In Re C.N.

01/10/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 1, 2021

IN RE C.N.1 ET AL.

Appeal from the Juvenile Court for Sumner County
No. 2018-JV-506 David Howard, Judge
___________________________________

No. M2020-01021-COA-R3-PT
___________________________________

Tennessee Department of Children’s Services (“DCS”) removed six then-children from the
custody of Deanna D. (“Mother”) and David D. (“Father”), in August 2018 after receiving
multiple referrals regarding the family. After the children were in foster care for over a
year, DCS filed a petition to terminate Mother’s and Father’s parental rights. DCS alleged,
as statutory grounds for termination, abandonment by failure to visit, abandonment by
failure to establish a suitable home, failure to manifest an ability and willingness to assume
custody of the children, persistence of conditions, severe abuse, and, in regards to Father
only, a prison sentence of more than two years for conduct against a child. The trial court
found that DCS proved each ground for termination by clear and convincing evidence and
that termination was in the children’s best interests. Mother and Father each appeal.
Following a thorough review of the record, we affirm in part and reverse in part. We affirm
the trial court’s ultimate holding that the parental rights of both Mother and Father should
be terminated.

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

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
J.R., P.J., M.S. and CARMA DENNIS MCGEE, J., joined.

Matthew Edwards, Hendersonville, Tennessee, for the appellant, David D.

Cal Bowen, Jackson, Tennessee, for the appellant, Deanna D.

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

1
In actions involving juveniles, it is this Court’s policy to protect the privacy of the children by
using only the first name and last initial, or only the initials, of the parties involved.
 OPINION

BACKGROUND

Mother and Father (together, “Parents”) are the biological parents of D.D., G.D.,
T.D., S.D., and K.D. (together, the “Children”). The oldest child, C.N., is Mother’s child
and Father’s step-child; however, C.N. has lived with Parents since she was an infant and
was raised by Father.2 Parents testified at trial that DCS was involved with them for many
years and visited Parents’ home frequently. These visits often had to do with Father’s
disciplinary methods, which Mother described at trial as abnormal. Specifically, Mother
testified that Father had waterboarded C.N. in the past and that C.N. was made to do naked
sit-ups or push-ups as punishment. DCS records reflect that the older children corroborated
these allegations, and that punishment inflicted on C.N. was done in the presence of the
other children.

In August of 2018, DCS received new referrals regarding the Children. The oldest
three, C.N., D.D., and G.D., were interviewed by a DCS worker and law enforcement on
August 23, 2018, and gave consistent reports of physical and psychological abuse. C.N.
and D.D. expressed fear that Father’s father (“Grandfather”), with whom the family lived,
would harm the Children’s cat in retaliation for the Children’s removal. It was also noted
that two of the younger children, S.D. and T.D., were not toilet-trained despite the fact that
S.D. was almost five and T.D. was eight at the time. Additionally, T.D. was nonverbal and
was not attending school. Soon thereafter, DCS filed an emergency petition for legal
custody of the Children in the Juvenile Court for Sumner County (the “trial court”),
alleging that all three older children were interviewed separately but gave consistent
accounts of abuse within the home. In particular, the petition alleged that C.N. disclosed
being forced to do naked sit-ups in front of Father and Grandfather, as well as being told
by Father that he would shoot C.N. in the back of the head. The petition also averred that
D.D. disclosed to DCS having seen C.N. be locked under the kitchen sink and that
Grandfather killed animals in front of the Children. DCS records note that during a forensic
interview, T.D. mimed “the action of a shot gun then the gun hitting [] something which

2
At the time of their removal by DCS, C.N. was just shy of sixteen, D.D. was fourteen, G.D. was
twelve, T.D. was eight, S.D. was four, and K.D. was nearly two. C.N.’s biological father was also named
as a defendant in this action but never participated. In any event, C.N. reached the age of majority
approximately two months after the trial court entered its order terminating Parents’ rights. Under the
circumstances, we conclude that this case is moot as to C.N. See In re Jeffery B., No. W2012-00924-COA-
R3-PT, 2012 WL 4854719, at *1 n.2 (Tenn. Ct. App. Oct. 12, 2012); In re K.H., No. W2008-01144-COA-
R3-PT, 2009 WL 1362314, at *12 (Tenn. Ct. App. May 15, 2009); see also Tenn. Code Ann. § 36-1-102
(13), (39) (defining “child” as “any person or persons under eighteen (18) years of age[,]” and defining
“parental rights” as “the legally recognized rights and responsibilities to act as a parent, to care for, to name,
and to claim custodial rights with respect to a child”); but see In re Jeremy C., No. M2020-00803-COA-
R3-PT, 2021 WL 754604, at *6 n.5 (Tenn. Ct. App. Feb. 26, 2021) (reviewing trial court’s decision to
terminate mother’s parental rights despite son reaching age of majority during the pendency of the appeal).
C.N. is nonetheless important for the factual background of this case and is discussed for that purpose.

-2-
[T.D.] vocalized to be the dog.” Older children C.N. and D.D. confirmed to DCS that
Grandfather had killed the family’s dog in front of T.D. An order removing the Children
from Parents’ custody was entered on August 23, 2018, and a preliminary hearing was set
for August 29, 2018. A no-contact order was entered against Father as to Mother and the
Children.3

The Children were placed in DCS custody and Father was arrested and charged with
aggravated child abuse involving a child under the age of eight. Father testified at trial that
the criminal charge stemmed from the allegations made by C.N. Father remained
incarcerated until June 17, 2019, and his participation in the DCS case was minimal until
his release. Upon entering DCS custody, the Children were all in poor condition. Although
they were dressed appropriately, the Children had an odor. T.D. was eight years old but
knew approximately twenty-five words and still wore diapers. Several of the Children had
speech delays. S.D., the four-year-old, appeared to have the developmental capacity of a
two-year-old, was not toilet-trained, and referred to everyone as “mommy.” G.D. was
withdrawn. The Children underwent forensic interviews, during which the Children
disclosed witnessing domestic violence within the home and overhearing Father making
statements about wanting to have sex with C.N. DCS notes reflect that Father denied all
of the Children’s allegations and blamed abuse of the younger children on C.N. Father
relayed that in the past, C.N. and a friend had waterboarded T.D., the eight-year-old, and
that C.N. had previously waived a gun and a knife at the younger children. Mother also
later reported to a DCS caseworker that C.N. and a friend had once locked T.D. in a
bathroom, gagged and hit him. Mother also disclosed fear that C.N. and the same friend
had molested S.D., the four-year-old.

At a child and family team meeting (“CFTM”) on August 29, 2018, Mother relayed
that she was fearful of Father and Grandfather and accused Grandfather of abusing
prescription medication. Mother had also left the family home on August 23, 2018 and
was staying in a motel paid for by DCS. After the motel, DCS arranged for Mother to stay
in a women’s shelter for a few weeks. In early September 2018, Mother chose to return to
Kentucky where she is from and where her parents (the “Maternal Grandparents”) still
reside. DCS entered into an initial permanency plan with Parents on September 11, 2018.
Mother participated in the creation of the initial plan. Although Father was incarcerated,
he was represented by counsel at the ratification hearing for the permanency plan. Among
other things, the plan required Father to undergo a psychological evaluation with an I.Q.
component, complete anger management and parenting classes, provide DCS with a legal
means of income, allow DCS to complete a walk-through of Father’s home, and abide by
the protective order. As to Mother, the plan required a psychological evaluation, individual
3
The no-contact order itself is not in the record; however, no one disputes that Father was ordered
not to have contact with the Children, and the no-contact order was discussed in testimony. See In re Alexis
S., No. M2018-00296-COA-R3-PT, 2018 WL 6267180, at *5 n.6 (Tenn. Ct. App. Nov. 30, 2018).
Grandfather was also purportedly subject to a no-contact order between him and the Children, although this
order also is not in the record.

-3-
therapy, safe and stable housing, open communication with DCS, and a parenting
assessment.

The Children were placed in a foster home together, and Mother was allowed two
hours of supervised visitation per week plus phone calls with the Children. In an October
2018 provider summary, DCS noted that “[Mother] is currently in the process of securing
housing [for the Children]. Once she is in appropriate housing and DCS can do a home
visit to verify the residence is appropriate, placement with [Mother] will be considered.”
Nonetheless, DCS noted early in the case that Mother struggled with mental health issues
and a non-specified intellectual impairment.4 Mother struggled with appropriate
communication with the Children, and Mother was informed in late September 2018 that
her phone calls would be restricted until DCS could talk to Mother’s lawyer. DCS noted
in its file that the Children “were constantly under the impression they were going home
and they would have different dates in mind and information that [the FSW] . . . did not
give them.” Mother also contacted the Children at all hours of the day and night, and even
after the contact was restricted, Kayla H. (“Foster Mother”) discovered an extra phone in
the possession of C.N. One day, Mother called the Children’s FSW multiple times and
claimed that Foster Mother had pulled a gun on C.N. and that C.N.’s teeth had been
knocked out. However, when the FSW checked on C.N. at school, C.N. was fine. Mother
also requested that Foster Mother be prohibited from attending T.D.’s IEP meetings at
school.

At first, Mother regularly saw the Children and frequently communicated with them
via phone and Skype. Mother reported in September of 2018 that Maternal Grandparents
were providing Mother with a house. Additionally, the Children showed some
improvement. By September, T.D. was attending school and his teachers developed a
bathroom schedule to help with toilet-training. T.D. was largely toilet-trained by October
2018. S.D.’s toilet-training and communication had also somewhat improved by October
2018, and all of the Children were enrolled in various forms of therapy. G.D. and C.N. had
cavities filled, and K.D. was treated for some hearing loss as well as some speech therapy.
While D.D.’s mental health was a concern and it was noted that he had trouble with his
anger, he began seeing a therapist to better learn how to express himself. Additionally,
Foster Mother’s husband, Steve H. (“Foster Father” or together with Foster Mother, “Foster
Parents”), discovered that D.D. had a talent for repairing electronic devices. D.D. began
helping Foster Father with his business, which entailed putting electrical in houses, and
Foster Father began teaching D.D. about saving money and budgeting. Overall, the record
shows that the Children’s physical and emotional condition improved once placed with
Foster Parents, and the Children and Mother were able to attend some therapeutic visitation
with one another. Given Mother’s living arrangements, DCS provided Mother with
transportation vouchers to help Mother attend visitation and therapy.

4
Mother testified at trial that she was involved in a car accident in 1997 during which she was
knocked unconscious for two hours and suffered a serious head injury.

-4-
 Some visitation and phone calls with Mother were successful and appropriate, and
in December 2018, DCS noted that Mother had “completed all of the assessments DCS
asked her to do.” The situation with Mother deteriorated, however, towards the end of
2018. Mother continued to contact the Children outside of the scheduled hours, refused to
provide Foster Mother with immunization records for S.D., and again called the Children’s
school and demanded that Foster Mother be restricted from attending the Children’s IEP
meetings. When asked about this, Mother claimed that her Facebook had been hacked and
denied calling the school regarding the IEP meetings. Both Mother and Maternal
Grandparents had to be counseled about making baseless accusations against Foster
Mother. Mother also had to be counseled about bringing too many people to therapeutic
visitation, because at one visit Mother brought a friend who filmed and took pictures of the
session.

