In re Anna H.

06/09/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 12, 2021 Session

IN RE ANNA H., ET AL

Appeal from the Chancery Court for Anderson County
No. 17CH9327 M. Nichole Cantrell, Chancellor
___________________________________

No. E2020-01206-COA-R3-PT
___________________________________

This case involves a petition to terminate parental rights. The petition was filed by the
children’s biological father and stepmother against the biological mother. The trial court
terminated the mother’s rights, finding that the mother abandoned the children under
Tennessee Code Annotated section 36-1-113(g)(1) and -102(1)(A)(iv) and that termination
was in the best interest of the children. We affirm the trial court’s decision and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

L. Rosillo Mulligan, Harriman, Tennessee, for the appellant, Meagan H.1

Henry Daniel Forrester, Clinton, Tennessee, for the appellees, Jessica H., and Wayne H.

OPINION

I. FACTS AND PROCEDURAL HISTORY

Meagan H. (“Mother”) and Wayne H. (“Father”) are the biological parents of Anna
H. and Mason H. (collectively “the children”). Anna was born in January 2006, and Mason
was born in July 2012. The children were born during Mother and Father’s marriage, but
the parties divorced in June 2014. Father remarried to Jessica H. (“Stepmother”)

1
In actions involving a juvenile, this Court’s policy is to protect the privacy of the child by using
only the first name and last initial of the parties involved. See In re C.W., 420 S.W.3d 13, 15 n.1 (Tenn.
Ct. App. 2013).
(collectively “Petitioners”) in September 2017. This appeal involves a petition to terminate
Mother’s parental rights to the children.

When Mother and Father divorced in 2014, Mother agreed that Father should be
designated as the primary residential parent of the children. At the time, Mother was
addicted to illicit drugs and admitted that she could not provide adequate care for the
children. Since Mother and Father separated, the children have lived exclusively with
Father in Tennessee. Under the permanent parenting plan that was entered upon their
divorce, Mother was granted visitation with the children every other weekend. However,
Mother has not seen the children since 2015.

After Mother and Father’s divorce, Mother began incurring numerous criminal
charges in Kentucky, where she resided. In January 2017, Mother pled guilty to numerous
drug-related charges that she committed in 2015. As a result of her guilty plea, Mother
was sentenced to 12 months of incarceration and 24 months of probation. Mother also pled
guilty to multiple DUI charges after driving under the influence in 2014 and 2016. Due to
her criminal charges and convictions, Mother was incarcerated from November 24, 2016
to January 20, 2017 and again from March 20, 2017 to January 19, 2018. Prior to trial in
this case, the last time she saw the children was in the fall of 2015.

On October 20, 2017, while Mother was incarcerated, Petitioners filed a petition to
terminate Mother’s parental rights and for Stepmother to adopt the children. As grounds
for termination, Petitioners alleged that Mother abandoned the children by failing to visit
and by failing to provide support during the four months that preceded the filing of the
petition.

On February 19, 2018, Mother answered the petition. In her answer, Mother argued
that Petitioners failed to comply with the requirements of Tennessee Code Annotated
section 36-1-113. Specifically, Mother asserted that she was incarcerated at the time the
petition was filed and that the petition failed to state grounds for termination of the rights
of an incarcerated parent. Based on the deficiency in the petition, Mother moved to dismiss
the petition. Shortly after Mother filed her initial answer, in May 2018, she moved to
enforce the visitation schedule contained in the parties’ permanent parenting plan. This
was the first time since the parties’ divorce in 2014 that Mother attempted to formally
enforce the visitation schedule.

After a hearing on Mother’s motion to dismiss, the trial court agreed that Petitioners
failed to adequately plead a ground for termination. However, the court allowed Petitioners
to amend the petition to include the requisite four-month period and instructed Mother to
provide Petitioners her dates of incarceration prior to the filing of the petition.

On February 22, 2019, Petitioners filed an amended petition. In the amended
petition, Petitioners again alleged that Mother abandoned the children by failing to support
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and by failing to visit. Petitioners stated that Mother’s relevant periods of incarceration
were from November 24, 2016 to January 20, 2017, and again from March 20, 2017 to
January 19, 2018. Accordingly, Petitioners argued that, excluding those periods of
incarceration, Mother abandoned the children during an aggregated four months prior to
Petitioners filing the original petition.

In an amended answer, Mother admitted to the alleged periods of incarceration.
Mother also claimed that Petitioners thwarted her attempts to visit and provide support
during the requisite four-month period.

On July 28, 2020, the trial court conducted a final hearing on the petition. Several
witnesses testified at the hearing, including Father, Stepmother, Anna, and Mother. At the
outset of the hearing, the parties agreed to an aggregate four-month period under Tennessee
Code Annotated section 36-1-102(1)(A)(iv). The parties agreed that, excluding Mother’s
periods of incarceration, the relevant four-month period of non-incarceration was from
September 24 to November 24, 2016 and January 20 to March 20, 2017.

Father testified that he and the children reside with Stepmother and her biological
son. Father stated that the children are established in the home and are doing exceptionally
well. He testified that Anna is involved in various activities, such as soccer and
cheerleading, and is receiving high grades in school. When asked about Anna’s
relationship with Stepmother, Father stated that, at times, they bicker like a normal
daughter and mother, but they have a positive relationship overall. Similarly, Father stated
that Mason plays several sports and gets along well with Stepmother. In contrast to the
children’s relationship with Stepmother, Father testified that Mother did not visit or attempt
to contact the children during the relevant four-month period. He further stated that
between the parties’ divorce in 2014 and the filing of the petition in 2017, Mother attempted
to contact the children approximately five times. Until the petition was filed, Father did
not receive any letters, cards, or gifts from Mother to the children. However, Father stated
that after Mother was released from incarceration in January 2018, he began receiving
cards from Mother addressed to the children. According to Father, Mason, who was two
years old when he last saw Mother, had no relationship with Mother.

Stepmother also testified to her relationship with the children. Stepmother had
experienced previous legal issues similar to that of Mother in her past. Prior to marrying
Father, Stepmother had been incarcerated for various drug-related charges. Although she
used drugs in the past, Stepmother testified that she has not used drugs since she was
released from incarceration in December 2014. Stepmother verified that she and her
biological son have lived with Father and the children since 2016. She testified that she
raises Anna and Mason as if they are her biological children and that they refer to her as
“Mom.” Stepmother stated that she helps perform parenting responsibilities such as
transporting the children to their activities, cooking for the family, and putting the children
to bed at night. Similar to Father’s testimony, Stepmother also stated that the family did
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not receive any mail from Mother until after the petition was filed.

Anna, who was fourteen years old at the time of trial, also testified. Anna confirmed
that she refers to Stepmother as “Mom” because she views her as her mother. She also
referred to Stepmother’s biological son as her “brother.” Anna stated that she understood
that the trial court was being asked to terminate Mother’s parental rights and that she
wanted Stepmother to be her legal mother.

In regards to her relationship with Mother, Anna testified that, even if Mother is no
longer using drugs, she does not want to have contact with her. When asked about Mother’s
recent efforts to make contact, Anna stated that she remembered receiving cards and letters
on holidays. However, she received the majority of these correspondences after the
termination petition was filed. Anna was aware that there were instances when Mother
attempted to contact her through Father but said that she would inform Father that she did
not want to speak with Mother. Anna’s previous interactions with Mother were tumultuous
and sporadic. In particular, Anna described instances where she would find needles in
Mother’s purse or under her bed. She also stated that Mother was “in and out of our lives.”
Anna estimated that she last saw Mother approximately six years prior to trial when she
and Mason were visiting their maternal grandmother. Anna testified that during the visit,
Mother arrived and began fighting with the grandmother, which resulted in law
enforcement being called to the scene. Anna also stated that because Mason was “really
young” when he last saw Mother, he does not have a relationship with Mother.

Mother testified on her criminal history, her efforts to change her lifestyle, and her
recent efforts to contact the children. Mother admitted to her prior drug use that resulted
in multiple periods of incarceration. Initially, Mother claimed that she began using drugs
“around 2015.” However, she later admitted meeting Stepmother when she was using
drugs, which was prior to her divorce from Father in 2014. Despite her prior drug use,
Mother asserted that she has been “clean” since she was incarcerated in March 2017.
Mother testified that since she was last released from incarceration, she has obtained
employment, had earned an Associate’s degree in science, and had made plans to complete
a physical therapy assistant program. During her prior incarcerations, Mother entered
rehabilitation programs, but she did not complete any of those programs.

Mother admitted that she has no affirmative proof of her efforts to contact the
children prior to the petition being filed. She claimed that she made efforts that went
unanswered. However, her testimony on her pre-petition efforts was inconsistent. Initially,
Mother stated that during one period of incarceration, she sent the children a letter and a
drawing. When asked about another period of incarceration, she stated that she did not
send anything to the children because she did not know what to say. During a stint in a
rehabilitation program in 2017, Mother claimed that she was not allowed to make phone
calls or write letters. Additionally, when she was asked why she did not attempt to enforce
her visitation rights prior to the petition being filed, Mother stated that she “felt like [she]
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couldn’t fight” as a drug addict.

Mother testified that since the petition was filed in October 2017, she has made
numerous efforts to contact the children. Mother claimed that she mailed the children cards
on birthdays and holidays. She also asserted that she made numerous calls and sent text
messages to Father in an attempt to contact the children. Mother explained that she did not
have a phone when she first left incarceration, so she often used the maternal grandmother’s
cell phone to call Father. She claimed that even when she eventually obtained her own
phone, she continued to use the grandmother’s phone to contact Father. At trial, Mother
produced copies of the text messages that she claimed she sent to Father. Certain messages
indicated that they were sent by Mother, but others did not include a reference to Mother.
In fact, multiple messages included plural nouns such as “we” or “us.” Mother explained
that she sent the messages from the maternal grandmother’s phone and that the plural
wording referred to her, the grandmother, and the maternal grandfather. Regardless, Father
did not answer any of the purported efforts that Mother made after the petition was filed.
When asked whether she left voice messages when Father did not answer, Mother stated
that she “don’t like to” leave messages and that she would “rather just call and hope that
he answers.”

Similar to Father not responding to Mother’s alleged calls and text messages after
Petitioners filed their petition, Mother claimed that Father did not inform her of the
children’s activities prior to the petition being filed. In particular, Mother asserted that
Father did not provide Mother with information on the children’s sporting events, their
medical appointments, or their education. However, Mother also admitted that she did not
make efforts to contact the children’s school or their doctor’s office. Instead, she again
claimed that she was unable to initiate the contact when she was addicted to drugs. Mother
also claimed that Petitioners thwarted her attempts to contact the children by blocking her
on social media. Based on her absence from the children’s lives, Mother admitted that
reintroducing the children to her would be difficult. However, she stated that the bonds
could be mended.

On August 10, 2020, the trial court entered a written order on the petition to
terminate Mother’s parental rights. In its order, the trial court found that Petitioners
sufficiently established abandonment for failure to visit as a ground to terminate Mother’s
parental rights. The court agreed with the parties that the relevant aggregate four-month
period under this ground was from September 24 to November 24, 2016, and January 20
to March 20, 2017. The court noted that prior to trial, Mother had not seen the children
since the fall of 2015, well beyond the four-month period. The court found that Mother’s
attempts to contact the children, including her purported calls, text messages, and letters,
did not occur during the relevant four-month time period. Although Petitioners also alleged
that Mother failed to support the children during the statutory four-month period as a

