In Re J'Khari F.

01/31/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 3, 2018

IN RE J’KHARI F.

Appeal from the Juvenile Court for Warren County
No. JV983 William M. Locke, Judge
___________________________________

No. M2018-00708-COA-R3-PT
___________________________________

This is a termination of parental rights case involving the parental rights of the mother,
Alexis F. (“Mother”), to her minor child, J’Khari F. (“the Child”), who was five years old
at the time of trial. On April 10, 2015, the Warren County Juvenile Court (“trial court”)
entered an order removing the Child from Mother’s custody and placing the Child into
the temporary legal custody of the Tennessee Department of Children’s Services
(“DCS”), effective April 9, 2015. The Child was immediately placed in foster care,
where he remained at the time of trial. The trial court subsequently entered an order on
September 24, 2015, finding that the Child was dependent and neglected due to Mother’s
insufficient housing, Mother’s insufficient means to support the Child, and the Child’s
positive drug test result for methamphetamine. On April 18, 2017, DCS filed a petition
to terminate the parental rights of Mother.1 Following a bench trial, the trial court
terminated Mother’s parental rights to the Child upon determining by clear and
convincing evidence that (1) Mother had abandoned the Child by willfully failing to
support him, (2) Mother had abandoned the Child by willfully failing to visit him, (3)
Mother had abandoned the Child by engaging in conduct prior to her incarceration that
exhibited wanton disregard for the Child’s welfare, (4) Mother had not substantially
complied with the reasonable requirements of the permanency plans, (5) the conditions
leading to the Child’s removal from Mother’s custody persisted, and (6) Mother had
failed to manifest an ability and willingness to personally assume custody of or financial
responsibility for the Child. The trial court further found by clear and convincing
evidence that termination of Mother’s parental rights was in the best interest of the Child.
Mother has appealed. Upon a determination that the evidence presented at trial did not
support a finding by clear and convincing evidence that Mother had abandoned the Child
by willfully failing to support him during the four months prior to her incarceration, we

1
In its petition, DCS also sought to terminate the biological father’s parental rights. Prior to the trial in
this matter, the father surrendered his parental rights to the Child. The father is not participating in this
appeal; therefore, we will confine our analysis to those facts relevant to Mother.
reverse as to that statutory ground. We affirm the trial court’s judgment in all other
respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Christina S. Stanford, McMinnville, Tennessee, for the appellant, Alexis F.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

OPINION

I. Factual and Procedural Background

At the commencement of the dependency and neglect action, Mother was a minor.
On April 10, 2015, the trial court entered an order removing Mother from the custody of
her mother (“Grandmother”) and the Child from Mother’s custody, effective April 9,
2015. Both Mother and the Child were placed in foster care. Mother attained eighteen
years of age prior to the adjudicatory hearing, thereby aging out of DCS custody.2 In the
adjudicatory and dispositional hearing order entered on September 24, 2015, the trial
court determined that the Child was dependent and neglected based upon the following
factual findings: “[Mother] does not have a place for the child to stay, does not have a
means to support the child, and cannot take care of the child at this time. [The Child]
tested positive for methamphetamine.” The trial court further found that it was in the
Child’s best interest to remain in the custody of DCS. While the Child continued in DCS
custody, DCS developed six permanency plans, each of which was approved by the trial
court as containing requirements that were reasonably related to remedying conditions
necessitating foster care and that were in the best interest of the Child.

From October 6, 2016, through October 10, 2016, Mother was incarcerated for
“failure to appear and for an attachment for child support.” Mother was subsequently
arrested on April 8, 2017, due to her “failure to appear on fines and costs and failure to
appear for child support.” Mother remained incarcerated until April 11, 2017.

2
The record reflects that for a period of time, Mother utilized an extension of foster care services until
terminating those services in September or October 2017 to seek employment.

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 On April 18, 2017, DCS filed a petition to terminate Mother’s parental rights to
the Child, alleging the following statutory grounds: (1) abandonment by willful failure to
support the Child, (2) abandonment by willful failure to visit the Child, (3) abandonment
by engaging in conduct prior to Mother’s incarceration that exhibited her wanton
disregard for the Child’s welfare, (4) substantial noncompliance with the reasonable
requirements of the permanency plans, (5) persistence of the conditions leading to the
Child’s removal from Mother’s custody, and (6) failure to manifest an ability and
willingness to personally assume custody of or financial responsibility for the Child.
DCS also averred that termination of Mother’s parental rights was in the best interest of
the Child.

During a bench trial conducted on March 5, 2018, the trial court considered
testimony from four witnesses, including Mother, the Child’s DCS family service worker,
the foster mother, and Grandmother, as well as several exhibits presented by DCS. On
March 26, 2018, the trial court entered an order terminating Mother’s parental rights to
the Child and finding by clear and convincing evidence that (1) Mother had abandoned
the Child by willfully failing to support him, (2) Mother had abandoned the Child by
willfully failing to visit him, (3) Mother had abandoned the Child by engaging in conduct
prior to her incarceration that exhibited wanton disregard for the Child’s welfare, (4)
Mother had not substantially complied with the reasonable requirements of the
permanency plans, (5) the conditions leading to the Child’s removal from Mother’s
custody persisted, (6) Mother had failed to manifest an ability and willingness to
personally assume custody of or financial responsibility for the Child, and (7) termination
of Mother’s parental rights was in the best interest of the Child. Mother timely appealed.

II. Issues Presented

Mother has presented eight issues for our review, which we have restated slightly
as follows:

1. Whether the trial court erred by finding clear and convincing
evidence that Mother had abandoned the Child by willfully failing to
financially support him for four months preceding Mother’s
incarceration.

2. Whether the trial court erred by finding clear and convincing
evidence that Mother had abandoned the Child by willfully failing to
visit him for four months preceding Mother’s incarceration.

3. Whether the trial court erred by finding clear and convincing
evidence that Mother had abandoned the Child by her conduct

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 exhibiting wanton disregard for the Child’s welfare prior to Mother’s
incarceration.

4. Whether the trial court erred by finding clear and convincing that
Mother had not substantially complied with the reasonable
requirements of the permanency plans.

5. Whether the trial court erred by finding clear and convincing
evidence that the conditions leading to the Child’s removal from
Mother’s custody persisted and that other conditions persisted that
would in all probability cause the Child to be subjected to further
abuse or neglect.

6. Whether the trial court erred by finding clear and convincing
evidence that Mother had failed to manifest an ability and
willingness to personally assume custody of or financial
responsibility for the Child.

7. Whether the trial court erred by finding clear and convincing
evidence that DCS had provided reasonable efforts to assist Mother
with the requirements included in the permanency plans.

8. Whether the trial court erred by finding clear and convincing
evidence that termination of Mother’s parental rights was in the best
interest of the Child.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d
507, 524 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however,
are reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

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 “Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:

The parental rights at stake are “far more precious than any property right.”
Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of parental
rights has the legal effect of reducing the parent to the role of a complete stranger
and of [“]severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455 U.S. at
759 (recognizing that a decision terminating parental rights is “final and
irrevocable”). In light of the interests and consequences at stake, parents are
constitutionally entitled to “fundamentally fair procedures” in termination
proceedings. Santosky, 455 U.S. at 754; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty, N.C., 452 U.S. 18, 27 (1981) (discussing the due process right of
parents to fundamentally fair procedures).

