noting that “[i]mplied consent hinges on the issues that were actually litigated by the parties”
How later courts described this case
- noting that “[i]mplied consent hinges on the issues that were actually litigated by the parties”
- “A trial court’s failure to comply with Tenn. Code Ann. § 36-1-113(k) fatally undermines the validity of a termination order.”
Written by the judges who cited it.
The opinion
12/04/2023
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 1, 2023
IN RE: GLENN B.1 ET AL
Appeal from the Juvenile Court for Smith County
No. 2022-JV-125 Branden Bellar, Judge
___________________________________
No. M2023-00096-COA-R3-PT
___________________________________
Mother appeals the termination of her parental rights to three of her children. The trial
court found six grounds for termination: abandonment by failure to visit, abandonment by
failure to support, abandonment by failure to provide a suitable home, substantial
noncompliance with a permanency plan, persistent conditions, and failure to manifest an
ability and willingness to assume custody. The trial court also found termination of
Mother’s parental rights to be in the best interests of the children. Mother raises procedural
and substantive challenges to the trial court’s decision. We affirm the judgment of the trial
court terminating Mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
JEFFREY USMAN, J., delivered the opinion of the court, in which JOHN W. MCCLARTY and
CARMA DENNIS MCGEE, JJ., joined.
Jacquelyn M. Scott, Carthage, Tennessee, for the appellant, Erica B.
Whitney A. Mullinax, Carthage, Tennessee, Guardian ad Litem for the minor Children,
Glenn B., Alexander B., and Ruth B.
Jonathan Skrmetti, Attorney General and Reporter; and Jordan K. Crews, Senior Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
1
“In cases involving the termination of parental rights, it is this Court’s policy to remove the full
names of children and other parties, to protect their identities.” In re Chayson D., No. E2022-00718-COA-
R3-PT, 2023 WL 3451538, at *1 n.1 (Tenn. Ct. App. May 15, 2023).
OPINION
I.
This appeal concerns the parental rights of Erica B. (Mother) to three of her
children:2 Glenn B., Alexander B., and Ruth B. (collectively “the Children”). On the date
of trial, the Children were seven, five, and four years old respectively.
The case began on August 12, 2020, when the Tennessee Department of Children’s
Services (DCS) received a referral. The referrer alleged that “all of the adults in the home,
with the exception of the maternal grandmother . . . used methamphetamine” and that an
“unknown individual” overdosed and died, all in the presence of the Children. Police
arrived the next day and interviewed Mother. According to DCS, Mother admitted during
this interview to heroin use and acknowledged the death of the unknown individual. A
drug screen indicated that Mother was actually using “opiates and oxycodone.”
DCS facilitated a child and family team meeting on August 18, 2020. During this
meeting, DCS sought to determine the identity of the Children’s father because no father
signed any of their birth certificates. Mother explained that her husband at the time, Larry
S., who is also a registered sex offender, maintained legal rights to the Children. However,
she also suggested that two other men, Nathan S. and William B., were putative fathers.3
All three of these men executed valid surrender forms, relinquishing any parental rights
they previously had to the Children. Thus, only Mother’s parental rights are in dispute.
On August 21, 2020, DCS filed two documents in the Smith County Juvenile Court:
a motion for an emergency protective order and a dependency and neglect petition.
Regarding the request for an emergency protective order, DCS alleged that the Children
were likely dependent and neglected and could face “severe and irreparable harm” if they
remained in Mother’s immediate custody. The trial court granted that motion. Madison
Coen, one of the DCS family services workers who had been assigned to Mother’s case,
has stated that this began the “noncustodial case,” meaning the Children were placed with
family members instead of DCS assuming custody.
Meanwhile, in its dependency and neglect petition, DCS recounted most of the same
facts outlined above, stated that a dependency and neglect adjudication would be in the
Children’s best interest, and argued that the Children faced a real risk of harm if not
removed from Mother’s custody. The court found that the Children to be dependent and
neglected on December 22, 2020. In the same order, however, the trial court granted
2
Mother’s fourth child is not identified in the termination petition.
3
DNA test results indicate that Nathan S. was very likely the biological father of at least two of the
Children.
-2-
Mother a trial home visit, which would maximize her time with the Children.
It appears that the Children lived with Mother for a significant period of time
between December 2020 and April 2021, though the record contains irregularities.4
Heather Huffines of DCS took over Mother’s case on February 5th, and she recounted all
of her efforts to preserve the familial relationship between Mother and the Children. Ms.
Huffines explained that she began revising her proposed permanency plan and conducted
a video visit with Mother and the Children. According to Ms. Huffines, DCS received
additional referrals about Mother on February 8th and February 9th. The former objected
to the cleanliness of Mother’s home and prompted DCS to “request[] Mother make efforts
to clean up the home and set up a home visit for February 10 to confirm she had cleaned
up the home.” The latter indicated Mother was still using drugs, so DCS asked Mother to
undergo a urine drug screen. Mother tested positive for buprenorphine.5
Ms. Huffines conducted a full family visit on February 10, 2021. Numerous topics
were discussed at this meeting, including the Children’s school arrangements and daycare
options. Mother also alerted Ms. Huffines that she was likely to be evicted by her landlord.
Ms. Huffines told Mother that “DCS could provide [financial assistance] in paying the first
month’s rent on a new place for the family to live,” and requested Mother sign a release so
that Multi-Agency Collaboration (MAC) Services could intervene and assist her in finding
a suitable living arrangement. Mother signed the release and Ms. Huffines filed a MAC
request on the same day. Mother’s efforts to adequately address the housing problem,
however, tailed off.
Ms. Huffines attempted in-person home visits with Mother on February 22nd and
25th, March 12th and 18th, and April 8th, 2021, but Mother was absent from the home
during the scheduled times. MAC services placed Mother in contact with Omni
Community Health for treatment, but Mother did not disclose that information to Ms.
Huffines when asked about it on February 23, 2021. On March 19, 2021, Ms. Huffines
discovered that Mother had been referred to Omni Community Health, and she reached out
to discuss Mother’s case. An Omni Community Health representative informed Ms.
Huffines that Mother “missed sessions with the provider.” On March 23, 2021, another
representative told Ms. Huffines that Mother missed more sessions, though she “had
4
According to an affidavit of reasonable efforts entered as an exhibit at trial without objection,
Mother “split the children up and let them [live] with various relatives, none of whom could be approved
by the department” at some point during the trial home visit. The record does not contain approximate
dates for when the Mother split the Children up, but the Department maintains that this action went
“[a]gainst the advice of the department.”
5
The record contains contradictory evidence on Mother’s use of buprenorphine. Ms. Coen testified
at the final hearing in this case that Mother did not have a prescription for buprenorphine. However, Ms.
Huffines writes in her affidavit of reasonable efforts that Mother was prescribed buprenorphine, at least at
one time.
-3-
reported illness and had . . . rearranged [sessions] to be by video until [Mother] submitted
a negative Covid test.” Ms. Huffines and Omni Community Health worked together on
March 31st, April 1st, April 5th, and April 7th to promote Mother’s continued progress.
Despite this, Omni Community Health discharged Mother from its services on April 7th
“due to non-compliance.” The record indicates Mother completed only one session with
Omni Community Health in the two months following her referral by MAC services.
Mother did complete one in-person visit with Ms. Huffines between February 10
and April 14, 2021. On March 24, 2021, Ms. Huffines visited Mother and the Children
and learned that Mother had parted ways with Larry S. Mother had become romantically
involved with Chad D., and he tested negative for any drugs during a voluntary urine
screen. Mother still tested positive for buprenorphine, although for only an amount “which
she is prescribed.” Mother stated that she was set to be evicted by court order on April 5th,
but had found a “trailer” in Pleasant Shade to live in and planned to move in by April 1,
2021.
On April 14, 2021, Ms. Huffines received a series of worrisome phone calls from
Mother. According to her affidavit,
[Mother] was crying. She stated that she was in a lot of pain in her arm,
home alone with the kids, needed to go the emergency room and didn’t know
what to do. [Ms. Huffines] discussed that it sounded like her only option was
to take the kids to the hospital with her. [Mother] stated that they would act
up. [Ms. Huffines] discussed that it still sounded like her only option. [Ms.
