02/27/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 3, 2020
IN RE JADARIAN C. ET AL.
Appeal from the Juvenile Court for Knox County
No. 164307 Timothy E. Irwin, Judge
___________________________________
No. E2019-01710-COA-R3-PT
___________________________________
The trial court terminated Mother’s parental rights on grounds of abandonment by failure
to establish a suitable home, substantial noncompliance with permanency plans,
persistence of conditions, and willingness and ability to assume legal and physical
custody or financial responsibility of the children. Mother appeals both the grounds for
termination and that termination was in her children’s best interest. Discerning no error,
we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which RICHARD H.
DINKINS, and THOMAS R. FRIERSON, II, JJ., joined.
Anna East Corcoran, Knoxville, Tennessee, for the appellant, Mahogany C.
Herbert H. Slatery, III, Attorney General and Reporter; Matt D. Cloutier, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.
OPINION
I. BACKGROUND
On March 13, 2019, Petitioner/Appellee the Tennessee Department of Children’s
Services (“DCS”) filed a petition to terminate the parental rights of
Respondent/Appellant Mahogany C. (“Mother”) as to her three children JaDarian M.C.,
born in 2013, La’Niah G.M.C., born in 2014, and Raylen A.C., born in 2017.1 The
1
In cases involving termination of parental rights, it is this Court’s policy to remove the full
names of children and other parties to protect their identities.
petition, filed in Knox County Juvenile Court (“the trial court”), alleged the following as
grounds for termination: abandonment by failure to establish a suitable home, substantial
noncompliance with permanency plans, persistence of conditions, and failure to manifest
a willingness and ability to assume custody or financial responsibility for the children.
Mother filed a pro se answer denying that her rights should be terminated and a formal
answer after counsel was appointed.
A trial was held on August 22, 2019. In addition to DCS, Mother, her counsel, and
the guardian ad litem were present. First to testify was DCS foster care case manager
Leslie Shaw. Ms. Shaw detailed DCS’s involvement with Mother, which began when
Mother’s oldest child, JaDarian, was severely burned on his feet in an attempt to take a
bath in December 2017. Mother was not present; rather the children were being
supervised by Mother’s then-boyfriend. The burns required overnight hospitalization, but
the children were not immediately removed. Instead, in the weeks thereafter, Mother
failed to bring JaDarian to multiple appointments related to his injuries and ran out of a
prescription of pain pills earlier than expected. As a result, DCS filed a petition to declare
the children dependent and neglected in the trial court in January 2018.
Initially, the children remained in Mother’s custody notwithstanding DCS’s
intervention. However, a drug test administered on February 26, 2018, showed Mother
positive for methamphetamines and THC. The children’s guardian ad litem thereafter
filed a petition for emergency removal of the children on or about March 9, 2018. The
juvenile court ordered Mother to undergo hair follicle drug screening. The test, performed
on March 13, 2018, was positive for cocaine. As a result, the children were placed in
DCS custody by order of the trial court on March 16, 2018. Therein, the trial court found
that there was probable cause to believe that the children were dependent and neglected
due to Mother’s positive drug screening. Mother was ordered to pay child support in the
amount of $40.00 per month, per child, or $120.00 per month. According to Ms. Shaw,
the trial court thereafter adjudicated the children dependent and neglected on May 8,
2018.2
Two permanency plans were created by DCS, agreed to by Mother, and ratified by
the trial court. The plans generally required that Mother: (1) pay child support and visit
regularly; (2) complete an alcohol and drug assessment and follow recommendations; (3)
complete a mental health assessment and follow recommendations; (4) participate in
substance abuse aftercare, such as Narcotics Anonymous; (5) participate in medication
management, if necessary; (6) complete parenting education; (7) obtain and maintain a
legal source of income; (8) allow quarterly home visits; (9) obtain safe and stable
housing; (10) maintain a reliable transportation plan; and (11) comply with all court
2
The record contains an order adjudicating the children dependent and neglected based on a
hearing that occurred on May 8, 2018. This order, however, does not contain a stamp-file indicating the
date of its filing.
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orders. Mother signed a Criteria & Procedures for Termination of Parental Rights on
November 27, 2018.
Mother was renting an apartment at the time of the removal of the children.
Following the removal, DCS conducted several home visits of Mother’s home.
