The opinion
06/24/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 2, 2022
IN RE DESTINY C.
Appeal from the Juvenile Court for Franklin County
No. 2019-JV-129 Thomas C. Faris, Judge
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No. M2021-00533-COA-R3-PT
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This appeal involves a petition to terminate parental rights. The juvenile court found by
clear and convincing evidence that four grounds for termination as to the mother were
proven: (1) abandonment by failure to visit; (2) persistent conditions; (3) substantial
noncompliance with a permanency plan; and (4) failure to manifest an ability and
willingness to assume custody or financial responsibility. The juvenile court also found
that termination was in the best interests of the child. The mother appeals. We affirm.
Tenn. R. App. P. Rule 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KRISTI M. DAVIS, JJ., joined.
Matthew S. Bailey, Spencer, Tennessee, for the appellant, Felicia D. C. P.
Herbert H. Slatery, III, Attorney General and Reporter and Amber L. Barker, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. FACTS & PROCEDURAL HISTORY
This case involves the termination of the parental rights of Felicia D. C. P.
(“Mother”) as to her second child, Destiny, born in August 2009. In 2011, officers were
serving a warrant on an individual and found Mother and Destiny at the residence where
125 pseudoephedrine pills were also discovered. Mother submitted to a drug screen and
tested positive for methamphetamine, amphetamine, opiates, and benzodiazepines. She
then admitted that she had taken hydrocodone and xanax and had ingested
methamphetamine a few days prior. Destiny was removed into the protective custody of
the Department of Children’s Services (“DCS”) on May 3, 2011, after DCS was unable to
find any family members to place her with.1
The following day, DCS filed a “Petition for (Emergency) Temporary Legal
Custody” alleging that Destiny was dependent and neglected. That same day, the juvenile
court entered a protective custody order finding probable cause to believe that Destiny was
dependent and neglected and awarding temporary legal custody to DCS. In August 2012,
the juvenile court held a hearing regarding both of Mother’s children and placed custody
of the children with the maternal grandmother. The court ordered that Mother was not to
reside with the maternal grandmother or have unsupervised visitation with the children
until she had completed her alcohol and drug (“A&D”) treatment. In September 2013,
Mother completed an application for residency at The Next Door, a residential transition
center that provided a six-month recovery program. It appears from her application to the
program that she was incarcerated at the time and would be eligible for parole in October
2013.2 Mother went on to complete the recovery program with The Next Door in 2014 and
then resided with the maternal grandmother and the children.
In March 2018, Mother entered a medication-assisted treatment program at the
Rapha Centre, where she again received therapy. She signed releases of information for
DCS to obtain records of treatment. However, she was later discharged from the Rapha
Centre in July 2018 due to noncompliance with the program’s meeting requirements. In
early 2018, both the maternal grandfather and the maternal grandmother died within a
period of a few months. The maternal grandmother’s cause of death was respiratory arrest
due to an accidental overdose. Just hours after the maternal grandmother’s death, DCS
removed both of Mother’s children into protective custody.
Thereafter, DCS filed a petition for temporary legal custody and ex parte order
alleging that both children were dependent and neglected and should be placed in the
custody of DCS. The petition explained that Mother was previously court ordered to have
supervised visits due to her drug abuse history and that the children had been in DCS
custody before. The juvenile court then entered a protective custody order and awarded
temporary legal custody of the children to DCS. After a preliminary hearing, the juvenile
1
Mother’s first child, Carlos, was born in 2003. It is unclear from the record where Carlos was at
this point; however, he became involved in later proceedings with the juvenile court. This appeal only
involves termination of parental rights as to Destiny because it was determined that Carlos needed constant
institutional supervision.
2
A letter from the Metro Moore County Sheriff’s Department notes that Mother was sentenced in
December 2009 for conspiracy to commit aggravated burglary and was incarcerated for approximately 18
months. The letter also notes that when she was released from jail, she attended The Next Door and
completed the recovery program there. While the dates do not add up, it appears this was the charge for
which she was incarcerated. The letter was written in support of Mother in February 2018, stating that she
“has turned her life around, and is being a productive citizen of the community.”
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court entered an order finding that probable cause was established to show that the children
were dependent and neglected. The juvenile court then entered an adjudicatory order and
order of disposition in June 2018, finding clear and convincing evidence that the children
were dependent and neglected, and ordering that they remain in the custody of DCS.
Beginning in May 2018, DCS developed a total of five permanency plans applicable
to Mother.3 We summarize Mother’s responsibilities as follows:
1. Obtain employment or apply for public assistance in order to provide for her
children and provide proof of income to DCS;
2. Provide proof of housing applications to DCS, return the necessary paperwork to
the housing authority regarding her housing application, obtain safe and stable
housing, allow DCS to conduct a walkthrough of her home once obtained in order
to ensure that it is safe and appropriate for her children, and refrain from illegal
activity in the home;
3. Learn how to manage her oldest child’s diabetes and how to administer his diabetes
medication effectively;
4. Continue to attend scheduled appointments at the Rapha Centre, follow
recommendations, and sign a release of information for DCS and the court-
appointed special advocate (“CASA”) in order for her progress to be monitored;
5. Submit to random drug screens;
6. Continue to attend scheduled counseling appointments, follow recommendations,
and address grief and loss concerns in her counseling sessions;
7. Attend NA meetings, obtain a sponsor to help her overcome A&D issues, and
provide proof of attendance to DCS and CASA;
8. Complete an A&D assessment, follow recommendations, and sign a release of
information in order for her progress to be monitored;
9. Complete a detox program, contact DCS if unable to obtain transportation to the
detox, and enroll in inpatient rehab;
10. Attend mental health treatment while in inpatient rehab if it is offered and continue
mental health treatment upon returning from inpatient rehab;
11. Complete a mental health assessment, follow recommendations, and sign a release
of information for DCS in order to monitor her progress;
12. Enroll in parenting classes, complete the required amount of parenting classes in
order to receive a certificate of completion, and provide the certificate to DCS as
proof of her completion;
13. Comply with the no-contact orders regarding contact with her children;
14. Attend medical appointments for her children when the no-contact orders are lifted;
15. Comply with all court orders regarding visitation; and
3
There was a sixth permanency plan developed in May 2021, which was after the juvenile court
had terminated Mother’s parental rights. Therefore, this permanency plan did not include any
responsibilities for Mother and listed adoption as the sole permanency goal.
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16. Resolve any pending criminal charges, refrain from incurring any new criminal
charges, and follow all rules of her probation officer.
Following the development of the initial permanency plan, Mother tested positive for
benzodiazepines, opiates, and methamphetamine in June 2018. The juvenile court then
entered an order noting that Mother tested positive on a drug screen and that temporary
custody was to remain with DCS. The order was subsequently amended to order that
Mother have no contact with the children due to her positive drug screen. In October 2018,
the juvenile court entered another order stating that Mother was not allowed to have
visitation unless Destiny’s therapist approved.
After continuous efforts to encourage Mother to enroll in rehab, she finally
participated in and completed a 30-day program with The Next Door in early 2019. She
was then supposed to participate in an intensive outpatient program (“IOP”), but she only
attended one session with Bradford Health Services. In April 2019, Bradford Health
Services sent a letter to DCS providing an update on Mother’s progress, which stated in
part:
[Mother] reports she has an appointment scheduled tomorrow with another
treatment center. She reports she is considering switching providers for
financial reasons. I have a lot of concerns, she had not been seen in over a
week. If she doesn’t met [sic] with staff tomorrow and provide
documentation she will likely be given AMA discharge due to excessive
absences. She has made minimal progress and is likely a high risk of relapse.
[sic] at this time because she is not actively engaged in treatment.
