IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 2, 2018

IN RE PIPER B., ET AL.1

Appeal from the Chancery Court for Lawrence County

No. 16-17752 Stella L. Hargrove, Chancellor

___________________________________

No. M2017-00930-COA-R3-PT

___________________________________

A mother’s parental rights to her two daughters were terminated on the grounds of 

abandonment by failure to support; substantial noncompliance with permanency plans;

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

custody or financial responsibility for the children; and persistence of conditions. The 

court also found that termination was in the children’s best interest. The mother appeals. 

Upon our review, we hold that the evidence in the record does not support a finding that 

Mother willfully failed to abandon the children by her failure to pay support; in all other 

respects, we affirm the termination.

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

in Part and Affirmed in Part; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.

Teresa Brewer Campbell, Lawrenceburg, Tennessee, for the appellant, Brittany B.

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

Attorney General; for the appellee, Tennessee Department of Children’s Services.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

This appeal involves the termination of Brittany B.’s (“Mother”) rights to her 

 

1 This Court has a policy of protecting the identity of children in parental termination cases by initializing 

the last names of the parties.

08/17/2018
2

daughters Zoey B., born May 2008, and Piper B., born December 2011.

2

The children 

have different fathers whose rights were also terminated in this proceeding; they are not 

involved in this appeal.

3 Mother was arrested on January 25, 2014, for drug possession, 

and the Department of Children’s Services (“DCS”) filed a Petition to Transfer 

Temporary Legal Custody to Relatives and for Ex Parte Order on January 31, 2014. The 

petition alleged that the children were dependent and neglected due to their mother’s drug 

use and subsequent arrest. By order entered February 3, the Juvenile Court placed the

children in the home of relatives. DCS filed a Petition for Emergency Custody on

February 18, 2014, alleging that “[t]he home where the children were originally placed 

has notified Lawrence County DCS that they will not be able to care for children.” A

bench order entered February 27, 2014, removed the children from the home of the 

interim caregivers finding that one of the caregivers was in police custody due to a 

domestic violence incident, and placed the children in the custody of DCS. An order was 

filed on June 9, 2014, setting Mother’s child support at $205 per month. The children 

were adjudicated dependent and neglected by order entered on June 26, 2014.

Permanency plans were created in March 2014, November 2015, April 2016, and 

November 2016. These plans required Mother to, inter alia: pay support; maintain 

regular visitation; complete alcohol and drug assessments; resolve all pending legal 

charges and not incur any new charges; provide a safe and suitable home and allow DCS 

into the home for unannounced home visits; have a legal, stable income; complete a 

mental health assessment and follow all recommendations; continue therapy and provide 

certificate of completion of alcohol and drug program; not use illegal substances or abuse 

prescription medications; attend and complete domestic violence classes; and participate 

in family counseling.

Mother completed intensive outpatient drug rehab, and in August 2014, she filed a 

motion for a 30-day trial home visit; DCS filed a similar motion, seeking a 90-day trial 

home visit. The motion was granted and Mother’s child support obligations were 

suspended by order entered September 15, 2014. After a review hearing, the juvenile 

court entered an order on December 17, 2014, returning the children to the custody of 

their mother and “reliev[ing] [DCS] of any further obligations in this case.”

In April 2015, DCS received another referral about Mother’s drug use and 

investigated. The DCS investigator reported that Mother admitted to snorting Lortab and 

that Mother tested positive for multiple substances. Mother also had lacerations on her 

arms and stated that she did not want to live anymore. Mother was transported to an 

 

2 A third child, born August 2016, was placed with other caretakers and is not at issue in this case.

3 The fathers of both children were not present at the termination hearings. Richard D., father of Zoey B., 

surrendered his parental rights on January 6, 2017. James S., father of Piper B., was released from prison 

on October 30, 2016, and was aware of the hearing dates in January and February 2017; he has not 

appealed the termination of his parental rights. 
3

emergency room and admitted to a psychiatric hospital. On April 29, 2015, DCS filed a 

Petition to Transfer Temporary Legal Custody to Kin alleging drug abuse and suicidal 

threats by Mother. The petition sought to have the children adjudicated dependent and 

neglected. The Juvenile Court entered an order the same day, placing the children in the

custody of Pamela B., a family friend and relative of Zoey’s father. The children have 

been in the care of Pamela B. since that time. 

In an order entered July 9, 2015, the court wrote that both Mother and Richard D.

“waive[d] the adjudicatory hearing, agreeing the children are dependent and neglected as 

alleged in the Petition.” An adjudicatory hearing relating to Piper’s father, James S., was 

held in May 2016, and the court held that he was deemed to have waived the adjudicatory 

and dispositional hearings, based upon his being served process and receiving notice of 

the hearing but failing to appear. The court “reiterate[d] its adjudication of Piper [B.] as a 

dependent and neglected child.” The Order of Disposition filed August 17, 2015, found

that Mother has “made little progress in complying with the non-custodial permanency 

plan.” An order entered on April 6, 2016, set Mother’s child support obligation at $308 

plus $10 for arrearages each month.

On September 6, 2016, DCS filed a petition to terminate the parental rights of 

Mother and the children’s fathers. With respect to Mother, the petition alleged the 

following grounds for termination: abandonment by failure to support, substantial 

noncompliance with the permanency plan, failure to manifest ability and willingness 

personally to assume legal and physical custody or financial responsibility, and

persistence of the conditions that led to the children’s removal. The petition also alleged

that termination of Mother’s parental would be in the best interest of the children. 

A trial on the petition was held on January 10, 2017; January 11, 2017; and 

February 20, 2017, in the Chancery Court for Lawrence County. Testimony was 

provided by: Darkis Selman, an investigator with DCS who made initial contact with the 

family when DCS received a report of a drug-exposed child; Lt. Melinda Brewer of the 

Lawrence County Sherriff’s office who encountered the family during a welfare check in 

April 2015 and who observed drugs in the home and was told by the children about 

Mother’s drug activity and depression; Dawn Bradley, DCS supervisor who went to the 

home with Lt. Brewer in April 2015; Jake Beckman, Lawrenceburg Police Officer; 

William Jewett, Lawrenceburg Police Officer; Nicole Miller, a volunteer at the domestic 

violence shelter who taught the classes Mother attended until Mother was terminated 

from the program due to her number of absences; Erin Woo, a friend of Mother’s to 

whom Mother gave custody of her infant so Mother could go to rehab; Tiffany V[.], the 

children’s foster parent; Charity Brown, DCS supervisor at the time the children came 

into DCS custody; Jessica Yocum, a manager at the Dollar General store who caught 

Mother shoplifting on January 26, 2017; Kristen Gray, family services worker with DCS 

who took over on the case in July 2014 and again in August 2016; Jane Rich, the family 

services worker on this case from October 2015 through August 2016; and Mother.
4

The court entered a very detailed order terminating the parental rights of Mother 

on April 4, 2017. In the order, the court made adverse credibility findings with respect to 

much of Mother’s testimony. Mother’s parental rights were terminated on the grounds of 

abandonment by willful failure to support; substantial noncompliance with the 

permanency plans; failure to manifest ability and willingness personally to assume legal 

and physical custody or financial responsibility; persistence of conditions. The court also 

concluded that termination of Mother’s rights was in the children’s best interest. On the 

motion of DCS to amend the judgment to clarify the finding of abandonment by willful 

failure to support, an additional hearing was held on June 2, 2017. The court amended its 

findings relative to the ground of abandonment by failure to support by an order entered 

on June 21, 2017. 

Mother appeals the trial court’s decision, stating the following issues for our 

review:

I. Whether the trial court erred by terminating the parental rights of the 

mother by clear and convincing evidence on each issue of Abandonment for 

willful failure to support, substantial noncompliance with permanency 

plans; failure to manifest ability and willingness personally to assume legal 

and physical custody or financial responsibility and persistence of 

conditions?

II. Whether the finding of best interest of the children was sufficient 

when the potential adoptive parents have many issues that possibly should 

have removed children from their care such as lack of sufficient income, 

criminal activity and inappropriate parenting decisions?

II. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children. 

Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 

809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain 

circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of 

Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on 

termination of parental rights provide the only authority for a court to terminate a parent’s 

rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be 

terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-

113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 

620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one 

ground need be proved, so long as it is proved by clear and convincing evidence. In the 

Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
5

Because the decision to terminate parental rights affects fundamental 

constitutional rights and carries grave consequences, courts must apply a higher standard 

of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court 

may terminate a person’s parental rights only if (1) the existence of at least one statutory 

ground is proved by clear and convincing evidence and (2) it is shown, also by clear and 

convincing evidence that termination of the parent’s rights is in the best interest of the 

child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09; 

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of 

proof in these cases, a reviewing court must adapt the customary standard of review set 

forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 

2004). As to the court’s findings of fact, our review is de novo with a presumption of 

correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. 

App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court 

or as supported by the preponderance of the evidence, clearly and convincingly establish 

the elements” necessary to terminate parental rights. Id. In this regard, clear and 

convincing evidence is “evidence in which there is no serious or substantial doubt about 

the correctness of the conclusions drawn from the evidence” and which “produces a firm 

belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be 

established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal 

citations omitted). 

As this Court observed in In re M.A.R.:

Due to the gravity of their consequences, proceedings to terminate 

parental rights require individualized decision making. In re Swanson, 2 

S.W.3d 180, 188 (Tenn. 1999). To that end, we are mindful that in cases of 

this nature a significant portion of the proof presented at trial consists of 

testimonial evidence. As such, we must also take account of the following 

principle which guides our review of a trial court’s findings of fact:

Unlike appellate courts, trial courts are able to observe 

witnesses as they testify and to assess their demeanor, which 

best situates trial judges to evaluate witness credibility. See 

State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman 

v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991).

Thus, trial courts are in the most favorable position to resolve 

factual disputes hinging on credibility determinations. See 

Tenn–Tex Properties v. Brownell–Electro, Inc., 778 S.W.2d 

423, 425–26 (Tenn. 1989); Mitchell v. Archibald, 971 S.W.2d 

25, 29 (Tenn. Ct. App. 1998). Accordingly, appellate courts 

will not re-evaluate a trial judge’s assessment of witness 

credibility absent clear and convincing evidence to the 

contrary. See Humphrey v. David Witherspoon, Inc., 734 
6

S.W.2d 315, 315–16 (Tenn. 1987); Bingham v. Dyersburg 

Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978).

Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

183 S.W.3d 652, 661 (Tenn. Ct. App. 2005).

III. ANALYSIS

A. Abandonment by Willful Failure to Support

Tennessee Code Annotated section 36-1-113(g)(1) designates abandonment, as 

defined at section 36-1-102, as a ground for terminating parental rights. Section 36-1-

102 (1)(A)(i) defines abandonment for this purpose as follows:

For a period of four (4) consecutive months immediately preceding the 

filing of a proceeding or pleading to terminate the parental rights of the 

parent(s) or guardian(s) of the child who is the subject of the petition for 

termination of parental rights or adoption, that the parent(s) or guardian(s) 

either have willfully failed to visit or have willfully failed to support or 

have willfully failed to make reasonable payments toward the support of 

the child.

“All parents have a duty to support their children.” In re M.J.B., 140 S.W.3d 643, 655 

(Tenn. Ct. App. 2004); see also Tenn. Code Ann. § 34-1-102. A failure to support is 

“‘willful’ when a person is aware of his or her duty to visit or support, has the capacity to 

do so, makes no attempt to do so, and has no justifiable excuse for not doing so.” In re 

Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005). 

On June 9, 2014, the Juvenile Court of Lawrence County set Mother’s child 

support obligation at $205.00 per month; Mother’s support obligation was suspended in 

September 2014 when her trial home visit was granted. That obligation resumed when 

the children were removed from her home in April 2015. On April 6, 2016, an order was 

entered setting child support at $308.00 plus $10.00 for arrearages each month. 

The Petition for termination was filed on September 6, 2016, and thus the 

pertinent time period is May 6 through September 5, 2016. During this period, Mother 

made six total support payments: two per month in the months of May, June, and July.

These payments totaled $303.38. Though outside the relevant period, the record shows 

that Mother made two payments in July 2014 totaling $410.00, and in December 2016, 

made two additional support payments totaling $293.58. 
7

The Chancery Court’s amended order stated:

[A]lthough the Court does find Brittany B[.] did make some child support 

payments during the relevant four-month period, (as set forth in specific 

detail in the April 5, 2017, Order), the court expressly finds, by clear and 

convincing evidence, that Brittany B[.] willfully failed to make reasonable 

payments toward the support of the children under Tenn. Code Ann. 36-1-

102(1)(A)(i) given her financial ability to pay such support and, therefore, 

abandoned the children under Tenn. Code Ann. 36-1-113(g)(1).

Mother does not dispute that she failed to pay child support in the amount ordered 

during the relevant time period. She contends that she was unable to work at times 

during the relevant period due to breaking her foot and having a third child in August 

2016.

4

 Mother testified as follows:

Q. Well, let me back up. You didn’t pay child support in the month of in 

August and around that time -- July. When did you quit work? The baby 

was born August 1st. When did you quit work?

A. A month or two before that, before August.

Q. Were you put on any kind of medical leave on that?

A. Yes, because I was already dilated to 2.

Q. Did they tell you to take off work?

A. Yes, ma’am.

Q. Okay. All right. And you went back to work, was it about six weeks 

after the birth of your child?

A. Yes, ma’am.

Mother testified that she worked full time as a certified nursing assistant at a nursing 

home from August 2015 for “almost a year,” making $11.44 per hour. Mother testified 

that after she broke her foot, she was able to continue working there, on “light duty.” She 

stated that she was terminated “because of me being pregnant and having to be off work 

[to go to doctor’s appointments].” However, further examination and the admission of 

Mother’s separation notice showed that she was terminated because “‘Employee was no 

call, no show on 7/04, 7/05, and 7/06/16.’” Mother testified that in September 2016, she 

worked at the Fayetteville and Lawrence County fairs and made “like, $400-$500, if not 

maybe more” for working each, which she testified she spent on “diapers and stuff for the 

baby.” On cross examination, Mother stated that she had forgotten to pay child support.

 

4 Mother’s brief on appeal is largely unhelpful, as it contains few citations to the record and fails to cite to 

any proof of her foot injuries from which we could discern when the injuries occurred. Our independent 

review of the record reveals that Mother testified that she broke her foot “in the spring” when she was 

pregnant. The dates are not clear, but from this testimony and Mother’s testimony as a whole, we assume 

that she broke her foot at some point in the spring of 2016.
8

The evidence is clear that Mother knew of her support obligation, was able to 

work during a large portion of the relevant time period until she was terminated, and 

made some support payments while she was working at the nursing home. However, the 

amounts paid were below the amount she was ordered to pay. There is evidence in the 

record that Mother had some ability to work, attempted to pay support by making

payments that were more than just “token” support, and had only minimal living 

expenses due to living with friends and acquaintances. However, the proof of her broken 

foot and childbirth during the relevant time period do not leave us with the firm belief or 

conviction that she had the capacity to work throughout the pertinent period of time. We

therefore hold that the record does not contain clear and convincing evidence of Mother’s 

abandonment by failure to support, and reverse the trial court’s determination in this 

regard.

B. Substantial Noncompliance

A court is authorized to terminate parental rights when there is “substantial 

noncompliance by the parent or guardian with the statement of responsibilities in a 

permanency plan pursuant to the provisions of title 37, chapter 2, part 4.” Tenn. Code 

Ann. § 36-1-113(g)(2). In order to justify the termination of parental rights, the parent’s 

noncompliance must be “substantial.” In re S.H., No. M2007-01718-COA-R3-PT, 2008 

WL 1901118, at *7 (Tenn. Ct. App. Apr. 30, 2008). Expounding upon this requirement, 

the court in In re M.J.B. stated, 

Terminating parental rights based on Tenn. Code Ann. §36-1-113(g)(2) 

requires more proof than that a parent has not complied with every jot and 

tittle of the permanency plan. To succeed, the Department must 

demonstrate first that the requirements of the permanency plan are 

reasonable and related to remedying the conditions that caused the child to 

be removed from the parent’s custody in the first place, In re Valentine, 79 

S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App. 2003), 

and second that the parent’s noncompliance and the importance of the 

particular requirement that has not been met. In re Valentine, 79 S.W.3d at 

548-49; In re Z.J.S., [No. M2002-02235-COA-R3-JV,] 2003 WL 

21266854, at *12 [(Tenn. Ct. App. June 3, 2003)]. Trivial, minor, or 

technical deviations from the permanency plan’s requirements will not be 

deemed to amount to substantial noncompliance. In re Valentine, 79 

S.W.3d at 548; Department of Children’s Servs. v. C.L., No. M2001-02729-

COA-R3-JV, 2003 WL 22037399, at *18 (Tenn. Ct. App. Aug. 29, 2003) 

(No Tenn. R. App. P. 11 application filed).

140 S.W.3d at 656-57. Whether there has been substantial noncompliance with the 

requirements of the permanency plan is a question of law and is reviewed de novo with 

no presumption of correctness. In re R.L.F., 278 S.W.3d 305, 312 (Tenn. Ct. App. 2008), 
9

abrogated on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015) (citing In 

re Valentine, 79 S.W.3d at 546). Whether there has been substantial noncompliance with 

the requirements of the permanency plan is a question of law and is reviewed de novo

with no presumption of correctness. In re R.L.F., 278 S.W.3d 305, 312 (Tenn. Ct. App. 

2008), abrogated on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015) 

(citing In re Valentine, 79 S.W.3d at 546).

The permanency plan required Mother to: complete a mental health assessment 

and follow the recommendations; follow court orders regarding visitation; keep in touch 

with the Department; not associate with anyone on drugs or associated with drugs or 

illegal activity; continue an alcohol and drug program at Centerstone and provide proof 

of completion; submit to and pass random drug screens and pill counts; refrain from 

using illegal substances or abusing prescription medication; comply with probation; have 

a legal, stable income to support herself and the children and provide proof of 

employment; have a safe, suitable home for herself and the children; permit Department 

home inspections; attend domestic violence classes; complete parenting and family 

counseling; and sign releases of information so that the Department can get copies of 

provider reports. Mother’s requirements under the subsequent permanency plans 

remained essentially the same.

The order of termination states:

The Court finds that the requirements of the permanency plans are 

reasonable and related to remedying the conditions that caused the children 

to be removed. Further, the Court finds that [Mother’s] noncompliance is 

substantial in light of the degree of noncompliance and the importance of 

those requirements that has not been met, as hereinafter set out.

The Petition that led to the children’s removal was once again based 

upon the children’s exposure to [Mother’s] continuing drug use and her 

history of incarceration.

Beginning with the Permanency Plan developed November 10, 

2015, and the ones going forward, [Mother] failed to comply with the 

following requirements: she failed to substantially comply with courtordered child support; she failed to provide safe, suitable and stable housing 

for herself and the children; she failed to sign the proper releases relative to 

service providers; she failed to pass random drug screens; she failed to 

follow recommendations required by the mental health assessment; she

failed to timely provide information to DCS relative to mental health 

providers; she failed to maintain regular contact and follow up with DCS 

service providers; she failed to follow the rules of probation; she failed to 

stay clear of criminal charges and she failed to attend family counseling. 

The Court is skeptical of [Mother’s] explanation of how she has completed 

domestic violence classes.
10

The Court finds that [Mother] has a negative attitude toward DCS 

and blames DCS for her failure to better herself and regain custody of the 

children. She has refused to take advantage of services that could have been 

provided by DCS. The Court finds that [Mother] maintains a negative 

attitude toward addressing her drug addiction and mental health issues. The 

Court questions whether [Mother] has even truly addressed her drug 

addiction. She has drug charges pending. It is troubling to the Court that 

[Mother] says she “did” have an addiction to Lortab. The Court finds that 

she cannot see herself as a recovering addict.

The Court finds it problematic in determining whether [Mother] has 

complied with the permanency plans, in that (1) she made a unilateral 

decision in determining which out-patient treatment facility she wanted to 

attend, without any regard to in-patient options, (2) she refused to timely 

inform DCS of which treatment facility she was attending, and (3) she 

failed to timely execute appropriate releases of information to DCS 

concerning treatment.

For example, [Mother] decided to enter Buffalo Valley when her 

drug and alcohol detoxification and treatment was set up and approved by 

the Nashville Rescue Mission under a six months program. Instead she 

entered Buffalo Valley on October 17, 2016, and participated in three days 

of detoxification on October 20, 2016. Once placed in a half-way house she 

left against staff advice after only one day. Page 5 of Trial Exhibit No. 7, 

includes the following language under the section, Conditions and Reasons 

for Voluntary Discharge: “Prognosis is negative at time of discharge. (Ct) 

Client maintained a negative attitude throughout treatment, and appears to 

have a minimal desire for continued change as evidenced by her 

unwillingness to stay in treatment or accept suggestions given by PC in 

ways to cope with the stressors of daily living. Ct. left ASA and gained no 

insight into her destructive behaviors. Ct. did not allow herself time to 

develop coping skills to deal with daily stressors and emotions and she also 

refused the opportunity to gain insight into the need for follow up mental 

health.” “Ct. gained no insight into the disease of addiction and cooccurring disorders. Ct. did not have the opportunity to understand the 

relapse process and/or how to deal with triggers in her life.” “Ct. has no 

tools to continue with her recovery.” “Ct. was encouraged to follow up with 

mental health services to enhance her recovery efforts.”

[Mother] failed to notify DCS she had left the half-way house and 

that she went back to Centerstone. Therefore, DCS had no knowledge of 

where she was, and there was no timely release of information to DCS by 

Centerstone.

Another example is [Mother] manipulating the answers to an on-line 

drug and alcohol assessment (SASSI) by submitting answers based on a 

time frame she preferred (the day she actually took the test), rather than 
11

following the time frame mandated by the assessment (the past 6 months). 

This assessment took place just after [Mother] left the Buffalo Valley halfway house. Page 8 of Trial Exhibit No. 22 states: “The profile indicates that 

this client approached the assessment situation in a defensive manner. This 

may have led to an understatement of any substance use problems.”

The Court finds that DCS has carried its burden of proof as to this 

ground by clear and convincing evidence.

On appeal, Mother does not argue that the plans were not reasonably related to 

remedying the conditions which caused the children to be removed. Our review of the 

permanency plans and the record leads us to conclude, as did the trial court, that the 

requirements of the plans were reasonably related to remedying the conditions that 

caused the children to be removed from Mother’s home, particularly Mother’s drug use 

and mental health issues and the overall lack of safety and stability afforded the children 

while living in the home. 

Mother’s arguments on appeal focus on her belief that the record does not contain 

clear and convincing evidence that she was not in substantial compliance with the plans. 

She argues that she “was very close to finishing all her requirements in the permanency 

plan,” and cites to proof in the record that she went to Buffalo Valley for detox, attended

a domestic violence program, completed an alcohol and drug assessment and mental 

health intake, and completed individual therapy. 

We have examined the evidence cited by Mother and note that she did receive

some mental health and alcohol and drug treatment at Centerstone; however, Centerstone 

closed her case in July 2016 due to Mother’s failure to show up for 180 days. Mother’s 

stint at Buffalo Valley occurred after the petition for termination was filed; she went for 

five days in October 2016 and left that program against the staff’s advice. 

Ms. Gray, the family services worker who worked with the family during their 

initial encounter with DCS in 2014 and again in August 2016, testified that she received a 

certificate of completion for alcohol and drug treatment at Centerstone and for the 

Keystone Recovery program on behalf of Mother in December 2016; however, she 

explained that Mother was supposed to have eight individual and eighteen group therapy 

sessions as part of the Keystone program but Mother did not participate in the required 

number of sessions, so Ms. Gray was unsure how Mother had been issued a certificate of 

completion.

Additionally, Mother testified as follows:

Q. Now, would you agree in the family permanency plans, that you were 

required to complete domestic violence classes?

A. Yes, sir.
12

Q. And you remained with Richard [D.] all the way up until June, July, 

August of 2016; is that accurate?

A. Yes, sir.

Q. And yet in 2015, he had been or he was abusive to you; is that correct?

A. Yes, sir.

Q. And -- or started being abusive to you in 2015?

A. Yes, sir.

Q. And you remained with him in that home?

A. Yes, sir.

Q. And your prior relationship with James [S.], he had been physically 

abusive to you as well?

A. Yes, sir.

Q. Did you ever bring any charges of domestic violence or anything against 

him?

A. I tried to get an order of protection and stuff.

Q. What happened with that?

A. I don't remember.

Q. You don’t remember.

A. No, sir. Because that was like in 2010, I think.

Q. And then, of course, the latest incident of domestic violence was with 

Tony L[.]?

A. Yes, sir.

Q. Which was in December -- less than a month ago, in December?

A. No, it was in November.

Q. I'm sorry, November. So about two months ago?

A. Yes, sir.

Q. And is it fair to say that was an abusive relationship?

A. Yes, sir.

Further, Kristen Gray, the Family Services Worker, and Nicole Miller, the 

domestic violence shelter volunteer and teacher, testified that Mother did not complete 

the domestic violence classes and was terminated due to her absences. Ms. Gray also 

testified that Mother had a mental health assessment with a private practice therapist in

March of 2016, but did not attend the therapy sessions regularly. 

Though Mother testified at trial that she is sober, the trial court questioned the 

authenticity of her sobriety. Mother admitted to abusing prescription drugs in October 

2016 and incurring drug-related criminal charges in December 2016. Additionally, she

was evicted from her apartment at the time of the January trial dates and charged with 

and pled guilty to shoplifting on February 13, during the pendency of the trial. 

From the evidence in the record, it is clear that, throughout these proceedings, 

Mother has continued to live and interact with abusive men and did not have stable 
13

housing. Mother has not established a safe and healthy home for her children and has 

failed to adequately address her mental health issues. The evidence clearly and 

convincingly shows that Mother has not been substantially compliant with the 

requirements of the permanency plans. Accordingly, we affirm the trial court’s holding 

in this regard.

C. Failure to Manifest an Ability and Willingness Personally to Assume Legal 

and Physical Custody or Financial Responsibility

Tennessee Code Annotated section 36-1-113(g)(14) provides:

A legal parent or guardian has failed to manifest, by act or omission, an 

ability and willingness to personally assume legal and physical custody or 

financial responsibility of the child, and placing the child in the person’s 

legal and physical custody would pose a risk of substantial harm to the 

physical or psychological welfare of the child.

This ground requires DCS to prove two elements by clear and convincing

evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, DCS must prove that Mother 

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

custody or financial responsibility of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). 

Then, DCS must prove that placing the children in Mother’s “legal and physical custody 

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

child[ren].” Id. This Court has observed the following regarding the statute’s requirement 

of “substantial harm”:

The courts have not undertaken to define the circumstances that pose a risk 

of substantial harm to a child. These circumstances are not amenable to 

precise definition because of the variability of human conduct. However, 

the use of the modifier “substantial” indicates two things. First, it connotes 

a real hazard or danger that is not minor, trivial, or insignificant. Second, it 

indicates that the harm must be more than a theoretical possibility. While 

the harm need not be inevitable, it must be sufficiently probable to prompt a 

reasonable person to believe that the harm will occur more likely than not.

Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted).

The order of termination of Mother’s parental rights states that:

[Mother] has failed to substantially comply with child support obligations; 

she has not maintained safe and stable housing; she refuses to keep DCS 

abreast of her living situation; she continues to incur criminal charges and 

in fact, has criminal charges pending; she has not provided any 
14

documentation of compliance with family counseling; and she has refused 

to timely provide information relative to mental health counseling and 

domestic violence classes.

At the last hearing the Court was concerned to learn that [Mother] is 

once again living with an elderly man who in the past has accused her of 

stealing his Lortab.

The Court finds that DCS has carried its burden of proof as to this 

ground by clear and convincing evidence.

Mother’s brief does not specifically address the ground of her failure to manifest 

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

responsibility of the children. DCS argues as follows in its brief:

Mother lacked the ability to assume custody of the children because she had 

not demonstrated residential stability, had untreated mental-health and drug 

issues, and had pending criminal charges. Indeed, Mother was evicted from 

her home in between trial dates and had resumed living with Mr. J[.], from 

whom she had stolen Lortab. Mother also failed to attend mental-health 

treatment and had pending drug-related criminal charges stemming from a 

December 2016 incident. Mother pled guilty to shoplifting charges in 

February 2017, stemming from her actions in August 2015, because she 

failed to pay court costs or make restitution to Wal-Mart; she was placed on 

probation. Such a display of indifference for her actions by Mother 

demonstrates an unwillingness to assume custody of the children. 

(Citations to the record omitted.)

The evidence at trial established that Mother continued to incur criminal charges

throughout DCS’s involvement, continued to associate with abusive men, did not 

complete the domestic violence class, and has struggled to maintain a stable home or job.

Also, Mother has mental health issues for which she has not completed treatment.

Accordingly, the evidence supports the conclusion that Mother has failed to manifest an 

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

responsibility of the children.

The testimony also makes clear that Mother’s failure to fully address her drug 

addiction, mental illness, and domestic violence issues through therapy, all of which

create a substantial hazard or risk of danger to the children’s welfare that is not minor, 

trivial, or insignificant. 

The evidence is clear and convincing that Mother has not manifested an ability 

and willingness to personally assume legal and physical custody or financial 
15

responsibility of the children; accordingly, we affirm the trial court’s holding in this 

regard.

D. Persistence of Conditions

Parental rights may be terminated on the basis of “persistence of conditions” as 

defined by Tenn. Code Ann. § 36-1-113(g)(3)(A) when:

The child has been removed from the home of the parent or guardian by 

order of a court for a period of six (6) months and:

(A) The conditions that led to the child’s removal or other conditions that in 

all reasonable probability would cause the child to be subjected to further 

abuse or neglect and that, therefore, prevent the child’s safe return to the 

care of the parent(s) or guardian(s), still persist;

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

early date so that the child can be safely returned to the parent(s) or 

guardian(s) in the near future; and

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

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

and permanent home;

A termination proceeding based on the persistence of conditions ground requires a 

finding by clear and convincing evidence of all three statutory factors. In re Valentine, 79 

S.W.3d at 549.

Pertinent to this ground is the testimony of Darkis Selman, Melinda Brewer, and 

Dawn Bradley.

Darkis Selman, DCS child protective services investigator, testified that when 

DCS a received a referral in January 2014 for the children’s exposure to drugs, Mother 

tested positive for methamphetamine, amphetamine, benzodiazepine, and THC. Ms. 

Selman testified that the children were placed in custody of relatives in January 2014 and 

returned to Mother in December 2014. A second referral for drug exposed children was 

received in April 2015; during an interview, Zoey explained to Ms. Selman how Mother 

crushed pills and used a straw to take them through her nose.

Melinda Brewer, a lieutenant with the Lawrence County Sheriff’s Office, testified 

that she was requested by DCS to make a welfare check at Mother’s home in April 2015. 

During that visit, she testified that the house was “very cluttered”; that there was a “small 

tooter straw” lying on the bed, a cellophane wrapper with white powder, and an empty 
16

prescription pill bottle; and that the dates and quantity number on the bottle reflected 

improper usage. Additionally, Lt. Brewer stated that Mother was “in a depressed state” 

and commented that she was going to harm herself. 

Dawn Bradley, DCS child protective services supervisor, testified that she went to 

the home with Lt. Brewer in April 2015 due to the referral for drug-exposed children. 

Ms. Bradley testified that that Mother’s behavior was erratic, that Mother could not stay 

on the subject, and that getting answers from Mother was a “long process.” Mother 

consented to a drug screen and tested positive for amphetamine, benzodiazepine, 

methamphetamine, and opiates. She testified that Mother was taken to the hospital and 

eventually admitted to the psychiatric hospital, Rolling Hills. Ms. Bradley also testified 

that in September 2016, DCS received another referral a drug exposure and medical 

maltreatment of a child who is not at issue in this proceeding. However, pertinent to this 

proceeding is Ms. Bradley’s testimony that in September 2016, Mother tested positive for 

benzodiazepine, methamphetamine, Oxycodone, and opiates. Mother attended drug and 

alcohol treatment at Buffalo Valley but left, against staff advice, after three days saying 

that it was “too chaotic” and refused an opportunity for follow-up mental health 

treatment. Ms. Bradley read the discharge notes relating to Mother’s stay at Buffalo 

Valley into the record, which stated that:

[Mother] maintained a negative attitude throughout treatment and appears 

to have a minimal desire for continued change, as evidenced by her 

unwillingness to stay in treatment or accept suggestions given by team 

meetings in ways to cope with the stressors of daily living. Client left ASA 

and gained no insight into her destructive behaviors. . . She also refused the 

opportunity to gain insight into the need for follow-up mental health.

From the record in this case, it is clear that Zoey and Piper were removed from the 

home in January 2014 due to Mother’s drug use. They were subsequently adjudicated

dependent and neglected, a finding which has not been appealed. The children began a 

trial home visit in September 2014, but due to Mother’s continued drug use and suicidal 

threats, the children were taken into protective custody, again adjudicated dependent and 

neglected, and placed with a caregiver in April 2015, where they remain. At all times 

during DCS’s involvement with this family, the testimony established that Mother has 

not had a stable living situation, has continued to involve herself in abusive relationships,

and has chosen not to fully address her drug addiction and mental health issues. The 

proof establishes the conditions which led to the children’s removal still persist and there 

was little likelihood that they would be remedied soon. Meanwhile, the testimony of the 

foster parent established that the children are happy and healthy in the foster home. 

Accordingly, we affirm the trial court’s conclusion that the proof clearly and 

convincingly established this ground for termination.5

 

5

In its order entered in April 2017 the court stated:
17

E. Best Interest

Once a ground for termination has been proven by clear and convincing evidence, 

the trial court must then determine whether it is in the best interest of the child for the 

parent’s rights to be terminated, again using the clear and convincing evidence standard. 

In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of factors at 

Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the 

child’s best interest.6 The list of factors in the statute “is not exhaustive, and the statute 

 

[Mother] continues to live place to place; she has moved again within the past thirty days; 

she is a victim of domestic violence on a repeated basis; she admits the children were 

present when domestic violence was occurring in the homes where she and the children 

were living; the record reveals a third referral to DCS in October of 2016, once again 

indicating a drug-exposed child, Coan; she continues to incur criminal charges; and she 

refuses to address her drug addiction and mental health issues, except on her terms. The 

Court finds that the conditions leading once again to the children’s removal will most 

likely, be the same conditions that persist today. [Mother’s] actions reveal she does not 

want the help of DCS in providing treatment, counseling, or other services. History 

reveals that [Mother] has appointed herself to be the one to choose providers of drug 

treatment and mental health treatment. That is, if she so desires. She will be the one who 

determines and dictates the conditions under which she might participate. The Court finds 

that [Mother] has never truly addressed her drug addiction.

The Court finds that DCS has carried its burden of proof as to this ground by 

clear and convincing evidence.

6 The factors at Tennessee Code Annotated section 36-1-113(i) are:

In determining whether termination of parental or guardianship rights is in the best 

interest of the child pursuant to this part, the court shall consider, but is not limited to, the 

following:

(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
18

does not require every factor to appear before a court can find that termination is in a 

child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing 

Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 

970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-

PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue,

we are also mindful of the following instruction in White v. Moody: 

[A]scertaining a child’s best interests in a termination proceeding is a factintensive inquiry requiring the courts to weigh the evidence regarding the 

statutory factors, as well as any other relevant factors, to determine whether 

irrevocably severing the relationship between the parent and the child is in 

the child’s best interests. The child’s best interests must be viewed from 

the child’s, rather than the parent’s, perspective. 

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted). 

Pertinent to this determination, the order stated:

All statutory provisions weigh in favor of termination of [Mother’s] 

parental rights. She has failed to make an adjustment of conduct or 

conditions as to make it safe and in the children’s best interest to be in a 

home with her. She has moved multiple times to multiple places. As early 

as thirty days prior to the final hearing herein, she moved once again into 

the home of the person she calls “uncle,” the same disabled person who in 

the past accused her of stealing his Lortab. [Mother] admitted that the 

children have been present in her home when physical abuse has occurred. 

Still she repeatedly brings men into her children’s lives who not only abuse 

her, but do drugs with her.

[Mother] has ignored and refused to accept help from available 

social services offered by DCS. She 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.

There is a relationship and bond between the children and [Mother]. 

Once visitation was set up, [Mother] did visit with the children. However, 

 

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.
19

her conduct led to the reinstatement of supervised, therapeutic visitation, as 

set out herein.

The Court finds that a change of caretakers and physical 

environment, especially a different physical environment, is likely to have a 

devastating effect on the children’s emotional and psychological 

conditions. It is unknown where [Mother] will live next, and with whom. 

Moreover, it is unknown when and with whom, [Mother] will next choose 

to move in with.

[Mother] testified she previously lived with “Uncle” Don J[.] for 

some one to two months. She has landed there once again for some thirty 

days. [Mother] has moved so many times, and for such short durations, it 

has proved difficult for DCS to check out the physical environments of her 

residences. The Court does not know if the home of Mr. J[.] is healthy and 

safe. The Court knows that Mr. J[.] is 68 years old and disabled. Mr. J[.] 

has a prescription for Lortab, [Mother’s] drug of choice. The Court does not 

believe [Mother’s] denial of stealing Mr. J[.]’s Lortab in the past.

The Court finds that [Mother] has not truly addressed her drug 

addiction. Indeed, she has pending drug charges of simple possession of 

Lortab. She has pending charges of possession of drug paraphernalia and 

tampering with evidence, to-wit: the destruction of a glass pipe used for 

ingesting drugs. [Mother] was arrested on these charges just three months 

ago, on December 7, 2016.

Ms. [B.] and Ms. [V.] are not perfect; however, they have provided a 

safe, stable and nurturing home for the children since April of 2015. It is 

time for the children to have some permanency in their lives.

The Court finds that Petitioner has carried its burden of proof by 

clear and convincing evidence, and finds that termination of the parental 

rights of [Mother] is overwhelming[ly] in the best interest of the children.

These findings relate to factors (1), (2), (3), (4), (5), (7), (8), and (9). From our 

review of the record, we conclude that the trial court’s findings are supported by clear

and convincing evidence. 

On appeal, Mother does not challenge any specific finding of the court relating to 

the children’s best interest. She concedes that she has not made a lasting adjustment to 

her circumstances, which relates to factors (1) and (2), but argues that she has made 

“significant steps in the right direction . . . and might be able to make a lasting adjustment 

in the near future.”7 Her arguments on appeal relating to the children’s best interest focus 

 

7

In the section of her brief discussing the grounds for termination, Mother appears to vaguely question 

the efforts of DCS, which is pertinent to factor (2) of the factors to be considered in the best interest 

determination, but she does not explicitly argue that the efforts were not reasonable. Mother’s brief 

states:
20

on the foster mother and her adult daughter who lives in the home and who also cares for 

the children. Mother takes issue with a shoplifting charge both women received that was 

dismissed and the home in which they live; in support of her arguments, she cites to only 

three pages of testimony out of a voluminous record. We have reviewed that testimony 

and conclude that it does not preponderate against the court’s conclusion that the foster 

parents “are not perfect”; however, we are not persuaded that the dismissed shoplifting 

charges or a small home outweigh the safety and stability the children have found in that 

home.

Viewing the evidence bearing on best interest from the viewpoint of the children, 

it is clear that Mother has not made a lasting adjustment in her circumstance, despite the 

reasonable efforts of DCS, such that it is in the children’s best interest to live with 

Mother. Mother has not completed the recommended inpatient drug therapy, mental 

health therapy, or domestic violence classes, and shows no clear pathway to consistent 

and lasting improvement. 

Factor (3) requires us to consider whether Mother visited the children. The record 

establishes that Mother did visit the children, and, according to the foster parent who 

testified, that “the girls always ask when is their next visit.” However, the record also 

shows that Mother’s visitation was changed from supervised to unsupervised in June 

2016 due to Mother’s behavior, which upset the children when she mistreated a puppy. 

Further, the foster parent testified that Mother made promises to bring the children 

cupcakes, which the girls were “extremely excited” about, as well as a computer tablet at 

a visit that was to take place around Christmastime. Mother came to the visit with only 

lip balm and lunch for the girls. 

 

Mother was completing the individual therapy with Michelle Reese but DCS 

caseworker was unaware since she had not obtained the records or reports. [Citation to 

the record omitted.] Mother called DCS and kept in touch with her caseworker even at 

times she did not have minutes on her phone. The DCS caseworker admitted that she did 

not know what the Mother had accomplished. She said she went to the home of the 

Mother to do a walk-through on the home even though she had just seen the mother

leaving the residence and the mother had reported she lived alone. [Citation to the record 

omitted.] DCS caseworker Christian Slater [sic] did not talk to the mother by phone, she 

only left messages on voicemail. [Citation to the record omitted.] The caseworker 

reported she had never helped the Mother reunite with her children except for giving her

a resource guide and answer the Mother’s questions. [Citation to the record omitted.]

The record contains evidence that DCS provided Mother with resource material to assist her in 

completing the requirements of the permanency plan, including low income housing options and gas 

cards. Family Services Worker, Kristen Gray, testified that she knew that Mother did not have 

transportation; however, Mother told Ms. Gray that she had “friends and other people that were helping 

her from getting from place to place.” From our review of the record, we find that DCS made reasonable 

efforts in this case.
21

With respect to factor (4), whether a meaningful relationship has been established 

between the children and Mother, testimony in the record shows that the children knew 

who their Mother was, had a meaningful relationship with her, and looked forward to 

seeing her or talking to her during visits. 

With respect to factor (5), the record establishes that since April 2015, Zoey and 

Piper have been living in a safe and stable home with the current caregivers, Pamela B. 

and her daughter, Tiffany V., as well as Ms. V’s husband and son. The record supports a 

conclusion that both children are happy, healthy, and are doing well in school and 

socially. 

With respect to the physical environment of Mother’s home and her mental and 

emotional status, factors (7) and (8), Mother testified that she incurred a drug related 

charge in December 2016 and shoplifting charges in between the dates of the trial. 

Mother’s living situation is precarious, and it appears from the testimony that her drug 

addictions and her mental health issues still require intensive work on her part, such that 

she is unable to provide safe and stable care and supervision for the children. 

Regarding factor (9), Mother did not pay child support in accordance with the 

guidelines, though she did contribute some when she was employed and able to do so. 

In light of the evidence as a whole, we conclude that termination of Mother’s 

rights is in the children’s best interest.

III. CONCLUSION

For the foregoing reasons, we reverse the trial court’s termination of Mother’s 

rights on the ground of abandonment by willful failure to support; in all other respects the 

judgment is affirmed. 

RICHARD H. DINKINS, JUDGE