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ground for termination, the court concluded that Petitioners failed to establish this ground.2

Further, the trial court specifically found that Mother’s testimony was not credible
on several issues. Specifically, the court concluded that Petitioners did not block or
interfere with Mother having contact with the children. When discussing Mothers efforts
to send text messages and phone calls, the court took issue with Mother’s testimony. In
particular, the court stated that Mother had her own phone at the time several of the
messages were sent and that at least one message was sent by the maternal grandmother,
despite Mother claiming that she sent the message.3 The court also noted that Mother
admitted that she did not typically leave voice messages when she would attempt to call
Father. Meaning, that if Mother was actually calling from the grandmother’s phone, Father
would have no way of knowing that it was actually Mother calling.

Having found that abandonment by failure to visit was established as a ground for
termination, the trial court also found that it was in the best interest of the children to
terminate Mother’s parental rights. Accordingly, the trial court terminated Mother’s
parental rights to the children.

Mother timely appealed.

II. ISSUES PRESENTED

On appeal, Mother presents four issues for review, which we have reworded:

1. Whether Petitioners established the requisite four-month period of Mother’s
non-incarceration under Tennessee Code Annotated section 36-1-102(1)(A)(iv);

2. Whether Petitioners thwarted Mother’s efforts to visit or contact the children;

3. Whether it is in the best interest of the children to terminate Mother’s parental
rights; and

4. Whether there was a “less restrictive alternative” to terminating Mother’s
parental rights.

For the reasons stated herein, we affirm the trial court’s decision to terminate

2
Under the permanent parenting plan that was entered upon Mother and Father’s divorce, the
parties agreed to waive Father’s child support obligation. The trial court determined that this relieved
Mother of her obligation to provide child support. On appeal, Petitioners do not challenge the trial court’s
finding on this ground.
3
The maternal grandmother also testified at the final hearing. When asked about the text messages
that Mother claimed to have sent from her phone, the grandmother testified that she sent one of the
messages.
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Mother’s parental rights and remand.

III. STANDARDS IN TERMINATION CASES

The Due Process Clauses in the federal and state constitutions recognize a parent’s
fundamental right to the care and custody of his or her child. Troxel v. Granville, 530 U.S.
57, 65 (2000); In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016). It is one of the
oldest judicially recognized liberty interests. In re Carrington H., 483 S.W.3d at 521.
Although it is a fundamental right, it is not absolute. Id. at 522; In re Audrey S., 182 S.W.3d
838, 860 (Tenn. Ct. App. 2005).

A party seeking to terminate the parental rights of another must prove two elements.
First, the petitioner must prove one of the statutory grounds for termination listed under
Tennessee Code Annotated section 36-1-113(g). In re Kaliyah S., 455 S.W.3d 533, 552
(Tenn. 2015). Second, the petitioner must prove that terminating the parent’s rights is in
the best interest of the child. Id. “No civil action carries with it graver consequences than
a petition to sever family ties irretrievably and forever.” In re Audrey S., 182 S.W.3d at
860. Therefore, certain protections are afforded to the parent, including the petitioner being
required to prove these elements by clear and convincing evidence. In re Carrington H.,
483 S.W.3d at 522; In re Kaliyah S., 455 S.W.3d at 552. 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 the evidence.” In
re Audrey S., 182 S.W.3d at 861 (citations omitted). It must “eliminate[] any serious or
substantial doubt about the correctness of these factual findings.” In re Carrington H., 483
S.W.3d at 522 (quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)).

“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 Neveah M., 614 S.W.3d 659, 673 (Tenn. 2020) (citing In
re Carrington H., 483 S.W.3d at 523-24). Pursuant to Rule 13(d), we review the trial
court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates otherwise. Id. at 674 (citing In re Carrington H., 483 S.W.3d at 524).
Conclusions of law are also reviewed de novo but with no presumption of correctness. In
re Carrington H., 483 S.W.3d at 524.