Thereafter, Mother was under the care of a psychiatrist with Tullahoma Psychiatric. While
she did not provide copies of prescriptions, Mother noted in her own handwriting that her
psychiatrist prescribed her Wellbutrin, Trazadone, and Xanax. On her housing application
submitted to Sober Living in May 2019, she only listed Trazadone under her current
medications. Sober Living later responded to her application in December 2019 stating
that she had a reservation with the facility. According to Mother’s records, she enrolled in
a parent education and family stabilization course in December 2019. It also appears that
she made efforts to enroll in other programs in 2019, such as Centerstone, The Recovery
Village, and Advanced Recovery Systems. However, it is unclear what came from these
efforts.
In December 2019, DCS filed a petition to terminate Mother’s parental rights as to
Destiny.4 DCS alleged four grounds for termination: (1) abandonment by failure to visit;
(2) persistent conditions; (3) substantial noncompliance with a permanency plan; (4) failure
4
DCS later filed an amended petition in April 2020 which sought to terminate the parental rights
of Destiny’s father as well.
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to manifest an ability and willingness to assume custody or financial responsibility.
Additionally, DCS alleged that termination was in the child’s best interests. Mother filed
an answer to the petition in September 2020, in which she asserted the defense that her
failure to visit was not willful.
On March 2, 2021, approximately three weeks before the hearing, Mother filed a
motion for recusal requesting that the judge recuse himself from her case due to his
familiarity with Mother’s family history in the juvenile court system when she was a child.
On March 26, 2021, the judge addressed the motion for recusal at the hearing on the petition
to terminate Mother’s parental rights. He orally denied the motion, stating that if he were
to recuse himself strictly on the basis of the motion, he would “never hear a juvenile case,
because there would always be bad acts” that he had previously heard. However, he also
stated that he “went back and looked at the files, there are orders from 2003, when I was
not the juvenile judge.” The juvenile court then proceeded to hear testimony from both
parties.
During Mother’s testimony, she admitted that, due to her drug use, custody of her
children was taken from her several years ago and given to the maternal grandmother.
Mother testified that somehow the maternal grandmother “wiggled her way” into getting
custody of the children, despite being an even “worse drug addict.” She explained that she
and her brother were taken away from the maternal grandmother and the maternal
grandfather years before. After completing a six-month program with The Next Door in
July 2014, she resided with the maternal grandmother and the children. She then admitted
to using drugs again in June 2018 but maintained that she had been clean before her
children were removed in early 2018. The children were removed four or five hours after
the maternal grandmother’s death and supposedly witnessed her overdose. Due to the
maternal grandmother’s death and the children’s removal, Mother explained that she just
“kind of gave up.” After testing positive on the drug screen in June 2018, Mother stated
that she went to Bradford Health Services. She was then arrested in August 2018 for
aggravated assault and aggravated burglary, which were dismissed and reduced to a lesser
charge. She explained that she attempted to enroll in a program with Plateau Mental Health
in October 2018, but they rejected her because she was not qualified. She further explained
that the facility rejected her for insurance reasons.
Mother believed she had done the things she needed to do in order to be reunified
with her children. She testified that she understood the purpose of the permanency plans
and that she followed through with her responsibilities in order to get her children back.
She explained that she completed an A&D assessment, submitted to random drug screens,
completed a mental health assessment, obtained a suitable home, attended NA and AA
meetings, and provided proof of those things. She also testified that she could provide
proof of prescriptions for the medications she had tested positive for. At one point,
however, she became frustrated during her testimony and stated, “That’s [the] problem
with this whole [expletive] up system here. Excuse my language.” After a ten-minute
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recess, counsel for Mother stated that Mother was reportedly “so sick” that she was unable
to continue her testimony. Counsel for Mother asked for a continuance, but the juvenile
court denied the motion. Thereafter, the judge stated that Mother’s credibility was an issue.
The judge explained that he had done his best to provide her with her day in court, but her
history of attendance was not great and credibility was an issue for the court.
Ms. Lynn Ventola testified as the DCS case manager who was assigned to this case
from April 2018 until December 2020. In May 2018, Ms. Ventola went over the initial
permanency plan with Mother and provided her with the DCS form setting forth the criteria
for termination of parental rights. She believed that the main thing Mother needed to
address was her substance abuse because of Mother’s extensive history with DCS
concerning this issue. She also felt that Mother had experienced a great deal of trauma
with the death of her parents and the children’s removal. She believed that Mother needed
to address this trauma in order to properly care for the children in the future.
In order to address the substance abuse, Ms. Ventola explained that Mother was
required to complete an A&D assessment, follow recommendations, and sign releases of
information for DCS. Mother was also required to provide proof of completion of her other
tasks. After Mother failed a drug screen in June 2018, Ms. Ventola focused on attempting
to get Mother help in some sort of program. However, not long after the failed drug screen,
Mother was arrested and incarcerated for assault. When Ms. Ventola visited her in jail,
Mother communicated that she was ready to attend rehab. Ms. Ventola called Memphis
Recovery, but the facility was unable to do anything for Mother at the time because she
was incarcerated. She left the facility’s number with Mother and offered to take her to the
facility if she needed transportation. She waited to see if Mother would follow up with
Memphis Recovery, but Mother never did. Mother later wanted to know if it would even
be worth attending rehab because she wanted to see her children. Ms. Ventola explained
to her that attending rehab would probably increase her chances of seeing the children.
After Mother failed to follow up with Memphis Recovery, there was a meeting with
her at the DCS office in November 2018. Mother informed DCS that she had found another
rehab facility that she wanted to attend, but she was required to complete a detox program
before she could qualify for the facility. Because the facility was in Nashville, Mother
needed transportation. Ms. Ventola’s supervisor offered to transport Mother, but Mother
apparently did not go the day the supervisor attempted to pick her up. Afterward, Mother
called Ms. Ventola and asked again for transportation to the facility. However, when Ms.
Ventola arrived at Mother’s home to take her, no one came to the door. Mother did not
follow up with the facility after that. Following these attempts to enroll Mother in rehab,
Mother finally completed a 30-day program at The Next Door in early 2019. Mother was
supposed to complete outpatient treatment after completion of the 30-day program, but she
only attended one session. In April 2019, Mother requested a drug screen and tested
negative.
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After April 2019, Mother ceased communication with Ms. Ventola for a couple of
months. Ms. Ventola explained that communication with Mother was “off and on.” She
further explained that there was a pattern of Mother being unavailable: she would
communicate at times on her own volition and other times she would be incommunicado.
There were also times when Ms. Ventola attempted to visit Mother at her home, but Mother
was never there. She explained that whenever she tried to visit Mother in person, Mother
would never be available. In June 2020, Mother expressed that she wanted a second chance
to complete her responsibilities, so Ms. Ventola asked her to submit to a drug screen.
However, Mother refused and admitted that she would not pass the drug screen. Before
Ms. Ventola transferred the case in late 2020, she offered to do a virtual walkthrough of
Mother’s home, but Mother did not answer when she called to do the walkthrough. As
such, Ms. Ventola was never able to see the inside of Mother’s home.
In sum, Ms. Ventola testified that she was unaware of Mother’s progress with many
requirements: whether she completed an IOP; whether she completed a mental health
assessment; whether she obtained a suitable home; or whether she attended NA or AA
meetings. She further testified that Mother never provided any information to get the no-
contact order lifted and never came forward to demonstrate that she could provide for her
children or that she had a viable income. She also was unaware if Mother continued to
attend her scheduled appointments at the Rapha Centre. Over a two-and-half-year period,
Mother had only made herself available for drug screens approximately two times. For
these reasons, Ms. Ventola did not believe that Mother had made any significant
accomplishment toward the permanency plans.