Among the constitutionally mandated “fundamentally fair procedures” is a
heightened standard of proof—clear and convincing evidence. Santosky, 455 U.S.
at 769. This standard minimizes the risk of unnecessary or erroneous
governmental interference with fundamental parental rights. Id.; In re Bernard T.,
319 S.W.3d 586, 596 (Tenn. 2010). “Clear and convincing evidence enables the
fact-finder to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these factual
findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as highly
probable, rather than as simply more probable than not. In re Audrey S., 182
S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660
(Tenn. Ct. App. 2005).

***

In light 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 Bernard T., 319 S.W.3d at 596-97.

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In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).

IV. Grounds for Termination of Mother’s Parental Rights

Tennessee Code Annotated § 36-1-113 (2017) lists the statutory requirements for
termination of parental rights, providing in relevant part:

(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.

***

(c) Termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and

(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.

The trial court determined that the evidence clearly and convincingly supported a finding
of six statutory grounds to terminate Mother’s parental rights: (1) abandonment by
willful failure to support the Child, (2) abandonment by willful failure to visit the Child,
(3) abandonment through conduct exhibiting wanton disregard for the Child’s welfare
prior to Mother’s incarceration, (4) substantial noncompliance with the permanency
plans, (5) persistence of conditions leading to the removal of the Child, and (6) failure to
manifest an ability and willingness to assume custody of or financial responsibility for
the Child. We will address each statutory ground in turn.

A. Statutory Abandonment by an Incarcerated Parent

The trial court terminated Mother’s parental rights based on statutory grounds that
she had abandoned the Child. Tennessee Code Annotated § 36-1-113(g)(1) provides in
relevant part:

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 (g) Initiation of termination of parental or guardianship rights may be
based upon any of the grounds listed in this subsection (g). The
following grounds are cumulative and non-exclusive, so that listing
conditions, acts or omissions in one ground does not prevent them
from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred; . . .

In the case at bar, it is undisputed that Mother had been incarcerated for a portion
of the four months prior to the petition’s filing. Mother was arrested on April 8, 2017, for
“failure to appear on fines and costs and failure to appear for child support” and remained
incarcerated until April 11, 2017. Because Mother had been incarcerated within the four
months prior to the filing of the petition to terminate her parental rights, the definition of
abandonment contained within Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2017)
applies.3 This subdivision provides in pertinent part:

(iv) A parent or guardian is incarcerated at the time of the institution of
an action or proceeding to declare a child to be an abandoned child,
or the parent or guardian has been incarcerated during all or part of
the four (4) months immediately preceding the institution of such
action or proceeding, and either has willfully failed to visit or has
willfully failed to support or has willfully failed to make reasonable
payments toward the support of the child for four (4) consecutive
months immediately preceding such parent’s or guardian’s
incarceration, or the parent or guardian has engaged in conduct prior
to incarceration that exhibits a wanton disregard for the welfare of
the child. . . .

1. Abandonment by Willful Failure to Support or Visit the Child

3
Effective July 1, 2018, the General Assembly has amended Tennessee Code Annotated § 36-1-102(A) to
substitute the phrase, “proceeding, pleading, petition, or any amended petition,” in place of “proceeding
or pleading.” See 2018 Tenn. Pub. Acts, Ch. 875, § 1 (H.B. 1856). Pursuant to the same amendment, the
words, “willful” and “willfully,” have been deleted wherever they previously appeared in in subsection -
102(1), and a new subsection, -102(1)(I), has been added, providing that the “absence of willfulness”
shall be an affirmative defense to abandonment for failure to visit or support, for which “[t]he parent or
guardian shall bear the burden of proof.” See id. at § 2. Inasmuch as the instant action was filed in April
2017, we will confine our analysis in this Opinion to the version of Tennessee Code Annotated § 36-1-
102 in effect at that time.

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 Mother argues that the evidence before the trial court did not support a finding by
clear and convincing evidence that she willfully failed to financially support the Child or
that she willfully failed to visit the Child. Both abandonment by failing to support and
abandonment by failing to visit, pursuant to Tennessee Code Annotated § 36-1-
102(1)(A)(iv) require, the court to analyze the four months prior to Mother’s
incarceration to determine whether Mother willfully failed to visit or support the Child
during that time. In this case, the determinative period began four months immediately
preceding Mother’s arrest on April 8, 2017. The relevant four-month period therefore
spanned December 8, 2016, through April 7, 2017. See In re D.H.B., No. E2014-00063-
COA-R3-PT, 2015 WL 1870303, at *8 (Tenn. Ct. App. Apr. 23, 2015) (interpreting the
four-month period “immediately preceding” the parent’s incarceration as ending on the
day before the actual date of incarceration).

Also, pursuant to the applicable version of the statute, the trial court must find that
a parent’s failure to visit or support was willful. In re Adoption of A.M.H., 215 S.W.3d
793, 810 (Tenn. 2007). As this Court previously has explained:

The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. section 36-1-102(1)(A)(i) unless the parent has either
“willfully” failed to visit or “willfully” failed to support the child for a
period of four consecutive months.

In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005).

Failure to visit or support a child is willful when a person is “aware of his or her
duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no
justifiable excuse for not doing so.” Id. at 864. This Court has further explained:

The willfulness of particular conduct depends upon the actor’s intent.
Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
peer into a person’s mind to assess intentions or motivations. Accordingly,
triers-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct.

Id.

a. Willful Failure to Visit

First, we will address the ground of abandonment by willful failure to visit.
Mother essentially argues that the trial court erred by finding that Mother’s failure to visit
was willful. DCS, however, argues that Mother’s failure to visit was willful and that her

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failure to request reinstatement of her visitation does not preclude a finding that her
failure to visit was willful. Upon a thorough review of the record, we agree with DCS on
this issue.

“A parent cannot be said to have abandoned a child when his failure to visit . . . is
due to circumstances outside his control.” In re Adoption of Angela E., 402 S.W.3d 636,
640 (Tenn. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d at 810). A parent’s
failure to visit is not excused by someone else’s conduct unless the conduct actually
prevents the obligated person from visiting or “amounts to a significant restraint of or
interference with the parent’s efforts to develop a relationship with a child.” Id. at 863-
64. Lastly, any efforts made to visit a child after a petition to terminate parental rights
has been filed do not negate or provide repentance for prior abandonment. See Tenn.
Code Ann. § 36-1-102(1)(F); In re S.R.M., E2008-01359-COA-R3-PT, 2009 WL 837715,
at *12 (Tenn. Ct. App. Mar. 27, 2009).

In the case at bar, Mother had not visited the Child at the time of trial since August
22, 2016. Mother does not dispute that she failed to visit the Child during the four
months prior to her incarceration. Instead, Mother contends that her failure to visit was
not willful because the trial court had suspended her visitation, she was unaware that she
could reinstate her visitation by presenting herself to the trial court, and she was unable to
procure an alternative location or supervisor for her visits.