Pursuant to the Interstate Compact on the Placement of Children (“ICPC”), DCS
submitted a request for an inspection of Mother’s home to Kentucky’s Department for
Health and Family Services. The request for placement was denied on December 18, 2018
because Kentucky’s Department for Community Based Services (“DCBS”) determined
Mother’s home was not suitable for the Children. Mother’s brother was living in the home;
the DCBS report notes that the brother had been charged with felony wanton endangerment
involving a firearm. DCBS also reported that during its visit, Mother would not get off of
her phone in order to be interviewed and would not answer questions about her plans for
the Children. It also did not appear to DCBS that Mother actually lived in the home;
although there were beds, there were no personal items of Mother’s and most items were
being stored in bins. Finally, DCBS expressed concern over Mother’s mental health,
explaining that Mother had shown up at the DCBS office several times demanding a home
study be conducted immediately, and was generally hostile, confused, evasive, and difficult
to work with.

During January of 2019, some of the Children regressed. While Mother was still
frequently talking to the Children over the phone, DCS notes show that these calls were
not always productive. In particular, Mother had difficulty communicating with T.D., who
mainly communicated with Mother through short phrases and grunting. Around this time,
T.D. reverted to defecating on himself and hiding his underwear in the vents of Foster
Parents’ home. S.D. was physically aggressive towards her siblings and had difficulty
expressing herself appropriately, and C.N. was secretly using social media despite having
been prohibited from doing so. On February 26, 2019, DCS filed an emergency petition
to suspend Mother’s visitation, claiming that bouts of regression were occurring after
contact with Mother and that generally, the communications between Mother and the
Children were inappropriate and problematic.5 DCS also noted that the ICPC request to

5
For example, in one phone call, Mother told D.D. to be careful and not to accept “bribes” from
anyone. In another phone call, Mother kept stating that Foster Mother was not feeding the Children.

-5-
Kentucky had been denied and that DCBS was concerned about Mother’s mental health.
DCS requested that Mother undergo an additional mental health assessment. The trial court
granted this petition in an order entered March 20, 2019, nunc pro tunc to February 27,
2019.

Mother’s visitation was never reinstated.6 While Mother claimed at trial that she
was unable to get another mental health evaluation due to circumstances outside of her
control, DCS averred that Mother failed to get the assessment notwithstanding DCS’s best
efforts. Additionally, Kentucky denied two more ICPC requests for placement with
Mother. The second request was sent in March of 2019. A DCBS caseworker met with
Mother and Maternal Grandparents on April 10, 2019 at Maternal Grandparents’ home.
Mother’s brother was also living in this home at the time. The ICPC documents provide
that Mother, Maternal Grandparents, and the brother were all living in the three-bedroom
house and that there was no room for the Children. The case worker also noted that the
brother was under a “DVO” by his ex-wife and had a criminal history. Further, DCBS
explained that it had concerns about both Mother’s and Maternal Grandparents’ ability to
care for the Children, stating that “the family does have intellectual limitations that would
impair their ability to care for the [C]hildren.” Additionally, no one in the family was able
to verbalize a plan for transporting the Children to and from school or for accommodating
the Children’s special needs.

DCBS attempted a third and final home inspection in May 2019. Mother reported
that she was again living in her parents’ rental house, and a DCBS case worker went to the
house on May 15, 2019. It appeared to the case worker that no one actually lived in the
house, and the case worker was unable to reach Mother. The case worker did speak to a
neighbor, however, who signed an affidavit providing that no one lived in the house, that
Mother would sometimes come to check the mail, and that Mother had approached the
neighbor’s husband about “how to write up a fake lease.” The request for placement was
denied and DCBS recommended that due to Mother’s disabilities, she be referred to a
program called UK Comprehensive Assessment Training Services (“CATS”), which
provides various psychological assessments, therapies, and resources for those who
qualify. Accordingly, by May of 2019, Kentucky’s DCBS concluded that the Children
could not be placed with Mother without further assessment and support for her disabilities.

In the meantime, Father was released from jail on June 17, 2019, after having plead
guilty to attempted aggravated child abuse of a child under the age of eight, pursuant to
Tennessee Code Annotated section 39-15-402. Father’s total effective sentence was twelve
years, but he was released and was serving the remainder of his sentence on supervised
probation. Upon discovering that Father was released from jail, D.D. expressed fear about
returning to Father and told the FSW that D.D. was afraid Parents would reconcile. Despite

6
DCS records reflect, however, that Mother continued to contact the Children and Foster Mother
via social media in violation of the no-contact order.

-6-
having been toilet-trained for several months, T.D. experienced episodes of encopresis and
enuresis after learning about Father’s release. Additionally, the FSW and Foster Mother
suspected Mother and C.N. were communicating secretly because C.N. told the younger
children that they would be going home soon. T.D.’s accidents increased after hearing this.

Although the no-contact order between Father and the Children was still in place,
Father attended a CFTM on September 17, 2019, and was told he needed to complete a
parenting assessment, parenting classes, and therapy before supervised visitations could
begin.7 The record shows that Father completed a parenting class on August 21, 2019, as
well as an anger management class on October 8, 2019. On October 29, 2019, Father filed
a motion asking for visitation with the Children, averring that Father was following the
permanency plan as well as the conditions of his probation. The trial court entered an order
denying this motion on November 22, 2019, concluding only that the request was denied
based “on the record as a whole.”

DCS filed a petition to terminate Parents’ rights to the Children in the trial court on
November 14, 2019. The grounds alleged against Mother were abandonment by failure to
visit, abandonment by failure to provide a suitable home, failure to manifest an ability and
willingness to assume custody of the Children, persistence of conditions, and severe child
abuse. The grounds alleged against Father were the same, in addition to the ground of a
prison sentence of two or more years for conduct against a child amounting to severe abuse.
Parents responded to the petition, denying that grounds for termination existed and that
termination was in the Children’s best interests. Neither parent saw the Children between
the filing of the petition and trial. Mother did not complete the additional mental health
assessment requested by DCS, but Father underwent a psychological evaluation on April
29, 2020. By this time, Father was still living with Grandfather.

The Children remained together in their placement. Although the record shows that
the Children had improved since their removal, they were still struggling in many ways as
of January 2020. T.D. had continued issues with bowel control, nightmares, and
bedwetting, and communicated to the FSW his ongoing fear of “mean dad.” The youngest
two children, S.D. and K.D., still required speech therapy. While they could communicate
in some ways, T.D., S.D., and K.D. were still essentially nonverbal. K.D. was known to
hoard food and overeat. G.D. still tended to be withdrawn and to internalize stress; D.D.
parented the other children8 and could not always control his anger. All of the foregoing
coincided with the Children learning about the termination proceedings.

Trial was held on July 9, 2020 and July 10, 2020. Parents were divorced by the time
of trial and Mother was still living in Scottsville, Kentucky. Mother admittedly had not

7
Mother was invited to this CFTM but did not attend.
8
At one point, D.D. disclosed to his FSW that D.D. felt the need to monitor the other children’s
behavior because this previously kept him out of trouble with Father and prevented “whoopins.”

-7-
had visitation with the Children since the suspension of her visitation the previous year.
While Mother also admitted that she had not completed a second psychological evaluation,
she maintained that her insurance would not cover it and that DCS was supposed to arrange
it for her. Mother testified that she sent confirmation of her insurance to DCS and that
DCS never scheduled the evaluation for her. Mother also maintained that she did not need
a second evaluation.

Mother testified that she was in a car accident in 1997 in which she sustained a
serious head injury. Mother stated that she has been “nervous” ever since and receives
social security and disability due to her injuries and her “manic depressive.” When
questioned about whether Father abused the Children, Mother was evasive and had
difficulty answering the questions. For example, the following exchange between Mother,
DCS, and the Court is reflective of Mother’s testimony as a whole:

Q. (By Ms. Fisher) So did you feel like your children
wouldn’t be safe with [Father]?

A: That’s an answer the good Lord would only know.

Q. But in your opinion, how do you feel about that?

A. (No response).

The Court: Do you believe that the [Children] are safe
with [Father]?

The Witness: Well, they want to be with me, so . . .

The Court: Okay. And I understand that.

The Witness: And it’s under the – it’s a safety, you
know.

The Court: But do you – Ms. Fisher’s question and my
question, I suppose, is, do you believe the [Children] are safe
with [Father]? Regardless of whether they’re going to be with
you or not, do you believe that they’re safe with
him?

The Witness: Is there any way I can speak to my lawyer
for a minute?

The Court: Well, not right now.

-8-
 Mr. Zanger: You’ve got to answer his question, Deanna.

The Court: I mean, if you believe so, then, that’s okay,
and if you don’t believe that they would be, that’s ok, too. You
just have to tell me.

Mr. Zanger: Your Honor, if I may try to move things
along. Deanna, just tell the truth.

The Witness: How do you answer that?

Mr. Zanger: With the truth. We talked about this.
Answer the question truthfully.

The Witness: No.

The Court: Thank you. Appreciate it.

Much of Mother’s testimony proceeded in this manner. Although Mother testified
that she did not believe the Children were safe with Father, she also testified that she would
intervene if and when Father needed to “cool it.” When asked about whether she had ever
seen Father hit or push the Children, Mother’s response was “I would tell him to cool it.
Because when you understand people, you know, you help out.” Another exchange
between the guardian ad litem and Mother proceeded as follows:

Q. Okay. My question to you is, were [the Children]
emotionally abused by [Father]?

A. The way I see it and weigh the abilities that I know of the
[C]hildren and everybody else, yes.

Q. Okay. So the next question to that would be, were [the
Children] physically abused by [Father]?

A. Only God would know the answer and the person that did,
you know what I mean?

Despite her evasive testimony, Mother agreed that Father’s discipline of the
Children “wasn’t normal,” and that she had previously seen Father punish C.N. in “the
nude” and that C.N. was “waterboarded.” Mother also indicated that she saw “handprints”
on D.D. and that on one occasion, T.D. communicated to Mother that Grandfather had
beaten T.D.’s legs with a gun stock. According to Mother, T.D. communicated this by
showing Mother the bruises and then bringing Mother the gun. Mother also testified that

-9-
the Children would disclose to her incidents of physical abuse, but Mother also claimed
that she never witnessed abuse herself. Regarding the family dog, Mother testified that the
Children disclosed to her that Grandfather killed the dog with a board in front of T.D.
Mother also testified that she herself was fearful of Father and Grandfather.