Ms. Ventola briefly testified about Destiny. She described the sort of problems that
the child was experiencing which necessitated her therapist’s approval in order for
visitation to occur. She believed that the child had a lot of trauma due to the environment
she was previously in. She explained that the child was not eating solid foods for a while
and had described seeing a “black figure with red eyes that was scaring her.” The child
had expressed recently that she would like to be able to know Mother was doing okay and
doing what she was supposed to, even after termination and adoption if possible. Ms.
Ventola did not know if the child would have a negative reaction to seeing Mother, but that
was a concern for her. She testified that the child had made peace with the fact that she
might not be reunited with Mother. The child had come to accept the fact that an
environment with Mother was not one she should be in.
The in-home care coordinator from Camelot testified concerning her work with both
Mother and Destiny. The coordinator explained that she worked hand in hand with DCS
and the child’s therapist and identified what needed to be done. In August 2020, she began
working with the child in the foster home by addressing coping skills, therapeutic
situations, and emotional regulation. She testified that the child was doing okay and
continuously asked how the Mother was doing. The child would discuss “what if this
happens, or what if that happens and I can’t be with Mom, or I can’t see her.” The child
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was aware that Mother was not doing well and had done things that were not the best. She
worried about Mother possibly passing away, which was an issue that they had to work
through. The coordinator stated that the child referred to these worries as her “what if”
worries. Despite wanting to see Mother, the child knew that was something she did not
need to do right now. She was aware that Mother’s progress was preventing visits from
occurring and that Mother was still using drugs. The coordinator believed that this was
causing the child additional stress. She stated that the child was mature for her age—which
was 11-years-old at the time of the hearing—and was at a point where she was just ready
to move on with her life.
In September 2020, the coordinator began working with Mother by monitoring and
assisting in areas such as permanency, parenting strategies, and budgeting. She stated that
Mother missed about half of her phone appointments. She explained that Mother was good
about answering or calling back to schedule her appointments when they first started, but
Mother got to the point where she would skip appointments or would not answer the phone.
Communication between them became inconsistent, and Mother had poor follow through
with the things she needed to do. When they were able to meet, Mother spoke a lot about
turning in her paperwork. Despite making it clear to Mother that she was to turn in her
paperwork to DCS upon completion, the coordinator testified that Mother never turned in
any paperwork as far as she was aware.
Ms. Bonnie Wilson briefly testified as the DCS case manager that had been assigned
to this case since March 2021. Ms. Wilson’s testimony mainly concerned the
communication she recently had with Mother. She explained that she attempted to contact
Mother at one point but was unable to reach her. During a later conversation, she asked
Mother to meet her at the DCS office in order to complete a drug screen and discuss the
current permanency plan. However, Mother did not agree to meet with her at all and stated
that it was “pointless.” Ms. Wilson stated that they have not had any communication since
then.
The foster mother testified that Destiny was currently in her home and had been
there for approximately three years. Besides the child and herself, the foster home
consisted of her husband, her biological son, and three adopted girls. She stated that there
were a lot of problems when the child first came to her home. She explained that Destiny
would not eat, would walk around on all fours like a dog, and “had a lot of stuff going on.”
However, the child was doing really well now. She was participating in gymnastics and
was excited about going back to school because she had friends there. The foster mother
believed that the child had grown to trust her and husband. She described the child as
kindhearted and giving. She said that the child was able to be herself now.
The foster mother wished to adopt Destiny and stated that the child seemed to want
to be adopted as well. She explained that the child had told her this and that adoption was
something the child looked forward to. She noted that the child had wanted her aunts to
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adopt her, but they were unable to do so. However, she explained that she and her husband
had a good relationship with the child’s aunts and that the child saw them occasionally.
She said that contact with the child’s aunts would continue after the adoption and believed
it was a good idea to reach out to some of the child’s family members. The foster mother
testified that the child talked about Mother occasionally and loved and missed her.
However, she explained that the child had accepted the way things were and understood
that she needed stability. The child’s expectation of potentially having Mother care for her
again had diminished substantially.
In May 2021, the juvenile court entered an order terminating Mother’s parental
rights and a final decree of full guardianship.5 The juvenile court found by clear and
convincing evidence that four grounds for termination as to Mother were proven: (1)
abandonment by failure to visit; (2) persistent conditions; (3) substantial noncompliance
with a permanency plan; and (4) failure to manifest an ability and willingness to assume
custody or financial responsibility. The juvenile court also found that termination was in
the best interests of the child. The judge noted in its order that it granted DCS’s motion to
proceed in this cause and in Mother’s absence, over the objections of Mother’s counsel for
the judge to recuse himself. Thereafter, Mother timely filed her appeal. Mother then filed
a motion to supplement the record with her juvenile court records from 2003 when she was
involved with the court as a child. Mother argued that the judge should have recused
himself and held her family’s record in the juvenile court against her. The judge, however,
denied this motion noting that no consideration was given to the 2003 matter from the
juvenile court. The judge explained that he was not on the bench at that time and did not
have any recollection of the facts or testimony pertaining to the matter.
II. ISSUES PRESENTED
Mother presents the following issues for review on appeal, which we have slightly
restated:
1. Whether the judge erred in denying Mother’s motion to recuse;
2. Whether the juvenile court erred in finding that grounds existed to terminate
Mother’s parental rights; and
3. Whether the juvenile court erred in finding that termination of Mother’s parental
rights was in the best interests of the child.
For the following reasons, we affirm the decision of the juvenile court.
III. STANDARD APPLICABLE TO TERMINATION CASES
5
The juvenile court’s order also terminated the father’s parental rights on the ground of failure to
establish/exercise paternity; however, the father did not appeal.
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“A parent’s right to the care and custody of her child is among the oldest of the
judicially recognized fundamental liberty interests protected by the Due Process Clauses
of the federal and state constitutions.” In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020)
(quoting In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016)). “Parental rights have
been described as ‘far more precious than any property right.’” Id. (quoting In re
Carrington H., 483 S.W.3d at 522). “No civil action carries with it graver consequences
than a petition to sever family ties irretrievably and forever.” In re Kaliyah S., 455 S.W.3d
533, 556 (Tenn. 2015). Nevertheless, parental rights are not absolute. In re Carrington
H., 483 S.W.3d at 522.
Tennessee Code Annotated section 36-1-113 “sets forth the grounds and procedures
for terminating the parental rights of a biological parent.” In re Kaliyah S., 455 S.W.3d at
546. Pursuant to this statute, the petitioner seeking termination of parental rights must
prove two elements. Id. at 552. First, the petitioner must prove the existence of at least
one of the statutory grounds for termination set forth in Tennessee Code Annotated section
36-1-113(g). Id. Second, the petitioner must prove that termination of parental rights is in
the best interests of the children under the factors set forth in Tennessee Code Annotated
section 36-1-113(i). Id. Due to the constitutional dimension of the rights at stake, the
petitioner seeking termination must prove both elements by clear and convincing evidence.
In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); see Tenn. Code Ann. § 36-1-113(c).
“Clear and convincing evidence enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005), and eliminates any serious or substantial doubt about the correctness of these factual
findings.” Id. (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); State, Dep’t of
Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct. App. 2008)).
Because of this heightened burden of proof applicable in parental termination cases,
we adapt our customary standard of review on appeal. In re Audrey S., 182 S.W.3d at 861.
We review the juvenile court’s factual findings de novo in accordance with Rule 13(d) of
the Tennessee Rules of Appellate Procedure, presuming each factual finding to be correct
unless the evidence preponderates otherwise. In re Carrington H., 483 S.W.3d at 524. We
then make our own determination regarding “whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, amount to clear and convincing
evidence of the elements necessary to terminate parental rights.” Id. (citing In re Bernard
T., 319 S.W.3d at 596-97). In regard to conclusions of law, “[t]he 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.” Id. (citing In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).
