In Re Billy T.W. ( 2017 )

09/27/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 1, 2017
IN RE BILLY T.W., ET AL.
Appeal from the Juvenile Court for Loudon County
No. 16-JV-59 Henry E. Sledge, Judge
No. E2016-02298-COA-R3-PT
In this parental termination action, we conclude that the trial court properly found clear
and convincing evidence to terminate the rights of the mother and father on the grounds
of failure to provide a suitable home, substantial noncompliance with a permanency plan,
and persistence of conditions. We conclude that the trial court erred in terminating the
father’s rights on the ground of willful failure to visit. Clear and convincing evidence
supports the trial court’s determination that termination of parental rights is in the best
interest of the children.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part and Reversed in Part
ANDY D. BENNETT, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,
JR., and KENNY W. ARMSTRONG, JJ., joined.
Christine L. Dummer, Knoxville, Tennessee, for minor children Billy T.W. and Emily
G.W.
Ian P. McCabe, Knoxville, Tennessee, for the appellant, Billy T.W.
Christopher Irvin Belford, Knoxville, Tennessee, for the appellant, Christy A.W.
Herbert H. Slatery, III, Attorney General and Reporter, and William Derek Green,
Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Christy A.W. (“Mother”) and Billy T.W. (“Father”) are the parents of a son, Billy,
and a daughter, Emily, born in February 2003 and December 2005, respectively. The
Department of Children’s Services (“DCS” or “the Department”) filed a Petition for
Order Controlling Conduct and for Protective Supervision against Mother and Father in
January 2015 asking the court to find the children dependent and neglected, “to require
protective supervision, and to control the conduct of the parents.” The petition alleged
that the family had “extensive DCS history and the parents have criminal history for
drugs, assault, and theft.” After receiving a report that Mother was selling her food
stamps to buy pain pills, that Emily was begging neighbors for food, that Billy’s feeding
tube was “unkempt,” and that “the home was cluttered with food, trash and other items,”
DCS case manager Brittni Monroe visited the home on September 30, 2014. Mother
“tested positive for opiates, oxycodone, and benzodiazepines.” She refused a request for
a pill count. Mother submitted to a drug screen on October 29, 2014 and tested positive
for oxycodone; she refused to allow a pill count or to sign a release to permit the case
manager to obtain information from her pharmacy.
On January 27, 2015, the juvenile court held an adjudicatory hearing regarding
Father, who had notice of the hearing but failed to appear. The court determined that
Father had been uncooperative with the investigation and that the children were
dependent and neglected. The court ordered Father to complete an alcohol and drug
assessment, “submit and pass random drug screens and pill counts, sign releases for DCS
and GAL [guardian ad litem] to obtain service provider and pharmaceutical and medical
records, cooperate with DCS and service provider and GAL, obtain and maintain stable
housing, transportation and income.”
At a hearing on April 17, 2015, the juvenile court awarded temporary custody of
the minor children to DCS. The court found that the Department had “attempted a less
drastic measure than removal by first filing a petition to control conduct and by placing
services in the home.” The court’s order (entered on April 20, 2015) includes the
following findings concerning the Department’s efforts after the initial order in January
2015 finding the children dependent and neglected:
DCS caseworker, Jennie Barger, attempted to contact [Father] on April 4,
2015 and have him come to her office for a random drug screen. Ms.
Barger was unable to locate [Father]. On April 17, 2015, Ms. Barger made
an unannounced, unscheduled visit to the home of [Father and Mother].
[Father] was unavailable and [Mother] was unable to contact him. Ms.
Barger also noted that [Mother] appeared to be under the influence. . . .
After leaving the home, Ms. Barger made contact with [the children] at
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school. Billy has a feeding tube. Ms. Barger testified Billy appeared tired,
dirty and not well cared for.
The parents were allowed supervised visitation with Billy and Emily. Father was ordered
to pay child support in the amount of $100 per month.
On May 4, 2015, DCS filed a petition in response to a bench order summarizing
the caseworker’s allegations concerning the case, requesting that the court consider the
need to appoint counsel for the parents, find the children dependent and neglected at a
final hearing, and consider the ability of the parents to pay child support. At a hearing on
July 13, 2015, both parents waived the adjudicatory hearing and stipulated that the
children were dependent and neglected by Mother for improper care and supervision
pursuant to Tenn. Code Ann. § 37-1-102(b)(12)(C) and by Father for abuse and neglect
pursuant to Tenn. Code Ann. § 37-1-102(b)(12)(G).1 The court went on to conduct a
permanency hearing and found both parents to be in partial compliance with their
permanency plan. (The requirements of the permanency plan will be discussed in the
analysis section of the opinion.) The goals of the permanency plan were return to parent
and exit custody with relative. The court ratified the permanency plan.
The Department filed the petition to terminate parental rights on February 4, 2016.
The petition alleges five grounds for termination: (1) abandonment by failure to visit in
the four months preceding the filing of the petition (Father only), (2) abandonment by
failure to provide a suitable home, (3) substantial noncompliance with the permanency
plan, (4) persistent conditions, and (5) abandonment by wanton disregard (Mother only).
The juvenile court heard the case on October 7, 2016, and the only witness to testify was
Eric Fannin, a DCS representative. The trial court determined that there was clear and
convincing evidence to support four of the five grounds alleged: abandonment by failure
to visit (Father), abandonment by failure to provide a suitable home (both parents),
substantial noncompliance (both parents), and persistent conditions (both parents). The
court did not find clear and convincing evidence to support the ground of wanton
disregard.2 Furthermore, the court concluded that it was in the children’s best interest for
the parents’ rights to be terminated. Therefore, the court ordered the termination of
Mother’s and Father’s parental rights.