IV. DISCUSSION

A. Abandonment – Failure to Visit

In its order of termination, the trial court found that Mother abandoned the children
under Tennessee Code Annotated sections 36-1-102(1)(A)(iv) and -113(g)(1). Mother
argues that Petitioners erred by including her time in rehabilitation when calculating the
four-month period under this ground. Mother also argues that Petitioners thwarted
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Mother’s efforts to visit the children. Specifically, Mother claims that because her efforts
were thwarted by Petitioners, any failure to visit was not willful.

As stated in Tennessee Code Annotated section 36-1-113(g)(1), “abandonment” can
serve as a potential ground to terminate a parent’s parental rights. Section 36-1-102(1)
provides several definitions for abandonment. Subsection (1)(A)(iv) provides several
“mechanisms by which abandonment may be proven when the parent is incarcerated at or
shortly before the filing of the termination petition.” In re Navada N., 498 S.W.3d 579,
597 (Tenn. Ct. App. 2016). As relevant to this appeal, this definition of “abandonment”
was present when:

A parent or guardian is incarcerated at the time of the institution of an action
or proceeding to declare a child to be an abandoned child, or the parent or
guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and . . .
has willfully failed to visit . . . for four (4) consecutive months immediately
preceding such parent’s or guardian’s incarceration.

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2017).4 It is undisputed that Mother was
incarcerated at the time Petitioners filed their petition to terminate Mother’s parental rights.
Therefore, section 36-1-102(1)(A)(iv) applies for determining whether “abandonment” is
present in this case.

For determining the applicable four-month period of abandonment, Tennessee Code
Annotated section 36-1-102(1)(A)(iv) further states:

If the four-month period immediately preceding the institution of the action
or the four-month period immediately preceding such parent’s incarceration
is interrupted by a period or periods of incarceration, and there are not four
(4) consecutive months without incarceration immediately preceding either
event, a four-month period shall be created by aggregating the shorter periods
of non[-]incarceration beginning with the most recent period of non[-
]incarceration prior to commencement of the action and moving back in time.
Periods of incarceration of less than seven (7) days duration shall be counted
as periods of non[-]incarceration.

In this case, Mother was incarcerated from November 24, 2016 to January 20, 2017
and again from March 20, 2017 to January 19, 2018. The Petitioners’ termination petition
4
The relevant portions of the Code that are cited herein are cited according to how they appeared
when Petitioners initiated this case in October 2017. “Willfulness” is no longer a requirement of section
36-1-102(1); instead, “[e]ffective July 1, 2018, our General Assembly amended [section] 36-1-102(1) to
make the absence of willfulness an affirmative defense.” In re Arianna B., 618 S.W.3d 47, 62 (Tenn. Ct.
App. 2020).
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was filed on October 20, 2017. Accordingly, Petitioners and Mother stipulated that the
aggregate four-month period under section 36-1-102(1)(A)(iv) was from September 24 to
November 24, 2016, and from January 20 to March 20, 2017. The trial court relied on this
stipulated time period in reaching its conclusion that Mother abandoned the children for
failing to visit.5

On appeal, Mother asserts that she was in a rehabilitation facility during a portion
of the stipulated four-month period. Mother claimed that she was unable to contact the
children while she was in the rehabilitation facility. Therefore, she argues that the period
of time that she spent at the rehab facility “should not have been counted” in the four-
month period for determining abandonment under section 36-1-102(1)(A)(iv). Mother
gives no citation to support this assertion. The statute requires aggregation of periods of
“nonincarceration.” In addition, the trial court did not find Mother’s testimony to be
credible, and aside from her testimony, there was no proof that Mother was in a
rehabilitation facility during the stipulated four-month period. The trial court also stated
that there was no indication that Mother was prevented from contacting the children at any
point during the stipulated four-month period. This finding is presumed correct. See Tenn.
Rule App. P. 13(d); In re Neveah M., 614 S.W.3d at 674.

From our review, we agree with the trial court that there is no proof to indicate that
Mother was restricted from contacting the children during the stipulated four-month period.
Great weight is afforded to the trial court’s determination that Mother was not credible.
See In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). Accordingly, we
conclude that Mother was not restricted from contacting the children at any point during
the stipulated four-month period.

The last time Mother saw either of the children was in the fall of 2015. Clearly,
Mother’s most recent visit with the children was well beyond the stipulated four-month
period. Mother testified at length on the phone calls, text messages, and cards that she sent
to the children. However, all of the efforts that Mother testified to were made after the
termination petition was filed rather than during the pre-filing four-month period. Anna
testified that she received letters from Mother shortly after her parents divorced in June
2014, but that she stopped receiving them after she returned them. Regardless, any letters
that Anna may have received directly after the divorce would have occurred outside of the
relevant four-month period. Therefore, evidence presented shows that Mother’s efforts to
visit or contact the children took place beyond the four-month period of abandonment.

Mother also argues that her lack of visitation was not willful because Petitioners
thwarted her efforts to contact the children. A parent willfully fails to visit a child when
the parent “is aware of his or her duty to visit or support, has the capacity to do so, makes

5
Mother does not argue that a four-month period prior to the date of the amended petition, February
22, 2019, should apply.
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no attempt to do so, and has no justifiable excuse for not doing so.” In re Audrey S., 182
S.W.3d at 864. A parent’s failure to visit “is not excused by another person’s conduct
unless the conduct actually prevents the [parent] from performing his or her duty or
amounts to a significant restraint of or interference with the parent’s efforts to support or
develop a relationship with the child.” Id. (citations omitted). Stated differently, a “parent
who attempts to visit and maintains a relationship with the child, but is ‘thwarted by the
acts of others and circumstances beyond [her] control,’ cannot be found to have willfully
abandoned the child.” In re Jaylah W., 486 S.W.3d 537, 551 (Tenn. Ct. App. 2015)
(alteration in original) (quoting In re Adoption of A.M.H., 215 S.W.3d at 810).

Although Mother claims that Petitioners thwarted her efforts to contact the children,
again, the trial court found that Mother was not credible on this issue. Instead, the court
found that at no point did Petitioners thwart Mother’s supposed efforts to contact the
children. We place great emphasis on the trial court’s credibility determination, see In re
Adoption of A.M.H., 215 S.W.3d at 809, and the evidence does not preponderate against
the court’s finding on this issue.6 Therefore, this finding is presumed correct. See Tenn.
Rule App. P. 13(d); In re Neveah M., 614 S.W.3d at 674. Further, Mother was entitled to
visitation with the children every other weekend under the permanent parenting plan that
was entered upon the parties’ divorce. Despite being entitled to visitation, Mother did not
seek to enforce her visitation until right after the termination petition was filed, beyond the
four-month period under section 36-1-102(1)(A)(iv). See also Tenn. Code Ann. § 36-1-
102(1)(F) (“Abandonment may not be repented of by resuming visitation or support
subsequent to the filing of any petition seeking to terminate parental or guardianship rights
or seeking the adoption of a child.”). Mother’s explanation that she did not enforce her
rights because she “felt like [she] couldn’t fight” as a drug addict is not a justifiable excuse
for failing to visit. Mother was aware of her obligation to visit the children and was capable
of visiting, but she simply decided not to seek visitation until after the termination petition
was filed.

Based on our foregoing discussion, we affirm the trial court’s conclusion that
Mother abandoned the children under Tennessee Code Annotated sections 36-1-
102(1)(A)(iv) and -113(g)(1) by willfully failing to visit the children from September 24
to November 24, 2016, and from January 20 to March 20, 2017.7

6
Although the maternal grandmother’s testimony verified some of Mother’s statements, the trial
court clearly relied primarily on Petitioners’ testimony. We do not find a sufficient basis to disturb the trial
court’s reliance.
7
Again, the parties stipulated that the aggregate four-month period of non-incarceration spanned
from September 24 to November 24, 2016, and from January 20 to March 20, 2017. However, “the four-
month period ‘immediately preceding’ [a] parent’s incarceration ends on the day before the actual date of
incarceration.” In re Braxton M., 531 S.W.3d 708, 720 (Tenn. Ct. App. 2017). Meaning, because Mother
left incarceration on January 20, 2017, and reentered incarceration on March 20, 2017, these days should
not have been counted in the aggregated four-month period. Although the parties and the trial court made
a slight miscalculation of the four-month period, because the trial court’s final order includes sufficient
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 B. Best Interests

Because we have concluded that Petitioners have established at least one ground to
terminate Mother’s parental rights, we must now determine whether termination is in the
best interest of the children. See In re Neveah M., 614 S.W.3d at 678. In making this best
interest determination, we are instructed to consider the factors listed in Tennessee Code
Annotated section 36-1-113(i).8 In re Carrington H., 483 S.W.3d at 523. The relevancy
and weight that a court places on each factor depends on the unique facts of each case. In

findings of fact on the correct four-month period, in this instance, the miscalculation is harmless. See, e.g.,
In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *5 (Tenn. Ct. App. July 22, 2020)
(stating that “any error from the [trial court’s] use of the incorrect four-month period is harmless”); In re
Braxton, 531 S.W.3d at 720 (stating that a one-day difference in the calculated four-month period “[did]
not affect the outcome of [the] action”).
8
The factors listed in Tennessee Code Annotated section 36-1-113(i) are:

(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 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.
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re Neveah M., 614 S.W.3d at 679. Each factor must be considered, but courts are not
required “to find the existence of each factor before it concludes that terminating a parent’s
rights is in the child’s best interest.” In re Matthew T., No. M2015-00486-COA-R3-PT,
2016 WL 1621076, at *16 (Tenn. Ct. App. Apr. 20, 2016) (citing In re Dominique L.H.,
393 S.W.3d 710, 719 (Tenn. Ct. App. 2012)). If the best interests of the child and the
parent conflict, courts must resolve the conflict in favor of the child. In re Navada N., 498
S.W.3d at 607 (citing Tenn. Code Ann. § 36-1-101(d); White v. Moody, 171 S.W.3d 187,
194 (Tenn. Ct. App. 2004)).

Under factor (1), Mother argues that she has made a meaningful adjustment to her
lifestyle as to make it safe for her to visit the children. She claims that she has not used
drugs since March 2017—when she last entered incarceration—and that she has become a
productive citizen by furthering her education, obtaining employment, and forgoing her
criminal lifestyle. While Mother emphasizes that it is now safe for her to visit the children,
the language of factor (1) focuses on whether the children would be safe in the parent’s
home. See Tenn. Code Ann. § 36-1-113(i)(1). Although Mother has not incurred new drug
charges since she was last incarcerated, she admitted that her previous attempts to attend a
rehabilitation facility were not successful. Further, aside from her testimony, which the
trial court found was not credible, there is no evidence that she has actually submitted and
passed random drug screens since leaving incarceration. As a whole, we cannot say that
Mother has made a sufficient adjustment to her conduct or conditions that would allow the
children to safely be in Mother’s home.

There was no proof that a social services agency provided assistance to Mother.
Therefore, factor (2) is not applicable.

Under factor (3), as we have discussed at length, Mother has failed to maintain
regular contact or visitation with the children. We find it particularly striking that Mother
did not attempt to enforce her visitation rights until after Petitioners filed the termination
petition. Prior to the petition being filed, Mother made only token efforts to contact the
children and committed several criminal acts. Factor (3) weighs in favor of termination.

It is clear that neither of the children have a meaningful relationship with Mother.
Mother has not seen the children since the fall of 2015. Anna testified that because Mason
was very young when he last saw Mother, she does not believe that he has a relationship
with Mother. Although Anna does remember Mother, she testified that she does not want
to have contact with her and, instead, wants to be adopted by Stepmother. Mother admitted
that reintroducing her to Mason would “be rough” on Mason since they had not seen each
other in several years. In addition to Mother failing to contact or visit the children, she did
not attend the children’s activities and did not inquire about their medical care or
educational progress. In contrast to the nonexistent relationship between Mother and the
children, Father and Stepmother appear to be well-bonded with the children. Petitioners
provide a safe and nurturing home for the children. The children participate in sports and
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other activities, have performed well in school, and refer to Stepmother as “Mom.”
Disturbing the positive environment that has been provided for the children would not be
in their best interests. Taken together, factors (4) and (5) weigh in favor of termination.

Anna testified that when she was last in Mother’s care, she found drug paraphernalia
in Mother’s purse and under her bed. Additionally, in 2017, Mother pled guilty to
purchasing drugs in the presence of a minor. Although the identity of the minor is unclear
based upon the record, based on the neglect that Mother exhibited towards Anna when she
was in her care, factor (6) weighs in favor of termination.

Although the maternal grandmother testified that Mother has lived in her home for
several years, there is not sufficient evidence to make a finding on factor (7). Similarly,
there was no proof presented regarding Mother’s mental or emotional state under factor
(8).

Regarding support, Mother testified that she began collecting items for the children
after she was released from incarceration. However, she has not provided those items to
the children. Further, Mother did not provide support of any kind prior to the termination
petition being filed. The absence of a child support order that required Mother to provide
support is not a justifiable excuse for her lack of support. See In re Kaleb N.F., No. M2012-
00881-COA-R3-PT, 2013 WL 1087561, at *23 (Tenn. Ct. App. Mar. 12, 2013) (stating
that every adult parent “is presumed to know that she has a duty to provide financial support
for her child”). Factor (9) also weighs in favor of termination.

After considering the factors listed in Tennessee Code Annotated section 36-1-
113(i), we find that there is clear and convincing evidence to show that it is in the best
interest of the children to terminate Mother’s parental rights.

C. “Less Restrictive Alternative”

Mother also claims that the trial court should have considered a “less restrictive
alternative” to terminating her parental rights. In support of this argument, Mother cites
Tennessee Code Annotated section 36-6-301, a visitation statute addressing custodial and
noncustodial parents. This section is not at issue in this case, and its application is not a
part of a court’s analysis when the court is presented with a petition to terminate a parent’s
parental rights. Mother’s suggestion that there is a “less restrictive alternative” to
terminating her rights shows a misunderstanding of the applicable law. In termination
cases, it is not the court’s role to find an alternative to termination or to find an outcome
that may appease both parties. The court’s role is to (1) determine whether the petitioner
has properly established a ground for termination and (2) determine whether termination is
in the best interest of the child. See Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S., 455
S.W.3d at 552. If these elements are satisfied, then the court may terminate the parent’s
rights. Section 36-1-113 does not include a “less restrictive alternative” avenue to
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termination.

Because this issue is not applicable in this case, whether there was a “less restrictive
alternative” to the termination of Mother’s parental rights shall not be discussed further
herein.

V. CONCLUSION

We affirm the finding that there is clear and convincing evidence to support the
ground of abandonment by an incarcerated parent for Mother’s failure to visit the children.
We also affirm the trial court’s conclusion that it is in the best interest of the children to
terminate Mother’s parental rights. Therefore, for the reasons stated herein, we affirm the
trial court order terminating Mother’s parental rights to Anna and Mason.

This case is remanded to the trial court for such further proceedings as may be
necessary and are consistent with this Opinion. Costs of this appeal are assessed against
appellant, Meagan H., for which execution may issue if necessary.

_________________________________
CARMA DENNIS MCGEE, JUDGE

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