IV. DISCUSSION
A. Motion to Recuse
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On appeal, Mother first argues that the juvenile court erred when it denied her
motion to recuse. She contends that the judge should have recused himself and that he
ultimately held her family history against her when considering the grounds for termination
and the best interests of the child. Thus, she asserts that the judge did exactly what she was
concerned about in her motion to recuse.
We begin by reiterating the facts relevant to this issue. Mother filed a motion for
recusal in March 2021 due to the judge’s alleged familiarity with Mother’s family history
in the juvenile court system in 2003 when she was a child. Counsel for Mother admitted
that a rule requiring a juvenile court judge to recuse himself based on “prior negative
experience” with a parent’s family would create a lot of conflicts given that many of these
issues are generational, but he said he could not find any case law on point. Still, he insisted
that there was a need to “find a judge that doesn’t know anything about her family.” At
the beginning of the hearing in March 2021, the judge addressed the motion for recusal.
He began by stating that “when I went back and looked at the files, there are orders from
2003, when I was not the juvenile judge. There are orders from 2011.” He then orally
denied the motion, stating as follows: “You can’t hold it against her as to what her family
has done. But if I recuse just strictly on the basis of this motion, I would never hear a
juvenile case, because there would always be bad acts that I previously heard.
Respectfully, I overrule.”
Mother briefly testified at the hearing about her family history, explaining that the
maternal grandmother was an even “worse drug addict” and that she and her brother were
taken away from the maternal grandmother and the maternal grandfather years before.
During his oral ruling at the hearing, the judge stated that “there was drug use in 2003 that
cost custody of the mom’s parents” when considering the ground of persistent conditions.
Furthermore, when considering whether Mother failed to effect a lasting adjustment, in the
best interest analysis, the judge stated, “Tell me how it’s possible when she is the subject
of her own petition in 2003.” These statements were not incorporated into the final order.
However, in his order terminating Mother’s parental rights, the judge noted that Mother
“has had issues back to 2003.” The judge also noted that it granted DCS’s motion to
proceed in this cause and in Mother’s absence, over the objections of Mother’s counsel for
the judge to recuse himself. After Mother filed her appeal, she filed a motion to supplement
the record with her juvenile court records from the 2003 matter, which was denied by the
judge. The judge stated that no consideration was given to the 2003 matter. He explained
that he was not on the bench at that time and did not have any recollection of the facts or
testimony pertaining to the matter. Thus, it appears that the judge’s isolated statements
about drug use dating back to 2003 may have been attributable to Mother’s own testimony
about her family history of drug use and the fact that she was removed from her own
parents. “Any comments made by the trial court must be construed in the context of all the
facts and circumstances to determine whether a reasonable person would construe those
remarks as indicating partiality on the merits of the case.” State v. Wilson, No. M2013-
00306-CCA-10B-CD, 2013 WL 543862, at *7 (Tenn. Crim. App. Feb. 12, 2013) (quoting
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Alley v. State, 882 S.W.2d 810, 822 (Tenn. Crim. App. 1994)). As such, “if the basis for
the comments stems from what the trial court learned during trial, recusal is not required.”
Id. (citing Alley, 882 S.W.2d at 821).
In regard to a motion to recuse, Tennessee Supreme Court Rule 10B, section 2.01,
provides that “the trial court’s ruling either can be appealed in an accelerated interlocutory
appeal as of right . . . or the ruling can be raised as an issue in an appeal as of right . . .
following entry of the trial court’s judgment. Tenn. Sup. Ct. R. 10B, § 2.01. In both types
of appeals, “the trial court’s ruling on the motion for disqualification or recusal shall be
reviewed by the appellate court under a de novo standard of review, and any order or
opinion issued by the appellate court should state with particularity the basis for its ruling
on the recusal issue.” Id. Due to the adoption of Tennessee Supreme Court Rule 10B in
2012, we emphasize here that we no longer review this particular issue under the abuse of
discretion standard of review, but “de novo, with no presumption of correctness accorded
to the trial court.”6 In re Charles, No. M2017-02387-COA-R3-PT, 2018 WL 3583307, at
*6 (Tenn. Ct. App. July 25, 2018) (citing Tenn. Sup. Ct. R. 10B, § 2.01).
The Tennessee Supreme Court has explained that “one of the core tenets of our
jurisprudence is that litigants have a right to have their cases heard by fair and impartial
judges.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001) (citing Kinard
v. Kinard, 986 S.W.2d 220, 227 (Tenn. Ct. App. 1998)). “A motion to recuse should be
granted when judges have any doubt about their ability to preside impartially in a case or
when ‘a person of ordinary prudence in the judge’s position, knowing all of the facts known
to the judge, would find a reasonable basis for questioning the judge’s impartiality.’” In
re Charles R., 2018 WL 3583307, at *6 (quoting Davis, 38 S.W.3d at 564 (citation
omitted)). “[E]ven when a judge believes that he or she can hear a case fairly and
impartially, the judge should grant the motion to recuse if ‘the judge’s impartiality might
reasonably be questioned.’” Davis, 38 S.W.3d at 565 (quoting Tenn. Sup. Ct. R. 10, R.J.C.
2.11). Therefore, the test for whether a motion to recuse should be granted “is ultimately
an objective one since the appearance of bias is as injurious to the integrity of the judicial
system as actual bias.” Id.; see Alley, 882 S.W.2d at 820.
When Mother filed her motion for recusal in March 2021, she argued that the
judge’s familiarity with the juvenile court proceedings in 2003 when she was a child
supported recusal. When addressing a similar issue, the Tennessee Supreme Court was not
persuaded by this argument, explaining that “the mere prior knowledge of the existence”
of other proceedings would not “lead a person of ordinary prudence to question a judge’s
impartiality.” Beard v. Bd. of Pro. Resp., 288 S.W.2d 838, 861 (Tenn. 2009). Furthermore,
“prior knowledge of facts about [a] case is not sufficient in and of itself to require
6
“Prior to the adoption of Tennessee Supreme Court Rule 10B, effective July 1, 2012, the appellate
courts reviewed recusal decisions pursuant to the more deferential abuse of discretion standard.” Duke v.
Duke, 398 S.W.3d 665, 668 n.2 (Tenn. Ct. App. 2012); see State v. Hester, 324 S.W.3d 1, 73 (Tenn. 2010).
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disqualification.” State v. Reid, No. M2003-00539-CCA-R3-DD, 2005 WL 1315689, at
*25 (Tenn. Crim. App. June 3, 2005) (citing Alley, 882 S.W.2d at 822). Moreover, we
emphasize again that the judge was not even on the bench during the 2003 matter.
Therefore, we affirm the juvenile court’s denial of Mother’s motion for recusal.
One final issue regarding recusal warrants discussion before we move to the merits
of this case. The procedure used by the juvenile court judge to resolve the motion did not
fully comply with Rule 10B. The Rule provides:
The procedures set out in this rule shall be employed to determine whether a
judge should preside over a case.
Section 1. Motion Seeking Disqualification or Recusal of Trial Judge of
Court of Record.
...
1.02. While the motion is pending, the judge whose disqualification is sought
shall make no further orders and take no further action on the case, except
for good cause stated in the order in which such action is taken.
1.03. Upon the filing of a motion pursuant to section 1.01, the judge shall act
promptly by written order and either grant or deny the motion. If the motion
is denied, the judge shall state in writing the grounds upon which he or she
denies the motion.
Tenn. Sup. Ct. R. 10B, §§ 1.02 and 1.03 (emphasis added).
