In Re Kamyiah H. ( 2022 )

11/02/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 1, 2022
IN RE KAMYIAH H.
Appeal from the Circuit Court for Montgomery County
No. CC-20-CV-902 Kathryn Wall Olita, Judge
No. M2021-00834-COA-R3-PT
A mother appeals the trial court’s decision to terminate her parental rights based on the
grounds of (1) abandonment by wanton disregard, (2) persistence of conditions, (3)
sentenced to two or more years’ imprisonment for conduct against a child, (4) incarcerated
under a sentence of ten or more years, and (5) failure to manifest an ability and willingness
to assume custody and financial responsibility. She further challenges the trial court’s
finding by clear and convincing evidence that termination of her parental rights was in the
best interest of the child. Finding that the trial court failed to make sufficient findings of
fact for the failure to manifest an ability and willingness ground, we vacate that termination
ground. We affirm the trial court’s decision in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part and Vacated in Part
ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and KENNY W. ARMSTRONG, JJ., joined.
Taylor Robinson Dahl, Clarksville, Tennessee, for the appellant, Brittany H.
Susan Rebecca Mader, Nashville, Tennessee, for the appellees, Lucinda L. and David L.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the termination of Brittany H.’s (“Mother”) parental rights to her
daughter, Kamyiah H. (born in 2017). Mother was arrested and indicted on nine counts of
Class A Felony Aggravated Child Abuse, Class A Felony Aggravated Child
Endangerment, and Class A Felony Aggravated Child Neglect. These charges arose from
activities Mother engaged in between December 13, 2016 and March 13, 2017, that
resulted in three of her other children testing positive for methamphetamines.1 Ultimately,
Mother pleaded guilty to two counts of attempted aggravated child neglect2 and received a
sentence of eight years of community corrections.
Mother violated the terms of her community corrections sentence and was arrested
on August 3, 2017.3 The criminal court ordered her to serve six days in jail for this
violation. The Tennessee Department of Children’s Services (“DCS” or “the Department”)
became involved at this time and removed Kamyiah from Mother’s custody. Upon
removal, a drug test was performed on the child, and the test returned positive for THC and
methamphetamines. The Department then filed a petition for dependency and neglect in
the juvenile court of Obion County on August 7, 2017. The juvenile court entered an order
on January 30, 2018, granting temporary legal custody of the child to DCS based on
Mother’s stipulation “that at the time of the removal, there was clear and convincing
evidence that the minor child was dependent and neglected.” Shortly before the juvenile
court entered its order, Mother failed a drug screen resulting in another violation of the
terms of her community corrections sentence. For this violation, she received a sentence
of ninety days in jail and was ordered to participate in drug court.
Following the removal from Mother’s custody, DCS initially placed the child with
her paternal grandmother. The paternal grandmother became unable to care for the child,
and on July 2, 2018, DCS placed the child with David L. and Lucinda L. (“Petitioners”).
The child has remained in their custody since that time.
On November 5, 2018, Mother violated the terms of her community corrections
sentence for a third time when she stayed out past curfew while wearing an ankle monitor.
The criminal court revoked her community corrections sentence and ordered her to serve
ten years in prison—to be served at thirty percent with eligibility for parole in October
2021.4 On May 11, 2020, approximately a year and a half into Mother’s prison sentence,
Petitioners filed a petition to terminate her parental rights. The child’s father, Eric W.,
joined in the petition to consent to termination of his parental rights. After a one-day trial
on July 7, 2021, the trial court entered an order terminating Mother’s parental rights. The
court determined that the following grounds for termination had been proven by clear and
convincing evidence: (1) abandonment by wanton disregard, (2) persistence of conditions,
1
Mother’s parental rights to those three children are not at issue in this appeal. Although Mother was
pregnant with Kamyiah at the time she committed these acts, Kamyiah was born without drugs in her
system.
2
Both are Class B felonies and are lesser included offenses to the original charges against Mother.
3
It is unclear from the record what Mother’s exact violation was, but her testimony at the termination
hearing indicated it was drug-related.
4
According to Mother’s appellate brief, she was, in fact, released from prison in October 2021.
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(3) sentenced to two or more years’ imprisonment due to conduct against a child, (4)
incarcerated under a sentence of ten or more years while the child is under the age of eight,
and (5) failure to demonstrate an ability and willingness to assume custody or financial
responsibility. The court further determined that there was clear and convincing evidence
that termination of Mother’s parental rights was in the best interest of the child.