Sometimes, the home was clean and appropriate. On more than one occasion, however,
DCS found suspected drug use in the home, twice finding marijuana cigars in the home
and once when the home had the overwhelming smell of marijuana. Mother blamed these
incidents on people visiting her, including an ex-boyfriend and Mother’s close childhood
friend. The most recent incident occurred in May 2019, after which Mother was asked to
complete the nail bed drug testing. During some visits, DCS also found garbage and
rotting food in the home.
Mother reported that the apartment suffered significant maintenance issues,
including leaking and mold, that her landlord would not fix. As such, Mother refused to
pay her rent of $130.00 per month for three months; as a result, Mother was evicted from
her home. Mother later testified that she could not obtain another apartment because she
did not receive services to help her pay the $650.00 security deposit. At the time, Mother
was making $9.50 per hour working forty hours per week. Mother claimed that she was
not able to use the money she saved by not paying rent to put toward the security deposit,
as she was required to save the money for first and last month’s rent and for other
expenses; Mother’s claimed expenses included hygienic necessities, groceries,3 some
eating out, and hair weave. Mother had various jobs throughout the period the children
were in DCS custody. Mother often paid support, but not always. In the eleven months
before trial, Mother had paid approximately $360.00 in support for her three children.
Following her eviction, Mother moved in with a family friend.4 Mother testified
that this home had two bedrooms and that she and the three children would share one
bedroom where she had installed two bunkbeds. DCS was unable to perform a home
study at this location because Mother did not inform DCS of her location until
immediately before trial. At trial, Mother appeared to concede that her current housing
situation was temporary and not appropriate for the children. For instance, when asked
what tasks Mother had not completed under the permanency plans, Mother answered that
“The only thing I need to do is get housing for me and my children, and that is the only
thing I’m trying to do. That’s the only thing I’m focused on right now, is getting housing
for them. But other than everything else, I have done to the best of my ability.” Mother
also called DCS in the days before trial to inquire as to whether living in a hotel would be
“safe enough” for the children to return to her custody.
3
There was no proof that Mother received food stamps.
4
Mother repeatedly refers to this individual as her “aunt” in her appellate brief. There was no
testimony that this person was Mother’s aunt at trial.
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Mother was administered several drug screens both before and after the removal of
the children. Mother tested positive for THC and methamphetamines in a February 26,
2018 screening and positive for cocaine on March 13, 2018. Following the March 2018
drug screening, however, every test that Mother took came back negative for all
substances, including a July 19, 2019 test.5 Mother admitted, however, that she had not
completed any substance abuse aftercare or intensive outpatient treatment, as had been
recommended by an initial assessment; Mother claimed that a subsequent assessment
determined that she did not need this treatment. Additionally, on May 16, 2019, DCS
requested that Mother take a nail bed drug screen. Although Mother agreed to take the
drug screen, she failed to do so. DCS gave Mother a second opportunity to complete the
drug screen, but Mother again failed to appear. Mother testified that her inability to
appear for the screening related to her lack of transportation to the location; Mother
admitted that she never considered asking DCS for help with transportation even though
DCS had provided rides to Mother for drug screens in the past.
Mother testified that she owned a non-working vehicle but that she had no valid
driver’s license. As such, Mother’s primary mode of transportation was the bus. When
Mother missed appointments, she often blamed her lack of reliable transportation. And
missed appointments were often an issue for Mother. For example, after Mother
completed mental health and alcohol and drug assessments, she was required to attend
twice monthly therapy sessions. Mother attended between eleven and thirteen therapy
sessions, or approximately half that she was scheduled to attend during the relevant time
period. Due to Mother’s behavior in missing visits with the children, a protocol was put
into place requiring Mother to arrive early for visits and call DCS twenty-four hours in
advance to confirm; Mother sometimes failed to comply, resulting in her missing
additional visits. Ultimately, Mother missed approximately seventeen of her forty visits
following the removal, including the visit immediately before trial, which Mother
testified she missed because she forgot to give DCS advance notice. According to Ms.
Shaw, the children were upset when Mother failed to appear for visits, crying and
believing that they did something wrong.
When Mother did attend the visits, however, they did not always go well.