On December 12, 2016, Mother failed to appear for a permanency hearing.
During that hearing, the trial court found that Mother had failed to complete any of the
requirements on her permanency plan since the previous court date. The court suspended
Mother’s visitation with the Child. Although Mother was absent, Mother’s attorney was
present during the hearing when Mother’s visitation was suspended. Mother’s attorney
was also included in the certificate of service on the court order reflecting the December
12, 2016 hearing, wherein the trial court specifically directed that Mother would have no
visitation “until she present[ed] herself” to the court.

Our Supreme Court has held that a prior order suspending a parent’s visitation
does not necessarily preclude a finding that the parent willfully failed to visit the child.
See In re Adoption of Angela E., 402 S.W.3d 636, 642 (Tenn. 2013). In In re Adoption of
Angela E., the parent’s visitation had been suspended by the trial court for approximately
three years. Id. During that time, the parent had filed a petition to reinstate visitation but
had taken no further action to pursue the matter for two years. Id. The Supreme Court
recognized that the parent had made no attempt to see his children until after the
termination petition was filed and had provided no reasonable excuse for not pursuing his
petition. Id. As such, the Court concluded that the parent was not “actively trying to
maintain visitation.” Id. Consequently, the Court held that “the prior order suspending
Father’s visitation rights did not preclude a finding that Father willfully failed to visit the

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children.” Id. In this case, we note that Mother had not filed a motion to reinstate her
visitation and had not “present[ed] herself” to the trial court as the order had instructed.
Because the order suspending Mother’s visitation does not preclude a finding of
willfulness, Mother is not entitled to relief based on this prior order.

Mother also argues that her failure to visit was not willful because she was unable
to secure a supervisor or location for her visits. According to Mother’s appellate brief,
“she did not choose to quit visiting her child but did not have the means to continue doing
so, per the supervisor’s demands.” An affidavit of reasonable efforts, prepared and
notarized by the Child’s DCS family service worker, Jimmie Lynn Wolfe, was entered as
an exhibit at trial without objection. The affidavit reflects, inter alia, that DCS had
provided Mother with fifteen hours of therapeutic visitation per month “due to needing
hands-on parenting education, training in managing illnesses and injuries at home, . . .
First Aid Training, and [her] need[] to learn age-appropriate discipline.” The affidavit
also reflects that fifteen hours of visitation had been approved monthly from April 2016
through September 2016. According to Mother’s testimony, her aunt had previously
supervised the visits, but “something had went on with her supervising [Mother’s] visits.”
Mother testified that the current supervisor for her visits had informed Mother that she
would need to secure an alternate location for visits or acquire a different supervisor.
Mother stated that she did not have another place for the visits to take place or a different
supervisor to supervise her visits.

It is undisputed that Mother was aware of her duty to visit the Child. Mother was
provided with a copy of the Criteria and Procedures for Termination of Parental Rights
on May 5, 2015, and November 2, 2015, as evinced by her signature on the respective
forms. The documentation also demonstrates that Ms. Wolfe had explained the contents
of the forms to Mother on May 5, 2015, and November 2, 2015. According to Ms.
Wolfe, the trial court similarly explained to Mother on June 29, 2015; December 21,
2015; June 20, 2016; April 10, 2017; and April 24, 2017, that her failure to visit the Child
could result in the termination of her parental rights. The respective court orders for
those dates support Ms. Wolfe’s testimony that Mother was present during those hearings
and that the trial court had explained to Mother that her failure to visit the Child could
result in the termination of her parental rights.

Mother’s final visit with the Child was on August 22, 2016. We note that Mother
had not visited the Child for approximately three months prior to the suspension of her
visitation rights by the trial court on December 12, 2016. In its review order, entered
September 28, 2016, the trial court found as follows regarding Mother’s visitation:

[Mother] gets 15 hours a month of therapeutic visits. She visited the child
on July 9, 2016, July 16, 2016, and July 19, 2016. [Mother] cancelled her
visit on July 22, 2016. A 5 hour visit was scheduled for August 22, 2016.

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 [Mother] was late for the visit and the visit had to change locations. She
only visited for one hour that day. [Mother] has not scheduled any visits
since that time. [Mother] did not attend a tentatively scheduled visit after
August 22, 2016.

According to Mother’s appellate brief, “Mother’s understanding of the reason
behind the termination of her visits was that the in-home services provider that
supervised the visits was dissatisfied with the location in which the visits occurred.”
Mother claims that she was unable to secure an alternate location or supervisor for the
visits. In its order, the trial court does not express a specific reason for suspending
Mother’s visitation. However, the trial court found in that order that Mother had been
served with notice and failed to appear at the hearing and that she had failed to complete
any of the requirements on her permanency plans.

Mother testified that she contacted Ms. Wolfe but that the two were unable to
identify a supervisor for the visits. According to Mother, she also attended a mental
health assessment with Scott Herman, which she stated was intended to assist her with
obtaining unsupervised visitation. However, Mr. Herman opined that Mother had been
dishonest during the assessment and was required to repeat it. Mother responded that she
subsequently attended an appointment with Mr. Herman. Notwithstanding, Ms. Wolfe
testified that Mother never completed the second assessment. The trial court determined
that Mother never successfully completed the mental health assessment with Mr.
Herman. Mother presented no additional evidence regarding her attempts to visit the
Child or obtain a new supervisor for her visits.

Following the suspension of her parental visits, Mother moved to Arkansas in
January 2017 and resided with her paramour. At some point, Mother returned to
Tennessee and was subsequently arrested on April 8, 2017. Mother did not appear before
the trial court until April 10, 2017, for a review and permanency plan ratification hearing
while she was incarcerated. Ms. Wolfe related that Mother had not contacted her to
request scheduling a visit with the Child and that despite Mother’s knowledge regarding
how to so schedule, Mother had failed to make an attempt to visit the Child during the
four months prior to her incarceration. Mother’s visitation with the Child was suspended
but only until Mother “presented herself to” the trial court. Between the hearing
conducted December 12, 2016, and the termination petition’s filing on April 18, 2017,
Mother did not file a motion to reinstate her visitation or otherwise request that the trial
court allow her to visit with the Child. Mother did appear in court on April 10, 2017, but
was incarcerated at the time. No motion for visitation was pending, and the record does
not reflect that Mother requested that her visitation be reinstated during that hearing.

The trial court accordingly found that Mother was aware of her duty to visit the
Child, knew the child was in foster care and how to schedule visits, had made no attempt

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to visit the Child prior to her incarceration, and presented no justifiable excuse for failing
to visit the Child. Based upon those findings, the trial court determined that Mother’s
failure to visit the Child was willful. Upon a thorough review of the record, we
determine that the evidence proffered does not preponderate against the trial court’s
finding by clear and convincing evidence that Mother’s failure to visit was willful.
Therefore, we affirm the trial court’s termination of Mother’s parental rights based on
this statutory ground.

b. Willful Failure to Support

The trial court also found clear and convincing evidence that Mother had
abandoned the Child by willfully failing to financially support him during the four
months prior to Mother’s incarceration. Mother contends on appeal that DCS failed to
prove by clear and convincing evidence that Mother’s failure to support the Child was
willful. According to Mother, there is not sufficient evidence in the record to prove that
Mother had an ability to pay child support during the relevant four months. Upon careful
review, we determine that DCS failed to prove by clear and convincing evidence that
Mother abandoned the Child by willfully failing to support him during the entire four
months prior to her incarceration.

Mother’s argument focuses on the element of willfulness and her ability to pay
support. According to Mother, “there was no proof as to what her actual bills were nor
their individual amounts” and “[w]ithout this information, the trial court cannot properly
determine if a parent had the ability to pay any amount of financial support.” Mother
thereby argues that the evidence in the record is insufficient to prove that she had an
ability to pay child support during the relevant time period.

DCS contends that the absence of evidence regarding the parent’s expenses and
income is not fatal to the ground of abandonment by willful failure to financially support
so long as other evidence in the record establishes by clear and convincing evidence that
the parent had the ability to pay support during the relevant statutory time period. See,
e.g., In re P. G., No. M2017-02291-COA-R3-PT, 2018 WL 3954327, at *12 (Tenn. Ct.
App. Aug. 17, 2018) (citing In re Addalyne S., 556 S.W.3d 774, 791 (Tenn. Ct. App.
2018)). According to DCS, “Mother’s boyfriend paid the bills, her family members
sometimes wired her money, and she explicitly admitted at trial that from January to
April 2017, she had enough money to pay child support.” Based on the foregoing, DCS
argues that this ground should be affirmed.

During trial, DCS presented evidence to support its assertion that Mother had not
paid support from January 7, 2017, through April 7, 2017. Ms. Wolfe, the Child’s DCS
family service worker, while not specifying a time period, testified that Mother had not
been paying support. Ms. Wolfe also mentioned that Mother had appeared in court for

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failure to pay child support. However, the record does not include any court orders
regarding those child support proceedings or any record from the Department of Human
Services reflecting Mother’s child support payments or lack thereof. See Tenn. Code
Ann. § 24-7-121(a)(1) (“The department of human services child support payment
records shall be the official records for all payments which have been appropriately sent
to the central collection and distribution unit pursuant to § 36-5-116.”). Although Ms.
Wolfe testified that Mother was $1,500 behind on child support, she again made no
reference to the time period within which the arrearage accrued.

According to Mother’s testimony, family members had sent money to her while
she resided in Arkansas. Furthermore, her paramour, with whom she was residing, had
also paid living expenses. Mother explained that she had sufficient money to pay her
bills but that she “wasn’t able to pay in on the child support” from January 7, 2017,
through April 7, 2017. Mother explained that she had attempted to send cash but was
unaware that she had to use a money order.4 According to Mother, she had enough funds
available from January 7, 2017, through April 7, 2017, that she could have paid
something toward her child support. Nonetheless, Mother acknowledged that she had not
paid any child support while she was out of state and that she had moved to Arkansas in
January 2017. We note, however, that the determinative period actually began one month
before Mother relocated.

Establishment of this statutory ground is complicated by the parties’ consistent
misstatement of the relevant statutory period throughout the record. Although Mother
asserts on appeal that the proper determinative period extends from January 7, 2017, to
April 7, 2017, DCS correctly identifies the determinative period as extending from
December 8, 2016, through April 7, 2017. The evidence presented by DCS at trial,
however, focused on the time period from January 7, 2017, to April 7, 2017. DCS failed
to address the month spanning from December 8, 2016, through January 6, 2017, for
which the record is completely devoid of evidence regarding whether Mother paid
support or had the ability to pay support. Ergo, we cannot determine whether Mother
willfully failed to financially support the Child during the entire statutory four-month
period. See In re Ashton B., No. W2015-01864-COA-R3-PT, 2016 WL 981320, at *15
(Tenn. Ct. App. Mar. 15, 2016) (“[T]he Tennessee General Assembly has clearly directed
this Court to consider not just the time immediately preceding the filing of a termination
petition, but the entire four months prior to its filing.”).

In its written judgment, the trial court did not identify the relevant four-month
period but determined that Mother had willfully failed to support the Child for four
months prior to her incarceration. In its oral ruling, the trial court stated that “from

4
Other than Mother’s testimony, the record does not address whether Mother was required to pay her
child support by money order or whether other options were available to her.

- 13 -
January 7 to April 7,” Mother had the ability to pay financial support for the Child but did
not pay such support and that Mother maintained an arrearage “with the Child Support
Office.” This Court has previously held that a trial court’s utilization of the incorrect
determinative period when considering grounds of abandonment requires the appellate
court to vacate the trial court’s judgment on that ground and remand for findings
regarding that issue. See In re Travis H., No. E2016-02250-COA-R3-PT, 2017 WL
1843211, at *9 (Tenn. Ct. App. May 5, 2017), perm. app. denied (Tenn. July 31, 2017);
In re Abbigail C., No. E2015-00964-COA-R3-PT, 2015 WL 6164956, at *14 (Tenn. Ct.
App. Oct. 21, 2015). However, this Court has also determined that a miscalculation of
the relevant four-month period can be considered harmless when the trial court made
sufficient findings of fact that encompassed the correct determinative period. See, e.g., In
re Savanna C., No. E2016-01703-COA-R3-PT, 2017 WL 3833710, at *9 (Tenn. Ct. App.
Apr. 18, 2017); In re Selena L., No. E2015-02059-COA-R3-PT, 2016 WL 4056185, at
*10 (Tenn. Ct. App. July 27, 2016).5

In this case, no evidence was presented to the trial court demonstrating that
Mother had failed to financially support the Child or that she had the ability to pay
support from December 8, 2016, through January 6, 2017. Having determined that the
proof is insufficient to support a finding by clear and convincing evidence that Mother
willfully failed to support the Child during the entire determinative period, we reverse the
trial court’s finding on this statutory ground.

2. Abandonment Through Wanton Disregard

Mother contends that the trial court erred by finding the existence of clear and
convincing evidence that Mother had abandoned the Child through her actions prior to
incarceration, thereby exhibiting wanton disregard for welfare of the Child. Concerning
this ground, Tennessee Code Annotated § 36-1-102(1)(A)(iv) provides in pertinent part:

A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and . . . the parent or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the child . . . .

5
We note that although the parties incorrectly identified the relevant four-month period, the evidence
presented regarding abandonment by Mother’s failure to visit encompassed the entire period. The trial
court did not identify the relevant period but found that Mother had willfully failed to visit for four
months immediately prior to her incarceration. The trial court also found that Mother had not visited the
child since August 2016, which also encompassed the entire relevant four-month period. No such
evidence was presented regarding Mother’s failure to support during the first month of the determinative
period.

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(Emphasis added.)

A parent’s actions constituting wanton disregard for the welfare of a child are not
restricted to solely the four-month period prior to incarceration. See In re Audrey S., 182
S.W.3d at 871. This Court has consistently held that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support for a child can, alone or in combination, constitute conduct that exhibits a wanton
disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68; see also In
re K.F.R.T., No. E2015-01459-COA-R3-PT, 2016 WL 908926, at *4 (Tenn. Ct. App.
Mar. 10, 2016). “Simply stated, a parent’s ‘poor judgment and bad acts that affect the
children constitute a wanton disregard for the welfare of the children.’” In re T.L.G., No.
E2014-01752-COA-R3-PT, 2015 WL 3380896, at *3 (Tenn. Ct. App. May 26, 2015)
(quoting State, Dep’t of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App.
2009)).

