IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 12, 2021 Session

IN RE ANNA H., ET AL

Appeal from the Chancery Court for Anderson County

No. 17CH9327 M. Nichole Cantrell, Chancellor

___________________________________

No. E2020-01206-COA-R3-PT

___________________________________

This case involves a petition to terminate parental rights. The petition was filed by the 

children’s biological father and stepmother against the biological mother. The trial court 

terminated the mother’s rights, finding that the mother abandoned the children under 

Tennessee Code Annotated section 36-1-113(g)(1) and -102(1)(A)(iv) and that termination 

was in the best interest of the children. We affirm the trial court’s decision and remand.

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

and Remanded.

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

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

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

1

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

OPINION

I. FACTS AND PROCEDURAL HISTORY

Meagan H. (“Mother”) and Wayne H. (“Father”) are the biological parents of Anna 

H. and Mason H. (collectively “the children”). Anna was born in January 2006, and Mason 

was born in July 2012. The children were born during Mother and Father’s marriage, but

the parties divorced in June 2014. Father remarried to Jessica H. (“Stepmother”) 

 

1

In actions involving a juvenile, this Court’s policy is to protect the privacy of the child by using 

only the first name and last initial of the parties involved. See In re C.W., 420 S.W.3d 13, 15 n.1 (Tenn.

Ct. App. 2013).

06/09/2021
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(collectively “Petitioners”) in September 2017. This appeal involves a petition to terminate 

Mother’s parental rights to the children.

When Mother and Father divorced in 2014, Mother agreed that Father should be 

designated as the primary residential parent of the children. At the time, Mother was 

addicted to illicit drugs and admitted that she could not provide adequate care for the 

children. Since Mother and Father separated, the children have lived exclusively with 

Father in Tennessee. Under the permanent parenting plan that was entered upon their 

divorce, Mother was granted visitation with the children every other weekend. However, 

Mother has not seen the children since 2015.

After Mother and Father’s divorce, Mother began incurring numerous criminal 

charges in Kentucky, where she resided. In January 2017, Mother pled guilty to numerous 

drug-related charges that she committed in 2015. As a result of her guilty plea, Mother 

was sentenced to 12 months of incarceration and 24 months of probation. Mother also pled 

guilty to multiple DUI charges after driving under the influence in 2014 and 2016. Due to 

her criminal charges and convictions, Mother was incarcerated from November 24, 2016 

to January 20, 2017 and again from March 20, 2017 to January 19, 2018. Prior to trial in 

this case, the last time she saw the children was in the fall of 2015.

On October 20, 2017, while Mother was incarcerated, Petitioners filed a petition to 

terminate Mother’s parental rights and for Stepmother to adopt the children. As grounds 

for termination, Petitioners alleged that Mother abandoned the children by failing to visit 

and by failing to provide support during the four months that preceded the filing of the 

petition.

On February 19, 2018, Mother answered the petition. In her answer, Mother argued 

that Petitioners failed to comply with the requirements of Tennessee Code Annotated 

section 36-1-113. Specifically, Mother asserted that she was incarcerated at the time the 

petition was filed and that the petition failed to state grounds for termination of the rights 

of an incarcerated parent. Based on the deficiency in the petition, Mother moved to dismiss 

the petition. Shortly after Mother filed her initial answer, in May 2018, she moved to 

enforce the visitation schedule contained in the parties’ permanent parenting plan. This

was the first time since the parties’ divorce in 2014 that Mother attempted to formally

enforce the visitation schedule.

After a hearing on Mother’s motion to dismiss, the trial court agreed that Petitioners 

failed to adequately plead a ground for termination. However, the court allowed Petitioners 

to amend the petition to include the requisite four-month period and instructed Mother to 

provide Petitioners her dates of incarceration prior to the filing of the petition.

On February 22, 2019, Petitioners filed an amended petition. In the amended 

petition, Petitioners again alleged that Mother abandoned the children by failing to support 
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and by failing to visit. Petitioners stated that Mother’s relevant periods of incarceration 

were from November 24, 2016 to January 20, 2017, and again from March 20, 2017 to 

January 19, 2018. Accordingly, Petitioners argued that, excluding those periods of 

incarceration, Mother abandoned the children during an aggregated four months prior to 

Petitioners filing the original petition.