1
These statutory citations are to the version of Tenn. Code Ann. § 37-1-102(b)(12) in effect at the time of
the hearing in May 2015.
2
Pursuant to the holding of our Supreme Court in In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn.
2016), we must “review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interests, regardless of whether the parent challenges these findings on
appeal.” We do not interpret In re Carrington H. to require us to “review those grounds for termination
that the trial court found were not supported by clear and convincing evidence,” unless DCS raises an
issue on appeal concerning the trial court’s ruling that the Department failed to prove one of these
grounds. In re P.T.F., No. E2016-01077-COA-R3-PT, 2017 WL 2536847, at *8 (Tenn. Ct. App. June 12,
2017). Therefore, we will not discuss the ground of wanton disregard.
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Both parents have appealed and challenge all of the grounds for termination found
by the trial court as well as the best interest determination.
STANDARD OF REVIEW
Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). This right is not absolute, however. If a
compelling state interest exists, the state may interfere with parental rights. Nash-Putnam,
921 S.W.2d at 174-75 (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Our
legislature has enumerated the grounds upon which termination proceedings may be
brought. See Tenn. Code Ann. § 36-1-113(g). A parent’s rights may be terminated only
where a statutory ground exists. In re Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998).
Because terminating a parent’s fundamental parental rights has severe
consequences, termination cases require a court to apply a higher standard of proof. State
Dep’t of Children’s Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). First,
a court must determine by clear and convincing evidence that at least one of the statutory
grounds for termination exists. Tenn. Code Ann. § 36-1-113(c)(1); In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002). After a court makes this determination, a court must find
by clear and convincing evidence that termination is in the best interest of the child.
Tenn. Code Ann. § 36-1-113(c)(2); In re Valentine, 79 S.W.3d at 546. “Clear and
convincing evidence ‘establishes that the truth of the facts asserted is highly probable,
and eliminates any serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.’” In re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL
2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted)).
Because of the heightened standard of proof required in termination cases, we
must adapt the customary standard of review established by Tenn. R. App. P. 13(d). Id. In
accordance with Tenn. R. App. P. 13(d), we review the trial court’s findings of fact de
novo with a presumption of correctness unless the evidence preponderates otherwise. Id.
Next, we must determine whether the facts establish by clear and convincing evidence the
elements necessary to terminate parental rights. In re M.J.B., 140 S.W.3d at 654.
ANALYSIS
1. Abandonment by failure to visit–Father
A parent’s rights may be terminated upon proof by clear and convincing evidence
that the parent “abandoned” his or her child. Tenn. Code Ann. §§ 36-1-113(c)(1), (g)(1).
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There are a number of different statutory definitions of abandonment. See Tenn. Code
Ann. § 36-1-102(1)(A). Tennessee Code Annotated section 36-1-102(1)(A)(i) defines
abandonment as follows:
For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent or parents or the guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians either have willfully failed to
visit or have willfully failed to support or have willfully failed to make
reasonable payments toward the support of the child[.]
A court must find that the abandonment was “willful.” Tenn. Code Ann. § 36-1-
102(1)(A)(i). The statutory definition of “willfully failed to visit” is “the willful failure,
for a period of four (4) consecutive months, to visit or engage in more than token
visitation.” Tenn. Code Ann. § 36-1-102(1)(E). Tennessee Code Annotated section 36-
1-102(1)(C) defines “token visitation” as “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.”
To establish willfulness in this context, a petitioner must show that “a parent who
failed to visit or support had the capacity to do so, made no attempt to do so, and had no
justifiable excuse for not doing so.” In re Adoption of Angela E., 402 S.W.3d 636, 640
(Tenn. 2013); see also In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005)
(stating that a person acts willfully if he or she knows what he or she is doing and has the
intention to do what he or she is doing). “Whether a parent failed to visit or support a
child is a question of fact. Whether a parent’s failure to visit or support constitutes willful
abandonment, however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d at
640 (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). A parent will
not be found to have abandoned his or her child if the failure to visit the child is not
within his or her control. Id.
The four months prior to the filing of the petition to terminate Father’s parental
rights in this case are from October 4, 2015 to February 3, 2016. The trial court found
that Father “willfully did not visit [the children]” during this time period. The trial court
specifically found that Father was not incarcerated during the relevant time period, that
he knew that the children were in DCS custody, that DCS contacted Father to arrange
visits, and that Father “knew the consequences of [his] failure to visit the child[ren]
regularly because DCS and the Court told him . . . .” Mr. Fannin testified that Father
decided to move to Louisiana for employment and that Mr. Fannin explained that DCS
could not facilitate visitation outside of Tennessee.
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It is undisputed that Father failed to visit the children during the four months prior
to the filing of the petition. Father’s argument is that the trial court’s finding of
abandonment is erroneous in light of Father’s “reasonable efforts” toward reunification.
Tennessee Code Annotated section 36-1-102(1)(A)(i) does not include a “reasonable
efforts” analysis. We will, however, consider the facts cited by Father in considering the
issue at hand—whether Father’s failure to visit as a result of his relocation to Louisiana
for employment was willful.
The burden of proof is upon DCS to prove willfulness by clear and convincing
evidence. See In re Lynx C., No. E2016-01568-COA-R3-PT, 2016 WL 7378801, at *5
(Tenn. Ct. App. Dec. 20, 2016). Did Father’s decision to move to Louisiana for
employment constitute a justifiable excuse for failing to visit his children? 3 See In re
Audrey S., 182 S.W.3d at 864 (“Failure to visit or support a child is ‘willful’ when a
person is aware of his or her duty to visit or support, has the capacity to do so, makes no
attempt to do so, and has no justifiable excuse for not doing so.”). In evaluating
willfulness, courts may consider events that occurred prior to the relevant four-month
period because such events “may bear on the willfulness of the parent’s conduct during
the four-month period.” In re Jamie G., No. M2014-01310-COA-R3-PT, 2015 WL
3456437, at *12 (Tenn. Ct. App. May 29, 2015).
