In Re Connor B.

07/06/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 1, 2022

IN RE CONNOR B.

Appeal from the Chancery Court for Lincoln County

No. AD392 J.B. Cox, Chancellor

___________________________________

No. M2021-00700-COA-R3-PT

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This is the second appeal involving the termination of a mother’s parental rights to her

child. On remand after the first appeal, the trial court determined there were six statutory

grounds for terminating the mother’s parental rights and that termination was in the child’s

best interest. We conclude that the evidence was less than clear and convincing as to three

of the grounds. But the record contains clear and convincing evidence to support the other

grounds. The evidence is also clear and convincing that termination of the mother’s

parental rights is in the child’s best interest. So we affirm.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and THOMAS R. FRIERSON II, J., joined.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Virginia B.

Karla D. Ogle, Fayetteville, Tennessee, for the appellees, Taylor A. and Robert A.

OPINION

I.

A.

In April 2017, a juvenile court awarded Robert A. and his wife, Taylor A. (together

“Petitioners”), legal custody of Robert A.’s half-brother, Connor B.1 This followed the

1

The child’s name is spelled both “Conner” and “Connor” in the record. Because our prior opinion

used “Connor,” we do the same.

filing of a petition alleging that the child was dependent and neglected in the care of his

mother, Virginia B. (“Mother”). In its adjudicatory order, the juvenile court found, among

other things, that the child, who was just shy of four years old, had serious dental problems.

The child’s teeth were black, and “[i]t [wa]s clear the child ha[d] not received needed dental

care while in the care of [Mother].” The court also noted that the child had “a strange

affection for smokeless tobacco (dip)” that could have only been developed while in

Mother’s care. Mother had recently been convicted of drug possession. And Mother

admitted that “she would fail a hair follicle drug test for methamphetamine, Lortabs, and

Xanax,” although she claimed not to have “used methamphetamine in about a year.”

On June 11, 2018, Petitioners petitioned to terminate Mother’s parental rights.2 As

grounds for termination, they alleged: abandonment by failure to provide a suitable home;

abandonment by failure to visit; abandonment by failure to support; persistence of

conditions; and wanton disregard.

At first, Mother did not file a response to the petition. In re Connor B., 603 S.W.3d

773, 776 (Tenn. Ct. App. 2020). And Petitioners sought a default judgment against her.

Id. In response, Mother, through counsel, filed an answer, but Mother did not sign it as

required by Tennessee Code Annotated § 36-1-117(o) (Supp. 2018). Id. at 777. Even after

the trial court admonished Mother to cooperate with her counsel and to file an answer in

compliance with the statute, Mother failed to comply. Id. So the court then entered a

default judgment against Mother. Id.

The trial court also held a hearing in which only Petitioners, their counsel, and the

guardian ad litem were present. Id. Following the hearing, the court entered a separate

order terminating Mother’s parental rights. Id.

On appeal by Mother, we held that the trial court properly granted Petitioners a

default judgment. Id. at 784. But we vacated the termination of Mother’s parental rights

because “[n]o transcript of the evidence [wa]s contained in the record[ ] and the statement

of the evidence approved by the trial court d[id] not adequately convey a complete account

of the evidence presented during the termination hearing.” Id. at 785-86. We remanded

the case for a new evidentiary hearing on both the grounds for terminating Mother’s

parental rights and on the child’s best interest. Id. at 786.

B.

On remand, the trial court heard testimony from Petitioners, Mother, and the

manager of the halfway house where Mother lived. Petitioners testified to what prompted

their dependency and neglect petition and the child’s condition when he came into their

2

Petitioners also sought to terminate the parental rights of the child’s father. Because the child’s

father has not appealed, we focus on the facts as relevant to Mother.

2

home. Taylor A. described seeing photographs in November 2016 of the child with a

tobacco can in his back pocket and drinking beer. Petitioners were also concerned that

Mother was still breastfeeding the child while using drugs. They could not find Mother or

the child at Mother’s last known address. So they began searching for them. After some

effort, Mother and the child were found. And Petitioners filed the dependency and neglect

petition to gain temporary custody. Connor began living with Petitioners in early

December 2016.

When Connor first came to live with Petitioners, he had bronchitis and a double ear

infection. His teeth were rotted up to the gumline. Taylor A. described the child’s two

front teeth as “like very thin toothpicks.” The child had “very puffy eyes, a shaved head,

and he was always hungry.” Robert A. testified that Connor was malnourished and his

clothes were loose-fitting. He “just overall looked a little sickly.”

Connor was also very, very aggressive. He used curse words, raised his middle

finger, and, at one point, choked Petitioners’ one-year-old son. Connor also had nightmares

and both wet and soiled the bed. Connor started therapy, but he would shut down and

refuse to participate in the sessions. It took about a year and a half for Connor to overcome

these issues.

Petitioners also testified to Connor’s current physical and emotional state and

Mother’s involvement with her child since the juvenile court granted Petitioners custody.

An oral surgeon pulled or capped and crowned the child’s rotten teeth. And the child’s

adult teeth were coming in healthily. According to Robert A., Connor was now one of the

biggest kids his age with beautiful front teeth and a nice haircut.

Connor calls Taylor A. “Mama” and Robert A. “Dad.” And the child relates to

Petitioners’ son as a brother. Petitioners want to adopt Connor, which was their intention

from the beginning.

Mother’s last contact with Connor came in January 2017. The juvenile court

initially granted Mother visitation every other weekend from Friday at 6:00 p.m. until

Sunday at 6:00 p.m. But, as part of its dispositional order entered on April 11, 2017, the

court granted an injunction at the request of the Tennessee Department of Children’s

Services prohibiting Mother from having contact with the child. See TENN. R. JUV. P.

108(d). The court found that Mother had made no progress with services and, “in fact,

[Mother] ha[d] been arrested since the last court date for violation of probation.” Mother

also had not participated in drug treatment or counseling as previously ordered.

Despite ordering Mother and the child’s father to pay Petitioners $50 a week in child

support, Petitioners testified that they received no support payments from Mother. They

did receive a check of approximately $1,200, which Mother acknowledged had been taken

3

from an IRS payment. Petitioners could not recall the date they received the check.

Taylor A. also testified that Mother never sent any gifts to Connor.

Mother corroborated some of Petitioners’ testimony while disputing other points.

She admitted that, when Connor was removed, he had cavities under his two front teeth

and that those teeth were “discolored.” Mother claimed that she was unaware that her child

was using tobacco. And, contrary to the juvenile court’s finding, she blamed the child’s

use of tobacco on his father.

She denied that the child exhibited the other behaviors described by Petitioners,

stating that “[h]e was all the way potty trained when [sic] the last time I s[aw] him.” Mother

surmised that it was the trauma of being removed from her care that might have caused the

child’s behaviors. Still Mother acknowledged that she was breastfeeding Connor when he

was removed and that she “had tried once meth and Valium” during that period. Mother

denied being a drug user. She also conceded that Connor would have witnessed fighting

between her and Connor’s father.

Mother admitted that her last contact with her child was in January 2017. She had

not attempted to call because of the juvenile court’s order prohibiting contact. And she

had made no effort to seek revision of the court’s order. She had also not sought visitation

from any court. She attributed that failure to being in prison.

As for support, Mother claimed that she had made one or two support payments in

addition to what was intercepted from the IRS. She explained that she was only required

to pay a total of $1,800 in child support and that she “ha[d] paid $1,800, which [wa]s the

required amount.”

Mother also testified about her current circumstances. Since the petition to

terminate parental rights was filed, Mother pleaded guilty to theft and forgery charges. She

was incarcerated for approximately a year and a half. After her release in November 2020,

she went to live in a halfway house. But she was “discharged” because she failed to return

on time after being issued a pass to go to court. In January 2021, she moved to a halfway

house in Nashville where she was currently living.

By the time of trial, Mother had been in the halfway house just shy of four months.

She had started taking online college courses, studying medical healthcare, healthcare

administration, and medical billing. Mother claimed to have “an A average” in her courses.

Both Mother and the manager of the halfway house testified that Mother was also

participating in Narcotics Anonymous and Adult Children of Alcoholics, a program that

helps participants heal from childhood trauma. Mother was drug tested monthly by the

halfway house, and she had not failed a test.

4

Mother received mental health care monthly. She suffered from depression,

anxiety, and post-traumatic stress disorder. And she took prescribed medications for those

issues.

Mother did not have a job, although she was searching for one. She was

participating in Project Return, which aids felons with job readiness. As the halfway house

manager explained, Project Return “either get[s] you a job or help[s] you find one.” In the

meantime, Mother was receiving some income. But the manager was unable to identify

the source. The manager testified that Mother was current on her monthly $500 rent.

Mother conceded that she was not ready to take custody of her child. Among other

issues, she had signed a contract to stay at the halfway house for a year. The manager

testified that visitation by children was permitted at the halfway house and that there was

space in the basement for that purpose. But Mother would not be able to have full custody

of a child during the stay. Instead, Mother proposed that she be slowly integrated back into

Connor’s life, starting with visitation. Mother thought she would be ready to assume

custody of the child within a year. And the manager testified that she could assist Mother

with finding housing once she had custody.

Following the evidentiary hearing, the trial court again terminated Mother’s parental

rights. The court concluded that there was clear and convincing evidence to support six

grounds for terminating: abandonment by failure to visit; abandonment by failure to

support; abandonment by failure to provide a suitable home; abandonment by wanton

disregard; persistent conditions; and failure to manifest an ability and willingness to

assume custody or financial responsibility. The trial court also concluded there was clear

and convincing evidence that termination of Mother’s parental rights was in the child’s

best interest.

II.

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

to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651

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

921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547

(Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at 250.

The government’s interest in the welfare of a child justifies interference with a parent’s

constitutional rights in certain circumstances. See Tenn. Code Ann. § 36-1-113(g) (2021).

Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures

for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).

Parties seeking termination of parental rights must first prove the existence of at least one

of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-113(g).

Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for termination are

5

shown, they then must prove that terminating parental rights is in the child’s best interest.

Id. § 36-1-113(c)(2).

Because of the constitutional dimension of the rights at stake in a termination

proceeding, parties seeking to terminate parental rights must prove both the grounds and

the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d

586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,

215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)).

This heightened burden of proof serves “to minimize the possibility of erroneous decisions

that result in an unwarranted termination of or interference with these rights.” Id. “Clear

and convincing evidence” leaves “no serious or substantial doubt about the correctness of

the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896,

901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the fact-finder’s mind

regarding the truth of the facts sought to be established. In re Bernard T., 319 S.W.3d at

596.

We review the trial court’s findings of fact “de novo on the record, with a

presumption of correctness of the findings, unless the preponderance of the evidence is

otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); TENN. R. APP. P. 13(d).

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, provide clear and

convincing evidence that supports all the elements of the termination claim.” In re Bernard

T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de novo with no

presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

A.

On appeal, Mother contends that Petitioners failed to prove the grounds for

termination of her parental rights and Connor’s best interests by clear and convincing

evidence. In examining this contention, we apply the versions of the parental termination

statutes in effect on the date the petition to terminate parental rights was filed. See In re

Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017) (holding “that the version of the

statute in effect at the time of the [parental termination] petition’s filing controls this

action”).

1. Abandonment

One of the statutory grounds for termination of parental rights is “[a]bandonment

by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). The parental termination statutes

provide alternative definitions for “abandonment.” Id. § 36-1-102(1)(A) (2017).

6

a. Abandonment by Failure to Visit and Support

One of the definitions of “abandonment” includes “the willful failure to visit, to

support, or to make reasonable payments toward the support of the child during the four-

month period preceding the filing of the petition to terminate parental rights.”3 In re

Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013); see also Tenn. Code Ann. § 36-

1-102(1)(A)(i) (2017). Here, because the petition to terminate parental rights was filed on

June 11, 2018, the relevant four-month period is February 11, 2018, to June 10, 2018, the

day before the petition was filed. See In re Jacob C.H., No. E2013-00587-COA-R3-PT,

2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (concluding that the day before the

petition is filed is the last day in the relevant four-month period).

To terminate parental rights on the ground of abandonment, the court must find the

abandonment to be willful. While the failure to visit or support presents a fact question,

whether that failure is willful presents a question of law. In re Adoption of Angela E., 402

S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d at 810). A “[f]ailure to visit

or support a child is ‘willful’ when a person is aware of his or her duty to visit or support,

has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not

doing so.” In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).

i. Willful Failure to Visit

The trial court concluded that, during the four months preceding the petition to

terminate, Mother had failed to visit the child. This conclusion was primarily based on

Mother’s admission that she had not visited or inquired about the child since his removal

in 2017 or filed a petition to regain custody of the child during that time.

Mother argues that her failure to visit was not willful because of the juvenile court’s

no contact order. Our supreme court has stated that “a parent who attempt[s] to visit and

maintain relations with his child, but [i]s thwarted by the acts of others and circumstances

beyond his control, did not willfully abandon his child.” In re Adoption of A.M.H., 215

S.W.3d at 810.

But an order suspending a parent’s visitation rights does not “preclude a finding that

[a parent] willfully failed to visit.” In re Adoption of Angela E., 402 S.W.3d at 642. Where,

as here, the order includes conditions that would allow the parent to resume visitation, our

courts have consistently held that a parent who makes no attempt to meet the conditions

and seek visitation has abandoned the child. See, e.g., In re Mac L., No. E2016-00674-

3

As of July 1, 2018, parties seeking termination of parental rights no longer have to prove a parent’s

failure to support or to visit was willful. 2018 Tenn. Pub. Acts 1088. Under the current version of the

statute, the parent or guardian must raise and prove the defense of “absence of willfulness.” Tenn. Code

Ann. § 36-1-102(1)(I) (2021).

7

COA-R3-PT, 2016 WL 6876498, at *6 (Tenn. Ct. App. Nov. 22, 2016) (holding that

father’s failure to fulfill permanency plan steps to regain visitation was willful); In re Riley

C., No. M2015-00541-COA-R3-PT, 2016 WL 626058, at *7 (Tenn. Ct. App. Feb. 12,

2016) (holding that father abandoned his child by failing to take any affirmative steps to

regain visitation during the relevant period); In re Jaylah W., 486 S.W.3d 537, 552 (Tenn.

Ct. App. 2015) (holding mother’s failure to attempt to fulfill the court’s conditions

constituted a willful failure to visit); In re Donald C., No. M2014-01327-COA-R3-PT,

2014 WL 7465684, at *6 (Tenn. Ct. App. Dec. 30, 2014) (holding mother’s choice to not

complete the required tasks to resume visitation constituted abandonment); 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) (“Father’s choice in refusing to cooperate in this regard

constituted a willful decision to discontinue visiting his son.”).

The trial court entered a no-contact order because Mother had made no progress

with services and had not participated in drug treatment or counseling. The order

concluded with a statement that Mother would be able to petition the court for a change in

visitation. Mother admitted at the evidentiary hearing that she had made no attempts to

petition the trial court for visitation. Her voluntary failure to act was willful. See In re

Audrey S., 182 S.W.3d at 863.

Based on this record, we conclude that the evidence was clear and convincing that

Mother abandoned her child by willful failure to visit during the four months preceding the

filing of the petition.

ii. Willful Failure to Support

The trial court also found that Mother had abandoned Connor by failure to support

based on the testimony that Mother had not made any support payments to Petitioners. The

financial ability or capacity of a parent to pay support must be considered in determining

willfulness. A parent’s failure to support a child is not willful if the parent is financially

unable to do so. In re Aaron E., No. M2014-00125-COA-R3-PT, 2014 WL 3844784, at

*6 (Tenn. Ct. App. Aug. 4, 2014) (citing Pierce v. Bechtold, 448 S.W.2d 425, 429 (Tenn.

Ct. App. 1969)). In making a willfulness determination, the court must review a parent’s

means, which includes both her income and available resources for purposes of support.

See In re Adoption of Angela E., 402 S.W.3d at 641.

While the court accepted Petitioners’ testimony that Mother failed to provide

Connor with the court-ordered support during the relevant time period, there was scant

evidence introduced regarding her ability to do so. Because there was insufficient proof of

Mother’s income and expenses, we conclude that the evidence was less than clear and

convincing that Mother’s failure to pay support was willful.

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b. Failure to Provide a Suitable Home

A child has been abandoned under the second statutory definition of abandonment

if the child has been removed from the home of a parent as a result of a petition filed in

juvenile court, which ultimately results in a finding that the child was dependent and

neglected, “the child was placed in the custody of the [D]epartment [of Children’s

Services] or a licensed child-placing agency;” and

for a period of four (4) months following the removal, the department or

agency made reasonable efforts to assist the parent . . . to establish a suitable

home for the child, but . . . the parent . . . ha[s] made no reasonable efforts to

provide a suitable home and ha[s] demonstrated a lack of concern for the

child to such a degree that it appears unlikely that [the parent] will be able to

provide a suitable home for the child at an early date.

Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2017). The department’s or the agency’s efforts to

assist the parent “may be found to be reasonable if such efforts exceed the efforts of the

parent . . . toward the same goal.” Id.

This Court has held that this ground does not apply to “a private action . . . that

d[oes] not involve [the Department of Children’s Services] or a licensed child-placing

agency.” In re Jayden B.T., E2014-00715-COA-R3-PT, 2015 WL 3876573, at *9 (Tenn.

Ct. App. June, 23, 2015), perm. app. denied, (Tenn. Sept. 25, 2015); see also In re

Steevie A., W2016-02577-COA-R3-PT, 2017 WL 6403887, at *10 (Tenn. Ct. App. Dec.

14, 2017), perm. app. denied, (Tenn. Mar. 9, 2018) (questioning whether ground applied

when custody was transferred from the department to legal guardians shortly after

removal); In re Jarrell X.W., E2012-00380-COA-R3-PT, 2012 WL 6596157, at *10 (Tenn.

Ct. App. Dec. 18, 2012) (concluding that statute did not apply when child was in the

department’s custody for only a few weeks before custody was transferred to guardian).

Here, Connor was never in the custody of the Department of Children’s Services.

Petitioners asked that Connor be determined dependent and neglected. And he has been in

their custody since his removal from Mother. And, while the juvenile court referenced

Mother’s refusal to avail herself of services in its 2017 final order granting Petitioners

custody, the record includes no testimony from a representative of the Department of

Children’s Services or any other witness detailing services offered to assist Mother with

finding a suitable home after Connor was taken from her custody.

We conclude that the ground of abandonment by failure to provide a suitable home

was not applicable. But, even assuming that the ground was applicable, we conclude the

evidence was less than clear and convincing that Mother abandoned her child by failure to

provide a suitable home.

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c. Wanton Disregard for the Welfare of the Child

The trial court also determined that the ground of abandonment by wanton disregard

was demonstrated by the evidence. At the time the petition to terminate was filed,4 the

fourth definition of “abandonment” applied in cases in which the parent is incarcerated

when the petition to terminate is filed or had been incarcerated within the four-month

period preceding the filing of the petition and “contain[ed] two distinct tests for

abandonment.” Tenn. Code Ann. § 36-1-102(1)(A)(iv); In re Audrey S., 182 S.W.3d at

865.

The proof presented at the evidentiary hearing does not establish that Mother was

incarcerated at the time the petition to terminate was filed or for part of the four months

preceding the filing of the petition to terminate. There was a great deal of testimony about

Mother’s extensive criminal history and her time in jail. But the proof only pinpoints the

dates for one period of incarceration: between August 2018 and November 2020. This

period fell after the petition to terminate was filed.

2. Persistence of Conditions

The trial court also found termination of Mother’s parental rights appropriate under

Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly referred to as

“persistence of conditions.” See In re Audrey S., 182 S.W.3d at 871. This ground focuses

“on the results of the parent’s efforts at improvement rather than the mere fact that he or

she had made them.” Id. at 874. The goal is to avoid having a child in foster care for a

time longer than reasonable for the parent to demonstrate the ability to provide a safe and

caring environment for the child. In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App.

2010), overruled on other grounds by In re Kaliyah S., 455 S.W.3d at 555. Thus, the

question before the court is “the likelihood that the child can be safely returned to the

custody of the [parent], not whether the child can safely remain in foster care.” In re

K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July

21, 2000).

There are several elements to the ground of persistence of conditions. When the

termination petition was filed, the ground applied as a basis to terminate parental rights

when:

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

of a court for a period of six (6) months and:

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

all reasonable probability would cause the child to be subjected to further

4

This ground for termination was rewritten in 2020. 2020 Tenn. Pub. Acts 43.

10

abuse or neglect and that, therefore, prevent the child’s safe return to the care

of the parent . . . still persist;

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

date so that the child can be safely returned to the parent . . . in the near future;

and

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

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

permanent home[.]

Tenn. Code Ann. § 36-1-113(g)(3).5 Each of the statutory elements must be established by

clear and convincing evidence. In re Valentine, 79 S.W.3d at 550.

This record contains clear and convincing evidence that the conditions preventing

the child’s safe return persist. Mother lacked an appropriate home at the evidentiary

hearing. She lived in a halfway house, which was a mandated component of her release

from prison. But Connor could not live in the halfway house with Mother.

We further conclude that the evidence was clear and convincing that there was little

likelihood that these conditions would be remedied in the near future. Mother believed

that she needed just another year to be able to take full custody of Connor. She had made

some progress on her substance abuse and mental health issues. And she was taking steps

toward educating herself and gaining employment. But she took these steps only after the

filing of the petition to terminate.

Finally, we conclude that continuation of the parent and child relationship greatly

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

home. Connor had been living with Petitioners for over four years. He was bonded with

Petitioners, who provide a safe and stable home, and their son. And Petitioners want to

adopt him.

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

Responsibility

The trial court found termination of parental rights appropriate under Tennessee

Code Annotated § 36-1-113(g)(14). But this ground was not alleged against Mother in the

petition to terminate.

5

This ground for termination was revised in 2018, effective shortly after Petitioners sought to

terminate Mother’s parental rights. 2018 Tenn. Pub. Acts 1088, 1089, 1104.

11

a. Notice and Implied Consent

Parental rights can only be terminated on grounds that were alleged in the

termination petition. See In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). Notice

is “a fundamental component of due process.” In re W.B., M2004-00999-COA-R3-PT,

2005 WL 1021618, at *13 (Tenn. Ct. App. Apr. 29, 2005) (citing Mullane v. Cent. Hanover

Bank & Tr. Co., 339 U.S. 306, 314 (1950); State v. Pearson, 858 S.W.2d 879, 884 (Tenn.

1993)). In the context of parental termination, due process requires that the parent be

notified of the alleged grounds for termination. In re Jeremiah N., No. E2016-00371-COA-

R3-PT, 2017 WL 1655612, at *8 (Tenn. Ct. App. May 2, 2017).

This ground for termination was not pleaded. Even so, an unpleaded ground for

termination may be tried by implied consent. In re Adoption of Angela E., 402 S.W.3d at

640 n.3; In re Alysia S., 460 S.W.3d 536, 564 (Tenn. Ct. App. 2014). We will find implied

consent when a parent “knew or should reasonably have known of the evidence relating to

the [unpleaded ground], did not object to this evidence, and was not prejudiced thereby.”

Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 890 (Tenn. 1980).

We conclude that the ground of failure to manifest an ability and willingness to

assume custody or financial responsibility was tried by implied consent. Mother did not

object when Petitioners announced that they were proceeding against Mother on this

ground. See In re Anari E., No. M2020-01051-COA-R3-PT, 2021 WL 1828500, at *14

(Tenn. Ct. App. May 7, 2021) (finding implied consent when father did not object to

petitioner’s stated intent to proceed on unpleaded grounds); In re Jeremiah N., 2017 WL

1655612, at *10 (finding unpleaded ground was tried by implied consent when father had

notice “from at least the opening statement”). Nor did she voice any objections when

Petitioners presented evidence in support of this ground. See In re Allyson P., No. E2019-

01606-COA-R3-PT, 2020 WL 3317318, at *9 (Tenn. Ct. App. June 17, 2020) (noting that

“at no point during the trial did Mother object to any testimony or other proof offered with

respect to [the unpleaded] ground”).

b. Proof of the Ground

Under this ground, a parent’s rights may be terminated if he or she

[1] 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 [2] 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). Both prongs must be established by clear and

convincing evidence. In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020). As to the first

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prong, the petitioner may prove that a parent is either unable or unwilling to “assume legal

and physical custody or financial responsibility of the child.” Id. at 677.

We conclude that the evidence is clear and convincing that Mother was unable to

assume custody and financial responsibility of her child. Mother had not seen Connor since

January 2017. She had made no effort to petition any court to establish visitation after the

juvenile court prohibited her from seeing him. And Mother conceded she was not ready

for custody as of the date of the hearing.

The proof also showed that Mother had little understanding of what it would take to

assume financial responsibility of her child. She thought that she had fully satisfied her

child support obligation by the payment of $1,800, some of which had been taken from a

tax refund. And the record reflects almost no employment history for Mother. Mother

claimed that she had previous jobs, including as a real estate agent, and that she had owned

her own business. Taylor A. recalled that Mother had previously testified to working at a

factory of some sort. But Taylor A. did not remember Mother having any other jobs.

From February to June 2018, Mother worked for room and board as an in-home

caretaker. And after the petition to terminate was filed, she worked as a confidential

informant, earning $1,000. During other periods after Connor was removed from her

custody, Mother was incarcerated. Mother was now a full-time student. When asked about

her job prospects after she finished her studies, Mother thought, given her past criminal

charges, she “will probably most definitely have to find a just whatever I can take [for]

employment.”

The evidence is equally clear and convincing that placing the child in Mother’s

custody would pose a risk of substantial harm to his psychological welfare. Connor has

not seen Mother since January 2017. Petitioners testified that Connor did not remember

Mother. Returning children to the custody of a virtual stranger carries a risk of substantial

harm. See In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *17

(Tenn. Ct. App. July 22, 2020), perm. app. denied, (Tenn. 2020) (reasoning that returning

the child to a “virtual stranger” in light of her strong bond with her current caregivers would

constitute substantial harm). Even more concerning was how Mother failed to

acknowledge her child’s physical condition at removal and her own responsibility. In her

testimony, Mother downplayed Connor’s condition as well as her past drug use. And she

disputed being responsible for the child’s use of tobacco. Her testimony contradicted the

findings of the juvenile court and suggested she never understood the risk of substantial

physical harm posed by her own actions.

B.

Because “[n]ot all parental misconduct is irredeemable,” our parental termination

“statutes recognize the possibility that terminating an unfit parent’s parental rights is not

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always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.

2005). So even if a statutory ground for termination is established by clear and convincing

evidence, we must also determine whether termination of parental rights is in the child’s

best interests. Tennessee Code Annotated § 36-1-113(i) lists nine factors that courts must

consider in making a best interest analysis.6 The “factors are illustrative, not exclusive,

and any party to the termination proceeding is free to offer proof of any other factor relevant

to the best interests analysis.” In re Gabriella D., 531 S.W.3d 662, 681 (Tenn. 2017). In

reaching a decision, “the court must consider all of the statutory factors, as well as any

other relevant proof any party offers.” Id. at 682. The best interest analysis is a fact-

intensive inquiry, and each case is unique. White v. Moody, 171 S.W.3d 187, 193-94 (Tenn.

Ct. App. 2004).

The focus of this analysis is on what is best for the child, not what is best for the

parent. In re Marr, 194 S.W.3d at 499. The analysis should consider “the impact on the

child of a decision that has the legal effect of reducing the parent to the role of a complete

stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn.

Ct. App. June 26, 2006). Although “[f]acts relevant to a child’s best interests need only be

established by a preponderance of the evidence, . . . the combined weight of the proven

facts [must] amount[ ] to clear and convincing evidence that termination is in the child’s

best interests.” In re Carrington H., 483 S.W.3d 507, 535 (Tenn. 2016).

After considering the statutory factors, the trial court determined that seven factors

applied and concluded that termination of Mother’s parental rights was in Connor’s best

interests. The first two statutory factors, which were found applicable by the court, look at

the parent’s current lifestyle and living conditions. The first factor focuses on whether 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 [parent’s] home.” Tenn. Code Ann. § 36-

1-113(i)(1). The second factor considers the potential for lasting change. See id. § 36-1-

113(i)(2) (asking “[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”). At the time of the evidentiary

hearing, Mother was living in a halfway house after spending 18 months in prison. The

halfway house did not permit a child to live full-time with a resident. Mother had made

some changes. But they had been of short duration after years of drug use, criminal

activity, and incarceration. She had yet to demonstrate that the changes would be lasting.

The court also applied the third and fourth factors, which concern the parent’s

relationship with the child. The third factor focuses on the consistency of visitation. See

id. § 36-1-113(i)(3). The fourth factor considers “[w]hether a meaningful relationship has

otherwise been established between the parent . . . and the child.” Id. § 36-1-113(i)(4).

6

Effective April 22, 2021, a court has a twenty-factor list to consider in determining a child’s best

interest. 2021 Tenn. Pub. Acts 509-11.

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The court found, and Mother admitted, that she had not visited Connor since early 2017.

Mother made no attempts to regain visitation through the court system. And, at the time

of the evidentiary hearing, Mother had not seen the child in four years. Petitioners testified

that the child did not remember her. There was no evidence of a relationship between

Mother and the child.

The fifth factor evaluates the effect a change in caregivers would have on the child’s

emotional, psychological, and medical condition. Id. § 36-1-113(i)(5). The trial court

found a change in caregivers would be detrimental to Connor given Mother’s absence from

his life.

The court also found the seventh factor applicable. That factor focuses on the

parent’s home environment and ability to be a safe and stable caregiver. See id. § 36-1-

113(i)(7) (“Whether 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 [intoxicants]

as may render the parent . . . consistently unable to care for the child in a safe and stable

manner.”). The court found that Mother was still residing in a halfway house and that she

was unable to have full-time custody of Connor until she completed her stay. The stay was

contracted to last until at least until January 2022.

The ninth factor looks at the parent’s child support history. See id. § 36-1-113(i)(9).

The trial court found that Mother had not voluntarily paid the court-ordered child support

to Petitioners. The evidence does not preponderate against this finding.

We agree with the conclusion of the trial court. The combined weight of the proven

facts amounted to clear and convincing evidence that termination was in Connor’s best

interests.

III.

The record contains clear and convincing evidence to support terminating Mother’s

parental rights based on three of the six grounds relied on by the trial court: abandonment

by failure to visit; persistence of conditions; and failure to manifest an ability and

willingness to assume custody or financial responsibility of her child. The record also

contains clear and convincing evidence that termination is in the child’s best interest. So

we affirm the judgment terminating Mother’s parental rights.

s/ W. Neal McBrayer

W. NEAL MCBRAYER, JUDGE

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