IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 2, 2022

IN RE BRALYNN A.

Appeal from the Juvenile Court for Montgomery County

No. 21-JV-93 Tim Barnes, Judge

___________________________________

No. M2021-01188-COA-R3-PT

___________________________________

Mother appeals the termination of her parental rights, arguing that the proof was less than 

clear and convincing that termination was in her child’s best interest. Because we conclude 

that the trial court did not err in finding clear and convincing evidence of three grounds for 

termination and that termination is in the child’s best interest, we affirm. 

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

and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Ashley N.

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

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

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner/Appellee the Tennessee Department of Children’s Services (“DCS”) first 

became involved with Respondent/Appellant Ashley N.1(“Mother”) in April 2019 when it 

received a referral that Mother’s son, Bralynn A., born in September 2016, was drug 

exposed and lacked supervision. As a result, DCS filed a petition to declare the child 

dependent and neglected on April 22, 2019 in the Montgomery County Juvenile Court (“the 

juvenile court” or “the trial court”). The petition alleged that the child’s father had 

 

1

In cases involving termination of parental rights, it is this Court’s policy to remove the full names 

of children and other parties to protect their identities.
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overdosed and had to be taken to the hospital; although he had been released, a drug screen 

administered on April 3, 2019, showed that he was positive for oxycodone, amphetamine, 

and benzodiazepine.2 Around that time, Mother had been arrested on outstanding warrants 

and was still incarcerated. The child was safety-placed with a relative after Mother agreed 

to an immediate protection agreement. Still, DCS did not ask to remove the child from his 

parents’ custody, but that the immediate protection agreement be incorporated into the trial 

court’s order. Following a preliminary hearing, the trial court found probable cause that the 

child was dependent and neglected and made the immediate protection agreement part of 

its order. DCS created a non-custodial permanency plan for both parents at this time. 

The child remained in his parents’ custody until June 2019, when Mother tested 

positive for benzodiazepines and could not produce a valid prescription. Although Mother 

completed an alcohol and drug assessment following this positive drug screen, she claimed

during the assessment that she did not use drugs. But a second drug screen associated with 

the assessment was again positive for benzodiazepines. And the child’s relatives could no 

longer care for him.

So, on August 27, 2019, DCS filed an amended petition for dependency and neglect 

in which it asked for physical and legal custody of the child. The petition recited, inter alia, 

Mother’s incarceration and positive drug tests as the basis for the dependency and neglect 

action. The child was then removed via a protective custody order and adjudicated 

dependent and neglected as alleged in the petition after Mother waived the preliminary 

hearing. A second adjudicatory hearing was held on December 3, 2019, in which the child 

was again found to be dependent and neglected based on drug exposure by Father and 

Mother’s unavailability due to incarceration. DCS placed the child in a foster home, where 

he has remained throughout the pendency of this case. 

Five permanency plans were created by DCS after the child was removed. Under 

the first plan, Mother was required to (1) resolve all legal issues, provide proof to DCS, 

and follow all rules of probation; (2) complete a non-self-reporting clinical assessment with 

both an alcohol and drug component and a parenting component, follow all 

recommendations, and sign a release of information for and provide proof to DCS; (3) 

attend supervised visits appropriately; (4) not allow illegal activities in the home; and (5) 

obtain and maintain stable housing, provide proof of housing and allow DCS to do walkthroughs; and (6) pay child support. The second plan maintained mostly the same 

requirements, with Mother being required to comply with the aftercare that was 

recommended following her alcohol and drug assessment, complete a parenting 

assessment, and provide proof of legal employment to DCS. The third plan again 

maintained the same requirements except that it had specific instructions as to what snacks 

Mother could bring the child during visitation. At this point, Mother’s supervised visits 

 

2 The child’s father passed away in May 2021. As such, we only refer to him as is necessary for a 

full recitation of the facts. 
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were changed to unsupervised visits for four hours every other Saturday. 

