IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 1, 2016

IN RE YARIEL S., ET AL.

1

Appeal from the Juvenile Court for Knox County

No. 78279 Timothy E. Irwin, Judge

No. E2016-00937-COA-R3-PT-FILED-JANUARY 6, 2017

This appeal involves the termination of a mother‟s parental rights to her four minor

children. Following a bench trial, the trial court found that clear and convincing evidence 

existed to support the termination of her rights to all four children on the statutory 

grounds of abandonment for failure to provide a suitable home, the persistence of 

conditions which led to removal, and substantial noncompliance with the requirements of 

the permanency plan. The court also found that clear and convincing evidence existed to 

support the termination of her rights to the youngest child on the statutory ground of 

severe child abuse. The court further found that termination was in the best interest of 

the children. The mother appeals. We reverse the trial court on its finding of 

abandonment for failure to provide a suitable home. On all other findings, we affirm the 

trial court‟s rulings.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.

CLEMENT, P.J., M.S., and KENNY ARMSTRONG, J., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Kayla N. S.

Herbert H. Slatery, III, Attorney General and Reporter, and W. Derek Green, Assistant 

Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department 

of Children‟s Services.

 

1

This court has a policy of protecting the identity of children in parental rights termination cases by 

initializing the last name of the parties. 
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OPINION

I. BACKGROUND

Yariel S., Yaron S., Yariyana L., and YariAsia L. were born out of wedlock to 

Kayla N. S. (“Mother”) and Yaron D. L. (“Father”) in July 2011, January 2010, February 

2013, and December 2014, respectively. Father was not listed on Yariel or Yaron‟s birth 

certificate; however, he held himself out in the community as the father. Mother also 

confirmed his identity as the father. The Tennessee Department of Children‟s Services 

(“DCS”) first met with Mother after she tested positive for benzodiazepines and 

marijuana while pregnant with YariAsia in October 2014. Despite Mother‟s drug use 

while pregnant, both YariAsia and Mother were negative for drugs on the day of 

YariAsia‟s birth. At that time, Mother and Father (collectively “the Parents”) agreed to 

cooperate with services and receive treatment for substance abuse. 

Thereafter, Mother self-reported drug use in January 2015 and tested positive for 

drug use in February, March, and June 2015. While at a child and family team meeting 

in May 2015, Mother agreed to attend an appointment at a drug treatment center the next 

day. Mother failed to attend the scheduled appointment. DCS petitioned for temporary 

legal custody of the Children on June 4, 2015. The Children were removed and placed 

into foster care, where they have remained since that time. They were later adjudicated 

as dependent and neglected by agreed order due to Mother‟s substance abuse issues and 

mental health issues, Father‟s substance abuse issues, and the Parents‟ failure to provide

appropriate care and supervision of the Children. 

An initial permanency plan, dated June 25, 2015, was crafted by DCS without 

Mother‟s participation. Mother, who refused to discuss the requirements or sign the plan, 

was given a copy of the plan. Pursuant to the plan, Mother was required to (1) complete 

a mental health assessment and follow recommendations; (2) complete an alcohol and 

drug assessment, follow recommendations, and submit to drug screens; (3) obtain and 

maintain suitable housing free from environmental hazards, domestic violence, drug 

abuse, or other risks; (4) maintain regular visitation; (5) participate in parent education 

through therapeutic visitation; (6) obtain and maintain a legal source of income; (7) remit 

child support; and (8) maintain contact with DCS. Mother later signed a Criteria and 

Procedure for Termination of Parental Rights on July 10, 2015, indicating that she had 

received a copy of the form and had been given an explanation of its contents. 

On March 15, 2016, DCS sought termination of Mother‟s parental rights to the 

Children based upon the following grounds: (1) abandonment for failure to provide a 

suitable home; (2) the persistence of conditions which led to removal; and (3) substantial 
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noncompliance with the requirements of the permanency plans. DCS also pursued 

termination of Mother‟s parental rights to YariAsia on the additional statutory ground of 

severe child abuse. DCS claimed that termination of Mother‟s rights was in the best 

interest of the Children.2 The hearing on the termination petition was held on May 3, 

2016. Mother failed to appear or defend her rights through counsel, despite receiving 

notice of the hearing. 

Sarah Brock testified that DCS became involved when Mother tested positive for 

drugs and admitted drug use while pregnant with YariAsia in October 2014. She 

provided that Mother was referred to CenterPointe for drug treatment and completed the 

program in November 2014. She stated that Mother agreed to complete several 

requirements set forth in a non-custodial permanency plan but that the Children were 

later removed based upon her non-compliance and failure of several drug screens. 

Ms. Brock provided that she was not appointed as the case manager for the 

Children until they were removed in June 2015. She recalled that Mother completed 

mental health and alcohol and drug assessments on September 8, 2015, but failed to 

follow the recommendations from the assessments. She provided that Mother failed to 

attend an intensive outpatient treatment program and later tested positive for marijuana 

and oxycodone on September 28, 2015, and morphine on October 12, 2015. She 

completed several referrals for treatment for Mother and reminded her to call the 

different facilities, but Mother failed to attend as agreed. She even arranged 

transportation after Mother indicated that transportation was a barrier to her cooperation. 

Ms. Brock claimed that Mother appeared intoxicated during visitation and at 

meetings. She noted that Mother visited regularly through December 2015 but had not 

attended a visitation since February 3, 2016. She believed that Mother currently lived 

with her grandfather in an unstable living situation. She recalled meeting Mother‟s 

grandfather during an unannounced visit on December 9, 2015. She described him as 

“agitated” and “angry” and stated that he slurred his words, was unsteady on his feet, and 

opened a beer while speaking with her and her team leader. She provided that he also 

threatened to get a gun and kill Father because he wanted him out of the house. She 

claimed that Mother had not updated her address or given any indication that she moved 

from grandfather‟s house since that time. She asserted that Mother also never identified 

any source of income and failed to maintain contact with her. 

Ms. Brock testified that the Children were doing well and had been placed 

together in an adoptive home. Foster Father confirmed his desire to adopt the Children 

should they become available. He claimed that the Children had adjusted well. 

 

2DCS also sought termination of Father‟s parental rights. His rights are not at issue in this appeal. 
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Following the hearing, the trial court found clear and convincing evidence to 

support termination of Mother‟s parental rights to the Children based upon her

abandonment for failure to provide a suitable home, the persistence of conditions which 

led to removal, and her substantial noncompliance with the requirements of the 

permanency plan. The court also found clear and convincing evidence to support 

termination of Mother‟s parental rights to YariAsia based upon a finding of severe child 

abuse. The court further found clear and convincing evidence that termination of 

Mother‟s parental rights was in the best interest of the Children. This appeal followed. 

II. ISSUES

We consolidate and restate the issues raised on appeal as follows: 

A. Whether reversal of the trial court‟s judgment is required for lack of 

personal jurisdiction.

B. Whether reversal of the trial court‟s judgment is required because 

the court failed to appoint counsel on Mother‟s behalf. 

C. Whether the trial court erred by failing to comply with the 

procedural rules for entry of a default judgment. 

D. Whether clear and convincing evidence supports the court‟s finding 

of statutory grounds in support of its termination decision. 

E. Whether clear and convincing evidence supports the court‟s finding 

that termination was in the best interest of the Children pursuant to 

Tennessee Code Annotated section 36-1-113(i).

III. STANDARD OF REVIEW

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

Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. 

App. 1988). This right “is among the oldest of the judicially recognized liberty interests 

protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 

140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person‟s rights as a 

parent is a grave and final decision, irrevocably altering the lives of the parent and child 

involved and „severing forever all legal rights and obligations‟ of the parent.” Means v. 

Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-

113(I)(1)). “„[F]ew consequences of judicial action are so grave as the severance of 
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natural family ties.‟” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. 

Kramer, 455 U.S. 745, 787 (1982)).

While parental rights are superior to the claims of other persons and the 

government, they are not absolute and may be terminated upon appropriate statutory 

grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process 

requires clear and convincing evidence of the existence of the grounds for termination of 

the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent‟s rights may be 

terminated only upon

(1) [a] finding by the court by clear and convincing evidence that the 

grounds for termination of parental or guardianship rights have been 

established; and

(2) [t]hat termination of the parent‟s or guardian‟s rights is in the best 

interest [] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing 

evidence proves not only that statutory grounds exist [for the termination] but also that 

termination is in the child‟s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 

2002). The existence of at least one statutory basis for termination of parental rights will 

support the trial court‟s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 

473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 

838 (Tenn. Ct. App. 2005).