We find two cases to be particularly instructive regarding the case at hand. In In
re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *9 (Tenn. Ct. App. Mar.
2, 2009), the appellate court considered whether a mother’s failure to visit her children
during the four months prior to the filing of the petition to terminate her parental rights
was willful. The petition to terminate was filed on May 11, 2007; thus, the relevant four-
month period was from January 11, 2007 through May 10, 2007. In re B.D., 2009 WL
528922, at *1. During this four-month period, the mother visited the children on January
2, January 27, and February 9, 2007. Id. at *9. She moved to Illinois in late February
2007 “to be near family support.” Id. In concluding that the mother’s “less than perfect
visitation record is not proof of abandonment by clear and convincing evidence,” Id. at
*10, the trial court made the following statements:
A review of the record shows that Mother’s visits, while less than perfectly
regular, do show that she made efforts to maintain a relationship with her
children and have meaningful visits with them. Even when unable to visit,
Mother’s actions fall short of “willful” abandonment.
3
Mr. Fannin testified that Father never produced evidence of income from employment in Louisiana.
DCS must prove by clear and convincing evidence, however, that Father’s failure to visit was willful, so
the Department must show that Father’s move to Louisiana, which Father asserted was for employment,
did not constitute a justifiable excuse for his failure to visit.
-6-
Mother visited the children on January 2, 2007, January 27, 2007, and
February 9, 2007. The foster mother testified that Mother also visited with
the girls in late February or early March 2007. Mother moved to be near
family support in Illinois in late February 2007, which made visitations
difficult. Nonetheless, despite transportation and financial issues, Mother
visited with the minor children on July 27, 2007, March 25, 2008 and
March 26, 2008. Mother scheduled a visitation for the weekend of April
12, 2008, but the foster parents failed to deliver the girls for visitation.
Mother made these 2007 visits without assistance to and from Illinois.
Even though the caseworker knew that Mother did not have transportation
and could not financially afford to travel to Tennessee, the state only began
to offer transportation and lodging to Mother after the petition for
termination was filed. Once help was offered, Mother’s visitations
resumed. Furthermore, as the case manager testified, Mother stayed in
regular contact with the children by telephone and letters, as was identified
in the visitation section of the permanency plan.
Id. at *9.
The more recent case of In re Caira D., No. M2014-01229-COA-R3-PT, 2014
WL 6680696 (Tenn. Ct. App. Nov. 25, 2014), is factually similar to the present case. In
In re Caira D., it was undisputed that the father had not visited his children during the
four months prior to the filing of the petition, and the issue was whether his failure to
visit was willful. In re Caira D., 2014 WL 6680696, at *6. The family had lived in
Indiana, but the mother moved with the children to Tennessee while the father remained
in Indiana after the parents separated. Id. at *1. Father asserted that he was not able to
make the seven-hour trip from Indiana to Tennessee because he did not have a driver’s
license and could not afford the cost of traveling. Id. at *7. Father further argued that he
“visited” with his children by talking with them over the telephone at least every other
week. Id. The DCS caseworker who supervised these telephone calls testified that the
father “called his children at least once every other week during the four-month period,
and that each phone call lasted approximately twenty minutes.” Id. The trial court found
that the phone calls amounted to only token visitation. Id.
The appellate court disagreed, finding that “the evidence fails to establish by clear
and convincing evidence that [the father’s] telephone visits constituted mere token
visitation.” Id. The court emphasized that “token visitation” is defined as “‘visitation,
under the circumstances of the individual case, [which] 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. (quoting
Tenn. Code Ann. § 36-1-102(1)(C)). The court stated:
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[I]t is undisputed that Father visited by phone with his children every other
week during the relevant four-month period for approximately twenty
minutes. Thus, considering the circumstances of this case, including
Father’s modest financial means, lack of a driver’s license, the fact that it
would be a seven-hour one-way trip to visit his children, and the lack of
evidence that anyone was willing to provide transportation assistance or
drive him to Cookeville for visitation, we are unable to conclude that
twenty-minute phone calls with his children every other week during the
relevant four-month period constitutes token visits. See In re B.D., No.
M2008-01174-COA-R3-PT, 2009 WL 528922, at *9 (Tenn. Ct. App. Mar.
2, 2009) (stating that although the mother only visited the children three or
four times during the relevant four-month period, the court found that her
distance from the children made visitations difficult and that the mother
maintained regular contact with the children by telephone and letters,
circumstances which did not support a finding that the mother abandoned
her children by willfully failing to visit them). Thus, even though Father
did not visit with the children in person during the relevant four-month
period, we find the evidence fails to establish by clear and convincing
evidence that his telephone visits constituted mere token visitation.
Id. (footnote omitted). The court in In re Caira D. concluded that “the evidence in this
record has not completely eliminated all ‘serious or substantial doubt’ about the
correctness of the conclusion that Father’s failure to visit with the children in person was
willful.” Id. (quoting In re Valentine, 79 S.W.3d at 546).
The reasoning of In re B.D. and In re Caira D. leads us to the conclusion that the
trial court erred in finding clear and convincing evidence that Father’s failure to visit was
willful. Mr. Fannin testified that, during the relevant four-month time period, when
Father lived in Louisiana, he talked with the children on the telephone “about once a
week.” Mr. Fannin told Father that the Department could not facilitate visits outside of
Tennessee. Before he moved to Louisiana, Father visited the children on April 24, 2015,
July 31, 2015, August 14, 2015, August 20, 2015, August 28, 2015, September 10, 2015,
and September 24, 2015. Mr. Fannin also listed dates of visits that occurred after the
relevant four-month time period: April 5, 2016, April 7, 2016, April 15, 2016, and May
10, 2016. He stated that each of these visits lasted two hours. According to Mr. Fannin,
Father never behaved inappropriately at the visits or appeared to be impaired. As in In re
Caira D., under the circumstances of this case, including Father’s distance from the
children and the Department’s failure to offer assistance with visits when Father was in
Louisiana, we cannot conclude that weekly phone calls with the children constituted
merely token visits. See In re Caira D., 2014 WL 6680696, at *7. We hold that the
Department failed to prove by clear and convincing evidence that Father’s failure to visit
the children in person was willful.
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2. Abandonment by failure to provide a suitable home
With respect to this ground, Mother argues that the Department failed to make
reasonable efforts to assist her. Father asserts that the trial court erred in terminating his
rights based on this ground because he and Mother secured a home for a period of time.
Abandonment by failure to provide a suitable home occurs under the following
circumstances:
The child has been removed from the home of the parent or parents or the
guardian or guardians as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as defined
in § 37-1-102, and the child was placed in the custody of the department or
a licensed child-placing agency, that 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 for a period of four (4) months following the removal, the
department or agency has 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 made
no 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 may be found to be reasonable if
such efforts exceed the efforts of the parent or guardian toward the same
goal, when the parent or guardian is aware that the child is in the custody of
the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii). Thus, the statute requires the Department to
prove, with respect to the relevant four-month time period, three elements: (1) the parent
has failed to make reasonable efforts to provide a suitable home, (2) DCS has “made
reasonable efforts to assist the parent . . . to establish a suitable home,”4 and (3) the parent
has “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.” Tenn.
4
In In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015), our Supreme Court overruled case law requiring
DCS to prove reasonable efforts to reunify the family as a precondition to terminating parental rights.
The Court noted, however, that “proof of reasonable efforts is required to prove the ground of
abandonment by failure to provide a suitable home.” Id. at 555 n.32.
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Code Ann. § 36-1-102(1)(A)(ii). In this case, the four-month time period following the
children’s removal runs from April 17 to August 17, 2015.
In the context of Tenn. Code Ann. § 36-1-102(1)(A)(ii), a “suitable home” means
“‘more than a proper physical living location.’” In re Hannah H., No. E2013-01211-
COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014) (quoting State v.
C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29,
2007)). A suitable home must “be free of drugs and domestic violence.” Id.
Mother argues that DCS failed to make reasonable efforts to assist her in
establishing a suitable home, as required by Tenn. Code Ann. § 36-1-102(1)(A)(ii).5
“Reasonable efforts” has been defined to mean “the exercise of reasonable care and
diligence by the department to provide services related to meeting the needs of the child
and the family.” Tenn. Code Ann. § 37-1-166(g)(1); see In re C.L.M., No. M2005-
00696-COA-R3-PT, 2005 WL 2051285, at *9 (Tenn. Ct. App. Aug. 25, 2005) (applying
Tenn. Code Ann. § 37-1-166(g)(1) definition to case involving abandonment by failure to
provide suitable home). It should be noted that, “the Department does not bear the
obligation to establish a suitable home alone, and parents must make their own efforts at
reunification.” In re Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at
*7 (Tenn. Ct. App. Apr. 20, 2016) (citing In re C.L.M., 2005 WL 2051285, at *9) (noting
that “reunification is a ‘two-way street’”)).
The children were removed from the home on April 17, 2015 due to the parents’
drug abuse, improper care and supervision of the children, and noncompliance with
services. The Department submitted an affidavit of reasonable efforts by Eric Fannin
dated December 17, 2015 detailing the following services provided during the four
months after the children’s removal from the home:
 Alcohol and drug assessment with recommendations for in-home parenting
classes, intensive outpatient rehab (IOP), and family counseling.
 In-home IOP for parents starting August 2015; also approved in-home parenting
classes but parents refused services.
 Drug screen of Mother on 5/6/15 (positive for oxycodone, no proof of
prescription). Drug screen of Mother on 6/23/15 (positive for BZO, OPI, and
OXY, no proof of prescriptions). Drug screen of Mother on 7/1/15 negative.
Attempted drug screen on 8/5/15 during random home visit, Mother unable to
produce sample. Drug screen of Mother on 8/26/15 positive for oxycodone.
5
Mother also argues, without any supporting authority, that the trial court erred in finding the ground of
abandonment by failure to provide a suitable home because DCS restricted Mother’s ability to provide for
the children by “intercepting” the children’s disability benefits. Without knowing any further facts, we
assume that Mother is referring to benefits to which the children are entitled and which, therefore, are
legally payable to the children’s guardians.
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Mother refused to sign information release. Drug screen of Father on 8/26/15
positive for oxycodone, no prescription.
 Parent-child visit scheduled for 5/15/15 had to be cancelled because parents were
incarcerated. Visit scheduled for 6/10/15 was cancelled because Mother did not
call to confirm 24 hours in advance.
 Attempted random home visit on 7/9/15, Mother not home.
 Parent-child visit with Mother on 7/15/15 prior to permanency hearing and with
Father after the hearing.
 Attempted random drug screen with Mother during children’s therapy visit on
7/22/15. Mother called and reported she would not be there due to illness. Case
manager went to her home but she was not there, made multiple phone calls but
Mother did not answer.
 Parent-child visit on 7/31/15 with both parents. Mother appeared to be under the
influence.
 Attempted drug screen of Mother on 8/5/15 during random home visit, Mother
unable to produce sample.
 Parent-child visit on 8/14/15.
The Department developed a permanency plan with the parents in early May 2015. By
July 2015, the Department had provided the parents with $789.97 to pay overdue utility
bills in order to help them obtain suitable housing.
In an affidavit of reasonable efforts dated March 24, 2016, Mr. Fannin testified
that the Department had been providing in-home IOP to the Mother but the contractor
was now refusing to work with Mother “due to non-compliance and police report was
filed by the IOP worker due to [Mother] allegedly stealing her laptop.” As of that date,
Mother had not yet started inpatient treatment. Mother takes issue with the Department’s
decision to change its recommendation from in-home treatment to inpatient treatment in
light of her limited resources. At the hearing, Mr. Fannin explained the Department’s
decision as follows:
The original recommendation [from the alcohol and drug assessment] was
for her to complete outpatient treatment. During that time frame she was
arrested on drug charges and had failed several drug screens and failed pill
counts. The recommendation was to change to inpatient treatment. She
was also convicted on November the 18th on a drug-related charge and a
theft-related charge and a reckless endangerment change and was court
ordered to do inpatient treatment.
Under these circumstances, we cannot say that the Department’s actions were
unreasonable. Mother also mentions the problem of lack of transportation. We note,
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however, that inpatient treatment presents much fewer transportation issues than most
types of outpatient treatment.
The Department’s efforts “to assist a parent or guardian in establishing a suitable
home for the child may be found to be reasonable if such efforts exceed the efforts of the
parent or guardian toward the same goal . . . .” Tenn. Code Ann. § 36-1-102(1)(A)(ii).
During the four months following the children’s removal, Mother continued to abuse
drugs, as evidenced by her positive drug screens. At the end of the four months, Mother
and Father were living in an unsanitary home belonging to the maternal grandmother,
even though Mr. Fannin had informed them that this home was not suitable for the
children. Both parents were arrested within a month of the children’s removal. Mother
was arrested in May 2015 for filing a false police report. In July 2015, she was charged
with public intoxication and, in August 2015, she was charged with possession of a
controlled substance and possession of drug paraphernalia. Father was arrested in May
2015 for failure to appear in court and contempt of court. In light of both parents’
continuing problems with drug use and criminal activity as well as their failure to
cooperate with the Department, we conclude that the Department exerted reasonable
efforts to help Mother and Father obtain suitable housing.
Finally, the third prong of the suitable home analysis requires the Department to
prove by clear and convincing evidence that the parent has “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.” Tenn. Code Ann. § 36-1-
102(1)(A)(ii). As to this portion of the analysis, the court “may consider the parents’
more recent behavior.” In re Kayla B., No. E2016-01192-COA-R3-PT, 2017 WL
438622, at *7 (Tenn. Ct. App. Feb. 1, 2017) (citing In re Joshua S., No. E2010-01331-
COA-R3-PT, 2011 WL 2464720, at *18 (Tenn. Ct. App. June 16, 2011)). After removal,
Mother was arrested a total of six times on charges including DUI, possession of illegal
substances, theft, and criminal trespass. She had charges pending at the time of trial.
Mother failed nine out of twelve drug screens. After being compliant for the first year of
the case, Mother failed to respond to requests for drug screens during the summer of
2016, and she was not compliant with follow-up treatment and other recommendations
(including Narcotics Anonymous) after inpatient care. Mr. Fannin testified that Mother
had not had a pill count or drug screen since finishing inpatient treatment. Although the
parents obtained their own housing for a period of about four months, neither maintained
housing on a consistent basis. Mother lived in hotels, with her mother, or with friends
and failed to respond to Mr. Fannin’s requests for a home address.
When Father moved to Louisiana in the fall of 2015, he could no longer
participate in in-home IOP. In addition to his arrest in May 2015, Father was arrested
two more times and spent nearly five months in jail. He was incarcerated, out of the
state, or homeless for nearly twelve of the eighteen months between removal and the trial.
Father failed three of four random drug screens. Father argues that the trial court’s
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holding was in error in part because the parents obtained suitable housing for
approximately four months. He asserts that the time period when the parents lost this
house coincides roughly with the time period when Father did not have verified
employment.
At the time of trial, Father emphasizes, the proof showed that he had been
employed since September 2016. Therefore, he argues, “it was plausible at the time of
trial” that Father and Mother would be able to provide the children with a suitable home
at an early date. In determining whether grounds for termination have been established,
however, we are required to “‘look to the evidence of the parent’s past actions, rather
than the parent’s future aspirations.’” In re Derrick J., No. E2015-01507-COA-R3-PT,
2016 WL 3752013, at *8 (Tenn. Ct. App. July 8, 2016) (quoting In re Adoption of Logan
A.S., No. W2009-02661-COA-R3-PT, 2010 WL 3984712, at *8 (Tenn. Ct. App. Oct. 12,
2010)). As discussed above, “suitable home” means “‘more than a proper physical living
location.’” In re Hannah H., 2014 WL 2587397, at *9. A suitable home must be free of
drugs and “requires a safe and stable environment.” In re James V., No. M2016-01575-
COA-R3-PT, 2017 WL 2365010, at *5 (Tenn. Ct. App. May 31, 2017). At the time of
trial, the parents had not yet resolved their housing instability, drug problems, or criminal
issues.
There is clear and convincing evidence in the record that, from the time of the
children’s removal to the time of trial, Mother and Father exhibited such a lack of
concern for the welfare of the children that it appeared unlikely that they would be able to
provide them with a suitable home at an early date. We find clear and convincing
evidence to support the trial court’s determination that DCS met its burden to prove the
ground of abandonment by failure to provide a suitable home as to both parents.
3. Substantial noncompliance
To establish the ground of substantial noncompliance with a permanency plan, the
Department must prove by clear and convincing evidence that the parent has not
substantially complied with the statement of responsibilities set forth in the permanency
plan at issue. Tenn. Code Ann. § 36-1-113(g)(2). Substantial noncompliance “should be
measured by both the degree of noncompliance and the weight assigned to that
requirement.” In re Valentine, 79 S.W.3d at 548. This court has described the proper
analysis for a trial court to use in determining whether a parent has substantially complied
with a permanency plan:
Before analyzing whether the parent complied with the permanency plan,
the trial court must find that the permanency plan requirements that the
parent allegedly failed to satisfy are “reasonable and related to remedying
the conditions which necessitate foster care placement.” In re Valentine, 79
S.W.3d at 547 (citing Tenn. Code Ann. § 37-2-403(a)(2)(C)).
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If the permanency plan requirements are reasonable, the court must
determine if the parent’s noncompliance was substantial; noncompliance is
not enough to terminate a parent’s rights. Id. at 548-49. Additionally, the
unsatisfied requirement(s) must be important in the plan’s scheme. Id. A
“trivial, minor, or technical” deviation from the permanency plan’s
requirements does not qualify as substantial noncompliance. In re M.J.B.,
140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (citing In re Valentine, 79
S.W.3d at 548). Improvements in compliance are construed in favor of the
parent. Id. at 549 (citing State Dept. of Human Servs. v. Defriece, 937
S.W.2d 954, 961 (Tenn. Ct. App. 1996)).
In re Malaki E., No. M2014-01182-COA-R3-PT, 2015 WL 1384652, at *11 (Tenn. Ct.
App. Mar. 23, 2015). Whether a parent is substantially noncompliant with a permanency
plan is a question of law. In re Valentine, 79 S.W.3d at 548.
The Department developed an initial permanency plan with Mother’s participation
in May 2015. Father agreed to the terms of the plan. The permanency plan required the
parents to (1) complete an alcohol and drug assessment and follow all recommendations,
(2) sign releases for all prescribing physicians and take medications as prescribed, (3)
submit to random drug screens and pill counts and unscheduled home visits, (4) complete
a mental health assessment and follow all recommendations, (5) maintain stable and legal
income and provide proof to DCS, (6) obtain safe and stable housing and provide proof to
DCS, (7) maintain regular contact with DCS and notify the case worker of any change of
circumstance, (8) maintain safe and reliable transportation, (9) participate in scheduled
visitation with the children, (10) complete parenting classes and submit proof to DCS,
(11) refrain from accruing criminal charges, (12) make regular calls to case worker to
check on well-being of the children, and (13) maintain regular telephone contact with the
children. The juvenile court ratified the permanency plan and found the requirements to
be reasonably related to remedying the conditions that necessitated foster care. Neither
parent argues on appeal that the requirements of the permanency plan are not reasonably
related to the conditions that required their children’s removal.
Mother and Father argue that the trial court erred in finding noncompliance
because they made partial progress toward the goals of the permanency plan.6 Mother
emphasizes that the primary reason for removal was drug treatment and rehabilitation and
that she “made significantly more progress, or at least attempts at progress, as the case
proceeded.” We agree with Mother that drug use was a main reason for the children’s
removal, but we disagree that she substantially complied with the permanency plan or
6
In her argument, Mother acknowledges the holding of In re Kaliyah S., 455 S.W.3d at 555 (stating that
reasonable efforts by DCS need not be proven to establish grounds for termination), but maintains that
“[i]t appears incongruous to expect a parent to complete actions when efforts are not made to assist the
parents in doing so.”
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made significant progress on the drug-related requirements. Mother completed one
month of inpatient rehab in June 2016, one year after the permanency plan was
developed, four months after the filing of the petition to terminate her parental rights, and
at least partly as a condition of her probation. See In re Malaya B., No. E2015-01880-
COA-R3-PT, 2016 WL 3083045, at *2, 5 (Tenn. Ct. App. May 24, 2016) (finding mother
substantially noncompliant where she made no effort to recover from addiction until three
months after filing of termination petition). After inpatient treatment, Mother failed to
comply with Mr. Fannin’s requests for drug screens and did not participate in follow-up
IOP or Narcotics Anonymous, as recommended. She also consistently failed pill counts,
most recently in April 2016.
As stated above, the parents never maintained suitable housing. Moreover, neither
maintained consistent visitation. Father attended only four visits during the year before
trial. Mother had not visited the children in over three months at the time of trial. Mr.
Fannin scheduled multiple visits between July and September 2016, but the parents failed
to confirm or cancel, as required. As detailed above, both parents had multiple arrests.
While Father claimed to have begun working in September 2016, he never provided DCS
with proof of income. At the time of trial, both parents had unresolved criminal charges.
The parents never completed parenting classes after being terminated for nonattendance.
They also failed to follow the recommendations of their mental health and alcohol and
drug assessments. Neither parent began individual counseling. Mother and Father
reported that they started church-based family counseling in the fall of 2015, but they
never provided DCS with any documentation. Neither parent completed the intensive
outpatient program: Father, because he moved to Louisiana, and Mother, due to
noncompliance and the alleged theft of a laptop.
While the parents have complied in part with some of the requirements of the
permanency plan, we conclude that clear and convincing evidence supports the trial
court’s finding that the parents did not substantially comply with the permanency plan.
4. Persistence of conditions
Tennessee Code Annotated section 36-1-113(g)(3) authorizes termination of
parental rights when:
The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions that
in all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child’s safe return to the
care of the parent or parents or the guardian or guardians, still persist;
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(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent or parents or
the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable
and permanent home[.]
As this court has previously stated, the goal of the ground of persistence of
conditions “is to avoid having a child in foster care for a time longer than reasonable for
the parent to demonstrate her ability to provide a safe and caring environment for the
child.” In re Malaki E., 2015 WL 1384652, at *9 (citing In re Arteria H., 326 S.W.3d
167, 178 (Tenn. Ct. App. 2010), overruled on other grounds, In re Kaliyah S., 455
S.W.3d 533 (Tenn. 2015)). The persistence of conditions ground focuses “on the results
of the parent’s efforts at improvement rather than the mere fact that he or she had made
them.” In re Audrey S., 182 S.W.3d at 874. The court must determine “the likelihood that
the child can be safely returned to the custody of the mother, not whether the child can
safely remain in foster care . . . .” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000
WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000). “A parent’s continued inability to
provide fundamental care to a child, even if not willful, whether caused by a mental
illness, mental impairment, or some other cause, constitutes a condition which prevents
the safe return of the child to the parent’s care.” In re Jamazin H.M., No. W2013-01986-
COA-R3-PT, 2014 WL 2442548, at *6 (Tenn. Ct. App. May 28, 2014).
The children were removed from the parents’ home in April 2015 and adjudicated
dependent and neglected in January and July 2015. Most of the dependency and neglect
orders are fill-in-the-blank forms and do not specify the precise factual grounds for the
children’s removal.7 Based upon the April 20, 2015 bench order granting temporary
custody to DCS, the reasons for removal were Father’s failure to cooperate with the
Department, Mother’s continuing drug abuse, and the parents’ failure to provide the
children with proper care. The Department filed its petition to terminate in February
2016. The trial court made the following pertinent findings in its order granting
termination:
DCS removed the children from [parents’] home because of the parents’
drug abuse and environmental neglect.
7
In the adjudicatory order, the court stated that the parents stipulated that the children were dependent
and neglected by Mother for improper care and supervision pursuant to Tenn. Code Ann. § 37-1-
102(b)(12)(C) and by the Father for abuse and neglect pursuant to Tenn. Code Ann. § 37-1-
102(b)(12)(G).
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The conditions that led to the removal still persist: the parents are both still
unstable, have unresolved drug issues, and are not visiting the children
regularly, and have been engaged in criminal activity.
Mother does not dispute that the children were removed for dependency and
neglect or that they have been removed for more than six months. She argues that proof
of continuing substance abuse was not presented at trial, that instability was not an issue
at the time of removal, and that her cooperation with services improved over time. In
support of her argument regarding the lack of proof of continuing substance abuse,
Mother cites In re Jimmy B., E2015-02070-COA-R3-PT, 2016 WL 2859180 (Tenn. Ct.
App. May 11, 2016). Because the father in In re Jimmy B. failed to cooperate with DCS,
the Department was unable to present evidence at trial that he continued to use drugs at
the time when the petition was filed. In re Jimmy B., 2016 WL 2859180, at *7. The
court held that DCS had failed to meet its burden of proving persistence of conditions.
Id. at *8. In this case, Mother argues that DCS failed to prove that she was using drugs at
or near the time of trial.8 The Department argues that Mother’s failure to comply with
drug screens and attend follow-up alcohol and drug treatment “strongly suggests ongoing
drug issues.” This type of inference does not, however, constitute clear and convincing
evidence to support the persistence of conditions ground. In In re Jimmy B., the court
noted that “Father’s failure to show up consistently for visits, drug screens, and court
hearings or to communicate effectively with DCS workers made it difficult for DCS to
obtain clear and convincing evidence that the conditions that led to Jimmy’s removal still
persist.” Id. We conclude that the record in this case does not contain clear and
convincing evidence that Mother’s substance abuse problems persisted at the time of
trial.
Despite our conclusion regarding the lack of proof as to Mother’s drug abuse by
the time of trial, we believe there is clear and convincing evidence that the other
“conditions that led to the child[ren’s] removal or other conditions that in all reasonable
probability would cause the child[ren] to be subjected to further abuse or neglect and that,
therefore, prevent the child[ren’s] safe return to the care of the parent or parents or the
guardian or guardians, still persist.” Tenn. Code Ann. § 36-1-113(g)(3)(A). Mother
continued to have criminal problems, and she was arrested in September 2016 on charges
of theft and criminal trespass. She and Father did not have stable housing at the time of
trial. Mother conceded at trial that she was not ready to have the children return to her
care.
8
Although In re Jimmy B., 2016 WL 2859180, at *7, refers to “the time termination proceedings were
initiated,” courts generally consider whether these conditions persist at the time of trial. See In re Lillian
D., No. E2016-00111-COA-R3-PT, 2016 WL 4505691, at *12-13 (Tenn. Ct. App. Aug. 26, 2016); In re
M.B.R., No. E2015-01906-COA-R3-PT, 2016 WL 3568183, at *6 (Tenn. Ct. App. June 23, 2016).
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With respect to Father,9 we conclude that the Department presented clear and
convincing evidence that the conditions that necessitated removal “or other conditions
that in all reasonable probability would cause the child[ren] to be subjected to further
abuse or neglect and that, therefore, prevent the child[ren’s] safe return to the care of the
parent or parents or the guardian or guardians” persisted. Tenn. Code Ann. § 36-1-
113(g)(3)(A). As with Mother, the Department could not prove Father’s continuing drug
abuse by the time of trial. Nevertheless, other conditions, including housing instability,
lack of cooperation with the Department, and outstanding criminal issues, prevented the
safe return of the children.
As detailed in the above discussion of substantial noncompliance, Mother and
Father often did not cooperate with the Department’s efforts to help them. The trial court
found that there was “little chance that those conditions will be remedied soon so that the
children can be returned safely to the home,” and that “[c]ontinuation of the parent/child
relationship greatly diminishes the children’s chances of being placed into a safe, stable
and permanent home.” Tenn. Code Ann. § 36-1-113(g)(3)(B), (C). The evidence does
not preponderate against these findings. We conclude that clear and convincing evidence
supports the trial court’s termination of Mother’s and Father’s parental rights on the
ground of persistence of conditions.
5. Best interest
Having found clear and convincing evidence exists for at least one ground to
terminate the parental rights of Mother and Father, we next consider whether the trial
court properly determined that termination of each parent’s rights is in the children’s best
interest. See Tenn. Code Ann. § 36-1-113(c)(2); In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003) (noting that the trial court is only required to find one statutory ground for
terminating a parent’s rights). In reviewing the trial court’s best interest determination,
we are mindful that, “Facts relevant to a child’s best interests need only be established by
a preponderance of the evidence, although DCS must establish that the combined weight
of the proven facts amounts to clear and convincing evidence that termination is in the
child’s best interests.” In re Carrington H., 483 S.W.3d at 535 (citing In re Kaliyah S.,
455 S.W.3d at 555).
The factors a trial court is to consider in determining whether terminating a
parent’s rights to his or her children is in the children’s best interest are set forth in Tenn.
Code Ann. § 36-1-113(i) and include the following:
9
Although Father mentions persistence of conditions at the end of the section of his brief on substantial
noncompliance, he does not include an argument on persistence of conditions. We will, nevertheless,
consider the merits of this ground as to Father.
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(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to
§ 36-5-101.
The best interest analysis “does not call for a rote examination of each of Tenn.
Code Ann. § 36-1-113(i)’s nine factors”; rather, the relevance and weight accorded to
each factor depends upon the facts of each case. In re Audrey S., 182 S.W.3d at 878.
Moreover, the list of factors in Tenn. Code Ann. § 36-1-113(i) is not exhaustive, and the
court may consider any other relevant factors. In re M.A.R., 183 S.W.3d 652, 667 (Tenn.
Ct. App. 2005); White v. Moody, 171 S.W.3d 187, 193 (Tenn. Ct. App. 2004).
The trial court made the following findings regarding the best interest of the
children in this case:
A. It is in the children’s best interests for termination to be granted,
because the parents have not made changes in their conduct or
circumstances that would make it safe for the children to go home.
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B. It is in the children’s best interests for termination to be granted,
because the parents have not made lasting changes in their lifestyle or
conduct after reasonable efforts by the state to help, so that lasting
change does not appear possible.
C. It is in the children’s best interests for termination to be granted,
because the parents have not maintained regular and appropriate
visitation with the children.
D. It is in the children’s best interests for termination to be granted,
because the parents have abused and neglected the children.
E. It is in the children’s best interests for termination to be granted,
because there is crime in the parents’ home.
F. It is in the children’s best interests for termination to be granted,
because the parents abuse drugs or alcohol, rendering them consistently
unable to care for the children in a safe and stable manner.
G. It is in the children’s best interests for termination to be granted,
because the parents’ mental or emotional state would be detrimental to
the children and would prevent them from effectively parenting the
children.
H. It is in the children’s best interests for termination to be granted,
because the parents have not paid child support consistently.
I. It is in the children’s best interests for termination to be granted,
because the parents have shown little or no interest in the welfare of the
children.
J. It is in the children’s best interests for termination to be granted,
because the children have established a strong bond with their foster
parents, who wish to adopt them.
Mother asserts that the Department failed to make reasonable efforts to help her
reunify with her children. In our discussion regarding the ground of abandonment for
failure to provide a suitable home, we addressed the reasonableness of the Department’s
efforts during the four months after the removal of the children from the parents’ home.
The record contains affidavits of reasonable efforts detailing the Department’s later
efforts to assist Mother, including arranging visits with her children, drug screens, in-
home services, revised permanency plans, and information and referrals to inpatient
services after the in-home service provider refused to continue working with Mother.10
Mother does not argue that she had trouble finding an inpatient drug and alcohol facility,
yet she did not begin inpatient treatment until April 2016, months after the filing of the
termination petition. Father emphasizes his efforts to stay in touch with his children by
10
According to Mr. Fannin’s affidavit of reasonable efforts dated March 24, 2016, the IOP in-home
worker reported that Mother stole her laptop and that Mother “sent unintentional text messages that
seemed to be arranging a drug deal.”
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calling while he was living in Louisiana and by visiting when he was in Tennessee. That
one factor alone, however, is not determinative.
Considering the evidence as a whole, we conclude that there is clear and
convincing evidence to support the trial court’s determination that termination of
Mother’s and Father’s parental rights is in the best interests of the children.
CONCLUSION
The judgment of the trial court is reversed with respect to the ground of
abandonment by failure to visit during the four months prior to the filing of the petition as
to Father. In all other respects, we affirm the judgment of the trial court that Mother’s
and Father’s parental rights should be terminated. This matter is remanded with costs of
appeal assessed half to Mother and half to Father, for which execution may issue if
necessary.
________________________________
ANDY D. BENNETT, JUDGE
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