IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 1, 2017

IN RE HOMER D., ET AL.

Appeal from the Juvenile Court for Overton County

No. 16-JV-74 Daryl A. Colson, Judge

___________________________________

No. M2017-00298-COA-R3-PT

___________________________________

This is a termination of parental rights case. The trial court terminated Appellant’s 

parental rights on the grounds of: (1) abandonment by willful failure to support; (2) 

persistence of the conditions that led to the children’s removal; and (3) substantial 

noncompliance with the requirements of the permanency plans. The trial court also 

found that termination of Appellant’s parental rights was in the children’s best interest. 

On appeal, the Tennessee Department of Children’s Services concedes that the 

persistence of conditions ground is not applicable to Appellant. We agree and 

accordingly reverse the trial court’s reliance on that ground for termination. Although we 

also reverse the trial court’s finding of abandonment, because it is only necessary that one 

ground for termination be established, the trial court’s termination order is otherwise 

affirmed. 

On Remand from the Supreme Court; Judgment of the Juvenile Court

Reversed in Part, Affirmed in Part, and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Matthew S. Bailey, Sparta, Tennessee, for the appellant, Sarah R. P. B. 

Herbert H. Slatery, III, Attorney General and Reporter; and Brian A. Pierce, Assistant 

Attorney General, for appellees, Bryan C. D. and Tennessee Department of Children’s 

Services.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

This termination of parental rights case is on remand from the Tennessee Supreme 

Court for consideration on the merits. In our initial review of the case, we determined 

03/09/2018
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that this Court lacked subject-matter jurisdiction over the appeal based on the absence of 

a timely notice of appeal signed by the Appellant. In its recent decision, In re Bentley D., 

No. E2016-02299-SC-RDO-PT, 2017 WL 5623577 (Tenn. Nov. 22, 2017), the 

Tennessee Supreme Court held that the signature requirement contained in Tennessee 

Code Annotated section 36-1-124(d), requiring the appellant to sign the notice of appeal, 

was satisfied by the appellant’s attorney’s signature on the notice of appeal. In this case, 

the original notice of appeal, which was timely filed, was signed by the Appellant’s 

attorney. Accordingly, under the holding in In re Bentley D., this Court has jurisdiction 

to adjudicate this appeal on its merits. We now turn to that task.

In this appeal, we address the termination of parental rights of S.P.B. (“Mother”) 

to her two children, C.D. and H.D. (“the children”).1 C.D. was born in November 2012. 

H.D. was born in May 2014. 

A little over a year after H.D.’s birth, in June 2015, the Tennessee Department of 

Children’s Services (“the Department”) received a referral alleging, among other things, 

that the children’s grandmother had “been using and selling pain pills and subutex.” The 

Department looked into the matter, and on June 18, 2015, it filed a petition in the Overton 

County Juvenile Court to declare the children dependent and neglected. According to the 

dependency and neglect petition, a Department case manager had located the children at 

the home of the children’s grandmother. The home’s basement allegedly had standing 

water with mold, and the petition stated that the children’s grandmother had tested 

positive for buprenorphine and amphetamine after submitting to a drug screen. The 

children’s grandmother denied knowledge of Mother’s whereabouts and claimed to have 

had no contact with Mother since July 2014. The petition stated that a case manager 

subsequently met with Mother at the Overton County Jail on June 17. During this 

meeting, Mother allegedly admitted to a long history of drug use. 

The children were placed in the Department’s custody in light of the allegations 

set forth in the dependency and neglect petition, and eventually, both were adjudicated 

dependent and neglected.2Following their removal from their grandmother’s home, 

family permanency plans were created. The first permanency plan, which was developed 

on July 14, 2015, was ratified by the Juvenile Court on November 18, 2015. This plan 

contained several requirements for Mother, including the following: (1) participate in 

therapeutic supervised visitation with the children; (2) contact the child support office to 

set up payments; (3) keep weekly contact with the Department; (4) maintain steady 

housing for at least six months; (5) provide proof of legal income; (6) submit to drug 

screens; (7) complete a psychological evaluation with a parenting component and follow 

recommendations; (8) complete an alcohol and drug assessment and follow 

 

1

In cases involving minor children, it is this Court’s policy to redact names sufficient to protect 

the children’s identities.

2 The children were adjudicated dependent and neglected by order entered on November 4, 2015. 
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recommendations; and (9) sign releases so that the Department can receive information 

and be able to talk to service providers. A revised permanency plan containing these 

same requirements was ratified in February 2016. 

During the period following the children’s entry into the Department’s custody, 

the Department struggled to maintain communication with Mother and monitor her 

compliance with the permanency plan requirements. For example, in an affidavit filed 

with the Juvenile Court in November 2015, a Department case manager indicated that 

Mother had revoked the release that would allow the Department to access Mother’s 

assessments from service providers. The same affidavit also detailed some of the 

Department’s failed efforts to stay in contact with Mother. Subsequent to the filing of 

this affidavit, by order entered on December 2, 2015, the Juvenile Court suspended 

Mother’s visits with the children “due to her lack of contact with the Department, lack of 

contact with her attorney and lack of cooperation.” Later, pursuant to an “Annual 

Permanency Hearing Order” entered on May 4, 2016, the Juvenile Court determined that 

Mother was not in substantial compliance with the current permanency plan “in that [she] 

failed to maintain contact with the Department.” 

On July 15, 2016, the Department filed a petition to terminate Mother’s parental 

rights.3 As specific grounds for the termination, the Department asserted that Mother was 

in substantial noncompliance with the provisions of the permanency plans and that she 

had abandoned the children by willfully failing to support them.4 The petition also 

averred that it was in the best interest of the children to terminate Mother’s parental 

rights. 

A hearing on the Department’s termination petition was held on December 20, 

2016. At the time of trial, Mother was incarcerated. According to her testimony, she had 

been incarcerated for several months on account of past indictments. 

In large part, the proof at the hearing focused on Mother’s failure to maintain 

contact with the Department and her lack of compliance with the requirements of the 

permanency plans. Proof was also offered regarding the status of the children and their 

well-being since having come into the Department’s custody. To this end, the children’s 

foster mother specifically testified that the children seemed well-adjusted and bonded in 

her home. Although the children allegedly had behavior issues when they entered her 

home, the foster mother testified that these issues had “got[ten] a lot better.” Upon the 

 

3 The Department also sought to terminate the parental rights of the children’s father. Although 

the father’s parental rights were eventually terminated, his rights are not at issue in this appeal.

4 Although a persistence of conditions ground for termination was not clearly pled, some 

language from Tennessee Code Annotated section 36-1-113(g)(3) did appear in the petition. However, as 

explained herein, the Department has conceded on appeal that this ground for termination is not 

applicable to the facts of this case.
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conclusion of the hearing, the Juvenile Court orally ruled that the Department had met its 

burden of proof regarding the grounds for termination. 

A final decree memorializing the Juvenile Court’s oral ruling was entered on 

January 4, 2017. In its final decree, the Juvenile Court found (1) that Mother had 

willfully failed to support the children for the four months immediately preceding the 

filing of the petition to terminate, (2) that Mother’s parental rights should be terminated 

pursuant to the persistence of conditions ground codified at Tennessee Code Annotated 

section 36-1-113(g)(3), and (3) that Mother had been “substantially non-compliant with 

the statement of responsibilities in the permanency plans.” The Juvenile Court further 

determined that there was clear and convincing evidence that termination was in the 

children’s best interest. This appeal followed the entry of the final decree.

ISSUES PRESENTED

In her appellate brief, Mother raises the following three issues related to the

termination of her parental rights:5

 Whether the juvenile court improperly determined that Appellant abandoned her 

children by failing to support them.

 Whether the juvenile court improperly determined that Appellant did not 

substantially comply with the permanency plan.

 Whether the juvenile court improperly concluded that the termination of 

Appellant’s parental rights was in the children’s best interests.

Although Mother did not specifically challenge the Juvenile Court’s determination that 

her parental rights should be terminated based on the persistence of conditions ground, 

her failure to do so does not curb our review on appeal. In order to “ensure that 

fundamental parental rights are not terminated except upon sufficient proof, proper 

findings, and fundamentally fair procedures,” we are required to review the trial court’s 

findings as to each ground for termination and as to whether termination is in the child’s 

best interest. See In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[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.”). Accordingly, our discussion will not be restricted to the specific issues 

delineated in Mother’s brief.

 

5 Although Mother’s brief also raises two issues concerning the signature requirement in 

Tennessee Code Annotated section 36-1-124(d), the signature requirement is no longer at issue as noted 

previously. 
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STANDARD OF REVIEW

“A biological parent’s right to the care and custody of his or her child 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.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App. 

2007) (citations omitted). “Although this right is fundamental and superior to claims of 

other persons and the government, it is not absolute.” In re J.C.D., 254 S.W.3d 432, 437 

(Tenn. Ct. App. 2007) (citation omitted). “It continues without interruption only as long 

as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its 

limitation or termination.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) 

(citations omitted). In Tennessee, “[w]ell-defined circumstances exist under which a 

parent’s rights may be terminated.” In re Roger T., No. W2014-02184-COA-R3-PT, 

2015 WL 1897696, at *6 (Tenn. Ct. App. Apr. 27, 2015), no perm. app. filed. Pursuant 

to the Tennessee Code, parties who have standing to seek the termination of a parent’s 

parental rights must prove two things. First, they must prove at least one of the statutory 

grounds for termination. In re J.C.D., 254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-

1-113(c)(1)). Second, they must prove that termination of parental rights is in the child’s 

best interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).

Because the decision to terminate a parent’s parental rights has “profound 

consequences,” trial courts must apply a higher standard of proof in deciding termination 

cases. In re M.L.P., 228 S.W.3d at 143. “To terminate parental rights, a court must 

determine that clear and convincing evidence proves not only that statutory grounds exist 

but also that termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 

546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). “Clear and convincing 

evidence is evidence that eliminates any substantial doubt and that produces in the factfinder’s mind a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-COAR3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007) (citation omitted). This 

heightened burden of proof “minimizes the risk of erroneous decisions.” In re M.L.P., 

228 S.W.3d at 143 (citations omitted).

Due to the heightened burden of proof required under the statute, we must adapt 

our customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 

2005). “First, we must review the trial court’s specific findings of fact de novo in 

accordance with Tenn. R. App. P. 13(d).” In re M.J.B., 140 S.W.3d at 654. “Second, we 

must determine whether the facts, either as found by the trial court or as supported by the 

preponderance of the evidence, clearly and convincingly establish the elements required 

to terminate a biological parent’s parental rights.” Id. (citations omitted).

DISCUSSION

As noted previously, when the trial court entered its final decree, it found that the 

following grounds existed for terminating Mother’s parental rights: (1) abandonment by 
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willful failure to support, (2) persistence of the conditions that led to the children’s 

removal; and (3) failure to substantially comply with the requirements of the permanency 

plans. Although we are required to review each ground for termination found by the trial 

court, In re Carrington H., 483 S.W.3d at 525-26, we ultimately need only find that one 

ground for termination was established in order to uphold the trial court’s decision. In re 

Valentine, 79 S.W.3d at 546. We will review each ground in turn.

Abandonment 

The first ground for termination listed in our termination statute, and the most 

frequently relied on, is abandonment. In re Audrey S., 182 S.W.3d at 862. The acts that 

constitute abandonment are outlined in Tennessee Code Annotated section 36-1-102, 

which provides five alternative definitions. In this case, the Department alleged that 

Mother had abandoned the children by failing to support them. The Juvenile Court 

agreed with the Department on this issue and found that the proof established Mother’s 

abandonment pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i). This 

basis for termination, which comprises the first definition of abandonment under section 

36-1-102(1)(A), is defined as follows:

(i) 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 or parents or the guardian or guardians of the child who is the 

subject of the petition for termination of parental rights or adoption, that the 

parent or parents or the guardian or guardians 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[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i). Under the statute, “willfully failed to support” or 

“willfully failed to make reasonable payments toward such child’s support” means the 

“willful failure, for a period of four (4) consecutive months, to provide monetary support 

or the willful failure to provide more than token payments toward the support of the 

child.” Tenn. Code Ann. § 36-1-102(1)(D). Token support is defined as “support, [that] 

under the circumstances of the individual case, is insignificant given the parent’s means.” 

Tenn. Code Ann. § 36-1-102(1)(B).

“‘Willfulness’ does not require the same standard of culpability required by the 

penal code.” In re S.M., 149 S.W.3d 632, 642 (Tenn. Ct. App. 2004) (citation omitted). 

“Failure to support a child is ‘willful’ when a person is aware of his or her duty to 

support, has the capacity to provide the support, makes no attempt to provide the support, 

and has no justifiable excuse for not providing the support.” Id. (citations omitted). 

“Simply proving that a parent did not pay financial support for her child during the 

pertinent four-month period is not sufficient to show willful failure to support.” In re 

Keri C., 384 S.W.3d 731, 746 (Tenn. Ct. App. 2010) (citation omitted).
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In this case, we are of the opinion that the proof on this issue fails to satisfy the 

scrutiny imposed by the clear and convincing evidence standard. Although testimony 

was offered that Mother had not made any support payments the entire time that the 

children were in the Department’s custody, a family service worker with the Department 

agreed that, given the frequency of Mother’s incarcerations, her periods of nonincarceration were not as often as it would take to get a job. Given this representation, 

we cannot conclude that there is clear and convincing evidence to support the finding that 

Mother’s failure to support the children was willful. We therefore reverse the Juvenile 

Court’s reliance on this ground for termination.

Persistence of Conditions

Tennessee Code Annotated section 36-1-113(g)(3) outlines the ground for 

termination commonly known as “persistence of conditions.” It applies where the 

following elements are present:

(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 or parents or the guardian or guardians, 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 or parents or 

the guardian or guardians 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). “A finding on the ground of persistence of 

conditions is not appropriate unless DCS presents clear and convincing evidence to 

establish each statutory element.” In re B.A.C., 317 S.W.3d 718, 725 (Tenn. Ct. App. 

2009) (citation omitted). The purpose behind this ground “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 

D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3, 

2008).

As this Court has recently discussed, “[a]s a threshold requirement for 

applicability of the ground of persistence of conditions in termination of parental rights 

cases, the child must . . . have been removed from the defendant parent’s home.” In re 

Nevaeh B., No. W2016-01769-COA-R3-PT, 2018 WL 896070, at *10 (Tenn. Ct. App. 

Feb. 14, 2018). Here, the proof is not sufficient to establish this threshold requirement 
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because the record reveals that the children were removed from the home of their 

grandmother. We specifically observe that during the trial of this case, one of the 

Department’s family service workers expressly stated that “[Mother] did not live at the 

home the children were removed from.” The Department concedes in its appellate brief 

that this ground for termination is not applicable, and given our agreement on this issue 

due to the absence of appropriate proof, we reverse the Juvenile Court’s order as it relates 

to the persistence of conditions ground.

Substantial Noncompliance with the Requirements of the Permanency Plans

Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), a court may 

terminate a parent’s parental rights when the parent is in “substantial noncompliance . . . 

with the statement of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-

113(g)(2). In conjunction with terminating a parent’s parental rights under this ground, 

the court “must first find that the plan requirements are reasonable and related to 

conditions that necessitate foster care placement.” In re Hannah H., No. E2013-01211-

COA-R3-PT, 2014 WL 2587397, at *10 (Tenn. Ct. App. June 10, 2014) (citations 

omitted). “The trial court must then find that the noncompliance is substantial.” Id.

(citation omitted). Although the termination statute does not define what conduct 

constitutes substantial noncompliance, terminating parental rights under this ground 

“requires more proof than that a parent has not complied with every jot and tittle of the 

permanency plan.” In re M.J.B., 140 S.W.3d at 656. The significance of the 

noncompliance “should be measured by both the degree of noncompliance and the weight 

assigned to that requirement.” In re Valentine, 79 S.W.3d at 548. “Terms which are not 

reasonable and related are irrelevant, and substantial noncompliance with such terms is 

irrelevant.” Id. at 548-49. Because determining whether substantial noncompliance 

exists is a question of law, we review the issue de novo with no presumption of 

correctness. Id. at 548.

As noted previously, the permanency plans developed in this case set forth several 

requirements for Mother. The requirements were directed to ensuring that Mother 

addressed her drug problems and were also tailored to allow Mother to demonstrate an 

ability to lead a stable life. Among other things, Mother was required to maintain steady 

housing, provide proof of legal income, contact the child support office to set up 

payments, participate in therapeutic supervised visitation, complete a psychological 

evaluation and follow recommendations, and complete an alcohol and drug assessment 

and follow recommendations. She was also required to keep weekly contact with the 

Department and sign releases allowing the Department to receive information from 

service providers. In this case, the Juvenile Court concluded that all of these 

requirements were reasonably related to remedying the conditions that necessitated foster 

care, but it found that compliance with the alcohol and drug assessment was “particularly 

important in reducing the risk of harm to the children.” After finding that the 

requirements in the permanency plans had simply not been completed, the Juvenile Court 
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concluded that Mother was substantially noncompliant pursuant to Tennessee Code 

Annotated section 36-1-113(g)(2).

The record supports the Juvenile Court’s determination regarding this ground for 

termination. At trial, Jenna Vaughn, a family service worker with the Department, 

testified that Mother had not completed any of the requirements of the permanency plans. 

At one point in her testimony, moreover, she specifically stated that “[n]one of the 

actions steps . . . were followed.” Although Ms. Vaughn identified the need to remedy 

substance abuse concerns as the most important aspect of the permanency plans, she 

stated that she did not have any documentation as to whether anything was completed. 

As explained in further detail below, the Department’s inability to monitor Mother’s 

compliance with the permanency plans is largely attributable to Mother’s demonstrated 

lack of cooperation with the Department. 

Remaining in weekly contact with the Department was an express requirement of 

the permanency plans, but the proof shows that Mother failed to do so in this case. Ms. 

Vaughn generally testified as to periods when, despite her own efforts, she failed to 

remain in contact with Mother, and another family service worker, Lindsay Witcher, 

testified to similar difficulties. In addition to being a direct violation of the permanency 

plans, Mother’s failure to remain in contact with the Department affected her compliance 

with other requirements. Ms. Witcher, for instance, attempted to arrange for therapeutic 

supervised visitation with the children through Health Connect. Although participation in 

therapeutic supervised visitation was required by the permanency plans, the Juvenile 

Court suspended Mother’s visits by an order entered in December 2015 due to her “lack 

of contact with the Department” and “lack of cooperation.”6 According to Ms. Witcher’s 

testimony, Mother had already missed two scheduled “parent/child visits” prior to this 

suspension of visitation. 

Mother’s lack of cooperation was not limited to her failure to remain in regular 

contact with the Department. It also manifested itself in her failure to provide releases 

that would allow the Department to receive information from service providers. 

Although Mother was required to sign such releases under the terms of the permanency 

plans, the proof shows that she failed to comply with this requirement. As explained 

below, this failure in turn hindered the Department’s ability to review whether other 

requirements of the permanency plan had been fulfilled.

In support of her contention that the Juvenile Court’s substantial noncompliance 

determination was in error, Mother argues on appeal that the most important object of the 

permanency plans, i.e., addressing her substance abuse, was “arguably dealt with” 

 

6 This result was certainly consistent with Ms. Vaughn’s observation that Mother’s failure to keep 

in contact with the Department was a significant roadblock to accomplishing the tasks of the permanency 

plans. 
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through her participation in a program with Next Door. There is no dispute that Mother 

participated in a program with Next Door, and Ms. Witcher testified on direct 

examination that Mother “completed a psychological and . . . completed an A&D 

assessment.” Ms. Witcher further testified that Mother “did two out of six parenting 

classes and two anger management classes.” This information notwithstanding, the 

Department was not able to evaluate whether Mother fully complied with all 

recommendations stemming from her alcohol and drug assessment and psychological 

evaluation. In fact, Ms. Witcher specifically stated that the Department “could not 

receive any of the documents [from Next Door] because [Mother] revoked her release for 

the Department before she left.” 

In any event, Mother’s own testimony establishes that she did not follow all the 

recommendations of the alcohol and drug assessment. On cross-examination, Mother 

admitted that she had been recommended to start an intensive outpatient program (“IOP”) 

as a result of her alcohol and drug assessment. When asked if she had started IOP, 

Mother responded as follows: “I didn’t.” According to the Department’s proof, Mother 

had never even contacted the IOP provider to schedule it. 

In light of the foregoing discussion and the proof presented at trial, we conclude 

that there is clear and convincing evidence to support the Juvenile Court’s finding that 

Mother was in substantial noncompliance with the requirements of the permanency plans. 

The proof put on by the Department clearly and convincingly showed that Mother had 

not completed the permanency plan requirements. She did not have stable housing or 

proof of a stable income, and her visitations with the children had been suspended despite 

efforts by the Department to arrange for therapeutic supervised visitation. Mother also 

failed to cooperate with the Department. The proof shows that she did not keep weekly 

contact with the Department as required, and notwithstanding the requirement that she 

sign releases so that the Department could receive information from service providers, 

she revoked her release from Next Door. Moreover, although compliance with the 

alcohol and drug assessment was particularly important in this case, Mother’s testimony 

demonstrates that she did not follow the recommendation to begin IOP. This ground for 

termination is therefore affirmed.

Best Interests

Despite our conclusion that a statutory ground for termination exists, such proof 

does not by itself justify the termination of a parent’s parental rights. “Because not all 

parental conduct is irredeemable, Tennessee’s termination of parental rights statutes 

recognize the possibility that terminating an unfit parent’s parental rights is not always in 

the child’s best interest.” In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013) 

(citation omitted). As such, “[w]hen at least one ground for termination of parental rights 

has been established, the petitioner must then prove, by clear and convincing evidence, 
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that termination of the parent’s rights is in the child’s best interest.” Id. at 572 (citing 

White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)).

When conducting a best interests analysis, conflicts between the interests of the 

parent and child are to be resolved in “favor of the rights and best interest of the child.” 

Id. at 573 (citing Tenn. Code Ann. § 36-1-101(d)). Importantly, the best interests 

analysis “must be viewed from the child’s, rather than the parent’s, perspective.” White 

v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee, 

the Legislature has codified a list of nine, non-exclusive factors that trial courts are to 

consider when conducting a best interests inquiry in termination of parental rights 

proceedings. These factors are as follows:

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

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

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

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

the child support guidelines promulgated by the department pursuant to § 

36-5-101.

Tenn. Code Ann. § 36-1-113(i). “Ascertaining a child’s best interests does not call for a 

rote examination” of these factors, and “depending upon the circumstances of a particular 

child and a particular parent, the consideration of one factor may very well dictate the 

outcome of the analysis.” In re Audrey S., 182 S.W.3d at 878 (citing Moody, 171 S.W.3d 

at 194). 

In support of its determination that terminating Mother’s parental rights was in the 

children’s best interests, the Juvenile Court found that: (1) Mother had failed to make an 

adjustment of circumstances, conduct or conditions as to make it safe and in the 

children’s best interest to be in her home, (2) Mother had failed to effect a lasting 

adjustment after reasonable efforts by available social agencies for such duration of time 

that lasting adjustment did not reasonably appear possible, (3) Mother had not maintained 

regular visitation with the children, (4) a meaningful relationship had not been 

established between the children and Mother, (5) Mother had failed to address her 

substance abuse issues which was the cause of bringing the children into custody, (6) 

Mother had not paid child support consistently with the child support guidelines, (7) 

Mother had not paid a reasonable portion of the children’s substitute physical care and 

maintenance when financially able to do so, (8) Mother had shown little or no genuine 

interest in the welfare of the children and had refused to maintain contact with the 

Department, (9) the children were in a foster home that wished to adopt them, and (10) 

that C.D.’s behaviors had improved tremendously and that H.D.’s perceived 

developmental delays had greatly improved. 

Having reviewed the record transmitted to us on appeal, we conclude that the 

Juvenile Court’s findings are supported by the evidence. As we have noted, although the 

Department attempted to arrange for therapeutic supervised visitation with the children, 

Mother’s visitations were suspended when she failed to remain in contact with the 

Department. Moreover, according to Ms. Vaughn’s testimony, Mother did not contribute 

to the children’s physical care or maintenance, nor did she show interest in the welfare of 

the children. In fact, Ms. Vaughn testified that Mother never made any inquiry to the 

Department concerning how the children were doing in foster care. 

There is no question that Mother’s history with drugs has presented a barrier to 

reunification with the children. Although Mother argues on appeal that “her treatment for 

substance abuse” weighs against the termination of her parental rights, it should be noted 
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that Mother never participated in IOP as recommended following her alcohol and drug 

assessment. Her asserted commitment to recovery notwithstanding, the permanency 

plans made clear that Mother was to follow and complete all recommendations from her 

drug assessment. 

At the time of trial, Mother testified that she was incarcerated for past indictments. 

Although she expected those indictments to be dismissed the following January, she also 

testified that she had applied and been accepted to Team Challenge. Mother expressed a 

desire to enter this program following her release. Although we commend Mother for 

choosing to pursue programs to improve herself, the children need permanency in their 

lives. According to Mother, the Team Challenge program could last up to a year. When 

asked who would take care of the children while she was in the Team Challenge program, 

Mother responded as follows: “I don’t know. I guess the foster parents.” 

When the interests of a child and the parents diverge, the best interests of the child 

must prevail. In re M.H., No. M2005-00117-COA-R3-PT, 2005 WL 3273073, at *10 

(Tenn. Ct. App. Dec. 2, 2015) (citations omitted). Here, the proof shows that the children 

are well-adjusted and bonded in their foster home and have improved since coming into 

foster care. Whereas it was previously suspected that H.D. was developmentally delayed, 

Ms. Vaughn testified that H.D. is now back on track developmentally. Whereas C.D. 

previously “threw frequent fits,” “hit her brother,” and “threw things,” she now 

reportedly does not exhibit any of these behaviors. The foster mother also testified that 

she was willing to adopt the children should they become available for adoption. From 

the totality of the circumstances and the record, we conclude that there is clear and 

convincing evidence that the termination of Mother’s parental rights is in the children’s 

best interest. 

CONCLUSION

For the foregoing reasons, we reverse the Juvenile Court’s finding of abandonment 

and its reliance on the persistence of conditions ground for termination. The termination 

order is otherwise affirmed. Costs of this appeal are assessed against the Appellant, 

S.P.B. Because the Appellant is proceeding in forma pauperis in this appeal, execution 

may issue for costs if necessary. This case is remanded for the collection of costs, 

enforcement of this Court’s judgment, and for such further proceedings as are necessary 

and consistent with this Opinion.

_________________________________

ARNOLD B. GOLDIN, JUDGE