“Rule 10B, Section 1.02 requires the trial court to first analyze the motion to
disqualify before proceeding to any substantive issues in the case.” In re Estate of Abbott,
No. W2017-02086-COA-T10B-CV, 2017 WL 4864816, at *2 (Tenn. Ct. App. Oct. 27,
2017). In the case at bar, the judge heard the motion for recusal first at the termination
hearing, orally denied it, and then proceeded with the substantive issues of the termination
hearing.
In In re Conservatorship of Tate, No. M2012-01918-COA-10B-CV, 2012 WL
4086159, at *1 (Tenn. Ct. App. Sept. 17, 2012), the trial court judge heard both a motion
for recusal and a “motion to sell” on the same date and ruled on both from the bench.
However, the order on the motion to sell was entered several days before the order denying
the motion for recusal. Id. On appeal, Mr. Tate argued that the trial court violated Section
1.02 by ruling on the motion to sell while the motion for recusal was “pending.” Id. at *3.
This Court agreed that “[t]he better practice would have been to enter the order denying
the motion for recusal before entering the order on the motion to sell.” Id. Under the
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circumstances, however, we could not conclude that the trial court violated Rule 10B. Id.
We further found that “the issue is moot in light of our decision affirming the denial of the
motion for recusal.” Id.
Similar to In re Conservatorship of Tate, it would have been better practice for the
juvenile court to immediately enter a written order denying the recusal motion before
proceeding with the termination hearing, but we find that this is not reversible error in light
of the fact that we have affirmed the denial of the motion for recusal on appeal.
The second issue we perceive involves the juvenile court’s written order. According
to Rule 10B, “the judge shall act promptly by written order and either grant or deny the
motion. If the motion is denied, the judge shall state in writing the grounds upon which he
or she denies the motion.” Tenn. Sup. Ct. R. 10B, § 1.03. In Prewitt v. Brown, No. M2017-
01420-COA-R3-CV, 2018 WL 2025212, at *9 (Tenn. Ct. App. Apr. 30, 2018), this Court
said that a trial judge “failed to fulfill his Tenn. Sup. Ct. R. 10B responsibilities when he
denied the motion to recuse by simply stating: ‘Plaintiff’s motion for recusal is hereby
denied.’” We explained that this was “woefully inadequate” because Rule 10B clearly
states that “[i]f the motion is denied, the judge must state in writing the grounds upon which
he or she denies the motion.” Id. (quoting Tenn. Sup. Ct. R. 10B, § 1.03). Therefore, we
further explained that “[d]ue to the deficiencies in the trial court’s order, if this court had
any uncertainty concerning whether recusal was appropriate, we could choose to remand
with instructions for the trial judge to comply with the mandate in Section 1.03, or reverse
with instructions for the trial court to grant the motion.” Id. However, we chose to affirm
the decision to deny the motion for recusal instead, noting that the grounds asserted did not
merit disqualification. Id.
Here, the judge provided a short explanation in its oral ruling as to why he was
denying the motion, but it was not incorporated by reference in his order. The termination
order simply stated that the judge proceeded over the objection of Mother’s counsel to
recuse himself from these proceedings. Despite these deficiencies in the order, we affirm
the denial of the motion for recusal because we find no error with the juvenile court’s
decision. We also note that the parties did not raise any issue on appeal about the lack of
specific findings on the grounds for recusal or the procedure used.
B. Grounds for Termination
We now address whether the juvenile court erred in finding that grounds existed to
terminate Mother’s parental rights. The juvenile court found that DCS met its burden of
proof on the following grounds: (1) abandonment by failure to visit; (2) persistent
conditions; (3) substantial noncompliance with a permanency plan; and (4) failure to
manifest an ability and willingness to assume custody or financial responsibility. We
review the juvenile court’s finding as to each ground.
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1. Abandonment by Failure to Visit
One ground for termination exists due to a parent’s abandonment of his or her child.
Tenn. Code Ann. § 36-1-113(g)(1). Under Tennessee Code Annotated section 36-1-
102(1)(A), there are several alternative definitions of “abandonment.” See Tenn. Code
Ann. § 36-1-102(1)(A). One definition of abandonment provided under section 36-1-
102(1)(A)(i) is:
(i) For 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 . . . either have failed to visit or have failed to support
or have failed to make reasonable payments toward the support of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(i). “Failed to visit” is defined as “the failure, for a
period of four (4) consecutive months, to visit or engage in more than token visitation.”
Tenn. Code Ann. § 36-1-102(1)(E). Additionally, “[t]hat the parent had only the means or
ability to make very occasional visits is not a defense to failure to visit if no visits were
made during the relevant four-month period[.]” Tenn. Code Ann. § 36-1-102(1)(E).
“Token visitation” is defined as “the visitation, under the circumstances of the individual
case, constitutes nothing more than perfunctory visitation or visitation of such infrequent
nature or of such short duration as to merely establish minimal or insubstantial contact with
the child[.]” Tenn. Code Ann. § 36-1-102(1)(C).
DCS filed a petition to terminate Mother’s parental rights in December 2019.7
Mother then filed an answer asserting a defense to abandonment by failure to visit, in which
she alleged that her failure to visit was not willful. She was subject to a no-contact order
prior to the filing of the petition, which was due to her positive drug screen in June 2018.
The no-contact order was later amended to require the approval of the child’s therapist in
order to have visitation. Mother argues in her appellate brief that this condition was outside
of her control because the child also needed to make progress in therapy. As such, Mother
avers that the therapist’s lack of approval was a significant restraint of or interference with
her efforts to support or develop a relationship with the child. DCS contends that while
the child’s progress in therapy may have been outside of Mother’s control, Mother’s own
actions were not.
In finding this ground against Mother, the juvenile court explained that Mother
never made efforts over the course of a three-year period to show the court that she should
7
Although DCS filed an amended petition in April 2020, the amended petition did not allege a new
four-month period for the ground of abandonment by failure to visit. Rather, it only added a ground against
the father.
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have the no contact order lifted. At the time the petition was filed, Mother had struggled
with substance abuse for nearly a decade. In 2011, she tested positive for several
substances after a drug screen and admitted to using hydrocodone, xanax and
methamphetamine a few days prior. Mother then participated in six-month recovery
program with The Next Door, which she completed in July 2014. In March 2018, she
entered a medication-assisted treatment program at the Rapha Centre, but was later
discharged due to noncompliance with the program’s expectations for missing twelve of
her scheduled appointments. She tested positive for several substances in June 2018, which
led to the no-contact order. She explained that she just “kind of gave up” after the maternal
grandmother died in April 2018. Around this time, Ms. Ventola explained to her that
attending rehab would probably increase her chances of seeing the child. She eventually
completed a 30-day program with The Next Door in early 2019. However, she then failed
to complete the recommended IOP with Bradford Health Services afterward and ceased
communication with Ms. Ventola for a couple of months. According to a letter from
Bradford Health Services, she had made “minimal progress” and was “a high risk of
relapse.” Mother then refused to submit to a drug screen in June 2020 and admitted that
she would not pass. She had only made herself available for two drug screens during the
time Ms. Ventola was the DCS case manager. Ms. Ventola was unaware if Mother ever
completed an IOP or attended NA or AA meetings. Additionally, Ms. Ventola testified
that Mother failed to provide any information to support lifting the no-contact order. In
March 2021, Ms. Wilson asked Mother to submit to a drug screen, but Mother responded
by stating that it was “pointless.”
This Court has explained that “[w]illful conduct consists of acts or failure to act that
are intentional or voluntary rather than accidental or inadvertent.” In re Audrey S., 182
S.W.3d at 863 (citations omitted). It is also well established that a willful failure to visit a
child may be found in light of a parent’s continued drug use when the parent is prohibited
from visiting a child until passage of a drug test. See In re Addison P., No. E2016-02567-
COA-R3-PT, 2017 WL 1861781, at *7 (Tenn. Ct. App. May 8, 2017) (“This Court has
repeatedly held that ‘[a] parent’s choice to continue to use drugs when the parent is
prohibited from visiting the child until passage of a drug test constitutes a willful failure to
visit the child.’”) (quoting In re Morgan S., No. E2009-00318-COA-R3-PT, 2010 WL
520972, at *9 (Tenn. Ct. App. Feb. 12, 2010)); see also In re Jaylah W., 486 S.W.3d 537,
551-52 (Tenn. Ct. App. 2015), perm. app. denied (Feb. 1, 2016) (“It is well-settled that a
trial court’s order requiring that a parent complete some task or meet a condition before
resuming visitation does not preclude a finding a willfulness.”); In re Bonnie L., No.
M2014-01576-COA-R3-PT, 2015 WL 3661868, at *8 (Tenn. Ct. App. June 12, 2015)
(concluding that father’s failure to visit was willful because he was aware of the
opportunity to visit the children by merely submitting to and passing drug screens but that
father “failed drug tests, refused to take tests, or made himself unavailable for such
testing”); In re Roger T., No. W2014-02184-COA-R3-PT, 2015 WL 1897696, at *6 (Tenn.
Ct. App. Apr. 27, 2015) (rejecting mother’s argument that her failure to visit was not willful
because the trial court suspended her visitation and noting that the suspension was “the
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direct result of her failure to produce negative drug screens”); In re Kiara C., No. E2013-
02066-COA-R3-PT, 2014 WL 2993845, at *6 (Tenn. Ct. App. June 30, 2014) (“[W]hen a
parent’s visitation has been suspended by the trial court and the parent has the ability to
demonstrate a change in situation or behavior that would warrant reinstating visitation but
fails to do so, that parent can be found to have willfully failed to visit.”); In re Elijah B.,
No. E2010-00387-COA-R3-PT, 2010 WL 5549229, at *8 (Tenn. Ct. App. Dec. 29, 2010)
(rejecting father’s argument that the existence of a no-contact order prevents a finding of
willfulness for failure to visit because the proof indicated that father was aware that he
would be permitted visitation if he passed a drug test); State Dep’t of Children’s Servs. v.
J.A.H., No. E2005-00860-COA-R3-PT, 2005 WL 3543419, at *6 (Tenn. Ct. App. Dec. 28,
2005) (opining that a parent’s decision to refuse to cooperate with certain conditions related
to the resumption of visitation constitutes a “willful choice”).
While Mother did make efforts early on, her efforts were minimal and her attitude
worsened until she became indifferent to her situation. She may blame the “system,” but
ultimately her own actions demonstrate that she was unwilling to address her substance
abuse in order to see the child. She was aware of the consequences of her failure to address
her substance abuse because she was provided with the DCS form setting forth the criteria
for termination of parental rights. Even the child was aware that visits were not occurring
due to Mother’s lack of progress with her substance abuse. The child worried about Mother
possibly passing away from drug use, which supported that the therapist’s approval of
visitation was warranted. Mother took a step in the right direction by completing the 30-
day program, but then her efforts quickly declined when she only attended one IOP session
and then ceased communication with Ms. Ventola for months afterward. Her behavior and
lack of follow through with IOP prevented visitation with the child. We therefore find that
Mother failed to meet her burden of establishing a lack of willfulness. Due to the no-
contact order that remained in place, Mother had no contact or visitation with the child in
the relevant four-month period immediately preceding the filing of the petition in
December 2019. As such, we affirm the juvenile court’s finding that DCS met its burden
of proof on the ground of abandonment by failure to visit.
2. Persistent Conditions
The second ground for termination at issue on appeal is commonly known as
“persistent conditions.” This ground for termination applies when:
(3)(A) The child has been removed from the home or the physical or legal
custody of a parent . . . 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 other conditions exist that,
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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 .
..;
(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 . . . in the near future;
and
(iii) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home;
(B) The six (6) months must accrue on or before the first date the termination
of parental rights petition is set to be heard[.]
Tenn. Code Ann. § 36-1-113(g)(3). Each element for this ground must be proven by clear
and convincing evidence. In re Valentine, 79 S.W.3d at 550. This Court has stated that
this ground applies “when, by court order, a ‘child has been removed from the home or the
physical or legal custody of a parent . . . for a period of six (6) months’ as a result of a
dependency and neglect petition.” In re Boston G., No. M2019-00393-COA-R3-PT, 2020
WL 2070399, at *6 (Tenn. Ct. App. Apr. 29, 2020); see also In re D.V., No. E2018-01438-
COA-R3-PT, 2019 WL 1058264, at *5 (Tenn. Ct. App. Mar. 6, 2019) (“The child must
have been removed from the home or the physical or legal custody of a parent/guardian for
a period of six (6) months by a court order entered following a petition alleging that the
child is a dependent and neglected child.”). “The necessary order of removal is ‘the
threshold consideration’ for this ground.” In re Lucas S., No. M2019-01969-COA-R3-PT,
2021 WL 710841, at *4 (Tenn. Ct. App. Feb. 24, 2021) (quoting In re Alleyanna C., No.
E2014-02343-COA-R3-PT, 2015 WL 4773313, at *14 (Tenn. Ct. App. Aug. 10, 2015)).
In May 2011, DCS filed a “Petition for (Emergency) Temporary Legal Custody”
alleging that the child was dependent and neglected. The child was removed from Mother’s
legal custody after the juvenile court entered a protective custody order finding probable
cause to believe that she was dependent and neglected. After a successful trial home
placement, the juvenile court awarded legal custody of the child to the maternal
grandmother and prohibited Mother from residing in that home until she had completed
her A&D treatment. Mother later resided with the maternal grandmother and the child
after completing the six-month recovery program with The Next Door in July 2014. In
April 2018, following the death of the maternal grandmother, DCS filed a petition for
temporary legal custody and ex parte order alleging that the child was dependent and
neglected. The juvenile court then entered a protective custody order finding probable
cause to believe that the child was dependent and neglected. The juvenile court returned
temporary legal custody of the child to DCS. Therefore, “‘the threshold consideration’ for
this ground” is satisfied. In re Lucas S., 2021 WL 710841, at *4 (quoting In re Alleyanna
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C., 2015 WL 4773313, at *14). The child was removed from Mother’s legal custody in
May 2011 by a court order after the filing of DCS’s petition alleging that the child was
dependent and neglected. Although Mother later resided with the maternal grandmother
and the child, Mother had not had legal custody of the child since May 2011. Those seven
years far exceeded the six-month period of removal required by the statute and accrued
before the first date the petition was set to be heard. See Tenn. Code Ann. §§ 36-1-
113(g)(3)(A) and 36-1-113(g)(3)(B).
The main thing Mother needed to address was her substance abuse. Mother
admitted that custody of the child was taken from her several years ago due to her drug
use. She also admitted to using drugs again in June 2018, which resulted in a positive drug
screen for benzodiazepines, opiates, and methamphetamine. Although she had completed
a six-month program and a 30-day program with The Next Door, she continued to struggle
with substance abuse. In June 2020, she refused to submit to a drug screen and admitted
that she would not pass. In March 2021, she refused to submit to a drug screen again and
stated that it was “pointless.” Moreover, she received probation violations in January 2019,
which were drug related. For these reasons, we find that the conditions that led to the
child’s removal still persist, which prevents the child’s safe return to Mother’s care and
would likely cause the child to be subjected to further abuse and neglect. See Tenn. Code
Ann. § 36-1-113(g)(3)(A)(i).