In an amended answer, Mother admitted to the alleged periods of incarceration. 

Mother also claimed that Petitioners thwarted her attempts to visit and provide support 

during the requisite four-month period.

On July 28, 2020, the trial court conducted a final hearing on the petition. Several 

witnesses testified at the hearing, including Father, Stepmother, Anna, and Mother. At the 

outset of the hearing, the parties agreed to an aggregate four-month period under Tennessee 

Code Annotated section 36-1-102(1)(A)(iv). The parties agreed that, excluding Mother’s 

periods of incarceration, the relevant four-month period of non-incarceration was from 

September 24 to November 24, 2016 and January 20 to March 20, 2017.

Father testified that he and the children reside with Stepmother and her biological

son. Father stated that the children are established in the home and are doing exceptionally 

well. He testified that Anna is involved in various activities, such as soccer and 

cheerleading, and is receiving high grades in school. When asked about Anna’s 

relationship with Stepmother, Father stated that, at times, they bicker like a normal 

daughter and mother, but they have a positive relationship overall. Similarly, Father stated 

that Mason plays several sports and gets along well with Stepmother. In contrast to the 

children’s relationship with Stepmother, Father testified that Mother did not visit or attempt 

to contact the children during the relevant four-month period. He further stated that 

between the parties’ divorce in 2014 and the filing of the petition in 2017, Mother attempted 

to contact the children approximately five times. Until the petition was filed, Father did 

not receive any letters, cards, or gifts from Mother to the children. However, Father stated 

that after Mother was released from incarceration in January 2018, he began receiving 

cards from Mother addressed to the children. According to Father, Mason, who was two 

years old when he last saw Mother, had no relationship with Mother.

Stepmother also testified to her relationship with the children. Stepmother had 

experienced previous legal issues similar to that of Mother in her past. Prior to marrying 

Father, Stepmother had been incarcerated for various drug-related charges. Although she 

used drugs in the past, Stepmother testified that she has not used drugs since she was 

released from incarceration in December 2014. Stepmother verified that she and her 

biological son have lived with Father and the children since 2016. She testified that she 

raises Anna and Mason as if they are her biological children and that they refer to her as 

“Mom.” Stepmother stated that she helps perform parenting responsibilities such as 

transporting the children to their activities, cooking for the family, and putting the children 

to bed at night. Similar to Father’s testimony, Stepmother also stated that the family did 
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not receive any mail from Mother until after the petition was filed.

Anna, who was fourteen years old at the time of trial, also testified. Anna confirmed 

that she refers to Stepmother as “Mom” because she views her as her mother. She also 

referred to Stepmother’s biological son as her “brother.” Anna stated that she understood 

that the trial court was being asked to terminate Mother’s parental rights and that she 

wanted Stepmother to be her legal mother.

In regards to her relationship with Mother, Anna testified that, even if Mother is no 

longer using drugs, she does not want to have contact with her. When asked about Mother’s 

recent efforts to make contact, Anna stated that she remembered receiving cards and letters 

on holidays. However, she received the majority of these correspondences after the 

termination petition was filed. Anna was aware that there were instances when Mother 

attempted to contact her through Father but said that she would inform Father that she did 

not want to speak with Mother. Anna’s previous interactions with Mother were tumultuous 

and sporadic. In particular, Anna described instances where she would find needles in 

Mother’s purse or under her bed. She also stated that Mother was “in and out of our lives.” 

Anna estimated that she last saw Mother approximately six years prior to trial when she 

and Mason were visiting their maternal grandmother. Anna testified that during the visit, 

Mother arrived and began fighting with the grandmother, which resulted in law 

enforcement being called to the scene. Anna also stated that because Mason was “really 

young” when he last saw Mother, he does not have a relationship with Mother.

Mother testified on her criminal history, her efforts to change her lifestyle, and her 

recent efforts to contact the children. Mother admitted to her prior drug use that resulted 

in multiple periods of incarceration. Initially, Mother claimed that she began using drugs 

“around 2015.” However, she later admitted meeting Stepmother when she was using 

drugs, which was prior to her divorce from Father in 2014. Despite her prior drug use, 

Mother asserted that she has been “clean” since she was incarcerated in March 2017. 

Mother testified that since she was last released from incarceration, she has obtained 

employment, had earned an Associate’s degree in science, and had made plans to complete 

a physical therapy assistant program. During her prior incarcerations, Mother entered 

rehabilitation programs, but she did not complete any of those programs.

Mother admitted that she has no affirmative proof of her efforts to contact the 

children prior to the petition being filed. She claimed that she made efforts that went 

unanswered. However, her testimony on her pre-petition efforts was inconsistent. Initially,

Mother stated that during one period of incarceration, she sent the children a letter and a 

drawing. When asked about another period of incarceration, she stated that she did not 

send anything to the children because she did not know what to say. During a stint in a 

rehabilitation program in 2017, Mother claimed that she was not allowed to make phone 

calls or write letters. Additionally, when she was asked why she did not attempt to enforce 

her visitation rights prior to the petition being filed, Mother stated that she “felt like [she] 
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couldn’t fight” as a drug addict.

Mother testified that since the petition was filed in October 2017, she has made 

numerous efforts to contact the children. Mother claimed that she mailed the children cards 

on birthdays and holidays. She also asserted that she made numerous calls and sent text 

messages to Father in an attempt to contact the children. Mother explained that she did not 

have a phone when she first left incarceration, so she often used the maternal grandmother’s

cell phone to call Father. She claimed that even when she eventually obtained her own 

phone, she continued to use the grandmother’s phone to contact Father. At trial, Mother 

produced copies of the text messages that she claimed she sent to Father. Certain messages 

indicated that they were sent by Mother, but others did not include a reference to Mother. 

In fact, multiple messages included plural nouns such as “we” or “us.” Mother explained 

that she sent the messages from the maternal grandmother’s phone and that the plural 

wording referred to her, the grandmother, and the maternal grandfather. Regardless, Father 

did not answer any of the purported efforts that Mother made after the petition was filed. 

When asked whether she left voice messages when Father did not answer, Mother stated 

that she “don’t like to” leave messages and that she would “rather just call and hope that 

he answers.”

Similar to Father not responding to Mother’s alleged calls and text messages after 

Petitioners filed their petition, Mother claimed that Father did not inform her of the 

children’s activities prior to the petition being filed. In particular, Mother asserted that 

Father did not provide Mother with information on the children’s sporting events, their 

medical appointments, or their education. However, Mother also admitted that she did not 

make efforts to contact the children’s school or their doctor’s office. Instead, she again 

claimed that she was unable to initiate the contact when she was addicted to drugs. Mother 

also claimed that Petitioners thwarted her attempts to contact the children by blocking her 

on social media. Based on her absence from the children’s lives, Mother admitted that 

reintroducing the children to her would be difficult. However, she stated that the bonds 

could be mended.

On August 10, 2020, the trial court entered a written order on the petition to 

terminate Mother’s parental rights. In its order, the trial court found that Petitioners 

sufficiently established abandonment for failure to visit as a ground to terminate Mother’s 

parental rights. The court agreed with the parties that the relevant aggregate four-month 

period under this ground was from September 24 to November 24, 2016, and January 20 

to March 20, 2017. The court noted that prior to trial, Mother had not seen the children 

since the fall of 2015, well beyond the four-month period. The court found that Mother’s 

attempts to contact the children, including her purported calls, text messages, and letters, 

did not occur during the relevant four-month time period. Although Petitioners also alleged 

that Mother failed to support the children during the statutory four-month period as a 
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ground for termination, the court concluded that Petitioners failed to establish this ground.2

Further, the trial court specifically found that Mother’s testimony was not credible 

on several issues. Specifically, the court concluded that Petitioners did not block or 

interfere with Mother having contact with the children. When discussing Mothers efforts 

to send text messages and phone calls, the court took issue with Mother’s testimony. In 

particular, the court stated that Mother had her own phone at the time several of the 

messages were sent and that at least one message was sent by the maternal grandmother,

despite Mother claiming that she sent the message.3 The court also noted that Mother 

admitted that she did not typically leave voice messages when she would attempt to call 

Father. Meaning, that if Mother was actually calling from the grandmother’s phone, Father 

would have no way of knowing that it was actually Mother calling.

Having found that abandonment by failure to visit was established as a ground for 

termination, the trial court also found that it was in the best interest of the children to 

terminate Mother’s parental rights. Accordingly, the trial court terminated Mother’s 

parental rights to the children.

Mother timely appealed.

II. ISSUES PRESENTED

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

1. Whether Petitioners established the requisite four-month period of Mother’s 

non-incarceration under Tennessee Code Annotated section 36-1-102(1)(A)(iv);

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

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

rights; and

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

parental rights.

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

 

2 Under the permanent parenting plan that was entered upon Mother and Father’s divorce, the 

parties agreed to waive Father’s child support obligation. The trial court determined that this relieved 

Mother of her obligation to provide child support. On appeal, Petitioners do not challenge the trial court’s 

finding on this ground.

3 The maternal grandmother also testified at the final hearing. When asked about the text messages 

that Mother claimed to have sent from her phone, the grandmother testified that she sent one of the 

messages.
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Mother’s parental rights and remand.

III. STANDARDS IN TERMINATION CASES

The Due Process Clauses in the federal and state constitutions recognize a parent’s 

fundamental right to the care and custody of his or her child. Troxel v. Granville, 530 U.S. 

57, 65 (2000); In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016). It is one of the 

oldest judicially recognized liberty interests. In re Carrington H., 483 S.W.3d at 521. 

Although it is a fundamental right, it is not absolute. Id. at 522; In re Audrey S., 182 S.W.3d 

838, 860 (Tenn. Ct. App. 2005).

A party seeking to terminate the parental rights of another must prove two elements. 

First, the petitioner must prove one of the statutory grounds for termination listed under 

Tennessee Code Annotated section 36-1-113(g). In re Kaliyah S., 455 S.W.3d 533, 552 

(Tenn. 2015). Second, the petitioner must prove that terminating the parent’s rights is in 

the best interest of the child. Id. “No civil action carries with it graver consequences than 

a petition to sever family ties irretrievably and forever.” In re Audrey S., 182 S.W.3d at 

860. Therefore, certain protections are afforded to the parent, including the petitioner being 

required to prove these elements by clear and convincing evidence. In re Carrington H., 

483 S.W.3d at 522; In re Kaliyah S., 455 S.W.3d at 552. Clear and convincing evidence 

“establishes that the truth of the facts asserted is highly probable and eliminates any serious 

or substantial doubt about the correctness of the conclusions drawn from the evidence.” In 

re Audrey S., 182 S.W.3d at 861 (citations omitted). It must “eliminate[] any serious or 

substantial doubt about the correctness of these factual findings.” In re Carrington H., 483 

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

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

that governs an appellate court’s review of a trial court’s determination in a parental 

termination proceeding.” In re Neveah M., 614 S.W.3d 659, 673 (Tenn. 2020) (citing In 

re Carrington H., 483 S.W.3d at 523-24). Pursuant to Rule 13(d), we review the trial 

court’s factual findings de novo with a presumption of correctness, unless the evidence 

preponderates otherwise. Id. at 674 (citing In re Carrington H., 483 S.W.3d at 524). 

Conclusions of law are also reviewed de novo but with no presumption of correctness. In 

re Carrington H., 483 S.W.3d at 524.

IV. DISCUSSION

A. Abandonment – Failure to Visit

In its order of termination, the trial court found that Mother abandoned the children 

under Tennessee Code Annotated sections 36-1-102(1)(A)(iv) and -113(g)(1). Mother 

argues that Petitioners erred by including her time in rehabilitation when calculating the 

four-month period under this ground. Mother also argues that Petitioners thwarted 
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Mother’s efforts to visit the children. Specifically, Mother claims that because her efforts 

were thwarted by Petitioners, any failure to visit was not willful.

As stated in Tennessee Code Annotated section 36-1-113(g)(1), “abandonment” can 

serve as a potential ground to terminate a parent’s parental rights. Section 36-1-102(1) 

provides several definitions for abandonment. Subsection (1)(A)(iv) provides several 

“mechanisms by which abandonment may be proven when the parent is incarcerated at or 

shortly before the filing of the termination petition.” In re Navada N., 498 S.W.3d 579, 

597 (Tenn. Ct. App. 2016). As relevant to this appeal, this definition of “abandonment” 

was present when:

A parent or guardian is incarcerated at the time of the institution of an action 

or proceeding to declare a child to be an abandoned child, or the parent or 

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

immediately preceding the institution of such action or proceeding, and . . .

has willfully failed to visit . . . for four (4) consecutive months immediately 

preceding such parent’s or guardian’s incarceration.

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2017).4 It is undisputed that Mother was 

incarcerated at the time Petitioners filed their petition to terminate Mother’s parental rights. 

Therefore, section 36-1-102(1)(A)(iv) applies for determining whether “abandonment” is 

present in this case.

For determining the applicable four-month period of abandonment, Tennessee Code 

Annotated section 36-1-102(1)(A)(iv) further states:

If the four-month period immediately preceding the institution of the action 

or the four-month period immediately preceding such parent’s incarceration 

is interrupted by a period or periods of incarceration, and there are not four 

(4) consecutive months without incarceration immediately preceding either 

event, a four-month period shall be created by aggregating the shorter periods 

of non[-]incarceration beginning with the most recent period of non[-

]incarceration prior to commencement of the action and moving back in time. 

Periods of incarceration of less than seven (7) days duration shall be counted 

as periods of non[-]incarceration.

In this case, Mother was incarcerated from November 24, 2016 to January 20, 2017 

and again from March 20, 2017 to January 19, 2018. The Petitioners’ termination petition 

 

4 The relevant portions of the Code that are cited herein are cited according to how they appeared 

when Petitioners initiated this case in October 2017. “Willfulness” is no longer a requirement of section 

36-1-102(1); instead, “[e]ffective July 1, 2018, our General Assembly amended [section] 36-1-102(1) to 

make the absence of willfulness an affirmative defense.” In re Arianna B., 618 S.W.3d 47, 62 (Tenn. Ct. 

App. 2020).
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was filed on October 20, 2017. Accordingly, Petitioners and Mother stipulated that the 

aggregate four-month period under section 36-1-102(1)(A)(iv) was from September 24 to 

November 24, 2016, and from January 20 to March 20, 2017. The trial court relied on this 

stipulated time period in reaching its conclusion that Mother abandoned the children for 

failing to visit.5

On appeal, Mother asserts that she was in a rehabilitation facility during a portion 

of the stipulated four-month period. Mother claimed that she was unable to contact the 

children while she was in the rehabilitation facility. Therefore, she argues that the period 

of time that she spent at the rehab facility “should not have been counted” in the fourmonth period for determining abandonment under section 36-1-102(1)(A)(iv). Mother 

gives no citation to support this assertion. The statute requires aggregation of periods of 

“nonincarceration.” In addition, the trial court did not find Mother’s testimony to be 

credible, and aside from her testimony, there was no proof that Mother was in a 

rehabilitation facility during the stipulated four-month period. The trial court also stated 

that there was no indication that Mother was prevented from contacting the children at any 

point during the stipulated four-month period. This finding is presumed correct. See Tenn. 

Rule App. P. 13(d); In re Neveah M., 614 S.W.3d at 674.

From our review, we agree with the trial court that there is no proof to indicate that 

Mother was restricted from contacting the children during the stipulated four-month period. 

Great weight is afforded to the trial court’s determination that Mother was not credible. 

See In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). Accordingly, we 

conclude that Mother was not restricted from contacting the children at any point during 

the stipulated four-month period.

The last time Mother saw either of the children was in the fall of 2015. Clearly, 

Mother’s most recent visit with the children was well beyond the stipulated four-month 

period. Mother testified at length on the phone calls, text messages, and cards that she sent 

to the children. However, all of the efforts that Mother testified to were made after the 

termination petition was filed rather than during the pre-filing four-month period. Anna 

testified that she received letters from Mother shortly after her parents divorced in June 

2014, but that she stopped receiving them after she returned them. Regardless, any letters 

that Anna may have received directly after the divorce would have occurred outside of the 

relevant four-month period. Therefore, evidence presented shows that Mother’s efforts to 

visit or contact the children took place beyond the four-month period of abandonment.

Mother also argues that her lack of visitation was not willful because Petitioners 

thwarted her efforts to contact the children. A parent willfully fails to visit a child when 

the parent “is aware of his or her duty to visit or support, has the capacity to do so, makes 

 

5 Mother does not argue that a four-month period prior to the date of the amended petition, February 

22, 2019, should apply.
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no attempt to do so, and has no justifiable excuse for not doing so.” In re Audrey S., 182 

S.W.3d at 864. A parent’s failure to visit “is not excused by another person’s conduct 

unless the conduct actually prevents the [parent] from performing his or her duty or 

amounts to a significant restraint of or interference with the parent’s efforts to support or 

develop a relationship with the child.” Id. (citations omitted). Stated differently, a “parent 

who attempts to visit and maintains a relationship with the child, but is ‘thwarted by the 

acts of others and circumstances beyond [her] control,’ cannot be found to have willfully 

abandoned the child.” In re Jaylah W., 486 S.W.3d 537, 551 (Tenn. Ct. App. 2015) 

(alteration in original) (quoting In re Adoption of A.M.H., 215 S.W.3d at 810).

Although Mother claims that Petitioners thwarted her efforts to contact the children, 

again, the trial court found that Mother was not credible on this issue. Instead, the court 

found that at no point did Petitioners thwart Mother’s supposed efforts to contact the 

children. We place great emphasis on the trial court’s credibility determination, see In re 

Adoption of A.M.H., 215 S.W.3d at 809, and the evidence does not preponderate against 

the court’s finding on this issue.

6

 Therefore, this finding is presumed correct. See Tenn. 

Rule App. P. 13(d); In re Neveah M., 614 S.W.3d at 674. Further, Mother was entitled to 

visitation with the children every other weekend under the permanent parenting plan that 

was entered upon the parties’ divorce. Despite being entitled to visitation, Mother did not 

seek to enforce her visitation until right after the termination petition was filed, beyond the 

four-month period under section 36-1-102(1)(A)(iv). See also Tenn. Code Ann. § 36-1-

102(1)(F) (“Abandonment may not be repented of by resuming visitation or support 

subsequent to the filing of any petition seeking to terminate parental or guardianship rights 

or seeking the adoption of a child.”). Mother’s explanation that she did not enforce her 

rights because she “felt like [she] couldn’t fight” as a drug addict is not a justifiable excuse 

for failing to visit. Mother was aware of her obligation to visit the children and was capable 

of visiting, but she simply decided not to seek visitation until after the termination petition 

was filed.

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

Mother abandoned the children under Tennessee Code Annotated sections 36-1-

102(1)(A)(iv) and -113(g)(1) by willfully failing to visit the children from September 24 

to November 24, 2016, and from January 20 to March 20, 2017.7

 

6 Although the maternal grandmother’s testimony verified some of Mother’s statements, the trial 

court clearly relied primarily on Petitioners’ testimony. We do not find a sufficient basis to disturb the trial 

court’s reliance.

7 Again, the parties stipulated that the aggregate four-month period of non-incarceration spanned 

from September 24 to November 24, 2016, and from January 20 to March 20, 2017. However, “the fourmonth period ‘immediately preceding’ [a] parent’s incarceration ends on the day before the actual date of 

incarceration.” In re Braxton M., 531 S.W.3d 708, 720 (Tenn. Ct. App. 2017). Meaning, because Mother 

left incarceration on January 20, 2017, and reentered incarceration on March 20, 2017, these days should 

not have been counted in the aggregated four-month period. Although the parties and the trial court made 

a slight miscalculation of the four-month period, because the trial court’s final order includes sufficient 
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B. Best Interests

Because we have concluded that Petitioners have established at least one ground to 

terminate Mother’s parental rights, we must now determine whether termination is in the 

best interest of the children. See In re Neveah M., 614 S.W.3d at 678. In making this best 

interest determination, we are instructed to consider the factors listed in Tennessee Code 

Annotated section 36-1-113(i).8 In re Carrington H., 483 S.W.3d at 523. The relevancy 

and weight that a court places on each factor depends on the unique facts of each case. In 

 

findings of fact on the correct four-month period, in this instance, the miscalculation is harmless. See, e.g., 

In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *5 (Tenn. Ct. App. July 22, 2020) 

(stating that “any error from the [trial court’s] use of the incorrect four-month period is harmless”); In re 

Braxton, 531 S.W.3d at 720 (stating that a one-day difference in the calculated four-month period “[did] 

not affect the outcome of [the] action”).

8 The factors listed in Tennessee Code Annotated section 36-1-113(i) are:

(1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, 

or conditions as to make it safe and in the child’s best interest to be in the home of the 

parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable 

efforts by available social services agencies for such duration of time that lasting 

adjustment does not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation or other contact with 

the child;

(4) Whether a meaningful relationship has otherwise been established between the parent 

or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to have on the 

child’s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent or guardian, 

has shown brutality, physical, sexual, emotional or psychological abuse, or neglect 

toward the child, or another child or adult in the family or household;

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

safe, whether there is criminal activity in the home, or whether there is such use of 

alcohol, controlled substances or controlled substance analogues as may render the 

parent or guardian consistently unable to care for the child in a safe and stable manner;

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

detrimental to the child or prevent the parent or guardian from effectively providing 

safe and stable care and supervision for the child; or

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

guidelines promulgated by the department pursuant to § 36-5-101.
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re Neveah M., 614 S.W.3d at 679. Each factor must be considered, but courts are not 

required “to find the existence of each factor before it concludes that terminating a parent’s 

rights is in the child’s best interest.” In re Matthew T., No. M2015-00486-COA-R3-PT, 

2016 WL 1621076, at *16 (Tenn. Ct. App. Apr. 20, 2016) (citing In re Dominique L.H., 

393 S.W.3d 710, 719 (Tenn. Ct. App. 2012)). If the best interests of the child and the 

parent conflict, courts must resolve the conflict in favor of the child. In re Navada N., 498 

S.W.3d at 607 (citing Tenn. Code Ann. § 36-1-101(d); White v. Moody, 171 S.W.3d 187,

194 (Tenn. Ct. App. 2004)).

Under factor (1), Mother argues that she has made a meaningful adjustment to her 

lifestyle as to make it safe for her to visit the children. She claims that she has not used 

drugs since March 2017—when she last entered incarceration—and that she has become a 

productive citizen by furthering her education, obtaining employment, and forgoing her 

criminal lifestyle. While Mother emphasizes that it is now safe for her to visit the children, 

the language of factor (1) focuses on whether the children would be safe in the parent’s 

home. See Tenn. Code Ann. § 36-1-113(i)(1). Although Mother has not incurred new drug 

charges since she was last incarcerated, she admitted that her previous attempts to attend a 

rehabilitation facility were not successful. Further, aside from her testimony, which the 

trial court found was not credible, there is no evidence that she has actually submitted and 

passed random drug screens since leaving incarceration. As a whole, we cannot say that 

Mother has made a sufficient adjustment to her conduct or conditions that would allow the 

children to safely be in Mother’s home.

There was no proof that a social services agency provided assistance to Mother. 

Therefore, factor (2) is not applicable.

Under factor (3), as we have discussed at length, Mother has failed to maintain 

regular contact or visitation with the children. We find it particularly striking that Mother 

did not attempt to enforce her visitation rights until after Petitioners filed the termination 

petition. Prior to the petition being filed, Mother made only token efforts to contact the 

children and committed several criminal acts. Factor (3) weighs in favor of termination.

It is clear that neither of the children have a meaningful relationship with Mother. 

Mother has not seen the children since the fall of 2015. Anna testified that because Mason 

was very young when he last saw Mother, she does not believe that he has a relationship 

with Mother. Although Anna does remember Mother, she testified that she does not want 

to have contact with her and, instead, wants to be adopted by Stepmother. Mother admitted 

that reintroducing her to Mason would “be rough” on Mason since they had not seen each

other in several years. In addition to Mother failing to contact or visit the children, she did 

not attend the children’s activities and did not inquire about their medical care or 

educational progress. In contrast to the nonexistent relationship between Mother and the 

children, Father and Stepmother appear to be well-bonded with the children. Petitioners 

provide a safe and nurturing home for the children. The children participate in sports and 
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other activities, have performed well in school, and refer to Stepmother as “Mom.” 

Disturbing the positive environment that has been provided for the children would not be 

in their best interests. Taken together, factors (4) and (5) weigh in favor of termination.

Anna testified that when she was last in Mother’s care, she found drug paraphernalia 

in Mother’s purse and under her bed. Additionally, in 2017, Mother pled guilty to 

purchasing drugs in the presence of a minor. Although the identity of the minor is unclear 

based upon the record, based on the neglect that Mother exhibited towards Anna when she 

was in her care, factor (6) weighs in favor of termination.

Although the maternal grandmother testified that Mother has lived in her home for 

several years, there is not sufficient evidence to make a finding on factor (7). Similarly, 

there was no proof presented regarding Mother’s mental or emotional state under factor 

(8).

Regarding support, Mother testified that she began collecting items for the children 

after she was released from incarceration. However, she has not provided those items to 

the children. Further, Mother did not provide support of any kind prior to the termination 

petition being filed. The absence of a child support order that required Mother to provide 

support is not a justifiable excuse for her lack of support. See In re Kaleb N.F., No. M2012-

00881-COA-R3-PT, 2013 WL 1087561, at *23 (Tenn. Ct. App. Mar. 12, 2013) (stating 

that every adult parent “is presumed to know that she has a duty to provide financial support 

for her child”). Factor (9) also weighs in favor of termination.

After considering the factors listed in Tennessee Code Annotated section 36-1-

113(i), we find that there is clear and convincing evidence to show that it is in the best 

interest of the children to terminate Mother’s parental rights.

C. “Less Restrictive Alternative”

Mother also claims that the trial court should have considered a “less restrictive 

alternative” to terminating her parental rights. In support of this argument, Mother cites 

Tennessee Code Annotated section 36-6-301, a visitation statute addressing custodial and 

noncustodial parents. This section is not at issue in this case, and its application is not a 

part of a court’s analysis when the court is presented with a petition to terminate a parent’s

parental rights. Mother’s suggestion that there is a “less restrictive alternative” to 

terminating her rights shows a misunderstanding of the applicable law. In termination 

cases, it is not the court’s role to find an alternative to termination or to find an outcome

that may appease both parties. The court’s role is to (1) determine whether the petitioner 

has properly established a ground for termination and (2) determine whether termination is 

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

S.W.3d at 552. If these elements are satisfied, then the court may terminate the parent’s 

rights. Section 36-1-113 does not include a “less restrictive alternative” avenue to 
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termination.

Because this issue is not applicable in this case, whether there was a “less restrictive 

alternative” to the termination of Mother’s parental rights shall not be discussed further 

herein.

V. CONCLUSION

We affirm the finding that there is clear and convincing evidence to support the 

ground of abandonment by an incarcerated parent for Mother’s failure to visit the children. 

We also affirm the trial court’s conclusion that it is in the best interest of the children to 

terminate Mother’s parental rights. Therefore, for the reasons stated herein, we affirm the 

trial court order terminating Mother’s parental rights to Anna and Mason.

This case is remanded to the trial court for such further proceedings as may be 

necessary and are consistent with this Opinion. Costs of this appeal are assessed against 

appellant, Meagan H., for which execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE