IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 21, 2021 Session

IN RE KAYLENE J., ET AL.

Appeal from the Juvenile Court for Rhea County

No. 17-JV-18 J. Shannon Garrison, Judge

___________________________________

No. E2019-02122-COA-R3-PT

___________________________________

This case involves a petition to terminate a mother’s parental rights to her minor children. 

The petition was filed by the Tennessee Department of Children’s Services. The trial court 

granted the petition, finding multiple grounds for termination were established and that it 

was in the best interest of the children to terminate the mother’s parental rights. The mother 

appealed. We affirm the trial court’s decision in part, vacate in part, and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in

Part; Vacated in Part; and Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Joshua E. Hixson, Dayton, Tennessee, for the appellant, Katina R.

1

Herbert H. Slatery, III, Attorney General and Reporter; and Kathryn A. Baker, Senior 

Assistant Attorney General, for the appellee, Tennessee Department of Children’s 

Services.

OPINION

I. FACTS AND PROCEDURAL HISTORY

Katina R. (“Mother”) is the biological mother of Kourteney J., born in 2001; 

Kaylene J., born in 2002; Kassiah R., born in 2005; and Jasonna R., born in 2008. This 

action involves a petition to terminate Mother’s parental rights to the children. Prior to 

 

1

In cases involving minors, this Court has a policy of protecting the identity of children by 

initializing the last names of the parties. See In re C.W., 420 S.W.3d 13, 15 n.1 (Tenn. Ct. App. 2013).

05/26/2021
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trial, Kourteney reached the age of majority. Accordingly, Mother’s parental rights to 

Kourteney were not a subject of the trial court’s final order. Additionally, the putative 

fathers of the children have not participated in any part of this case and do not take part in 

this appeal. Therefore, the scope of this appeal is limited to Mother’s parental rights to 

Kaylene, Kassiah, and Jasonna. 

On March 8, 2017, the Tennessee Department of Children’s Services (“DCS”) 

received a referral involving the children. The referral alleged that the children were left 

alone in Mother’s apartment without adult supervision for an extended period of time. 

Later that day, law enforcement and child protective services investigated the referral. 

Upon their arrival at Mother’s apartment, Kourteney (who was a minor at the time)

informed them that Mother had been in Georgia for the past several days. The children 

stated that neighbors were “keeping an eye on them” while Mother was gone. When the 

investigators spoke with several neighbors, all of the neighbors stated that they were not 

supervising the children. Thereafter, child protective services was unable to locate a family 

member that could take temporary custody of the children. As a result, on March 9, 2017,

the children entered DCS custody and DCS filed a petition to declare the children 

dependent and neglected. The next day, the trial court entered an ex parte protective 

custody order that granted temporary legal custody of the children to DCS, effective as of 

March 9, 2017.

Initially, all of the children were placed with the same pre-adoptive foster family. 

Later, Kourteney was relocated to another foster home. Kassiah requested to join 

Kourteney at this new home and was relocated to join Kourteney. Although Kourteney 

has since reached adulthood, Kassiah remains placed in this home. Since trial, Kaylene 

has also reached adulthood, but Jasonna continues to reside with her original pre-adoptive 

foster family.2

An adjudicatory hearing on the dependency and neglect petition was held on April 

26, 2017. At the hearing, the court found by clear and convincing evidence that the children 

were dependent and neglected pursuant to Tennessee Code Annotated section 37-1-

102(b)(13). On May 30, 2017, the court entered a written order that adjudicated the 

children dependent and neglected.

Prior to the adjudicatory hearing, on April 5, 2017, LeAnn Smith (the DCS Family 

Service Worker initially assigned to the children’s case) (“FSW Smith”) held a child and 

family team meeting. Mother did not attend the meeting in person but participated via 

telephone. At the meeting, the parties prepared and outlined a Family Permanency Plan. 

On May 1, 2017, Mother and FSW Smith finalized a plan that outlined several 

 

2 Although Kaylene has reached adulthood, because Mother’s parental rights to Kaylene were 

terminated, we shall review termination of those rights in this appeal. See In re Jeremy C., No. M2020-

00803-COA-R3-PT, 2021 WL 754604, at *6 n.5 (Tenn. Ct. App. Feb. 26, 2021).
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requirements for Mother to complete. Under the plan, Mother was required to: (1) maintain 

legal and verifiable employment and provide proof of such to DCS; (2) attend the 

children’s educational meetings and medical appointments; (3) consistently visit the 

children; (4) maintain and reside in housing for at least six months and provide proof of 

such housing to DCS; (5) maintain contact with DCS and notify it of any changes of 

circumstances including employment, address, and contact information; (6) not incur any 

additional criminal charges; (7) obtain counseling for her parenting and domestic violence 

concerns; and (8) provide a transportation plan to DCS, including proof of insurance and 

registration. Mother agreed to the requirements of the plan. On June 8, 2017, the trial 

court ratified the plan, finding that Mother’s requirements were reasonably related to the 

goal of returning the children to Mother.

Despite her acknowledgement of her responsibilities under the permanency plan, 

Mother continued to live a disruptive and chaotic lifestyle. FSW Smith arranged several 

visits between Mother and the children, but Mother was continuously combative and 

aggressive towards FSW Smith. It was difficult for FSW Smith to arrange visits because 

Mother would refuse to respond to her calls, would travel out of the state, and would refuse 

to give her important information such as her address or location. Mother frequently asked 

for the visits to be rescheduled or relocated at the last minute. At times, FSW Smith was 

able to grant Mother’s requests and would change the location or time for a visit. However, 

even when FSW Smith would accommodate Mother, Mother would remain frustrated and 

hostile. There were multiple instances that resulted in Mother canceling visits despite FSW 

Smith agreeing to reschedule or relocate. On one occasion, after FSW Smith granted 

Mother’s requests, Mother canceled the visit and stated “that she has a life and things to 

do.” On other occasions FSW Smith was forced to cancel several visits due to Mother’s 

confrontational demeanor.

When Mother did visit with the children, the interactions were overwhelmingly 

negative, combative, and detrimental to the children. At times, Mother would criticize the 

children’s appearance or would instruct them to be uncooperative with their foster parents. 

In September 2017, Mother’s combative nature at visits reached a boiling point. On 

September 29, 2017, a scheduled visit took place at Mother’s residence. FSW Smith 

transported the children to the visit, but the visit was supervised by a therapeutic visitation 

worker. Shortly after the visit began, Mother began yelling about her frustrations with 

DCS and telling the children that DCS was the reason that they were not together. Towards 

the end of the visit, FSW Smith—who waited outside of Mother’s home during the visit—

instructed Kourteney to inform the other children that the visit was ending. When 

Kourteney returned inside Mother’s home, Mother refused to release the children to FSW 

Smith. Eventually, FSW Smith called law enforcement due to Mother’s actions. When 

law enforcement arrived, the children were released to FSW Smith.

FSW Smith also arranged for video and telephone visits between Mother and the 

children. Similar to the in-person visits, these visits were often unproductive. Whether 
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over video or on a telephone call, Mother continued to criticize and manipulate the 

children. At the end of the visits, the children were often upset by Mother’s statements. 

The last in-person visit between Mother and the children took place in July 2018.

Along with the visitations being unsuccessful, Mother continued to live a transient 

lifestyle after the children entered DCS custody. When DCS received the initial referral in 

March 2017, Mother’s residence was in Spring City, Tennessee. In approximately May 

2017, Mother obtained a new residence in McMinnville, Tennessee. From November 2017 

to March 2018, Mother resided at several different residences in Florida. She reported 

approximately six different addresses during this time, including multiple domestic 

violence and homeless shelters. In March 2018, Mother informed DCS that she had 

returned to her McMinnville, Tennessee residence. In December 2018, she reported that 

she retained her home in McMinnville but was residing in Murfreesboro, Tennessee; 

however, she did not disclose an exact address. Around the same time, Mother informed 

another DCS worker3that she was residing in Georgia, not Murfreesboro. At a review 

hearing on February 28, 2019, Mother informed the trial court that she was staying in 

Murfreesboro but retained her home in McMinnville. Once again, she did not disclose an 

exact address. In part due to her transient lifestyle, the last in-person visit that Mother 

attended took place in July 2018. After Mother failed to attend a scheduled visit in August 

2018, she told three of the children that she did not attend because she was not informed 

about the visit. In actuality, Mother helped schedule the visit and simply refused to attend.