As explained before, Mother had struggled with substance abuse for nearly a decade
at the time the petition was filed. Due to the extensive history of Mother’s substance abuse,
there is little likelihood that these conditions will be remedied at an early date in order for
the child to be safely returned to Mother in the near future. See Tenn. Code Ann. § 36-1-
113(g)(3)(A)(ii). Furthermore, the continuation of the parent-child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and permanent home.
See Tenn. Code Ann. § 36-1-113(g)(3)(A)(iii). Although the child loved and missed
Mother, she understood that she needed stability, had made peace with the fact that she
might not be reunited with Mother, and had come to accept the fact that an environment
with Mother was not one she should be in. The child had reached a point where she was
ready to move one with her life because she believed that Mother was “never going to
change.”
To the extent that the juvenile court may have considered Mother’s involvement in
the juvenile court system as a child in 2003, we conclude that the error was harmless. See
Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in prejudice
to the judicial process.”). There was clear and convincing evidence to demonstrate that
Mother’s substance abuse persisted from the child’s removal in 2011 until petition was
filed in December 2019. See In re Yvonne R., No. E2016-02246-COA-R3-JV, 2017 WL
2842866, at *5 (Tenn. Ct. App. Apr. 3, 2017) (noting that it was error for the court to rely
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on records that were not admitted into evidence, but the error was harmless because there
was still clear and convincing evidence even when disregarding the records). Therefore,
we affirm the juvenile court’s finding that DCS met its burden of proof on the ground of
persistent conditions.
3. Substantial Noncompliance with a Permanency Plan
The third ground for termination at issue on appeal exists based on a parent’s
substantial noncompliance with the statement of responsibilities in a permanency plan.
Tenn. Code Ann. § 36-1-113(g)(2). In order to terminate a parent’s parental rights under
this ground, the parent’s noncompliance with the plan must be substantial and the
requirements must be “reasonable and related to remedying the conditions which
necessitate[d] foster care placement.” In re Valentine, 79 S.W.3d at 547. When analyzing
the requirements of the permanency plan, “noncompliance should be measured by both the
degree of noncompliance and the weight assigned to that requirement.” Id. at 548.
Determining whether a parent has sufficiently complied with a permanency plan “involves
more than merely counting up the tasks in the plan to determine whether a certain number
have been completed[.]” In re Carrington H., 483 S.W.3d at 537.
We summarized Mother’s responsibilities from the permanency plans above, which
included responsibilities related to employment, housing, drug use, mental health,
parenting, criminal activity, and providing proof of progress in all of these areas. We
conclude that the requirements were reasonable and related to the conditions necessitating
foster care placement. Mother understood the purpose of the permanency plans and
maintained that she followed through with her responsibilities. She testified that she signed
her releases, completed inpatient rehab, participated in outpatient rehab, obtained a suitable
home, and attended NA and AA meetings. Conversely, Ms. Ventola did not believe that
Mother had made any significant accomplishment toward the permanency plans and
explained that Mother had failed to provide proof of progress for several of her
requirements. There is evidence that Mother received treatment or care from several
different programs, such as The Next Door, the Rapha Centre, Bradford Health Services,
and Tullahoma Psychiatric. There is also evidence that she signed some releases of
information for DCS to obtain records of her treatment. Regardless of the proof of Mother
at least attempting to address this specific issue, she failed to provide proof of her progress
for many other responsibilities. Although she testified that she completed many of her
responsibilities, the judge found that her credibility was an issue.
Furthermore, the facts demonstrate that Mother had a history of being difficult
despite the efforts of others who were trying to help her. After Mother failed her drug
screen in June 2018, Ms. Ventola made several attempts to help Mother enroll in a rehab
facility in both Memphis and Nashville by offering transportation or providing the contact
information for the facility. Despite communicating that she was ready to go to rehab,
Mother failed to follow through with these facilities or did not make herself available when
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transportation arrived for her. In addition to this, Ms. Ventola was never able to see the
inside of Mother’s home because Mother either made herself unavailable or was
incommunicado. The in-home care coordinator also testified that Mother was inconsistent
with communication, had poor follow through with the things she needed to do, and failed
to turn in her paperwork despite constantly being reminded to do so. Throughout this time,
Mother engaged in criminal activity and was charged with several offenses, including
assault, probation violations, and license violations. When Mother expressed that she
wanted a second chance to complete her responsibilities, the first thing she did afterward
was refuse a drug screen and admit that she would not pass.
Despite allowing Mother ample time to straighten out her life, Mother’s situation
had changed very little from the time the child was removed from her legal custody in
2011. Even after the initial permanency plan was created in May 2018, she was difficult,
noncommunicative, and unavailable. During Ms. Ventola’s time as the DCS case manager,
Mother failed to demonstrate anything significant in terms of follow through. Additionally,
it was noted that Mother had “poor follow through” and that “her history of attendance
[was] not great.” The degree of her noncompliance given the amount of time she had to
address her issues was substantial. As such, we affirm the juvenile court’s finding that
DCS met its burden of proof on the ground of substantial noncompliance.
4. Failure to Manifest an Ability & Willingness to Assume Custody or Financial
Responsibility
The final ground for termination at issue on appeal exists 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[.]” Tenn. Code Ann. § 36-1-113(g)(14). For this
statutory ground, two elements are necessary to prove. In re Neveah M., 614 S.W.3d at
674. The first element “places a conjunctive obligation on 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. Accordingly, “clear and convincing proof that a
parent . . . has failed to manifest either ability or willingness” satisfies the first element of
this ground. Id. (citing In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL
3058280, at *13 (Tenn. Ct. App. June 20, 2018)). A parent’s ability to assume custody or
financial responsibility is evaluated based “on the parent’s lifestyle and circumstances.” In
re Zaylee W., No. M2019-00342-COA-R3-PT, 2020 WL 1808614, at *5 (Tenn. Ct. App.
Apr. 9, 2020) (citing In re Ayden S., 2018 WL 2447044, at *7). It is common for parents
to state that they are willing to assume custody or financial responsibility for their children.
However, as we have explained, “[w]hen evaluating willingness, we look for more than
mere words.” In re Jonathan M., No. E2018-00484-COA-R3-PT, 2018 WL 5310750, at
*5 (Tenn. Ct. App. Oct. 26, 2018). The second element requires the petitioner to establish
that “placing the child in the [parent’s] legal and physical custody would pose a risk of
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substantial harm to the physical or psychological welfare of the child[.]” Tenn. Code Ann.
§ 36-1-113(g)(14); see In re Neveah M., 614 S.W.3d at 677.
As we have already established, very little had changed regarding Mother’s situation
since the child was removed from her legal custody in 2011. For a time, it appeared that
Mother had “turned her life around.” After the child was removed from her custody in
May 2011, Mother eventually completed a six-month program with The Next Door in July
2014, which, to her credit, was a significant step toward achieving long-term sobriety.
However, Mother then experienced a great deal of trauma in early 2018 due to the death of
her parents and the subsequent removal of her children. Afterward, Mother explained that
she was “in shock” and just “kind of gave up.” This led to Mother relapsing and testing
positive on a drug screen in June 2018 for some of the same drugs she had used in 2011.
At the time, she was participating in a medication-assisted treatment program at the Rapha
Centre, but she was later discharged after missing twelve of her scheduled appointments.
After several failed attempts to encourage her to enter rehab, Mother finally completed a
30-day program with The Next Door in early 2019. Yet, she then failed to follow through
with the recommended IOP and only attended one session with Bradford Health Services.
Mother tested negative on a drug screen around this time, but it was a drug screen she had
requested. After April 2019, Mother ceased communication with Ms. Ventola for a couple
of months. Ms. Ventola tried to visit Mother at her home, but Mother was never there or
was not communicating with Ms. Ventola.