In the instant action, the trial court determined by clear and convincing evidence
that Mother’s conduct prior to her incarceration had exhibited wanton disregard for the
Child’s welfare. The trial court specifically found that Mother had been “in and out of
jail,” having been incarcerated in October 2016 for “failure to appear and for an
attachment for child support” and in April 2017 for “failure to appear on fines and costs
and failure to appear for child support.” In its order, the trial court concluded that Mother
never provided stable housing or an appropriate environment for the Child and that
Mother had failed to pay child support. According to the trial court, Mother also had
been a victim of domestic violence and had not initiated measures to address the
situation.6 Additionally, the trial court found that Mother had not completed her
recommended alcohol and drug treatment and continued to relapse throughout the time
the Child remained in DCS custody. The trial court further found that Mother had not
successfully completed a mental health assessment, as required by the permanency plans.
The trial court explained that Mother had not complied or followed up with the mental
health assessment and had failed to make appointments with the psychological examiner.
The evidence adduced at trial supports these findings.

Mother testified that she had remained drug free for approximately eight days
prior to trial. However, Mother acknowledged that she had continued to use
methamphetamine and marijuana regularly since the Child had been in DCS custody and
admitted to using methamphetamine and marijuana as recently as two weeks prior to trial.
The trial court also found that Mother had suffered relapses throughout the time the Child
was in DCS custody. During the pendency of the case, Mother failed to complete her

6
The record reflects domestic abuse allegations concerning Mother and the biological father of her
second child born during the pendency of the dependency and neglect action.

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alcohol and drug assessment or seek treatment for her addiction. Shortly after the Child
was placed into DCS custody, the Child tested positive for methamphetamine. In July
2016, Mother gave birth to a second child. Subsequently, Mother and the newborn both
tested positive for amphetamine.7 Mother reportedly lost custody of that child through
proceedings in the state of Kentucky.

We conclude that the evidence regarding Mother’s conduct prior to her
incarceration, including her use of illegal drugs and her failure to pay child support for
the Child, supports the trial court’s determination that the statutory ground of
abandonment through wanton disregard was proven by clear and convincing evidence.
We therefore affirm the trial court’s reliance on this statutory ground for termination.
The trial court did not err in finding clear and convince evidence of abandonment through
Mother’s willful failure to visit the Child and her conduct prior to incarceration that
exhibited wanton disregard for the welfare of the Child.

B. Substantial Noncompliance with the Permanency Plans

Mother also contends that the trial court erred by finding clear and convincing
evidence that she failed to substantially comply with the reasonable responsibilities set
out in the permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides as a
ground for termination of parental rights:

(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant
to the provisions of title 37, chapter 2, part 4[.]

At the outset, Mother relies on case law prior to our Supreme Court’s opinion in In
re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). Mother states in her appellate brief
that “[r]esponsibility is also placed on [DCS], which must use reasonable efforts to also
comply with the statement of responsibilities assigned to it in the permanency plan.”
Mother thereby argues that DCS failed to make reasonable efforts to assist Mother with
the requirements on her permanency plans, warranting reversal of this statutory ground.
We note that in In re Kaliyah S., our Supreme Court held that “in a termination
proceeding, the extent of DCS’s efforts to reunify the family is weighed in the court’s
best-interest analysis, but proof of reasonable efforts is not a precondition to termination
of the parental rights of the respondent parent.” Id. Additionally, this Court has
previously explained: “The termination statute regarding the ground of substantial

7
In its judgment, the trial court found that Mother and her second child tested positive for
methamphetamine during a drug screen. However, the record indicates that Mother and the child actually
tested positive for amphetamine following the birth.

- 16 -
noncompliance with the requirements of a permanency plan contains no requirement that
DCS expend reasonable efforts to assist a parent in complying with the permanency plan
requirements.” In re Skylar P., No. E2016-02023-COA-R3-PT, 2017 WL 2684608, at *7
(Tenn. Ct. App. June 21, 2017) (citing Tenn. Code Ann. § 36-1-113(g)(2)). Because
DCS was not required to provide reasonable efforts in order to prove this ground, we will
address Mother’s issue regarding reasonable efforts in the best interest analysis.

In the case at bar, DCS developed six permanency plans involving Mother and the
Child. The first plan was developed on May 5, 2015; ratified by the trial court on June
29, 2015; and presented as an exhibit during the termination trial. Mother participated in
the development of this permanency plan. As to Mother, this plan set forth the following
responsibilities, which were approved by the trial court as reasonably related to
remedying the conditions that necessitated foster care: (1) Mother would successfully
complete parenting classes and provide proof of completion to DCS; (2) Mother would
openly and honestly complete an alcohol and drug consultation and follow all
recommendations therefrom; (3) Mother would not use or abuse illegal or prescription
drugs; (4) Mother would submit to random and scheduled drug screens to verify her
sobriety; (5) Mother would not chemically alter her hair;8 (6) the Child would have safe,
secure, and stable housing with working utilities and a supply of food; (7) Mother would
not allow any known drug users in the home or around the Child; (8) Mother would be
emotionally stable; (9) Mother would openly and honestly participate in a mental health
assessment and follow all resultant recommendations; (10) Mother would participate in
individual counseling and domestic violence counseling; and (11) Mother would sign
releases to allow DCS to obtain information from service providers.9

The second permanency plan was developed during a child and family team
meeting on November 2, 2015, and was approved by the trial court on December 21,
2015. Mother also participated in the development of this permanency plan. The plan
echoed Mother’s responsibilities from the first permanency plan and included the
following additional action steps for Mother to complete: Mother would (1) provide
proof of her income, (2) resolve all legal issues, (3) follow the rules of her probation, and
(4) remain in contact with DCS. This plan also required that Mother not serve as the
supervisor for any visits between Grandmother and the Child. The trial court found the
second permanency plan requirements to be reasonably related to remedying the
conditions necessitating foster care.

8
The record does not reflect the reasoning behind the requirement that Mother not chemically alter her
hair. Mother has not raised an issue regarding the reasonableness of any individual requirements.
9
The initial permanency plan contained requirements specific to Mother’s treatment plan while in DCS
custody, but those requirements were removed from subsequent plans after Mother reached eighteen years
of age.

- 17 -
 The third permanency plan, which was developed on March 31, 2016, and ratified
by the trial court on June 20, 2016, repeated the same requirements as the previous plans,
except for the DCS custodial treatment requirements for Mother, but provided that
Mother “re-do” her mental health assessment due to the evaluation indicating that Mother
had been untruthful. The order ratifying the third plan reflects that Mother participated in
and was in agreement with this permanency plan. In its order, the trial court found the
requirements contained in the third permanency plan to be reasonably related to
remedying the conditions necessitating foster care. The trial court entered an order
memorializing a review hearing, which occurred on September 26, 2016. The court
relieved DCS from making reasonable efforts for Mother unless she submitted herself to
the trial court and requested that reasonable efforts be made to assist her. According to
Ms. Wolfe, however, DCS continued to make reasonable efforts to assist Mother
following entry of that order. The fourth permanency plan, developed on September 6,
2016, and ratified by the trial court on October 24, 2016, included the same
responsibilities for Mother as in the previous plans.

DCS subsequently developed two additional permanency plans on March 1, 2017,
and August 31, 2017, which were respectively approved by the trial court on April 10,
2017, and October 30, 2017. By these plans, DCS removed the goal of returning the
Child to Mother and included a sole goal of adoption. DCS also removed all
requirements for Mother to complete.

Aside from Mother’s argument regarding DCS’s efforts to assist her, Mother
posits that she had “made definite improvements in her situation in efforts to regain
custody of [the Child],” including providing evidence of a lease, presenting
“documentation from Generations for treatment,” completing an alcohol and drug
assessment, completing domestic violence classes, beginning parenting classes, passing
drug screens for DCS, and participating in a psychological evaluation.10

On appeal, Mother does not further explain her actions of providing
“documentation from Generations for treatment.” However, a court order from a hearing
on February 8, 2016, stated that Mother had provided a letter from Generations
“welcoming [her] to the team.” Additionally, Mother testified at trial that she was
making progress toward gaining employment but that she needed to go to Generations.
She also offered that she had “almost a guaranteed job” but did not wish to identify it
until she had paperwork to support same.

Ms. Wolfe testified that although Mother had participated in a mental health
assessment with Scott Herman, Mr. Herman opined that Mother was being dishonest
during the assessment. According to Ms. Wolfe, she assisted Mother with scheduling

10
In her appellate brief, Mother identifies Generations as a “local treatment facility.”

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another mental health assessment, but Mother did not complete the second assessment.
Regarding noncompliance, Ms. Wolfe testified that Mother had cancelled an appointment
with Mr. Herman on June 22, 2015, for “a pre-cert for psychological evaluation”;
cancelled an appointment for a psychological evaluation on July 27, 2015; missed a re-
testing appointment with Mr. Herman on August 26, 2016; and missed appointments with
Mr. Herman on July 6, August 2, and October 12 of 2017.

In support of its June 20, 2016 order, the trial court found as follows: “[Mother]
had a psychological evaluation with a parenting component with Scott Herman. Mr.
Herman was unable to make any recommendations based on the evaluation. The parties
agreed for [Mother] to have another evaluation.” The trial court accordingly ordered that
Mother have another “evaluation” with Mr. Herman and that DCS pay for said
assessment. Mother presented no evidence to demonstrate that she had completed the
second assessment or followed through with either the psychological evaluation or any
recommendations therefrom. Additionally, in its termination judgment, the trial court
additionally found that Mother had not “successfully completed a mental health
assessment” and had not attended appointments with the psychological examiner.

According to Ms. Wolfe, Mother never provided proof that she had participated in
or completed individual counseling or domestic violence counseling. Mother related that
she did complete domestic violence classes but that a subsequent domestic incident
occurred between her and her paramour, forcing her to pursue a “redo.” Mother
presented no documentation or other evidence to corroborate her testimony that she had
participated in domestic violence classes.

The trial court found that Mother had not completed the recommended drug and
alcohol treatment. Mother testified that she had completed an alcohol and drug
assessment the month before trial, from which she had received a recommendation that
she attend inpatient treatment. Mother, however, did not attend inpatient treatment at that
time. She stated that Bradford, where she had been evaluated, did not have an immediate
opening and that she needed to pack her belongings. She acknowledged that Buffalo
Valley had an opening for inpatient treatment the following day. Regarding Buffalo
Valley, Mother further testified as follows: “[T]here was [a treatment facility] that I
could have went to the next day, but I didn’t have, like, a place to go to, and I would have
just been, I didn’t even have a ride down there.” Mother acknowledged that she did not
request transportation to that facility from Ms. Wolfe. Mother testified that because she
was clean and sober at the time of trial, she planned to return to the service provider,
hoping that the provider would now recommend outpatient treatment so she “could just
do the classes.”

As another requirement of Mother’s permanency plan, Mother was to refrain from
any illegal drug use. However, Mother admitted using methamphetamine and marijuana

- 19 -
approximately two weeks prior to the trial. Although Mother stated that she had been
sober for approximately eight days, she admitted to using methamphetamine and
marijuana regularly throughout the time the Child was in DCS custody.

According to Ms. Wolfe, Mother had been living in two other states and had not
maintained contact with DCS. In its February 2016 order, the trial court stated that
Mother had provided a lease for housing. The evidence demonstrated that Mother had
relocated residences after that date, residing in Tennessee, Arkansas, and Kentucky. The
record does not reflect whether Mother provided evidence of subsequent leases or how
long Mother had remained in her current home.

Concerning the requirement to pay child support, the trial court found that Mother
had not been paying her obligation. The evidence demonstrated that Mother had been
incarcerated due to her failure to pay child support. According to Mother, she had a court
hearing scheduled regarding child support on the day of trial and was planning to pay
toward her arrearage.

Ms. Wolfe testified that Mother had not provided proof to her of anything Mother
had completed with respect to the permanency plans. Upon a thorough review of the
record, we determine that the evidence preponderates in favor of the trial court’s finding
by clear and convincing evidence that Mother had failed to substantially comply with the
reasonable requirements in her permanency plans.

C. Persistence of Conditions

Mother further contends that the trial court erred by determining that the
conditions leading to the removal of the Child from her custody persisted. Regarding this
statutory ground, the version of Tennessee Code Annotated § 36-1-113(g)(3) (2017) in
effect at the time this action was commenced provided:11

11
Effective July 1, 2018, subsequent to the commencement of the instant action, the General Assembly
has amended Tennessee Code Annotated § 36-1-113(g)(3), replacing the former language in its entirety
with the following:

(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;

- 20 -
 (3) The child has been removed from the home of the parent or guardian
by order of a court for a period of six (6) months and:

(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent or parents or the guardian or guardians, still persist;

(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely
returned to the parent or parents or the guardian or guardians
in the near future; and

(C) 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 . . . .

A prior court order adjudicating the child to be dependent, neglected, or abused is an
essential requirement of a court’s termination of parental rights upon the ground of
persistence of conditions. See In re Audrey S., 182 S.W.3d at 874. As this Court
explained, the statutory ground of persistence of conditions “applies as a ground for
termination of parental rights only where the prior court order removing the child from
the parent’s home was based on a judicial finding of dependency, neglect, or abuse.” See
id.

In the case at bar, the Child was removed from Mother’s custody in April 2015.
The trial court subsequently entered an order in September 2015, finding the Child to be
dependent and neglected due to Mother’s lack of housing for the Child, her inability to

(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.

2018 Tenn. Pub. Acts, Ch. 875, § 10 (H.B. 1856). This amendment is not applicable to the instant action.

- 21 -
support or care for the Child, and the Child’s positive test on a drug screen for
methamphetamine. Regarding the statutory ground of persistence of conditions, the trial
court based its determination on Mother’s failure to maintain stable housing,
incarcerations, failure to pay child support, failure to complete the recommended alcohol
and drug treatment, failure to remedy her domestic violence situation, ongoing drug use,
past relapses, and failure to “successfully complete” a mental health assessment or attend
appointments.

By reason of these circumstances, the trial court found by clear and convincing
evidence that Mother had not remedied the conditions that led to the Child’s removal
from her custody and that other conditions persisted that would, in all probability, cause
the Child to be subjected to further abuse and neglect. The trial court also found that
there was little likelihood that Mother would remedy these conditions at an early date so
that the Child could be returned to Mother’s custody and that continuation of the legal
parent-child relationship would greatly diminish the Child’s chances of early integration
into a stable and permanent home.

Although Mother had experienced a short period of sobriety prior to the
termination trial, the Child had been in DCS custody for nearly three years. Mother
admitted to using methamphetamine throughout that time and acknowledged illegal drug
use of methamphetamine and marijuana as recently as two weeks prior to trial. As
previously determined, Mother had also not substantially complied with the reasonable
requirements of her permanency plans. Upon a thorough review of the record, we
conclude that the evidence does not preponderate against the trial court’s finding by clear
and convincing evidence that the conditions leading to removal still persisted, that other
conditions persisted that would in all probability cause the Child to be subjected to
further abuse and neglect, that it was unlikely that the conditions would be remedied in
the near future, and that continuation of the parent/child relationship would diminish the
Child’s chances of early integration into a stable and permanent home. We therefore
affirm this statutory ground for termination of Mother’s parental rights.

D. Failure to Manifest an Ability and Willingness to Assume Custody or Financial
Responsibility of the Child

Mother asserts that DCS failed to present clear and convincing evidence to support
termination of her parental rights pursuant to Tennessee Code Annotated § 36-1-
113(g)(14) (2017). This subsection, which was added to the statutory framework
effective July 1, 2016, see 2016 Tenn. Pub. Acts, Ch. 919 § 20 (S.B. 1393), provides as
an additional ground for termination:12

12
Effective July 1, 2018, Tennessee Code Annotated § 36-1-113(g)(14) has been amended to substitute
the phrase, “A parent,” in place of “A legal parent.” See 2018 Tenn. Pub. Acts, Ch. 875, § 12 (H.B.

- 22 -
 A legal parent or guardian 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.

Upon our careful review of the record, we determine that the trial court did not err in
finding that clear and convincing evidence existed to support this statutory ground for
termination of Mother’s parental rights.

This Court has recently explained the following with regard to this ground for
termination of parental rights:

Essentially, this ground requires DCS to prove two elements by clear and
convincing evidence. First, DCS must prove that [the parent] failed to
manifest “an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child[ren].” Tenn. Code
Ann. § 36-1-113(g)(14). DCS must then prove that placing the children in
[the parent’s] “legal and physical custody would pose a risk of substantial
harm to the physical or psychological welfare of the child[ren].” Id.

***

We have made the following observations about what constitutes
“substantial harm”:

The courts have not undertaken to define the circumstances
that pose a risk of substantial harm to a child. These
circumstances are not amenable to precise definition because
of the variability of human conduct. However, the 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.

Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted).

1856). This amendment is not applicable to the instant action.

- 23 -
In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7-8 (Tenn. Ct.
App. Apr. 4, 2018) (additional internal citations omitted).

This Court has held that the first prong of Tennessee Code Annotated § 36-1-
113(g)(14) requires that the petitioner prove that a parent has failed to meet the
requirement of manifesting both a willingness and an ability to assume legal and physical
custody of the child or has failed to meet the requirement of manifesting both a
willingness and an ability to assume financial responsibility of the child. In re Amynn K.,
No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *14 (Tenn. Ct. App. June 20,
2018); but see In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7
(Tenn. Ct. App. May 31, 2018) (reversing this ground for termination when parents were
unable but willing to assume custody and financial responsibility of their children).
Regarding willingness, a parent’s actions can demonstrate a lack of willingness to assume
custody of or financial responsibility for the Child. See In re Keilyn O., No. M2017-
02386-COA-R3-PT, 2018 WL 3208151, at *8 (Tenn. Ct. App. June 28, 2018); In re
Amynn K., 2018 WL 3058280, at *15.

Regarding the first prong in the instant action, the trial court found that DCS had
proven by clear and convincing evidence that Mother had not manifested an ability and
willingness to personally assume legal and physical custody of the Child or financial
responsibility for the Child. Although Mother had testified that she was recently sober,
she admitted to using methamphetamine and marijuana throughout the case and as
recently as two weeks before trial. Following an alcohol and drug assessment, the service
provider recommended that Mother complete inpatient treatment, which Mother had
failed to do. Although Mother participated in a mental health assessment, the provider
opined that Mother was not being truthful. Accordingly, the parties agreed and the trial
court ordered that Mother complete a second assessment at DCS’s expense. Mother did
not complete the second assessment. Additionally, Mother had not been paying child
support for the Child. Based on the foregoing, we agree with the trial court’s
determination by clear and convincing evidence that Mother was not able or willing to
assume physical or legal custody of or financial responsibility for the Child.

The second prong of this statutory ground requires DCS to prove by clear and
convincing evidence that placing the Child in Mother’s legal and physical custody would
pose a risk of substantial harm to the Child’s physical and psychological welfare. In
addition to Mother’s illegal drug use, Mother had not maintained consistent contact with
the Child, and, according to Ms. Wolfe, Mother did not have a relationship with the
Child. Furthermore, the Child had been residing with the same foster parents since he
entered DCS custody in April 2015. The Child had bonded with the foster parents, who
wished to adopt him. By the time of trial, Mother had gone several months without

- 24 -
visiting the Child. The trial court consequently found that the Child was “not sure who
[Mother was] anymore.”

Based on the foregoing, the trial court found that DCS had met its burden
regarding this prong. Upon careful review of the record, we agree. The evidence does
not preponderate against the trial court’s finding that placing the Child into Mother’s
custody would pose a risk of substantial harm to the Child’s physical and psychological
welfare. Accordingly, we affirm the trial court’s determination by clear and convincing
evidence regarding this statutory ground for termination of Mother’s parental rights.

V. Best Interest of the Child

Mother contends that the trial court erred by finding that termination of Mother’s
parental rights was in the best interest of the Child. We disagree. When a parent has
been found to be unfit by establishment of at least one statutory ground for termination of
parental rights, as here, the interests of parent and child diverge, and the focus shifts to
what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877; see also In re
Carrington H., 483 S.W.3d at 523 (“‘The best interests analysis is separate from and
subsequent to the determination that there is clear and convincing evidence of grounds
for termination.’” (quoting In re Angela E., 303 S.W.3d 240, 254 (Tenn. 2010))).
Tennessee Code Annotated § 36-1-113(i) (2017) provides a list of factors the trial court is
to consider when determining if termination of parental rights is in a child’s best interest.
This list is not exhaustive, and the statute does not require the court to find the existence
of every factor before concluding that termination is in a child’s best interest. See In re
Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy
and weight to be given each factor depends on the unique facts of each case.”).
Furthermore, the best interest of a child must be determined from the child’s perspective
and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:

(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;

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(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;

(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;

(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the
home, or whether there is such use of alcohol, controlled substances
or controlled substance analogues as may render the parent or
guardian consistently unable to care for the child in a safe and stable
manner;

(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for
the child; or

(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department
pursuant to § 36-5-101.

As our Supreme Court recently explained regarding the best interest analysis:

“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d at 254.

When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at

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 523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
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 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). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
more weight—even outcome determinative weight—to a particular
statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).

On appeal, Mother argues that the trial court focused “too weighty on the wrong
factors” in making its decision to terminate Mother’s parental rights. According to
Mother, the trial court assigned too much emphasis on its findings that Mother had failed

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to visit the Child, that Mother had no meaningful relationship with the Child, and that a
change in caretakers would have a negative effect on the Child. Mother further argues
that although “[t]hese circumstances may have existed,” the trial court “fail[ed] to
account for the fact that it could refuse to terminate Mother’s rights but not return
custody to Mother at the same time.”

We emphasize that a trial court’s determination of the relevancy and weight that it
provides to each statutory factor in Tennessee Code Annotated § 36-1-113(g) and other
factors it deems relevant can vary on a case-by-case basis. See In re Audrey S., 182
S.W.3d at 878. The factors specifically enumerated in the statute require, inter alia, that
the trial court consider whether the parent has maintained consistent visitation with the
child (factor three), whether a meaningful relationship has been established between the
parent and the child (factor four), and the effect that a change of caretakers would have
on the child’s emotional, psychological, and medical condition (factor five). See Tenn.
Code Ann. § 36-1-113(i). Here, the trial court recognized the Child’s bond with the
foster parents and their desire to adopt him, as well as Mother’s lack of a relationship
with the Child due to her failure to visit him. The trial court considered those factors and
determined that they weighed in favor of terminating Mother’s parental rights.

In its final judgment, the trial court also recognized the Child’s need for
permanency and stability through its determination that the Child’s interest would be best
served by being released from foster care. Although the Child’s need for permanency or
to be released from foster care are not specifically identified as statutory factors, the trial
court was not limited to only the enumerated factors when determining if termination of
Mother’s parental rights is in the best interest of the Child. See Tenn. Code Ann. § 36-1-
113(i). Mother further contends that the trial court did not consider its option to not
terminate her parental rights but also not return custody to her. However, the trial court
ostensibly considered that option when articulating its finding regarding the Child’s need
to be released from foster care, finding that it weighed in favor of terminating Mother’s
parental rights.

In its best interest analysis, the trial court also considered, as relevant to factor
one, that Mother had failed to make an adjustment in her circumstances, conduct, or
conditions that would make it safe and in the Child’s best interest to be in the home of
Mother. See id. The trial court specifically found that Mother had made no change or
adjustment of her circumstances “at all from day one until the day of this hearing.”
Moreover, Mother had not substantially complied with the requirements of her
permanency plan. Mother continued to use illegal drugs throughout the case and had
failed to complete drug treatment. The trial court weighted this factor in favor of
terminating Mother’s parental rights as well.

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 As relevant to factor two, the trial court found that Mother failed to effect a lasting
adjustment to her circumstances after being provided with reasonable efforts by DCS to
assist her for such duration of time that a lasting change did not reasonably appear
possible. See id. We now address Mother’s previous argument that the trial court erred
by finding that DCS had exerted reasonable efforts to assist her in regaining custody of
the Child. This argument is relevant with reference to factor two in the best interest
analysis. See id. at (2) (“Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services agencies for such duration
of time that lasting adjustment does not reasonably appear possible[.]”); In re Kaliyah S.,
455 S.W.3d at 555. The trial court expressly found that DCS had exerted reasonable
efforts to assist Mother throughout the case. Considering the record, we agree.

In its final judgment, the trial court found that DCS “made services available to
[Mother], but she did not take advantage of them.” In support, Ms. Wolfe testified that
DCS had made reasonable efforts to assist Mother with visitation and with the
requirements of her permanency plans. Specifically, Ms. Wolfe stated that she had
provided Mother with her contact information and her supervisor’s contact information,
conducted drug screening, and provided Mother with transportation. Ms. Wolfe also
testified that she had assisted Mother with setting up and scheduling in-home services, an
alcohol and drug assessment, and a mental health assessment. According to Ms. Wolfe,
she had scheduled several appointments for Mother that Mother failed to attend. Ms.
Wolfe also described an occasion when she transported Mother around the area in an
effort to help Mother seek employment.

According to Ms. Wolfe, she attempted to locate Mother when Mother was not in
contact with DCS. Because Mother had reached eighteen while in foster care, Ms. Wolfe
had assisted her with extension of foster care services. Although Mother had enrolled in
an extension of foster care services for a period of time, she ultimately decided that it was
not in her best interest and that she should seek employment. According to Ms. Wolfe,
she had continued to invite Mother to child and family team meetings and meetings to
develop the permanency plans. Mother acknowledged that Ms. Wolfe had attempted to
assist her and appeared genuinely concerned about Mother’s health and welfare. Upon
complete review, we determine that the evidence preponderates in favor of the trial
court’s finding that DCS had provided reasonable efforts to assist Mother.

Upon its determination that DCS had made reasonable efforts to assist Mother but
that Mother had failed to take advantage of the services offered, the trial court further
found in relation to factor two that Mother was “no closer to effecting a lasting
adjustment than she was in 2015.” The trial court thereby weighed this factor in favor of
terminating Mother’s parental rights. See Tenn. Code Ann. § 36-1-113(i). The trial court
did not expressly weigh factor six, specifically whether Mother or an individual residing
with her had “shown brutality, physical, sexual, emotional or psychological abuse, or

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neglect toward the child,” either in favor of or against termination. See id. However, the
trial court did note in another section of its order that Mother had failed to address
domestic violence concerns in her life.

In relation to factor seven, the trial court found that Mother’s home was unhealthy
and unsafe due to criminal activity and drug use in the home. See id. Furthermore, the
court determined that Mother was consistently unable to care for the Child in a safe and
stable manner due to Mother’s use of alcohol and controlled substances. The trial court
specifically found that Mother continued using drugs and admitted to using
methamphetamine and marijuana two weeks prior to trial. For those reasons, the trial
court determined that this factor weighed in favor of terminating Mother’s parental rights.

As to factor eight, the trial court determined that Mother’s “mental and/or
emotional status” would be detrimental to the Child. See id. On this point, the trial court
found that Mother had “mental and emotional problems and issues” that were “not by her
own making.” The court recognized that Mother endured a “bad situation” when she was
younger. The record reflects that Mother was in foster care as a child due to her parents’
own illegal drug use. The trial court found that those problems needed to be addressed
by Mother but that she had failed to properly do so. The trial court therefore found that
this factor weighed in favor of the termination of Mother’s parental rights.

Factor nine relates to whether Mother had paid child support for the Child. See id.
The trial court found that Mother had not been paying child support or had paid only a
token amount despite the income she had received. Therefore, the trial court found that
this factor weighed in favor of the termination of Mother’s parental rights.

Upon a thorough review of the record in light of the statutory factors, we
determine that the evidence supports the trial court’s finding by clear and convincing
evidence that termination of Mother’s parental rights was in the Child’s best interest.
Having also determined that statutory grounds for termination were established, we
affirm the trial court’s termination of Mother’s parental rights.

VI. Conclusion

For the foregoing reasons, we reverse the trial court’s finding regarding the
statutory ground of abandonment for failure to pay child support. We affirm the trial
court’s judgment in all other respects, including the termination of Mother’s parental
rights to the Child. We remand this case to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and collection of costs assessed below. Costs
on appeal are assessed to the appellant, Alexis F.

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 _________________________________
THOMAS R. FRIERSON, II, JUDGE

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