Although the children recognize Mother and call her “Mommy,” DCS had concerns that
Mother was not using the skills she learned in parenting classes during the visits. For
example, Mother placed the youngest child in a 20-minute timeout, a harsh and
inappropriate punishment given the child’s age, and yelled at the children “a lot.” Mother
also had difficulty supervising all of the children, focusing primarily on the younger
children. Mother initially forgot to bring necessary items to the visitations, although she
had improved prior to trial. Due to issues with the visitation, Mother’s supervised
visitation was changed to therapeutic visitation in the second permanency plan.
5
From the record, it appears that Mother may have also taken a drug screening the day before
trial, which was also negative for illegal substances.
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According to Ms. Shaw, Mother made improvements in her parenting “at the very end.”
Foster Mother testified that the children are thriving and well-cared for in foster
care. The children were placed in an initial foster home following the removal. On June
1, 2019, however, the first placement was disrupted due to marital problems experienced
by the first foster family, as well as some behaviors of the children. The children were
then placed with Foster Mother and her husband, where they remained at the time of trial.
The children are the only children in the home. While the girls share a bedroom, JaDarian
has his own room. The children play sports, including football and swim team. JaDarian
has an individualized education plan to help with his speech delay, for which he receives
in-school assistance. The youngest child suffers from a form of epilepsy, which requires
medication and medical appointments. The two oldest children also attend “biweekly”
mental health therapy appointments.6 Foster Mother testified that it is her family’s
intention to adopt the children should they become available.
At the conclusion of trial, the trial court orally ruled that DCS had proven each of
the grounds alleged in the petition, as well as that termination was in the children’s best
interests. A written order terminating Mother’s parental rights was subsequently entered
on October 4, 2019. Mother timely appealed to this Court.
II. ISSUES PRESENTED
On appeal, Mother challenges each of the grounds found by the trial court, as well
as the trial court’s finding that termination is in the children’s best interest.
III. STANDARD OF REVIEW
The Tennessee Supreme Court has previously explained that:
A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois,
405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896
S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578–
79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. .
. .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
6
It is not apparent from the record whether these appointments occur twice a week or every other
week.
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child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303
S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 52223 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute which identifies
“‘situations in which that state’s interest in the welfare of a child justifies interference
with a parent’s constitutional rights by setting forth grounds on which termination
proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. §
36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1)
existence of one of the statutory grounds and (2) that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interests by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W. 3d at 546. Clear
and convincing evidence “establishes that the truth of the facts asserted is highly probable
. . . and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from evidence[,]” and “produces in a fact-finder’s mind a firm belief
or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004).
In termination cases, appellate courts review a trial court’s factual findings de
novo and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at
52324 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281
S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn.
2007)). Our supreme court further explains:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at
393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally,
all other questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of correctness. In re
Angela E., 303 S.W.3d at 246.
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In re Carrington H., 483 S.W.3d at 524.
Lastly, in the event that the “resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying, is in a far better position than
this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct.
App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore
“gives great weight to the credibility accorded to a particular witness by the trial court.”
In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn.
Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
IV. DISCUSSION
A. Grounds for Termination
The trial court found four grounds for termination of Mother’s parental rights:
abandonment by failure to establish a suitable home, substantial noncompliance with
permanency plans, persistence of conditions, and failure to manifest a willingness and
ability to assume custody or financial responsibility for the children. We will therefore
consider each ground in turn.
1. Abandonment by Failure to Establish a Suitable Home
Under Tennessee Code Annotated section 36-1-113(g)(1), “[a]bandonment by the
parent or guardian, as defined in § 36-1-102” may constitute a ground for termination.
Section 36-1-102(a) in turn contains several definitions for the statutory ground of
abandonment. The relevant definition of abandonment provides as follows:
(a) The child has been removed from the home or the physical or legal
custody of a parent or parents or guardian or guardians by a court order at
any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and the child
was placed in the custody of the department or a licensed child-placing
agency;
(b) The juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-placing
agency made reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable efforts from
being made prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent or parents
or the guardian or guardians to establish a suitable home for the child, but
that the parent or parents or the guardian or guardians have not made
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reciprocal reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that they will be able to provide a suitable home for the child at an
early date. The efforts of the department or agency to assist a parent or
guardian in establishing a suitable home for the child shall be found to be
reasonable if such efforts equal or exceed the efforts of the parent or
guardian toward the same goal, when the parent or guardian is aware that
the child is in the custody of the department; . . . .
Tenn. Code Ann. § 36-1-102(a)(ii).
Here, there is no dispute that the children were removed from Mother’s home and
custody by order of March 16, 2018. Tenn. Code Ann. § 36-1-102(a)(ii)(a). In this order,
the juvenile court specifically found that DCS made reasonable efforts to prevent the
removal. Tenn. Code Ann. § 36-1-102(a)(ii)(b). Mother’s brief does contain minimal
argument concerning whether DCS made reasonable efforts following the removal.
Mother concedes in her brief, however, that DCS did work with Mother to provide
referrals for services, assistance with housing, bus passes, therapeutic parenting services,
and frequent drug screens. The trial court found that DCS exercised reasonable efforts in
this case, including by providing
supervised visitation, ongoing case management, resource guide, child
support services, random drug screens, home visits, nailbed drug testing,
mental health assessment and treatment, alcohol and drug assessment and
treatment, individual therapy, bus passes, assistance with housing appeal
process, housing resources, therapeutic visitation, parenting classes, and
diligent search for potential fathers of the children.
We agree that these efforts were sufficient both under the circumstances and compared to
Mother’s efforts.
Despite these efforts, Mother has failed to establish a suitable home for the
children. In the months following the removal of her children, Mother was living in an
apartment. Although this apartment was sometimes appropriate for the children, home
visits showed that Mother at the very least allowed people visiting her to use marijuana in
the home, despite knowing that her children were removed in part due to drug issues.
This drug use occurred even months after the termination petition was filed, as late as
May 15, 2019. A suitable home requires more than a safe physical structure, but also
must be free from illegal drug use. See In re Jonathan F., No. E2014-01181-COA-R3-
PT, 2015 WL 739638, at *12 (Tenn. Ct. App. Feb. 20, 2015).
Even if this home had been appropriate, however, it was not permanent. Due to
maintenance issues, Mother refused to pay rent on the apartment, resulting in her
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eviction. Mother thereafter failed to inform DCS where she was living until the day
before trial, preventing DCS from inspecting this home. Finally, Mother admitted at trial
that she could not provide a safe and stable home for the children at that time, conceding
that she was still working on that particular necessity. Cf. In re B.D., No. M2008-01174-
COA-R3-PT, 2009 WL 528922, at *12 (Tenn. Ct. App. Mar. 2, 2009) (holding that a
parent’s “past efforts cannot compensate for her present [lack of housing.]”). Thus, the
trial court’s description of Mother’s current living situation as essentially “relying on the
good will” of a friend in order to provide a home for her children, is accurate. Indeed,
Mother’s current living situation is so precarious that she asked DCS in the days before
trial if moving to a hotel would be sufficient to provide the children with an appropriate
home. Under these circumstances, we cannot conclude that the trial court erred in
determining that Mother had yet to establish a suitable home and that based on her
choices, she “appears unlikely [to] be able to provide a suitable home for the child[ren] at
an early date.” Tenn. Code Ann. § 36-1-102(a)(ii)(c). This ground is therefore affirmed.
2. Substantial Noncompliance with Permanency Plans
Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), a ground for
termination exists when “[t]here has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan pursuant to title 37,
chapter 2, part 4[.]” Two permanency plans were ratified in this case with generally the
same requirements: (1) pay child support; (2) visit regularly; (3) complete an alcohol and
drug assessment and follow recommendations; (4) continue substance abuse aftercare; (5)
complete a mental health assessment and follow recommendations; (6) participate in
medication management, if required; (7) complete parenting education; (8) obtain and
maintain safe and stable housing; (9) obtain and maintain a legal source of income; (10)
allow quarterly home visits; (11) comply with all court orders, and (12) obtain and
maintain a safe and reliable transportation plan.
The determination of whether there has been substantial noncompliance with a
permanency plan is a question of law, to be reviewed on appeal de novo with no
presumption of correctness. In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002).
Termination of parental rights under Tennessee Code Annotated section 36-1-113(g)(2)
“requires more proof than that a parent has not complied with every jot and tittle of the
permanency plan.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). To
succeed under section 36-1-113(g)(2), DCS “must demonstrate first that the requirements
of the permanency plan are reasonable and related to remedying the conditions that
caused the child to be removed from the parent’s custody in the first place.” In re M.J.B.,
140 S.W.3d at 656–57 (citing In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124
S.W.3d 609, 621 (Tenn. Ct. App. 2003)). Second, DCS must show that “the parent’s
noncompliance is substantial in light of the degree of noncompliance and the importance
of the particular requirement that has not been met.” In re M.J.B., 140 S.W.3d at 657
(citing In re Valentine, 79 S.W.3d at 548–49; In re Z.J.S., No. M2002-02235-COA-R3-
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JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003)).
Although the trial court did not make a specific finding that the permanency plan
requirements were reasonable and related to remedying the conditions that caused the
removal, Mother does not dispute that the plans’ requirements met this standard. We
agree. Cf. In re Valentine, 79 S.W.3d at 547 (“Because the trial court made no finding
regarding the reasonableness of Ms. Wallace’s responsibilities under the permanency
plans, our review of this issue is de novo.”). Here, the requirements were agreed to by
Mother in the trial court. Moreover, the requirements were related to the mental health,
substance abuse, and environmental issues that led to the removal of the children and
which prevented family reunification following the removal. Id. (“Conditions
necessitating foster care placement may include conditions related both to the child’s
removal and to family reunification.”) As such, DCS met its burden to show the
reasonableness of the requirements in this case.
The question of whether Mother substantially failed to comply with the
permanency plan requirements is a somewhat closer question. Here, Mother asserts that
she generally complied with the requirements of the plan by utilizing the bus as a
transportation plan, maintaining a job, participating in assessments and parenting classes,
attending visitations and counseling, paying some child support, and passing multiple
drug screenings. Moreover, Mother contends that while she did not follow some of the
recommendations from her assessments, some requirements were deleted after follow-up
assessments concluded that Mother no longer needed more intensive drug treatment.
Thus, Mother asserted at trial that the only requirement that she had not met was to obtain
safe and stable housing.
The trial court disagreed, however, and made the following findings with regard to
this ground:
[Mother] has not substantially complied with the responsibilities and
requirements set out for her in the permanency plans. [Mother] has not:
paid child support regularly, visited the children regularly, completed the
recommendations of her mental health and alcohol and drug assessments,
obtained and maintained safe and stable housing, obtained a safe and
reliable transportation plan, successfully completed therapeutic visitation,
allow home visits, maintain legal income and demonstrate the skills learned
in parenting education. [Mother] has continued to allow people in the home
including former boyfriends, her brother, and other friends that are
inappropriate. DCS conducted unannounced home visits in which clutter,
environmental concerns, drug paraphernalia, and marijuana were observed;
additionally, the DCS case manager observed different adults to be staying
with [Mother] in her home and testified she smelled marijuana in the home
on multiple occasions. [Mother] has not maintained regular visitation with
her children.
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Thus, the trial court specifically resolved some factual disputes against Mother, including
her contention that she complied with the recommendations of her assessments, that she
regularly visited and paid support, and that she had an appropriate transportation plan.
The evidence does not preponderate against these factual findings. For example, while
Mother claimed that she was no longer required to participate in more intensive drug
treatment, she provided no documentation to support her testimony. Moreover, the
evidence shows that Mother missed a substantial number of visits and counseling
sessions. Thus, while Mother’s use of the bus in and of itself is certainly not problematic,
the fact that she continued to miss necessary appointments due to claimed issues
regarding transportation shows that Mother’s transportation plan is not sufficient to meet
her needs. Moreover, the trial court was correct that Mother did not consistently pay the
$120.00 per month in support as she had been ordered.7
Given these findings, we must agree with the trial court that Mother’s
noncompliance was substantial. Importantly, the children were removed from Mother’s
home in part due to her positive drug screenings. Although Mother appears to be
maintaining her sobriety, she missed an important nail bed drug screening and continued
to allow people into her home that actively used drugs even after the termination petition
was filed. The importance of maintaining a home free from drugs simply cannot be
overstated. Cf. In re M.J.B., 140 S.W.3d at 657 (noting that the substantiality of a
parent’s noncompliance may be dependent on “the importance of the particular
requirement”). Mother’s inability to find adequate transportation was also troubling, as
this impacted her ability to maintain contact with the children and treat her mental health
and substance abuse issues through regular counseling. Finally, Mother admitted at trial
that she had so far been unable to make progress in obtaining safe and stable housing for
the children; instead, Mother relied on the kindness of a third-party for housing. Under
these circumstances, we cannot conclude that the trial court erred in its determination that
Mother had substantially failed to comply with the permanency plans.
3. Persistence of Conditions
The third ground for termination found by the trial court is commonly referred to
as persistence of conditions or persistent conditions. The ground of persistent conditions
is defined as follows:
(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
7
The records submitted as evidence at trial show that Mother never paid $120.00 per month in
support. Mother was somewhat consistent in paying anywhere from $20.00 and $60.00 per month.
Mother testified however, that she was not always employed and that much of her income went to other
necessary expenses.
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been filed in the juvenile court alleging that a child is a dependent and
neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent or
guardian, or other conditions exist that, in all reasonable probability,
would cause the child to be subjected to further abuse or neglect,
preventing the child’s safe return to the care of the parent or
guardian;
(ii) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent or
guardian in the near future; and
(iii) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a
safe, stable, and permanent home;
(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard; . . . .
Tenn. Code Ann. § 36-1-113(g)(3). In this case, the children were removed from
Mother’s home and custody by court order in the juvenile court dependency and neglect
proceeding far more than six months prior to the termination hearing. As such, this
ground is applicable.
“A parent’s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the
parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20
(Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-
CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the
conditions which led to the removal need not be willful. In re T.S. & M.S., 2000 WL
964775, at *6 (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.
1990)). “Where . . . efforts to provide help to improve the parenting ability, offered over a
long period of time, have proved ineffective, the conclusion is that there is little
likelihood of such improvement as would allow the safe return of the child to the parent
in the near future is justified.” Id. The purpose behind the “persistence of conditions”
ground for terminating parental rights is “to prevent the child’s lingering in the uncertain
status of foster child if a parent cannot within a reasonable time demonstrate an ability to
provide a safe and caring environment for the child.” In re A.R., No. W2008-00558-
COA-R3-PT, 2008 WL 461675, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re
D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3,
2008)).
We cannot conclude that the trial court erred in finding sufficient evidence to
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support this ground for termination. Here, the children were removed due to Mother’s
drug issues and neglect of the children; following the removal, issues related to Mother’s
mental health, housing, and lack of reliable transportation surfaced. At the time of trial,
more than a year following the removal, these issues had not been remedied. Rather,
Mother is still at best attending only half of her mental health counseling appointments
and a little more than half her scheduled visitation. And regardless of whether Mother’s
failure to attend these appointments is due to issues of transportation or Mother simply
forgetting the appointments, this issue is ongoing as Mother missed even the last
visitation before the termination trial. Given that Mother cannot make her own
appointments, there is a significant risk that Mother would be unable to ensure that the
children attend all of their necessary appointments, as the children each have either
educational, mental health, or physical issues that require attention. Finally, Mother’s
housing situation has not improved in the time since the children were removed.
Although Mother initially had housing, it was often a place of drug use and Mother
eventually lost her housing. Moreover, Mother’s current housing situation is somewhat
precarious and the appropriateness of the home could not be verified by DCS because
Mother failed to provide DCS with information concerning it until a day before trial.
It is therefore reasonably likely that Mother’s continued lack of attention to
appointments, lack of reliable transportation, and lack of appropriate, stable housing
would “cause the child[ren] to be subjected to further abuse or neglect” if the children
were returned to her care. Tenn. Code Ann. § 36-1-113(g)(3)(A)(i). Moreover, Mother’s
admitted lack of consistency in making progress in this case leads us to believe that 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.” Tenn. Code Ann. §
36-1-113(g)(3)(A)(ii). Finally, Foster Mother testified that she and her husband hope to
adopt the children into their stable and appropriate home. As such, continuation of the
relationship with Mother “diminishes the child[ren]’s chances of early integration into a
safe, stable, and permanent home[.]” Tenn. Code Ann. § 36-1-113(g)(3)(A)(iii).
Accordingly, this ground for termination is affirmed.
4. Willingness and Ability to Assume Custody or Financial Responsibility
Turning to the final statutory ground found by the trial court, parental rights can be
terminated when
A 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; . . . .
Tenn. Code Ann. § 36-1-113(g)(14). This statutory ground is essentially two distinct
elements that must each be proven by clear and convincing evidence:
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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].’ 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].’
In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App.
Apr. 4, 2018) (quoting Tenn. Code Ann. § 36-1-113(g)(14)). With regard to substantial
harm, this Court has explained that
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.
In re Maya R., 2018 WL 1629930, at *7 (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn.
Ct. App. 2001) (footnotes omitted)).
In this case, there can be little dispute that Mother lacks the ability to assume
physical custody of the children, as Mother admitted that she was still working on
providing a home for the children. Moreover, although Mother had housing for herself,
her plan was to move her three children into a single bedroom and “nook” with herself.
Because Mother failed to inform DCS of her residence until the day before trial, DCS
was unable to inspect this home; such inspection is necessary given the issues found by
DCS in Mother’s prior home. Finally, the evidence shows that the children have multiple
weekly appointments to treat their array of issues. Mother’s lack of consistent
transportation and inability to remember appointments prevents her from keeping her
own appointments, much less the multiple appointments that the children must attend.
There is also sufficient evidence that Mother has failed to manifest a willingness
to assume custody and financial responsibility for the children. Cf. In re Jaxx M., No.
E2018-01041-COA-R3-PT, 2019 WL 1753054, at *8 (Tenn. Ct. App. Apr. 17, 2019)
(citing In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12
(Tenn. Ct. App. June 20, 2018); In re Ayden S., No. M2017-01185-COA-R3-PT, 2018
WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018)) (recognizing a dispute over what
proof is required to meet this ground for termination, but avoiding the dispute by noting
that the proof was sufficient under even the more stringent ground). Here, Mother made
decisions that impacted her ability to parent the children, including allowing herself to be
evicted from her apartment over maintenance issues. Mother’s employment following the
removal was not consistent, with Mother sometimes voluntarily leaving her employment,
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and Mother often failed to provide DCS with any proof of claimed employment. Mother
also failed to attend a multitude of visitations with the children, sometimes stating that
she simply forgot to do what was necessary to ensure that the visitation occurred. Indeed,
Mother even failed to attend the visitation scheduled in the days before trial because she
forgot to confirm the visitation with DCS. Finally, although Mother stated that she had a
car, the car does not work and it appears that she made no effort in the months that the
children were in custody to obtain a valid driver’s license. These actions do no manifest a
willingness to take the steps necessary to permit reunification with the children.
The evidence also clearly and convincingly supports the trial court’s finding that
placing the children in Mother’s “legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child[ren].” Tenn. Code
Ann. § 36-1-113(g)(14). Although Mother appears to have made commendable efforts on
her own drug use issues, she has continued to allow individuals to use illegal drugs in her
home well after the removal of her children and even following the filing of the
termination petition. And again, Mother’s inability to maintain her own appointments for
counseling gives this Court little confidence that Mother would be able to maintain the
appointments of her three children. These appointments, however, are necessary for the
physical and psychological health of the children. Given these facts, the trial court did not
err in finding a ground for termination under section 36-1-113(g)(14).
B. Best Interest
Having determined that at least one ground for termination is supported by clear
and convincing evidence, we proceed to consider whether clear and convincing evidence
supports the trial court’s determination that termination of Mother’s parental rights is in
the child’s best interests. “Upon establishment of a ground for termination, the interests
of the child and parent diverge, and the court’s focus shifts to consider the child’s best
interest.” In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). Even where a
parent is unfit, termination may not necessarily be in the best interests of the child. Id.
Tennessee’s termination statute lists the following factors to be used in the best
interest analysis:
(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;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
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(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.
Tenn. Code Ann. § 36-1-113(i). The Tennessee Supreme Court has explained that:
Facts considered in the best interests analysis must be proven by a
preponderance of the evidence, not by clear and convincing evidence. After
making the underlying factual findings, the trial court should then consider
the combined weight of those facts to determine whether they amount to
clear and convincing evidence that termination is in the child’s best
interests. When considering these statutory factors, courts must remember
that the child’s best interests are viewed from the child’s, rather than the
parent’s, perspective. Indeed, a focus on the perspective of the child is the
common theme evident in all of the statutory factors. When 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.
In re Gabriella D., 531 S.W.3d 662, 68182 (Tenn. 2017) (internal citations omitted).
Furthermore, “[a]scertaining a child’s best interests does not call for a rote examination”
of the statutory factors. In re Audrey S., 182 S.W.3d at 878. The analysis requires “more
than tallying the number of statutory factors weighing in favor of or against termination.”
In re Gabriella D., 531 S.W.3d at 682 (citing White v. Moody, 171 S.W.3d 187, 19394
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(Tenn. Ct. App. 2004)). “The facts and circumstances of each unique case dictate how
weighty and relevant each statutory factor is in the context of the case,” and the analysis
“must remain a factually intensive undertaking.” In re Gabriella D., 531 S.W.3d at 682.
Thus, “[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.” Id.
(citing In re Audrey S., 182 S.W.3d at 878). In undertaking this analysis, the court must
examine all of the statutory factors, as well as other relevant proof put forth by the
parties. Id.
The trial court found that Mother had not made a lasting change in circumstances
despite reasonable efforts by DCS. See Tenn. Code Ann. § 36-1-113(i)(1) & (2). We
agree. Despite a multitude of help from DCS, Mother was no closer to providing a safe
and stable home for her children at the time of trial as she was at the removal. The trial
court also found that Mother had not maintained consistent visitation with the children.
The record indeed shows that Mother missed nearly half of her scheduled visitation,
sometimes simply because she forgot about her children until it was too late. Tenn. Code
Ann. § 36-1-113(i)(3). The trial court further found that a change in caretakers would be
detrimental to the children. Tenn. Code Ann. § 36-1-113(i)(5). The evidence does not
preponderate against this finding as the children are currently in a stable home that
provides for their needs. Mother’s ability to take the children to their various
appointments and to provide a stable home is far less certain.
The trial also found that Mother has neglected the children and exposed them to
drug use in her home. Tenn. Code Ann. § 36-1-113(i)(6) & (7). Mother indeed allowed
individuals to use drugs in her home even after the children were removed by DCS. This
drug use was found by DCS not once, but on multiple home visits, some more than a year
after the removal of the children. Thus, while Mother testified that she has now learned to
keep such people out of her life, Mother’s unsupported claims at trial are generally “too
little, too late,” to show lasting progress as to this concern. See, e.g., In re S.H., No.
E2013-02007-COA-R3-PT, 2014 WL 1713769, at *8 (Tenn. Ct. App. Apr. 29, 2014)
(holding that the parent’s efforts were “too little, too late”).
Mother contends, however, that the trial court erred in failing to recognize the
progress that Mother has made given her limited means and resources. In support, Mother
cites her completion of parenting education, her counseling, her current employment and
payment of child support, and her sobriety. It is well-settled, however, that “[w]hen a
parent has been found to be unfit (upon establishment of ground(s) for termination of
parental rights), then the interests of parent and child diverge. The focus shifts to the
child’s best interest.” In re Dominique L.H., 393 S.W.3d 710, 717 (Tenn. Ct. App. 2012)
(citation omitted) (citing In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005)).
As such, no matter how well-intentioned Mother was in this case, once a ground for
termination has been found, we must focus on what is best for the children.
Here, we commend Mother on her significant period of continuing sobriety.
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Despite Mother’s progress, however, she simply cannot care for the children in any real
fashion at this stage in her life. Mother has no permanent home and no reliable method to
transport herself and her children where they need to go. We recognize that the children
appear to know Mother as their parent and are happy to see her. Tenn. Code Ann. § 36-1-
113(i)(4). Despite knowing this, however, Mother admits that she sometimes simply
forgets to confirm her visits, despite reminders on her phone and calendars offered to her
by DCS. Missing visitations is known to cause distress among the children, who blame
themselves for Mother’s repeated mistakes. Thus, even as late as the last visitation before
trial, Mother simply forgot about her duty to her children despite knowing that it could
cause them emotional harm. In contrast, the evidence shows that the children are well-
provided for in their foster home and are thriving. Under these circumstances, we must
conclude that the children’s best interests are served by terminating Mother’s parental
rights.
V. CONCLUSION
The judgment of the Knox County Juvenile Court is affirmed, and this cause is
remanded to the trial court for all further proceedings as may be necessary and consistent
with this Opinion. Costs of this appeal are taxed to Appellant Mahogany C., for which
execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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