some

point during this period and that Father declined. While this weighs against Father, we also find it probative,

under the particular circumstances of this case, to consider the four-month period following Father’s release

from prison. See In re James W., 2021 WL 2800523, at *8 n.8. In any event, DCS made reasonable efforts

to assist Father with establishing a suitable home throughout the custodial period. See In re Daylan D., No.

M2020-01647-COA-R3-PT, 2021 WL 5183087, at *6 (Tenn. Ct. App. Nov. 9, 2021) (“The record is also

replete with the efforts that DCS took to help [f]ather establish a suitable home for the children both in the

four months following the removal and throughout the pendency of this case.”); see also In re Katelynn S.,

No. M2020-00606-COA-R3-PT, 2020 WL 8022118, at *8 (Tenn. Ct. App. Oct. 1, 2020) (“The statutory

four-month period during which the Department must make reasonable efforts and the parent reciprocate

them is not limited to the four months immediately following removal.”).

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Mother

The trial court also concluded that Mother abandoned the Children through her

failure to establish a suitable home. As to this ground, the trial court explained:

Upon the [C]hildren’s removal, the Mother left the marital home,

citing both domestic violence and the fact that the Paternal Grandfather

remained living there. At that point, she was taken by DCS to a local hotel

and then to a women’s shelter. Afterwards, the Mother’s housing situation

became slightly more ambiguous, but, ultimately, she relocated to Kentucky,

and has remained in Kentucky from 2018 through the present date. Once she

relocated to Kentucky, DCS attempted the ICPC process with that State, but

the ICPC request was denied due to Mother’s noncompliance. DCS argued

that it made reasonable efforts to assist the Mother with securing housing by

providing her a list of suitable housing options, an assertion that the Mother

disputed.

To the Court, the primary issue with the Mother’s housing is not the

period between the point of removal and the point where the Mother

relocated to Kentucky (though that four months is statutorily relevant), but

the ICPC process that was then denied on three separate occasions. Mr.

Turner testified about the ICPC process and indicated that the sending State

is not the one who makes the determination as to accept or deny it. That

decision belongs solely to the accepting State.

* * *

The Court finds by clear and convincing evidence that the Mother has

abandoned the [C]hildren by failing to provide them with a suitable home. It

has been two years since the [C]hildren entered foster care, and besides the

Mother’s own home she offered no other reasonable housing solutions for

the [C]hildren. DCS made reasonable efforts to work with the Mother so they

could return the [C]hildren to the Mother’s home. As the Mother has been a

Kentucky resident since 2018, and has had three separate denials of her ICPC

request by that State, it is obvious that her home is not acceptable. Further,

this Court cannot order Kentucky, a sovereign entity outside of this Court’s

jurisdiction, to accept a Tennessee ICPC. The only way the Mother’s home

would be cleared for the [C]hildren to return would be to remove them from

DCS custody and immediately restore them to the Mother’s custody. That is

something that this Court is unwilling to do.

The record supports the trial court’s findings. Throughout the custodial period,

there were multiple four-month periods in which DCS made reasonable efforts to assist

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Mother in establishing a suitable home for the Children. Immediately following the

Children’s removal, DCS paid for Mother to stay in a motel and then a women’s home.

Soon after, however, Mother opted to move to Kentucky. This move complicated DCS’s

ability to assist Mother; nonetheless, DCS communicated regularly with Mother, helped

her with transportation, and encouraged her to address her mental health issues. DCS also

requested multiple ICPC inspections from Kentucky, all of which were denied based on

circumstances outside of DCS’s control. Although the record shows DCS did what it could

under the circumstances, Mother’s decision to move out of state inevitably hampered

DCS’s ability to assist her.

Although Mother had housing provided by her parents throughout the case,

Mother’s failure to establish a suitable home stems primarily from her refusal to address

her mental health issues. A suitable home requires “more than a proper physical living

location[,]” In re Daniel B., 2020 WL 3955703, at *4 (quotation omitted), and a parent’s

unaddressed mental health problems can amount to a failure to establish a suitable home.

See In re Daylan D., 2021 WL 5183087, at *5 (collecting cases). Kentucky’s refusal to

approve Mother’s home for placement had more to do with Mother’s behavior than the

physical condition of Mother’s residences, and the record corroborates those concerns.

Indeed, Mother’s testimony at trial regarding the abuse allegations against Father

inspires little confidence that Mother grasps the gravity of the situation, and the DCBS

notes contained in the record demonstrate that Mother could not answer basic questions

about her plans to care for the Children. Further, Mother’s pattern of inappropriate

communication with the Children, such as repeatedly telling them they would be coming

home soon and suggesting that Foster Parents were not feeding the Children, also

demonstrate that Mother is unable to intuit the Children’s best interests. Nonetheless, when

DCS suggested that Mother undergo further evaluation and treatment to address her issues

and attempted to organize funding for same, Mother was recalcitrant and never completed

this requirement.

On appeal, Mother argues that “there is ample reason to doubt the veracity of [the

ICPC] denials and whether the Kentucky ICPC had sufficient information to adequately

review the suitability of Mother’s home.” She also urges that the trial court erred in relying

on the ICPC denials in concluding that Mother failed to establish a suitable home. Mother

cites no authority to support either argument. Moreover, we agree with the trial court that

the ICPC denials are probative. The record reflects that Kentucky’s DCBS was concerned

with Mother’s mental health and that Mother was unable to accommodate the Children’s

special needs. Mother’s testimony at trial only buttressed those concerns. We are

unpersuaded by Mother’s argument in this regard.

Ultimately, “Mother’s own failure to comply with her mental health treatment

regimen demonstrated her lack of concern for the Children and resulted in her inability to

provide a suitable home environment.” In re Roderick R., No. E2017-01504-COA-R3-PT,

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2018 WL 1748000, at *12 (Tenn. Ct. App. Apr. 11, 2018); see also In re William B., No.

M2020-01187-COA-R3-PT, 2021 WL 4935740, at *22 (Tenn. Ct. App. Oct. 22, 2021)

(affirming trial court’s termination of mother’s right under this ground based upon

mother’s “failure to participate in individual counseling, sig[n] releases and complete a

more in-depth psychological evaluation”). Moreover, based on Mother’s testimony at trial,

it is unlikely she will be able to provide a suitable home for the Children at an early date.

The trial court’s decision to terminate Mother parental rights for failure to provide

a suitable home is supported by clear and convincing evidence and is therefore affirmed.

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

Tennessee Code Annotated section 36-1-113(g)(14) provides an additional ground

for termination when:

[a] parent . . . has failed to manifest, by act or omission, an ability and

willingness to personally assume legal and physical custody or financial

responsibility of the child, and placing the child in the person’s legal and

physical custody would pose a risk of substantial harm to the physical or

psychological welfare of the child.

This ground requires clear and convincing proof of two elements. In re Neveah M.,

614 S.W.3d 659, 674 (Tenn. 2020). The petitioner must first prove that the parent has

failed to manifest an ability and willingness to personally assume legal and physical

custody or financial responsibility of the child. Id. The petitioner must then prove that

placing the child in the custody of the parent poses “a risk of substantial harm to the

physical or psychological welfare of the child.” Id. The statute requires “a parent to

manifest both an ability and willingness” to personally assume legal and physical custody

or financial responsibility for the child. Id. at 677. Therefore, if a party seeking termination

of parental rights establishes that a parent or guardian “failed to manifest either ability or

willingness, then the first prong of the statute is satisfied.” Id. (citing In re Amynn K., No.

E2017-01866-COA-R3-PT, 2018 WL 3058280, *13 (Tenn. Ct. App. June 20, 2018)).

Regarding the second prong of section 36-1-113(g)(14), this Court has previously

explained:

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

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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.

In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct. App.

Oct. 11, 2018) (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).

Father

In the present case, the trial court found that Father manifested a willingness to

assume custody of the Children, but not the ability. In relevant part, the trial court

explained:

The Court finds by clear and convincing evidence that the Father has

failed to manifest an ability and willingness to assume custody of the

[C]hildren. As with the Mother, the willingness is there and, at least, unlike

the Mother, the Father completed some necessary tasks before the Petition

for Termination was filed and one after the Petition was filed. Plus, unlike

the Mother, the Father demonstrated at least some self-awareness that

reunification is a process, and one that he is actually nervous about. Even so,

the Court doubts the Father’s ability to assume custody primarily because he

either a) abused the [C]hildren or b) failed to protect the [C]hildren from

abuse; given the testimony, those are the only two options available. Further,

because of unsubstantiated “allegations” the Father has demonstrated a

fundamental unwillingness to parent the [C]hildren – he was uninvolved in

toilet-training and he seemed only vaguely involved in the [C]hildren’s

schooling and threw up his hands when confronted with a differing opinion

than that of the parents’. Finally, the Father’s unwillingness to assume

responsibility for the things that happened under his own roof and his

willingness to assert that everything has been a false allegation is certainly

troubling.

The trial court appears to find that Father manifested a willingness to assume

custody of the Children, but failed to manifest the ability to assume custody of the Children.

Another statement in the trial court’s order provides that “there is little doubt that the Father

wants to assume physical and legal custody” of the Children. Towards the end of the

relevant section, however, the trial court suggests that perhaps Father failed to manifest a

willingness to assume custody of the Children, insofar as Father admittedly was not

involved in the Children’s toilet-training and schooling. This discrepancy is inapposite

because we agree with the trial court that Father failed to manifest the ability to assume

legal and physical custody of the Children. Such a finding is sufficient to satisfy the first

prong of section 36-1-113(g)(14). See In re Neveah M., 614 S.W.3d at 677.

A parent’s ability to assume custody speaks to “the parent’s lifestyle and

circumstances.” In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL 1313237, at

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*8 (Tenn. Ct. App. Mar. 22, 2019) (citing In re Maya R., No. E2017-01634-COA-R3-PT,

2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018)). Here, Father’s lifestyle and

circumstances are such that he cannot safely assume custody of the Children because Father

essentially takes no responsibility for the condition the Children were found in. He denied

all allegations of abuse and neglect himself but offered no alternative explanation as to why

he failed to protect the Children from the alleged abuse at the hands of Mother and C.N.

Indeed, Father adamantly maintained at trial that C.N. was the one who “waterboarded”

one of the younger children and that she had previously threatened them with a knife and

a gun. While Father was quick to blame C.N. and Mother for the deplorable circumstances

under which the Children were removed, Father’s testimony leads us to question whether

Father grasps the gravity of the situation and whether he is capable of protecting the

Children. We also agree with the trial court’s finding that Father admittedly failed to meet

basic needs of the Children such as toilet-training, and blamed the Children’s condition at

the time of their removal entirely on Mother. Father also blamed DCS inasmuch as Father’s

explanation for failing to assist in toilet-training the Children was fear of being “accused

of things” by the agency. Father’s testimony reflects that he is unable to provide the

fundamental care and protection required to assume custody and safely parent children.

On appeal, Father urges that the trial court failed to make a specific finding that

placing the Children in Father’s custody poses a risk of substantial harm to the physical or

psychological welfare of the Children. We disagree. In the trial court’s order, in a separate

paragraph from the one quoted above, the trial court noted:

DCS argued that by both act and omission, [Parents] have failed to

manifest a willingness and ability to assume legal and physical custody and

financial responsibility, and that by the parents assuming custody, it would

pose a risk of physical or psychological harm to the [C]hildren. The Court

agrees.

Taking the trial court’s order as a whole, the above statement is sufficient to satisfy

the second prong of section 36-1-113(g)(14). Further, the record does not preponderate

against the finding that placing the Children in Father’s custody would pose a risk of

substantial physical or psychological harm to the Children. The Children’s reactions to the

possibility of being returned to Father were disturbing. The older children articulated fear

and anxiety, and C.N. threatened to commit suicide if Father were to assume custody. T.D.

regressed to having bowel movements on himself after learning that Father was released

from jail. The mere suggestion of Father’s release from prison caused the Children

physical and psychological harm. Clear and convincing evidence supports the trial court’s

finding that the Children would be at serious risk if returned to Father. Tenn. Code Ann.

§ 36-1-113(g)(14).

Accordingly, the trial court’s decision to terminate Father’s parental rights pursuant

to this statutory ground is affirmed.

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Mother

Likewise, the trial court concluded that while Mother clearly wanted the Children

returned to her custody, Mother failed to manifest the ability to assume legal and physical

custody the Children. In pertinent part, the trial court found:

There is little doubt in the Court’s mind that the Mother is willing to

assume both legal and physical custody of the [C]hildren. In fact, one of the

earliest parts of her testimony was that she wanted the [C]hildren placed back

with her “today” as DCS had no grounds to take the [C]hildren. She testified

that she had never been told the [C]hildren could not return to her home, as

she had been told that she had not done anything to them. The problem,

however is that the Court is not satisfied that the Mother has the ability to

parent the [C]hildren, and the Court believes that placing the [C]hildren in

the Mother’s custody would pose a risk of substantial harm to their physical

and psychological welfare.

At times, the proof was, frankly, brutal. When the [C]hildren entered

DCS custody, [C.N.] was the alleged victim of severe child abuse and

apparently had made statements about self-harm; [T.D.] was eight (8) years

old with a 25 word vocabulary, and not toilet-trained; and [S.D.] was five (5)

years old and not toilet trained. All of the [C]hildren seemed to suffer from

other developmental delays. Further, there was considerable testimony by the

Mother of the Father’s verbal and/or psychological abuse of the [C]hildren-

by threats, hand prints, and inappropriate discipline (including naked

calisthenics, and water-boarding). The Mother opined that the Father’s

discipline was “not normal.” Further, the Mother disclosed physical abuse of

the [C]hildren perpetrated against them by the Paternal Grandfather

(including visible bruising on [T.D.]). All the while, however, the Mother

said and did nothing to protect the [C]hildren from the aforesaid abuse, save

that she would attempt to de-escalate the situation with the Father by saying

“cool it” when his temper “exploded.” The Mother’s explanation for this

failure to protect was unconvincing, not credible, and, more so, her

statements that the [C]hildren would not be safe around the Father – but his

visits should be supervised – do not fill the Court with any great confidence

that the [C]hildren would be protected in the Mother’s care.

* * *

The Court finds by clear and convincing evidence that the Mother has

failed to manifest an ability and willingness to assume custody of the

[C]hildren. While the willingness might be there, the ability is not. She

allowed an 8 year old child and a 5 year old child to go without being toilet-

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trained, a situation easily rectified and remedied by three months of foster

care. [Mother] knowingly allowed the [C]hildren to be abused by the Father

and, perhaps, the Paternal Grandfather and she failed to protect them from it.

Her inability to construct a concrete plan of reunification after two years of

custody is concerning. Her inability to meet the necessary requirements of

the ICPC are problematic. Taken singularly or all together, these facts pose

a risk of substantial harm to the [C]hildren’s physical and psychological

welfare.

The record does not preponderate against the trial court’s findings, and we agree

that clear and convincing evidence shows Mother lacks the ability to assume custody of

the Children. Although the Children were removed from Mother’s custody for nearly two

years prior to trial, Mother failed to address her mental health issues and never sought

reinstatement of her visitation after it was suspended. Kentucky denied Mother’s ICPC

requests because Mother was unable to answer questions about her plans to care for the

Children, including where Mother would enroll the Children in school and how she would

transport them there. Further, we agree with the trial court that Mother’s trial testimony

inspires no confidence in Mother’s parenting. While Mother admitted that Father and

Grandfather had harmed the Children, Mother testified that this was rooted in Father’s

“abilities.” Consequently, Mother blamed the abuse and neglect allegations squarely on

Father, but at the same time justified Father’s behavior. Mother’s answers to questions at

trial were evasive, and she offered no real explanation as to why T.D. and S.D. were never

toilet-trained.

We are further troubled by Mother’s behavior prior to having her contact with the

Children limited, as the record reflects that Mother frequently told the Children

inappropriate details about the ongoing case and made unfounded accusations against

Foster Parents. This behavior distressed the Children and calls into question Mother’s

ability to prioritize their well-being. See In re William B., 2021 WL 4935740, at *23

(concluding that mother failed to manifest the ability and willingness to assume custody

when mother refused to address mental health issues, and mother’s visitation had to be

suspended because mother could not behave in an appropriate manner). Despite all of the

foregoing, Mother was adamant at trial that DCS never had grounds to remove the

Children. Accordingly, Mother’s lifestyle and circumstances are such that she is not able

to safely parent the Children.

We also agree with the trial court that reinstating Mother’s custody poses a risk of

substantial harm to the physical or psychological welfare of the Children. As discussed at

length, the Children were at best severely neglected, if not severely abused, while in

Parents’ care. Mother’s testimony does not reflect that she has learned from this experience

or comprehends why the Children were removed at all. Moreover, the Children made

significant strides during the custodial period. Consequently, the second prong of section

36-1-113(g)(14) was proven by clear and convincing evidence.

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The termination of Mother’s parental rights pursuant to Tennessee Code Annotated

section 36-1-113(g)(14) is therefore affirmed.

D. Persistence of Conditions

Next, the trial court terminated Parents’ rights pursuant to Tennessee Code

Annotated section 36-1-113(g)(3). Section (g)(3) provides that termination may occur

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[.]

As we have previously explained:

“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 A.R., No. W2008-00558-COA-R3-PT, 2008

WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. & M.S.,

No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. App.

July 13, 2000)). The failure to remedy the conditions which led to the

removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at

*6 (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.

1990)). “Where . . . efforts to provide help to improve the parenting ability,

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.” Id. The purpose

behind the “persistence of conditions” ground for terminating parental rights

- 29 -

is “to prevent the child’s lingering in the uncertain status of foster child if a

parent cannot within a reasonable time demonstrate an ability to provide a

safe and caring environment for the child.” In re A.R., [2008 WL 4613576,

at *20] (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL

588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).

In re Navada N., 498 S.W.3d 579, 605–06 (Tenn. Ct. App. 2016). Additionally,

this ground for termination may be met when either the conditions that led to

the removal persist 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[.]” 36-

1-113(g)(3)(A)(i). Thus, even if the initial reasons that the children were

placed in DCS custody have been remedied, if other conditions continue to

persist that make the home unsafe, this ground may still be shown.

In re Daylan D., 2021 WL 5183087, at *9.

In the present case, the Children were removed from Parents’ custody by a court

order entered in a dependency and neglect action, and the Children have been in DCS

custody since August 23, 2018. Accordingly, we must determine whether conditions

persist that prevent the safe return of the Children, whether the conditions are likely to be

remedied at an early date, and whether a continued relationship with Parents prevents early

integration of the Children into a stable, permanent home. Tenn. Code Ann. § 36-1-

113(g)(3).

Father

The trial court determined that the conditions underpinning the Children’s removal

persist and that there is little likelihood the Children can be safely returned to either parent.

With regard to Father, the trial court found in pertinent part:

The great concern to the Court [ ] is still the underlying allegations

against the Father, allegations he consistently denied as “false” even though

some of those allegations were borne out by the testimony. While the Father

was convicted of Attempted Aggravated Child Abuse (against C.N.), there

was significant testimony of his inappropriate conduct with all of the

[C]hildren. . . . and despite his testimony that Mother abused the [C]hildren

he barely lifted a finger to protect them.

* * *

The Court finds by clear and convincing evidence that the conditions

- 30 -

that led to the [C]hildren’s removal still exist. Additionally, the Court finds

that those conditions prevent the [C]hildren’s safe return to the care of the

Father as, in all reasonable probability, the [C]hildren would be subjected to

further abuse and neglect.

The record does not preponderate against the above findings. The trial court also

does not appear to have credited Father’s testimony that all of the abuse allegations against

him are false. In any event, by both Parents’ accounts, the Children were abused while in

Parents’ custody, although Parents blame one another and C.N. Although we acknowledge

some steps Father has taken towards remedying the conditions at issue, such as completing

anger management and parenting classes, Father essentially refused at trial to assume any

responsibility for the extremely poor condition in which the Children were found. This

refusal, coupled with the trial court’s finding that the testimony bore out the allegations

against Father, establishes that the conditions underpinning the Children’s removal persist

and are unlikely to be remedied at an early date, if ever. Stated simply, Father’s parenting,

and in some instances total lack of parenting, necessitated removal of the Children, and

Father’s testimony does not reflect an understanding of this. See In re Navada N., 498

S.W.3d at 605 (“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.” (quoting In re A.R., 2008 WL 4613576, at *20)); see also In re Katrina S.,

No. E2019-02015-COA-R3-PT, 2020 WL 5269236, at *8 (Tenn. Ct. App. Sept. 3, 2020)

(“Mother’s refusal to acknowledge any deficiencies in her parenting inspires little

confidence that this condition will be remedied in the near future, or that safe reintegration

of the Child into Mother’s home is possible.”).

Further, the Children’s well-documented, visceral reactions to the possibility of

returning to Father’s care demonstrate that a continued relationship with Father is an

impediment to the long-term safety and stability of the Children, as well as the possibility

of their integration into a permanent home. Tenn. Code Ann. § 36-1-113(g)(3). As such,

persistence of conditions was proven by clear and convincing evidence as to Father.

Mother

We likewise conclude that clear and convincing evidence supports termination of

Mother’s parental rights for persistence of conditions. Here, the trial court found in

pertinent part:

[Mother’s] lack of understanding of the basic problems that resulted

in her children being in DCS custody is problematic. These were children in

a wide arc of ages, and two of them were not toilet-trained; one of them had

a vocabulary of 25 words; and one of them was still using a sippy-cup at four

and bed-wetting until she was 14 years old. The fact that many of those issues

were solved within the first six months of the [C]hildren entering foster care

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is staggering; and, despite the argument to the contrary that it was a socio-

economic issue, it really was a care issue and the Mother was not

demonstrating a level of care that these children needed. Even the fact that

she is banking solely on the school system to recognize her children’s needs

and provide for them demonstrates a poor understanding of her own children,

what they need, and why they need it.

The Court finds by clear and convincing evidence that the conditions

that led to the [C]hildren’s removal still exist. Additionally, the Court finds

that those conditions prevent the [C]hildren’s safe return to the care of the

Mother as, in all reasonable probability, the [C]hildren would be subjected

to further abuse and neglect. The Mother is no closer to providing the

[C]hildren with a safe and stable home in 2020 as she was in 2019. Further,

the Mother’s lack of understanding of her children’s condition at the time

they were removed is problematic, and her lack of understanding of her

[C]hildren’s needs now continues to provide more questions than answers.

The record does not preponderate against the trial court’s findings. Most

problematic is Mother’s insistence that, despite the Children’s undisputed problems, DCS

had no reason to remove them to begin with. Mother was even dismissive of the fact that

T.D. was eight years old and not toilet-trained at the time of removal. Mother argues on

appeal that she did not require further mental health treatment, despite the record being

replete with examples establishing otherwise. We have repeatedly held that conditions

underpinning removal persist when the parent outright refuses to acknowledge the

conditions at all. See In re Sebashtian K., No. E2020-01439-COA-R3-PT, 2021 WL

5071966, at *6 (Tenn. Ct. App. Nov. 2, 2021) (ground proven when father “had yet

to acknowledge, much less properly address, his anger issues”); In re Porcalyn N., No.

E2020-01501-COA-R3-PT, 2021 WL 2026700, at *9 (Tenn. Ct. App. May 21, 2021)

(father’s refusal to acknowledge domestic violence in home and insistent blaming of

mother indicated this condition persisted and was unlikely to be remedied); In re Briana

H., No. M2017-02296-COA-R3-PT, 2018 WL 4191227, at *8 (Tenn. Ct. App. Aug. 31,

2018) (noting mother’s flippant attitude towards sobriety issues buttressed finding that

conditions persisted).

Mother also argues in her appellate brief that the initial reasons for removal were

related to Father and Grandfather rather than Mother. While it is true that abuse allegations

were made initially against Father, the Children were also removed based upon extreme

neglect which Mother had a hand in. Moreover, during the custodial period it became

evident that Mother needed mental health treatment and lacked the ability to provide for

the Children’s basic needs. See Tenn. Code Ann. § 36-1-113(g)(3)(A)(i) (emphasis added)

(“[C]onditions 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[.]”); see also

- 32 -

In re Daylan D., 2021 WL 5183087, at *9 (“[E]ven if the initial reasons that the children

were placed in DCS custody have been remedied, if other conditions continue to persist

that make the home unsafe, this ground may still be shown.”). Mother’s argument is

unavailing under the circumstances.

Finally, we also conclude that a continuing relationship with Mother impedes the

Children’s opportunity for integration into a safe, stable, and permanent home. The

Children had been in foster care for nearly two years by the time of trial with little to no

improvement from Mother. Further, Mother frequently told the Children they were coming

home, shared information about the case with them which in some instances caused the

Children to regress, and generally disrupted an otherwise stable placement. Nonetheless,

the Children all made strides in foster care and had improved significantly by the time of

trial. Under the circumstances, the trial court did not err in concluding that the elements of

section 36-1-113(g)(3) were proven by clear and convincing evidence.

The termination of Mother’s parental rights for persistence of conditions is therefore

affirmed.

E. Severe Abuse

Parental rights may be terminated when “[t]he parent or guardian has been found to

have committed severe child abuse, as defined in § 37-1-102, under any prior order of a

court or is found by the court hearing the petition to terminate parental rights or the petition

for adoption to have committed severe child abuse against any child[.]” Tenn. Code Ann.

§ 36-1-113(g)(4). Severe abuse includes “[t]he knowing exposure of a child to or the

knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily

injury or death and the knowing use of force on a child that is likely to cause serious bodily

injury or death[.]” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i). Severe abuse also includes

“[t]he commission of any act towards the child prohibited by . . . § 39-15-402[.]” Id. § 37-

1-102(b)(27)(C). We recently explained that:

[i]t is also important to understand the threshold for finding that a parent or

caregiver’s conduct was “knowing.” In child abuse cases, the parent or

caregiver may deny that the injury was purposefully inflicted, and where the

injuries are inflicted on preverbal infants and children, there is often no

witness to the injury other than the parent or caregiver. The “knowing”

element can and often must be gleaned from circumstantial evidence,

including but not limited to, medical expert testimony on the likelihood that

the injury occurred in the manner described by the parent or caregiver.

Moreover, “knowing” conduct by a parent or caregiver is not limited to

conduct intended to cause injury . . .

- 33 -

In re S.J., 387 S.W.3d 576, 591-592 (Tenn. Ct. App. 2012). We have

previously held “[a] parent’s failure to protect a child will also be considered

‘knowing’ if the parent had been presented with sufficient facts from which

he or she could have and should have recognized that severe child abuse had

occurred or that it was highly probable that severe child abuse would

occur.” In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at

*7 (Tenn. Ct. App. July 13, 2004).

In re Markus E., No. M2019-01079-COA-R3-PT, 2021 WL 5571818, at *7–8 (Tenn. Ct.

App. Nov. 30, 2021).

Father

The trial court terminated Father’s parental rights pursuant to section 36-1-113(g)(4)

on the basis that 1) Father was convicted of attempted aggravated child abuse under section

39-15-402, and 2) Father knowingly exposed the Children to systemic abuse or neglect that

was likely to cause serious bodily injury. The record does not preponderate against these

findings. Section 37-1-102(b)(27) defines severe abuse, inter alia, as conduct prohibited

by section 39-15-402, the statute under which Father was undisputedly convicted. Further,

Father testified at trial to witnessing several instances during which he “should have

recognized that severe child abuse had occurred or that it was highly probable that severe

child abuse would occur.” In re Markus E., 2021 WL5571818, at *7 (quoting In re R.C.P.,

2004 WL 1567122, at *7). For example, Father testified about C.N. pointing a gun at one

of her younger brothers; Father also testified that C.N. once locked T.D. in the bathroom

and held him under the bathtub faucet with a rag in his mouth. According to Father, T.D.

was approximately four when this occurred, meaning Father continued to allow C.N.

around the younger children for the next four years following that incident. While Father

relayed these instances primarily to deflect blame from himself, his own testimony

establishes Father’s failure to protect the Children. As the trial court aptly noted, the only

conclusions to be drawn about each parent in this particular case is that they either inflicted

abuse themselves or bore witness to abuse by another and did nothing.

We affirm the trial court’s conclusion that Father’s parental rights should be

terminated pursuant to section 36-1-113(g)(4).

Mother

Mother’s parental rights were also terminated for severe abuse, the trial court

finding that Mother too “fail[ed] to protect the [C]hildren from what appears to be systemic

abuse or neglect that was likely to cause serious bodily injury[.]” Specifically, the trial

court pointed to Mother’s testimony that she knew Father’s discipline of the Children

“wasn’t normal” and that the Children disclosed instances of abuse to Mother.

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We agree with the trial court’s conclusion, and many other points in the record

buttress the finding that Mother knowingly failed to protect the Children from abuse or

neglect that was likely to cause serious bodily injury or death. Tenn. Code Ann. § 37-1-

102(b)(27)(A)(i). For example, Mother testified to knowing that T.D. was beaten with a

gun stock by Grandfather, and at one point disclosed to a DCS worker that Mother believed

C.N. was molesting S.D. Mother also testified to seeing hand prints on the Children and

that once, when D.D. was an infant, Mother caught Grandfather pricking D.D.’s genitalia

with a pin. Mother’s account of the Children’s treatment in the family home is disturbing;

even more disturbing is Mother’s contention that the Children were safe with her because

she understood Father’s “abilities” and would tell Father to “cool it” when necessary.

Mother asserts on appeal that “the record is completely devoid of any such injuries actually

taking place with respect to any of the Children in this matter. Moreover, the types of abuse

the Father and paternal grandfather were accused of committing, at least that Mother was

accused of having knowledge of, was more psychological than physical.” As outlined

above, however, this is simply not the case.

The trial court correctly concluded that, based on clear and convincing evidence,

Mother’s parental rights should be terminated pursuant to Tennessee Code Annotated

section 36-1-113(g)(4).

F. Sentence of two years or more years for conduct against a child

The final ground for termination found by the trial court applies only to Father. At

the time the petition for termination was filed, Tennessee Code Annotated section 36-1-

113(g)(5) provided that termination may occur when:

[t]he parent or guardian has been sentenced to more than two (2) years’

imprisonment for conduct against the child who is the subject of the petition,

or for conduct against any sibling or half-sibling of the child or any other

child residing temporarily or permanently in the home of such parent or

guardian, that has been found under any prior order of a court or that is found

by the court hearing the petition to be severe child abuse, as defined in § 37-

1-102. Unless otherwise stated, for purposes of this subdivision (g)(5),

“sentenced” shall not be construed to mean that the parent or guardian must

have actually served more than two (2) years in confinement, but shall only

be construed to mean that the court had imposed a sentence of two (2) or

more years upon the parent or guardian[.]

Here, Father pleaded guilty and was sentenced to twelve years for attempted

aggravated child abuse involving a child under the age of eight years old. Father testified

that this charge arose from the allegations regarding C.N.,14 who is the half-sibling of the

14

Father testified that the criminal charges arose out of allegations made by C.N. regarding abuse

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other children and who permanently resided in Parents’ home. See id. The crime for which

Father was convicted falls within the definition of severe child abuse found at Tennessee

Code Annotated section 37-1-102, as required by section 36-1-113(g)(5). See In re Kayden

A., No. W2020-00650-COA-R3-PT, 2021 WL 408860, at *11 (Tenn. Ct. App. Feb. 5,

2021) (upholding termination pursuant to section (g)(5) based on guilty plea for attempted

aggravated child abuse); In re Adrian M.-M., No. W2019-00931-COA-R3-PT, 2019 WL

5595846, at *11 (Tenn. Ct. App. Oct. 30, 2019) (same). Further, as the statute explains, it

is inapposite that Father was not required to serve his full twelve-year sentence.

We find, as the trial court did, that clear and convincing evidence supports

termination of Father’s parental rights pursuant to section 36-1-113(g)(5).

Having determined that several grounds for termination were correctly found as to

Mother and Father, we turn to the best interests of the Children. See Tenn. Code Ann. §

36-1-113(c)(2).

II. Best Interests

In addition to proving at least one statutory ground for termination, a party seeking

to terminate a parent’s rights must prove by clear and convincing evidence that termination

is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c). Indeed, “a finding of

unfitness does not necessarily require that the parent’s rights be terminated.” In re Marr,

194 S.W.3d 490, 498 (Tenn. Ct. App. 2005) (citing White v. Moody, 171 S.W.3d 187

(Tenn. Ct. App. 2004)). Rather, our termination statutes recognize that “not all parental

conduct is irredeemable[,]” and that “terminating an unfit parent’s parental rights is not

always in the child’s best interests.” Id. As such, the focus of the best interest analysis is

not the parent but rather the child. Id.; see also White, 171 S.W.3d at 194 (“[A] child’s

best interest must be viewed from the child’s, rather than the parent’s, perspective.”).

We consider nine statutory factors when analyzing best interests:

(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

that occurred several years prior to the Children’s removal; the associated criminal court judgment lists the

offense date as July 2005.

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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) (Supp. 2020).

This list is non-exhaustive.15 In re Marr, 194 S.W.3d at 499. “Ascertaining a child’s

best interests does not call for a rote examination of each of Tenn. Code Ann. § 36-1-

113(i)’s nine factors and then a determination of whether the sum of the factors tips in

favor of or against the parent.” Id. “The relevancy and weight to be given each factor

depends on the unique facts of each case.” Id. “Thus, depending upon the circumstances

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

dictate the outcome of the analysis.” Id. (citing In re Audrey S., 182 S.W.3d at 877).

In the present case, the trial court made detailed findings of fact and conclusions of

15

The Tennessee General Assembly recently amended the statutory best interest factors provided

in Tennessee Code Annotated section 36-1-113(i). See 2021 Tenn. Pub. Acts, ch. 190 § 1. This amendment

does not affect the instant case because we apply the version of the statute in effect at the time the petition

for termination was filed. See In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).

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law regarding the Children’s best interests, ultimately concluding that termination of

Parents’ rights was warranted. We have no hesitation affirming the trial court’s findings

in this case. Turning to the factors, the trial court found that Parents failed to meaningfully

adjust their circumstances, conduct, and conditions and we agree. Tenn. Code Ann. § 36-

1-113(i)(1). At trial, Mother remained adamant that DCS had no grounds to remove the

Children to begin with; further, Mother failed to fully address her mental health issues.

Father, on the other hand, made some adjustments to his conduct and circumstances but,

ultimately, remains in a home that is unsafe for the Children. This factor favors

termination. In the same vein, DCS made reasonable efforts to assist both Parents. Id. §

36-1-113(i)(2). DCS communicated with Parents and provided them with access to other

various resources. Nonetheless, Parents’ trial testimony does not reflect that a meaningful

change in their parenting is possible. Id.

With regard to visitation, the trial court found that neither parent had visitation with

the Children by the time of trial and that this was due to Parents’ own behavior. Id. § 36-

1-113(i)(3). The record does not preponderate against this finding, although we note that

Father took some of the steps necessary to regain his visitation and this was denied by the

trial court.

Addressing the fourth factor, the trial court found that there was evidence of a

relationship between the Children and Parents, but that the “spector of abuse and neglect

haunts this case.” See id. § 36-1-113(i)(4). The record reflects that the Children asked

about Mother often during the custodial period and that the older children frequently

articulated their desire to live with Mother. Although we agree with the trial court that the

relationship was complicated, the Children indeed had a bond with Mother. This factor

militates in favor of Mother. On the other hand, the record shows that the Children

exhibited fear and anxiety over their relationship with Father. D.D. explicitly told the

Children’s FSW that the Children did not want to be returned to Father’s care. As to Father,

factor four favors termination. Id.

The trial court also found that given the Children’s progress in their DCS placement,

a change in caretaker and physical environment would be detrimental to their development.

Id. § 36-1-113(i)(5). We agree, and under the particular circumstances of this case, this

factor heavily favors termination of both Parents’ rights. The mental, emotional, and

physical condition of the Children upon their removal was dire. DCS records show that

the Children have all benefitted from various forms of therapy and a safe and stable home;

moreover, Mother was unable, at multiple junctures in this case, to articulate or follow any

plans of care for the Children. Unfortunately, we are confident that the Children would

regress to their pre-removal state if returned to Parents. Factor five militates in favor of

termination. Id. For the same reasons, factors six, seven, and eight also weigh heavily

against Parents in this case. Id. § 36-1-113(i)(6)–(8).

Finally, there was little to no evidence presented regarding child support. In the

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absence of any evidence on this issue, factor nine favors neither party. Id. § 36-1-113(i)(9).

Based on all of the foregoing, the trial court correctly concluded that termination of

Parents’ rights serves the Children’s best interests.

CONCLUSION

We affirm in part and reverse in part the judgment of the Sumner County Juvenile

Court and tax the costs of this appeal to the Appellants, Deanna D. and David D., for which

execution may issue if necessary.

_________________________________

KRISTI M. DAVIS, JUDGE

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