Throughout the time the children were in DCS custody, Mother reported that she 

had unreliable transportation. She claimed that she was unable to make several visits and 

meetings with DCS due to her transportation issues. However, from March through May 

2019, Mother made several Facebook posts that indicated she was traveling to destinations 

such as Las Vegas and Jamaica.

Similar to visitations with the children, Mother’s transient lifestyle and hostile 

attitude towards DCS made her interactions with DCS increasingly difficult. Mother was 

particularly hostile at a child and family team meeting with DCS in October 2017. The 

meeting ended quickly after Mother began screaming and yelling at several DCS

employees. At one point, Mother even referred to FSW Smith as “the devil.”

Mother’s hostility towards DCS also prevented her from successfully completing 

her responsibilities in the permanency plan. Again, the trial court ratified an initial Family 

Permanency Plan on June 8, 2017. On November 7, 2018, the trial court ratified a renewed 

plan that contained the same requirements as the initial plan. Since the children entered 

DCS custody, DCS had made several attempts to assist Mother in completing her 

permanency plan requirements. Despite its efforts, time and again, Mother either denied 

 

3 Along with the four children involved in this case, Mother has two other minor children that 

entered DCS custody in a separate proceeding in September 2018.
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the help or failed to follow through on completing important tasks. At one point, Mother 

did provide proof that her driver’s license was reinstated, that she completed a 

psychological assessment, and that she had obtained housing. However, her license was 

revoked shortly thereafter, she failed to complete the requested parenting portion of the 

psychological assessment, and she continued to frequently change residences.

Mother failed to complete the vast majority of her permanency plan requirements. 

She never provided DCS with proof of employment; she did not attend the children’s 

educational meetings or medical appointments; she did not maintain consistent contact with 

DCS; she did not provide proof of attending any counseling sessions; and she did not 

consistently visit the children. In contrast, she affirmatively violated many of the 

permanency plan requirements. Mother incurred several new criminal charges in 

September and October 2018. On September 2, 2018, Mother was arrested for disorderly 

conduct, criminal trespass, and evading arrest. The disorderly conduct and criminal 

trespass charges were subsequently dismissed, but Mother was found guilty of evading 

arrest. Mother was incarcerated from September 2 to September 25, 2018, for these 

charges. Shortly after being released from incarceration, on October 4, 2018, Mother was 

arrested for driving under the influence. Mother pled no contest to the DUI charge and was 

released from jail on October 11, 2018.

On January 9, 2019, after the children had been in DCS custody for nearly two years,

DCS filed a petition to terminate Mother’s parental rights. The petition listed several 

potential grounds for termination, including abandonment by failure to provide a suitable 

home, abandonment by failure to provide support, abandonment by an incarcerated parent,

abandonment by exhibiting a wanton disregard for the children’s welfare, persistence of

conditions, substantial noncompliance with the Family Permanency Plans, and failure to 

manifest an ability and willingness to parent. In response to the petition, in Mother’s 

answer, she claimed that DCS failed to provide adequate support and that the petition 

included several fabricated claims.

The trial court held a review hearing on February 28, 2019. Previously, Mother was 

provided court-appointed counsel. After Mother accused the court-appointed counsel of 

conspiring with DCS, on January 25, 2019, Mother’s appointed counsel was allowed to 

withdraw from representation. The trial court permitted Mother to have until the review 

hearing to obtain new counsel. At the review hearing, Mother declined court-appointed 

counsel and stated that she would retain private counsel for the termination proceedings. 

However, there is no indication that Mother retained counsel for the remainder of the trial 

court proceedings. Trial on the termination petition was scheduled for June 12, 2019.

On June 12, 2019, Mother did not appear for trial. Deb Osborne, the court appointed 

special advocate assigned to the case, informed the court that she received a text message

earlier that morning from Mother regarding her absence. Ms. Osborne stated that Mother 

claimed, in her text, that she was hospitalized and unable to attend. Mother sent Ms. 
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Osborne a picture of her hospital wristband as proof that she was actually receiving medical 

treatment. As a result of Mother’s absence, the trial court continued trial to August 28, 

2019. The certificate of service for the court’s continuance order indicates that a copy of 

the order was sent to Mother’s residence in McMinnville.

On August 28, 2019, Mother again failed to appear for trial. At the outset of the 

proceedings, Ms. Osborne testified that Mother texted her early that morning, stating that 

she was once again hospitalized and unable to attend. Ms. Osborne stated that she received 

the message from an unknown number. She responded by attempting to contact both the 

unknown number and Mother’s cell phone number. Ms. Osborne sent texts messages to 

both numbers, asking for verification that Mother was hospitalized. Despite her efforts, 

Ms. Osborne did not receive a response. In open court, Ms. Osborne called Mother’s phone 

and the unknown number, but both calls went unanswered. Based on Mother’s lack of 

response and failure to provide proof that she was hospitalized, the trial court proceeded 

with trial.

Two witnesses testified at the first day of trial on August 28, 2019: FSW Smith and 

Kristin Jennings (“FSW Jennings”). In June 2018, FSW Jennings had replaced FSW Smith 

as the family service worker assigned to the case.

FSW Smith testified on the children entering DCS custody, the creation of the 

permanency plans, Mother’s requirements under the plans, Mother’s visitations with the 

children, and DCS’s involvement in the case. FSW Smith testified at length on Mother’s 

history of hostility towards DCS. She stated that Mother was not receptive to any of the 

services or assistance offered by FSW Smith. Initially, FSW Smith supervised Mother’s 

visits with the children. However, she testified that because Mother continued to act in a 

hostile and aggressive manner, FSW Smith arranged for a therapeutic visitation worker to 

supervise the visits. FSW Smith further testified that despite the change in supervision, the 

visits continued to be unproductive.

4

FSW Smith also testified on the assistance that she provided Mother to help her 

complete her permanency plan requirements. She testified that she provided Mother with 

a gas card to help with transportation issues. FSW Smith also provided information for 

Mother to complete counseling and parenting classes. She also arranged for Mother to 

obtain in-home services such as therapeutic visitations and domestic violence and parenting 

curriculums, which would have been paid for by DCS.5 FSW Smith also contacted 

TennCare on Mother’s behalf to help arrange insurance coverage and requested a parenting 

 

4 FSW Smith testified at length on the assistance DCS attempted to provide Mother and Mother’s 

reluctance to accept the assistance. The trial court explicitly credited FSW Smith’s testimony on these 

issues.

5 FSW Smith stated Mother was asked to participate in domestic violence counseling after Mother 

was involved in a domestic violence incident in her home. She stated that the incident occurred in the 

presence of Mother’s two youngest children, who are not a part of this case.
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assessment that included a psychological component. FSW Smith stated that she provided 

Mother assistance within the first four months of the children entering DCS custody.

Despite the support provided by FSW Smith, Mother continued to be unreceptive 

and hostile towards DCS. FSW Smith testified that Mother did not follow up on receiving 

assistance or counseling. Additionally, she stated that Mother could have received multiple 

gas cards, but Mother failed to provide receipts to indicate that she used the previously

provided cards. Further, although FSW Smith arranged for therapeutic visitations in 

Mother’s home, Mother continued to exhibit disruptive and inappropriate behavior at visits.

FSW Jennings also testified on August 28, 2019. Similar to FSW Smith’s 

experience, FSW Jennings stated that Mother was hostile and unreceptive during the time

that she was assigned to the case. She stated that Mother frequently failed to respond to 

her communications; refused to take important materials related to the case, including the

criteria for termination of Mother’s parental rights; and failed to keep DCS informed of her 

current address.