The heightened burden of proof in parental termination cases minimizes the risk of 

erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620, 

622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence 

standard establishes that the truth of the facts asserted is highly probable. State v. 

Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. 

Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the 

correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 

546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 

919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder‟s mind a firm belief or 

conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 

S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 

2001); In re C.W.W., 37 S.W.3d at 474.

In 2016, the Tennessee Supreme Court provided guidance to this court in 

reviewing cases involving the termination of parental rights:
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An appellate court reviews a trial court‟s findings of fact in termination 

proceedings using the standard of review in Tenn. R. App. P. 13(d). Under 

Rule 13(d), appellate courts review factual findings de novo on the record 

and accord these findings a presumption of correctness unless the evidence 

preponderates otherwise. In light of the heightened burden of proof in 

termination proceedings, however, the reviewing court must make its own 

determination as to whether the facts, either as found by the trial court or as 

supported by a preponderance of the evidence, amount to clear and 

convincing evidence of the elements necessary to terminate parental rights. 

The trial court‟s ruling that the evidence sufficiently supports termination 

of parental rights is a conclusion of law, which appellate courts review de 

novo with no presumption of correctness. Additionally, all other questions 

of law in parental termination appeals, as in other appeals, are reviewed de 

novo with no presumption of correctness. 

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

IV. DISCUSSION

A.

Mother argues that the service of process afforded in this case is deficient because 

the printed name of the process server is illegible. She further notes that she did not 

receive a copy of the notice until April 27, 2016, six days prior to the hearing. DCS 

responds that service of process was provided on March 26, 2016, as evidenced by the 

return. 

“Service of process in termination of parental rights cases in chancery and circuit 

courts is accomplished pursuant to the Tennessee Rules of Civil Procedure and state 

statutes. Turner v. Turner, 473 S.W.3d 257, 274 (Tenn. 2015) (citing Tenn. Code Ann. 

§§ 36-1-113(e), -117(m)(1)). Rule 4.01 of the Tennessee Rules of Civil Procedure 

provides as follows:

(1) Upon the filing of the complaint, the clerk of the court shall 

promptly issue the required summons and cause it, with necessary copies of 

the complaint and summons, to be delivered for service to any person 

authorized to serve process. This person shall serve the summons, and the 

return endorsed thereon shall be proof of the time and manner of service. 

A summons may be issued for service in any county against any defendant, 

and separate or additional summonses may be issued against any defendant 
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upon request of plaintiff. Nothing in this rule shall affect existing laws with 

respect to venue.

(2) A summons and complaint may be served by any person who is not 

a party and is not less than 18 years of age. The process server must be 

identified by name and address on the return.

(3) If a plaintiff or counsel for plaintiff (including third-party plaintiffs) 

intentionally causes delay of prompt issuance of a summons, the filing of 

the complaint (or third-party complaint) will not toll any applicable statutes 

of limitation or repose.

(Emphasis added.). “The return is a means to prove that service of process has actually 

been accomplished.” Fair v. Cochran, 418 S.W.3d 542, 546 (Tenn. 2013) (citations 

omitted). Here, the return of service provides that the summons and petition were 

delivered to Mother on March 26, 2016. The process server is also identified by name 

and address on the return as required by Rule 4.1. Accordingly, we conclude that the trial 

court acquired personal jurisdiction over Mother through service of process. 

B.

Mother next argues that reversal of the judgment is required because she was not 

afforded counsel. DCS responds that Mother was aware of her right to counsel as 

evidenced by her signing of the Criteria and Procedure for Termination of Parental 

Rights, yet she made no attempt to request counsel once receiving notice of the 

termination proceeding. 

Rule 13(a)(2) of the Rules of the Supreme Court of Tennessee provides that in a 

termination proceeding, the court “shall advise any party without counsel of the right to 

be represented throughout the case by counsel and that counsel will be appointed if the 

party is indigent and . . . requests appointment of counsel.” Here, Mother failed to appear 

at the hearing and never requested the appointment of counsel. Accordingly, we 

conclude that the court did not err in failing to appoint counsel for Mother.

C.

Mother argues that the court‟s judgment against her must be reversed for failure to 

follow Rule 55.01 of the Tennessee Rules of Civil Procedure. DCS responds that 

compliance with Rule 55.01 was not required because the judgment appealed from is not 

a default judgment. Rule 55.01 provides as follows:
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When a party against whom a judgment for affirmative relief is sought has 

failed to plead or otherwise defend as provided by these rules and that fact is 

made to appear by affidavit or otherwise, judgment by default may be 

entered as follows:

The party entitled to a judgment by default shall apply to the court. Except 

for cases where service was properly made by publication, all parties against 

whom a default judgment is sought shall be served with a written notice of 

the application at least five days before the hearing on the application, 

regardless of whether the party has made an appearance in the action. A 

party served by publication is entitled to such notice only if that party has 

made an appearance in the action. No judgment by default shall be entered 

against an infant or incompetent person unless represented in the action by a 

general guardian, committee, conservator, or other such representative who 

has appeared therein. If, in order to enable the court to enter judgment or to 

carry it into effect, it is necessary to take an account or to determine the 

amount of damages or to establish the truth of any averment by evidence or 

to make an investigation of any other matter the court may conduct such 

hearings or order such references as it deems necessary and proper and shall 

accord a right of trial by jury to the parties when and as required by any 

statute.

Here, the trial court issued its judgment based upon the evidence presented at trial, 

despite Mother‟s failure to appear after having received notice of the hearing. 

Accordingly, we conclude that compliance with Rule 55.01 was not required. See Barber 

& McMurry, Inc. v. Top-Flite Dev. Corp., 720 S.W.2d 469, 471-72 (Tenn. Ct. App. 1986)

(holding that compliance with Rule 55.01 was not required when the judgment was based 

upon evidence presented at trial).

D.

Mother‟s counsel offers little argument in support of Mother‟s request for reversal 

of the statutory grounds supporting the termination. Instead, counsel cites our Supreme 

Court‟s holding in Carrington, which provides, in pertinent part, as follows:

[I]n an appeal from an order terminating parental rights the Court of 

Appeals must review the trial court‟s findings as to each ground for 

termination and as to whether termination is in the child‟s best interests, 

regardless of whether the parent challenges these findings on appeal.
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483 S.W.3d at 525-26 (internal citation and footnote omitted.). We agree that our review 

of each ground and the best interest decision is required; however, we caution counsel 

against the use of our Supreme Court‟s holding in this manner. See generally Tenn. Sup. 

Ct. R. 8, RPC 8(3) (providing that lawyers are obligated to act as a zealous advocate on 

behalf of his or her client). 

1.

A parent may be found to have abandoned his or her child by failing to establish a 

suitable home. The relevant abandonment statutory provision provides, in pertinent part,

as follows:

The child has been removed from the home of the [parent] as the result of a 

petition filed in the juvenile court in which the child was found to be a 

dependent and neglected child [ ], and the child was placed in the custody 

of the department or a licensed child-placing agency, that the juvenile court 

found, or the court where the termination of parental rights petition is filed 

finds, that the department or licensed child-placing agency made reasonable 

efforts to prevent removal of the child or that the circumstances of the 

child‟s situation prevented reasonable efforts from being made prior to the 

child‟s removal; and for a period of four (4) months following the removal, 

the department or agency has made reasonable efforts to assist the [parent] 

to establish a suitable home for the child, but that the [parent] have made no 

reasonable efforts to provide a suitable home and have demonstrated a lack 

of concern for the child to such a degree that it appears unlikely that they 

will be able to provide a suitable home for the child at an early date. The 

efforts of the department or agency to assist a [parent] in establishing a 

suitable home for the child may be found to be reasonable if such efforts 

exceed the efforts of the [parent] toward the same goal, when the [parent] is 

aware that the child is in the custody of the department[.]

Tenn. Code Ann. § 36-1-102(1)(A)(ii). Termination for failure to provide a suitable 

home requires a finding, supported by clear and convincing evidence, that a parent failed 

to provide a suitable home for his or her child even after DCS assisted that parent in his 

or her attempt to establish a suitable home.3 Tenn. Code Ann. § 36-1-102(1)(A)(ii). DCS 

is required to use its “superior insight and training to assist parents . . . whether the 

 

3 Our Supreme Court specifically overruled the progeny of cases requiring “DCS to prove by clear and 

convincing evidence that it made reasonable efforts to reunify as a precondition to termination of parental 

rights.” In re Kaliyah S., 455 S.W.3d 533, 555, n. 34 (Tenn. 2015). However, that holding does not 

abrogate DCS‟s responsibility to make reasonable efforts to assist parents in establishing a suitable home 

pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(ii).
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parents ask for assistance or not.” State, Dep’t of Childrens Servs. v. Estes, 284 S.W.3d 

790, 801 (Tenn. Ct. App. 2008).

The record is devoid of any evidence that DCS made any efforts related to housing 

during the relevant time period. Accordingly, we conclude that the record did not contain 

clear and convincing evidence to establish that Mother abandoned the Children by failing 

to provide a suitable home. We, therefore, reverse the trial court on its ruling that 

Mother abandoned the children by failing to provide a suitable home. However, this 

conclusion does not end our inquiry because only one statutory ground is required to 

support the termination of Mother‟s parental rights. Tenn. Code Ann. § 36-1-113(c).

2.

Under Tennessee law, a court may terminate parental rights when:

(3) 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.

Tenn. Code Ann. § 36-1-113(g)(3) (emphasis added). Termination of parental rights 

requires clear and convincing evidence of all three factors. In re Valentine, 79 S.W.3d at 

550. Additionally, the persistence of conditions ground may only be applied “where the 

prior court order removing the child from the parent‟s home was based on a judicial 

finding of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 874.

The record reflects that the conditions which led to removal have not been 

remedied, namely Mother‟s failure to address her substance abuse issues. Despite 

adequate time in which to address the conditions and the availability of services, Mother 

has failed to progress. Indeed, the record reflects that Mother failed to attend scheduled 
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appointments even when transportation was arranged for her and that she continually 

tested positive for drugs. The testimony presented also established that the Children 

reside together in a pre-adoptive home. With these considerations in mind, we conclude 

that the record contains clear and convincing proof in support of the trial court‟s 

termination decision based upon the persistence of conditions which led to removal. 

3.

“A parent‟s rights may be terminated for her substantial noncompliance with the 

responsibilities contained in a permanency plan, [Tennessee Code Annotated section 36-

1-113(g)(2)], so long as the plan requirements are „reasonable and related to remedying 

the conditions which necessitate[d] foster care placement.‟” Id. at 537 (quoting In re 

Valentine, 79 S.W.3d at 547). Here, Mother was required to (1) complete a mental health 

assessment and follow recommendations; (2) complete an alcohol and drug assessment, 

follow recommendations, and submit to drug screens; (3) obtain and maintain suitable 

housing free from environmental hazards, domestic violence, drug abuse, or other risks; 

(4) maintain regular visitation; (5) participate in parent education through therapeutic 

visitation; (6) obtain and maintain a legal source of income; (7) remit child support; and 

(8) maintain contact with DCS. The record reflects that Mother completed the necessary 

assessments and maintained regular visitation. However, Mother failed to complete the 

remainder of the requirements and also refused to follow the recommendations from the 

assessments as required by the permanency plan. With these considerations in mind, we 

hold that the record contains clear and convincing proof in support of the trial court‟s 

findings regarding Mother‟s substantial noncompliance with the requirements contained 

in the permanency plan. 

4.

The trial court may terminate parental rights based upon a finding of severe child 

abuse either as found “under any prior order of a court” or as “found by the court hearing 

the petition to terminate parental rights.” Tenn. Code Ann. § 36-1-113(g)(4). “Severe 

child abuse” is defined as:

(A) (i) The knowing exposure of a child to or the knowing failure to 

protect a child from abuse or neglect that is likely to cause serious bodily 

injury or death and the knowing use of force on a child that is likely to 

cause serious bodily injury or death;

(ii) “Serious bodily injury” shall have the same meaning given in § 

39-15-402(d).
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(B) Specific brutality, abuse or neglect towards a child that in the 

opinion of qualified experts has caused or will reasonably be expected to 

produce severe psychosis, severe neurotic disorder, severe depression, 

severe developmental delay or intellectual disability, or severe impairment 

of the child‟s ability to function adequately in the child‟s environment, and 

the knowing failure to protect a child from such conduct;

(C) The commission of any act towards the child prohibited by §§ 39-

13-502 [through] 39-13-504, 39-13-515, 39-13-522, 39-15-302, 39-15-402, 

and 39-17-1005 or the knowing failure to protect the child from the 

commission of any such act towards the child; or

(D) Knowingly allowing a child to be present within a structure where 

the act of creating methamphetamine, as that substance is identified in § 39-

17-408(d)(2), is occurring;

Tenn. Code Ann. § 37-1-102(b)(21). Further, prenatal drug use constitutes severe child 

abuse under Tennessee Code Annotated section 37-1-102(b)(21). In re Benjamin M., 310 

S.W.3d 844, 847-51 (Tenn. Ct. App. 2009).

Here, the trial court found that Mother abused drugs while pregnant with YariAsia. 

The record reflects that Mother tested positive for drugs while pregnant with YariAsia 

and even self-reported her drug use. Accordingly, we conclude that the record supports 

termination of Mother‟s parental rights to YariAsia on this statutory ground. 

E.

Having concluded that there was clear and convincing evidence supporting at least 

one statutory ground to terminate Mother‟s parental rights, we must consider whether 

termination was in the best interest of the Children. In making this determination, we are 

guided by the following non-exhaustive list of factors:

(i) In determining whether termination of parental or guardianship 

rights is in the best interest of the child . . . 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;
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(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;4

(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 or controlled substances 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 [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not 

require a trial court to find the existence of each enumerated factor before it may 

conclude that terminating a parent‟s parental rights is in the best interest of a child.” In re 

M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also 

 

4

In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a termination proceeding, the extent of DCS‟s efforts to 

reunify the family is weighed in the court‟s best-interest analysis, but proof of reasonable efforts is not a 

precondition to termination of the parental rights of the respondent parent.”).
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stated that “when the best interest[] of the child and those of the adults are in conflict, 

such conflict shall always be resolved to favor the rights and the best interest[] of the 

child, which interests are hereby recognized as constitutionally protected.” Tenn. Code 

Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 

2004) (holding that when considering a child‟s best interest, the court must take the 

child‟s perspective, rather than the parent‟s).

A number of the best interest factors weigh against Mother. She had not made the 

adjustment of circumstances necessary to make it safe and in the Children‟s best interest 

to return home. Indeed, the record reflects that Mother has yet to address her substance 

abuse issues. Tenn. Code Ann. § 36-1-113(i)(1). Having reviewed the evidence, we 

conclude that DCS expended reasonable efforts in attempting to assist her with her 

substance abuse issues but that she was simply unable to make a lasting adjustment. 

Tenn. Code Ann. § 36-1-113(i)(2). The Children reside in a safe and stable foster home

that is willing and able to adopt them. Removing them would negatively affect their 

emotional condition. Tenn. Code Ann. § 36-1-113(i)(5). Questions remain as to whether 

the physical environment of Mother‟s home is healthy and safe as evidenced by her 

continued drug use and living situation. Tenn. Code Ann. § 36-1-113(i)(7). 

While we do not wish to discount Mother‟s love for her children, the Children 

have simply languished in custody for far too long while she has refused to address her 

substance abuse issues. The Children should be allowed to achieve permanency and 

stability in their current placement. With all of the above considerations in mind, we 

conclude that there was clear and convincing evidence to establish that termination of 

Mother‟s parental rights was in the best interest of the Children. We affirm the decision 

of the trial court. 

V. CONCLUSION

This judgment of the trial court is reversed as to the finding of abandonment by 

failure to provide a suitable home, and the trial court is affirmed on all other grounds. 

This case is remanded for such further proceedings as may be necessary. Costs of the 

appeal are taxed to the appellant, Kayla N. S.

_________________________________ 

JOHN W. McCLARTY, JUDGE