Mother appealed and presents the following issues for our review: whether the trial
court erred in finding by clear and convincing evidence that grounds existed to terminate
her parental rights and whether the court erred in determining that termination of her
parental rights was in the best interest of the child.
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, 249-50 (Tenn. 2010) (citing Troxel v. Granville,
530 U.S. 57, 65 (2000)); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996)
(citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Although this right is
fundamental, it is not absolute and may be terminated in certain situations. In re Angela
E., 303 S.W.3d at 250. Our legislature has identified “‘those situations in which the state’s
interest in the welfare of a child justifies interference with a parent’s constitutional rights
by setting forth grounds on which termination proceedings can be brought.’” In re Jacobe
M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., IV., Nos. M2004-
00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct.
App. Apr. 29, 2005)).
Tennessee Code Annotated section 36-1-113 provides the grounds and procedures
for terminating parental rights. First, a petitioner seeking to terminate parental rights must
prove that at least one ground for termination exists. Tenn. Code Ann. § 36-1-113(c)(1);
In re Angela E., 303 S.W.3d at 251. Second, a petitioner must prove that terminating
parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The termination of a parent’s rights is one of the most serious decisions courts make
because “[t]erminating parental rights has the legal effect of reducing the parent to the role
of a complete stranger,” In re W.B., IV, 2005 WL 1021618, at *6, “and of ‘severing forever
all legal rights and obligations of the parent or guardian.’” Id. (quoting Tenn. Code Ann.
§ 36-1-113(l)(1)). Consequently, a parent has a constitutional right to “fundamentally fair
procedures” during termination proceedings. In re Hannah C., No. M2016-02052-COA-
R3-PT, 2018 WL 558522, at *2 (Tenn. Ct. App. Jan. 24, 2018); see also In re Carrington
H., 483 S.W.3d 507, 522 (Tenn. 2016).
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Tennessee law ensures fundamental fairness in termination proceedings by
requiring a heightened standard of proof—clear and convincing evidence. See Tenn. Code
Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d at 522. Before a parent’s rights
may be terminated, a petitioner must prove both the grounds and the child’s best interest
by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79
S.W.3d at 546. “Clear and convincing evidence ‘establishes that the truth of the facts
asserted is highly probable, and eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from 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)).
We review the trial court’s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re
Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we
must then 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 parental rights.” In re Carrington H., 483
S.W.3d at 524 (citing In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010)).
ANALYSIS
I. Grounds for termination
A. Abandonment by wanton disregard
A parent’s rights may be terminated for abandoning his or her child. Tenn. Code
Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102(1)(A) defines
“abandonment” in multiple ways, but only the definition provided in subsection (iv)(c)
applies to this case. At the time the petition was filed, subsection (iv)(c) defined
abandonment as follows:
A parent or guardian is incarcerated at the time of the filing of a proceeding,
pleading, petition, or amended petition to terminate the parental rights of the
parent or guardian of the child who is the subject of the petition for
termination of parental rights or adoption, or a parent or guardian has been
incarcerated during all or part of the four (4) consecutive months
immediately preceding the filing of the action and has:
....
(c) Has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child[.]
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Tenn. Code Ann. § 36-1-102(1)(A)(iv)(c).5
Although parental incarceration is required for this termination ground to apply,
incarceration itself does not establish that the parent abandoned the child by displaying a
wanton disregard for the child’s welfare. In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct.
App. 2005); see also In re Ellie G., No. M2021-00982-COA-R3-PT, 2022 WL 2517262,
at *4 (Tenn. Ct. App. July 7, 2022). Rather, “the parent’s incarceration serves only as a
triggering mechanism that allows the court to take a closer look at the child’s situation to
determine whether the parental behavior that resulted in incarceration is part of a broader
pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the
welfare of the child.” In re Audrey S., 182 S.W.3d at 866. A court, therefore, must
determine whether clear and convincing evidence shows “‘that the parent’s pre-
incarceration conduct displayed a wanton disregard for the welfare of the child.’” In re
Ellie G., 2022 WL 2517262, at *4 (quoting In re Audrey S., 182 S.W.3d at 866). The
statute does not define the specific conduct that demonstrates a wanton disregard, but
“actions that our courts have commonly found to constitute wanton disregard reflect a ‘me
first’ attitude involving the intentional performance of illegal or unreasonable acts and
indifference to the consequences of the actions for the child.” In re Anthony R., No.
M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015). This
Court has repeatedly held that “probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for a
child can, alone or in combination,” constitute conduct demonstrating a wanton disregard
for a child’s welfare. In re Audrey S., 182 S.W.3d at 867-68.
Here, prior to Mother’s incarceration in 2018, she received a sentence of eight years
of community corrections because she pleaded guilty to two counts of attempted child
neglect related to her exposure of her other children to drugs. Although Kamyiah was not
born drug-exposed, she tested positive for THC and methamphetamines within a few
months of her birth. After the child entered DCS custody, Mother repeatedly violated her
community corrections sentence which resulted in revocation of that sentence and in
Mother receiving an even lengthier prison sentence. In other words, Mother had an
opportunity to remain active in the child’s life, but her decision to repeatedly violate
community corrections negated that opportunity. Mother certainly acted with
“indifference to the consequences of [her] actions for the child.” In re Anthony R., 2015
WL 3611244, at *3. We conclude that clear and convincing evidence shows that Mother’s
pre-incarceration conduct demonstrated a wanton disregard for the child’s welfare.
5
Effective July 1, 2022, the Tennessee General Assembly amended Tenn. Code Ann. § 36-1-
102(1)(A)(iv)(c) to provide as follows: “With knowledge of the existence of the born or unborn child,
engaged in conduct prior to, during, or after incarceration that exhibits a wanton disregard for the welfare
of the child[.]” We apply the version of the statute that was in effect when the termination petition was
filed on May 11, 2020. See In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017) (holding the
version of a termination statute “‘that was in force when the petition was filed governs this case’”) (quoting
In re Tianna B., No. E2015-02189-COA-R3-PT, 2016 WL 3729386, at *7 (Tenn. Ct. App. July 6, 2016)).
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Therefore, we affirm the trial court’s termination of Mother’s parental rights pursuant to
this ground.
B. Persistence of conditions
The trial court also terminated Mother’s parental rights pursuant to Tenn. Code Ann.
§ 36-1-113(g)(3). This ground is often referred to as “persistence of conditions” and
“focuse[s] 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 871, 874. Therefore, the
question we must answer is “the likelihood that the child can be safely returned to the
custody of the [parent], 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).
Persistence of conditions may be a basis for terminating a parent’s parental rights
if:
The child has been removed from the home or the physical or legal custody
of a parent . . . 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 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 . . . ;
(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 . . .
in the near future; and
(iii) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable,
and permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3)(A). A petitioner seeking to terminate parental rights
pursuant to this ground must prove each of the statutory elements by clear and convincing
evidence. In re Justin D., No. E2019-00589-COA-R3-PT, 2020 WL 4473032, at *9 (Tenn.
Ct. App. Aug. 4, 2020) (citing In re Michael B., No. M2019-01486-COA-R3-PT, 2020 WL
2988932, at *10 (Tenn. Ct. App. June 4, 2020)).
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We have held that “‘[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 Navada N., 498 S.W.3d 579, 605 (Tenn. Ct. App. 2016)
(quoting In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct.
App. Oct. 13, 2008)). This case is an example of such a situation. There is no dispute that
the child was removed from Mother’s custody by court order and then adjudicated
dependent and neglected more than six months before the termination hearing began. See
Tenn. Code Ann. § 36-1-113(g)(3)(A)-(B). There is also no dispute that the child was
removed from Mother’s custody due to drug exposure. The record shows that, after the
child entered DCS custody, Mother’s drug use continued because she committed a series
of community corrections violations which included drug use, as evinced by a failed drug
screen in January 2018 and the criminal court ordering Mother to participate in drug court.
Although Mother testified that she had been sober since her incarceration began in
November 2018, her sobriety was unquestionably aided by the fact she was incarcerated
and, at trial, she remained incarcerated. Thus, the record shows that Mother could remain
sober if incarcerated, but nothing in the record indicates that Mother can remain sober once
released from prison. Furthermore, Mother testified that, if she was released on parole in
October 2021, she would not be able to provide a home for the child for a period of six to
nine months because she planned to live in a half-way house. The foregoing facts inspire
little confidence that the conditions leading to the child’s removal will be remedied so that
the child can be safely returned to Mother in the near future.6
Lastly, the continuation of the parent and child relationship in this case would
diminish the child’s chances of integrating into a permanent home. See Tenn. Code Ann.
§ 36-1-113(g)(3)(A)(iii). Mr. L. testified that the child had lived with him and his wife
since the child was approximately nine months old and that the child was happy and doing
well in their home. The child had bonded with Petitioners, and Petitioners wanted to adopt
her if Mother’s parental rights were terminated. In light of the foregoing, we affirm the
trial court’s determination that Petitioners proved the existence of this termination ground
by clear and convincing evidence.
C. Sentence of two years or more for conduct against a child
The trial court next terminated Mother’s parental rights pursuant to Tenn. Code
Ann. § 36-1-113(g)(5). Effective March 6, 2020, the Tennessee General Assembly
6
In her appellate brief, Mother attempts to show that the conditions leading to removal had been
remedied by pointing to an order entered by the juvenile court on March 14, 2018, that states she was in
substantial compliance with the requirements of the permanency plan. The record contains no permanency
plans, so we have no way of deducing what the requirements were. Moreover, a subsequent order entered
by the juvenile court on June 13, 2018, contradicts Mother’s argument because it states that Mother was, at
that time, not in substantial compliance with the requirements of the permanency plans. Mother’s argument
on this issue is unavailing.
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amended Tenn. Code Ann. § 36-1-113(g)(5) to provide that a parent’s parental rights could
be terminated if:
The parent or guardian has been sentenced to more than two (2) years’
imprisonment for conduct against a child 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[.]
Because Petitioners filed the termination petition after March 6, 2020, the amendment
applies to this case. A review of the termination order shows that the trial court relied on
the previous, more restrictive version of the statute which applied only if the parent’s
conduct was “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” rather than conduct against any child. Tenn. Code Ann. § 36-
1-113(g)(5) (2020). We consider this harmless error, however, because the result in this
case is the same under either version of the statute. See TENN. R. APP. P. 36(b) (“A final
judgment from which relief is available and otherwise appropriate shall not be set aside
unless, considering the whole record, error involving a substantial right more probably than
not affected the judgment or would result in prejudice to the judicial process.”).
The record shows that Mother pleaded guilty to two counts of attempted aggravated
child neglect pursuant to Tenn. Code Ann. § 39-15-402(a)(1)7 and was sentenced to eight
years of community corrections because she engaged in conduct that caused her other three
children to test positive for methamphetamines. Ultimately, because of Mother’s repeated
community corrections violations, the criminal court revoked that sentence and sentenced
Mother to ten years in prison. The trial court found that, based on Mother’s conviction for
attempted aggravated child neglect, her other three children were victims of severe child
abuse, as defined by Tenn. Code Ann. § 37-1-102. We agree. Tennessee Code Annotated
section 37-1-102(b)(27)(C) defines “severe child abuse” to include “[t]he commission of
an act toward the child prohibited by . . . § 39-15-402, . . . or the knowing failure to protect
the child from the commission of such an act toward the child.” See also In re Kayden A.,
No. W2020-00650-COA-R3-PT, 2021 WL 408860, at *11 (Tenn. Ct. App. Feb. 5, 2021)
(upholding termination under Tenn. Code Ann. § 36-1-113(g)(5) based on guilty plea for
attempted aggravated child abuse); In re Adrian M.-M., No. W2019-00931-COA-R3-PT,
7
Under Tenn. Code Ann. § 39-15-402(a)(1), “[a] person commits the offense of aggravated child abuse,
aggravated child neglect or aggravated child endangerment, who commits child abuse, as defined in § 39-
15-401(a); child neglect, as defined in § 39-15-401(b); or child endangerment, as defined in § 39-15- 401(c)
and . . . [t]he act of abuse, neglect or endangerment results in serious bodily injury to the child.”
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2019 WL 5595846, at *11 (Tenn. Ct. App. Oct. 30, 2019) (concluding that “attempted
aggravated child abuse at Tenn. Code Ann. § 39-15-402, falls within the definition of
severe child abuse at Tenn. Code Ann. § 37-1-102”). Therefore, Mother was sentenced to
more than two years’ imprisonment for conduct against a child that constituted severe child
abuse. We affirm the trial court’s determination that Petitioners proved this ground for
termination by clear and convincing evidence.
D. Incarcerated under a sentence of ten or more years
Relying on Mother’s incarceration under a ten-year sentence, the trial court
determined that grounds for termination existed pursuant to Tenn. Code Ann. § 36-1-
113(g)(6). This statute allows for termination of parental rights if:
The parent has been confined in a correctional or detention facility of any
type, by order of the court as a result of a criminal act, under a sentence of
ten (10) or more years, and the child is under eight (8) years of age at the
time the sentence is entered by the court[.]
Tenn. Code Ann. § 36-1-113(g)(6). Establishing this termination ground is “not a very
difficult task.” In re T.M.G., 283 S.W.3d 318, 325 n.4 (Tenn. Ct. App. 2008). All that a
petitioner must prove is that the parent is serving a prison sentence of at least ten years and
that the child was under eight years old when the sentence was imposed. In re E.M.P., No.
E2006-00446-COA-R3-PT, 2006 WL 2191250, at *6 (Tenn. Ct. App. Aug. 3, 2006) (citing
Tenn. Code Ann. § 36-1-113(g)(6)).
Both elements are present in this case. Given that the child was born in 2017, she
unquestionably was under eight years of age in November 2018 when Mother’s community
corrections sentence was revoked and Mother was ordered to serve ten years in prison.
Mother does not challenge the child’s age or that she was sentenced to ten years’
imprisonment. Instead, she claims that this termination ground does not apply to her
because she was ordered to serve only thirty percent of the ten-year sentence with almost
300 days of credit, “thereby almost assuring her release in October 2021.” We find this
argument unavailing. This Court has “repeatedly recognized that a court considering a
petition for termination of parental rights based on Tenn. Code Ann. § 36-1-113(g)(6) need
not look beyond the judgment of conviction and the sentence imposed by the criminal court
in order to determine whether this ground for termination applies.” In re Audrey S., 182
S.W.3d at 876. “While the statute requires some period of confinement, the legislature did
not expressly provide that the actual period of confinement must amount to 10 or more
years.” In re Chandler M., No. M2013-02455-COA-R3-PT, 2014 WL 3586499, at *7
(Tenn. Ct. App. July 21, 2014). Thus, it does not matter if Mother served less than ten
years in prison. Based on the foregoing, we affirm the trial court’s determination that
Petitioners established this termination ground by clear and convincing evidence.
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E. Failure to manifest an ability and willingness to assume custody or financial
responsibility
Finally, the trial court terminated Mother’s parental rights pursuant to Tenn. Code
Ann. § 36-1-113(g)(14). This ground requires a party to prove two elements by clear and
convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, a party must
prove that the parent failed to manifest “an ability and willingness to personally assume
legal and physical custody or financial responsibility of the child[ren].” Tenn. Code Ann.
§ 36-1-113(g)(14). Second, a party must prove that placing the children in the parent’s
“legal and physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14).
To establish the first prong, the party seeking to terminate parental rights need only
prove that a parent failed to manifest either an ability or a willingness to assume custody.
In re Neveah M., 614 S.W.3d 659, 677 (Tenn. 2020) (citing In re Amynn K., No. E2017-
01866-COA-R3-PT, 2018 WL 3058280, at *13-14 (Tenn. Ct. App. June 20, 2018)).
“Ability focuses on the parent’s lifestyle and circumstances[,]” and willingness focuses on
the parent’s attempts “to overcome the obstacles that prevent [him or her] from assuming
custody or financial responsibility for the child.” In re Serenity W., No. E2018-00460-
COA-R3-PT, 2019 WL 511387, at *6 (Tenn. Ct. App. Feb. 8, 2019). Thus, a parent’s
mere desire to reunite with his or her child is insufficient to demonstrate an ability or a
willingness. In re Nicholas C., No. E2019-00165-COA-R3-PT, 2019 WL 3074070, at *17
(Tenn. Ct. App. July 15, 2019). A petitioner must prove that the parent failed to
demonstrate ability and/or willingness as of the date the termination petition was filed. In
re M.E.N.J., No. E2017-01074-COA-R3-PT, 2017 WL 6603658, at *7 (Tenn. Ct. App.
Dec. 27, 2017).
Following the child’s removal from her custody, Mother initially visited with her
for a couple of hours each week, but Mother had no meaningful visitation with the child
after July 2018. Although Mother claimed to earn $1,000 per month while in prison, she
failed to pay child support. Mother testified that she “should be released [from prison] in
October [2021]” and that she then planned to transition to a half-way house for six to nine
months. Mother acknowledged that she would not be able to provide a home for the child
during that time period. Indeed, she stated that she intended for the child to continue living
with Petitioners and for Petitioners to continue providing for all of the child’s needs.
Mother merely wished to “remain involved” in the child’s life. In light of these facts, we
agree with the trial court’s finding that Mother failed to manifest either an ability or a
willingness to assume custody or financial responsibility of the child.
As for the second prong, a thorough review of the trial court’s termination order
shows that the court failed to make any factual findings regarding a substantial risk of harm
to the child if placed in Mother’s custody. Tennessee Code Annotated section 36-1-113(k)
requires a trial court to “enter an order that makes specific findings of fact and conclusions
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of law” in all termination of parental rights cases. If a trial court fails to comply with this
requirement, we often must vacate and remand the case for preparation of the necessary
findings of fact and conclusions of law. State v. McBee, No. M2003-01326-COA-R3-PT,
2004 WL 239759, at *6 (Tenn. Ct. App. Feb. 9, 2004). Given the lack of sufficient
findings, we vacate the trial court’s termination of Mother’s parental rights pursuant to this
termination ground, but because we have determined that other grounds exist to support
the trial court’s termination of Mother’s parental rights, we conclude that it is not necessary
to remand this case for additional findings. See In re Ralph M., No. E2021-01460-COA-
R3-PT, 2022 WL 3971633, at *16-17 (Tenn. Ct. App. Sept. 1, 2022) (vacating the
persistence of conditions ground due to insufficient findings of fact but declining to remand
for additional findings because “other grounds exist[ed]”).
II. Best interest
Having determined that clear and convincing evidence of at least one statutory
ground exists to terminate Mother’s parental rights, we must next consider whether the trial
court properly determined that termination of Mother’s parental rights was in the best
interest of the child. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d
at 860. After a court finds that clear and convincing evidence exists to support a ground
for termination, the child’s interests diverge from those of the parent and the court focuses
on the child’s best interests. In re Audrey S., 182 S.W.3d at 877. A court must view the
child’s best interest from the perspective of the child, not that of the parent. Id. at 878. A
finding that at least one ground for termination of parental rights exists does not necessarily
require that a parent’s rights be terminated. Id. at 877. Because some parental misconduct
is redeemable, our termination of parental rights statutes recognize that “terminating an
unfit parent’s parental rights is not always in the child’s best interests.” Id. The facts a
court considers in its best interest analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455 S.W.3d 533, 555
(Tenn. Ct. App. Tenn. 2015). Once a court makes the underlying factual findings, it should
“consider the combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interest.” Id.When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court must consider the factors enumerated in Tenn. Code Ann. § 36-
1-113(i).8 A trial court is not required to find that each of the enumerated factors exists
before concluding that it is in the best interest of the child to terminate a parent’s rights. In
re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Although in some circumstances
“the consideration of one factor may very well dictate the outcome of the analysis,” In re
8
The Tennessee General Assembly amended the statutory best-interest factors in 2021. See 2021 TENN.
PUB. ACTS ch. 190 § 1 (S.B. 205), eff. April 22, 2021. However, the factors applicable to this appeal are
the nine factors identified in Tenn. Code Ann. § 36-1-113(i) (2020), which were in effect when the
termination petition was filed on May 11, 2020. See In re Braxton M., 531 S.W.3d at 732.
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Audrey S., 182 S.W.3d at 878, a court is still obligated to consider “all the factors and all
the proof.” In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017).
After considering all of the best interest factors, the trial court found that the factors
favored terminating Mother’s parental rights. See Tenn. Code Ann. § 36-1-113(i). The
evidence in the record before us does not preponderate against the trial court’s findings of
fact.
The first best interest factor considers whether a parent “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.” Tenn. Code Ann. § 36-1-113(i)(1). After the
child was removed from her custody, Mother continued using drugs and violating
community corrections for approximately a year. She claimed that she had remained sober
since 2018, but her sobriety was unquestionably assisted by the fact she had been
incarcerated since 2018. Mother testified that she took advantage of several classes offered
by her prison “to help her be a better mother.” We commend her for these efforts, but her
efforts while not incarcerated were very minimal. Mother believed she would be paroled
in October 2021 and planned to transition into a half-way house for a period of six to nine
months after release. Given Mother’s situation, such a transition would be reasonable.
During this transition period, however, Mother would not be able to provide a home for
the child. We must conclude that the child has waited long enough for Mother to be a
parent to her. This factor favors termination.
The trial court determined that factor two—“[w]hether the parent . . . 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”—did
not apply in this case. Id. § 36-1-113(i)(2). Finding no evidence in the record that a social
services agency provided assistance to Mother, we agree that this factor does not apply.
Next, the trial court found that a meaningful relationship did not exist between
Mother and the child because she did not maintain regular visitation. See id. § 36-1-
113(i)(3)-(4) (“Whether the parent . . . has maintained regular visitation” and “[w]hether a
meaningful relationship has otherwise been established between the parent . . . and the
child.”). The Department removed the child from Mother’s custody when she was
approximately two months old and, at the time of trial, the child was four years old. Mother
visited the child only once after she began living with Petitioners in the summer of 2018.
Admittedly, Mother was incarcerated not long after the child began living with Petitioners,
but the record shows that Mother made little to no effort to visit with the child in the months
before her incarceration. Mother testified that she did not visit because she was unable to
contact Petitioners. The trial court found Mother’s testimony on this issue not credible.
The record supports this finding. Mother stated that she was in constant contact with
Father, and Father testified that he had Petitioners’ contact information at all relevant times.
Furthermore, Mr. L. stated that Mother had his and his wife’s phone numbers and that the
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phone numbers never changed. Petitioners did move once during the custodial episode,
but we agree with the trial court’s finding that DCS would have had Petitioners’ new
contact information and could have provided it to Mother had she asked for it. Based on
these facts, we agree with the trial court’s finding that Mother did not establish a
meaningful relationship with the child due to her failure to maintain regular visitation.
These factors favor termination.
The fifth best interest factor considers “[t]he effect of a change of caretakers and
physical environment is likely to have on the child’s emotional, psychological and medical
condition.” Id. § 36-1-113(i)(5). The child is happy and doing well in Petitioners’ home.
Petitioners have ensured that the child maintains contact with her siblings. In fact, Mr. L.
testified that he and his wife moved to Clarksville so the child would be closer to her
siblings. Mother, on the other hand, continued using drugs and violating her community
corrections sentence which culminated in her incarceration and, as of trial, she remained
incarcerated. This factor favors termination.
The sixth best interest factor considers “[w]hether 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.” Id. § 36-1-113(i)(6). As discussed in detail above, the trial court
found that three of Mother’s other children were victims of severe child abuse perpetrated
by Mother because she was convicted of two counts of attempted aggravated child neglect
after those children tested positive for methamphetamines. Kamyiah also tested positive
for THC and methamphetamines while in Mother’s custody. This factor favors termination.
Factor seven considers whether there is criminal activity in the home and whether a
parent is often unable to care for a child due to substance abuse. Id. § 36-1-113(i)(7).
Following the child’s removal, Mother continued using drugs and repeatedly violated
community corrections. As a result, the criminal court revoked her community corrections
sentence and sentenced her to ten years’ imprisonment. Although Mother believed she
would be released from prison in October 2021, as of trial, she remained incarcerated.
Mother planned to transition into a half-way home for six to nine months upon being
released from prison, but she admitted that she would not be able to provide a safe and
healthy home for the child during that time period. This factor favors termination.
Factor eight focuses on a parent’s mental or emotional status. See id. § 36-1-
113(i)(8). The record contains no evidence pertaining to this factor and it, therefore, does
not apply.
Lastly, factor nine considers whether a parent has paid child support. Id. § 36-1-
113(i)(9). On August 24, 2018, the juvenile court entered an order requiring Mother to pay
$100 per month in child support. Mother testified that she had a job while in prison and
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earned approximately $1,000 per month. Nonetheless, Mother failed to pay the ordered
child support. This factor favors termination.
Based on the foregoing, we conclude that the combined weight of the proven facts
amounts to clear and convincing evidence that termination of Mother’s parental rights is in
the best interest of the child.
CONCLUSION
We affirm the trial court’s determination that clear and convincing evidence exists
to establish the grounds of abandonment by wanton disregard, persistence of conditions,
sentenced to two or more years’ imprisonment due to conduct against a child, and
incarcerated under a sentence of ten or more years while the child is under the age of eight.
Because the trial court failed to make sufficient findings of fact regarding the failure to
demonstrate an ability and willingness to assume custody or financial responsibility
termination ground, we vacate the court’s determination that Mother’s parental rights
should be terminated pursuant to that ground. We affirm the trial court’s conclusion that
termination of Mother’s parental rights is in the best interest of the child. Costs of this
appeal are assessed against the appellant, Brittany H., for which execution may issue if
necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
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