FSW Jennings also testified on Mother’s interactions with the children and the 

children’s progress since entering DCS custody. In August 2018, FSW Jennings attempted 

to arrange a visit between Mother and the children. Mother requested to visit with all of 

the children at the same time, which would require the children to miss school. When FSW

Jennings explained this, Mother stated that she did not care if the children missed school 

for a visit. When visitations did occur, FSW Jennings stated that Mother criticized 

“everything” about the children. FSW Jennings further testified that, despite the 

tumultuous nature of this case, the children were doing well in foster care. Kourteney had 

“aged out” of foster care at the time of trial, but Kassiah continued to reside in a long-term 

foster home while DCS sought to find a pre-adoptive home. Kaylene and Jasonna 

continued to reside in their original pre-adoptive foster home. Prior to trial, Kaylene and 

Jasonna both indicated that they wanted to be adopted by their foster family.

At the close of FSW Jennings’s testimony, the trial court continued the remainder 

of trial to September 25, 2019. The continuance order that set the remainder of trial for 

September 25, 2019, indicates that the order was mailed to Mother’s McMinnville 

residence.

Although the initial continuance order was mailed to Mother’s McMinnville 

address, Mother failed to appear for the second day of trial on September 25, 2019. FSW 

Jennings testified that she attempted to contact Mother after the previous hearing to inform 

her of the continuance, but Mother failed to respond to her phone calls and text messages. 

Ms. Osborne testified that she also tried to contact Mother after the previous hearing, but 

she did not receive a response. With no response from Mother, the trial court proceeded 

with trial.
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Two additional witnesses testified on September 25, 2019, Shannon Jones (another 

DCS family service worker) (“FSW Jones”) and Kaylene and Jasonna’s foster mother.

FSW Jones was the family service worker for Mother’s two youngest children who 

are not a part of this case. Mother’s youngest children entered DCS custody in September 

2018 after Mother was arrested for disorderly conduct, criminal trespass, and evading 

arrest. The initial referral to DCS regarding these children alleged nutritional neglect. A

subsequent investigation also revealed that the youngest children witnessed multiple 

instances of domestic violence. Similar to FSW Smith and FSW Jennings’s experience, 

FSW Jones testified that Mother’s participation in the case had been extremely limited. He 

stated that Mother’s phone calls with the youngest children were frequently negative. 

During phone calls, Mother would “interrogate” the children and would attempt to have 

the children lie about the children’s foster parents.

FSW Jones further testified that the two youngest children underwent weekly 

counseling while in DCS custody. He stated that during counseling and a forensic 

interview, the children disclosed that Mother and her paramours often engaged in “sexual 

games” with those children. FSW Jones testified that the children described inappropriate 

touching by Mother and the paramours against the children, causing the children lasting 

trauma. As a result of the youngest children’s disclosures, FSW Jones stated that the 

Warren County Juvenile Court found that Mother committed severe abuse against them. 

Counsel for DCS moved to submit a copy of the Warren County court’s order that 

contained the abuse finding as a late-filed exhibit when it became available. The trial court 

granted DCS’s motion and identified the future exhibit as “Exhibit no. 14,” but the exhibit 

was never filed as a part of this record.

Kaylene and Jasonna’s foster mother was the last witness to testify. The foster 

mother indicated that she and her husband have bonded with the children and consider 

them to be a part of their family. She stated Kaylene and Jasonna have thrived since they 

entered their custody. She elaborated that both girls are earning high grades in school and 

are undergoing therapy. A letter from Kaylene and Jasonna’s therapist confirmed that the 

girls are doing well with the foster parents and would benefit by remaining in their custody. 

Both the foster mother and the therapist (through her letter) indicated that Kaylene and 

Jasonna have expressed a desire to be adopted by the foster parents. The foster mother 

confirmed that she and her husband wish to adopt Kaylene and Jasonna if they become 

available for adoption. She also stated that she will continue to allow the girls to remain 

in contact with their other siblings.

The trial court entered its final order on January 9, 2020.6 Due to Mother’s absence 

 

6 On November 6, 2019, the trial court entered an initial order that terminated Mother’s parental 

rights. On December 4, 2019, DCS moved the court to alter or amend its order, requesting that the court 

make additional findings on its ruling. The trial court granted this motion and subsequently entered its final 
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at both days of trial, the trial court relied solely on the unrefuted testimony that was 

presented by DCS. Based on the undisputed testimony, the trial court found that there was 

clear and convincing evidence to establish each ground for termination that was asserted 

by DCS. The court specifically found that DCS made reasonable efforts to assist Mother 

after the children entered DCS custody, that Mother’s failure to make minimal efforts 

demonstrated a lack of concern for the children, that Mother continues to exhibit an 

unstable lifestyle, and that Mother lacks parenting skills and an ability to care for the 

children. In relation to the family permanency plans, the court concluded that Mother “has

completed virtually none of the steps” in the plans despite the assistance offered by DCS. 

After considering Mother’s volatile nature, continued instability, inconsistent visitations, 

and lack of meaningful relationships with the children, the court found that it was in the 

best interest of the children to terminate Mother’s parental rights. As a result, the court 

terminated Mother’s parental rights to the children.

Mother timely appealed.7

II. ISSUES PRESENTED

Although stated slightly differently by the parties, the issues on appeal can be 

summarized as the following:

1. Whether Mother was provided adequate notice of trial dates on the petition to 

terminate her parental rights;

2. Whether the trial court erred in considering testimony on allegations of abuse 

committed against children who are not a subject of this case;

3. Whether the trial court erred in finding there was clear and convincing evidence 

of grounds for the termination of Mother’s parental rights; and

4. Whether the trial court erred in finding that it was in the best interest of the 

children to terminate Mother’s parental rights.

For the reasons stated herein, we affirm the trial court’s decision in part, vacate in 

part, and remand.

III. STANDARDS IN TERMINATION CASES

 

order.

7 Mother filed her notice of appeal before the trial court entered its final order on January 9, 2020. 

However, Mother’s early filing does not disrupt her right to an appeal. See Tenn. R. App. P. 4(d) (“A 

prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the 

appeal is taken and on the day thereof.”).
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The Tennessee Supreme Court has previously described the critical nature of 

proceedings that involve the potential termination of parental rights:

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

the judicially recognized fundamental liberty interests protected by the Due 

Process Clauses of the federal and state constitutions. But parental rights, 

although fundamental and constitutionally protected, are not absolute. . . . 

When the State initiates a parental rights termination proceeding, it seeks not 

merely to infringe that fundamental liberty interest, but to end it. Few 

consequences of judicial action are so grave as the severance of natural 

family ties. The parental rights at stake are far more precious than any 

property right. Termination of parental rights has the legal effect of reducing 

the parent to the role of a complete stranger and of severing forever all legal 

rights and obligations of the parent or guardian of the child. In light of the 

interests and consequences at stake, parents are constitutionally entitled to 

fundamentally fair procedures in termination proceedings.

In re Carrington H., 483 S.W.3d 507, 521-22 (Tenn. 2016) (footnote omitted) (citations 

omitted) (quotation marks omitted).

One protection afforded to parents in termination actions is that the petitioner must 

prove the elements by clear and convincing evidence. Id. at 522; In re Kaliyah S., 455 

S.W.3d 533, 552 (Tenn. 2015). This heightened standard of proof “minimizes the risk of 

unnecessary or erroneous governmental interference with fundamental parental rights.” In 

re Carrington H., 483 S.W.3d at 522. Clear and convincing evidence “establishes that the 

truth of the facts asserted is highly probable and eliminates any serious or substantial doubt 

about the correctness of the conclusions drawn from the evidence.” In re Audrey S., 182 

S.W.3d 838, 861 (Tenn. Ct. App. 2005) (citation omitted). It also “eliminates any serious 

or substantial doubt about the correctness of these factual findings.” In re Carrington H., 

483 S.W.3d at 522 (quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)). 

Accordingly, a party seeking to terminate a parent’s parental rights must prove two 

elements by clear and convincing evidence. In re Adoption of Angela E., 402 S.W.3d 636,

639 (Tenn. 2013). First, the petitioner must prove a least one of the statutory grounds for 

termination. See Tenn. Code Ann. § 36-1-113(g); In re Kaliyah S., 455 S.W.3d at 552. 

Second, the petitioner must prove that termination of the parent’s parental rights is in the 

best interest of the child. See Tenn. Code Ann. § 36-1-113(i); In re Kaliyah S., 455 S.W.3d 

at 552.

Recently, in regard to this Court’s role in cases involving the termination of parental 

rights, our Supreme Court has explained:

Rule 13(d) of the Tennessee Rules of Appellate Procedure supplies 

the standard that governs an appellate court’s review of a trial court’s 
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determination in a parental termination proceeding. Under Rule 13(d), 

appellate courts review factual findings de novo with a presumption of 

correctness, unless the evidence preponderates otherwise. A trial court’s 

determination as to whether facts amount to clear and convincing evidence 

supporting termination of parental rights is a conclusion of law. As such, an 

appellate court reviews this determination de novo, affords no deference to 

the trial court’s decision, and makes its own determination about whether the 

facts amount to clear and convincing evidence of the elements necessary to 

terminate parental rights. The issue of statutory construction presented in 

this appeal also is a question of law, which we review de novo with no 

presumption of correctness.

In re Neveah M., 614 S.W.3d 659, 673-74 (Tenn. 2020) (citations omitted).

IV. DISCUSSION

A. Due Process – Notice

Trial on the petition to terminate Mother’s parental rights was originally scheduled 

to begin on June 12, 2019. After Mother did not attend trial on June 12, claiming that she 

was hospitalized, the trial court entered an order that continued trial to August 28, 2019. 

Mother continued to be absent from trial on August 28, sending another message stating 

that she was hospitalized. However, she failed to provide sufficient proof to indicate that 

she was unable to attend trial, so trial began on August 28, 2019. DCS was unable to 

conclude its proof on August 28, so the trial court entered another order that continued the 

remainder of trial to September 25, 2019. The certificate of service on both continuance 

orders indicate that copies of the orders were mailed to Mother’s residence in McMinnville, 

Tennessee.

Mother argues that she did not receive sufficient notice of the new trial dates and, 

as a result, she was not afforded sufficient due process to defend against the petition to 

terminate her parental rights. She argues that DCS failed to comply with Rules 5.01 and 

5.02 of the Tennessee Rules of Civil Procedure by mailing copies of the continuance orders 

to her address in McMinnville.

“[A]ll parties to litigation are entitled to receive notice of important hearings and 

other proceedings; due process requires it.” Bryant v. Edwards, 707 S.W.2d 868, 870 

(Tenn. 1986); see also Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (stating that 

“due process requires ‘notice reasonably calculated under all the circumstances, to apprise 

interested parties of the pendency of the action and afford them an opportunity to present 

their objections’”). Similarly, Rule 5.01 of the Tennessee Rules of Civil Procedure states

that “every order required by its terms to be served; . . . every written motion other than 

one which may be heard ex parte; and, every written notice, appearance, demand, offer of 
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judgment, . . . and similar papers shall be served upon each of the parties.” Additionally, 

Rule 5.02 states that service of a court’s order may occur “by mailing it to such person’s 

last known address.” Tenn. R. Civ. P. 5.02(1) (emphasis added). A pro se litigant that 

“relocates during the course of litigation . . . is encumbered with the responsibility of 

notifying the clerk of the court of his new address.” Reynolds v. Battles, 108 S.W.3d 249, 

251 (Tenn. Ct. App. 2003).

Mother claims that she satisfied her obligation of informing the court of her new 

address by reporting at a review hearing on February 28, 2019, that she was staying in 

Murfreesboro. However, the trial court’s order from the February 28 hearing indicates that 

Mother also stated that she retained her home in McMinnville. Further, there is no 

indication that Mother, as a pro se litigant, informed DCS or the trial court of a precise 

address in Murfreesboro. Still, she argues that informing the court that she resided in 

Murfreesboro generally was sufficient and that the court or DCS should have asked for her 

precise address. We disagree and fail to see how Mother satisfied her obligation to inform 

the court of the location of her new residence.

Again, it is the litigant’s responsibility to notify the court of his or her new address. 

See Reynolds, 108 S.W.2d at 251. Simply stating that she lives in one municipality rather 

than another does not alleviate a litigant of this responsibility. Mother was obligated to 

disclose her address rather than making a broad stroke reference to a particular city. It was 

not the trial court’s or DCS’s responsibility to coax the current address from Mother. 

Without an address, DCS had no avenue for sending court filings to Mother’s supposed 

new residence in Murfreesboro.

Because Mother did not disclose the address for her supposed new residence in 

Murfreesboro, her last known residence remained in McMinnville. Regardless, even if 

Mother occasionally resided in Murfreesboro, the record indicates that she maintained her 

residence in McMinnville. Accordingly, the certificates of service attached to the 

continuance orders that reset the trial dates for August 28, 2019, and September 25, 2019, 

indicate that DCS mailed copies of the orders to Mother’s residence in McMinnville.

Meaning, DCS complied with the notice requirements of Rules 5.01 and 5.02 by mailing 

the continuance orders to her last known residence. See Tenn. R. Civ. P. 5.01; 5.02(1); 

Jenkins v. McClannahan, No. M2010-02061-COA-R3-CV, 2012 WL 1070128, at *2

(Tenn. Ct. App. Mar. 28, 2012) (stating that because the party failed to fulfill his duty to 

notify the court of his change of address, his last known address was the appropriate 

address to mail notice of court proceedings). Therefore, we conclude that Mother is not 

entitled to relief under this issue.8

 

8 We note that Mother does not take issue with the timeliness of the notices that reset the dates for 

trial. Additionally, we fail to see how Mother can claim that she did not receive notice of the first day of 

trial on August 28, 2019, when she sent a text message to Ms. Osborne that morning. Mother’s text 

indicated that she could not attend because she was supposedly ill, not because she did not receive sufficient 

notice.
- 13 -

B. Evidence Presented – “Exhibit no. 14”

Next, Mother asserts that the trial court improperly considered evidence that 

concerned allegations of abuse committed by Mother. Specifically, Mother takes issue 

with the testimony of FSW Jones on Mother’s alleged abuse against her two youngest

children and a court order in another case that purportedly found that Mother abused them. 

She claims that this evidence unfairly prejudiced the trial court’s best interest analysis. We 

disagree.

The majority of FSW Jones’s testimony on the allegations of abuse was a summary 

of the youngest children’s reports. He stated that the youngest children reported playing 

“sexual games” with Mother and her paramours. He also testified that, based on the 

children’s reports, on September 23, 2019, the Warren County Juvenile Court found that 

Mother committed severe child abuse. At the time of FSW Jones’s testimony, a court order 

that contained this finding had not yet become available. As a result, the court allowed 

“Exhibit no. 14” to be filed at a later date, but it was never included in the record. In its 

final order of termination, the trial court primarily relied on FSW Jones’s testimony that 

detailed the alleged abuse. In its discussion on the persistence of conditions ground, the 

trial court also noted that “a Warren County Juvenile Court Order found that [Mother] had 

severely abused two other children.” This was exactly what FSW Jones stated during his 

testimony. There is nothing in the final order that indicates the trial judge relied solely on 

the missing exhibit rather than the testimony of FSW Jones about the findings contained in 

the exhibit. Despite “Exhibit no. 14” being absent from the record, we disagree that FSW 

Jones’s testimony on Mother’s alleged abuse was unfairly prejudicial. Additionally, any 

reliance the trial court may have placed on “Exhibit no. 14” was harmless, considering the 

testimony of FSW Jones.

Even assuming arguendo that the trial court erred in considering “Exhibit no. 14” 

since it was never entered into evidence as a late-filed exhibit, this potential error does not 

require reversal. The Tennessee Supreme Court has stated that “evidentiary error[s that 

are] neither structural nor constitutional [are] governed by Tennessee Rule of Appellate 

Procedure 36(b).” State v. Jones, 450 S.W.3d 866, 900 (Tenn. 2014). Tennessee Rule of 

Appellate Procedure 36(b) states that “[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.” Stated differently, a party “is not entitled to relief on 

appeal if the error [in admitting evidence] had no effect on the results of the trial.” State v. 

Adams, 405 S.W.3d 641, 657 (Tenn. 2013). Instead, an “erroneous admission or exclusion 

of evidence is subject to harmless error analysis.” Ellis v. Modi, No. M2019-01161-COAR3-CV, 2020 WL 2316649, at *7 (Tenn. Ct. App. May 11, 2020) (citing Goodwin v. 