After the petition for termination was filed, Mother refused to submit to a drug
screen in June 2020 and March 2021, the latter of which she stated was “pointless.” At the
time of the hearing, however, she testified that she could pass a drug screen. Mother’s
cousin offered a letter of support before the hearing, stating that Mother had “worked hard
on her sobriety” despite the stress she had experienced from losing her parents and having
the children taken from her within a short period of time. Nevertheless, we note that
regardless of her efforts, or lack thereof, to achieve sobriety, Mother also engaged in
criminal activity and incurred several charges against her related to drugs. Therefore,
Mother’s lifestyle demonstrated that she lacked the ability to assume custody of the child
and her actions demonstrated that she was unwilling to assume custody of the child. Due
to the environment the child had been in before she was removed, the child carried a lot of
trauma, which affected her ability to eat solid foods and caused her to see things. Since
her time in foster care, the child was doing well and had grown to the point she was ready
to move on her with her life. Given the the fact that Mother failed to address her substance
abuse, which left uncertainty whether the environment with Mother has since changed,
returning the child to Mother’s legal and physical custody would have posed a risk of
substantial harm to the child’s physical and psychological welfare. See Tenn. Code Ann.
§ 36-1-113(g)(14). As such, we affirm the juvenile court’s finding that DCS met its burden
of proof on this ground.
C. Best Interests of the Child
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To review whether termination was in the best interests of the child, we “must
consider nine statutory factors listed in Tennessee Code Annotated § 36-1-113(i).” In re
Gabriella D., 531 S.W.3d 662, 681 (Tenn. 2017). “The relevancy and weight to be given
each factor depends on the unique facts of each case. 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.” In re Audrey S., 182 S.W.3d at 878.
We view the child’s best interests from the child’s perspective rather than the parent’s
perspective. Id. Finally, we “must consider all of the statutory factors, as well as any other
relevant proof any party offers.” In re Gabriella D., 531 S.W.3d at 682. However, “a
finding on each factor is not required.” In re Kaylene J., No. E2019-02122-COA-R3-PT,
2021 WL 2135954, at *18 (Tenn. Ct. App. May 26, 2021); see In re Matthew T., M2015-
00486-COA-R3-PT, 2016 WL 1621076, at *16 (Tenn. Ct. App. April 20, 2016) (citing In
re Dominique L.H., 393 S.W.3d 710, 719 (Tenn. Ct. App. 2012)).
The first statutory factor is “[w]hether the parent . . . 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 . . . [.]” Tenn. Code Ann. § 36-1-113(i)(1). We have already
found that the conditions that led to the child’s removal still exist. Foremost, Mother failed
to address her substance abuse. She engaged in criminal activity and incurred several
charges against her related to drugs. She also failed to make herself available in order to
allow Ms. Ventola to inspect her home to ensure it was safe and stable for the child. We
find that this factor weighs in favor of termination.
The second statutory factor is “[w]hether the parent . . . 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[.]” Tenn. Code Ann.
§ 36-1-113(i)(2). Ms. Ventola went over the initial permanency plan with Mother and
provided her with the DCS form setting forth the criteria for termination of parental rights.
She made several attempts to help Mother enroll in a rehab facility by offering
transportation or providing the contact information for the facility. Mother failed to follow
through with these facilities or did not make herself available when transportation arrived
for her. Ms. Ventola also discussed with Mother the availability of a grant program that
would have provided free mental health treatment for her if she would have just showed
up. The in-home care coordinator testified that Mother missed about half of her
appointments, was inconsistent with communication, had poor follow through with the
things she needed to do, and failed to turn in her paperwork despite constantly being
reminded to do so. Despite the efforts of DCS and others, Mother failed to effect a lasting
adjustment. We find that this factor weighs in favor of termination.
The third statutory factor is “[w]hether the parent . . . has maintained regular
visitation or other contact with the child[.]” Tenn. Code Ann. § 36-1-113(i)(3). As
previously discussed, Mother was subject to a no-contact order, which was due to her
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positive drug screen in June 2018. As previously stated, the no-contact order remained in
place because Mother never adequately addressed her substance abuse. Therefore, at the
time of the hearing, Mother had not had any visitation or other contact with the child in
almost three years. We find that this factor weighs in favor of termination.
The fourth statutory factor is “[w]hether a meaningful relationship has otherwise
been established between the parent . . . and the child[.]” Tenn. Code Ann. § 36-1-
113(i)(4). The child talked about Mother occasionally and loved and missed her. She had
expressed that she would like to be able to know Mother was doing okay and doing what
she was supposed to, even after termination and adoption if possible. However, she was at
a point where she was just ready to move on with her life and wanted to be adopted. The
child’s expectation of potentially having Mother care for her again had diminished
substantially. As a result of Mother’s persistent substance abuse, the no-contact order
remained in place and Mother and the child had not had contact for several years. We find
that this factor weighs in favor of termination.
The fifth statutory factor is “[t]he effect a change of caretakers and physical
environment is likely to have on the child’s emotional, psychological and medical
condition[.]” Tenn. Code Ann. § 36-1-113(i)(5). There were many problems when the
child first arrived at her foster home, but she was doing well at the time of the hearing. She
had been in foster home for approximately three years, expressed to the foster mother that
she wanted to be adopted, and looked forward to adoption. She loved and missed Mother,
but she had made peace with the fact that she might not be reunited with her. She had
accepted the way things were and understood that she needed stability. We find that this
factor weighs in favor of termination.
The sixth statutory factor is “[w]hether the parent . . . , or other person residing with
the parent . . . , has shown brutality, physical, sexual, emotional or psychological abuse, or
neglect toward the child, or another child or adult in the family or household[.]” Tenn.
Code Ann. § 36-1-113(i)(6). Both of Mother’s children were adjudicated dependent and
neglected in June 2018. With respect to Destiny, it was believed that she had trauma due
to the environment she was in with Mother. When she entered foster care, she would not
eat solid foods for a time, was seeing things, and “had a lot of stuff going on.” We find
that this factor weighs in favor of termination.
The seventh statutory factor is “[w]hether the physical environment of the parent’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 . . . consistently unable to care for the child in a safe and stable
manner[.]” Tenn. Code Ann. § 36-1-113(i)(7). Ms. Ventola was never able to inspect
Mother’s home because Mother made herself unavailable or could not be contacted. After
several years, Mother failed to address her substance abuse and continued to incur criminal
charges, which left uncertainty whether the environment with Mother has changed since
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the child was removed. Therefore, we find that this factor weighs in favor of termination.
The eighth statutory factor is “[w]hether the parent’s . . . mental and/or emotional
status would be detrimental to the child[ren] or prevent the parent . . . from effectively
providing safe and stable care and supervision for the child[.]” Tenn. Code Ann. § 36-1-
113(i)(8). Mother had experienced a lot of trauma with the death of her parents and with
her children’s removal, which was something she would need to address in order to
properly care for the child in the future. These events led to her relapsing and testing
positive on a drug screen in June 2018. Afterward, she was required to complete a mental
health assessment, but she never provided proof of that assessment to Ms. Ventola. We
find that this factor weighs in favor of termination.
The ninth statutory factor is “[w]hether the parent . . . 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)(9). In its appellate brief, DCS admits that it
did not offer proof to establish whether Mother paid child support. However, it noted that
there was a document in the record, which was included in a collection of documents
submitted by Mother, that indicated she owed past-due child support. Given the limited
evidence in the record regarding child support, we find that this factor is neutral.
After reviewing the best interest factors, we conclude that the juvenile court
properly determined that termination of Mother’s parental rights was in the child’s best
interests.
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the juvenile court. Costs
of this appeal are taxed to the appellant, Felicia D. C. P., for which execution may issue if
necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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