In Re Grace F.

12/27/2023

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 2, 2023

IN RE GRACE F., ET AL.

Appeal from the Juvenile Court for White County

No. JV-2063, 5142 John Meadows, Judge

___________________________________

No. M2023-00344-COA-R3-PT

________________________________

This appeal concerns a petition to terminate the parental rights of a mother and a putative

father. The trial court found by clear and convincing evidence that several grounds for

termination had been proven and that termination was in the best interest of the children.

The mother and putative father appeal. On appeal, the Department of Children’s Services

concedes some of the grounds that the trial court concluded were established. However,

DCS maintains that five grounds for termination were sufficiently proven against the

mother and that three grounds along with the putative father grounds were sufficiently

proven against the father. We conclude that these remaining grounds for termination were

sufficiently proven, and we conclude that termination was in the best interest of the

children. We reverse in part, with respect to one ground for termination of mother’s

parental rights and three grounds for termination of the putative father’s parental rights,

but otherwise we affirm the trial court’s order terminating parental rights.

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

Part, Reversed in Part, and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and W. NEAL MCBRAYER, JJ., joined.

J. Brad Hannah, Smithville, Tennessee, for the appellant, Whitney F.

J. Patrick Hayes, Cookeville, Tennessee, for the appellant, Ted H.

Jonathan Skrmetti, Attorney General and Reporter, and Katherine P. Adams, Assistant

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

OPINION

I. FACTS & PROCEDURAL HISTORY

This appeal concerns the parental rights of Whitney F. to two of her children, Grace

and Ransom, and the parental rights of Ted H. to Ransom.1 When the children were born,

Whitney was married to another individual, but there was no father listed on the birth

certificate of Grace or Ransom. Genetic testing established that Whitney’s former

husband is not the biological father of either child, and he executed a denial of paternity

for both children. It was later established through genetic testing that Ted is the biological

father of Ransom but not of Grace.

In September 2020, prior to the birth of Ransom, the Department of Children’s

Services (“DCS”) received a report alleging inappropriate supervision and drug exposure

as to Grace and three other siblings, perpetuated by Whitney and Ted. The report

specifically alleged that Whitney and Ted had left the children in the care of two known

drug users. A DCS case manager went to the home and observed that the two known drug

abusers along with Ted’s father were in a camper next to Whitney and Ted’s home.

Although there were two cars in the driveway, Ted’s father reported that Whitney and Ted

were not at home. The case manager returned to the home later accompanied by law

enforcement and probation officers. This time, one of the residents of the nearby camper

reported that she had access to the home and admitted that there were drugs in the home

and in the camper where she stayed. She further stated that she babysat the children.

Then, law enforcement and probation officers searched the camper and found

methamphetamine, syringes, spoons, and other drug paraphernalia. Whitney and Ted then

exited the home with one-year-old Grace. Ted appeared to be under the influence because

his eyes were bloodshot, his pupils were constricted, and his speech was slurred. Ted

admitted to having used methamphetamine in the past few days, and he further admitted

that he had illegally used suboxone. Whitney reported that she was four months pregnant

and admitted to having used methamphetamine two weeks earlier. Whitney further

admitted to using drugs with Ted and that she knew about the other adults on the property

using drugs. After Whitney entered the home, despite instruction not to do so, the case

manager became concerned that she was trying to hide something. Law enforcement then

entered the home and found needle caps, marijuana, a glass pipe, and resale bags. All

adults were issued a citation. Ted then completed a drug test and tested positive for

amphetamine, methamphetamine, suboxone, and MDMA. Whitney was also tested and

was negative for all panels used. The home was not clean, and it had little food and no

running water. Grace had only a few diapers. The pool next to the home was filled with

burning trash. Whitney reported that she had been to a domestic violence shelter three

weeks earlier, but she denied that Ted had been abusive to her. According to Whitney,

she lied to the shelter and wanted to leave the home for a few days.

1

In order to protect the privacy of the children involved, it is this Court’s policy to use the first

names and initials of the parties and children.

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In September 2020, DCS filed a petition to declare Grace and her siblings

dependent and neglected. The juvenile court subsequently issued attachments pro corpus

and protective custody orders placing Grace in the protective custody of DCS and placing

her siblings with Whitney’s former husband. After it was established by DNA testing that

Ted was not the biological father of Grace, he was dismissed. In April 2021, after a

hearing, the juvenile court found that the State had proven by clear and convincing

evidence that Grace and her siblings were dependent and neglected and that it was in the

best interest of these children for custody of Grace to remain with DCS and custody of the

siblings to remain with Whitney’s former husband.

Ransom was born in March 2021. DCS received a report concerning Ransom

alleging prenatal drug use by his mother, Whitney. A DCS case manager spoke with a

hospital social worker who reported that Whitney and Ransom were being discharged after

Whitney and the child tested negative for illegal drugs. The case manager subsequently

attempted to conduct a home visit. The case manager later contacted Whitney and

reminded her that the case manager would need to visit the child. Whitney replied that

she did not have to meet with her and that she was aware of a child and family team

meeting which she would attend by phone. After the case manager explained that DCS

needed to observe the child, and if not allowed to, would seek court action, Whitney

replied that she was in Cookeville and would meet the case manager in public. The case

manager then requested that Whitney submit to a drug test, but Whitney refused to do so

without a court order and further reported that she had submitted to a hair follicle drug test

about four months earlier, of which the case manager found no record. Whitney stated

that she would not allow the case manager to complete a home visit without a court order.

DCS then filed a petition to declare Ransom dependent and neglected and sought an

immediate protective custody order. The juvenile court subsequently issued an attachment

pro corpus and protective custody order placing Ransom in the protective custody of DCS.

In June 2021, the court found that DCS had proven by clear and convincing evidence that

Ransom was dependent and neglected and that it was in Ransom’s best interest for custody

to remain with DCS.

DCS developed the first permanency plan in March 2021, which was subsequently

ratified by the juvenile court. The statement of responsibilities for both Whitney and Ted

required them to obtain and maintain safe and stable housing free of safety hazards. The

plan also required them to obtain income to support themselves and the children and

provide proof of employment to DCS. Additionally, due to concerns about prior reports

of domestic violence, they were required to successfully complete a domestic violence

education program with an approved provider. To maintain a bonded relationship with

the children, the plan also provided for scheduled visitation with a responsibility to attend

all scheduled visits and arrive on time, with a confirmation of each visit at least twenty-

four hours in advance. Whitney and Ted were also required to successfully complete

parenting education with an approved provider. Because of their history with substance

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abuse, the plan further required them to obtain an alcohol and drug (“A&D”) assessment

and follow all recommendations. Whitney and Ted were also to submit to random drug

screens and maintain sobriety and a drug free lifestyle for a minimum of six months.

Because of their criminal history and pending charges, the plan required Whitney and Ted

to resolve their pending legal charges and not obtain any new charges. Due to mental

health concerns, they were required to complete psychological evaluations. The statement

of responsibilities for Ted included an additional responsibility of completing DNA

testing for Ransom due to Ted’s status as a putative father. Over the course of DCS’s

involvement with the family, three other permanency plans were developed in September

2021, March 2022, and September 2022. These plans were ratified by the juvenile court.

The responsibilities in these permanency plans remained substantially the same.

In March 2022, DCS filed a petition for the termination of Whitney’s parental

rights to the children and for the termination of Ted’s parental rights to Ransom. DCS

alleged that six grounds for termination existed as to Whitney and Ted: (1) abandonment

by failure to visit; (2) abandonment by failure to support; (3) abandonment by failure to

establish a suitable home; (4) substantial noncompliance with a permanency plan; (5)

persistent conditions; and (6) failure to manifest an ability or willingness to assume

custody or financial responsibility. DCS alleged additional grounds as to Ted for

abandonment by wanton disregard and putative father grounds under Tennessee Code

Annotated section 36-1-113(g)(9).2 DCS further alleged that it was in the best interest of

the children for the parental rights of Whitney and Ted to be terminated. A trial on the

petition was held in December 2022.

The trial court first heard testimony from Julie Brown, a family services worker

with DCS. Ms. Brown testified that Whitney was not incarcerated in the four months

preceding the filing of the petition and that Whitney did not pay child support in this

period. She further stated that Whitney is not disabled and was aware of her duty to

support the children because it was discussed in the dependency and neglect proceedings

as well as in the permanency plan meetings. Ms. Brown explained that at one time,

Whitney reported that she was employed to do housekeeping at a hotel. Ms. Brown stated

that Whitney had not provided DCS with any excuse for not paying child support. Both

Ted and Whitney had vehicles, and Ms. Brown further stated that they had tested positive

for methamphetamine, so they must have money available to purchase drugs. Ms. Brown

further testified that Whitney and Ted did not regularly visit the children, and during the

four months preceding the filing of the petition, Whitney only visited once in November

2021. For this visit, Whitney was forty-five minutes late to the visitation. Ms. Brown

further stated that both Whitney and Ted were aware of their duty to regularly visit the

2

In the petition, DCS alleged all of the additional grounds for termination of putative father’s

parental rights listed in Tennessee Code Annotated section 36-1-113(g)(9), but these allegations were

listed under the heading entitled “Failure to Establish Parentage.” However, it is clear from the petition

that DCS was alleging each ground applicable to putative fathers in this statute.

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children as it was discussed in every permanency plan as well as every child and family

team meeting. Ms. Brown also testified that Whitney had the ability to visit as DCS

offered transportation and scheduled visitation around her schedule.

Ms. Brown explained that the concerns that led to the removal were the drug users

in and out of the home and the cleanliness of the home. Ms. Brown visited the home in

March 2022 and noticed that the home was very cluttered with car parts on the floor, a

large bottle of liquor on the floor, a sandwich bag with white pills that Ted said were

ibuprofen, and pill bottles in the living area with other people’s names on them. Ms.

Brown stated that the home was in the same situation in March 2022 that it was when the

children were removed. She also expressed concern about Whitney and Ted’s continued

use of methamphetamine and amphetamine.

Ms. Brown further testified that Whitney had not completed any of the permanency

plan requirements. She said Whitney had several opportunities to go into inpatient drug

rehab centers but she did not engage in any of them. DCS offered transportation for her

on two separate occasions, but Whitney refused it. Whitney continued to use illegal

substances and appeared to be under the influence during visitation with the children.

Whitney also had underlying mental health conditions that were never treated. Ms. Brown

stated that Whitney did not follow through with any of the recommendations on the

permanency plan regarding parenting, domestic violence counseling, or obtaining and

maintaining employment. She also explained that Ted did not do anything on the

permanency plans. He did not complete an A&D assessment, did not do anything in

regards to his mental health or parenting, and he did not obtain employment. He would

also come to visitation smelling like alcohol.

Ms. Brown also testified concerning the reasonable efforts by DCS regarding the

parents and the children. The requirements of the permanency plans and criteria and

procedure for termination of parental rights were all explained to Ted and Whitney. DCS

provided Whitney and Ted a list of service providers along with assistance in scheduling

appointments with providers. Ms. Brown stated that she submitted requests for financial

resources through DCS for help in obtaining services for Ted since he did not have

insurance. DCS also offered assistance with transportation for Whitney and Ted to go to

and from appointments with service providers. Ms. Brown felt she had gone above and

beyond the reasonable efforts required of her. She stated that neither Whitney nor Ted

had completed any services offered by DCS and providers to resolve any of the conditions

that led to removal. She stated that both parents failed to visit the children on a regular

basis, continued to engage in criminal activity, continued to use illegal drugs, failed to

seek treatment for mental health or parenting concerns, and failed to have a stable income

to support the children. She further testified that the children would suffer further abuse

if they are returned to the care of the parents. Ms. Brown stated that Whitney and Ted

will likely not remedy their conditions because they have had every opportunity to follow

their plan and make improvements but failed to do so.

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Ms. Brown then expressed that the children have strong bonds with their foster

parents and are attending day care and necessary medical appointments regularly. She

recalled a time when she went to pick up the children from the foster parents’ home to

transport them to visitation, and she “literally had to peel them off the foster parents

crying.” Ms. Brown then concluded by stating that the children deserve stability and

permanency, and Whitney and Ted are not able to provide them that but the foster parents

can. Ms. Brown ultimately stated that it was in the best interest of the children for the

parental rights of Whitney and Ted to be terminated.

On cross-examination, Ms. Brown stated that Ted was doing odd jobs during the

proceedings, and Ted reported that he was rebuilding carburetors in his home. Ms. Brown

then testified that she assumes that Ted had money because he bought drugs. She stated

that she did not know if Ted was working, but there was nothing preventing him from

working. Ms. Brown further testified that Ted had participated in the parenting classes,

but she never got a certificate of completion. Ms. Brown noted that she did not know how

many drug screens Ted had passed before she received the case, but she did know that

Ted had submitted to a urine drug screen at a visitation in May 2022 and had tested

positive for methamphetamine and amphetamine. Ted also submitted to a court-ordered

hair follicle test and was positive for methamphetamine and amphetamine. Ms. Brown

also stated that visitation had been cancelled a few times because Whitney and Ted failed

to confirm the visit twenty-four hours prior as a court order required. DCS also assisted

Whitney in attending visitation by paying for gas money and assisting her in remedying

battery problems with her car. During supervised visits, Whitney was in and out of the

visitation, but she did play with the children. Though DCS offered transportation to

Whitney for visitation, there were three occasions where DCS could not complete a

request for transportation. Whitney brought food, toys, and clothes for the children to

visitation. Ms. Brown also stated that Whitney had employment when she was pregnant

with her latest child during part of the case, and this may have affected her ability to work;

however, Whitney had reported employment at a laundry department at a hotel.

The court then heard testimony from the pre-adoptive foster mother of the children.

Grace had been in her home for three years, and Ransom had been in her home since he

was ten days old. She testified that she had observed the children interact with each other,

and they love each other. She stated that she has established a strong bond with the

children, and the children have a strong bond with her. The children also call her and her

husband, “mom” and “daddy.” The foster mother further testified that the children are

now well-adjusted in her home and that they are happy and healthy. She also stated that

when Grace comes back home from visitation, she is disruptive and acts out of character,

but when she does not visit, she is happy, healthy, and well-adjusted. The foster mother

then concluded her testimony by asking the court to consider the children’s well-being,

health, and upbringing in a well-adjusted home to be a priority.

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Ted also testified. He stated that he participated in a parenting class but he did not

receive a certificate because DCS claimed that he did not follow procedure in completing

an A&D assessment first. He said he had made appointments to do the A&D assessment,

but he did not complete it because he missed the appointments due to transportation issues

or issues with his phone. Ted stated that he could not complete the A&D assessment

because he did not understand that he had to go to a place of DCS’s choosing to complete

it. Ted stated that he now is employed with a stable job, and he believed that he was in a

better position to complete the program due to his current employment.

Whitney also testified at trial. She stated that she had completed her parenting class

twice, did several A&D assessments, and passed a drug screen when the case first opened.

She further said that she tried to get help with finding a domestic violence class, but it was

not made available to her. She testified to having mental health problems throughout the

case, with depression when the case was opened and severe postpartum depression after

two pregnancies. Though she had a psychological evaluation scheduled, she was not able

to complete her mental health treatment because she missed the appointments. Regarding

visitation, Whitney stated that she had visited as many times as she could, the visits went

well, and she felt that she has bonded with the children. She had reached out for

transportation on several occasions due to issues with her car, but she had recently

acquired another vehicle that runs. However, she is still not able to go to Davidson County

for visitation. Whitney recalled a time when DCS offered her transportation to a visit with

the children at a restaurant, but she never received any follow up message until the time

of the visit, when a DCS worker texted her, “Are you not going to be at the visit?” Later,

upon cross-examination, it was revealed that she may have been confused about that visit,

and she cancelled that visit because she was sick. She further testified that DCS scheduled

another visit knowing that she could not make it, and after she requested transportation,

she never heard back.

Whitney testified that she had been on medication for mental health issues for the

past two and a half months, and she had gone to counseling while the case was pending.

She also testified that she continued to use drugs while she was pregnant, and she was still

combatting the addiction and had relapsed a month ago after someone offered her

methamphetamine. Although she was not working a steady job at the time of trial, she

stated that she had a job interview for a position that would pay nineteen dollars an hour.

She had worked side jobs where she cleaned houses, making about forty to forty-five

dollars per house, which amounted to $120 to $140 per week. Her regular expenses

included about one hundred dollars per month on utilities and about twelve dollars a month

on cigarettes. She also testified that she was paying automobile insurance. Although her

testimony was not clear, it appeared that she was claiming that she was paying $62 three

times a year. She also stated that she was going to start paying child support, and she was

capable of making nineteen dollars per hour.

In January 2023, the trial court orally announced its findings of fact and

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conclusions of law, which were later reduced to writing. In February 2023, the court

entered a written order terminating the parental rights of both Whitney and Ted. The court

found that DCS had established the following grounds for the termination of the parental

rights of both Whitney and Ted: (1) abandonment by failure to support; (2) abandonment

by failure to visit; (3) abandonment by failure to establish a suitable home (4) substantial

noncompliance; (5) persistent conditions; and (6) failure to manifest a willingness and

ability [to assume custody and financial responsibility]. The court also found that Ted

was the putative father of Ransom and that DCS had established the grounds for

termination of Ted’s parental rights under Tennessee Code Annotated section 36-1-

113(g)(9).3 However, the court found that DCS failed to meet its burden of proof with

respect to abandonment by wanton disregard as to Ted. Additionally, the court found that

termination was in the best interests of the children. Whitney and Ted subsequently

appealed.

II. ISSUES PRESENTED

Whitney presents the following issues for review on appeal, which we have slightly

restated:

1. Whether the trial court erred in finding that DCS proved the ground of

abandonment by clear and convincing evidence;

2. Whether the trial court erred in finding that DCS proved the ground of

substantial noncompliance with the permanency plan by clear and convincing

evidence;

3. Whether the trial court erred in finding that DCS proved the ground of persistent

conditions by clear and convincing evidence;

4. Whether the trial court erred in finding that DCS proved the ground of failure

to manifest an ability and willingness to assume custody by clear and

convincing evidence;

5. Whether the trial erred in finding that DCS proved that termination of the

appellant’s parental rights is in the best interest of the minor children.

Ted presents the following issue for review on appeal, which we have slightly restated:

1. Whether the trial court erred when it determined that it was in the best interest

of the child to terminate Ted’s parental rights.

Although Ted does not present any issue regarding the grounds for termination of

3

Like the petition, the trial court’s order also listed findings on the grounds for termination of

putative father’s parental rights listed in Tennessee Code Annotated section 36-1-113(g)(9) under the

heading entitled “Failure to Establish Parentage.” It is also clear that the trial court made a finding and

ruled on each ground within the statute.

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his parental rights, we must review the trial court’s decision as to grounds as well. See In

re Carrington H., 483 S.W.3d 507, 511 (Tenn. 2016) (holding that “appellate courts must

review a trial court’s findings regarding all grounds for termination and whether

termination is in a child’s best interests, even if a parent fails to challenges these findings

on appeal”). We note, however, that DCS states in its brief on appeal that “DCS concedes

the grounds of abandonment by failure to support and abandonment by failure to visit as

to [Ted] only, and abandonment by failure to establish a suitable home as to [Whitney]

and [Ted].” We therefore reverse the trial court’s findings as to these grounds. See In re

Jaylan J., No. W2019-02025-COA-R3-PT, 2020 WL 7861378, at *12 (Tenn. Ct. App.

Dec. 22, 2020); In re Colton B., No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at

*6 (Tenn. Ct. App. Oct. 29, 2018) perm. app. denied (Tenn. Jan. 22, 2019) (“[W]hen the

petitioner who sought termination has conceded on appeal that a ground was not

sufficiently proven, this Court has, in several cases, reversed the trial court’s finding as to

that ground without reaching the merits of whether the ground was actually established.”);

In re Zane W., No. E2016-02224-COA-R3-PT, 2017 WL 2875924, at *7 (Tenn. Ct. App.

July 6, 2017) perm. app. denied (Tenn. Sept. 26. 2017) (reversing a ground that DCS “does

not defend” and noting that Carrington “has never been construed to require this Court to

also consider the grounds sustained by the trial court and thereafter conceded or waived

by the non-parent on appeal”). DCS defends only the grounds of abandonment by failure

to support, abandonment by failure to visit, substantial noncompliance, persistent

conditions, and failure to manifest a willingness and ability to assume custody against

Whitney and the grounds of substantial noncompliance, persistent conditions, failure to

manifest a willingness and ability to assume custody, and the five additional putative

father grounds of Tennessee Code Annotated section 36-1-113(g)(9) against Ted. We

therefore proceed to consider these issues.

III. STANDARDS APPLICABLE TO TERMINATION CASES

Tennessee Code Annotated section 36-1-113 “sets forth the grounds and

procedures for terminating the parental rights of a biological parent.” In re Kaliyah S.,

455 S.W.3d 533, 546 (Tenn. 2015). Pursuant to this statute, the petitioner seeking

termination of parental rights must prove two elements. Id. at 552. First, the petitioner

must prove the existence of at least one of the statutory grounds for termination as

provided in section 36-1-113(g). Id. The grounds are “cumulative and nonexclusive, so

that listing conditions, acts or omissions in one ground does not prevent them from coming

within another ground[.]” Tenn. Code Ann. § 36-1-113(g). Second, the petitioner must

prove that termination of parental rights is in the best interest of the child under the factors

set forth in section 36-1-113(i). In re Kaliyah S., 455 S.W.3d at 552.

Because of the constitutional dimension of the rights at stake, the petitioner seeking

termination “must prove both elements by clear and convincing evidence.” In re Khloe

O., M2021-01125-COA-R3-PT, 2022 WL 2164288, at *3 (Tenn. Ct. App. June 16, 2022)

(citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)); see Tenn. Code Ann. § 36-

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1-113(c). “Clear and convincing evidence enables the fact-finder to form a firm belief or

conviction regarding the truth of the facts[.]” In re Bernard T., 319 S.W.3d at 596 (citing

In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005)). It also “eliminates any

serious or substantial doubt about the correctness of these factual findings.” Id. (citing In

re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); State, Dep’t of Children’s Servs. v. Mims

(In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct. App. 2008)).

Due to the heightened burden of proof applicable in parental termination cases, we

adapt our customary standard of review on appeal. In re Audrey S., 182 S.W.3d at 861.

We review the trial court’s factual findings de novo in accordance with Rule 13(d) of the

Tennessee Rules of Appellate Procedure and presume each factual finding to be correct

unless the evidence preponderates otherwise. In re Carrington H., 483 S.W.3d at 524.

We then make our own determination “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.” Id. (citing In re Bernard

T., 319 S.W.3d at 596-97). “The trial court’s ruling that the evidence sufficiently supports

termination of parental rights is a conclusion of law, which appellate courts review de

novo with no presumption of correctness.” Id. (citing In re M.L.P., 281 S.W.3d 387, 393

(Tenn. 2009)).

IV. DISCUSSION

A. Grounds for Termination

1. Abandonment as to Whitney

This ground exists when a parent has abandoned his or her child, as defined in

Tennessee Code Annotated section 36-1-102(1)(A). Tenn. Code Ann. § 36-1-113(g)(1).4

Within section 36-1-102(1)(A) are “five alternative definitions for abandonment as a

ground for the termination of parental rights.” In re Ciara O., No. E2022-01179-COA-

R3-PT, 2023 WL 3337215, at *4 (Tenn. Ct. App. May 10, 2023) (citing In re Audrey S.,

182 S.W.3d at 863)). The relevant definition for purposes of this appeal provides that

abandonment occurs when:

For a period of four (4) consecutive months immediately preceding the filing

of a proceeding, pleading, petition, or any amended petition to terminate the

parental rights of the parent . . . of the child who is the subject of the petition

for termination of parental rights or adoption, that the parent . . . either have

4

Since the filing of the petition to terminate parental rights, the termination statute has been

amended. All quotes and references to the termination statute in this opinion are to the version of the

statute in effect when the petition was filed in March 2022. See In re J.S., No. M2022-00142-COA-R3-

PT, 2023 WL 139424, at *6 (Tenn. Ct. App. Jan. 10, 2023) (“This court applies the versions of the parental

termination statutes in effect on the date the petition was filed.”).

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failed to visit or have failed to support or have failed to make reasonable

payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i).5

a. Failure to Support

The statute defines failure to support as the failure “to provide monetary support”

or “to provide more than token payments toward the support of the child.” Tenn. Code

Ann. § 36-1-102(1)(D). “Token support” 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 determinative time period for this ground as to Whitney, counting back

four months from when the petition was filed on March 1, 2022, was from October 28,

2021 to February 28, 2022. In July 2021, the trial court had ordered Whitney to pay $50.00

monthly for each child, totaling $100.00 per month in required child support payments.

However, Ms. Brown testified that the only financial support Whitney paid was a single

payment of approximately $23.00 for Grace in November 2021, which was confirmed by

a print-out from the Child Support Enforcement Services database. Thus, Whitney paid

little monetary child support for Grace and no support for Ransom during the relevant

four-month period. Though we recognize that Whitney contributed some necessary items

such as food, gifts, and clothing to the children, the monetary support that Whitney paid

is no more than token support when compared to the amount that she was supposed to pay

during the four-month period and her ability to earn income during this period. Though

her employment during this period was not stable, she was not disabled and was capable

of working. Therefore, the trial court correctly found that there was clear and convincing

evidence supporting this ground as to Whitney.

b. Failure to Visit

Tennessee Code Annotated section 36-1-102(1)(A)(i) further provides a definition

of abandonment for when the parent has “failed to visit” within the “period of four (4)

consecutive months immediately preceding the filing of a proceeding, pleading, petition,

or any amended petition to terminate the parental rights of the parent.” Failure to visit is

further defined as “the failure, for a period of four (4) consecutive months, to visit or

engage in more than token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). “Token

visitation” is defined as visitation that “under the circumstances of the individual case,

5

A parent may raise the affirmative defense of absence of willfulness. Tenn. Code Ann. § 36-1-

102(1)(I). Here, however, Whitney did not raise this affirmative defense in an answer to the petition.

Consequently, she waived that affirmative defense. See Tenn. R. Civ. P. 12.08 (specifying that affirmative

defenses not raised by motion or answer are waived). Additionally, Whitney did not raise the issue at trial.

Therefore, the defense of willfulness was not tried by implied consent. See McLemore v. Powell, 968

S.W.2d 799, 803 (Tenn. Ct. App. 1997) (“Implied consent hinges on the issues that were actually litigated

by the parties . . . .”).

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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).

The trial court found that Whitney had failed to engage in more than token

visitation during the four-month period preceding the filing of the petition to terminate

parental rights, October 28, 2021 to February 28, 2022. Specifically, the trial court noted

that Whitney had attended one hour and fifteen minutes of one scheduled two-hour visit

but had missed one two-hour scheduled visit and three four-hour scheduled visits. The

record supports these findings. On appeal, Whitney argues that there was not clear and

convincing evidence to prove this ground because she did visit within the four-month

period and there was no evidence presented as to what happened at the visit between the

child and her. Nevertheless, of sixteen hours scheduled during this four-month period,

Whitney only attended one hour and fifteen minutes of visitation. Furthermore, Ms.

Brown testified that she did not have a reasonable expectation that Whitney will create a

secure and healthy relationship with the children due to her lack of visitation. Such

visitation is token in that it does nothing more than establish “minimal or insubstantial

contact with the child[.]” Tenn. Code Ann. § 36-1-102(1)(C). Therefore, we affirm this

ground for termination of Whitney’s parental rights to the children.

2. Substantial Noncompliance with the Permanency Plan

Tennessee Code Annotated section 36-1-113(g)(2) provides one ground for a

parent’s rights to be terminated if “[t]here has been substantial noncompliance by the

parent . . . with the statement of responsibilities in a permanency plan.” The permanency

plan requirements must be “reasonable and related to remedying the conditions which

necessitate[d] foster care placement.” In re Valentine, 79 S.W.3d at 547. Not every failure

to comply with a requirement in a permanency plan will constitute grounds for termination

of parental rights. In re Jaylan J., No. W2019-02025-COA-R3-PT, 2020 WL 7861378,

at *14 (Tenn. Ct. App. Dec. 22, 2020) (citing In re Abigail F.K., No E2012-00016-COA-

R3-JV, 2012 WL 4038526, at *14 (Tenn. Ct. App. September 14, 2012)). Instead, the

noncompliance with the permanency plan “must be substantial.” Id. (quoting In re

Valentine, 79 S.W.3d at 548). Thus, “[t]rivial, minor, or technical deviations” do not rise

to the level of substantial noncompliance. In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct.

App. 2004).

The children were placed in DCS custody due to lack of and/or inappropriate

supervision, drug exposure, insufficient housing, and domestic violence. The

responsibilities on the permanency plans were devised with the aim of correcting these

issues by aiding Whitney and Ted in creating a safe, clean, and drug-free home for the

children and in developing a strong family relationship. Although this ground does not

require a parent to comply with every jot or tittle of the statement of responsibilities in the

permanency plan in order to preserve their parental rights, In re Ronon G., No. M2019-

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01086-COA-R3-PT, 2020 WL 249220, at *8 (Tenn. Ct. App. Jan. 16, 2020), the record

supports a finding that neither Whitney nor Ted successfully completed the majority of

their responsibilities. Although Whitney testified that she had completed an A&D

assessment, she did not submit any paperwork to corroborate this claim. Likewise,

Whitney did not complete domestic violence classes. She also did not successfully obtain

any sufficient and regular income or obtain a safe home for the children. Whitney further

failed to maintain sobriety. Although Whitney had visited the children, the visitation was

sporadic in frequency and cut short. Ted, as well, failed to complete any of his

responsibilities except for undergoing DNA testing. Therefore, we conclude that there is

clear and convincing evidence to support this ground as to Whitney and Ted.

3. Persistent Conditions

We next address whether the trial court erred in finding clear and convincing

evidence to support the ground of persistent conditions. This ground applies when:

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

custody of a parent . . . for a period of six (6) months by a court order entered

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

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

(i) The conditions that led to the child’s removal still persist, preventing the

child’s safe return to the care of the parent . . . , or other conditions exist

that, in all reasonable probability, would cause the child to be subjected to

further abuse or neglect, preventing the child’s safe return to the care of the

parent . . . ;

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

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

future; and

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

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

permanent home;

(B) The six (6) months must accrue on or before the first date the termination

of parental rights petition is set to be heard[.]

Tenn. Code Ann. § 36-1-113(g)(3). Each element must be proven by clear and convincing

evidence. In re Valentine, 79 S.W.3d at 550. This Court has explained that “[t]he

necessary order of removal is ‘the threshold consideration’ for this ground.” In re Lucas

S., No. M2019-01969-COA-R3-PT, 2021 WL 710841, at *4 (Tenn. Ct. App. Feb. 24,

2021) (quoting In re Alleyanna C., No. E2014-02343-COA-R3-PT, 2015 WL 4773313, at

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*14 (Tenn. Ct. App. Aug. 10, 2015)).

We begin by considering whether Grace has been “removed from the home or the

physical or legal custody” of Whitney “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.” Tenn. Code Ann. § 36-1-

113(g)(3)(A). In September 2020, DCS filed a petition in the juvenile court alleging that

Grace was dependent and neglected. The juvenile court then entered a protective custody

order finding probable cause to believe that Grace was dependent and neglected. The

court then removed Grace from Whitney’s home. When the trial was held in December

2022, more than two years had passed from the time Grace was removed from Whitney’s

home, which well exceeded the necessary period of six months for this ground. See Tenn.

Code Ann. § 36-1-113(g)(3)(B). Therefore, we determine that the requirement of the

order of removal has been satisfied for this ground for Whitney as to Grace.

Concerning the order of removal as to Ransom, after DCS filed a petition alleging

that he was dependent and neglected, the juvenile court entered a protective custody order

in March 2021 finding probable cause to believe that Ransom was dependent and

neglected, and the court removed Ransom from Whitney and Ted’s home. In March 2022,

DCS filed its petition to terminate Whitney’s parental rights to the children and Ted’s

parental rights to Ransom, and the trial was held in December 2022. Thus, more than one

year had passed from the time Ransom was removed until the time the trial was held.

Accordingly, we conclude that the requisite order existed for this ground for Whitney and

Ted as to Ransom.

Furthermore, the conditions that led to the removals of Grace and Ransom have

persisted, and they prevent the children’s safe return to the parents’ care. See Tenn. Code

Ann. § 36-1-113(g)(3)(A)(i). Grace was removed due to lack of and/or inappropriate

supervision, drug exposure, insufficient housing, and domestic violence. Ransom was

removed due to the same circumstances that necessitated the prior removal of Grace.

Whitney and Ted remained in the home that was described by Ms. Brown as dirty and

hazardous. The drug use has largely persisted, with Whitney having used

methamphetamine a month before trial and Ted testing positive for methamphetamine and

amphetamine in July 2022. Although there were concerns about domestic violence,

Whitney and Ted remained in a relationship and did not attend domestic violence

counseling. With these conditions continuing from the time DCS filed the dependency

and neglect petitions until the time of trial, it is unlikely that these conditions will be

remedied at an early date. See Tenn. Code Ann. § 36-1-113(g)(3)(A)(ii); Dep’t of

Children’s Servs. v. B.B.M., No. E2006-01677-COA-R3-PT, 2007 WL 431251, at *9

(Tenn. Ct. App. Feb. 9, 2007) (“Given that Mother has been unable to remedy these

problems for many years, it is unlikely that these conditions would be remedied at any

time in the near future.”). Likewise, we find that continuing the parent-child relationship

would greatly diminish the children’s chances of integrating into a safe, stable, and

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permanent home. See Tenn. Code Ann. § 36-1-113(g)(3)(A)(iii). We therefore conclude

that the ground of persistent conditions existed to terminate Whitney’s parental rights to

the children and Ted’s parental rights to Ransom.

4. Failure to Manifest an Ability and Willingness

We now turn to address the ground of failure to manifest an ability and willingness

to assume custody or financial responsibility. This ground exists when:

A parent . . . has failed to manifest, by act or omission, an ability and

willingness to personally assume legal and physical custody or financial

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

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

psychological welfare of the child[.]

Tenn. Code Ann. § 36-1-113(g)(14). There are two elements necessary to prove for this

ground. In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020).

The first element “places a conjunctive obligation on a parent . . . to manifest both

an ability and willingness to personally assume legal and physical custody or financial

responsibility for the child.” Id. at 677. Therefore, if the petitioner “seeking to terminate

parental rights proves by clear and convincing proof that a parent . . . has failed to manifest

either ability or willingness, then the first prong of the statute is satisfied.” Id. (citing In

re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *13 (Tenn. Ct. App.

June 20, 2018)). A parent’s ability to assume custody or financial responsibility is

evaluated based “on the parent’s lifestyle and circumstances.” In re Zaylee W., No.

M2019-00342-COA-R3-PT, 2020 WL 1808614, at *5 (Tenn. Ct. App. Apr. 9, 2020)

(citation omitted). As for willingness, it is common for parents to state that they are

willing to assume custody or financial responsibility; however, “[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). Both Whitney

and Ted have failed to complete most of the responsibilities in their permanency plans,

and they have not paid more than token support for the children. Furthermore, both have

continued to use drugs despite efforts by DCS to connect them with providers to remedy

these issues. Whitney and Ted’s continued failure to complete the actions required for

creating a home and family environment that is safe and healthy for the children attests to

a lack of ability and willingness to personally assume physical and legal custody or

financial responsibility for the children.

The second element requires the petitioner to prove by clear and convincing

evidence that 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. In re Neveah

M., 614 S.W.3d at 677 (quoting Tenn. Code Ann. § 36-1-113(g)(14)). We have described

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this element as follows:

“[T]he use of the modifier ‘substantial’ indicates two things. First, it

connotes a real hazard or danger that is not minor, trivial, or insignificant.

Second, it indicates that the harm must be more than a theoretical possibility.

While the harm need not be inevitable, it must be sufficiently probable to

prompt a reasonable person to believe that the harm will occur more likely

than not.”

In re Brianna B., No. M2019-01757-COA-R3-PT, 2021 WL 306467, at *6 (Tenn. Ct.

App. Jan. 29, 2021). Further, “parents with a significant, recent history of substance abuse

. . . could lead to a conclusion of a risk of substantial harm.” Id.

The continued drug use by Whitney and Ted leads us to conclude that placing the

children in their custody would pose a risk of substantial harm to the welfare of the

children. Despite her children being removed from her home, Whitney continued to use

drugs, even during pregnancy. Ted likewise continued to use drugs during the pendency

of this case. Furthermore, Whitney and Ted’s home was not in a substantially better

position in March 2022 than it was at the time of removal of the children. Therefore, the

record supports the findings of the trial court, and the court correctly determined that the

failure of Whitney and Ted to manifest an ability and willingness to assume custody or

financial responsibility was a proper ground for termination of their parental rights.

B. Putative Father Grounds for Termination

The trial court also found each of the five enumerated subsections of ground (g)(9)

applicable in this case. Tennessee Code Annotated section 36-1-113(g)(9) provides

additional grounds for termination for “any person, who, at the time of the filing of a

petition to terminate the parental rights of such person, . . . is the putative father of the

child.” A putative father is defined as:

[A] biological or alleged biological father of a child who, at the time of the

filing of the petition to terminate the parental rights of such person . . . , meets

at least one (1) of the criteria set out in § 36-1-117(c), has not been excluded

by DNA testing as described in § 24-7-112 establishing that he is not the

child’s biological father . . . and is not a legal parent.

Tenn. Code Ann. § 36-1-102(44). A “legal parent” is defined as:

(i) The biological mother of a child;

(ii) A man who is or has been married to the biological mother of the child

if the child was born during the marriage or within three hundred (300) days

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after the marriage was terminated for any reason, or if the child was born

after a decree of separation was entered by a court;

(iii) A man who attempted to marry the biological mother of the child before

the child’s birth by a marriage apparently in compliance with the law, even

if the marriage is declared invalid, if the child was born during the attempted

marriage or within three hundred (300) days after the termination of the

attempted marriage for any reason;

(iv) A man who has been adjudicated to be the legal father of the child by

any court or administrative body of this state or any other state or territory

or foreign country or who has signed, pursuant to § 24-7-113, § 68-3-203(g),

§ 68-3-302, or § 68-3-305(b), an unrevoked and sworn acknowledgment of

paternity under Tennessee law, or who has signed such a sworn

acknowledgment pursuant to the law of any other state, territory, or foreign

country; or

(v) An adoptive parent of a child or adult; . . .

Tenn. Code Ann. § 36-1-102(29). The trial court found that Ted is not the legal parent of

Ransom and that he is the putative father. Ted does not meet any of the aforementioned

statutory definitions for a legal parent. Furthermore, Ted meets the criteria set out in

Tennessee Code Annotated section 36-1-117(c)(2), which provides:

(2) The biological father has claimed to the child’s biological mother, or to

the petitioners or their attorney, or to the department, a licensed child-

placing agency, or a licensed clinical social worker who or that is involved

in the care, placement, supervision, or study of the child that the biological

father believes that the biological father is the father of the child[.]

Therefore, we conclude that the trial court correctly determined that Ted is the putative

father of Ransom.

After finding that Ted was the putative father of Ransom, the trial court found that

Ted failed to support Ransom even though he was able-bodied and capable of working to

support the child and that there was no good cause or excuse for Ted’s failure to make

reasonable and consistent payments for the support of Ransom in accordance with the

child support guidelines. See Tenn. Code Ann. § 36-1-113(g)(9)(A)(i) (“The person has

failed, without good cause or excuse, to make reasonable and consistent payments for the

support of the child in accordance with the child support guidelines promulgated by the

department pursuant to § 36-5-101.”). It also found that Ted had not sought reasonable

visitation with Ransom and had only engaged in token visitation. See Tenn. Code Ann. §

36-1-113(g)(9)(A)(ii) (“The person has failed to seek reasonable visitation with the child,

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and if visitation has been granted, has failed to visit altogether, or has engaged in only

token visitation, as defined in § 36-1-102.”). It also found that Ted failed to manifest a

willingness and ability to assume custody of Ransom based upon his continued use and

abuse of methamphetamine, substantial noncompliance with his statements of

responsibilities in the permanency plans, failure to engage in anything other than token

visitation, and failure to pay any support for Ransom in foster care. See Tenn. Code Ann.

§ 36-1-113(g)(9)(A)(iii) (“The person has failed to manifest an ability and willingness to

assume legal and physical custody of the child.”). The trial court further found that placing

Ransom in Ted’s custody would pose a risk of substantial harm to the child’s welfare. See

Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv) (“Placing custody of 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.”). The trial court also found that Ted failed to establish

parentage by failing to file a petition to legitimate Ransom within thirty days after notice

of alleged paternity. See Tenn. Code Ann. § 36-1-113(g)(9)(A)(v) (“The person has failed

to file a petition to establish paternity of the child within thirty (30) days after notice of

alleged paternity, or as required in § 36-2-318(j), or after making a claim of paternity

pursuant to § 36-1-117(c)(3).”). The record clearly and convincingly supports each of the

trial court's findings and conclusions as to these grounds.

C. Best Interest of the Child

We now turn to address whether the trial court erred in finding that it was in the

best interest of the children to terminate Whitney’s parental rights and that it was in the

best interest of Ransom to terminate Ted’s parental rights. 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.” In

re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at

861). “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].” Id. 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.” In re Audrey S., 182 S.W.3d at 878.

Indeed, “[a] focus on the perspective of the child is the common theme”

evident in all of the statutory factors. Id. “[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 . . . .” Tenn.

Code Ann. § 36-1-101(d) (2017).

Ascertaining a child’s best interests involves more than a “rote examination”

of the statutory factors. In re Audrey S., 182 S.W.3d at 878. And the best

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interests analysis consists of more than tallying the number of statutory

factors weighing in favor of or against termination. White v. Moody, 171

S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts and

circumstances of each unique case dictate how weighty and relevant each

statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d

at 878. Simply put, the best interests analysis is and must remain a factually

intensive undertaking, so as to ensure that every parent receives

individualized consideration before fundamental parental rights are

terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon

the circumstances of a particular child and a particular parent, the

consideration of one factor may very well dictate the outcome of the

analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171

S.W.3d at 194).

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).6 The twenty statutory best-

interests factors are:

(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

6

Although the prior version of the best interest factors was in effect in In re Gabriella D., we have

recently stated that “we believe the Tennessee Supreme Court’s analysis applies to the amended version

of Tenn. Code Ann. § 36-1-113(i), as well.” In re Skylith F., No. M2022-01231-COA-R3-PT, 2023 WL

6546538, *19 n.7 (Tenn. Ct. App. Oct. 9, 2023).

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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;

(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

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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

effectively providing safe and stable care and supervision of the child.

Tenn. Code Ann. § 36-1-113(i)(1)(A)-(T). “When considering the factors [above], the

prompt and permanent placement of the child in a safe environment is presumed to be in

the child’s best interest.” Tenn. Code Ann. § 36-1-113(i)(2). The trial court found that

all of these factors except for factor (I) weighed in favor of termination.

Because evaluation of these factors often involves discussion of similar issues, we

combine our discussion of these factors “based on the overarching themes within the list

of twenty factors.” In re Chayson D., No. E2022-00718-COA-R3-PT, 2023 WL 3451538,

at *14 (Tenn. Ct. App. May 15, 2023). We begin by addressing the interrelated factors

concerning the children’s emotional needs. See Tenn. Code Ann. § 36-1-113(i)(1)(A)

(concerning a child’s need for stability), (B) (concerning how a change in caretaker would

affect a child’s wellbeing), (D) (concerning the attachment between the parent and child),

(E) (concerning visitation between parent and child), (H) (concerning the child’s parental

attachment with individuals other than the parent), and (T) (concerning the effect of the

parent’s fitness on the child). The children are in a stable home and are happy and healthy.

They are currently receiving adequate medical care, and their needs are taken care of.

They have developed a strong attachment with their foster parents to the point they cry

and hold onto their foster parents when Ms. Brown goes to take them to visitation. The

foster mother also reported that Grace is normally a well-behaved and loving child, but

she becomes disruptive after visitation. The children need stability in a loving and secure

home, and they have found it with their foster parents and apart from Whitney and Ted.

Therefore, these factors weigh in favor of termination.

Next, we address the factors concerning the physical environment of the child and

the parent. See Tenn. Code Ann. § 36-1-113(i)(1)(F) (concerning whether the child is

fearful of living in the parent’s home), (G) (concerning whether being in the parent’s home

triggers the child’s trauma), (N) (concerning abuse or neglect in the parent’s home), (O)

(concerning whether the parent has provided safe and stable care to any child in the past),

(Q) (concerning the parent’s commitment to maintaining a home that meets the child’s

needs), and (R) (concerning the health and safety of the parent’s home). Ms. Brown

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testified that the children would be fearful of living with Whitney and Ted because they

are essentially strangers to the children. Likewise, Whitney and Ted’s continued drug use

could cause the children to experience traumatic symptoms in their home. Both Whitney

and Ted’s history of parenting reveal that similar concerns arose concerning the care of

their other children. Whitney does not have custody of her three oldest children, and her

visitation with them is supervised. Ted’s parental rights were terminated with respect to

two of his other children. Whitney and Ted also do not have custody of their youngest

child, who was born drug exposed in May 2022. The trial court also found that their

youngest child was a victim of severe child abuse perpetrated by Whitney and Ted. Thus,

these facts lead to the conclusion that Whitney and Ted have not maintained a physical

environment in their home that is healthy and safe for the children or that meets their

needs. Therefore, we conclude that these factors weigh in favor of termination.

We now turn to consider the factors pertaining to the efforts made by the parents.

See Tenn. Code Ann. § 36-1-113(i)(1)(C) (concerning the parent’s demonstration of

continuity and stability in meeting the child’s needs), (J) (concerning the parent’s lasting

adjustment of circumstances), (K) (concerning the parent’s use of available programs,

services, or community resources), (L) (concerning DCS’s efforts), (M) (concerning

parent’s sense of urgency), and (P) (concerning the parent’s understanding of the child’s

needs). Despite DCS’s extensive efforts to connect them with resources, Whitney and

Ted have continued to use drugs, have continued to stay in an unsanitary and unsafe home,

and have not completed most of their permanency plan responsibilities. Likewise,

although DCS has often provided them with offers of assistance of transportation, they

have not taken advantage of these opportunities to attend visitation and strengthen their

bond with the children. Their failures to pay support, visit, and follow any permanency

plan responsibilities further evince a lack of understanding as to the children’s needs. We

therefore find that these factors weigh in favor of termination.

Next, we address factor (S), which concerns whether the parents have paid more

than token financial support. As we previously discussed in our analysis of the ground of

abandonment by failure to support, Whitney has only paid $23.00 toward the support of

Grace and has paid no money to the support of Ransom. Likewise, Ted has paid no money

for the support of Ransom. Although we recognize that Whitney and Ted have provided

other items for the children, this support is token when compared to the monetary support

ordered by the trial court. Therefore, we conclude that factor (S) weighs in favor of

termination.

Finally, we address factor (I), which pertains to the child’s relationship with others.

Ms. Brown and the foster mother both testified that the children are well-bonded with each

other. Ms. Brown further testified that the termination of parental rights will not

negatively impact the “children’s heritage about one another” because the children will be

adopted by the same foster parents. Therefore, we conclude that this factor weighs in

favor of termination.

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After reviewing all of these statutory factors, we find clear and convincing evidence

that it is in the children’s best interest for parental rights to be terminated so that the

children can find a permanent secure and loving home. See In re L.S.W., No. M2000-

01935-COA-R3-JV, 2001 WL 1013079, at *8 (Tenn. Ct. App. Sept. 6, 2001) (“To do

other than affirm the termination of parental rights would leave these children ‘in limbo’

indefinitely, and we cannot agree that long-term foster care is in the children’s best

interest.”). Therefore, the trial court did not err in finding that the termination was in the

children’s best interest.

V. CONCLUSION

For the aforementioned reasons, we reverse the termination of the parental rights

of Whitney F. for failure to establish a suitable home and the termination of the parental

rights of Ted H. for abandonment by failure to support, failure to visit, and failure to

establish a suitable home. Otherwise we affirm the trial court’s order terminating the

parental rights of both Whitney F. and Ted H. We remand for further proceedings

consistent with this opinion.

Costs of this appeal are taxed to the appellants, Whitney F. and Ted H., for which

execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

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