Huffines] received another call from [Mother] a few minutes after hanging
up. [Mother] was still crying. [Mother] asked if DCS was going to take the
kids from her if she didn’t have somewhere to live after her eviction on [April
17, 2021.6] [Ms. Huffines] discussed if they had somewhere to live that
would be different from them being homeless. [Ms. Huffines] discussed this
was why [she] had been asking for regular updates on the status of them
moving so a shelter could be set up if needed. [Ms. Huffines] asked if
[Mother] needed [her] to set up a shelter for them. [Mother] stated that she
did.
Within approximately an hour after Ms. Huffines received these phone calls, she arranged
for Mother to receive temporary housing through the Cookeville Rescue Mission.
Mother’s stay was set to begin on April 17, 2021.
Ms. Huffines also spoke to the Guardian ad litem (GAL) after receiving these
worrisome phone calls and shared details of Mother’s rapidly deteriorating housing
6
The record does not indicate how or why Mother’s plan to live in Pleasant Shade failed or whether
her eviction date was moved to April 18, 2021.
-4-
situation. The GAL immediately filed an emergency motion, requesting the trial court
terminate Mother’s trial home visit. The trial court held a hearing on the GAL’s motion
on April 15, 2021. Though DCS did not oppose the motion, Ms. Huffines informed the
trial court of her coordinated plan with Mother to “set the family up with the Cookeville
Rescue Mission.” Since Mother and Ms. Huffines had created what seemed to be a viable
plan, the trial court denied the GAL’s motion.
Mother inquired about whether Chad D., her boyfriend, could also live in the shelter
with the family, and Ms. Huffines indicated men might not be allowed. When Ms. Huffines
inquired with Nashville Rescue Mission about that same question, the shelter informed Ms.
Huffines that the “men’s campus . . . had to be reserved separately.” Ms. Huffines provided
Mother with the information needed to reserve space for Chad D. at the shelter. Ms.
Huffines reserved spaces for Mother and the Children at both the Cookeville and Nashville
missions. Mother continued to search for other places to live, and, despite Ms. Huffines’s
attempts to dissuade her, Mother “declined to go to [either] shelter.” Mother reported plans
to “place the children different places,” separated the children, and left them with “various
relatives,” stating she intended to relinquish custody to these individuals, who had not been
approved by DCS.
Thereafter, DCS filed its own emergency motion with the trial court seeking to
terminate Mother’s trial home visit. The trial court granted DCS’s motion on April 19,
2021, explaining that it made its decision based on Mother’s “homelessness and failure to
cooperate with [DCS’s] attempts to help the family obtain shelter.” The trial court also
noted that Mother’s circumstances “pose an immediate threat to the [Children’s] well-
being, and that there is no less drastic alternative which could reasonably and adequately
protect the [Children’s] health and safety.” At this point, DCS assumed custody of the
Children.
After Mother’s trial home visit was terminated, DCS and Mother finalized her
permanency plan on May 10, 2021. Accounting for its later amendments, the plan placed
the following compliance obligations on Mother: (1) obtain an alcohol and drug
assessment, “be open and honest with the assessor,” and “follow all treatment
recommendations and … participate in aftercare” about the same; (2) undergo and pass
random drug screens, “abstain from alcohol abuse, using illicit drugs and/or non-prescribed
medications,” refrain from associating with individuals who “are actively under the
influence or using or selling drugs,” and report any relapses that occur; (3) complete a one-
year rehabilitation program; (4) “fully participate” in a psychological evaluation, and
“obtain and maintain mental health stability” by abiding by all of the recommendations
arising “from the results of the evaluation such as therapy, case management and[] possibly
medication management”; (5) improve upon communication with the Children, prevent
them from being in dangerous situations involving other people or “domestic violence”
situations, and “provide age appropriate discipline”; (6) communicate with DCS assessors
“within 24 hour[s] of contact” and through regularly scheduled appointments “until
-5-
successfully released by the service provider”; (7) provide proof of some form of housing,
whether that be through home ownership or a lease, and “maintain minimal housekeeping
standards”; (8) protect the home from “illegal activity” through measures such as having
residents complete DCS background checks; (9) “follow all court orders regarding
visitation”; (10) diligently attend foster care visits or, if late, notify DCS and the foster
parent(s); (11) pay child support as ordered and voluntarily if needed for things like
“clothing, diapers, school supplies, etc.”; and, (12) otherwise abide by the requirements of
the plan by “promot[ing] a positive environment” during all interactions with the Children.
The GAL and DCS maintain that Mother’s last recorded visit with the Children of
any kind occurred on September 10, 2021. Ms. Coen explained at the final hearing in this
case that the Department sought to facilitate at least four visits between November 12 and
November 30, 2021, but that none occurred. Mother did attempt to attend a visit on
December 1, 2021, but tested positive for “methamphetamines, amphetamines, and
opiates.”
By this point, DCS shifted from trying to schedule in-person visits to trying to assist
Mother’s efforts to enter an inpatient drug treatment program. Mother attempted, but
ultimately failed, to enter inpatient treatment at Bradford Health Services, which reported
that Mother could not be reached. A new case manager, only described in the record as
CM White, allegedly called Mother on December 9, 2021, to inquire about why Mother
had not entered the Bradford program. During that call, Mother reported that “she had
overdosed [on] methamphetamine laced with Fentanyl.” The following day, Mother
reported to the new case manager that she was attempting to enter a program at Mirror
Lake Recovery Center. Finally, on December 27, 2021, Mother reported that she had
attended an intake meeting at The Next Door, a rehabilitation center, on December 20th.
However, when the new case manager “attempted to confirm that Mother was inpatient at
The Next Door” on January 12, 2022, “the facility denied that Mother was a patient there.”
Mother finally admitted herself to The Next Door program on January 21, 2022. However,
she reported to another case manager, Destiny Harbaugh, on February 16, 2022, that she
left The Next Door because the program “violated her rights.” Mother told Ms. Harbaugh
on that same day that “she was homeless but that she was sober.”
While Mother was attempting to enter an inpatient treatment program, the GAL filed
a request to suspend Mother’s visitation rights. The record does not appear to contain the
GAL’s motion, any response in opposition from Mother, the corresponding order, or
Mother’s motion to have the order set aside. Instead, the best explanation found in the
record is Ms. Coen’s final hearing testimony. On that date, she explained that the GAL
filed the motion after Mother failed to visit the Children at any point after September 10,
2021. The trial court granted the GAL’s request on February 25, 2022. Mother’s counsel
immediately filed a motion to set aside the trial court’s order. According to the trial court’s
order, however, the “motion was never heard due to [Mother’s] failure to appear in Court.
[Mother], despite the bes[]t efforts of her counsel, never attempted to have the Order set
-6-
aside.” All parties agree that, since Mother never appeared to request the order be set aside,
Mother has not been permitted to visit the Children since January 2022.
Ms. Harbaugh also sought to assist Mother in meeting the terms of her permanency
plan. She called Mother on February 24 and explained to her the terms of the plan. Mother
reported during the same call that she “was homeless and staying at Compassionate Hands
at night” and “that she had applied [for a job] at FedEx and would be starting . . . to work
with them on Monday.” Between this date and March 11, 2022, Mother could not be
reached. Mother reportedly told Ms. Harbaugh on March 11th that “she had been
kidnapped and that’s why nobody could reach her.”
DCS filed a petition in the trial court to terminate Mother’s parental rights to the
Children on May 17, 2022. In its petition, DCS alleged that six grounds warranted
terminating Mother’s rights: (1) abandonment by failure to visit, (2) abandonment by
failure to support, (3) abandonment by failure to provide a suitable home, (4) substantial
noncompliance with the permanency plan, (5) persistent conditions, and (6) failure to
manifest an ability or willingness to assume custody. It also argued that terminating
Mother’s parental rights was in the Children’s best interests. While Glenn B. and Ruth B.
were placed in pre-adoptive homes, Alexander B. was placed in a foster home. They were
separated from each other “due to their behavioral issues,” but DCS contends that each did
well despite their separation and that each had been the topic of adoption discussions.
Ms. Coen informed Mother that she had been assigned to her case on July 5, 2022.
Ms. Coen testified that she experienced significant difficulties while trying to communicate
with Mother, due to Mother’s homelessness. However, she received a new, working
telephone number for Mother on August 15, 2022. Ms. Coen called Mother that same day
and went over the permanency plan. According to Ms. Coen, Mother “reported that she
was still considering surrendering [the Children],” but had not made a decision. Mother
did not provide Ms. Coen with her address despite repeated requests being made.
Thereafter, Mother’s case was transferred to Michael Hesson, another DCS family
services worker. Mr. Hesson also sought information about Mother’s address on multiple
occasions with no success. Mother only acknowledged Mr. Hesson on two of the eight
occasions he tried to contact her. On October 5, 2022, he called Mother after she missed a
family team meeting. Mother objected to this, stating “she was not invited,” but Mr.
Hesson provided Mother with documentation to the contrary. Then, on October 25, 2022,
Mother and Mr. Hesson briefly discussed one of the Children’s medical needs. The last
indication in the record of Mother’s communications with DCS is that Ms. Coen testified
that a copy of Mother’s permanency plan was sent to her via email on November 16, 2022.
The trial court held its final hearing on November 21, 2022. DCS began by entering
numerous documents into evidence. Ms. Coen testified at length during this hearing. Ms.
Coen provided some details on the whereabouts and statuses of each of the Children. She
-7-
testified that Glenn B. was placed in a StepStone foster home, while Alexander B. and Ruth
B. were placed in Wayne Provision foster homes. Though Ms. Coen indicated that
Alexander B. and Ruth B. were previously situated in other placements before their current
Wayne Provision placements, the record does not indicate the exact dates when they were
relocated to their current placements. She also explained that “great behavioral concerns”
warranted separating the Children while in DCS custody. While the behaviors are not
explicitly defined in the record, Ms. Coen did testify that all three Children have been
prescribed some form of medication and participate in medication management.
Additionally, she mentioned that Glenn B. has a vision deficiency that requires glasses and
that Ruth B. attends speech therapy.
Ms. Coen also addressed each of DCS’s grounds for terminating Mother’s parental
rights. She started with the first two of Mother’s abandonment grounds: failure to visit and
failure to support. Ms. Coen identified the four months preceding the filing of the petition
on May 17, 2022, as the relevant four-month period for examination of Mother’s conduct,
and testified that Mother did not visit or support the Children during that time. She
acknowledged that Mother was under a non-visitation order during part of that time, but
contended that “[a]ll Mom would have to do was come to court and find out what the
stipulations were to get visitation back, and she did not show [up] . . . for any court.” Ms.
Coen further testified that she believed Mother was not incarcerated or hospitalized during
this period, and that she was “able-bodied and capable of working and paying child
support.” Ms. Coen noted that Mother had completed successful visits “both before and
after the unsuccessful trial home visit,” but did not visit the Children at any point after
September 2021.
Ms. Coen also testified about Mother’s alleged abandonment by failure to provide
a suitable home, the third ground supporting termination. DCS selected November 12,
2021, to March 12, 2022, as the four-month period to examine for this ground because that
represented a “four-month period following removal of the children to DCS custody.” Ms.
Coen explained that DCS tried to prevent removal, and “made continuous and ongoing
efforts to reunify the mother and the children” on many occasions. These efforts included,
but were not limited to: scheduling child and family team meetings as well as supervised
visits, working to provide Mother with transportation to scheduled visits, assisting Mother
in her plans to attend a drug treatment program, and discussing Mother’s obligations under
the permanency plan. Despite all of these instances, she opined that Mother did not make
reasonable efforts to provide the Children with a suitable home. As evidence to support
her opinion, Ms. Coen emphasized that: (1) Mother did not complete the action steps of
her permanency plan, (2) did not visit the Children during the relevant four-month period,
(3) failed a drug screen, (4) left treatment despite being advised otherwise by medical
professionals, (5) and continued drug use after leaving treatment.
Ms. Coen then addressed the fourth ground: Mother’s alleged substantial
noncompliance with the permanency plan. Although Mother was invited to participate in
-8-
the creation of her plan and informed of her obligations, Ms. Coen explained, Mother
completed “nothing” in it. She testified that Mother failed to complete the following steps:
(1) complete a psychological examination and its associated follow-ups, (2) pass an alcohol
and drug assessment and its associated follow-ups, (3) demonstrate sobriety and submit to
drug screenings, (4) participate in parenting education, (5) provide proof of income, (6)
visit with the Children, and (7) procure safe and stable housing.
Regarding the fifth ground of persistent conditions, Ms. Coen testified that, while
the Children had been in DCS custody for eighteen months, Mother had not addressed the
two primary concerns that warranted the Children’s removal from her custody: “[l]ack of
stable housing and . . . drug use.” At this point, DCS entered into evidence results from
several failed drug screens. Ms. Coen stated that Mother tested positive for: (1)
buprenorphine on March 24, 2021; (2) buprenorphine on April 15, 2021; and, (3)
amphetamines and opiates on December 1, 2021. She also explained that DCS does not
know where Mother lived after her April 2021 eviction or where she was living at the time
of trial. Despite this, Ms. Coen explained, Mother “reported herself to be homeless.” When
asked about the Children’s well-being if Mother’s rights were maintained, Ms. Coen
testified that she believed termination was the correct decision because, since November
of 2020, Mother “continue[d] to use drugs . . . struggled with getting housing . . . [and] has
not completed any of her assessments on the perm[anency] plan.”
Ms. Coen then testified about the final ground for termination, Mother’s alleged
failure to manifest a willingness and ability to assume custody over the Children. She
explained that DCS expects parents to keep in contact with the department, observe the
requirements of their permanency plans, visit their children, pay support obligations, and
establish a safe living space. Ms. Coen opined that Mother did not meet any of these
expectations. She also believed that returning the Children to Mother’s custody would
“pose a risk of substantial harm to the [Children’s] physical and psychological welfare”
because “[t]hey have not seen their mother in over a year. They are becoming bonded with
their foster parents. So, separating them from that would be traumatic.”
Finally, Ms. Coen spoke about the Children’s best interests. She stated the
following facts in support of her opinion that termination was in the Children’s best
interests: (1) the children are bonded with their foster parents and “haven’t seen their
mother in over a year,” so changing their current caregivers would have negative “[m]ental
and emotional” impacts on the Children; (2) Mother has not maintained housing; (3)
Mother has not “seen her children since September of 2021”; (4) the Children have also
developed positive relationships with “[t]heir extended family, their foster siblings, [and]
their teachers”; (5) Mother continues her drug use, as evidenced by multiple failed drug
screens; (6) Mother failed to take advantage of DCS’s efforts to assist her in entering a
shelter and inpatient drug treatment programs; (7) Mother has not assisted the Children
with any of their “medication management” issues and counseling; and, (8) DCS
representatives took part in conversations with Mother “in which she was incoherent and
-9-
mentally unstable.” In total, Ms. Coen agreed with DCS’s counsel that at least seventeen
listed best interest factors favored termination, as well as the five following unlisted
factors: (1) a general failure to show genuine interest in the Children’s welfare, (2) poor
lifestyle choices, (3) the adoption prospects for each child, (4) each child’s positive
relationship with their foster families, and (5) the need for permanency.
Ms. Coen conceded during cross-examination that she lacked knowledge of
Mother’s employment status, specific job skills, and educational background. Mother’s
counsel also attempted to discredit DCS’s communications with Mother, and emphasized
that Mother never received a physical copy of her permanency plan. In responding to the
latter point, Ms. Coen indicated that Mother had been informed of her responsibilities under
the plan on multiple occasions. Mother also established that, while each of the Children
has been placed in some form of foster care or pre-adoptive environment, Ms. Coen was
unsure if the Children would ever be adopted by their respective placements. Additionally,
Mother’s counsel questioned Ms. Coen about Mother’s admittance to The Next Door
program. Ms. Coen explained that “typically” programs like The Next Door would
complete a drug and alcohol assessment, but that she was unaware if Mother’s previous
caseworker ever requested copies or received a release authorizing the transfer of any such
assessment.