As discussed in detail, infra, Mother tested positive for drugs after the third plan 

was created. The plan was therefore amended in late October 2020 to add adoption as a 

goal. Mother’s visitation was also reduced to supervised only based on an agreed order,

and Mother was directed to participate in family therapy with the child. A final permanency 

plan was created in March 2021. In addition to prior requirements, Mother was required to 

complete a new assessment and psychological evaluation, to participate in individual 

therapy and medication management, to participate in an intensive outpatient program, and 

to obtain stable housing as Mother had been living in hotels. 

Eventually, DCS filed a petition to terminate Mother’s parental rights on February 

1, 2021. The petition alleged as grounds abandonment by failure to support, persistence of 

conditions, substantial noncompliance with permanency plans, and failure to manifest a 

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

responsibility of the child. Trial occurred on August 30, 2021. Only Jamin Pena, a DCS 

team leader, and Mother testified. According to Ms. Pena, Mother completed some tasks 

on her permanency plans, but not all. Initially, Mother did complete a clinical assessment 

with an alcohol and drug component, allowed a walk-through of her home,3 visited 

appropriately with the child, and she attended a recommended chemical awareness 

education class. Later, Mother also completed a parenting assessment. But Mother never 

provided DCS with any proof of a legal source of income, failed to consistently participate 

in drug screenings, did not pass all drug screenings that were administered, failed to 

participate in individual therapy as recommended during assessment, failed to participate 

in a recommended intensive outpatient drug treatment program, lied during an assessment 

about her drug and alcohol use, obtained new legal charges, and failed to be appropriate in 

visits later in the case resulting the termination of visitation. 

Ms. Pena testified that Mother would often test positive for drugs during the 

pendency of the case. For example, as previously stated, after the third permanency plan 

was created, in September 2020, Mother testified positive for hydrocodone. Then in a test 

administered on October 8, 2020, Mother tested positive for hydrocodone, oxycodone, 

amphetamines, and ethanol. According to the fourth permanency plan, Mother did produce 

a prescription for amphetamines following this screen; however, as discussed in detail 

infra, DCS came to believe that this prescription was falsified. Ms. Pena testified that 

DCS’s concerns over Mother’s drug use had not abated, as Mother continued to test 

positive even in the month before trial. Specifically, Ms. Pena submitted reports from a 

July 21, 2021 urine drug screening positive for benzodiazepines and amphetamine, as well 

 

3 Mother shared this home with the child’s father, but later vacated this home due to a no-contact 

order, discussed infra. During this time, Mother was living a transient lifestyle. After the death of the child’s 

father, Mother returned to this home, but did not request that another walk-through be conducted, given 

that DCS had already approved this home. 
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as a July 30, 2021 hair screening positive for amphetamine. And Ms. Pena testified that 

Mother never provided DCS with any prescriptions for those drugs. 

Mother denied that she was still using illegal drugs. Specifically, Mother claimed 

that she had provided DCS proof of a prescription for both Adderall and Xanax. When 

asked if Mother could produce a prescription at trial, she stated that she could “get it.” No 

prescription of any kind was submitted as proof. Mother admitted that she had taken one 

Xanax before trial, after the trial court questioned her slurred speech. 

After Mother’s positive drug screens in the fall of 2020, Mother was directed to 

participate in intensive outpatient treatment; she attended two sessions (out of the sixteen 

required) before stopping the treatment. Ms. Pena testified that Mother also did not 

participate in the individual therapy that was recommended as a result of the assessments. 

Although she began the therapy, she had missed many appointments and was no longer 

participating in any therapy. Mother claimed, however, that she was still attending therapy; 

she provided no documentary proof to support her claim. 

Mother was ordered to pay child support of $20.00 per month following the 

removal. In January 2021, she made one payment of $50.00. In May 2021, she made 

another payment of $24.00. Although Mother claimed that she was self-employed 

throughout this custodial episode, Ms. Pena testified that Mother never provided any 

documentation to DCS of this fact. At trial, Mother disagreed, but admitted that she was 

not currently employed but had a job interview for a new position the week of trial. Mother 

claimed that she did pay child support when she was able, but testified that she could not 

pay support consistently for Bralynn because after paying her expenses for her home and 

three other children, she had no additional funds.4 Mother admitted, however, that she had 

paid “several” bond payments in the year before trial and specifically, that someone had 

paid to bond Mother out of jail on a $10,000.00 bond in May of 2021. 

Mother’s criminal history was also at issue. As previously discussed, DCS became 

involved with the child while Mother was incarcerated. Mother was later briefly jailed in 

November 2020,5 pleaded no contest to a charge of simple possession of a controlled 

substance, and has been arrested for violating her probation. Indeed, Ms. Pena testified 

that Mother has criminal charges pending for driving on a revoked license, which Mother 

admitted she lost when she had an accident and did not have insurance, which she could 

not afford at that time. Mother testified that she continues to drive without a license if 

necessary. 

 

4 This was the only mention of Mother’s other children at trial. 

5 The testimony is unclear as to the basis for the arrest, but it may relate to domestic violence, as 

Ms. Pena testified that Mother could not return to the home with the child’s father “because there was a nocontact order in place between them because of the domestic.”
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Mother was initially allowed supervised visitation with the child, which went well 

other than minor issues regarding the snacks that Mother brought. In fact, Mother 

progressed to unsupervised visitation. But after Mother’s positive drug screen in the fall of 

2020, visitation was again ordered to be supervised. After visitations, however, the child 

would act out and have behavior issues.6 By January of 2021, visitation stopped 

completely. Specifically, the child’s therapist recommended that visitation cease due to 

Mother arriving late for visits, Mother being inconsistent, and Mother failing to participate 

in family therapy with the child. So the juvenile court ordered that there be no contact 

between Mother and the child. After the cessation of visitation, Ms. Pena testified that the 

child’s “whole character [] changed” in a positive way; his behavior improved, and he 

made considerable progress in therapy. 

Indeed, Ms. Pena testified that the child had made “tremendous progress” while in 

his pre-adoptive foster home. He refers to his foster parents as “Mom” and “Dad”; he is 

bonded to his foster parents and his foster siblings; he attends daycare and is 

developmentally on track, while still participating in therapy. Ms. Pena conceded, however, 

that Mother loves her child. 

At the conclusion of the trial, the trial court orally ruled that DCS provided clear 

and convincing evidence of three grounds for termination: persistence of conditions, 

substantial noncompliance with permanency plans, and failure to manifest a willingness 

and ability to personally assume legal and physical custody or financial responsibility of 

the child. The trial court found that DCS had not proven abandonment by failure to support. 

The trial court also considered the recently enacted twenty-factor test set forth in Tennessee 

Code Annotated section 36-1-113(i) to conclude that termination of Mother’s parental 

rights was in the child’s best interest. A written order memorializing the trial court’s oral 

ruling was entered on September 13, 2021.7 Mother thereafter appealed to this Court. 

II. ISSUES PRESENTED

 

6 Ms. Pena conceded that this is typical for a child who is experiencing inconsistency in caretaker 

roles. 

7 The written order does not mention the ground of abandonment; nor does the written order 

expressly incorporate the trial court’s oral ruling. In general, a trial court speaks through its written order, 

rather than a transcript. See, e.g., Williams v. City of Burns, 465 S.W.3d 96, 119 (Tenn. 2015) (“It is wellsettled that a trial court speaks through its written orders—not through oral statements contained in the 

transcripts—and that the appellate court reviews the trial court’s written orders.”). Because this ground 

appears to have been omitted from the written order by mistake and to have been abandoned by DCS, we 

will consider this appeal notwithstanding the failure to include findings as to this ground in the written 

order. See Tenn. R. App. P. 2 (allowing this Court to suspend the Tennessee Rules of Appellate Procedure 

for good cause); Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (allowing the finality rule 

to be suspended under Rule 2); see also In re D.M., No. M2002-01317-COA-R3-JV, 2003 WL 367240, at 

*2 (Tenn. Ct. App. Feb. 20, 2003) (noting that “expeditious handling of termination cases has become the 

public policy of this state”).
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As we perceive it, this appeal involves two issues:

1. Whether the trial court erred in finding clear and convincing evidence of grounds 

to terminate Mother’s parental rights?

2. Whether the trial court erred in finding clear and convincing evidence that 

termination was in the child’s best interests?

III. STANDARD OF REVIEW

Parental rights are “among the oldest of the judicially recognized fundamental 

liberty interests protected by the Due Process Clauses of the federal and state 

constitutions.” In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016) (collecting cases). 

Therefore, “parents are constitutionally entitled to fundamentally fair procedures in 

parental termination proceedings.” Id. at 511. These procedures include “a heightened 

standard of proof—clear and convincing evidence.” Id. at 522 (citations and quotations 

omitted). “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.” In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (quotation marks and citation omitted).

In Tennessee, termination of parental rights is governed by statute, which identifies 

“‘situations in which [the] state’s interest in the welfare of a child justifies interference with 

a parent’s constitutional rights by setting forth grounds on which termination proceedings 

can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 

In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 

1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g))). 

Thus, a party seeking to terminate a parent’s rights must prove by clear and convincing 

evidence (1) the existence of at least one of the statutory grounds in section 36-1-113(g), 

and (2) that termination is in the child’s best interest. See In re Valentine, 79 S.W.3d at 

546. “Considering the fundamental nature of a parent’s rights, and the serious 

consequences that stem from termination of those rights, a higher standard of proof is 

required in determining termination cases.” In re Addalyne S., 556 S.W.3d 774, 782 

(Tenn. Ct. App. 2018). The clear and convincing evidence standard applicable here is 

“more exacting than the ‘preponderance of the evidence’ standard, although it does not 

demand the certainty required by the ‘beyond a reasonable doubt’ standard. To be clear 

and convincing, the evidence must eliminate any substantial doubt and produce in the factfinder’s mind a firm conviction as to the truth.” In re S.R.C., 156 S.W.3d 26, 29 (Tenn. Ct. 

App. 2004) (internal citation omitted). 

In termination cases, appellate courts review a trial court’s factual findings de novo 

and accord these findings a presumption of correctness unless the evidence preponderates 

otherwise. See Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 523–24 

(citations omitted). “The trial court’s ruling that the evidence sufficiently supports 
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termination of parental rights is a conclusion of law, which appellate courts review de novo 

with no presumption of correctness.” Id. at 524 (citation omitted). 

IV. ANALYSIS

A. Grounds for Termination

Mother does not contest the grounds for termination in her appellate brief. We will 

nevertheless briefly address each of the grounds for termination found by the trial court. 

See In re Carrington H., 483 S.W.3d at 525–26 (holding that “in 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”). The grounds at issue 

in this appeal are therefore: (1) persistence of conditions; (2) substantial noncompliance 

with permanency plans; and (3) failure to manifest an ability and willingness to assume 

legal and physical custody or financial responsibility for the child. 

1. Persistence of Conditions

DCS first relies on the ground of persistence of conditions, pursuant to Tennessee 

Code Annotated section 36-1-113(g)(3):

(A) The child has been removed from the home or the physical or legal 

custody of a parent or guardian for a period of six (6) months by a 

court order entered at any stage of proceedings in which a petition has 

been filed in the juvenile court alleging that a child is a dependent and 

neglected child, and:

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

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

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

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

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

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

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

guardian in the near future; and

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

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

stable, and permanent home;

(B) The six (6) months must accrue on or before the first date the termination 

of parental rights petition is set to be heard[.]

Here, there is no question that the child was removed from Mother’s custody in the 
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course of a dependency and neglect proceeding and had been removed for a period of 

longer than six months. Thus, the dispositive questions are whether conditions persist that 

prevent the safe return of the child, whether the conditions will likely be remedied at an 

early date, and whether the continued relationship prevents early integration of the child 

into a safe, stable, permanent home. As we have previously explained,

A parent’s continued inability to provide fundamental care to a child, even if 

not willful, . . . constitutes a condition which prevents the safe return of the 

child to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 

WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. &

M.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. 

App. July 13, 2000)). The failure to remedy the conditions which led to the 

removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6 

(citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 

1990)). “Where . . . efforts to provide help to improve the parenting ability, 

offered over a long period of time, have proved ineffective, the conclusion [] 

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

return of the child to the parent in the near future is justified.” Id. The 

purpose behind the “persistence of conditions” ground for terminating 

parental rights is “to prevent the child’s lingering in the uncertain status of 

foster child if a parent cannot within a reasonable time demonstrate an ability 

to provide a safe and caring environment for the child.” In re A.R., No. 

W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct. App. Oct. 

13, 2008) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 

588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).

In re Navada N., 498 S.W.3d 579, 605–06 (Tenn. Ct. App. 2016).

The trial court concluded that this ground was met because Mother continues to use 

illegal drugs, has not demonstrated a legal means of income, and continues to incur new 

criminal charges. The proof supports these findings. In particular, Mother tested positive 

for amphetamines on a hair drug screening administered on July 30, 2021, less than one 

month prior to the termination trial. Mother also tested positive for both amphetamines and 

benzodiazepines on a urine drug screening administered on July 21, 2021. Mother claimed, 

however, to have prescriptions for both Adderall and Xanax. According to Ms. Pena, 

however, Mother never produced a valid prescription for these drugs.8 She also did not 

produce a valid prescription at trial.9 As such, Mother’s claims of having a valid 

 

8 At trial, an incident was discussed in which Mother and the child’s father had produced a hospital 

prescription for a drug that they had tested positive for. DCS subpoenaed the hospital, however, which did 

not have a record of that prescription. As such, DCS concluded that the prescription was “obviously 

falsified.” 

9 Mother’s counsel stated at trial that he had “in front of me, on my computer here, a copy of a 

prescription which my client allegedly gave to DCS[.]” No prescription was actually admitted into 
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prescription lack any indicia of credibility.10 Clearly, Mother’s drug issues are not 

remedied, and are unlikely to be remedied at an early date. And continuing the parent-child 

relationship leaves the child in limbo, rather in a permanent status with a family that he is 

bonded with and that is pre-adoptive. The trial court did not err in finding clear and 

convincing evidence of this ground for termination. 

2. Substantial Noncompliance with Permanency Plans

DCS next relies on the ground of substantial noncompliance with permanency plans 

pursuant to Tennessee Code Annotated section 36-1-113(g)(2). According to the 

Tennessee Supreme Court:

Substantial noncompliance is a question of law which we review de novo 

with no presumption of correctness. Substantial noncompliance is not 

defined in the termination statute. The statute is clear, however, that 

noncompliance is not enough to justify termination of parental rights; the 

noncompliance must be substantial. Black’s Law Dictionary defines 

“substantial” as “[o]f real worth and importance.” Black’s Law Dictionary 

1428 (6th ed. 1990). 

In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002). As discussed by this Court in In re 

M.J.B., 140 S.W.3d 643 (Tenn. Ct. App. 2004):

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 under Tenn. Code Ann. § 36-1-

113(g)(2), [DCS] 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. 

 

evidence. Mother’s appellate counsel did not represent her at trial. 

10 In its oral ruling, the trial court specifically found that Mother lacked credibility on this issue. 

This express credibility finding was not included in the trial court’s written order. Still, we give deference 

to a trial court’s credibility finding whether express or implicit in a trial court’s ruling. See Lowe v. Smith, 

No. M2015-02472-COA-R3-CV, 2016 WL 5210874, at *5 (Tenn. Ct. App. Sept. 19, 2016) (citing Taylor 

v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug. 5, 2008)) 

(“[T]he trial court’s findings on credibility, whether express or implicit, are entitled to great deference on 

appeal.”). Here, both the oral and written rulings make clear that the trial court did not believe Mother as 

to her claim that she was prescribed these medications. When “an issue which hinges on the credibility of 

witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and 

convincing evidence other than the oral testimony of witnesses which contradict the trial court’s findings.” 

In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (quoting Galbreath v. Harris, 811 S.W.2d 88, 

91 (Tenn. Ct. App. 1990)). The record fully supports the trial court’s finding that Mother lacked credibility 

on this issue. 
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Ct. App. 2003), and second that the parent’s noncompliance is substantial in 

light of the degree of 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., 2003 WL 21266854, at *12. Trivial, minor, or technical deviations 

from a 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).

Id. at 656–57. 

Here, there is no serious question that the requirements of Mother’s permanency 

plans were reasonable and related to remedying the issues that caused the child to be 

removed, particularly Mother’s drug issues and her lack of stability.11 There is also no 

genuine dispute that Mother complied with some requirements, while failing to complete 

others. The question then is whether Mother’s noncompliance was substantial in light of 

the degree of noncompliance and the importance of the requirements not met. Under this 

metric, we conclude that Mother’s noncompliance was substantial. 

Mother’s drug and criminal issues were central to the removal of the child. But these 

were the issues that Mother made little effort to remedy during the two years that the child 

had been in DCS custody. Mother failed to appear for several drug tests and often did not 

pass the ones administered to her. Although Mother completed various assessments and 

evaluations, Ms. Pena testified that she did not consistently go to the therapies or programs 

that were recommended as a result of the assessments. And even Mother’s completion of 

assessments is undermined by the fact that she lied about her drug use during one 

assessment. Mother also failed to fully remedy her criminal charges, picking up new 

charges during the custodial episode and admittedly continuing to engage in criminal 

activity that has the possibility of placing her back in jail. Mother also simply refused to 

ever provide DCS with any proof that she had a legal income, nor did she pay child support 

as had been ordered. Under these circumstances, we must conclude that DCS demonstrated, 

by clear and convincing evidence, that Mother had substantially failed to comply with the 

permanency plans in this case.

3. Willingness and Ability

DCS next contends that Mother failed to manifest a willingness and ability, whether 

by act or omission, to personally assume legal and physical custody or financial 

responsibility of the child and that placing the child in her legal and physical custody would 

 

11 Mother’s drug issues were cited in the first adjudicatory order finding the child to be dependent 

and neglected; Mother’s unavailability as a result of incarceration was cited in the second adjudicatory 

order. 
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create a risk of substantial harm to the child’s physical or psychological welfare. Tenn. 

Code Ann. § 36-1-113(g)(14). Essentially, the statutory ground has two distinct elements 

which must be proven by clear and convincing evidence:

First, DCS must prove that [the parent] failed to manifest ‘an ability and 

willingness to personally assume legal and physical custody or financial 

responsibility of the child.’ DCS must then prove that placing the child[] in 

[the parent’s] ‘legal and physical custody would pose a risk of substantial 

harm to the physical or psychological welfare of the child.’

In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. 

Apr. 4, 2018) (quoting Tenn. Code Ann. § 36-1-113(g)(14)) (some alterations of the 

original text removed). As for the first element, the petitioner must “prove[ ] by clear and 

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

willingness” to parent the child. In re Neveah M., 614 S.W.3d 659, 677 (Tenn. 2020). 

The trial court made the following findings as to this ground:

24. [Mother] 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. [Mother] quit her job on May 1, 2021 and has not 

been employed since that time. She has not had any demonstrable legal 

means of income since May 1, 2021. Further, [Mother] still has an issue with 

illegal drug use, and she has failed to resolve her legal issues.

25. Placing the child in [Mother’s] legal and physical custody would pose a 

risk of substantial harm to the physical or psychological welfare of the child. 

Placing the child with [Mother] would likely have a negative effect on the 

child’s emotional, psychological and/or medical condition. The child is 

bonded and comfortable in his current placement. Further, the child’s 

therapist recommended that the visitation between the mother and child cease 

due to the child’s behaviors worsening after contact with the mother. To 

place the child with a mother who is struggling with a drug addiction would 

have a negative impact on the child’s emotional and psychological condition. 

We agree. Mother here presented no proof that she was not capable of employment. 

But she paid very little support for the child throughout the time he was in DCS custody 

and refused to provide DCS with any information concerning her employment. Mother also 

claimed that financial issues prevented her from paying support or having car insurance. 

But she testified that she would receive help if the child was returned to her. Still the proof 

shows that Mother did ask family or friends for help in bailing her out of jail on multiple 

occasions, while she declined to ask for help to pay support or, apparently, obtain car 

insurance. Thus, Mother has leaned on the charity of others in order to resolve the legal 

issues that result from her own poor decision-making, while declining to ask for help in 
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ways that could help her child. It therefore does not appear that Mother is willing or able 

to take financial responsibility for the child. 

Importantly, Mother also continued to use drugs even until the month before trial. 

In fact, the trial court questioned Mother at trial concerning whether she was under the 

influence of narcotics due to her behavior. Thus, Mother is unable to take physical custody 

of the child. 

We also agree that placing the child in Mother’s legal and physical custody would 

create a risk of substantial harm to his welfare. See Tenn. Code Ann. 36-1-113(g)(14). With 

regard to substantial harm, this Court stated that:

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.

In re Maya R., 2018 WL 1629930, at *7 (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. 

Ct. App. 2001) (footnotes omitted)). Here, the proof shows that Mother continues to use 

illegal drugs and drive without a license, creating a likelihood that she will incur additional 

criminal charges. These issues have been held to create a risk of substantial harm for 

purposes of this ground for termination. See In re Brianna B., No. M2019-01757-COAR3-PT, 2021 WL 306467, at *6 (Tenn. Ct. App. Jan. 29, 2021) (“Or placing a child with a 

parent who engaged in repeated criminal conduct that required incarceration would put a 

child at risk of substantial physical or psychological harm. And parents with a significant, 

recent history of substance abuse, mental illness, and/or domestic violence could lead to a 

conclusion of a risk of substantial harm.”). As such, there was clear and convincing 

evidence to support this ground for termination. 

B. Best Interest

Because we have determined that at least one statutory ground has been proven for 

terminating Mother’s parental rights, we must now decide if DCS has proven, by clear and 

convincing evidence, that termination of Mother’s rights is in the child’s best interests. 

Tenn. Code Ann. § 36-1-113(c)(2); White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 

1994). If “the interests of the parent and the child conflict, courts are to resolve the conflict 

in favor of the rights and best interest of the child.” In re Navada N., 498 S.W.3d at 607.

In this case, the trial court considered the best interest factors contained in Tennessee 
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Code Annotated section 36-1-113(i), as it was amended on April 22, 2021. See 2021 Tenn. 

Laws Pub. Ch. 190 (S.B. 205), eff. April 22, 2021. Under this version of the statute, courts 

are to consider a non-exclusive list of twenty best interest factors. We note, however, that 

the termination petition in this case was filed on February 1, 2021, well before the effective 

date of this amendment. “[T]he amended statute applies only to petitions for termination 

filed on or after April 22, 2021.” In re Riley S., No. M2020-01602-COA-R3-PT, 2022 WL 

128482, at *14 n.10 (Tenn. Ct. App. Jan. 14, 2022) perm. app. denied (Tenn. Mar. 17, 

2022); see also In re C.T., No. E2021-01336-COA-R3-PT, 2022 WL 2236147, at *8 

(Tenn. Ct. App. June 22, 2022). Still, this Court has held that there was no reversible error 

when the trial court relies on the wrong factors because the old factors are essentially

contained within the new factors. See In re Da’Moni J., No. E2021-00477-COA-R3-PT, 

2022 WL 214712, at *23 (Tenn. Ct. App. Jan. 25, 2022), perm. app. denied (Tenn. Apr. 1, 

2022). Here, Mother does not raise any argument that the trial court considered the 

incorrect factors, but Mother’s brief cites only to the nine best interest factors that were in 

effect at the time the termination petition was filed. We will therefore follow Mother’s lead 

to consider the best interest factors that Mother asserts are controlling in this case. 

According to the statute that Mother chooses to rely on, the best interest analysis is 

guided by the following non-exclusive factors:

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

circumstance, conduct, or conditions as to make it safe and in the child’s best 

interest to be in the home of the parent or guardian;

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

after reasonable efforts by available social services agencies for such 

duration of time that lasting adjustment does not reasonably appear possible;

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

contact with the child;

(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child;

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

have on the child’s emotional, psychological and medical condition;

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

or guardian, has shown brutality, physical, sexual, emotional or 

psychological abuse, or neglect toward the child, or another child or adult in 

the family or household;

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

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

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

analogues as may render the parent or guardian consistently unable to care 

for the child in a safe and stable manner;

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

be detrimental to the child or prevent the parent or guardian from effectively 
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providing safe and stable care and supervision for the child; or

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

child support guidelines promulgated by the department pursuant to § 36-5-

101.

Tenn. Code Ann. § 36-1-113(i) (2020). “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 rights is in the best interest of a child.” In re M.A.R., 183 S.W.3d 

652, 667 (Tenn. Ct. App. 2005) (citations omitted).

After citing the best interest factors and general law on this subject, Mother’s entire 

argument as to best interest is as follows:

Mother loves Bralynn. Mother is doing one-on-one therapy. Mother 

d[i]d several A&D assessments. Mother did some, but not all tasks on her 

permanency plan. Until visitation was suspended, Mother regularly visited 

Bralynn. Mother also completed a psych assessment. 

Mother did not complete all tasks, but she was making progress. 

While the progress was not perfect, it was moving in a positive direction. 

This Honorable Court should reverse the Trial Court.

(Record citations omitted). 

Respectfully we cannot agree. Here, despite a multitude of assistance offered by 

DCS, Mother was still using drugs, still driving on a revoked license, and still had not 

demonstrated a legal means of income, even by the time of trial. Moreover, Ms. Pena 

disputed that Mother was currently participating in any recommended therapy. Thus, the 

proof shows that Mother had not made lasting changes that would make her home safe for 

the child. See Tenn. Code Ann. § 36-1-113(i)(1) & (2). 

Moreover, although Mother did initially participate in visitation with the child, the 

visitations were terminated due to Mother’s behavior and the negative effect of the 

visitation on the child. When visitation stopped, the child improved. Thus, the proof 

demonstrated that Mother had no meaningful relationship with the child and that her 

behavior and mental state negatively impacted the child. Instead, the child is well-bonded 

to his foster parents and would be harmed by being removed from their custody. See Tenn. 

Code Ann. § 36-1-113(i)(3), (4), (5), & (8). 

The physical environment of Mother’s home may be suitable; although she did not 

request a walk-through when she moved back into the home, a prior walk through of this 

home indicated no issues. But regardless of the suitability of Mother’s physical 

environment, Mother’s recent positive drug screens show that this home is not free from 

illegal drug use. And a suitable home means one that is free from illegal drug use. See, e.g.,
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In re Navada N., 498 S.W.3d at 595 (“[A] suitable home requires more than a proper 

physical living location. It requires that the home be free of drugs and domestic violence.” 

(quotation marks and citations omitted)). So this factor also favors termination. See Tenn. 

Code Ann. § 36-1-113(i)(7). 

Thus, the relevant factors in this case clearly indicate that termination is in the 

child’s best interest.12 Here, Mother continues to test positive for drugs. While she claimed 

to have a valid prescription, she failed to bring any evidence to support that claim to the 

termination trial. And she had previously been found by DCS to have fabricated medical 

records to hide her illegal drug use. In contrast, the child is now in a safe and stable home 

that is pre-adoptive. He is bonded to his foster parents. Indeed, the cessation of visitation 

with Mother resulted in only positive effects on the child. Under these circumstances, clear 

and convincing evidence demonstrated that it was in the child’s best interest for Mother’s 

rights to be terminated. 

V. CONCLUSION

The judgment of the Montgomery County Juvenile Court is affirmed, and this cause 

is remanded for further proceedings consistent with this Opinion. Costs of this appeal are 

taxed to Appellant, Ashley N., for which execution may issue, if necessary. 

S/ J. Steven Stafford 

 J. STEVEN STAFFORD, JUDGE

 

12 The trial court found that factor (N)-—regarding “[w]hether the parent, or other person residing 

with or frequenting the home of the parent, has shown brutality or physical, sexual, emotional, or 

psychological abuse or neglect toward the child or any other child or adult”—was inapplicable. This factor 

is substantially similar to factor (6) in the applicable factors. DCS does not argue that this factor favors 

termination. Therefore, at best, a single factor in this case weighs against termination.