Hanebis, No. M2017-01689-COA-R3-CV, 2018 WL 4145889, at *4 (Tenn. Ct. App. Aug. 

29, 2018)).
- 14 -

Mother’s argument on this issue is analogous to this Court’s discussion in In re 

Ashton V., No. M2016-00842-COA-R3-JV, 2017 WL 1077056 (Tenn. Ct. App. Mar. 22, 

2017), a case involving the modification of a primary residential parent designation. In In 

re Ashton V., the trial court based its finding, in part, on a report from a Court Appointed 

Special Advocate. Id. at *6-7. However, the report was not admitted as an exhibit or made 

a part of the technical record. Id. at *7. On appeal, this Court concluded that because the 

report was not admitted into evidence, the trial court improperly relied on the report. Id. 

However, this Court also found that, even in the absence of the report, the evidence did not 

preponderate against the trial court’s findings and, as a result, the trial court’s improper 

reliance was harmless. Id.

Similar to our conclusion in In re Ashton, in this case, any reliance by the trial court 

on “Exhibit no. 14” was harmless. Taken as a whole, the reference to “Exhibit no. 14” did 

not improperly influence the trial court’s analysis. In the absence of the court order as an 

exhibit, there was ample testimony regarding the abuse allegations from FSW Jones. 

Additionally, the trial court relied on the abuse allegations sparingly in its analysis. Under 

the persistence of conditions ground for termination, the trial court listed FSW Jones’s 

testimony on the reported abuse. The trial court primarily relied on FSW Jones’s testimony 

regarding the alleged abuse as one reason that indicates Mother’s parenting issues will not 

be remedied at an early date. In conducting its best interest analysis, the trial court made 

extensive findings on the applicable best interest factors. See Tenn. Code Ann. § 36-1-

113(i) (listing nine factors that a court must consider when determining whether 

terminating parental rights is in the best interest of the child). In its final order, the trial 

court’s best interest analysis did not reference Mother’s alleged abuse in the separate DCS 

case or FSW Jones’s testimony.9 Regardless, even in the absence of a trial exhibit that 

contained a finding of severe abuse by Mother, FSW Jones’s testimony on the reported

abuse would be directly relevant to a court’s best interest analysis. See Tenn. Code Ann. 

§ 36-1-113(i)(6). 

For these reasons, we have determined that any reliance by the trial court on 

“Exhibit no. 14” was harmless and is not a sufficient basis to set aside the trial court’s final 

judgment. See Tenn. R. App. P. 36(b).

C. Grounds for Termination

In its final order, the trial court determined that DCS established seven separate 

grounds for termination of Mother’s parental rights. On appeal, DCS concedes the grounds 

 

9

In its oral ruling on its best interest findings, the trial court did make references to FSW Jones’s 

testimony. However, a transcript of the court’s oral ruling was not incorporated into the final written order. 

See Williams v. City of Burns, 465 S.W.3d 96, 119 (Tenn. 2015) (“It is well-settled that a trial court speaks 

through its written orders—not through oral statements contained in the transcripts—and that the appellate 

court reviews the trial court’s written orders.”).
- 15 -

of abandonment by failure to support and abandonment by failure to visit. Specifically, it 

concedes that the definition of “abandonment” under Tennessee Code Annotated section 

36-1-102(1)(A)(i) cannot serve as a ground for termination because Mother was 

incarcerated within the four months preceding the filing of the termination petition. It also 

concedes that “abandonment for failure to support”10 under section 36-1-102(1)(A)(iv) 

cannot serve as a ground for termination because the termination petition and the final order 

did not specify a particular four-month period under this ground. Because DCS has 

conceded these grounds for termination, we vacate the portions of the trial court’s final 

order that terminate Mother’s parental rights under these grounds.

Because we have vacated two of the grounds for termination that were found by the

trial court, only five grounds remain at issue on appeal: (1) abandonment by failure to 

provide a suitable home; (2) abandonment by exhibiting a wanton disregard for the welfare 

of the children; (3) persistence of conditions; (4) substantial noncompliance with the 

Family Permanency Plans; and (5) failure to manifest an ability and willingness to parent. 

Although Mother’s principal brief does not include a discussion on several of these 

grounds, we shall address each ground in turn. See In re Carrington H., 483 S.W.3d at 

525-26 (requiring appellate courts to “review the trial court’s findings as to each ground 

for termination . . . regardless of whether the parent challenges [those] findings on appeal”).

1. Abandonment by Failure to Provide a Suitable Home

Tennessee Code Annotated section 36-1-113(g)(1) states that a ground for 

termination of parental rights is established if a parent has abandoned the child under 

section 36-1-102. Under section 36-1-102, “abandonment” can occur, under certain 

circumstances, when a parent fails to obtain and sustain a suitable home for the child after 

the child is removed from the physical or legal custody of the parent. Tenn. Code Ann. § 

36-1-102(1)(A)(ii). To terminate parental rights under this ground, the court must find 

“that a parent failed to provide a suitable home for [the] child even after DCS assisted that 

parent in his or her attempt to establish a suitable home.” In re Jamel H., E2014-02539-

COA-R3-PT, 2015 WL 4197220, at *6 (Tenn. Ct. App. July 13, 2015) (citing Tenn. Code 

Ann. § 36-1-102(1)(A)(ii)). In order to assist the parent, DCS must make “reasonable 

efforts” by utilizing its superior resources to help the parent find a suitable home. In re 

Rahjada W., No. E2019-01798-COA-R3-PT, 2020 WL 2893434, at *5 (Tenn. Ct. App. 

June 5, 2020). Efforts made by DCS shall be “reasonable” if its “efforts equal or exceed 

the efforts of the parent” in finding a suitable home. Tenn. Code Ann. § 36-1-

102(1)(A)(ii)(c). To establish abandonment by the parent’s failure to provide a suitable 

home, DCS must make these “reasonable efforts” during a four-month period following 

the removal of the child. Id.; In re Rahjada W., 2020 WL 2893434, at *5. Unlike other 

 

10 Although DCS’s brief claims states that “abandonment for failure to visit” was improperly pled 

and found, the trial court’s final order clearly indicates that it terminated Mother’s parental rights under

section 36-1-102(1)(A)(iv) for Mother’s failure to provide adequate support.
- 16 -

definitions of abandonment, “the proof necessary to support termination under this ground 

need not be limited to any particular four-month period after removal. As long as the proof 

relates to ‘a period of four (4) months following the removal, the ground may be 

established.” In re Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL 7243674, at *13 

(Tenn. Ct. App. Dec. 15, 2016) (citation omitted) (quoting Tenn. Code Ann. § 36-1-

102(1)(A)(ii)). Stated differently, “[section 36-1-102(1)(A)(ii)(c)] does not limit the 

court’s inquiry to a period of four months immediately following the [child’s] removal.” 

Id.

In addition to adequate physical space, a suitable home includes a parent or guardian 

that gives adequate care and attention to the child. In re Matthew T., No. M2015-00486-

COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016). A suitable home 

is “free of drugs and domestic violence.” In re Navada N., 498 S.W.3d 579, 595 (Tenn. 

Ct. App. 2016) (quoting In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 

2587397, at *9 (Tenn. Ct. App. June 10, 2014)). A parent fails to provide a suitable home 

if he or she lacks residential stability and lives nothing more than a transient lifestyle. In 

re Ronon G., No. M2019-01086-COA-R3-PT, 2020 WL 249220, at *7 (Tenn. Ct. App. 

Jan. 16, 2020) (citing In re Seth B., No. E2017-00173-COA-R3-PT, 2017 WL 4082484, at 

*9 (Tenn. Ct. App. Sept. 14, 2017)).

In the present case, the children were in Mother’s custody at the time of removal. 

DCS made efforts to avoid removing the children from Mother’s custody by attempting to 

locate a family member who could take temporary custody of the children, but its efforts 

were unsuccessful. Shortly thereafter, the children were adjudicated dependent and 

neglected. At the time of removal, the children were alone at Mother’s residence in 

Tennessee. Since the children were removed from Mother’s custody, Mother has lived in 

Tennessee, Georgia, and Florida. Along with retaining her own residence and staying with 

others, Mother has also resided at domestic violence and homeless shelters. Amidst 

Mother’s continued instability, we agree with the trial court that DCS made numerous

efforts throughout this case to help Mother find a suitable home.

FSW Smith testified that she provided Mother with a gas card and information to 

obtain counseling and parenting classes. FSW also arranged for Mother to obtain in-home 

services that would have been paid for by DCS. FSW Smith provided this assistance in 

the four months after the children were removed from Mother’s custody. FSW Smith and 

FSW Jennings arranged several child and family team meetings. Mother participated in 

some of these meetings either in-person or by phone, but there were multiple meetings that 

were cancelled due to Mother’s hostile conduct or because Mother failed to attend. The 

efforts made by DCS were made, in part, to help Mother obtain a home that would provide 

the children with adequate care and attention.

The efforts made by DCS clearly exceeded the efforts made by Mother. Rather than 

accept or act on the support offered by DCS, Mother continued to act hostile towards DCS 
- 17 -

and failed to make minimal efforts to act on the support provided. Mother’s decision to be 

uncooperative with DCS and to forgo counseling services is “directly related to the 

establishment and maintenance of a suitable home.” See In re M.F.O., No. M2008-01322-

COA-R3-PT, 2009 WL 1456319, at *5 (Tenn. Ct. App. May 21, 2009). Additionally, her 

continuously transient and unstable lifestyle exhibits a consistent failure to provide a 

suitable home for the children. See In re Ronon G., 2020 WL 249220, at *7. Mother’s

inability or unwillingness to provide a suitable home for the children demonstrates such a 

lack of concern for the children “that it appears unlikely that [she] will be able to provide 

a suitable home for the child[ren] at an early date.” See Tenn. Code Ann. § 36-1-

102(1)(A)(ii)(c).

We find that DCS made reasonable efforts to help Mother establish a suitable home 

for the children and that its efforts exceeded those made by Mother. We affirm the trial 

court’s finding that there is clear and convincing evidence to show that Mother has 

abandoned the children by failing to provide a suitable home under Tennessee Code 

Annotated sections 36-1-113(g)(1) and -102(1)(A)(ii).

2. Abandonment by Exhibiting a Wanton Disregard for the Welfare of the 

Children

Tennessee Code Annotated section 36-1-102(1)(A)(iv) provides another

“mechanism[] by which abandonment may be proven.” See In re Navada N., 498 S.W.3d 

at 597. Section 36-1-102(1)(A)(iv) states that “abandonment” has occurred when:

the parent or guardian has been incarcerated during all or part of the four (4) 

months immediately preceding the institution of [an action to declare a child 

abandoned], and . . . has engaged in conduct prior to incarceration that 

exhibits a wanton disregard for the welfare of the child.

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2019).11

A parent engages in conduct that exhibits a wanton disregard for his or her child by 

“[u]nreasonably or maliciously risking harm while being utterly indifferent to the 

consequences.” In re O.W., No. W2019-01127-COA-R3-PT, 2020 WL 97727, at *5 

(Tenn. Ct. App. Jan. 9, 2020) (quoting In re Chandler M., No. M2013-02455-COA-R3-

PT, 2014 WL 3586499, at *4 (Tenn. Ct. App. July 21, 2014)). In a parental termination 

case, the “consequences at issue” must “relate to the child’s welfare.” In re Veronica T., 

No. M2017-00726-COA-R3-PT, 2018 WL 1410909, at *7 (Tenn. Ct. App. Mar. 21, 2018) 

(quoting In re Chandler M., 2014 WL 3586499, at *4).

 

11 The relevant portions of the Code are quoted as they appeared when DCS filed its petition in 

January 2019.
- 18 -

The relevant four-month period for determining whether Mother was incarcerated 

in this case under section 36-1-102(1)(A)(iv) spanned from September 9, 2018, to January 

8, 2019. Mother was incarcerated on two separate occasions during this time period. From 

September 2 to September 25, 2018, Mother was incarcerated for criminal trespassing, 

disorderly conduct, and evading arrest. She was incarcerated again from October 4 to 

October 11, 2018, for driving under the influence. Conduct that can constitute a wanton 

disregard for the welfare of a child can include “criminal behavior, substance abuse, and 

the failure to provide adequate support or supervision.” In re Audrey S., 182 S.W.3d at 

867-68. Even prior to Mother’s first incarceration in September 2018, Mother’s conduct 

exhibited a wanton disregard for the welfare of the children.

Throughout this case, Mother consistently exhibited behavior that did not act to 

better the welfare of the children. She missed or cancelled several visitations with the 

children. FSW Smith testified that during the 15 months she was assigned to the case, 

Mother visited the children only 15 times when she could have visited up to 63 times. 

When visits did occur, Mother was extremely hostile towards DCS and frequently 

criticized the children or would encourage them to act out towards their foster parents. 

Mother declined potential assistance by DCS and made statements such as “that she has a 

life and things to do” and that “she had a life and this [case] was not part of it.” Further, 

Mother showed an indifference towards the children’s success in school and failed to attend 

the children’s educational meetings. As for Mother’s ability to provide adequate support 

or supervision for the children, prior to her incarcerations, she lived a transient and chaotic 

lifestyle that resulted in her inability to provide a suitable home.

After considering the history of this case and Mother’s pattern of hostility and 

instability, her conduct has clearly shown an indifference towards the children’s welfare. 

Although she claims to be concerned for their wellbeing, her actions indicate otherwise. 

Her actions took place prior to her incarceration in September 2018. Therefore, we find 

that Mother has abandoned the children under Tennessee Code Annotated section 36-1-

102(1)(A)(iv) by engaging in conduct that exhibited a wanton disregard for the children’s

welfare.

3. Persistence of Conditions

Codified under Tennessee Code Annotated section 36-1-113(g)(3)(A), “persistence 

of conditions” is another potential ground to terminate parental rights. This ground is 

present when:

The child has been removed from the home or the physical or legal custody 

of a parent or guardian for a period of six (6) months by a court order entered 

at any stage of proceedings in which a petition has been filed in the juvenile 

court alleging that a child is a dependent and neglected child, and:

(i) The conditions that led to the child’s removal still persist, 
- 19 -

preventing the child’s safe return to the care of the parent or guardian, 

or other conditions exist that, in all reasonable probability, would 

cause the child to be subjected to further abuse or neglect, preventing 

the child’s safe return to the care of the parent or guardian;

(ii) There is little likelihood that these conditions will be remedied at 

an early date so that the child can be safely returned to the parent or 

guardian in the near future; and

(iii) The continuation of the parent or guardian and child relationship 

greatly diminishes the child’s chances of early integration into a safe, 

stable, and permanent home.

Tenn. Code Ann. § 36-1-113(g)(3)(A).

A parent’s inability to remedy conditions that led to a child’s removal does not need 

to be willful to establish this ground. In re Jaylah W., 486 S.W.3d 537, 556 (Tenn. Ct. 

App. 2015). The “persistent conditions” may include the original conditions that caused 

the child to be removed from the parent’s custody or others that “in all reasonable 

probability would cause a child to be subjected to ‘further abuse and neglect.’” In re 

Audrey S., 182 S.W.3d at 872 (citing Tenn. Code Ann. § 36-1-113(g)(3)(A)(i)). When 

DCS’s sustained efforts to “improve the parenting abilities . . . have proved ineffective, the 

conclusion that there is little likelihood of such improvement as would allow the safe return 

of the child to the parent in the near future is justified.” In re T.S., No. M1999-01286-

COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000).

In March 2017, the trial court entered an ex parte custody order that removed the 

children from Mother’s custody, stating that there was probable cause to believe that the 

children were dependent and neglected. On May 30, 2017, the children were adjudicated 

dependent and neglected. The children were removed from Mother’s custody due to her 

inability (or unwillingness) to provide adequate care and supervision. At the time of 

removal, Mother was constantly traveling to other states and continuously changing her 

residence. Since March 2017, Mother has reported living at a wide variety of residences, 

including one in McMinnville, Tennessee; approximately six different locations in Florida, 

which included multiple domestic violence and homeless shelters; and has recently alleged 

that she now resides in Murfreesboro, Tennessee. Mother’s perpetual change of residences 

indicates that she continues to be unable to provide suitable care and supervision for the 

children.

In addition to Mother’s continuous change of residences, there are “other 

conditions” that may not have led to the children’s removal but “in all reasonable 

probability would cause [the children] to be subjected to ‘further abuse and neglect.’” See

In re Audrey S., 182 S.W.3d at 872 (quoting Tenn. Code Ann. § 36-1-113(g)(3)(A)(i)). 

Such conditions include Mother’s incessant hostility towards DCS, her failure to follow

through on obtaining necessary counseling, her apathetic attitude towards the children’s 
- 20 -

physical health and educational success, her recent criminal issues, and multiple incidents 

of domestic violence. These “other conditions” are directly related to Mother’s ability and 

desire to provide appropriate care and supervision for the children. The continuance of 

these conditions, along with those that contributed to the children entering DCS custody, 

are likely to subject the children to further neglect if they are to return to Mother’s custody. 

These conditions have persisted and continued to manifest since March 2017. Meaning, 

Mother had over 29 months from the time the children entered DCS custody to the 

beginning of trial to remedy the conditions. Despite the lapse of time, the conditions 

persisted.

Considering the length of time that Mother had to remedy these conditions, we agree 

with the trial court in that Mother is unlikely to remedy these conditions at an early date. 

We further agree that the continuation of Mother’s relationship with the children greatly 

diminishes the children’s chances of being integrated into a safe and stable home. Kassiah 

continues to reside in a long-term foster home that provides her with adequate care and 

supervision. Similarly, as of trial, Kaylene and Jasonna were residing with their original 

foster family and had expressed a preference to be adopted.

Based on the foregoing discussion, we affirm the trial court’s conclusion that 

“persistence of conditions” exists as a ground for termination under Tennessee Code 

Annotated section 36-1-113(g)(3).

4. Substantial Noncompliance with the Permanency Plans

In Tennessee, DCS is required “to prepare a permanency plan for each child in foster 

care under its supervision.” In re K.F., No. M2008-01742-COA-R3-PT, 2009 WL

1025829, at *6 (Tenn. Ct. App. Apr. 14, 2009). Permanency plans are developed to help 

ensure each foster child receives adequate care. In re Jamel H., 2015 WL 4197220, at *7. 

Under Tennessee Code Annotated section 36-1-113(g)(2), one potential ground for 

termination of parental rights is present if “[t]here has been substantial noncompliance by 

the parent . . . with the statement of responsibilities in a permanency plan.” To terminate 

a parent’s parental rights under this ground, the parent’s noncompliance with the plan must 

be substantial and the plan’s requirements must be “reasonable and related to remedying 

the conditions which necessitate[d] foster care placement.” In re Valentine, 79 S.W.3d 

539, 547 (Tenn. 2002).

“Determining whether a parent has substantially complied with a permanency plan 

involves more than merely counting up the tasks in the plan to determine whether a certain 

number have been completed[.]” In re Carrington H., 483 S.W.3d at 537. “Trivial, minor, 

or technical deviations from a permanency plan’s requirements will not be deemed to 

amount to substantial noncompliance.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 

2004). Instead, DCS must show “that the parent’s noncompliance is substantial in light of 

the degree of noncompliance and the importance of the particular requirement that has not 
- 21 -

been met.” Id. (citing In re Valentine, 79 S.W.3d at 548-59; In re Z.J.S., No. M2002-

02235-COA-R3-JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003)). A 

parent’s “outcome achievement is not the measure of compliance” with a permanency plan. 

In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL 3209181, at *6 (Tenn. Ct. App. 

July 28, 2017) (quoting In re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at 

*11 (Tenn. Ct. App. Mar. 2, 2009)).

In the present case, after the children entered DCS custody, two Family Permanency 

Plans were ratified by the trial court. The original plan was ratified on June 8, 2017. A

revised plan was ratified on November 7, 2018. Mother’s requirements in the revised plan 

were the same as in the original. Both plans required Mother to complete several tasks, 

including: attend the children’s educational meetings and medical appointments; 

consistently visit the children; maintain and reside in housing for at least six months and 

provide proof of such housing to DCS; maintain contact with DCS and notify it of any 

changes of circumstances including employment, address, and contact information; not 

incur any additional criminal charges; obtain counseling for her parenting and domestic 

violence concerns; and provide a transportation plan to DCS. The children entered DCS 

custody due to Mother failing to provide adequate care and supervision. We find that 

Mother’s requirements under the permanency plans are reasonably related to remedying 

those conditions. See In re Valentine, 79 S.W.3d at 547.

Despite the efforts made by DCS to assist Mother with the permanency plans, 

Mother made efforts to satisfy only a few minor requirements. At one point, Mother 

provided proof that she had a valid driver’s license, but her license was revoked shortly 

thereafter. Additionally, FSW Smith testified that Mother did provide proof of housing, 

but she clarified that Mother did not actually reside in that home. Mother also completed 

a psychological assessment, but she did not complete the parenting portion of the 

assessment. Aside from these few examples of minor progress, Mother failed to complete 

the vast majority of her requirements under the permanency plans.

FSW Smith and FSW Jennings testified at length on Mother’s lack of compliance 

with the permanency plans. FSW Smith testified that Mother never participated in family 

counseling, never provided proof of a legal income, never resided in a single home for at 

least six consecutive months, did not attend educational meetings for Kassiah, and did not 

complete parenting classes. FSW Smith and FSW Jennings each testified that Mother has 

been confrontational towards DCS and that she has not maintained regular contact to 

update DCS on changes to her employment status or living situation. Additionally, Mother 

missed several visits with the children throughout their time in DCS custody. FSW

Jennings stated that on one occasion when Mother missed a visit, she lied to the children 

by telling them that she was not informed of the visit. In actuality, Mother helped arrange 

the visit. When the children learned that Mother lied to them, they became understandably 

upset. In regards to the requirement for Mother to abstain from incurring additional 

criminal charges, as we have previously discussed, Mother incurred multiple charges in 
- 22 -

September and October 2018.

The vast majority of Mother’s requirements under the permanency plans were 

directly related to remedying the issues that led to the children being removed from 

Mother’s custody. Thus, we cannot say that her noncompliance with the permanency plans 

consisted of “trivial, minor, or technical deviations” from the requirements. See In re 

M.J.B., 140 S.W.3d at 656. Instead, we find that Mother’s noncompliance was substantial. 

See id. Therefore, we affirm the trial court’s finding that there was clear and convincing 

evidence to terminate Mother’s parental rights under Tennessee Code Annotated section 

36-1-113(g)(2) for her substantial noncompliance with the permanency plans.

5. Failure to Manifest an Ability and Willingness to Parent

Under Tennessee Code Annotated section 36-1-113(g)(14), a court may find a 

ground for termination of parental rights if two elements are found by clear and convincing 

evidence. For the first element, the petitioner must prove that “the parent or legal guardian 

failed to manifest an ability and willingness to personally assume legal and physical 

custody or financial responsibility of the child.” In re Neveah M., 614 S.W.3d at 674. 

Second, the petitioner must prove that “placing the child in the parent’s legal and physical 

custody would pose a risk of substantial harm to the physical or psychological welfare of 

the child.” Id. Added to section 36-1-113(g) in July 2016, this ground for termination is 

relatively new. See In re Rahjada W., 2020 WL 2893434, at *10. Previously, a split of 

authority developed among this Court regarding the first element of this ground. See In re 

Colton B., No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *9-10 (Tenn. Ct. App. 

Oct. 29, 2018) (describing the differing approaches).

The differing approaches to the first element of section 36-1-113(g)(14) were 

exemplified in In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044 (Tenn. 

Ct. App. May 31, 2018), and In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 

3058280 (Tenn. Ct. App. June 20, 2018). In In re Ayden S., this Court held that the 

petitioner 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.” 2018 

WL 2447044, at *7. In contrast, In re Amynn K. stated that the petitioner must prove that 

the parent failed to manifest an ability or willingness to assume custody or financial 

responsibility of the child. 2018 WL 3058280 at *14. “Stated differently, ‘the parent must 

have “manifest[ed], by act or omission, an ability and willingness”’” to assume custody 

or financial responsibility of the child. In re Neveah M., 614 S.W.3d at 675 (quoting In re 

Amynn K., 2447044, at *13). Recently, the Tennessee Supreme Court resolved this split 

of authority.

In In re Neveah M., the Tennessee Supreme Court determined the proper 

interpretation of the first prong of section 36-1-113(g)(14). 614 S.W.3d at 674-75. After 

determining that the first prong of the section is ambiguous, the Court concluded that the 
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first prong “places a conjunctive obligation on a parent or guardian to manifest both an 

ability and willingness to personally assume legal and physical custody or financial 

responsibility for the child.” Id. at 676-77 (emphasis added). As a result, the Court adopted 

the approach stated in In re Amynn K., 2018 WL 3058280, at *14, and expressly overruled 

In re Ayden S., 2018 WL 2447044, at *7. Id. at 677. Therefore, it is now evident that in 

order to satisfy the first prong of section 36-1-113(g)(14), the petitioner must “prove[] by 

clear and convincing proof that a parent or guardian has failed to manifest either [an] ability 

or willingness” to parent the child. In re Neveah M., 614 S.W.3d at 677.

In the present case, DCS proved by clear and convincing evidence that Mother failed 

to express both an ability and a willingness to assume custody or financial responsibility 

of the children. A parent’s ability to assume custody or financial responsibility is evaluated 

based “on the parent’s lifestyle and circumstances.” In re Zaylee W., No. M2019-00342-

COA-R3-PT, 2020 WL 1808614, at *5 (Tenn. Ct. App. Apr. 9, 2020) (citing In re Ayden 

S., 2018 WL 2447044, at *7). Again, Mother has continuously lived a volatile and chaotic 

lifestyle since the children entered DCS custody. She has failed to consistently visit the 

children. She has resided at several different locations in multiple states, including 

Tennessee, Georgia, and Florida. At various points during her nomadic escapades she has 

been forced to reside at domestic violence and homeless shelters. Mother resided in these 

shelters, in part, to escape from the domestic violence incidents that continued to occur in 

her home. Based on her lifestyle, it is clear that Mother is not able to assume custody or 

responsibility of the children.

Criminal activity and failure to support a child “raise doubt as to [a parent’s] actual 

willingness to assume custody or financial responsibility for the [c]hild.” See In re Amynn 

K., 2018 WL 3058280, at *15. At various points in this case, Mother incurred several new 

criminal charges that led to multiple stints of incarceration. Additionally, she has failed to 

provide support for the children. She paid token and infrequent child support, and decided 

to forgo attending the children’s educational meetings. Rather than prioritizing the children 

or establishing a suitable home, at times, Mother chose to travel to luxurious destinations, 

such as Las Vegas and Jamaica. Accordingly, it is evident that Mother failed to manifest 

either an ability or willingness to assume custody or financial responsibility of the children. 

As a result, DCS satisfied prong one of section 36-1-113(g)(14) by clear and convincing 

evidence. See In re Neveah M., 614 S.W.3d at 677.

Under the second prong of section 36-1-113(g)(14), we further find that returning 

the children to Mother’s legal or physical custody “would pose a risk of substantial harm 

to the physical or psychological welfare of the child[ren].” Mother has not shown an ability 

to provide essential necessities for the children, such as a suitable home, proper nutrition, 

or consistent support. In contrast, Kaylene, Jasonna, and Kassiah were doing well in their 

foster homes. Kaylene and Jasonna have expressed a desire to be adopted by their foster 

family, and Kassiah is receiving sufficient care in her long-term foster home. Kaylene and 

Jasonna’s therapist, as stated in her letter to the court, indicated that they would benefit by 
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remaining in the care of their foster family. Based on the record as a whole, we agree and 

find that returning them to Mother’s custody would likely cause the children substantial 

physical or psychological harm.

In sum, DCS has established both prongs of Tennessee Code Annotated section 36-

1-113(g)(14) by clear and convincing evidence. Therefore, we affirm the trial court’s 

decision to terminate Mother’s parental rights for her failure to manifest an ability or 

willingness to assume custody or financial responsibility of the children.

D. Best Interest of the Children

Having found that DCS has established at least one ground for termination under 

Tennessee Code Annotated section 36-1-113(g), we will now determine whether 

terminating Mother’s parental rights is in the best interest of the children.

In determining whether terminating a parent or guardian’s parental rights is in the

best interest of a child, courts are instructed to consider the factors listed in Tennessee Code 

Annotated section 36-1-113(i). See also In re Neveah M., 614 S.W.3d at 678-79. Section 

36-1-113(i) lists nine factors for consideration:

(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;
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(7) Whether the physical environment of the parent’s or guardian’s home is 

healthy and safe, whether there is criminal activity in the home, or 

whether there is such use of alcohol, controlled substances or controlled 

substance analogues as may render the parent or guardian consistently 

unable to care for the child in a safe and stable manner;

(8) Whether the parent’s or guardian’s mental and/or emotional status would 

be detrimental to the child or prevent the parent or guardian from 

effectively providing safe and stable care and supervision for the child; 

or

(9) Whether the parent or guardian has paid child support consistent with the 

child support guidelines promulgated by the department pursuant to § 

36-5-101.

Tenn. Code Ann. § 36-1-113(i). “The child’s best interests [are] viewed from the child’s, 

rather than the parent’s, perspective.” In re Neveah M., 614 S.W.3d at 679 (alteration in 

original) (quoting In re Audrey S., 182 S.W.3d at 878). Because “[t]he unique facts and 

circumstances of each case dictate the weight and relevance that a court should afford each 

statutory factor[,] . . . [t]he best-interests analysis remains a factually intensive 

undertaking.” Id. (citing In re Carrington H., 483 S.W.3d at 523). Although courts must 

consider each statutory factor, id., a finding on each factor is not required. See In re 

Matthew T., 2016 WL 1621076, at *16 (citing In re Dominique L.H., 393 S.W.3d 710, 719 

(Tenn. Ct. App. 2012)).

Application of the best interest factors in this case weighs in favor of terminating 

Mother’s parental rights. Mother’s continued instability and inability to care for the 

children display a failure to change her circumstances that would make it safe for the 

children to return to her care. See Tenn. Code Ann. § 36-1-113(i)(1). Mother failed to 

make any lasting adjustment despite the repeated assistance that was offered by DCS 

workers such as FSW Smith and FSW Jennings. See id. § 36-1-113(i)(2). Although 

Mother did share some visits with the children, she failed to attend visits on a regular basis, 

causing a further deterioration of the minimal relationships between Mother and the 

children. See id. § 36-1-113(i)(3)-(4). Mother continues to frequently change residences 

that have produced continued acts of domestic violence, abuse, and criminal activity. See 

id. § 36-1-113(i)(7). FSW Jones testified that Mother’s two youngest children reported 

instances of sexual abuse by Mother and her paramours. See id. § 36-1-113(i)(6). In 

contrast, Kaylene, Jasonna, and Kassiah are reportedly doing exceptionally well in their 

respective foster homes. These children have grown attached to their new homes and foster 

parents, who provide safe and stable care for the children. In fact, Kaylene and Jasonna 

wish to be adopted by their foster family, and the family has also expressed a desire to 

adopt them. Removing the children from these stable and safe homes would likely cause 

them unnecessary emotional and psychological harm. See id. § 36-1-113(i)(5). Mother’s
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repeated outbursts towards DCS, her apathetic attitude towards the children’s wellbeing, 

and her encouraging the children to lie about their foster homes demonstrate a mental and 

emotional state of mind that prevents her from properly caring for the children. See id. § 

36-1-113(i)(8). Further, Mother has paid token and infrequent child support since the 

children entered DCS custody. See id. § 36-1-113(i)(9).

In sum, the factors listed in Tennessee Code Annotated section 36-1-113(i) all 

indicate by clear and convincing evidence that it is in the best interest of the children to 

terminate Mother’s parental rights. Having found that least one ground for termination has 

been established and that it is in the best interest of the children, we affirm the trial court’s 

decision to terminate Mother’s parental rights.

V. CONCLUSION

For the reasons stated herein, the decision of the trial court is affirmed in part, 

vacated in part, and remanded. Costs of this appeal are taxed to appellant, Katina R., for 

which execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE