In Re Neveah M.

12/10/2020
IN THE SUPREME COURT OF TENESSEE
AT NASHVILLE
September 30, 2020 Session1

IN RE NEVEAH M.

Appeal by Permission from the Court of Appeals
Circuit Court for Davidson County
No. 16A75 Philip E. Smith, Judge
___________________________________

No. M2019-00313-SC-R11-PT
___________________________________

We granted this appeal to settle a split of authority in the Court of Appeals concerning the
proper interpretation of a statute that requires a person seeking termination of parental
rights to prove by clear and convincing evidence that 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.” Tenn. Code Ann. § 36-1-
113(g)(14) (Supp. 2016); id. (2017 & Supp. 2020). In some decisions, the Court of
Appeals has interpreted this language as requiring clear and convincing proof that a
parent was both unable and unwilling to personally assume legal and physical custody or
financial responsibility of a child. See, e.g., In re Ayden S., No. M2017-01185-COA-R3-
PT, 2018 WL 2447044, *7 (Tenn. Ct. App. May 31, 2018). In other decisions, the Court
of Appeals has construed this statute as requiring clear and convincing proof that a parent
was either unable or unwilling to personally assume legal and physical custody or
financial responsibility of a child. See, e.g., In re Amynn K., No. E2017-01866-COA-
R3-PT, 2018 WL 3058280, *14 (Tenn. Ct. App. June 20, 2018). We hold that the statute
is ambiguous and that the latter interpretation—the In re Amynn K. interpretation—best
effectuates legislative intent. Therefore, we overrule In re Ayden S. and all other Court
of Appeals’ decisions inconsistent with our holding herein. Additionally, we reverse the
decision of the Court of Appeals herein, which applied the In re Ayden S. interpretation,
and reinstate the judgment of the trial court terminating mother’s parental rights based
solely on Tennessee Code Annotated section 36-1-113(g)(14). In all other respects, the
trial court’s judgment remains intact and is reinstated.

1
We heard oral argument through videoconference under this Court’s emergency orders
restricting court proceedings because of the COVID-19 pandemic.
 Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Judgment of the Trial Court Reinstated as Modified

CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Kelli Barr Summers, Brentwood, Tennessee, for the appellants, Christopher G. and Hope
G.

Stephen Mills, Nashville, Tennessee, for the appellee, Catherina M.

Thomas H. Miller, guardian ad litem for the child, Neveah M.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Kathryn A. Baker, Senior Assistant Attorney General; Amber L.
Seymour, Assistant Attorney General, for the amicus curiae, State of Tennessee.

OPINION

I. Factual Background

On August 31, 2016, Christopher G. (“Foster Father”) and Hope G. (“Foster
Mother”) (collectively “Foster Parents”) filed a petition for adoption and for termination
of the parental rights of Catherina M. (“Mother”) to her biological daughter, Neveah M.
(“Neveah”).2 The trial court held a hearing on the petition over three days in April and
May 2018, at which ten witnesses testified and multiple documents were introduced into
evidence. Following is a summary of this proof.

Neveah is Mother’s seventh child.3 Mother, thirty-four-years-old at the time of the
hearing, had a long history of drug addiction. During her pregnancy with Neveah, Mother

2
No one was listed as father on Neveah’s birth certificate, and Mother was unable to identify the
child’s father. Additionally, at the time of the hearing in the trial court, no one had registered as Neveah’s
father on Tennessee’s putative father registry. Therefore, Mother was the only biological parent listed on
the petition.

3
Mother had given birth to eight children by the time of the hearing but retained custody of only
one child—her eighth child, a son, born after Neveah. The six children born prior to Neveah either were
living with their fathers or had been declared dependent and neglected and adopted by non-family
members.
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had no steady income and worked only sporadically at odd jobs, such as sweeping for
$10 an hour at an automotive garage and cleaning a couple of houses. Mother lived on
the streets until she was arrested and jailed on drug-related charges, to which she pleaded
guilty in October and December of 2013.4 These plea deals required her to participate in
a ninety-day, inpatient drug-treatment program at the Elam Center. Neveah was born on
February 23, 2014, while Mother was living at the Elam Center.

Mother completed the program and was discharged from the Elam Center on
April 17, 2014. She and Neveah then moved into the home of Mr. Charles Jones. Mr.
Jones had met Mother during her pregnancy with Neveah, while she was living on the
streets. He checked on her welfare, bought her food, gave her money, and occasionally
allowed her to stay the night at his home, because, in Mr. Jones’ words, Mother “was
messed up.” Mr. Jones agreed to allow Mother to move in with him upon her discharge
from the Elam Center only after she promised not to return to using drugs. Mother’s
long-term boyfriend, Mr. Samuel Peoples, paid Mr. Jones $300 per month rent on
Mother’s behalf.

Mother was not employed while she lived at Mr. Jones’ home. She explained that
she had been breastfeeding Neveah and had problems pumping milk. Mother also
acknowledged, however, that she decided not to participate in job training programs and
to be disqualified from working until Neveah was one year old. This decision, Mother
explained, allowed her to qualify for and receive government assistance.

For more than a year after her discharge from the Elam Center, Mother evidently
kept her promise to Mr. Jones not to return to drug use.5 Unfortunately, Mother relapsed
to drug use in early June 2015, around her birthday on June 6th, and began regularly
smoking marijuana cigarettes laced with cocaine. At the hearing below, Mother cited
“bad company” and “bad association” as the cause of her relapse. She denied using drugs
around Neveah and denied that her drug use impaired her ability to care for Neveah. On
the other hand, Mr. Jones recalled Mother staying out on the streets at night while Mr.
Peoples cared for Neveah. Mr. Jones described Neveah as often crying for Mother and

4
Mother pleaded guilty on October 8, 2013, and December 23, 2013, to possession or casual
exchange of a controlled substance. See Tenn. Code Ann. § 39-17-418 (2018). She also pleaded guilty
on December 23, 2013, to unlawful use of drug paraphernalia. See Tenn. Code Ann. § 39-17-425 (2018).
Mother could not recall the October 8, 2013 guilty plea. She also had trouble remembering other relevant
dates and details. She acknowledged that her long history of drug use may have caused her memory
difficulties.

5
Mr. Jones implied in his testimony that Mother may have returned to drug use before June
2015, but the date of her relapse is not determinative of the issues in this appeal.

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being unable to sleep because she wanted Mother. Mr. Jones also recalled Mother
breastfeeding Neveah while Mother was using drugs.

In mid-June 2015, the Tennessee Department of Children’s Services (“DCS”)
received a referral regarding Mother’s drug use. A DCS worker came to Mr. Jones’
home and administered Mother a urine drug screen, which was positive for cocaine. As a
result, Mother and DCS entered into an immediate protection agreement. DCS initially
placed Neveah with a friend Mother recommended, but this placement was short-lived.
On June 29, 2015, Mother and DCS agreed that Jonah’s Journey, a program that assists
children of incarcerated women, would help with placing Neveah. Jonah’s Journey
placed Neveah in Foster Parents’ physical custody, when Neveah had just turned sixteen
months. Mr. Jones recalled crying with relief when Foster Parents came into Neveah’s
life, explaining that the child “needed help.”

Mother was homeless after Neveah was removed from her physical custody, as
Mr. Jones would not allow her to remain in his home after she returned to drug use.
Although Mother had no money of her own to purchase drugs, she testified that she
regularly used whatever drugs others offered her, which mostly consisted of marijuana
cigarettes laced with cocaine. Mother denied ever using pills, heroin, or
methamphetamines.

Beginning in July 2015, Mother had the opportunity to visit with Neveah one hour
each week. Foster Parents, at DCS’s direction, supervised the visitation, and visitation
occurred either at a McDonald’s or a Subway fast-food restaurant. Mr. Jones was
Mother’s primary means of transportation to and from visitation, although Mother
recalled walking on occasion. Mr. Jones stated that Mother sometimes did not want to go
to the visits. He explained that “[u]nless it was the first of the month, [Mother] was
intoxicated.” Mother denied that drug use prevented her from attending visitation. Mr.
Jones said that drug use and alcohol use were the only reasons Mother missed visitation.

Mother acknowledged that she did not provide Neveah with financial support from
June 2015 until January 2017. However, Mother described giving Foster Parents diapers
and food she received from government assistance and free services, and Mother also
recalled offering them whatever cash she had, although never more than $20, but she said
they never accepted it. Mother maintained that she could not work because she was “ill,”
“homeless,” and “just in a bad place again.”

Mother also said that she was unable to work because she had no identification.
According to Mother, when DCS removed Neveah from her custody in June 2015, she
left her belongings in Mr. Jones’ home on a temporary basis until she could get into a
drug treatment program. Mother said that she had difficulty retrieving her belongings
because Mr. Jones worked twelve hours daily and was rarely home. Mother testified that
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her identification was lost when someone placed her belongings on the lawn outside Mr.
Jones’ home. Mother explained that she did not attempt to obtain new identification
because she believed doing so would require her to return to Ohio and would entail a six-
to-twelve-week process.

Mr. Jones contradicted Mother’s testimony, stating that he had not denied Mother
access to his home and had not placed her belongings outside or thrown away her
identification. Mr. Jones said that he allowed Mother and Mr. Peoples to remove their
belongings from his home and threw away a mattress and other trash that they left
behind. Mr. Jones said that Mother’s identification was not among the trash left behind.
Mr. Jones also denied ever paying any money to Foster Parents for the purpose of
satisfying Mother’s support obligation. Mr. Jones acknowledged giving Neveah $80
every two weeks, but said that he had given the money to provide for Neveah’s needs not
to satisfy Mother’s support obligation. Mr. Jones also denied ever being romantically or
sexually involved with Mother. The trial court described Mr. Jones as a “truthful” and
“impressive” witness who appeared to have “Neveah’s best interest at heart.”

In September 2015, Mother began staying in a vacant house next to Mr. Jones’
home. The house was in foreclosure, had no electricity, water, or heat, and Mr. Jones
described it as a “rat infested dope thing.” Mr. Jones described seeing Mother on the
streets “prostituting” and “chasing cars” during this time. Mother agreed that the home
had no electricity, water, or heat, but she stated that she had an oil lantern and bottled
water, and that Mr. Jones had given her a kerosene heater. Nevertheless, Mother
acknowledged that this house was not an appropriate home for Neveah. She also
acknowledged that Mr. Peoples paid the owner $100 a month as rent on Mother’s behalf.
While Mr. Peoples frequently visited and stayed with Mother at this vacant house, he
actually resided elsewhere.

DCS administered four drug screens to Mother from July 2015 through January
2016. Mother tested positive for cocaine and marijuana on all of them. A DCS family
services worker testified that during this same time, she provided Mother with
information about drug treatment programs, with contact information for the vital records
office in Ohio so that Mother could obtain her Ohio birth certificate and use it to obtain
other forms of identification, and with a bus pass. This DCS worker learned that Mother
was pregnant again—this time with Mr. Peoples’ child. Yet, the drug screens revealed
Mother’s continued drug use, and Mother still had failed to enter a drug treatment
program. Therefore, consistent with a DCS policy of seeking a status change when a
parent fails to enter a needed drug treatment program within 120 days of an initial
referral, DCS filed a motion in the Juvenile Court of Davidson County seeking
permission to close its noncustodial case based on Mother’s noncompliance and to
change temporary legal custody of Neveah from Mother to Foster Parents. At the

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January 7, 2016 hearing on DCS’s motion, Mother told the DCS worker that she had
obtained her birth certificate and identification.

On January 15, 2016, the juvenile court filed an order granting DCS’s motion.
The juvenile court did not explicitly address Mother’s visitation rights in the order, but
Foster Parents continued Mother’s one-hour weekly supervised visitation with Neveah.
However, in January 2016, Foster Mother began keeping a written record of Mother’s
attendance at visitation and testified from this record at the hearing below.

Foster Mother described Mother’s attendance at visitation as “consistently
inconsistent.” In January, Mother visited with Neveah at the January 7, 2016, temporary
custody hearing and attended visitation on January 21, 2016, and again on January 28,
2016. Mother missed a scheduled visit on January 14, 2016.

In February, Mother missed visitation on February 4, 2016 and did not call to
notify Foster Parents of her absence, although she had phone numbers to reach them.
Mother attended visitation on February 11, 2016. Visitation on February 18, 2016, was
canceled due to Neveah’s illness, but Foster Parents agreed to schedule a visit on
February 23, 2016, at the home of Mother’s friend, so that Mother could celebrate
Neveah’s second birthday. Foster Parents arrived with Neveah at the agreed-upon place
and time, but Mother was not present. By the time Foster Parents were able to contact
Mother twenty minutes later and learn that there had been some sort of
misunderstanding,6 Neveah was tired and hungry. Foster Parents left but met Mother two
days later, on February 25, 2016, so that Mother could visit and celebrate Neveah’s
birthday.

Less than a week later, on March 2, 2016, the juvenile court held a final hearing
on custody. Mother failed to appear, despite receiving notice of the hearing. According
to Mother, swollen joints and severe nausea prevented her from attending the hearing.
Mother also testified that Mr. Jones would not drive her to the hearing and said that she
had no other means of transportation. Mr. Jones denied refusing to drive Mother to the
hearing and said that he offered to drive her and tried to convince her to attend.

Mother acknowledged that her attorney had informed her that she “needed to be
[at the March 2, 2016 hearing] with reasonable effort,” but Mother claimed that she had
not understood that she “would lose [her] child if [she] didn’t go to this court hearing.”
Mother also claimed that she had called and informed someone at the clerk’s office that

6
Mother testified that the friend’s boyfriend would not allow Mother to have the party for
Neveah at the friend’s home.

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she would not be able to attend the hearing, but Mother could not recall the name of the
person with whom she had spoken. The hearing proceeded, and at some point, Mother’s
appointed counsel orally moved to withdraw from further representation of Mother. The
juvenile court granted the motion.7

By an order entered March 14, 2016, the juvenile court ruled that clear and
convincing evidence had been presented at the hearing to establish that Neveah was
dependent and neglected due to Mother’s use of illegal drugs and failure to provide a
stable and safe environment for her. The juvenile court awarded Foster Parents legal
custody of Neveah and allowed Mother “up to” four hours of supervised visitation per
month. The juvenile court also decreed that Mother had lost her superior parental rights
to Neveah. Mother received a copy of this order but admitted that she did not read it
carefully. Mother knew the order granted her up to four hours of supervised visitation
per month, but she did not recall the portion of the order advising of her right to appeal,
and Mother did not appeal.

After this hearing, Foster Mother continued keeping a written record of Mother’s
attendance at visitation. According to Foster Mother, Mother missed a visit on March 3,
2016, and also failed to notify Foster Parents. Mother disputed this testimony and
claimed that Mr. Jones had driven her to the March 3, 2016 visit. According to Foster
Mother, Mother also missed visitation on March 10, 2016; visitation on March 17, 2016
was canceled, and Mother missed visitation on March 24, 2016, without notifying Foster
Parents that she would be absent. Mother attended visitation on March 31, 2016.

At the March 31, 2016 visit, the schedule for future visitation was changed from
weekly to bi-weekly, the duration of visitation was changed from one hour to two hours,
and the location of visitation was changed from the fast food restaurants to a park located
halfway between where Foster Parents lived and where they believed Mother was
staying. This park offered a library and a recreation center that could be used in
inclement weather. Mr. Jones remained Mother’s primary means of transportation to and
from visitation.

Foster Mother testified that Mother visited on April 8, 2016, but missed visitation
on April 22, 2016, and that Mother attended visitation on May 5, 2016, but did not appear
for visitation or call to cancel on May 19, 2016, or June 2, 2016, and that Mother
attended visitation on June 16, 2016.

7
The record on appeal includes a copy of the juvenile court’s order but does not include a
transcript of the hearing.

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 Foster Mother said that, in addition to Mother’s frequent absences from visitation,
Mother’s comments and behavior during visitation often caused Foster Mother concern
that Mother was still abusing illegal drugs. According to Foster Mother, in August 2015,
Mother reported that she was again pregnant and that Mr. Peoples was the father. Mother
confirmed the pregnancy in December 2015. By February or March 2016, Mother’s
pregnancy was evident from her physical appearance, yet, Mother also appeared to be
under the influence of drugs during some of the visits, as her behavior was “lethargic,
kind of out of sorts.” At one visit, Foster Mother noticed “like open wounds” on
Mother’s arm. Mother also “talked many times about going to the emergency room for
this thing or that thing.”

Foster Mother also recalled Mother saying unusual things during the visits. For
example, during an April or May 2016 visit, Mother remarked that she liked to keep her
children about eighteen months, although Mother did not give a reason for this
preference. Foster Mother also recalled Mother asking, more than once, whether Foster
Parents would consider adopting her unborn child. According to Foster Mother, Mother
also remarked that she was tired of being pregnant and that “she was trying to go ahead
and have him.”

Mother disputed Foster Mother’s testimony and denied asking Foster Parents to
adopt her unborn child or saying anything about ending her pregnancy early. Mother
admitted that she may have talked about having a difficult pregnancy, explaining that she
had severe preeclampsia during her eighth pregnancy. Mother also admitted to using
illegal drugs during the pregnancy, but she denied that her drug use caused preeclampsia.
Mother also claimed that she did not intentionally use drugs during her pregnancy and
simply did not know that she was pregnant until shortly before she gave birth to her
eighth child. Mr. Peoples, on the other hand, contradicted Mother’s testimony and said
that he and Mother had learned she was pregnant in January 2016. And, the DCS worker
also testified that she learned of Mother’s pregnancy before the January 7, 2016 hearing
at which DCS was allowed to close its noncustodial case.

Mother also disputed Foster Mother’s testimony regarding Mother’s attendance at
visitation. Mother estimated that she possibly missed six visits between July 2015 and
March 2016. Mother attributed her absences to poor health and lack of transportation and
denied that alcohol or drug abuse played any role. Again, Mr. Jones contradicted
Mother’s testimony and said her drug and alcohol abuse was the sole reason she missed
visitation and that he never refused to transport her. Moreover, the DCS worker also
testified that she gave Mother a bus pass to aid with her transportation needs prior to the
January 7, 2016 hearing.

During the course of the hearing, the trial court advised Mother, after watching her
testify “for the better part now of - - well, over three hours,” that she was “one of the
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worst witnesses that ha[d] ever come before [the trial court].” The trial court remarked,
“And I will tell you, ma’am, I don’t believe much of what you’re telling me right now.”
The trial court also advised Mother more than once that she seemed to be blaming others
for her actions, inactions and situation.

In any event, the hearing proceeded, and the proof showed that Mother gave birth
to her eighth child, a son, Cairo, on June 27, 2016. Both Mother and Cairo tested positive
for cocaine at his birth, so DCS again became involved with Mother’s family. On
June 30, 2016, Mother called and informed Foster Mother that she had recently given
birth to a son and asked Foster Mother to bring Neveah to the hospital to meet her
brother. When Mother called, Foster Mother and Neveah were on their way to the park
for visitation with Mother, but Foster Mother declined to take Neveah to the hospital,
explaining that the family’s existing plans could not be changed.

On July 1, 2016, upon their discharge from the hospital, DCS arranged for Mother
and Cairo to move to the Elam Center and for Mother to again enter the inpatient drug-
treatment program. Foster Mother testified that Mother called her twice in July, on
Saturday morning, July 9, 2016, and Saturday morning, July 23, 2016. Both times
Mother asked Foster Mother to bring Neveah to the Elam Center for family visitation
from 2:00 to 4:00 p.m. later those same days. Foster Mother declined on both occasions,
explaining that the family could not change their existing plans for those days, including,
on one day, attending a wedding. According to Foster Mother, Mother did not ask to
schedule visitation for another time and did not call again. For the rest of July and
August 2016, Foster Parents went to the park for visitation at the agreed-upon time, every
other week, and waited fifteen-to-twenty minutes. They left when Mother neither
showed up nor called to notify Foster Parents that she would not be coming.

Mother contradicted Foster Mother’s testimony and stated that she had called
Foster Parents from the Elam Center about visitation, “at least five times a week.”
Mother testified that she used every telephone call she was permitted to call Foster
Parents but never heard back from them. Mother testified that patients were not generally
permitted to leave the facility without supervision. Mother acknowledged, however, that
she could have given advance notice and sought approval of the clinical director to leave
the facility for visits, but she did not do so. According to Mother, Foster Parents knew
she was residing at the Elam Center and participating in the inpatient drug-treatment
program and should have known that she would not be able to attend visitation at the
park. Mother testified that she had “been calling [Foster Parents] since the day [she] gave
birth to [her] son” and that she called “from 5:00 [p.m.] . . . to say 8:30/9:00 [p.m.] when
[she] would go to bed,” estimating that she called, “[m]aybe twice a day daily for those
four months.” Mother stated that she called “through the center’s line” because she did
not have a personal phone. Mother said that she was allowed to use the phones of three

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or four people who were working her case because they considered Mother’s inability to
contact Foster Parents a crisis.

Samuel Scales, clinical director of the Elam Center, testified that he allowed
Mother to call Foster Parents from his office telephone two or three times while she was
living at the Elam Center in 2016, but she was unable to reach them.

Meanwhile, on July 11, 2016, after Mother moved to the Elam Center, Neveah’s
juvenile court guardian ad litem filed a petition in juvenile court seeking to terminate
Mother’s parental rights. About a month later, on August 15, 2016, Mother filed a
motion in the juvenile court seeking visitation and reunification with Neveah. Then, on
August 31, 2016, Foster Parents filed in the Circuit Court for Davidson County the
petition for adoption and termination of Mother’s parental rights from which the present
appeal arises.

On September 13, 2016, Mother filed a document in the circuit court titled
“Resume Visitation,” seeking to “[e]xercise [her] parental rights to visit [her] child in
hopes of being reunified as soon as possible.” At a September 30, 2016 hearing on this
motion, Mother and Foster Parents announced their agreement to resume two-hour
visitation every other Thursday, beginning October 6, 2016, with visitation supervised by
Foster Parents. An order reflecting the parties’ agreement was entered on December 28,
2016.

On October 30, 2016, Mother and Cairo were discharged from the Elam Center to
a women’s shelter. On November 15, 2016, Mother, Mr. Peoples, and Cairo moved into
a single bedroom of a rooming house, where they shared a bathroom and kitchen with
other residents. Mother completed work training and obtained employment on
November 25, 2016.

In January 2017, Mother began providing Foster Parents with financial support for
Neveah, beginning with $50 every other week for a few weeks but dropping down to $30
every other week through the time of the hearing. Mother also brought clothing and food
for Neveah to visitation.

In September 2017, Mother, Mr. Peoples, and Cairo moved into a two-bedroom
apartment in Nashville, and Mr. Peoples paid the monthly rent of $574. Mother
acknowledged that Mr. Peoples had previously been convicted of selling cocaine to a
police officer.

At the hearing below, Mother’s case manager from Mental Health Cooperative in
Nashville, Ms. Raven Starks, testified that Mother began receiving mental health services
at their organization in May 2017. Mother’s diagnosis was major depressive disorder.
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Ms. Starks said that she and Mother had spoken by telephone at least once each month
since May 2017 and had met face-to-face at least once a quarter. Ms. Starks managed
Mother’s mental and physical health, living arrangements, and “any other goals that she
wants to accomplish, such as jobs or anything like that.” Concerning Mother’s mental
health, Ms. Starks scheduled Mother’s appointments with any mental health provider and
ensured that Mother was attending therapy appointments when she was not seeing a
provider. At the time of the hearing, Mother was attending therapy sessions once or
twice a month and had faithfully attended every appointment and was not then taking
prescription medication. As far as Ms. Starks knew, Mother was in compliance with her
mental health provider’s requirements. Ms. Starks testified that, with respect to Mother’s
physical health, Mother’s goals were to exercise daily and see a doctor as needed.
Mother had no physical health concerns requiring doctor visits, and she had met her goal
of exercising and had lost ten pounds within the preceding five months.

Ms. Starks testified that she had visited Mother’s various residences and that they
were neat and clean at every visit. She said that Mother’s two-bedroom apartment had
beds and dressers in them and that all seemed to be in order. Ms. Starks stated that the
home was adequate for minor children and that she had no concerns about the safety of
the home. Ms. Starks had not seen any evidence of any kind of illegal drug or alcohol
use or domestic violence in the home. Ms. Starks also had observed Mother caring for
Cairo and said that they seemed to have normal parent-child interaction and that Cairo
was always clean, well-kept, and well-fed on the days she had seen him. Ms. Starks
testified that she had no concerns about Mother’s ability to care for Cairo.

At the time of the hearing below, Mother was employed at the Nashville
Aquarium earning $11 an hour and had worked there since January 18, 2018. Mother
had been employed since November 2017. Mother maintained that she was capable of
paying the rent and expenses of the apartment she shared with Cairo and Mr. Peoples,
although she acknowledged that Mr. Peoples was still paying their rent and expenses at
the time of the hearing.

A number of the witnesses at the hearing testified about Neveah’s relationship
with Foster Parents and Mother. For example, Mr. Jones testified that Neveah loves
Foster Parents and that she had changed from a crying child in need of a caretaker to a
happy and joyful child. Referring to Foster Mother, Mr. Jones stated:

Oh, man. That’s momma bear there. You can’t - - she hugs on her.
She squeezes on her. She cuts me and [Foster Father] off, you know. But,
you know, she’s a good little baby. She just hugs you and kisses you and
gives you so much love, you know. And I just don’t understand. She’s
been with them for all this time, you know. And why do this to her? You
know, she’s innocent.
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Mr. Jones stated that Neveah turns to Foster Mother, not Mother, during visitation when
she is hungry, upset, or in need of a bathroom break or anything else. According to Mr.
Jones, Neveah shows more affection for Mr. Peoples than for Mother.

Jennifer Johnson, Foster Mother’s sister, lived in the same household as Foster
Parents and Neveah and testified that Neveah views Foster Mother as “Mommy” and
wants Foster Mother or Foster Father to care for her at bedtime and when she falls, does
not feel well, or is hurt. Ms. Johnson said Neveah loves Foster Father and loves for him
to drop her off and pick her up from school and also loves to “play cars” with Foster
Father. Ms. Johnson described occasionally babysitting Neveah and said that Neveah,
referring to Foster Parents, would ask, “Where’s Mommy and Daddy?” When are they
coming back?” Ms. Johnson had attended two or three of Neveah’s visits with Mother in
November 2017 and had described Mother, Cairo, and Neveah playing together without
much interaction, much like a playdate. Ms. Johnson said that Neveah is always glad to
see Cairo, but, when Neveah returns from visits with Mother, the child generally does not
want to talk and tends to be tired, angry, and not in a good mood. Ms. Johnson said that,
on a few occasions, she has heard Neveah screaming or crying out in the night after
visits.

Foster Mother also testified about Neveah’s relationship with Mother. Foster
Mother stated that, from the time regular visitation stopped when Mother entered the
Elam Center in July 2016, Neveah stopped calling Mother “mommy” or “mom” and that
when visitation resumed in October 2016, Neveah called Mother by her nickname, “Cat.”
Asked to describe any changes in the bond between Neveah and Mother, Foster Mother
testified that “the bond definitely decreased while [Mother] was not doing her
visitations.” Foster Mother also related that Neveah has significant food allergies, which
she explained to Mother, yet Mother continued for a while bringing inappropriate foods
to visits for Neveah but eventually “g[o]t on board” with the child’s restricted diet.

Foster Mother said that Neveah calls Foster Mother “Mommy” and that, when
Neveah falls or hurts herself during visitation, Neveah always turns to Foster Mother for
reassurance and care, not to Mother. Foster Mother said that Neveah also always turns to
her, not Mother, when she needs to go to the bathroom or is hungry during visitation.
Foster Mother said that Neveah is more excited at visitation to see Mr. Peoples or Mr.
Jones than Mother.

Foster Mother described Neveah as having an outgoing, bubbly personality,
although the child tends to be “a little bit more reserved” around Mother. Foster Mother
said that Neveah is initially happy to see Mother but returns to Foster Mother frequently
during visitation to check in and needs to know where Foster Mother is at all times during
visitation. Foster Mother explained that Neveah typically wants to leave visitation early,
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sometimes between forty-five minutes and an hour and a half. Foster Mother said that
Neveah is at times resistant when Mother asks for a hug, but complies with the request at
Foster Mother’s urging, but is more comfortable with Mr. Peoples and freely hugs him.
Foster Mother described Mother’s and Neveah’s relationship as that of playmates.

Foster Mother related that Neveah never asks or talks about Mother apart from
visitation. Foster Mother acknowledged that Neveah enjoys seeing and playing with
Cairo and is aware that he is her brother. But, according to Foster Mother, Neveah
becomes jealous if Foster Mother holds Cairo and will come up and ask Foster Mother to
hold her too. Foster Mother related how Mother took Neveah’s hand to walk to the
library at the park, but after only about five steps, Neveah dropped her hand and came
over and grabbed Foster Mother’s hand. Foster Mother stated that Mother “[v]ery rarely”
calls to talk to Neveah, although she acknowledged that Mother had called Neveah in
2017 on her birthday, had left a message for Neveah on Halloween in 2017, while she
and Foster Parents were out trick or treating, and had called late on Christmas 2017, after
Neveah had gone to bed. Foster Mother denied ever telling Mother that she did not have
to pay child support. Foster Mother also agreed that Mother had provided a few gifts at
Christmas and for Neveah’s birthday prior to January 2017.

Mother, on the other hand, testified that Neveah knows she is her mother, and
Mother described visitation with Neveah as meaningful and enjoyable, consisting of
Mother talking with Neveah, hugging, kissing, praying, and singing with Neveah, playing
cards and games with Neveah, and learning about what Neveah is doing in her education.

Foster Mother described Neveah’s activities, relating that she attends daycare and
does well there, attends church and “very much loves the children’s pastor and all of the
children’s workers,” and attends dance class on Saturday mornings. When asked to
describe Neveah’s attachment to her, Foster Mother stated:

I am her mommy. She comes to me if she doesn’t feel good. If she
has a nightmare in the middle of the night, she comes to me. If—excuse
me—but if she needs to have her butt wiped, she calls for mommy to come
and wipe her butt.

At the time of the hearing, Foster Mother was employed in the health insurance
business, where she had worked for twenty years. She had no physical or mental
conditions to prevent her from caring for Neveah. Foster Parents’ home was clean, safe,
spacious, and stable, and Neveah had her own room. Foster Mother also testified that
Neveah is integrated into their extended family and has good relationships with Foster
Parents’ parents and siblings and with Foster Mother’s niece.

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 Although Foster Mother had no reason to believe that Mother was using drugs at
the time of the hearing and did not view Mr. Peoples as any sort of a threat to Neveah,
Foster Mother believed that removing Neveah from Foster Parents’ home would be
psychologically harmful to Neveah. Foster Mother testified that Neveah “would be
devastated to leave our home, as she considers us her primary caregivers.” Foster Mother
could not recall Neveah ever saying anything to indicate that she remembered living
anywhere other than at Foster Parents’ home. Foster Mother said that Neveah still
experienced night terrors occasionally, but less frequently.

Foster Mother said that Neveah enjoys playing with Foster Father and spending
time with him at the park and “going outside and playing ball with him or riding her little
bike up and down the streets.” Foster Mother related that Neveah refers to Foster Father
as “Daddy.”

Foster Father, who also had attended most of the visitations, testified and
expressed agreement with Foster Mother’s testimony and with her description of
Neveah’s and Mother’s interaction. Asked about his relationship with Neveah, Foster
Father stated that they talk together, that Neveah asks him about clouds, that she loves
music, that they play music she likes and sing together, that they play together, take
walks together, swing together, and enjoy being outside in the sunshine together. Foster
Father explained that Neveah attends his family gatherings and has relationships with his
family members, as well as with Foster Parents’ neighbors. Foster Father described her
as “thriving” in Foster Parents’ home. Foster Father believed terminating Mother’s
parental rights would be in Neveah’s best interests and would relieve Neveah from being
anxious that her situation could change.

At the time of the hearing, Foster Father was employed as a supervisor of the deli
department with the Kroger Company, where he had worked for thirty-one years. He had
no physical, mental, or medical conditions that would prevent him from providing care to
Neveah.

Ms. Robin Wilson, Mother’s fifty-seven-year-old first cousin, who worked as
chief investigator for the City of Toledo’s Office of Diversity Inclusion, traveled from
Ohio to testify at the hearing. Ms. Wilson and three more of Mother’s relatives—
Mother’s sister, brother, and aunt—had learned of Mother’s situation while organizing a
family reunion, three or four months earlier. Ms. Wilson had never met Neveah and
actually had not been in contact with Mother for eight to ten years before learning of
Mother’s situation only a few months earlier. Ms. Wilson was unaware of Mother’s drug
use, mental health issues, and other six children. Nevertheless, Ms. Wilson expressed her
willingness to petition for guardianship of Neveah or to support Mother should Mother
regain custody of Neveah. Mother’s attorney stated that Ms. Wilson’s testimony was
representative of the testimony that Mother’s other Ohio relatives would have provided
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had they been called to testify, and the trial court accepted counsel’s characterization of
the proof.

At the close of the proof, the trial court took the matter under advisement,
rendered a verbal decision on September 20, 2018, and entered its written order on
January 31, 2019, including findings of fact and conclusions of law. The trial court found
that the following three statutory grounds alleged in the petition for terminating Mother’s
parental rights had been proven by clear and convincing evidence: (1) abandonment by
willful failure to visit during the four consecutive months immediately preceding the
filing of the petition to terminate pursuant to Tennessee Code Annotated sections 36-1-
113(g)(1) and 36-1-102(1)(A)(i) (Supp. 2016); (2) abandonment by willful failure to
support during the relevant four-month period pursuant to Tennessee Code Annotated
sections 36-1-113(g)(1) and 36-1-102(1)(A)(i); and (3) failure to manifest an ability and
willingness to assume legal and physical custody or financial responsibility of the child
and such custody would pose a risk of substantial harm to the child pursuant to Tennessee
Code Annotated section 36-1-113(g)(14) (2017 & Supp. 2020).8 Concerning this third
ground for termination, the trial court stated:

At the time the petition was filed, [Mother] was not visiting with
[Neveah]. She had no income. No job. No long-term stable housing.
[Mother] was completely dependent on the goodness of others to provide
for her daily needs. This Court finds by clear and convincing evidence that
[Mother] has failed to manifest an ability to personally assume legal and
physical custody of [Neveah] or [financial] responsibility of the child. The
court further finds that [Foster Parents] have provided for [Neveah] since
June 29th of 2015. [Neveah] has bonded with both [Foster Mother and
Foster Father]. [Neveah] has certainly not bonded with [Mother].
[Mother], during at least part of the summer of 2016, was still testing
positive for drug use. The Court will note that the baby Cairo she gave
birth to in June of 2016 tested positive for illegal drugs. The Court finds by
clear and convincing evidence that placing physical custody of [Neveah]
with [Mother] at the time the petition was filed would pose a severe risk of
physical and psychological harm to [Neveah]. The Court finds by clear and
convincing evidence that [Foster Parents] have satisfied the ground alleged
as substantial harm found at T[ennessee Code Annotated section] 36-1-
113(g)(14).

8
The statutory language of Tennessee Code Annotated section 36-1-113(g)(14) has not changed
in a material way since Foster Parents filed this petition, so citations in this opinion are to the current
statute.

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The trial court also ruled that the proof offered amounted to clear and convincing
evidence that termination of Mother’s parental rights was in Neveah’s best interests.

Mother appealed, and the Court of Appeals reversed. The intermediate appellate
court overturned the trial court’s findings as to all three statutory grounds for termination
of Mother’s parental rights. As to the first two statutory grounds, the Court of Appeals
held that Foster Parents had failed to prove by clear and convincing evidence that Mother
willfully failed to visit or willfully failed to support Neveah during the four months
preceding the filing of their petition. 9 In re Neveah M., No. M2019-00313-COA-R3-PT,
2020 WL 1042502, at *14–15 (Tenn. Ct. App. Mar. 4, 2020), perm. app. granted, (Tenn.
June 15, 2020). As for the third statutory ground the trial court relied upon, the Court of
Appeals interpreted the statute as requiring Foster Parents to prove by clear and
convincing evidence that Mother lacked both an ability and a willingness to personally
assume legal and physical custody or financial responsibility of the child. Id. at *16–17.
Relying on an earlier intermediate appellate court decision, the Court of Appeals held that
“[i]f a party [seeking to terminate parental rights] proves only the ‘ability’ criterion or the
‘willingness’ criterion, the requirements of the statute are not met, and this ground may
not serve as a basis for terminating parental rights.” Id. at *16 (citing In re Ayden S.,
2018 WL 2447044, at *7). Based on its conclusion that Foster Parents had failed to
prove any statutory ground for termination of Mother’s parental rights, the Court of
Appeals declined to address whether termination of Mother’s parental rights was in
Neveah’s best interests. Id. at *17.

Foster Parents filed an application for permission to appeal in this Court pursuant
to Tennessee Rule of Appellate Procedure 11, raising three issues, two of which
challenged the Court of Appeals’ determination that Tennessee Code Annotated section
36-1-113(g)(14) required them to prove that Mother lacked both the ability and the
willingness to personally assume legal and physical custody or financial responsibility of
Neveah. We granted Foster Parents’ application but limited the grant to the two issues
relating to the proper construction of section 36-1-113(g)(14). Order, In re Neveah M.,

9
As the Court of Appeals pointed out, the statutes establishing these grounds for termination
were amended after Foster Parents filed their petition so that the absence of willfulness is now an
affirmative defense to abandonment for failure to visit or support, which a parent or guardian bears the
burden of establishing by a preponderance of the evidence. In re Neveah M., No. M2019-00313-COA-
R3-PT, 2020 WL 1042502, at *14 n.7 (Tenn. Ct. App. Mar. 4, 2020) (discussing Tenn. Code Ann. § 36-
1-102(1)(A)(i), -102(1)(I) (Supp. 2020)), perm. app. granted, (Tenn. June 15, 2020). The Court of
Appeals declined to apply this revised statute retroactively. Id. Foster Parents have not challenged this
part of the Court of Appeals’ decision.

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No. M2019-00313-SC-R11-PT (Tenn. June 15, 2020) (granting application for
permission to appeal).

II. Standard of Review

Rule 13(d) of the Tennessee Rules of Appellate Procedure supplies the standard
that governs an appellate court’s review of a trial court’s determination in a parental
termination proceeding. In re Carrington H., 483 S.W.3d 507, 523–24 (Tenn. 2016)
(citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re Angela E., 303 S.W.3d
240, 246 (Tenn. 2010)). Under Rule 13(d), appellate courts review factual findings de
novo with a presumption of correctness, unless the evidence preponderates otherwise. Id.
at 524 (citing In re Bernard T., 319 S.W.3d at 596; 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)). A trial
court’s determination as to whether facts amount to clear and convincing evidence
supporting termination of parental rights is a conclusion of law. Id. (citing In re M.L.P.,
281 S.W.3d at 393). As such, an appellate court reviews this determination de novo,
affords no deference to the trial court’s decision, and makes its own determination about
whether the facts amount to clear and convincing evidence of the elements necessary to
terminate parental rights. Id. (citing In re Bernard T., 319 S.W.3d at 596–97). The issue
of statutory construction presented in this appeal also is a question of law, which we
review de novo with no presumption of correctness. Johnson v. Hopkins, 432 S.W.3d
840, 844 (Tenn. 2013).

III. Analysis

A. Ground for Termination

“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.” In re Carrington H., 483 S.W.3d at 521. Parental
rights have been described as “far more precious than any property right.” Id. at 522
(internal quotation marks omitted) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59,
(1982)). But parental rights are not absolute. Id. (citing In re Angela E., 303 S.W.3d at
250). In Tennessee, parental rights may be terminated if a party proves two elements by
clear and convincing evidence: (1) that at least one statutory ground for termination
exists, Tenn. Code Ann. § 36-1-113(g) (listing the grounds for terminating parental
rights); and (2) “[t]hat termination of the parent’s or guardian’s rights is in the best
interests of the child,” id. § 36-1-113(c)(2) (2017 & Supp. 2020). “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
(citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). We thus begin our

- 17 -
analysis with whether Foster Parents offered clear and convincing evidence to establish a
statutory ground for terminating Mother’s parental rights.

The only statutory ground for termination on which Foster Parents rely in this
Court is section 36-1-113(g)(14), which provides that a party seeking to terminate
parental rights must establish by clear and convincing proof that:

[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.

Tenn. Code Ann. § 36-1-113(g)(14). Two prongs must be proven by clear and
convincing evidence to terminate parental rights under this statute: (1) the parent or legal
guardian failed to manifest an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child; and (2) placing the child in the
parent’s legal and physical custody would pose a risk of substantial harm to the physical
or psychological welfare of the child. This appeal focuses on the proper construction of
the first prong of this statute.

The interpretation the Court of Appeals applied in this case originated in a 2018
decision—In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7
(Tenn. Ct. App. May 31, 2018). There, the Court of Appeals held that the first prong of
section 36-1-113(g) requires clear and convincing evidence of both a parent’s inability
and unwillingness to assume custody or financial responsibility for the child. Id. In In re
Ayden S., the proof showed that the parents manifested a willingness to assume legal and
physical custody of the children but lacked the ability to do so. Id. Therefore, the Court
of Appeals reversed the trial court’s decision terminating parental rights. Id. The Court
of Appeals has applied the In re Ayden S. interpretation in a number of subsequent
decisions. See, e.g., In re Justin D., No. E2019-00589-COA-R3-PT, 2020 WL 4473032,
at *13 (Tenn. Ct. App. Aug. 4, 2020), perm. app. filed, (Tenn. Oct. 2, 2020); In re
Allyson P., No. E2019-01606-COA-R3-PT, 2020 WL 3317318, at *11 (Tenn. Ct. App.
June 17, 2020); In re Isabella W., No. E2019-01346-COA-R3-PT, 2020 WL 2070392, at
12 (Tenn. Ct. App. Apr. 29, 2020), perm. app. filed, (Tenn. June 6, 2020); In re Eli S.,
No. M2019-00974-COA-R3-PT, 2020 WL 1814895, at *8 (Tenn. Ct. App. Apr. 9, 2020);
In re Zaylee W., No. M2019-00342-COA-R3-PT, 2020 WL 1808614, at *5 (Tenn. Ct.
App. Apr. 9, 2020); In re Keilyn O., No. M2017-02386-COA-R3-PT, 2018 WL 3208151,
at *8 (Tenn. Ct. App. June 28, 2018).

However, less than a month after the Court of Appeals decided In re Ayden S.,
another panel of the Court of Appeals interpreted the first prong of section 36-1-
- 18 -
113(g)(14) as applying upon clear and convincing proof that a parent was either unable or
unwilling to assume custody or financial responsibility for a child. In re Amynn K., 2018
WL 3058280, at *14. The Court of Appeals stated:

[T]he first prong of Tennessee Code Annotated [section] 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., 2018 WL 3058280, at *14. Stated differently, “the parent must have
‘manifest[ed], by act or omission, an ability and willingness.’” Id. at *13 (quoting Tenn.
Code Ann. § 36-1-113(g)(14)). In re Amynn K. stands for the proposition that the first
prong of section 36-1-113(g)(14) requires a parent to manifest both ability and
willingness and, therefore, is satisfied by clear and convincing proof of a parent’s failure
to manifest either.

More recent decisions of the Court of Appeals have endorsed the In re Amynn K.
interpretation and have rejected the In re Ayden S. construction. See, e.g., In re Braelyn
S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *15 (Tenn. Ct. App. July 22,
2020), perm. app. filed, (Tenn. Sept. 18, 2020); In re Jeremiah S., No. W2019-00610-
COA-R3-PT, 2020 WL 1951880, at *7 (Tenn. Ct. App. Apr. 23, 2020), perm. app. filed,
(Tenn. June 19, 2020); In re H.S., No. M2019-00808-COA-R3-PT, 2020 WL 1428777,
*10 (Tenn. Ct. App. Mar. 20, 2020); In re Bentley Q., No. E2019-00957-COA-R3-PT,
2020 WL 1181804, at *10 (Tenn. Ct. App. Mar. 11, 2020); In re Serenity S., No. E2019-
00277-COA-R3-PT, 2020 WL 522439, at *16 (Tenn. Ct. App. Jan. 31, 2020); In re
Bryson B., No. E2019-00729-COA-R3-PT, 2019 WL 6487241, at *10 (Tenn. Ct. App.
Dec. 2, 2019); In re Jayda H., No. E2019-00855-COA-R3-PT, 2019 WL 6320503, at *9
(Tenn. Ct. App. Nov. 25, 2019); In re Mickeal Z., No. E2018-01069-COA-R3-PT, 2019
WL 337038, at *14 (Tenn. Ct. App. Jan. 25, 2019); In re Alexis S., No. M2018-00296-
COA-R3-PT, 2018 WL 6267180, at *10 (Tenn. Ct. App. Nov. 30, 2018); In re Steven
W., No. M2018-00154-COA-R3-PT, 2018 WL 6264107, at *23 (Tenn. Ct. App. Nov. 28,
2018); In re Savanna I., No. E2018-00392-COA-R3-PT, 2018 WL 6167386, at *14
(Tenn. Ct. App. Nov. 26, 2018); In re Alexis C., No. M2017-02052-COA-R3-PT, 2018
WL 4092048, at *11 (Tenn. Ct. App. Aug. 28, 2018).

In one of these recent decisions, In re Braelyn S., E2020-00043-COA-R3-PT,
2020 WL 4200088, at *15 (Tenn. Ct. App. July 22, 2020), perm. app. filed, (Tenn. Sept.
18, 2020), the Court of Appeals comprehensively examined the strengths and weaknesses
of the divergent statutory interpretations and concluded that this disagreement among the
judges of the Court of Appeals about the proper construction of the first prong of section
- 19 -
36-1-113(g)(14) illustrates that the statutory language is ambiguous. We agree with this
assessment.

In construing statutes, we are guided by the following oft-repeated rules.

First, the most basic principle of statutory construction is to ascertain and
give effect to the legislative intent without unduly restricting or expanding
a statute’s coverage beyond its intended scope. To fulfill this directive, we
begin with the statute’s plain language. When the statutory language is
clear and unambiguous, we must apply its plain meaning in its normal and
accepted use. A statute is ambiguous when the parties derive different
interpretations from the statutory language. However, this proposition does
not mean that an ambiguity exists merely because the parties proffer
different interpretations of a statute. A party cannot create an ambiguity by
presenting a nonsensical or clearly erroneous interpretation of a statute. In
other words, both interpretations must be reasonable in order for an
ambiguity to exist. If an ambiguity exists, however, we may reference the
broader statutory scheme, the history of the legislation, or other sources to
determine the statute’s meaning. We avoid constructions that place
one statute in conflict with another and endeavor to resolve any possible
conflict between statutes to provide for a harmonious operation of the laws.

State v. Frazier, 558 S.W.3d 145, 152–53 (Tenn. 2018) (citations, quotation marks, and
alterations omitted). Here, although the Court of Appeals has interpreted the same statute
in fundamentally different ways, neither interpretation is nonsensical or clearly
erroneous. Therefore, we conclude that the statutory text is indeed ambiguous and will
proceed, as did the intermediate appellate court in In re Braelyn S., to reference the
statute’s legislative history and adopt an interpretation that best effectuates legislative
intent. Frazier, 558 SW.3d at 152–53.

Section 36-1-113(g)(14) was enacted in 2016 as part of a bill focused on amending
title 36 relative to adoption. Act of April 27, 2016, ch. 919, § 20, 2016 Tenn. Pub. Acts
919. According to one of the bill’s sponsors, its purpose was to bring clarity to
Tennessee adoption law and facilitate adoptions. Representatives of the Tennessee
Administrative Office of the Courts, the Tennessee Department of Children’s Services,
private adoption agencies, and adoption attorneys substantially assisted in drafting the
legislation. Hearing on H.B. 1369 Before the H. Civil Justice Subcomm., 109th Gen.
Assemb. (Tenn. Mar. 21, 2016) (statement of Rep. John Mark Windle). At a March 29,
2016 hearing of the Civil Justice Committee of the Tennessee House of Representatives,
Nashville adoption attorney Ms. Lisa Collins testified, and, at the request of the
Administrative Office of the Courts, described “the legislative intent” of the language
now codified as section 36-1-113(g)(14), the statute at issue in this appeal. Hearing on
- 20 -
H.B. 1369 Before the H. Civil Justice Subcomm., 109th Gen. Assemb. (Tenn. Mar. 21,
2016) (testimony of Ms. Lisa Collins).

Ms. Collins explained that the legislative intent of this language is to permit
termination of parental rights upon proof of a parent’s or guardian’s “long term
either inability or unwillingness to provide for a child that is biologically . . . or legally
yours, . . . and such conduct leads to harm to a child.” Hearing on H.B. 1369 Before the
H. Civil Justice Subcomm., 109th Gen. Assemb. (Tenn. Mar. 21, 2016) (testimony of Ms.
Lisa Collins) (emphasis added). After Ms. Collins testified, the legislation unanimously
passed the House Committee, and, during the subsequent legislative process that
culminated in passage of the bill, Ms. Collins’ statement of legislative intent was neither
questioned, supplemented, nor contradicted. Therefore, the expressed legislative intent
for section 36-1-113(g)(14) is to require clear and convincing proof that a parent or legal
guardian was either unable or unwilling to personally assume legal and physical custody
or financial responsibility of a child.

This expressed legislative intent of section 36-1-113(g)(14) also is consistent with
our discussion in In re Bernard T., 319 S.W.3d 586, 604 (Tenn. 2010), of nearly identical
language in a different statute permitting termination of the rights of a putative father
who “has failed to manifest an ability and willingness to assume legal and physical
custody of the child[.]” Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv). Although our
discussion of this language was not dispositive of the In re Bernard T. appeal, this Court
affirmed termination of parental rights where the father had “manifested a commendable
willingness to assume legal custody of all the children” but “conceded that he was unable
to support the children financially and that he could not provide them with a stable
residence.” 319 S.W.3d at 604. We concluded that the father’s “testimony alone
provide[d] clear and convincing evidence that [the father] [did] not presently have the
ability to assume legal and physical custody of any of the children.” Id. at 604–05.

Therefore, we conclude that section 36-1-113(g)(14) places a conjunctive
obligation on a parent or guardian to manifest both an ability and willingness to
personally assume legal and physical custody or financial responsibility for the child. If a
person seeking to terminate parental rights proves by clear and convincing proof that a
parent or guardian has failed to manifest either ability or willingness, then the first prong
of the statute is satisfied. In re Amynn K., 2018 WL 3058280, at *13.

Accordingly, for all these reasons, we adopt the In re Amynn K. interpretation of
the first prong of section 36-1-113(g)(14). We overrule In re Ayden S. and any other
Court of Appeals’ decisions inconsistent with this opinion. Applying the In re Amynn K.
interpretation, we agree with the trial court that Foster Parents have presented clear and
convincing proof to establish the ground for termination provided in section 36-1-
113(g)(14). Mother has not argued in this Court that Foster Parents failed to satisfy the
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second prong of section 36-1-113(g)(14), which required clear and convincing proof that
“placing [Neveah] in [Mother’s] legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of [Neveah].” Tenn. Code Ann.
§ 36-1-113(g)(14). The proof on this statutory requirement is largely unrefuted. Foster
Mother, Foster Father, Mr. Jones, and Foster Mother’s sister testified that Neveah has
bonded with Foster Parents, views them as her parents and primary caregivers, does not
view Mother as her parent, does not remember residing anywhere else, and would be
psychologically devastated were she separated from Foster Parents. The trial court
explained its finding of the statutory ground for termination as follows:

At the time the petition was filed, [Mother] was not visiting with
[Neveah]. She had no income. No job. No long-term stable housing.
[Mother] was completely dependent on the goodness of others to provide
for her daily needs. This Court finds by clear and convincing evidence that
[Mother] has failed to manifest an ability to personally assume legal and
physical custody of [Neveah] or [financial] responsibility of the child. The
court further finds that [Foster Parents] have provided for [Neveah] since
June 29th of 2015. [Neveah] has bonded with both [Foster Mother and
Foster Father]. [Neveah] has certainly not bonded with [Mother].
[Mother], during at least part of the summer of 2016, was still testing
positive for drug use. The Court will note that the baby Cairo she gave
birth to in June of 2016 tested positive for illegal drugs. The Court finds by
clear and convincing evidence that placing physical custody of [Neveah]
with [Mother] at the time the petition was filed would pose a severe risk of
physical and psychological harm to [Neveah]. The Court finds by clear and
convincing evidence that [Foster Parents] have satisfied the ground alleged
as substantial harm found at T[ennessee Code Annotated section] 36-1-
113(g)(14).

The evidence does not preponderate against the trial court’s factual findings.
Furthermore, based on our de novo review, we conclude that the facts amount to clear
and convincing evidence of the statutory ground for relief in Tennessee Code Annotated
section 36-1-113(g)(14).

B. Best-Interests Analysis

Having concluded that Foster Parents presented clear and convincing evidence of
a statutory ground for termination of Mother’s parental rights, we turn next to review the
trial court’s finding that Foster Parents established that terminating Mother’s parental
rights is in Neveah’s best interests. Mother has not challenged the trial court’s finding on
this point, but we are obligated to review it. In re Carrington H., 483 S.W. 3d at 525.

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 Any best-interests analysis necessarily begins with the statutory factors listed
in Tennessee Code Annotated section 36-1-113(i) (2017 & Supp. 2020), which states:

In determining whether termination of parental or guardianship
rights is in the best interest of the child pursuant to this part, the court shall
consider, but is not limited to, the following:

(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;

(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
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 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.

These statutory factors are non-exclusive, and courts may also consider any other proof
offered at a termination proceeding that is relevant to the best-interests analysis. In re
Gabriella D., 531 S.W.3d 662, 681–82 (Tenn. 2017) (citing In re Carrington H., 483
S.W.3d at 523); In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005). “The
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, which interests are hereby recognized as
constitutionally protected and, to that end, this part shall be liberally
construed.

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 Gabriella D., 531 S.W.3d at 682 (quoting In re Audrey S., 182
S.W.3d at 878). It involves more than simply “tallying the number of statutory factors
weighing in favor of or against termination.” Id. (citing White v. Moody, 171 S.W.3d
187, 193–94 (Tenn. Ct. App. 2004)). The unique facts and circumstances of each case
dictate the weight and relevance that a court should afford each statutory factor. Id. The
best-interests analysis remains a factually intensive undertaking. Id. (citing In re
Carrington H., 483 S.W.3d at 523). A court must consider all the statutory factors but
may appropriately ascribe more weight—even outcome determinative weight—to one
statutory factor or rely upon fewer than all of the statutory factors. Id.

Here, in concluding that termination of Mother’s parental rights was in Neveah’s
best interests, the trial court considered all nine statutory factors, but it ascribed the most
weight and relevance to three statutory factors, explaining, in relevant part:

1. Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child; the issue is whether the
relationship is meaningful. For many months, [Mother] was very sporadic
with her visitation. As a result, she missed out on crucial time needed for
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 her to maintain a bond with Neveah. Neveah needs to have an adult step
into the role of parent. And during this period, [Mother] was unavailable to
assume that role. The minor child could not put its life on hold for three
years for [Mother] to decide that she is ready to parent. Instead Neveah
naturally bonded with [Foster Parents]. Even now during the visitations,
the child looks to [Foster Parents] for her needs and sees [Mother] more as
someone she plays with every couple of weeks. The loss of an infrequent
playmate would not be devastating to Neveah but the loss of [Foster
Parents] from her life would be devastating to her.

2. The effect of [a] change of caregiver, caretakers, and physical
environment is likely to have on the child’s emotional, psychological, and
medical condition. Removing the child from the home and parents she
knows and placing her with someone she does not even recognize as her
mother would be devastating to Neveah emotionally, psychologically, and
medically. The minor child has food allergies that [Mother] refuses to
recognize, despite being told the information. [Mother] continues to bring
food to visitation that Neveah should not eat.

3. Whether the parent or guardian is paying child support consistent
with the child support guidelines promulgated by the department pursuant
to [Tennessee Code Annotated section] 36-5-101. The best interest of the
child is determined from viewing this from the child’s perspective rather
than the parent’s perspective. From Neveah’s perspective, [Mother’s]
failure to pay support amounts to the same result whether that failure was
willful or not. Child support payments are for the benefit of the child. A
parent’s failure to pay support for a child for whatever the reason impacts a
determination of the child’s best interest.

(Internal citation omitted).

Having carefully considered the evidence presented, we conclude that the proof
does not preponderate against the trial court’s factual findings. In addition to the three
statutory factors the trial court focused upon, another factor supporting its finding that
termination is in the child’s best interest is that Neveah had already been adjudicated
neglected and dependent and more than one of Mother’s other children also had been
adjudicated to be neglected and dependent. See Tenn. Code Ann. § 36-1-113(i)(6). We
conclude, therefore, that the facts, viewed as a whole, amount to clear and convincing
evidence that termination of Mother’s parental rights is in Neveah’s best interests.

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 IV. Conclusion

For the reasons stated herein, we reverse the judgment of the Court of Appeals and
reinstate the judgment of the trial court terminating Mother’s parental rights on the basis
of the statutory factor enumerated in section 36-1-113(g)(14). As to all other issues, the
judgment of the trial court remains intact and is reinstated as modified herein.

_________________________________
CORNELIA A. CLARK, JUSTICE

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