Mother was very critical of DCS and maintained that DCS did not sufficiently assist
Mother. Mother testified that she provided DCS with proof that her insurance would not
pay for a second psychological exam and that DCS never acted upon this information.
Regarding visitation, Mother explained that DCS provided her with transportation
vouchers but that Mother had difficulty using them in Kentucky, rather than in Tennessee.
Mother testified that DCS promised to provide her with gas cards but that this never
materialized. While Mother agreed that DCS paid for Mother to stay in a motel just after
her removal from the family home and then took Mother to a women’s shelter for a short
period of time, Mother maintained that DCS did nothing to further assist her. Mother also
alleged that the family’s DCS team leader once assaulted Mother at a meeting, and
maintained that DCS and Foster Mother instructed the Children to tell lies about Mother.
Mother remained adamant at trial that the Children should return to her care and that DCS
had no grounds to remove the Children in the first place.

Father denied all allegations of abuse and maintained that he pled guilty to attempted
aggravated child abuse as a “best interest” plea to get out of jail. Although Father was
sentenced to twelve years, he was serving the remainder of the sentence on probation.
Father took great issue with Mother’s testimony and denied having made C.N. do
calisthenics in the nude. Father also maintained that the family dog died of natural causes.
Generally, Father testified that Mother and C.N. were out to get him and that while he may
have raised his voice at the Children too often, he never physically harmed any of them.
Rather, Father testified that C.N. was violent towards the younger children on more than
one occasion, and that C.N. was the one who “waterboarded” T.D. Father recounted this
particular event as follows:

Q. So did you tell DCS back in 2018 that you had seen [Mother]
waterboard T.D. before?

A. No, but the deal with the waterboarding, is – falls – I was at an
auction or I was turkey hunting that day. I came home. [T.D.] was standing
right there in the living room. He was shaking. He had a towel wrapped
around him. In turn, I asked [T.D.] In turn, which, you know, his vocabulary
isn’t that good. In turn, what happened, I walked over there [sic] pulled the
towel. He had handprints on him. He was bruised from head to toe. And the
way I understood it, [C.N.’s friend], and C.N.’s the one that done that.

And the way I understand it, [Mother] was supposed to help bust in
the door to help, I guess, get him. And what I was told that he was held under

- 10 -
 the faucet in the bathtub. I was told he had a rag stuck in his mouth. He
demonstrated, as [Mother] kind of put it, that he kept showing like, you
know, something got shoved in his mouth. And I was told by [C.N.] that
[T.D.] was followed by [C.N.’s friend].

According to Father, T.D. was approximately four years old when this occurred, and C.N.
was eleven or twelve. Father further testified that C.N. pointed a gun at one of her younger
brothers on another occasion. While Father maintained that no animals were killed in front
of the Children, Father recalled an incident in which T.D. killed a duck with a brick and
Father skinned the duck and cooked it for dinner.

Father testified that he had “given up” on toilet-training the Children because
Father was “tired of DCS coming to the house” and “accusing [Father] of stuff.” According
to Father, the toilet-training and most of the parenting fell to Mother, and Father believed
T.D. would “come into it on his own.” Father also testified that he had seen Mother grab
the Children and “sl[ing] them on the couch by their arm” and hit them with a paddle.

In response to DCS’s allegation that Father failed to communicate with them
throughout the custodial period, Father testified that his criminal defense attorney advised
him not to speak to DCS before the resolution of the criminal case. Father also stated that
he was trying to abide by the no-contact order. By the time of trial, Father had completed
his psychological evaluation and testified that he had been going to therapy. Father also
offered pictures reflecting several repairs around his home, including new dry wall, paint,
and new flooring in the kitchen and bathroom. Although Father testified that he would be
nervous to see the Children and regain custody, he maintained that he never abused the
Children and that they could safely be returned to him. Father still lived with Grandfather
by the time of trial.

The trial court also heard from Father’s sister, Amanda D. Amanda D. and her two
children lived out of state but would come and visit the family one to three times per year
and would stay for varying periods of time. Amanda D. testified that she saw Father do
the “usual yelling” at the Children but only when necessary. On the other hand, Amanda
D. also testified that she had seen Mother grab T.D. by his arms and throw him onto the
couch, and that Amanda D. witnessed Mother calling C.N. “stupid” and “ignorant.”
Ultimately, Amanda D. maintained that Father loves the Children and echoed Father’s
position that Mother and C.N. fabricated the allegations against Father.

Ty Turner, a DCS caseworker who was assigned to the family in January 2020, also
testified. Mr. Turner testified that in order for DCS to pay for Mother’s second
psychological evaluation, Mr. Turner needed proof from Mother that her insurance would
not cover the assessment. DCS offered into evidence a chain of emails between Mr. Turner
and Mother’s attorney showing that Mother’s attorney sent Mr. Turner a copy of Mother’s
insurance card but the picture was blurry. Mr. Turner maintained that he would have tried

- 11 -
to help Mother obtain the second assessment had she and her attorney provided DCS the
necessary information. Regarding Father, Mr. Turner testified that Father had been
attempting to comply with the permanency plan and had completed his classes as well as a
psychological evaluation.

Regarding the Children, Mr. Turner testified that they were still doing well in Foster
Parents’ home at the time of trial. Despite certain restrictions due to COVID-19, Mr.
Turner was still able to see the Children face-to-face regularly, and they seemed bonded to
Foster Parents. Mr. Turner testified that he was able to communicate some with T.D. but
that T.D. often spoke too quickly for Mr. Turner to understand. Mr. Turner did not testify
as to whether Foster Parents wish to adopt any of the Children.

The trial court entered its final order on July 17, 2020, determining that DCS proved
all alleged grounds for termination as to both Mother and Father. The trial court also
determined that termination of Parents’ rights was in the Children’s best interests. Both
Mother and Father filed a timely notice of appeal to this Court.9

ISSUES PRESENTED

With regard to Parents, we consider the following issues:

1) Whether the trial court correctly determined that DCS proved the grounds for
termination by clear and convincing evidence.10

2) Whether the trial court correctly determined that DCS proved, by clear and
convincing evidence, that termination is in the Children’s best interests.

STANDARD OF REVIEW

Our Supreme Court has explained that:

A parent’s right to the care and custody of her child is among the oldest of

9
Upon motion by DCS, we remanded this case back to the trial court on March 31, 2021, for
correction of a clerical mistake in the trial court’s final order. An amended order was entered May 18,
2021.
10
In his brief, Father challenges only three statutory grounds: abandonment by failure to visit,
abandonment by failure to provide a suitable home, and failure to manifest an ability and willingness to
assume custody of the Children. Nonetheless, pursuant to our Supreme Court’s holding in In re Carrington
H., 483 S.W.3d 507, 524 (Tenn. 2016), we must make our “own determination as to whether the facts,
either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate” Father’s parental rights. Mother challenges
all of the grounds found against her.

- 12 -
 the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578–79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors....’
Tennessee law, thus, upholds the [S]tate’s authority as parens patriae when
interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S. Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d at 522–23. Tennessee Code Annotated section 36-1-113
provides the various grounds for termination of parental rights. See Tenn. Code Ann. § 36-
1-113(g). “A party seeking to terminate parental rights must prove both the existence of
one of the statutory grounds for termination and that termination is in the child’s best
interest.” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (citing Tenn.
Code Ann. § 36-1-113(c)).

In light of the substantial interests at stake in termination proceedings, the
heightened standard of clear and convincing evidence applies. In re Carrington H., 483
S.W.3d at 522 (citing Santosky, 455 U.S. at 769). This heightened burden “minimizes the
risk of erroneous governmental interference with fundamental parental rights[,]” and
“enables the fact-finder to form a firm belief or conviction regarding the truth of the
facts[.]” Id. (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)). “The clear-and-
convincing-evidence standard ensures that the facts are established as highly probable,
rather than as simply more probable than not.” Id. (citing In re Audrey S., 182 S.W.3d 838,
861 (Tenn. Ct. App. 2005)). Accordingly, the standard of review in termination of parental
rights cases is as follows:

An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. 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). In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as

- 13 -
 supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental
rights. In re Bernard T., 319 S.W.3d at 596–97. The trial court’s ruling that
the evidence sufficiently supports termination of parental rights is a
conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions of
law in parental termination appeals, as in other appeals, are reviewed de novo
with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 483 S.W.3d at 523–24.

DISCUSSION

I. Grounds for Termination

The trial court terminated Mother’s and Father’s parental rights to the Children
pursuant to multiple statutory grounds. We address each statutory ground, as it pertains to
each parent, in turn.

A. Abandonment by Failure to Visit

Tennessee Code Annotated section 36-1-113(g) provides that abandonment, as
defined in section 36-1-102, is a ground for terminating parental rights. Tenn. Code Ann.
§ 36-1-113(g)(1) (2017 & Supp. 2019). Section 36-1-102 provides that abandonment
occurs, among other instances, when:

[f]or a period of four (4) consecutive months immediately preceding the
filing of a proceeding, pleading, petition, or any amended petition to
terminate the parental rights of the parent or parents . . . of the child who is
the subject of the petition for termination of parental rights or adoption, that
the parent or parents . . . have failed to visit or have failed to support or have
failed to make reasonable payments toward the support of the child.

Id. § 36-1-102(1)(A)(i). Abandonment by failure to visit occurs when a parent, “for a
period of four (4) consecutive months, [fails] to visit or engage in more than token
visitation.” Tenn. Code Ann. § 36-1-102(1)(E). “Token visitation” is “visitation, under
the circumstances of the individual case, [that] constitutes nothing more than perfunctory
visitation or visitation of such an infrequent nature or of such short duration as to merely
establish minimal or insubstantial contact with the child.” Id. § 36-1-102(1)(C). A parent
may assert the absence of willfulness, which must be proven by a preponderance of the
evidence, as an affirmative defense to abandonment by failure to visit. Id. § 36-1-102(1)(I).

- 14 -
 Father

Here, the salient time period for Father’s failure to visit is July 13, 2019 through
November 13, 2019.11 The trial court made the following relevant findings of fact and
conclusions of law regarding Father’s failure to visit the Children:

[T]he two primary impediments to the Father’s visitation were the
September 2018 no contact order and the fact that [Father] was incarcerated
for approximately ten months of the [C]hildren’s custodial episode. During
this time, however, it is interesting to note that the Father testified that his
Criminal Court attorney had advised him not to cooperate with DCS. It was
not until he was released from incarceration that he began working services,
some of which were completed before the Petition for Termination had been
filed and some of it well after the Petition had been filed.

The Court finds by clear and convincing evidence that the Father has
abandoned the [C]hildren for his failure to visit. Though the Father’s visits
were impeded by the 2018 order and his August 2018 to June 2019
incarceration, the Father was released from incarceration on June 17, 2019,
but did not seek a visitation schedule until October 29, 2019. The Petition to
Terminate Parental Rights was filed November 14, 2019. Technically, this
would be within the four months as contemplated by Tenn. Code Ann. § 36-
1-102. By this point, however, the Court was already aware of the Father’s
conviction for Attempted Aggravated Child Abuse of a Child Under 8 Years
which gave the Court further pause as it related to Father’s ability to have
visitation.

On appeal, Father argues that his failure to visit the Children was due to the trial
court’s no-contact order and was therefore not willful. Father further argues that he proved
lack of willfulness by a preponderance of the evidence, per Tenn. Code Ann. section 36-1-
102(1)(I), and that the trial court failed to make a finding as to this argument.

When a parent’s contact with a child is limited by court order, the parent may
abandon the child through failure to visit if “the parent has the ability to demonstrate a
change in situation or behavior that would warrant reinstating visitation but fails to do
so[.]” In re Kiara C., No. E2013-02066-COA-R3-PT, 2014 WL 2993845, at *6 (Tenn. Ct.
App. June 30, 2014); see also In re Jason S., No. E2020-01479-COA-R3-PT, 2021 WL
1575469, at *6 (Tenn. Ct. App. Apr. 22, 2021) (mother willfully failed to visit children by
failing to present court with evidence of sobriety, despite no-contact order providing that

11
See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App.
Feb. 20, 2014) (for purposes of abandonment, the four-month period “includes the four months preceding
the day the petition to terminate parental rights is filed but excludes the day the petition is filed”).

- 15 -
visitation could be reinstated should mother do so); In re Jaylah W., 486 S.W.3d 537, 552
(Tenn. Ct. App. 2015) (citations and bracketing omitted) (“When a parent chooses not to
cooperate with certain conditions, such as obtaining a drug and alcohol abuse assessment,
that choice in refusing to cooperate constitutes a willful decision to discontinue visitation.”)
(internal quotations omitted). For example, in In re Alexis S., No. M2018-00296-COA-
R3-PT, 2018 WL 6267180, at *6 (Tenn. Ct. App. Nov. 30, 2018), the mother’s visitation
was suspended due to ongoing problems with substance abuse. Because Mother failed to
address those issues, we concluded that the “[m]other’s awareness of the steps necessary
to reinstate her visitation rights and her inaction with respect to those steps constituted a
willful decision to discontinue her visitation with the [c]hildren.” Id.

The question before us, then, is whether Father proved that he attempted to change
his situation such that the no-contact order could be lifted and his visitation reinstated.
Upon thorough review of the record, we conclude that Father made this showing and
proved, by a preponderance of the evidence, that his failure to visit the Children was not
willful.

Father was undisputedly prohibited from having contact with the Children during
the relevant four-month period. Nonetheless, Father attended a CFTM on September 17,
2019 and inquired about supervised visitation. DCS records reflect that Father was told he
needed to complete a parenting assessment and parenting classes, and attend therapy before
his visitation could be reinstated. Father completed parenting classes and an anger
management course. Father then filed a motion for visitation on October 29, 2019, which
provides that Father would accept whatever visitation the court deemed appropriate. This
motion was denied, and the order denying the motion does not explain what was required
of Father to regain visitation. The order provides simply that the request for visitation was
denied based on the “record as a whole.” It is unclear from the trial court’s order what was
specifically required of Father to regain visitation. See In re Jaylah W., 486 S.W.3d at 551
(failure to visit was willful when order denying request for visitation contained clear
directives as to how mother could regain visitation and “provided a mechanism” for doing
so).12 The foregoing militates against a finding that Father “had the ability to demonstrate
a change in situation or behavior that would warrant reinstating visitation but fail[ed] to do
so[.]” In re Kiara C., 2014 WL 2993845, at *6. Rather, during the relevant four-month
period, Father quickly began completing the tasks required by DCS.

Perhaps more importantly, the trial court stated in its final order that by the time it
ruled on Father’s motion for visitation, “the Court was already aware of the Father’s
conviction for Attempted Aggravated Child Abuse of a Child Under 8 Years which gave
12
Additionally, because the actual no-contact order is not contained in the record, it is unclear
whether that order explained how Father could reinstate visitation. See In re Jason S., 2021 WL 1575469,
at *6 (concluding that mother’s failure to visit was willful notwithstanding no-contact order where
“pursuant to the no-contact order, [m]other was allowed to seek visitation upon filing to reinstate it and
presenting herself to the court”).

- 16 -
the Court further pause as it related to Father’s ability to have visitation.” As best we can
discern from the record before us, the trial court never intended to allow Father visitation
with the Children due to Father’s conviction for attempted aggravated child abuse,
regardless of Father’s attempts at reunification. While under the circumstances we take no
issue with that ruling, by the same token Father cannot be said to have willfully failed to
visit the Children.

In light of the steps taken by Father during the relevant four-month period, and the
trial court’s above statement, we agree that Father proved by a preponderance of the
evidence that his failure to visit the Children was not willful. See Tenn. Code Ann. § 36-
1-102(1)(I). The termination of Father’s parental rights pursuant to this ground is therefore
reversed.

Mother

Like Father, Mother’s visitation with the Children was restricted by the time of trial.
The trial court’s findings and conclusions regarding Mother’s failure to visit provide in
pertinent part as follows:

The Court finds by clear and convincing evidence that the Mother has
abandoned the [C]hildren for her failure to visit. Though, obviously disputed
by the Mother, it would appear to the Court that she began with consistent
in-person and telephone visitation. It would further appear to the Court that
the Mother’s own conduct created the circumstances under which her
visitation was suspended. But even suspended, the Court indicated
resumption of visitation could occur upon the completion of a second
evaluation. At no time does it appear the Mother moved to resume visits or
complete the evaluation.

In contrast to Father, we agree with the trial court that Mother was fully aware of
the impediments to her visitation and simply failed to remedy the situation. Mr. Turner
testified at trial that he could help Mother obtain DCS funding for a second psychological
evaluation but that he first needed proof that Mother’s insurance would not cover an
assessment. Mr. Turner testified that he had multiple conversations with Mother and her
counsel about this and that Mr. Turner never received the information he needed. Mother
testified at trial that she saw a doctor about doing the assessment but did not want to pay
for it out of pocket. Moreover, “Mother’s own conduct led to the suspension of the
visitation[,]” and Mother continued the same behavior after the suspension. In re Addison
P., No. E2016-02567-COA-R3-PT, 2017 WL 1861781, at *8 (Tenn. Ct. App. May 8,
2017). Specifically, Mother continued to contact Foster Mother and the Children at
inappropriate times and over social media. Consequently, Mother had “the ability to
demonstrate a change in situation or behavior that would warrant reinstating visitation” but
failed to do so. In re Kiara C., 2014 WL 2993845, at *6.

- 17 -
 On appeal, Mother asserts that there is no evidence in the record as to why Mother’s
first psychological evaluation was insufficient or why Mother needed a second evaluation.
Nonetheless, Mother cites no legal authority explaining how this relates to Mother’s failure
to visit the Children. Moreover, we disagree with Mother’s characterization of the record.
The record reflects that DCS required further evaluation of Mother due to her erratic
behavior, inappropriate communications with the Children, and Kentucky’s refusal to
approve Mother’s home. Mother’s argument lacks merit.

Mother undisputedly failed to visit the Children during the relevant four-month
period and did not establish at trial that her failure to seek and reinstate visitation was not
willful. See Tenn. Code Ann. § 36-1-102(1)(I). Accordingly, we agree with the trial court
that this ground was proven by clear and convincing evidence as to Mother.

B. Abandonment by Failure to Provide a Suitable Home

Abandonment can also occur when:

(a) The child has been removed from the home or the physical or legal
custody of a parent or parents or guardian or guardians by a court order at
any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and the child
was placed in the custody of the department or a licensed child-placing
agency;

(b) The juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-placing
agency made reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable efforts from
being made prior to the child’s removal; and

(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent or parents
or the guardian or guardians to establish a suitable home for the child, but
that the parent or parents or the guardian or guardians have not made
reciprocal reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that they will be able to provide a suitable home for the child at an
early date. The efforts of the department or agency to assist a parent or
guardian in establishing a suitable home for the child shall be found to be
reasonable if such efforts equal or exceed the efforts of the parent or guardian
toward the same goal, when the parent or guardian is aware that the child is
in the custody of the department.

- 18 -
Id. § 36-1-102(1)(A)(ii)(a)-(c).

Here, we “consider[] whether a child has a suitable home to return to after the child’s
court-ordered removal from the parent.” In re Adaleigh M., No. E2019-01955-COA-R3-
PT, 2021 WL 1219818, at *3 (Tenn. Ct. App. Mar. 31, 2021). To terminate parental rights
under this ground, the trial court must find “that a parent failed
to provide a suitable home for his or her child even after DCS assisted that parent in his or
her attempt to establish a suitable home.” In re Jamel H., No. E2014-02539-COA-R3-PT,
2015 WL 4197220, at *6 (Tenn. Ct. App. July 13, 2015). A suitable home requires “‘more
than a proper physical living location.’” In re Daniel B., No. E2019-01063-COA-R3-PT,
2020 WL 3955703, at *4 (Tenn. Ct. App. July 10, 2020) (quoting Tenn. Dep’t of Children’s
Servs. v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App.
Nov. 29, 2007)). A suitable home entails “[a]ppropriate care and attention” for the child,
In re Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct.
App. Apr. 20, 2016), and that the home is “free of drugs and domestic violence.” In re
Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June
10, 2014). DCS must make “reasonable efforts” to assist the parent by doing more than
simply providing a list of service providers. In re Matthew T., 2016 WL 1621076, at *7.
The Department should utilize its superior resources in assisting with establishment of a
suitable home, but “[its] efforts do not need to be ‘Herculean.’” In re Hannah H., 2014
WL 2587397, at *9 (quoting Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 790, 801
(Tenn. Ct. App. 2008)), overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533
(Tenn. 2015); see also In re Matthew T., 2016 WL 1621076, at *7. Sole responsibility
does not lie with DCS, and “[p]arents must also make reasonable efforts towards achieving
the goals established by the permanency plan to remedy the conditions leading to the
removal of the child.” In re Hannah H., 2014 WL 2587397, at *9.

While the statute requires DCS to make reasonable efforts towards the establishment
of a suitable home for “a period of four (4) months following the physical removal” of the
child, “the statute does not limit the court’s inquiry to a period of four months immediately
following the removal.” In re Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL
7243674, at *13 (Tenn. Ct. App. Dec. 15, 2016).

Father

Here, the trial court found that Father failed to establish a suitable home due to
Father’s continued dependence on Grandfather. The trial court explained:

During his incarceration, Father refused to work with DCS. Once
released from incarceration, it appears that he returned to what had been the
family’s home and continued to reside with [Grandfather]. He also began to
work services. Since being released, he has completed his Parenting Course,
Anger Management Course, psychological assessment, and is moving

- 19 -
 forward with therapy.

To Father’s credit, he has also worked on the physical circumstances
of his home environment. The photos he provided as an Exhibit to his
testimony show an older home, yes, but clean and appropriate. Mr. Turner’s
testimony confirmed that the Father’s home is appropriate with no safety
concerns. He even successfully addressed the one issue mentioned by DCS.

A negative concerning the Father’s environment is the ambiguity of
his income. There was much ado made about the Father’s financial situation,
as it appears to the Court that the only financial data he submitted to DCS
and to the Court itself indicates only the [Grandfather’s] income. While it
appears to this Court that the Father farms for a living, he supplied no income
data to support his claims of sufficient income.

Finally, another concern is the fact the Father remains in the residence
with [Grandfather]. In addition to the very troubling testimony about this
man, particularly the allegations of abuse against both the [C]hildren and the
family dog, this Court issued a no contact order between him and the
[C]hildren that has never been modified or set aside. While the Father may
choose to deny the allegations as false, the Court would have serious
concerns about returning the [C]hildren to the Father’s home while
[Grandfather] continued to live there.

On appeal, Father’s sole argument is that because the trial court found Father’s
home was physically appropriate, DCS did not prove this ground by clear and convincing
evidence. In contrast, DCS asserts that Father would not work with DCS during Father’s
incarceration and that even after he was released from jail, Father continued to reside with
Grandfather and did not establish a legal source of income. DCS urges that during the four
months following the Children’s removal, August 23, 2018 through December 23, 2018,
DCS made reasonable efforts to help Father establish a suitable home and that because
Father would not meet with DCS, this ground has been proven by clear and convincing
evidence.

The record does not preponderate against the finding that Father’s home remains
unsuitable for the Children and that DCS made reasonable efforts to assist Father. 13 While

13
DCS argues that the relevant four-month period in this case is the period immediately following
the Children’s removal, August 23, 2018, through December 23, 2018. Nonetheless, efforts to establish a
suitable home are naturally hampered when a parent is incarcerated. See, e.g., In re James W., No. E2020-
01440-COA-R3-PT, 2021 WL 2800523, at *8 n.8 (Tenn. Ct. App. July 6, 2021); In re Eli S., No. M2019-
00974-COA-R3-PT, 2020 WL 1814895, at *11 (Tenn. Ct. App. Apr. 9, 2021); In re Allyson P., No. E2019-
01606-COA-R3-PT, 2020 WL 3317318, at *8 (Tenn. Ct. App. June 17, 2020). For this reason, in In re
James W., this Court looked to a four-month period “follow[ing] the children’s removal from [m]other’s

- 20 -
it is undisputed that the physical structure of Father’s residence is safe and appropriate, a
suitable home requires “more than a proper physical living location.” In re Daniel B., 2020
WL 3955703, at *4. Grandfather’s presence in the home was an issue from the outset of
this case, inasmuch as Father’s permanency plan required him to have a residence free from
unsafe and dangerous people. The record corroborates the trial court’s concerns regarding
Grandfather, and by the time of trial Father had had nearly two years to establish a home
away from Grandfather. Although Father denied all abuse allegations regarding
Grandfather, the trial court clearly did not credit this testimony. See Edmunds v. Delta
Partners, L.L.C., 403 S.W.3d 812, 824–25 (Tenn. Ct. App. 2012) (noting that even in the
absence of an express credibility finding, a “finding on credibility may be implied from the
manner in which the trial court decided the case”). Further, Father does not dispute on
appeal the existence of a no-contact order between Grandfather and the Children, but also
fails to make any argument as to why the home is nonetheless safe. Insofar as a suitable
home is one “free of . . . domestic violence[,]” In re Hannah H., 2014 WL 2587397, at *9,
we conclude, as the trial court did, that Grandfather’s presence renders Father’s home
unsuitable. It is unlikely this issue will be resolved at an early date.

Further, throughout the custodial period, even when Father was incarcerated, DCS
made reasonable efforts to assist Father with establishing a suitable home; indeed, early in
the case DCS attempted to meet with Father and he declined. Although DCS made further
efforts to assist Father when he was released from prison, Father never attempted to
establish a home away from Grandfather and instead focused on renovating the home.
“Ultimately, [ ] we must ‘analyze the reasonableness of DCS’s efforts to assist a parent on
a ‘case-by-case basis in light of the unique facts of the case.’” In re Edward R., No. M2019-
01263-COA-R3-PT, 2020 WL 6538819, at *10 (Tenn. Ct. App. Nov. 6, 2020) (quoting
In re Kaden W., No. E2018-00983-COA-R3-PT, 2019 WL 2093317, at *7 (Tenn. Ct. App.
May 13, 2019)). Under the circumstances of this case, we conclude, as the trial court did,
that Father failed to establish a suitable home for the Children. This ground was proven
by clear and convincing evidence.

custody and span[ning] a period during which [m]other was not incarcerated[,]” as opposed to the four-
month period directly following the children’s removal from the mother’s custody. 2021 WL 2800523, at
*8 n.8. In the present case, there is a dearth of evidence regarding Father and DCS during the period directly
following the Children’s removal; the record reveals only that DCS attempted to arrange a meeting at some
point during this period and that Father declined. While this weighs against Father, we also find it probative,
under the particular circumstances of this case, to consider the four-month period following Father’s release
from prison. See In re James W., 2021 WL 2800523, at *8 n.8. In any event, DCS made reasonable efforts
to assist Father with establishing a suitable home throughout the custodial period. See In re Daylan D., No.
M2020-01647-COA-R3-PT, 2021 WL 5183087, at *6 (Tenn. Ct. App. Nov. 9, 2021) (“The record is also
replete with the efforts that DCS took to help [f]ather establish a suitable home for the children both in the
four months following the removal and throughout the pendency of this case.”); see also In re Katelynn S.,
No. M2020-00606-COA-R3-PT, 2020 WL 8022118, at *8 (Tenn. Ct. App. Oct. 1, 2020) (“The statutory
four-month period during which the Department must make reasonable efforts and the parent reciprocate
them is not limited to the four months immediately following removal.”).

- 21 -
 Mother

The trial court also concluded that Mother abandoned the Children through her
failure to establish a suitable home. As to this ground, the trial court explained:

Upon the [C]hildren’s removal, the Mother left the marital home,
citing both domestic violence and the fact that the Paternal Grandfather
remained living there. At that point, she was taken by DCS to a local hotel
and then to a women’s shelter. Afterwards, the Mother’s housing situation
became slightly more ambiguous, but, ultimately, she relocated to Kentucky,
and has remained in Kentucky from 2018 through the present date. Once she
relocated to Kentucky, DCS attempted the ICPC process with that State, but
the ICPC request was denied due to Mother’s noncompliance. DCS argued
that it made reasonable efforts to assist the Mother with securing housing by
providing her a list of suitable housing options, an assertion that the Mother
disputed.

To the Court, the primary issue with the Mother’s housing is not the
period between the point of removal and the point where the Mother
relocated to Kentucky (though that four months is statutorily relevant), but
the ICPC process that was then denied on three separate occasions. Mr.
Turner testified about the ICPC process and indicated that the sending State
is not the one who makes the determination as to accept or deny it. That
decision belongs solely to the accepting State.

* * *

The Court finds by clear and convincing evidence that the Mother has
abandoned the [C]hildren by failing to provide them with a suitable home. It
has been two years since the [C]hildren entered foster care, and besides the
Mother’s own home she offered no other reasonable housing solutions for
the [C]hildren. DCS made reasonable efforts to work with the Mother so they
could return the [C]hildren to the Mother’s home. As the Mother has been a
Kentucky resident since 2018, and has had three separate denials of her ICPC
request by that State, it is obvious that her home is not acceptable. Further,
this Court cannot order Kentucky, a sovereign entity outside of this Court’s
jurisdiction, to accept a Tennessee ICPC. The only way the Mother’s home
would be cleared for the [C]hildren to return would be to remove them from
DCS custody and immediately restore them to the Mother’s custody. That is
something that this Court is unwilling to do.

The record supports the trial court’s findings. Throughout the custodial period,
there were multiple four-month periods in which DCS made reasonable efforts to assist

- 22 -
Mother in establishing a suitable home for the Children. Immediately following the
Children’s removal, DCS paid for Mother to stay in a motel and then a women’s home.
Soon after, however, Mother opted to move to Kentucky. This move complicated DCS’s
ability to assist Mother; nonetheless, DCS communicated regularly with Mother, helped
her with transportation, and encouraged her to address her mental health issues. DCS also
requested multiple ICPC inspections from Kentucky, all of which were denied based on
circumstances outside of DCS’s control. Although the record shows DCS did what it could
under the circumstances, Mother’s decision to move out of state inevitably hampered
DCS’s ability to assist her.

Although Mother had housing provided by her parents throughout the case,
Mother’s failure to establish a suitable home stems primarily from her refusal to address
her mental health issues. A suitable home requires “more than a proper physical living
location[,]” In re Daniel B., 2020 WL 3955703, at *4 (quotation omitted), and a parent’s
unaddressed mental health problems can amount to a failure to establish a suitable home.
See In re Daylan D., 2021 WL 5183087, at *5 (collecting cases). Kentucky’s refusal to
approve Mother’s home for placement had more to do with Mother’s behavior than the
physical condition of Mother’s residences, and the record corroborates those concerns.

Indeed, Mother’s testimony at trial regarding the abuse allegations against Father
inspires little confidence that Mother grasps the gravity of the situation, and the DCBS
notes contained in the record demonstrate that Mother could not answer basic questions
about her plans to care for the Children. Further, Mother’s pattern of inappropriate
communication with the Children, such as repeatedly telling them they would be coming
home soon and suggesting that Foster Parents were not feeding the Children, also
demonstrate that Mother is unable to intuit the Children’s best interests. Nonetheless, when
DCS suggested that Mother undergo further evaluation and treatment to address her issues
and attempted to organize funding for same, Mother was recalcitrant and never completed
this requirement.

On appeal, Mother argues that “there is ample reason to doubt the veracity of [the
ICPC] denials and whether the Kentucky ICPC had sufficient information to adequately
review the suitability of Mother’s home.” She also urges that the trial court erred in relying
on the ICPC denials in concluding that Mother failed to establish a suitable home. Mother
cites no authority to support either argument. Moreover, we agree with the trial court that
the ICPC denials are probative. The record reflects that Kentucky’s DCBS was concerned
with Mother’s mental health and that Mother was unable to accommodate the Children’s
special needs. Mother’s testimony at trial only buttressed those concerns. We are
unpersuaded by Mother’s argument in this regard.

Ultimately, “Mother’s own failure to comply with her mental health treatment
regimen demonstrated her lack of concern for the Children and resulted in her inability to
provide a suitable home environment.” In re Roderick R., No. E2017-01504-COA-R3-PT,

- 23 -
2018 WL 1748000, at *12 (Tenn. Ct. App. Apr. 11, 2018); see also In re William B., No.
M2020-01187-COA-R3-PT, 2021 WL 4935740, at *22 (Tenn. Ct. App. Oct. 22, 2021)
(affirming trial court’s termination of mother’s right under this ground based upon
mother’s “failure to participate in individual counseling, sig[n] releases and complete a
more in-depth psychological evaluation”). Moreover, based on Mother’s testimony at trial,
it is unlikely she will be able to provide a suitable home for the Children at an early date.

The trial court’s decision to terminate Mother parental rights for failure to provide
a suitable home is supported by clear and convincing evidence and is therefore affirmed.

C. Failure to Manifest an Ability and Willingness to Assume Custody

Tennessee Code Annotated section 36-1-113(g)(14) provides an additional ground
for termination when:

[a] parent . . . has failed to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial
responsibility of the child, and placing the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child.

This ground requires clear and convincing proof of two elements. In re Neveah M.,
614 S.W.3d 659, 674 (Tenn. 2020). The petitioner must first prove that the parent has
failed to manifest an ability and willingness to personally assume legal and physical
custody or financial responsibility of the child. Id. The petitioner must then prove that
placing the child in the custody of the parent poses “a risk of substantial harm to the
physical or psychological welfare of the child.” Id. The statute requires “a parent to
manifest both an ability and willingness” to personally assume legal and physical custody
or financial responsibility for the child. Id. at 677. Therefore, if a party seeking termination
of parental rights establishes that a parent or guardian “failed to manifest either ability or
willingness, then the first prong of the statute is satisfied.” Id. (citing In re Amynn K., No.
E2017-01866-COA-R3-PT, 2018 WL 3058280, *13 (Tenn. Ct. App. June 20, 2018)).

Regarding the second prong of section 36-1-113(g)(14), this Court has previously
explained:

The courts have not undertaken to define the circumstances that pose
a risk of substantial harm to a child. These circumstances are not amenable
to precise definition because of the variability of human conduct. However,
the use of the modifier “substantial” indicates two things. First, it connotes a
real hazard or danger that is not minor, trivial, or insignificant. Second, it
indicates that the harm must be more than a theoretical possibility. While the

- 24 -
 harm need not be inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more likely than not.

In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct. App.
Oct. 11, 2018) (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).

Father

In the present case, the trial court found that Father manifested a willingness to
assume custody of the Children, but not the ability. In relevant part, the trial court
explained:
The Court finds by clear and convincing evidence that the Father has
failed to manifest an ability and willingness to assume custody of the
[C]hildren. As with the Mother, the willingness is there and, at least, unlike
the Mother, the Father completed some necessary tasks before the Petition
for Termination was filed and one after the Petition was filed. Plus, unlike
the Mother, the Father demonstrated at least some self-awareness that
reunification is a process, and one that he is actually nervous about. Even so,
the Court doubts the Father’s ability to assume custody primarily because he
either a) abused the [C]hildren or b) failed to protect the [C]hildren from
abuse; given the testimony, those are the only two options available. Further,
because of unsubstantiated “allegations” the Father has demonstrated a
fundamental unwillingness to parent the [C]hildren – he was uninvolved in
toilet-training and he seemed only vaguely involved in the [C]hildren’s
schooling and threw up his hands when confronted with a differing opinion
than that of the parents’. Finally, the Father’s unwillingness to assume
responsibility for the things that happened under his own roof and his
willingness to assert that everything has been a false allegation is certainly
troubling.

The trial court appears to find that Father manifested a willingness to assume
custody of the Children, but failed to manifest the ability to assume custody of the Children.
Another statement in the trial court’s order provides that “there is little doubt that the Father
wants to assume physical and legal custody” of the Children. Towards the end of the
relevant section, however, the trial court suggests that perhaps Father failed to manifest a
willingness to assume custody of the Children, insofar as Father admittedly was not
involved in the Children’s toilet-training and schooling. This discrepancy is inapposite
because we agree with the trial court that Father failed to manifest the ability to assume
legal and physical custody of the Children. Such a finding is sufficient to satisfy the first
prong of section 36-1-113(g)(14). See In re Neveah M., 614 S.W.3d at 677.

A parent’s ability to assume custody speaks to “the parent’s lifestyle and
circumstances.” In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL 1313237, at

- 25 -
*8 (Tenn. Ct. App. Mar. 22, 2019) (citing In re Maya R., No. E2017-01634-COA-R3-PT,
2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018)). Here, Father’s lifestyle and
circumstances are such that he cannot safely assume custody of the Children because Father
essentially takes no responsibility for the condition the Children were found in. He denied
all allegations of abuse and neglect himself but offered no alternative explanation as to why
he failed to protect the Children from the alleged abuse at the hands of Mother and C.N.
Indeed, Father adamantly maintained at trial that C.N. was the one who “waterboarded”
one of the younger children and that she had previously threatened them with a knife and
a gun. While Father was quick to blame C.N. and Mother for the deplorable circumstances
under which the Children were removed, Father’s testimony leads us to question whether
Father grasps the gravity of the situation and whether he is capable of protecting the
Children. We also agree with the trial court’s finding that Father admittedly failed to meet
basic needs of the Children such as toilet-training, and blamed the Children’s condition at
the time of their removal entirely on Mother. Father also blamed DCS inasmuch as Father’s
explanation for failing to assist in toilet-training the Children was fear of being “accused
of things” by the agency. Father’s testimony reflects that he is unable to provide the
fundamental care and protection required to assume custody and safely parent children.

On appeal, Father urges that the trial court failed to make a specific finding that
placing the Children in Father’s custody poses a risk of substantial harm to the physical or
psychological welfare of the Children. We disagree. In the trial court’s order, in a separate
paragraph from the one quoted above, the trial court noted:

DCS argued that by both act and omission, [Parents] have failed to
manifest a willingness and ability to assume legal and physical custody and
financial responsibility, and that by the parents assuming custody, it would
pose a risk of physical or psychological harm to the [C]hildren. The Court
agrees.

Taking the trial court’s order as a whole, the above statement is sufficient to satisfy
the second prong of section 36-1-113(g)(14). Further, the record does not preponderate
against the finding that placing the Children in Father’s custody would pose a risk of
substantial physical or psychological harm to the Children. The Children’s reactions to the
possibility of being returned to Father were disturbing. The older children articulated fear
and anxiety, and C.N. threatened to commit suicide if Father were to assume custody. T.D.
regressed to having bowel movements on himself after learning that Father was released
from jail. The mere suggestion of Father’s release from prison caused the Children
physical and psychological harm. Clear and convincing evidence supports the trial court’s
finding that the Children would be at serious risk if returned to Father. Tenn. Code Ann.
§ 36-1-113(g)(14).

Accordingly, the trial court’s decision to terminate Father’s parental rights pursuant
to this statutory ground is affirmed.

- 26 -
 Mother

Likewise, the trial court concluded that while Mother clearly wanted the Children
returned to her custody, Mother failed to manifest the ability to assume legal and physical
custody the Children. In pertinent part, the trial court found:

There is little doubt in the Court’s mind that the Mother is willing to
assume both legal and physical custody of the [C]hildren. In fact, one of the
earliest parts of her testimony was that she wanted the [C]hildren placed back
with her “today” as DCS had no grounds to take the [C]hildren. She testified
that she had never been told the [C]hildren could not return to her home, as
she had been told that she had not done anything to them. The problem,
however is that the Court is not satisfied that the Mother has the ability to
parent the [C]hildren, and the Court believes that placing the [C]hildren in
the Mother’s custody would pose a risk of substantial harm to their physical
and psychological welfare.

At times, the proof was, frankly, brutal. When the [C]hildren entered
DCS custody, [C.N.] was the alleged victim of severe child abuse and
apparently had made statements about self-harm; [T.D.] was eight (8) years
old with a 25 word vocabulary, and not toilet-trained; and [S.D.] was five (5)
years old and not toilet trained. All of the [C]hildren seemed to suffer from
other developmental delays. Further, there was considerable testimony by the
Mother of the Father’s verbal and/or psychological abuse of the [C]hildren-
by threats, hand prints, and inappropriate discipline (including naked
calisthenics, and water-boarding). The Mother opined that the Father’s
discipline was “not normal.” Further, the Mother disclosed physical abuse of
the [C]hildren perpetrated against them by the Paternal Grandfather
(including visible bruising on [T.D.]). All the while, however, the Mother
said and did nothing to protect the [C]hildren from the aforesaid abuse, save
that she would attempt to de-escalate the situation with the Father by saying
“cool it” when his temper “exploded.” The Mother’s explanation for this
failure to protect was unconvincing, not credible, and, more so, her
statements that the [C]hildren would not be safe around the Father – but his
visits should be supervised – do not fill the Court with any great confidence
that the [C]hildren would be protected in the Mother’s care.

* * *

The Court finds by clear and convincing evidence that the Mother has
failed to manifest an ability and willingness to assume custody of the
[C]hildren. While the willingness might be there, the ability is not. She
allowed an 8 year old child and a 5 year old child to go without being toilet-

- 27 -
 trained, a situation easily rectified and remedied by three months of foster
care. [Mother] knowingly allowed the [C]hildren to be abused by the Father
and, perhaps, the Paternal Grandfather and she failed to protect them from it.
Her inability to construct a concrete plan of reunification after two years of
custody is concerning. Her inability to meet the necessary requirements of
the ICPC are problematic. Taken singularly or all together, these facts pose
a risk of substantial harm to the [C]hildren’s physical and psychological
welfare.

The record does not preponderate against the trial court’s findings, and we agree
that clear and convincing evidence shows Mother lacks the ability to assume custody of
the Children. Although the Children were removed from Mother’s custody for nearly two
years prior to trial, Mother failed to address her mental health issues and never sought
reinstatement of her visitation after it was suspended. Kentucky denied Mother’s ICPC
requests because Mother was unable to answer questions about her plans to care for the
Children, including where Mother would enroll the Children in school and how she would
transport them there. Further, we agree with the trial court that Mother’s trial testimony
inspires no confidence in Mother’s parenting. While Mother admitted that Father and
Grandfather had harmed the Children, Mother testified that this was rooted in Father’s
“abilities.” Consequently, Mother blamed the abuse and neglect allegations squarely on
Father, but at the same time justified Father’s behavior. Mother’s answers to questions at
trial were evasive, and she offered no real explanation as to why T.D. and S.D. were never
toilet-trained.

We are further troubled by Mother’s behavior prior to having her contact with the
Children limited, as the record reflects that Mother frequently told the Children
inappropriate details about the ongoing case and made unfounded accusations against
Foster Parents. This behavior distressed the Children and calls into question Mother’s
ability to prioritize their well-being. See In re William B., 2021 WL 4935740, at *23
(concluding that mother failed to manifest the ability and willingness to assume custody
when mother refused to address mental health issues, and mother’s visitation had to be
suspended because mother could not behave in an appropriate manner). Despite all of the
foregoing, Mother was adamant at trial that DCS never had grounds to remove the
Children. Accordingly, Mother’s lifestyle and circumstances are such that she is not able
to safely parent the Children.

We also agree with the trial court that reinstating Mother’s custody poses a risk of
substantial harm to the physical or psychological welfare of the Children. As discussed at
length, the Children were at best severely neglected, if not severely abused, while in
Parents’ care. Mother’s testimony does not reflect that she has learned from this experience
or comprehends why the Children were removed at all. Moreover, the Children made
significant strides during the custodial period. Consequently, the second prong of section
36-1-113(g)(14) was proven by clear and convincing evidence.

- 28 -
 The termination of Mother’s parental rights pursuant to Tennessee Code Annotated
section 36-1-113(g)(14) is therefore affirmed.

D. Persistence of Conditions

Next, the trial court terminated Parents’ rights pursuant to Tennessee Code
Annotated section 36-1-113(g)(3). Section (g)(3) provides that termination may occur
when:

The child has been removed from the home or the physical or legal custody
of a parent or guardian for a period of six (6) months by a court order entered
at any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and:

(i) The conditions that led to the child’s removal still persist, preventing the
child’s safe return to the care of the parent or guardian, or other conditions
exist that, in all reasonable probability, would cause the child to be subjected
to further abuse or neglect, preventing the child’s safe return to the care of
the parent or guardian;

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

(iii) The continuation of the parent or guardian and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home[.]

As we have previously explained:

“A parent’s continued inability to provide fundamental care to a child, even
if not willful, . . . constitutes a condition which prevents the safe return of the
child to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008
WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. & M.S.,
No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. App.
July 13, 2000)). The failure to remedy the conditions which led to the
removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at
*6 (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.
1990)). “Where . . . efforts to provide help to improve the parenting ability,
offered over a long period of time, have proved ineffective, the conclusion
[ ] that there is little likelihood of such improvement as would allow the safe
return of the child to the parent in the near future is justified.” Id. The purpose
behind the “persistence of conditions” ground for terminating parental rights

- 29 -
 is “to prevent the child’s lingering in the uncertain status of foster child if a
parent cannot within a reasonable time demonstrate an ability to provide a
safe and caring environment for the child.” In re A.R., [2008 WL 4613576,
at *20] (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL
588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).

In re Navada N., 498 S.W.3d 579, 605–06 (Tenn. Ct. App. 2016). Additionally,

this ground for termination may be met when either the conditions that led to
the removal persist or “other conditions exist that, in all reasonable
probability, would cause the child to be subjected to further abuse or neglect,
preventing the child’s safe return to the care of the parent or guardian[.]” 36-
1-113(g)(3)(A)(i). Thus, even if the initial reasons that the children were
placed in DCS custody have been remedied, if other conditions continue to
persist that make the home unsafe, this ground may still be shown.

In re Daylan D., 2021 WL 5183087, at *9.

In the present case, the Children were removed from Parents’ custody by a court
order entered in a dependency and neglect action, and the Children have been in DCS
custody since August 23, 2018. Accordingly, we must determine whether conditions
persist that prevent the safe return of the Children, whether the conditions are likely to be
remedied at an early date, and whether a continued relationship with Parents prevents early
integration of the Children into a stable, permanent home. Tenn. Code Ann. § 36-1-
113(g)(3).

Father

The trial court determined that the conditions underpinning the Children’s removal
persist and that there is little likelihood the Children can be safely returned to either parent.
With regard to Father, the trial court found in pertinent part:

The great concern to the Court [ ] is still the underlying allegations
against the Father, allegations he consistently denied as “false” even though
some of those allegations were borne out by the testimony. While the Father
was convicted of Attempted Aggravated Child Abuse (against C.N.), there
was significant testimony of his inappropriate conduct with all of the
[C]hildren. . . . and despite his testimony that Mother abused the [C]hildren
he barely lifted a finger to protect them.

* * *

The Court finds by clear and convincing evidence that the conditions

- 30 -
 that led to the [C]hildren’s removal still exist. Additionally, the Court finds
that those conditions prevent the [C]hildren’s safe return to the care of the
Father as, in all reasonable probability, the [C]hildren would be subjected to
further abuse and neglect.

The record does not preponderate against the above findings. The trial court also
does not appear to have credited Father’s testimony that all of the abuse allegations against
him are false. In any event, by both Parents’ accounts, the Children were abused while in
Parents’ custody, although Parents blame one another and C.N. Although we acknowledge
some steps Father has taken towards remedying the conditions at issue, such as completing
anger management and parenting classes, Father essentially refused at trial to assume any
responsibility for the extremely poor condition in which the Children were found. This
refusal, coupled with the trial court’s finding that the testimony bore out the allegations
against Father, establishes that the conditions underpinning the Children’s removal persist
and are unlikely to be remedied at an early date, if ever. Stated simply, Father’s parenting,
and in some instances total lack of parenting, necessitated removal of the Children, and
Father’s testimony does not reflect an understanding of this. See In re Navada N., 498
S.W.3d at 605 (“A parent’s continued inability to provide fundamental care to a child, even
if not willful, . . . constitutes a condition which prevents the safe return of the child to the
parent’s care.” (quoting In re A.R., 2008 WL 4613576, at *20)); see also In re Katrina S.,
No. E2019-02015-COA-R3-PT, 2020 WL 5269236, at *8 (Tenn. Ct. App. Sept. 3, 2020)
(“Mother’s refusal to acknowledge any deficiencies in her parenting inspires little
confidence that this condition will be remedied in the near future, or that safe reintegration
of the Child into Mother’s home is possible.”).

Further, the Children’s well-documented, visceral reactions to the possibility of
returning to Father’s care demonstrate that a continued relationship with Father is an
impediment to the long-term safety and stability of the Children, as well as the possibility
of their integration into a permanent home. Tenn. Code Ann. § 36-1-113(g)(3). As such,
persistence of conditions was proven by clear and convincing evidence as to Father.

Mother

We likewise conclude that clear and convincing evidence supports termination of
Mother’s parental rights for persistence of conditions. Here, the trial court found in
pertinent part:

[Mother’s] lack of understanding of the basic problems that resulted
in her children being in DCS custody is problematic. These were children in
a wide arc of ages, and two of them were not toilet-trained; one of them had
a vocabulary of 25 words; and one of them was still using a sippy-cup at four
and bed-wetting until she was 14 years old. The fact that many of those issues
were solved within the first six months of the [C]hildren entering foster care

- 31 -
 is staggering; and, despite the argument to the contrary that it was a socio-
economic issue, it really was a care issue and the Mother was not
demonstrating a level of care that these children needed. Even the fact that
she is banking solely on the school system to recognize her children’s needs
and provide for them demonstrates a poor understanding of her own children,
what they need, and why they need it.

The Court finds by clear and convincing evidence that the conditions
that led to the [C]hildren’s removal still exist. Additionally, the Court finds
that those conditions prevent the [C]hildren’s safe return to the care of the
Mother as, in all reasonable probability, the [C]hildren would be subjected
to further abuse and neglect. The Mother is no closer to providing the
[C]hildren with a safe and stable home in 2020 as she was in 2019. Further,
the Mother’s lack of understanding of her children’s condition at the time
they were removed is problematic, and her lack of understanding of her
[C]hildren’s needs now continues to provide more questions than answers.

The record does not preponderate against the trial court’s findings. Most
problematic is Mother’s insistence that, despite the Children’s undisputed problems, DCS
had no reason to remove them to begin with. Mother was even dismissive of the fact that
T.D. was eight years old and not toilet-trained at the time of removal. Mother argues on
appeal that she did not require further mental health treatment, despite the record being
replete with examples establishing otherwise. We have repeatedly held that conditions
underpinning removal persist when the parent outright refuses to acknowledge the
conditions at all. See In re Sebashtian K., No. E2020-01439-COA-R3-PT, 2021 WL
5071966, at *6 (Tenn. Ct. App. Nov. 2, 2021) (ground proven when father “had yet
to acknowledge, much less properly address, his anger issues”); In re Porcalyn N., No.
E2020-01501-COA-R3-PT, 2021 WL 2026700, at *9 (Tenn. Ct. App. May 21, 2021)
(father’s refusal to acknowledge domestic violence in home and insistent blaming of
mother indicated this condition persisted and was unlikely to be remedied); In re Briana
H., No. M2017-02296-COA-R3-PT, 2018 WL 4191227, at *8 (Tenn. Ct. App. Aug. 31,
2018) (noting mother’s flippant attitude towards sobriety issues buttressed finding that
conditions persisted).

Mother also argues in her appellate brief that the initial reasons for removal were
related to Father and Grandfather rather than Mother. While it is true that abuse allegations
were made initially against Father, the Children were also removed based upon extreme
neglect which Mother had a hand in. Moreover, during the custodial period it became
evident that Mother needed mental health treatment and lacked the ability to provide for
the Children’s basic needs. See Tenn. Code Ann. § 36-1-113(g)(3)(A)(i) (emphasis added)
(“[C]onditions that led to the child’s removal still persist, preventing the child’s safe return
to the care of the parent or guardian, or other conditions exist that, in all reasonable
probability, would cause the child to be subjected to further abuse or neglect[.]”); see also

- 32 -
In re Daylan D., 2021 WL 5183087, at *9 (“[E]ven if the initial reasons that the children
were placed in DCS custody have been remedied, if other conditions continue to persist
that make the home unsafe, this ground may still be shown.”). Mother’s argument is
unavailing under the circumstances.

Finally, we also conclude that a continuing relationship with Mother impedes the
Children’s opportunity for integration into a safe, stable, and permanent home. The
Children had been in foster care for nearly two years by the time of trial with little to no
improvement from Mother. Further, Mother frequently told the Children they were coming
home, shared information about the case with them which in some instances caused the
Children to regress, and generally disrupted an otherwise stable placement. Nonetheless,
the Children all made strides in foster care and had improved significantly by the time of
trial. Under the circumstances, the trial court did not err in concluding that the elements of
section 36-1-113(g)(3) were proven by clear and convincing evidence.

The termination of Mother’s parental rights for persistence of conditions is therefore
affirmed.

E. Severe Abuse

Parental rights may be terminated when “[t]he parent or guardian has been found to
have committed severe child abuse, as defined in § 37-1-102, under any prior order of a
court or is found by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against any child[.]” Tenn. Code Ann.
§ 36-1-113(g)(4). Severe abuse includes “[t]he knowing exposure of a child to or the
knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily
injury or death and the knowing use of force on a child that is likely to cause serious bodily
injury or death[.]” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i). Severe abuse also includes
“[t]he commission of any act towards the child prohibited by . . . § 39-15-402[.]” Id. § 37-
1-102(b)(27)(C). We recently explained that:

[i]t is also important to understand the threshold for finding that a parent or
caregiver’s conduct was “knowing.” In child abuse cases, the parent or
caregiver may deny that the injury was purposefully inflicted, and where the
injuries are inflicted on preverbal infants and children, there is often no
witness to the injury other than the parent or caregiver. The “knowing”
element can and often must be gleaned from circumstantial evidence,
including but not limited to, medical expert testimony on the likelihood that
the injury occurred in the manner described by the parent or caregiver.
Moreover, “knowing” conduct by a parent or caregiver is not limited to
conduct intended to cause injury . . .

- 33 -
 In re S.J., 387 S.W.3d 576, 591-592 (Tenn. Ct. App. 2012). We have
previously held “[a] parent’s failure to protect a child will also be considered
‘knowing’ if the parent had been presented with sufficient facts from which
he or she could have and should have recognized that severe child abuse had
occurred or that it was highly probable that severe child abuse would
occur.” In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at
*7 (Tenn. Ct. App. July 13, 2004).

In re Markus E., No. M2019-01079-COA-R3-PT, 2021 WL 5571818, at *7–8 (Tenn. Ct.
App. Nov. 30, 2021).

Father

The trial court terminated Father’s parental rights pursuant to section 36-1-113(g)(4)
on the basis that 1) Father was convicted of attempted aggravated child abuse under section
39-15-402, and 2) Father knowingly exposed the Children to systemic abuse or neglect that
was likely to cause serious bodily injury. The record does not preponderate against these
findings. Section 37-1-102(b)(27) defines severe abuse, inter alia, as conduct prohibited
by section 39-15-402, the statute under which Father was undisputedly convicted. Further,
Father testified at trial to witnessing several instances during which he “should have
recognized that severe child abuse had occurred or that it was highly probable that severe
child abuse would occur.” In re Markus E., 2021 WL5571818, at *7 (quoting In re R.C.P.,
2004 WL 1567122, at *7). For example, Father testified about C.N. pointing a gun at one
of her younger brothers; Father also testified that C.N. once locked T.D. in the bathroom
and held him under the bathtub faucet with a rag in his mouth. According to Father, T.D.
was approximately four when this occurred, meaning Father continued to allow C.N.
around the younger children for the next four years following that incident. While Father
relayed these instances primarily to deflect blame from himself, his own testimony
establishes Father’s failure to protect the Children. As the trial court aptly noted, the only
conclusions to be drawn about each parent in this particular case is that they either inflicted
abuse themselves or bore witness to abuse by another and did nothing.

We affirm the trial court’s conclusion that Father’s parental rights should be
terminated pursuant to section 36-1-113(g)(4).

Mother

Mother’s parental rights were also terminated for severe abuse, the trial court
finding that Mother too “fail[ed] to protect the [C]hildren from what appears to be systemic
abuse or neglect that was likely to cause serious bodily injury[.]” Specifically, the trial
court pointed to Mother’s testimony that she knew Father’s discipline of the Children
“wasn’t normal” and that the Children disclosed instances of abuse to Mother.

- 34 -
 We agree with the trial court’s conclusion, and many other points in the record
buttress the finding that Mother knowingly failed to protect the Children from abuse or
neglect that was likely to cause serious bodily injury or death. Tenn. Code Ann. § 37-1-
102(b)(27)(A)(i). For example, Mother testified to knowing that T.D. was beaten with a
gun stock by Grandfather, and at one point disclosed to a DCS worker that Mother believed
C.N. was molesting S.D. Mother also testified to seeing hand prints on the Children and
that once, when D.D. was an infant, Mother caught Grandfather pricking D.D.’s genitalia
with a pin. Mother’s account of the Children’s treatment in the family home is disturbing;
even more disturbing is Mother’s contention that the Children were safe with her because
she understood Father’s “abilities” and would tell Father to “cool it” when necessary.
Mother asserts on appeal that “the record is completely devoid of any such injuries actually
taking place with respect to any of the Children in this matter. Moreover, the types of abuse
the Father and paternal grandfather were accused of committing, at least that Mother was
accused of having knowledge of, was more psychological than physical.” As outlined
above, however, this is simply not the case.

The trial court correctly concluded that, based on clear and convincing evidence,
Mother’s parental rights should be terminated pursuant to Tennessee Code Annotated
section 36-1-113(g)(4).

F. Sentence of two years or more years for conduct against a child

The final ground for termination found by the trial court applies only to Father. At
the time the petition for termination was filed, Tennessee Code Annotated section 36-1-
113(g)(5) provided that termination may occur when:

[t]he parent or guardian has been sentenced to more than two (2) years’
imprisonment for conduct against the child who is the subject of the petition,
or for conduct against any sibling or half-sibling of the child or any other
child residing temporarily or permanently in the home of such parent or
guardian, that has been found under any prior order of a court or that is found
by the court hearing the petition to be severe child abuse, as defined in § 37-
1-102. Unless otherwise stated, for purposes of this subdivision (g)(5),
“sentenced” shall not be construed to mean that the parent or guardian must
have actually served more than two (2) years in confinement, but shall only
be construed to mean that the court had imposed a sentence of two (2) or
more years upon the parent or guardian[.]

Here, Father pleaded guilty and was sentenced to twelve years for attempted
aggravated child abuse involving a child under the age of eight years old. Father testified
that this charge arose from the allegations regarding C.N.,14 who is the half-sibling of the

14
Father testified that the criminal charges arose out of allegations made by C.N. regarding abuse

- 35 -
other children and who permanently resided in Parents’ home. See id. The crime for which
Father was convicted falls within the definition of severe child abuse found at Tennessee
Code Annotated section 37-1-102, as required by section 36-1-113(g)(5). See In re Kayden
A., No. W2020-00650-COA-R3-PT, 2021 WL 408860, at *11 (Tenn. Ct. App. Feb. 5,
2021) (upholding termination pursuant to section (g)(5) based on guilty plea for attempted
aggravated child abuse); In re Adrian M.-M., No. W2019-00931-COA-R3-PT, 2019 WL
5595846, at *11 (Tenn. Ct. App. Oct. 30, 2019) (same). Further, as the statute explains, it
is inapposite that Father was not required to serve his full twelve-year sentence.

We find, as the trial court did, that clear and convincing evidence supports
termination of Father’s parental rights pursuant to section 36-1-113(g)(5).

Having determined that several grounds for termination were correctly found as to
Mother and Father, we turn to the best interests of the Children. See Tenn. Code Ann. §
36-1-113(c)(2).

II. Best Interests

In addition to proving at least one statutory ground for termination, a party seeking
to terminate a parent’s rights must prove by clear and convincing evidence that termination
is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c). Indeed, “a finding of
unfitness does not necessarily require that the parent’s rights be terminated.” In re Marr,
194 S.W.3d 490, 498 (Tenn. Ct. App. 2005) (citing White v. Moody, 171 S.W.3d 187
(Tenn. Ct. App. 2004)). Rather, our termination statutes recognize that “not all parental
conduct is irredeemable[,]” and that “terminating an unfit parent’s parental rights is not
always in the child’s best interests.” Id. As such, the focus of the best interest analysis is
not the parent but rather the child. Id.; see also White, 171 S.W.3d at 194 (“[A] child’s
best interest must be viewed from the child’s, rather than the parent’s, perspective.”).

We consider nine statutory factors when analyzing best interests:

(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

that occurred several years prior to the Children’s removal; the associated criminal court judgment lists the
offense date as July 2005.

- 36 -
 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.

Tenn. Code Ann. § 36-1-113(i) (Supp. 2020).

This list is non-exhaustive.15 In re Marr, 194 S.W.3d at 499. “Ascertaining a child’s
best interests does not call for a rote examination of each of Tenn. Code Ann. § 36-1-
113(i)’s nine factors and then a determination of whether the sum of the factors tips in
favor of or against the parent.” Id. “The relevancy and weight to be given each factor
depends on the unique facts of each case.” Id. “Thus, depending upon the circumstances
of a particular child and a particular parent, the consideration of one factor may very well
dictate the outcome of the analysis.” Id. (citing In re Audrey S., 182 S.W.3d at 877).

In the present case, the trial court made detailed findings of fact and conclusions of

15
The Tennessee General Assembly recently amended the statutory best interest factors provided
in Tennessee Code Annotated section 36-1-113(i). See 2021 Tenn. Pub. Acts, ch. 190 § 1. This amendment
does not affect the instant case because we apply the version of the statute in effect at the time the petition
for termination was filed. See In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).

- 37 -
law regarding the Children’s best interests, ultimately concluding that termination of
Parents’ rights was warranted. We have no hesitation affirming the trial court’s findings
in this case. Turning to the factors, the trial court found that Parents failed to meaningfully
adjust their circumstances, conduct, and conditions and we agree. Tenn. Code Ann. § 36-
1-113(i)(1). At trial, Mother remained adamant that DCS had no grounds to remove the
Children to begin with; further, Mother failed to fully address her mental health issues.
Father, on the other hand, made some adjustments to his conduct and circumstances but,
ultimately, remains in a home that is unsafe for the Children. This factor favors
termination. In the same vein, DCS made reasonable efforts to assist both Parents. Id. §
36-1-113(i)(2). DCS communicated with Parents and provided them with access to other
various resources. Nonetheless, Parents’ trial testimony does not reflect that a meaningful
change in their parenting is possible. Id.

With regard to visitation, the trial court found that neither parent had visitation with
the Children by the time of trial and that this was due to Parents’ own behavior. Id. § 36-
1-113(i)(3). The record does not preponderate against this finding, although we note that
Father took some of the steps necessary to regain his visitation and this was denied by the
trial court.

Addressing the fourth factor, the trial court found that there was evidence of a
relationship between the Children and Parents, but that the “spector of abuse and neglect
haunts this case.” See id. § 36-1-113(i)(4). The record reflects that the Children asked
about Mother often during the custodial period and that the older children frequently
articulated their desire to live with Mother. Although we agree with the trial court that the
relationship was complicated, the Children indeed had a bond with Mother. This factor
militates in favor of Mother. On the other hand, the record shows that the Children
exhibited fear and anxiety over their relationship with Father. D.D. explicitly told the
Children’s FSW that the Children did not want to be returned to Father’s care. As to Father,
factor four favors termination. Id.

The trial court also found that given the Children’s progress in their DCS placement,
a change in caretaker and physical environment would be detrimental to their development.
Id. § 36-1-113(i)(5). We agree, and under the particular circumstances of this case, this
factor heavily favors termination of both Parents’ rights. The mental, emotional, and
physical condition of the Children upon their removal was dire. DCS records show that
the Children have all benefitted from various forms of therapy and a safe and stable home;
moreover, Mother was unable, at multiple junctures in this case, to articulate or follow any
plans of care for the Children. Unfortunately, we are confident that the Children would
regress to their pre-removal state if returned to Parents. Factor five militates in favor of
termination. Id. For the same reasons, factors six, seven, and eight also weigh heavily
against Parents in this case. Id. § 36-1-113(i)(6)–(8).

Finally, there was little to no evidence presented regarding child support. In the

- 38 -
absence of any evidence on this issue, factor nine favors neither party. Id. § 36-1-113(i)(9).

Based on all of the foregoing, the trial court correctly concluded that termination of
Parents’ rights serves the Children’s best interests.

CONCLUSION

We affirm in part and reverse in part the judgment of the Sumner County Juvenile
Court and tax the costs of this appeal to the Appellants, Deanna D. and David D., for which
execution may issue if necessary.

_________________________________
KRISTI M. DAVIS, JUDGE

- 39 -