# In Re Connor B.

> Court of Appeals of Tennessee · July 6, 2022

URL: https://www.frixlaw.com/law-library/cases/6498219

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** July 6, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge W. Neal McBrayer
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6498219

## How later opinions describe it (automated extraction)

- holding mother’s failure to attempt to fulfill the court’s conditions constituted a willful failure to visit
- holding “that the version of the statute in effect at the time of the [parental termination] petition’s filing controls this action”

## Opinion text

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
___________________________________

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.

8
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.

9
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
12
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6498219. Public record. Not legal advice.