After Ms. Coen’s testimony, the trial court then heard from Ruth B.’s foster father.
He described Ruth B.’s placement as a “thriving” one “to say the least. She is bonded . . .
She’s doing fantastic.” Ruth B.’s foster father confirmed that Ruth B. calls him “Daddy,”
calls his wife “Mama,” and calls his parents “her grandparents.” He concluded his
testimony by agreeing that, “in the event that Ruth became available for adoption” and he
adopted her, he would “continue to facilitate relationships with [Ruth B.’s] siblings.”
Once DCS concluded its proof, the trial court gave Mother the option to testify via
telephone. Though DCS suggested such testimony would be “unorthodox,” it did not
object to the possibility because Mother explained that she did not have transportation and
could not arrive at her hearing on time.7 Mother ultimately did not testify.
The trial court granted DCS’s petition to terminate Mother’s parental rights. The
trial court concluded that DCS met its burden of establishing all six grounds of termination
listed in the termination petition by clear and convincing evidence. Moreover, the trial
court found that all seventeen of the listed best interest factors relied upon by DCS, as well
as the five non-listed best interest considerations, favored termination.
7
Despite Mother’s inability to physically attend, the trial court ensured that Mother was virtually
present via a teleconference for the entirety of her final termination hearing. Mother has not suggested on
appeal that she was denied due process as a result of not attending the hearing in person.
- 10 -
Mother now appeals to this Court, raising procedural and substantive objections to
the trial court’s order. Mother argues that the trial court’s order contains procedural
deficiencies in that findings of fact are not listed in the section for ground six or throughout
the best interest section. But even if the trial court’s order meets the procedural
requirements of the termination statute, Mother still contends that the trial court erred when
it concluded that at least one ground supported termination of Mother’s parental rights and
that termination was in the Children’s best interests. Concerning Mother’s procedural
argument, DCS defends the trial court’s order as sufficient in its findings. Additionally,
both DCS and the GAL support the trial court’s final order on the merits.
II.
Mother contends that the section of the trial court’s order addressing ground six,
failure to manifest an ability and willingness to assume custody, and the section addressing
the Children’s best interests violate Tennessee Code Annotated section 36-1-113(k). Her
argument is predicated upon a purported failure to make adequate findings of fact in
support of the trial court’s conclusion as to both this ground for termination and the best
interest factors. DCS insists that the trial court’s findings of fact and conclusions of law
are adequate to support its conclusions, noting that additional factual findings are
delineated in other portions of the trial court’s order.
Tennessee Code Annotated section 36-1-113(k) states, “The court shall enter an
order that makes specific findings of fact and conclusions of law within thirty (30) days of
the conclusion of the hearing.” (effective July 1, 2021, to Jun. 30, 2022).8 Given its
mandatory language, courts must follow its requirements even if not invoked by the parties.
In re Isaiah D., No. W202101168COAR3PT, 2022 WL 16826745, at *3 (Tenn. Ct. App.
Nov. 9, 2022); In re Adoption of Muir, No. M2002-02963-COA-R3CV, 2003 WL
22794524, at *3 (Tenn. Ct. App. Nov. 25, 2003) (“Thus, trial courts must prepare and file
written findings of fact and conclusions law with regard to every disposition of a petition
to terminate parental rights, whether they have been requested or not.”); see also In re S.M.,
149 S.W.3d 632, 639 (Tenn. Ct. App. 2004) (“A trial court’s failure to comply with Tenn.
Code Ann. § 36-1-113(k) fatally undermines the validity of a termination order.”)
Mother contends that the sections concerning her alleged failure to manifest an
ability and willingness to assume custody and the Children’s best interests do not have
detailed factual findings set forth within them separately. Mother’s argument is,
essentially, that the trial court must restate its relevant findings at each portion of the order
where they are implicated or risk vacatur, even if sufficient findings of fact are stated in
other portions of the order.
8
“This court applies the versions of the parental termination statutes in effect on the date the petition
was filed.” In re J.S., No. M2022-00142-COA-R3-PT, 2023 WL 139424, at *6 (Tenn. Ct. App. Jan. 10,
2023) perm. app. denied (Tenn. April 4, 2023).
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We believe this is a misreading of the statutory scheme. Section 113(k) requires a
trial court to “make[] specific findings of fact,” but does not indicate where a court should
situate those factual findings within its final order. In re Adoption of C.A.M., No. W2008-
02003-COA-R3-PT, 2009 WL 3739447, at *7 (Tenn. Ct. App Nov. 9, 2009) (“While the
termination statutes require . . . specific findings of fact, there is no authority that the
findings must be in a particular section of the trial court’s order.”) “So long as the trial
court’s written order contains findings of fact of requisite specificity that show that
termination is in the child’s best interest, the fact that the findings are not set out in the
‘best interest’ section of the order does not render the order insufficient.” Id. Here, the
trial court outlined specific “findings of fact” made numerous factual findings throughout
its written order. See In re Zoey L., No. E2020-01250-COA-R3-PT, 2021 WL 3520509, at
*5 (Tenn. Ct. App. Aug. 10, 2021) (upholding trial court’s order after vacating and
remanding on a prior appeal where “[f]ollowing remand, the trial court prepared and
entered [an] Amended Final Judgment . . . . [which] includes a section entitled ‘Findings
of Fact and Conclusions of law’ . . . . [and] specifically addresses the best interest factors”).
In other words, while doing so helps facilitate appellate review, a trial court is not required
to restate the relevant factual findings within the discussion of each and every ground and
best interest factor to comply with section 113(k) so long as the order contains sufficient
findings to explain and support the trial court’s conclusions, allowing for meaningful
review of the trial court’s decision. The trial court in the present case expressly stated its
conclusions as to the sixth ground for termination and all of the best interest factors in
addition to expressly noting non-statutory grounds that the trial court considered. We
conclude that the trial court’s findings of fact in this case are sufficient and find no
reversible error in the trial court’s manner of constructing its order in the present case.
III.
Turning to the grounds for termination of parental rights, we note that parents have
a fundamental constitutional interest in the care and custody of their own children. In re
Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). This fundamental interest is “far
more precious than any property right.” In re Carrington H., 483 S.W.3d 507, 522 (Tenn.
2016) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)). “[P]ublic policy
strongly favors allowing parents to raise their biological or legal children as they see fit,
free from unwarranted governmental interference.” In re Bernard T., 319 S.W.3d 586, 597
(Tenn. 2010). However, a parent’s rights are not absolute and may be terminated on clear
and convincing evidence that statutory grounds for termination exist and that termination
is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c)(1)-(2); In re Adoption
of Angela E., 402 S.W.3d 636, 639 (Tenn. 2013).
In a termination of parental rights case, we review a trial court’s findings of fact de
novo on the record with a presumption of correctness unless the evidence preponderates
otherwise. In re Bernard T., 319 S.W.3d at 596 (citing Tenn. R. App. P. 13(d)). “In light
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of the heightened burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by the trial court
or as supported by a preponderance of the evidence, amount to clear and convincing
evidence of the elements necessary to terminate parental rights.” In re Carrington H., 483
S.W.3d at 524 (citing In re Bernard T., 319 S.W.3d at 596-97). The grounds for
termination and the determination that termination is in the child’s best interest must be
established by clear and convincing evidence, that is, evidence that “enables the fact-finder
to form a firm belief or conviction regarding the truth of the facts” and that “eliminates any
serious or substantial doubt about the correctness of these factual findings.” In re Bernard
T., 319 S.W.3d at 596; see Tenn. Code Ann. § 36-1-113(c). “The trial court’s ruling that
the evidence sufficiently supports termination of parental rights is a conclusion of law,
which appellate courts review de novo with no presumption of correctness.” In re
Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).
IV.
The trial court found that clear and convincing evidence established six grounds for
termination: abandonment by failure to visit, abandonment by failure to support,
abandonment by failure to provide a suitable home, substantial noncompliance with a
permanency plan, persistent conditions, and failure to manifest an ability and willingness
to assume custody. On appeal, Mother does not challenge all of the grounds for
termination. Nevertheless, it is incumbent upon this court to address each ground for
termination pursuant to the Tennessee Supreme Court directive to this court to “review the
trial court’s findings as to each ground for termination and as to whether termination is in
the child’s best interests, regardless of whether the parent challenges these findings on
appeal.” In re Carrington H., 483 S.W.3d at 525-26.
A. Abandonment by Failure to Visit
The trial court found that clear and convincing evidence established that Mother
abandoned the Children by failure to visit. See Tenn. Code Ann. § 36-1-113(g)(1)
(effective July 1, 2021 to Jun. 30, 2022). Abandonment occurs when a parent fails to visit
his or her child “[f]or a period of four (4) consecutive months immediately preceding” the
filing of the termination petition. Tenn. Code Ann. § 36-1-102(1)(A)(i) (effective May 9,
2022 to June 30, 2022). Visitation must be more than just token visitation, i.e., visitation
that “under the circumstances of the individual case, constitutes nothing more than
perfunctory visitation or visitation of such an infrequent nature or of such short duration as
to merely establish minimal or insubstantial contact with the child.” Tenn. Code Ann. §
36-1-102(1)(C), (E). Lack of willfulness is a defense to the ground of abandonment by
failure to visit, but “[t]he absence of willfulness is an affirmative defense pursuant to Rule
8.03 of the Tennessee Rules of Civil Procedure.” Tenn. Code Ann. § 36-1-102(1)(I). Rule
8.03 provides that “[i]n pleading to a preceding pleading, a party shall set forth
affirmatively facts in short and plain terms relied upon to constitute . . . any . . . matter
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constituting an affirmative defense.”
DCS filed the termination petition on May 17, 2022. None of the parties to this
appeal dispute the fact that Mother did not visit the Children at any point between January
and May of 2022. Mother did not plead the absence of willfulness. Where an affirmative
defense has not been pleaded, that failure to plead generally results in waiver of the
affirmative defense. See, e.g., Branch Banking & Trust Co. v. Hill, 582 S.W.3d 221, 233
(Tenn. Ct. App. 2019) (quoting ADT Sec. Servs., Inc. v. Johnson, 329 S.W.3d 769, 778
(Tenn. Ct. App. 2009)). Mother does not contend that this issue was tried by consent. Nor
does the record reflect that the affirmative defense of willfulness was tried by either express
or implied consent.9 Accordingly, we find no error in the trial court’s conclusion that DCS
established by clear and convincing evidence the ground for termination of failure to visit.
B. Abandonment by Failure to Support
The trial court found that clear and convincing evidence established that Mother
abandoned the Children by failure to support. See Tenn. Code Ann. § 36-1-113(g)(1).
Failure to support occurs when a parent fails to support his or her child “[f]or a period of
four (4) consecutive months immediately preceding” the filing of the termination petition.
Tenn. Code Ann. § 36-1-102(1)(A)(i). Failure to support ground is defined as “the failure,
for a period of four (4) consecutive months, to provide monetary support or the failure to
provide more than token payments toward the support of the child. That the parent had
only the means or ability to make small payments is not a defense to failure to support if
no payments were made during the relevant four-month period.” Tenn. Code Ann. § 36-
1-102(1)(D). Support must be more than just token support, which is support that “under
the circumstances of the individual case, is insignificant given the parent’s means.” Tenn.
Code Ann. § 36-1-102 (1)(B). “The absence of willfulness is an affirmative defense
pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure.” Tenn. Code Ann. § 36-
1-102(1)(I).
DCS filed the termination petition on May 17, 2022. None of the parties to this
appeal dispute the fact that Mother failed to provide any support to the Children at any
point between January and May of 2022. Mother argues on appeal that DCS failed to
establish that Mother had an ability to pay and, accordingly, to prove that Mother’s failure
to support was willful. Problematically, Mother did not plead the absence of willfulness.
Where an affirmative defense has not been pled, that failure to plead generally results in
9
Tennessee Rule of Civil Procedure Rule 15.02 provides, in part, that “[w]hen issues not raised by
the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings.” See, e.g., Branch Banking & Trust Co., 582 S.W.3d at 236 (stating
that implied consent arises from the parties and trial court understanding something to be at issue and
actually litigating it); McLemore v. Powell, 968 S.W.2d 799, 803 (Tenn. Ct. App. 1997) (noting that
“[i]mplied consent hinges on the issues that were actually litigated by the parties”).
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waiver of the affirmative defense. See, e.g., Branch Banking & Trust Co., 582 S.W.3d at
233 (quoting ADT Sec. Servs., Inc., 329 S.W.3d at 778). Mother does not contend that this
issue was tried by consent. Nor does the record reflect that the affirmative defense of
willfulness was tried by either express or implied consent. Accordingly, we find no error
in the trial court’s conclusion that DCS established by clear and convincing evidence the
ground for termination of failure to support.
C. Abandonment by Failure to Provide a Suitable Home
The trial court found that clear and convincing evidence established that Mother
abandoned the Children by failure to provide a suitable home. See Tenn. Code Ann. § 36-
1-113(g)(1). The General Assembly has delineated the ground for termination of
abandonment by failure to provide a suitable home as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a parent
or parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
...
(ii)(a) The child has been removed from the home or the physical or legal
custody of a parent . . . by a court order at any stage of proceedings in
which a petition has been filed in the juvenile court alleging that a child
is a dependent and neglected child, and the child was placed in the
custody of the department or a licensed child-placing agency;
(b) The juvenile court found, or the court where the termination of
parental rights petition is filed finds, that the department or a licensed
child-placing agency made reasonable efforts to prevent removal of the
child or that the circumstances of the child’s situation prevented
reasonable efforts from being made prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent . . . to
establish a suitable home for the child, but that the parent or parents or
the guardian or guardians have not made reciprocal reasonable efforts to
provide a suitable home and have demonstrated a lack of concern for the
child to such a degree that it appears unlikely that they will be able to
provide a suitable home for the child at an early date. The efforts of the
department or agency to assist a parent or guardian in establishing a
suitable home for the child shall be found to be reasonable if such efforts
equal or exceed the efforts of the parent or guardian toward the same goal,
when the parent or guardian is aware that the child is in the custody of the
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department;
Tenn. Code Ann. § 36-1-102(1)(A).
A suitable home is more than just an adequate physical space. In re Roger T., No.
W2014-02184-COA-R3-PT, 2015 WL 1897696, at *8 (Tenn. Ct. App. Apr. 27, 2015). “A
suitable home for purposes of termination of parental rights is not merely a solidly built
structure.” In re Jonathan F., No. E2014-01181-COA-R3-PT, 2015 WL 739638, at *12
(Tenn. Ct. App. Feb. 20, 2015). It must be a safe and stable environment in which a child
can live with “the presence of a care giver who can supply the care and attention [a child]
needs.” In re Malaki E., M2014-01182-COA-R3-PT, 2015 WL 1384652, at *9 (Tenn. Ct.
App. Mar. 23, 2015) (quoting In re A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002)).
“[A] home may be rendered unsafe and unsuitable by the conduct of its occupants.” In re
Kayla B., No. E2016-01192-COA-R3-PT, 2017 WL 438622, at *6 (Tenn. Ct. App. Feb. 1,
2017) (quoting In re Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at *18
(Tenn. Ct. App. June 16, 2011)). For example, to be suitable, the home needs to be free of
illegal drugs. See, e.g., In re Krisley W., No. E2022-00312-COA-R3-PT, 2023 WL
2249891, at *6 (Tenn. Ct. App. Feb. 28, 2023); In re PrinceKenyan F., No. M2020-01306-
COA-R3-PT, 2021 WL 3855713, at *5 (Tenn. Ct. App. Aug. 30, 2021); In re Jayda J., No.
M2020-01309-COA-R3-PT, 2021 WL 3076770, at *23 (Tenn. Ct. App. July 21, 2021).
Furthermore, living under circumstances of homelessness does not provide a safe and
stable home environment for a child. See, e.g., In re Jaxson F., No. E2023-00326-COA-
R3-PT, 2023 WL 7179319, at *5-6 (Tenn. Ct. App. Nov. 1, 2023) (noting Mother’s
homelessness in upholding the trial court’s determination as to the failure to provide a
suitable home ground); In re Daniel B., No. E2019-01063-COA-R3-PT, 2020 WL
3955703, at *5 (Tenn. Ct. App. July 10, 2020) (“By the time of trial, Mother was no closer
to providing a suitable home than when the children were removed from her custody. She
was homeless.”).
To establish this ground, “DCS must make ‘reasonable efforts’ to assist the parents
by doing more than simply providing a list of service providers.” In re Masson S., E2021-
01196-COA-R3-PT, 2022 WL 17104403, at *5 (Tenn. App. Nov. 22, 2022), no perm. app.
filed. DCS must use its resources to assist parents, but its efforts need not be Herculean.
Id.; In re Jamarcus K., No. M2021-01171-COA-R3-PT, 2022 WL 3755383, at *8 (Tenn.
Ct. App. Aug. 30, 2022), perm. app. denied (Tenn. Sept. 27, 2022); In re Lily C., No.
M2021-00885-COA-R3-PT, 2022 WL 2301598, at *6 (Tenn. Ct. App. June 27, 2022),
perm. app. denied (Tenn. Sept. 19, 2022). “Although section 36-1-102(1)(A)(ii)(c)
requires DCS to make reasonable efforts towards the establishment of a suitable home for
‘a period of four (4) months following the physical removal’ of the child, ‘the statute does
not limit the court’s inquiry to a period of four months immediately following the
removal.’” In re Masson S., 2022 WL 17104403, at *5 (quoting In re Jakob O., No. M2016-
00391-COA-R3-PT, 2016 WL 7243674, at *13 (Tenn. Ct. App. Dec. 15, 2016)).
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The trial court analyzed a four-month period spanning November 2021 through
March 2022. Mother conceded to DCS that, during that period, she overdosed on
methamphetamine laced with fentanyl. She has also tested positive for drugs on other
occasions. The trial court made factual determinations, which are supported by the record,
that Mother was continuing to abuse drugs and that she was homeless, during the four-
month period as well as beyond that time.
DCS provided evidence that it attempted to help Mother remedy her substance abuse
problems. Mother failed, despite DCS’s constant communication and willingness to
provide additional resources, to complete inpatient treatment during this period. Between
Bradford Health Services, Mirror Lake Recovery Center, and The Next Door, Mother
visited but failed to complete programming offered by three different recovery services
during the relevant time period. At every step of the way, DCS representatives repeatedly
contacted Mother, offering to assist. With regard to housing, DCS had previously tried,
prior to the four-month period, to procure mother shelter at multiple recuse missions, and
Mother declined to attend any of them. One of them she declined because it did not appear
that her boyfriend could also live there with her in the same living space, though DCS did
identify an affiliated housing location for Mother’s boyfriend. In responding to DCS’s
subsequent inquiries, Mother kept insisting that she had leads on housing. A DCS case
worker told Mother that the department could help her with making rent payments. Mother
failed repeatedly to follow up or provide information to DCS, creating challenges for DCS
in maintaining effective communication with her and addressing her housing instability.
The trial court concluded that DCS “went well above and beyond reasonable efforts.” The
trial court determined that Mother failed to make reasonable efforts to provide a suitable
home and DCS’s efforts were equal to or exceeded Mother’s efforts. We find no error in
the trial court’s conclusion that DCS established by clear and convincing evidence the
ground for termination of parental rights based upon failure to provide a suitable home.
D. Substantial Noncompliance with the Permanency Plan
The trial court found that clear and convincing evidence established that Mother
failed to substantially comply with her permanency plan. A ground for termination exists
where clear and convincing evidence shows that “[t]here has been substantial
noncompliance by the parent or guardian with the statement of responsibilities in a
permanency plan . . . .” Tenn. Code Ann. § 36-1-113(g)(2). This ground requires the
responsibilities as outlined by the plan to be “reasonable and related to remedying the
conditions which necessitate[d] foster care placement.” In re Carrington H., 483 S.W.3d
at 537 (quoting In re Valentine, 79 S.W.3d 539, 547 (Tenn. 2002)). The court must not
merely “count[] 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. Substantial noncompliance “requires
more proof than that a parent has not complied with every jot and tittle of the permanency
plan.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). Instead, the parent’s
noncompliance must be “substantial in light of the degree of noncompliance and the
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importance of the particular requirement that has not been met.” Id. “Trivial, minor, or
technical deviations from a permanency plan’s requirements will not be deemed to amount
to substantial noncompliance.” Id. Whether noncompliance is substantial is a question of
law reviewed de novo. In re Ethan W., No. M2021-01116-COA-R3-PT, 2023 WL 415999,
at *6 (Tenn. Ct. App. Jan. 26, 2023) (citing In re Valentine, 79 S.W.3d at 548), perm. app.
denied (Tenn. April 20, 2023).
Mother concedes that she “cannot in good faith” argue that she complied with the
requirements of the permanency plan. She does, however, raise a procedural challenge to
this ground for termination, asserting that she was not provided with a physical copy of the
permanency plan. Pursuant the Tennessee Supreme Court’s charge to this court to review
each ground for termination,10 despite the Mother’s merits waiver, we, nevertheless, review
the trial court’s findings as to this ground as well as considering her procedural argument
below.
With regard to the permanency plans, both the initial version and subsequent
revisions, the trial court found that (1) the plans requirements were in the Children’s best
interests and reasonably related to the conditions that resulted in the Children being placed
in foster care, (2) DCS explained and reviewed the plans with Mother, (3) Mother “has not
substantially complied with the responsibilities and requirements set out for her in the
permanency plans,” (4) Mother “has not successfully completed a single action step on the
plans,” and (5) “DCS has proven, by clear and convincing evidence, the ground of
substantial noncompliance with the permanency plan against” Mother.
The trial court repeatedly observed following the termination of Mother’s trial home
visit that two primary factors contributed to the Children’s need for foster care: “drug use
and housing instability.” The permanency plan reasonably sought to address both of these
concerns. Despite DCS’s attempts to help Mother address her challenges with drugs and
housing, Mother failed to take responsive action to meaningfully address these problems.
As found by the trial court, Mother did not successfully complete even a single action step
set forth in the permanency plans.
Mother, nevertheless, argues that this ground for termination is not satisfied because
10
The Tennessee Supreme Court has observed that “issues not raised in the Court of Appeals
generally will not be considered by this Court, [but] there are exceptions to this general rule.” In re
Carrington H., 483 S.W.3d at 525. Creating one such exception, the Tennessee Supreme Court held “that
in an appeal from an order terminating parental rights the Court of Appeals must review the trial court’s
findings as to each ground for termination and as to whether termination is in the child’s best interests,
regardless of whether the parent challenges these findings on appeal.” Id. at 525-26. In other words, in
parental termination cases in Tennessee “waiver does not apply in the context of either the grounds for
termination or whether termination is in a child’s best interest.” In re Aniyah W., No. W2021-01369-COA-
R3-PT, 2023 WL 2294084, at *6 (Tenn. Ct. App. Mar. 1, 2023), no perm. app. filed.
- 18 -
DCS failed to provide her with a physical copy of the permanency plan. Mother provides
no authority to support her contention that this ground for termination cannot be established
by DCS if a physical copy of the permanency plan is not provided. The trial court found
that DCS explained the permanency plan requirements to Mother and found that DCS
explained and reviewed the revised plans with Mother. The record reflects that (1) DCS
employees discussed the plan and revised versions with Mother on multiple occasions, (2)
DCS repeatedly asked Mother to provide DCS with her physical address, (3) Mother
consistently declined to provide her address to DCS, (4) DCS attempted to email the plan
to Mother, and (5) Mother’s counsel attended meetings where the plan was addressed and
was provided copies thereof.
With regard to permanency plans for children in a foster care placement, “[e]ach
party shall sign the statement and be given a copy of it.” Tenn. Code Ann. § 37-2-
403(a)(2)(A). Accordingly, Mother is entitled to a copy of the permanency plan. The
General Assembly, however, has also expressly provided that the ground of termination
for substantial noncompliance can be established “notwithstanding the failure of the parent
to sign or to agree to such statement if the court finds the parent was informed of its contents
. . . .” Tenn. Code Ann. § 37-2-403(a)(2)(C). This court has indicated that DCS must
“demonstrate that the parent was aware of plan’s requirements and either that the parent
agreed to the plan or that the plan was approved by a court,” In Matter of C.A.T., No. 01-
A-01-9510-JV00474, 1996 WL 257497, at *5 (Tenn. Ct. App. May 17, 1996), not that a
physical copy needs to be shown to have been provided to the parent. This court also has
previously suggested that counsel for a parent receiving a copy of a permanency plan can
provide a basis for determining that the represented parent had notice of the requirements
of a permanency plan. In re Nicholas C., No. E2019-00165-COA-R3-PT, 2019 WL
3074070, at *14 (Tenn. Ct. App. July 15, 2019) (concluding that father did not establish
failure to visit was not willful when he was charged with knowledge of steps in the
permanency plan necessary for visitation).
In the present case, Mother declined to participate in the permanency plan formation
and approval process. Her attorney did participate and received copies of the original plan
and revised versions. DCS repeatedly asked Mother for her physical address, which she
declined to provide. Nevertheless, DCS explained and reviewed with Mother the original
plan and revised versions. While Mother was entitled to a copy of the permanency plan,
we cannot conclude that under the circumstances of the present case the failure of DCS to
establish that Mother received a physical copy of the plan bars a determination that she is
in substantial noncompliance with the permanency plan. Accordingly, having reviewed
both the merits and Mother’s procedural argument, we conclude that the trial court did not
err in determining that DCS established by clear and convincing evidence the ground for
termination of substantial noncompliance with the permanency plan.
E. Persistent Conditions
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The trial court found that clear and convincing evidence established the ground of
termination based upon persistent conditions. Parental rights may be terminated for the
persistence of conditions when:
(3)(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a court order
entered at any stage of proceedings in which a petition has been filed in the
juvenile court alleging that a child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist, preventing
the child’s safe return to the care of the parent or guardian, or other
conditions exist that, in all reasonable probability, would cause the child
to be subjected to further abuse or neglect, preventing the child’s safe
return to the care of the parent or guardian;
(ii) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent or guardian
in the near future; and
(iii) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe,
stable, and permanent home;
(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(3)(A-B) (effective July 1, 2021, to Jun. 30, 2022).
The trial court found (1) that “it had been more than six months since the Court
order was entered that placed the children into DCS custody, (2) “DCS removed the
children from their home because of [Mother’s] drug use and housing instability,” (3)
“[t]he conditions that led to the removal still persist: [Mother’s] drug use and housing
instability,” (4) “[o]ther conditions in the home exist that in all reasonable probability.
would lead to further neglect or abuse of the children: Ms. Brown is without legal means
of income with which to support the children,” (5) “[t]here is little chance that those
conditions will be remedied soon so that the children can be returned safely to the home,”
and (6) “[c]ontinuation of the parent/child relationship greatly diminishes the children’s
chances of being placed into a safe, stable and permanent home.”
While not contesting the trial court’s determination as to continuing drug use,
Mother argues that, given her failure to testify, DCS cannot establish where she lives and
that she is homeless by clear and convincing evidence. Assuming arguendo that Mother is
correct, the ground of persistent conditions would still be satisfied in connection with her
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continuing drug abuse and failure to adhere to permanency plan expectations in terms of
addressing her drug abuse. DCS did, however, present evidence that Mother had informed
DCS that she was homeless on more than one occasion. It also presented evidence that she
has consistently declined to provide any physical address to DCS. Nor did Mother meet
expectations in terms of the parenting plan with regard to establishing stable housing.
Accordingly, we cannot conclude that the trial court erred by determining that DCS
established by clear and convincing evidence the ground for termination of persistent
conditions.
F. Failure to Manifest a Willingness and Ability to Assume Custody
Finally, the trial court found clear convincing evidence that Mother failed to
manifest a willingness and ability to assume custody of the Children. To satisfy this
ground, two prongs must be proven by clear and convincing evidence: (1) the parent or
legal guardian failed to manifest an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child, and (2) placing the child in the
parent’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); In re Neveah
M., 614 S.W.3d 659, 674 (Tenn. 2020). The Tennessee Supreme Court has indicated the
statute places a “conjunctive obligation on a parent or guardian to manifest both an ability
and willingness to personally assume legal and physical custody or financial responsibility
for the child.” Id. at 677. Failure of the parent to manifest either ability or willingness will
satisfy the first prong. Id. “Ability focuses on the parent’s lifestyle and circumstances,”
while willingness revolves around a parent’s attempts “to overcome obstacles” preventing
the parent from assuming custody. In re Serenity W., No. E2018-00460-COA-R3-PT, 2019
WL 511387, at *6 (Tenn. Ct. App. Feb. 8, 2019). A parent’s express desire to reunite with
the child is insufficient to establish a willingness to assume custody. See In re Nicholas
C., 2019 WL 3074070, at *17. On the contrary, “[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). This court may instead consider “whether
a parent has attempted ‘to overcome the obstacles that prevent them from assuming custody
or financial responsibility for the child.’” In re Jaxx M., No. E2018-01041-COA-R3-PT,
2019 WL 1753054, at *9 (Tenn. Ct. App. Apr. 17, 2019) (quoting In re Cynthia P., No.
E2018-01937-COA-R3-PT, 2019 WL 1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019)). A
failure to make efforts to overcome such obstacles “can undercut a claim of willingness.”
Id. As for the second prong, a substantial risk of harm requires “a real hazard or danger
that is not minor, trivial, or insignificant” and requires the harm to be more than a
“theoretical possibility” but to be “sufficiently probable to prompt a reasonable person to
believe that the harm will occur more likely than not.” Ray v. Ray, 83 S.W.3d 726, 732
(Tenn. Ct. App. 2001); see In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL
1629930, at *8 (Tenn. Ct. App. Apr. 4, 2018).
The trial court found that Mother “has failed to manifest, by act or omission, an
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ability and willingness to personally assume legal and physical custody or Financial
responsibility of the children.” The trial court also found that “[p]lacing the children in the
Ms. Brown’s legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the children.”
The trial court heard testimony that Mother did not have stable housing and
continued to abuse drugs. The trial court also heard testimony that Mother failed to
complete any steps of her permanency plan and failed to take advantage of facilitated
opportunities to address her drug abuse and housing instability. Having heard the
testimony and reviewed the documentary evidence, the trial court determined that Mother
was continuing to abuse drugs, lacked housing stability, and was not addressing
meaningfully either of these dangers for the Children should they reside with Mother. The
record supports these conclusions. We cannot conclude that the trial court erred by
determining that DCS established by clear and convincing evidence the ground for
termination of persistent conditions.
V.
If a statutory ground for termination of parental rights has been shown by clear and
convincing evidence, the focus shifts to what is in the child’s best interest. In re Audrey
S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). The Tennessee Supreme Court has
summarized the law regarding the best interest analysis as follows:
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.”
“After making the underlying factual findings, the trial court should then
consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” Indeed, “[a] focus on the perspective
of the child is the common theme” evident in all of the statutory factors.
“[W]hen the best interests of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interests
of the child . . . .”
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. And the best interests analysis consists
of more than tallying the number of statutory factors weighing in favor of or
against termination. Rather, the facts and circumstances of each unique case
dictate how weighty and relevant each statutory factor is in the context of the
case. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
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individualized consideration before fundamental parental rights are
terminated.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017) (citations omitted).
The nonexclusive factors relevant to the best interest analysis are laid out in
Tennessee Code Annotated section 36-1-113(i)(1):11
(A) The effect a termination of parental rights will have on the child’s critical
need for stability and continuity of placement throughout the child’s
minority;
(B) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological, and medical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting
the child’s basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental
attachment, and if not, whether there is a reasonable expectation that the
parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact with
the child and used the visitation or other contact to cultivate a positive
relationship with the child;
(F) Whether the child is fearful of living in the parent’s home;
(G) Whether the parent, parent’s home, or others in the parent’s household
trigger or exacerbate the child’s experience of trauma or post-traumatic
symptoms;
(H) Whether the child has created a healthy parental attachment with another
person or persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons
other than parents and caregivers, including biological or foster siblings, and
the likely impact of various available outcomes on these relationships and
the child’s access to information about the child’s heritage;
11
“This court applies the versions of the parental termination statutes in effect on the date the
petition was filed.” In re J.S., 2023 WL at *6.
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(J) Whether the parent has demonstrated such a lasting adjustment of
circumstances, conduct, or conditions to make it safe and beneficial for the
child to be in the home of the parent, including consideration of whether there
is criminal activity in the home or by the parent, or the use of alcohol,
controlled substances, or controlled substance analogues which may render
the parent unable to consistently care for the child in a safe and stable
manner;
(K) Whether the parent has taken advantage of available programs, services,
or community resources to assist in making a lasting adjustment of
circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent
in making a lasting adjustment in cases where the child is in the custody of
the department;
(M) Whether the parent has demonstrated a sense of urgency in establishing
paternity of the child, seeking custody of the child, or addressing the
circumstance, conduct, or conditions that made an award of custody unsafe
and not in the child’s best interest;
(N) Whether the parent, or other person residing with or frequenting the
home of the parent, has shown brutality or physical, sexual, emotional, or
psychological abuse or neglect toward the child or any other child or adult;
(O) Whether the parent has ever provided safe and stable care for the child
or any other child;
(P) Whether the parent has demonstrated an understanding of the basic and
specific needs required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to
creating and maintaining a home that meets the child’s basic and specific
needs and in which the child can thrive;
(R) Whether the physical environment of the parent’s home is healthy and
safe for the child;
(S) Whether the parent has consistently provided more than token financial
support for the child; and
(T) Whether the mental or emotional fitness of the parent would be
detrimental to the child or prevent the parent from consistently and
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effectively providing safe and stable care and supervision of the child.
Tenn. Code Ann. § 36-1-113(i) (effective July 1, 2021 to June 30, 2022).
The trial court concluded that seventeen of these twenty factors support terminating
Mother’s parental rights. The trial court found that (F), (G), and (M) were inapplicable.
As to (M), while not stating that this factor favored terminating Mother’s parental rights,
the trial court did actually make specific adverse findings, expressing an extremely dim
view of Mother’s efforts to address the circumstances, conduct, and conditions that made
an award of custody unsafe and not in the Children’s best interests. We are uncertain of
why the trial court regarded this factor as inapplicable, but based on the trial court’s specific
factual findings, factor (M) is not in any event favorable for Mother’s position.
In assessing the best interest of the Children, the trial court, among its other findings,
also determined that (1) Mother “has shown little or no genuine interest in the welfare of
the children,” (2) Mother “continues to make lifestyle choices that prevent her from being
able to parent the children or to provide a home for the children,” (3) “[t]wo of three
children are placed in foster homes that wish to adopt them. The third child’s placement
is relatively new, and the foster parents have not had sufficient time to consider adoption,”
(4) “[t]he children have established a strong bond with the foster parents,” and (5) “[t]he
children need and deserve permanency.”
Since many of these factors touch on similar factual predicates and involve similar
issues, we group our discussion of the best interest factors “based on the overarching
themes within the list of twenty factors” under the circumstances of the case. In re Chayson
D., 2023 WL 3451538, at *14. We consider first the Children’s emotional needs. See
Tenn. Code Ann. § 36-1-113(i)(A) (concerning the need for stability), (B) (concerning how
changes in caretakers affect child wellbeing), (D) (concerning parent-child attachment),
(E) (concerning visitation), (H) (concerning attachment to others), (I) (concerning
relationships with others), (T) (concerning the parent’s fitness and its corresponding
impacts). The trial court properly determined that these factors support the termination of
Mother’s parental rights. Ruth B.’s foster care situation is a “thriving” one. She has
bonded well with her foster family, and her foster family intends to both adopt Ruth B. and
promote positive relationships with her siblings. Ms. Coen testified that Glenn B. and
Alexander B. were also in positive foster environments and hoped that each would be
adopted. Between the StepStone and Wayne Provision foster home placements, the
testimony indicated that each child appears to be in a welcoming environment and is
eligible for future adoption. By contrast, there is almost no evidence in the record
suggesting the Children share a strong bond with Mother. As DCS points out, Mother
consistently failed to visit the Children. The trial court, quite reasonably, concluded that
separating the Children from the positive environments in which they are progressing most
likely would negatively impact them.
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We turn next to considerations the Children’s physical environment and well-being.
See Tenn. Code Ann. § 36-1-113(i)(N) (involving any abuse or neglect present in the
parent’s home), (O) (involving the parent’s prior provision of safe and stable care to any
child), (Q) (involving the parent’s commitment to having a home that meets the child’s
needs), (R) (involving the health and safety of the home). The trial court properly
determined that these factors support the termination of Mother’s parental rights. The trial
court had concluded that the Children were dependent and neglected when they lived with
Mother. The record does not indicate that Mother had provided safe and stable care to the
Children, and her ability to do so has not improved. The trial court determined and the
record supports that Mother continued to abuse drugs and that her housing instability had
not been resolved. The trial court concluded that returning the Children to Mother’s
custody comes with the risk of harm. Mother’s physical environment stands in stark
contrast to the Children’s current physical environments. The combination of these factors
weighs in favor of termination.
Next, we consider Mother’s and DCS’s efforts. See Tenn. Code Ann. § 36-1-
113(i)(C) (involving the parent’s continuity in meeting the child’s needs), (J) (involving
the parent’s lasting adjustment of circumstances), (K) (involving the parent’s use of
available resources), (L) (involving DCS’s reasonable efforts). The trial court properly
determined that these factors support the termination of Mother’s parental rights. Mother
failed to complete even one goal of her permanency plan, and the testimony reflected little
sustained effort by Mother toward remedying the problems that resulted in the Children
being removed from her care and placed in foster care. Though she tried to enter inpatient
treatment facilities, she either promptly voluntarily ceased attending or was involuntarily
discharged by each. DCS endeavored to assist Mother, but she did not take advantage of
the assistance that she was offered.
With regard to support and knowledge of the Children’s needs, the trial court also
properly found that these grounds support termination. Tenn. Code Ann. § 36-1-113(i)(S)
(addressing parent providing more than token support); (P) (addressing parent’s
understanding of the child’s needs). The trial court determined, and the record supports,
that Mother provided no support to the Children and did not understand the Children’s
needs.
The trial court concluded that the best interest factors support termination by clear
and convincing evidence. “While determination of the child’s best interest may not be
reduced to a simple tallying of the factors for and against termination, . . . especially
considering the similarities between the factors, we cannot help but acknowledge the
overwhelming sense that the [Children’s lives] will not be improved by a reintroduction to
Mother.” In re Chayson D., 2023 WL 3451538, at *15 (citation omitted). There is no
doubt that Mother faces daunting challenges. However, DCS met its burden of showing
clear and convincing evidence supporting at least one ground for termination.
Furthermore, clear and convincing evidence supports the conclusion that the best interests
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of the Children favor terminating Mother’s parental rights. Accordingly, we affirm the
trial court’s order terminating Mother’s parental rights.
VI.
In considering the arguments advanced on appeal and for the reasons discussed
above, we affirm the judgment of the trial court. The costs of the appeal are taxed to the
appellant, Erica B., for which execution may issue if necessary. The case is remanded for
such further proceedings as may be necessary and consistent with this opinion.
_________________________________
JEFFREY USMAN, JUDGE
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