IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 31, 2018 Session

IN RE T.R. ET AL.

Appeal from the Juvenile Court for Roane County

No. 2017-JC-49 Terry Stevens, Judge

___________________________________

No. E2017-02115-COA-R3-PT

___________________________________

The Department of Children’s Services filed a petition to terminate the parental rights of 

J.E.R. (mother) and R.A.R. (father) with respect to their three children, T.E.R., M.A.R., 

and T.Z.R. The trial court determined that clear and convincing evidence supported three 

grounds for terminating mother and father’s parental rights: (1) abandonment for failure 

to provide a suitable home; (2) substantial noncompliance with the permanency plan; and 

(3) persistence of conditions. By the same quantum of proof, the court determined that 

termination is in the best interest of the children. Mother appeals the trial court’s order 

terminating her rights.1 We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Rachel S. Lambert, Knoxville, Tennessee, for the appellant, J.E.R.

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

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

Children’s Services.

OPINION

I.

In April 2016, DCS received a referral for environmental neglect, medical neglect, 

severe educational neglect, and abandonment. After investigating the matter, DCS filed a 

petition for temporary legal custody, alleging the children to be dependent and neglected. 

 

1

Father did not appeal. 

09/17/2018
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Later, mother and father stipulated to all of the facts alleged in DCS’s petition, except the 

allegation of sexual abuse. 

According to the petition, the children were in the care of their paternal 

grandmother when law enforcement officers arrived at the home. At the time, the 

children were seven, five, and three years old. The grandmother reported that mother and 

father had been out of town for approximately two weeks. She did not know their precise 

whereabouts or the nature of their trip. The petition also alleged that “all the windows in 

the home were boarded completely from the inside although they were not broken or 

damaged.” There were “roaches and insects everywhere, including the refrigerator where 

there was no food.” In fact, there were only a “few cans of vegetables” in the entire 

house. The home had electricity but the bathroom contained the home’s only light 

fixture. The bathroom did not have a sink and the toilet contained human excrement. In 

addition, “[t]he children were dirty and wearing clothing that did not appear[] to have 

been washed.” The middle child had “completely rotted teeth.” The grandmother told 

law enforcement that the oldest child had “never been to school, never been to a dentist[,] 

and never had any shots.” The children “reported that they all sleep with the 

grandmother in a twin size bed.” The children also informed DCS that father “threw 

[T.E.R.] against the wall in her car seat, punched [M.A.R.] in the stomach[,] and gave 

T.Z.R. a busted lip.”2 

Later, DCS amended its petition to include allegations of drug abuse and sexual 

abuse. Specifically, the amended petition stated that the children told their foster mother 

that their grandmother, mother, and father “would often take white goody powder up 

their nose” and that the children could “demonstrate how to do it if there is no straw to 

use because they have seen it done before.” T.E.R. also reported that her father had 

touched her inappropriately. 

Based on the foregoing allegations, on April 28, 2016, the trial court granted

DCS’s petition for temporary legal custody and the children were removed from the 

home. The parents attended the preliminary hearing on May 2, 2016, but they failed to 

appear at the initial permanency meeting on May 24, 2016. As a result, DCS developed 

the permanency plan without the parents’ input. However, the parents did attend a 

subsequent permanency meeting on June 16, 2016. At that meeting, DCS explained the 

requirements of the permanency plan and the criteria for termination of parental rights. 

Mother and father agreed to the terms of the permanency plan and signed it. The plan 

was slightly revised on November 7, 2016, and March 2, 2017.

On April 5, 2017, DCS filed a petition to terminate parental rights, alleging four 

 

2 Although the parents stipulated to the facts as alleged in the petition (with the exception of the 

allegation of sexual abuse), mother and father later testified that the allegations of domestic violence were 

untrue or taken out of context.
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grounds for termination: (1) abandonment for failure to support; (2) abandonment for 

failure to provide a suitable home; (3) substantial noncompliance with the permanency 

plan; and (4) persistence of conditions. A bench trial was held over the course of two 

days – June 28, 2017 and September 27, 2017. On the first day of trial, father testified; 

DCS later examined mother on direct. On the second day of trial, before any party 

testified, mother’s counsel made an oral motion for a continuance. She stated that, two 

days prior to the hearing, mother had informed her that she had been raped on August 31, 

2017. Counsel claimed to have medical records showing that mother went to the hospital 

to seek treatment for the self-reported rape; however, those records were never entered

into evidence. According to mother’s counsel, mother believed that “she is mentally 

unable to testify in her defense or to assist in her defense through the trial today.” 

Consequently, counsel was requesting the continuance “to allow [mother] some more 

time to seek counseling and further mental health treatment . . . so that she is in a 

competent mental state . . . .” After an objection by DCS, the court denied mother’s 

motion. 

After closing arguments had concluded, mother’s counsel asked the court for 

permission to respond to opposing counsel’s observations about mother’s courtroom 

demeanor. The trial court denied her request because mother’s counsel failed to address 

the issue in her own closing argument. The court also stated the following:

Just for the record, I’ll put my personal observations that 

[mother] has been consistently writing notes. She’s been 

quickly writing notes. She’s been speaking with [father] 

consistently throughout this whole time. The only time she 

didn’t is when she started crying and I gave her a little time to 

go out in the hall and compose herself. And she came back in 

and she again began completing notes and speaking with her 

counsel and speaking with [father]. We allowed her to have 

someone bring an inhaler into the courtroom, for whatever 

reason it’s there. She doesn’t seem impaired. She doesn’t 

seem lethargic. She seems very aware. She seems like she’s 

been very attentive the entire time. I’ve never seen her at any 

point not being engaged in what was going on. And at any 

point, I’ve not seen or heard anything that Ms. Lambert 

couldn’t understand what was being said to her throughout 

the entire thing. In fact, my observation is, is from the way 

that they were passing back – notes back and forth between 

[father] and [mother], that there was some sort of dialogue 

going on during the middle of the trial. So I do not feel, from 

my observations, that there is any concern of the Court that 

she is not competent today to the extent to assist you with the 

trial. 
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On October 6, 2017, the trial court entered an order terminating parental rights. 

The termination order reiterated the court’s findings relating to mother’s courtroom 

demeanor. Although the court did not find clear and convincing evidence for terminating 

mother’s parental rights on the ground of abandonment for failure to support,

3

the court 

did find clear and convincing evidence to terminate mother’s rights on the other three 

grounds alleged by DCS. The court also found clear and convincing evidence that 

termination was in the best interest of the children. Mother appeals.

II.

Mother raises the following issues:

Whether the trial court deprived mother of due process by

denying her motion for a continuance.

Whether the trial court erred in finding clear and convincing 

evidence to terminate parental rights on the ground of 

abandonment for failure to provide a suitable home.

Whether the trial court erred in finding clear and convincing 

evidence to terminate parental rights on the ground of 

substantial noncompliance with the permanency plan.

Whether the trial court erred in finding clear and convincing 

evidence to terminate parental rights on the ground of 

persistence of conditions.

Whether the trial court erred in finding that clear and 

convincing evidence supports a finding that the termination of 

parental rights is in the best interest of the children. 

III.

A parent has a fundamental right, based on both the federal and state constitutions, 

to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651 

(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash–Putnam v. McCloud, 

921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute. 

The State may interfere with a parent’s rights in certain circumstances. In re Angela E., 

 

3

The court did find that clear and convincing evidence supported terminating father’s parental 

rights on this ground.
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303 S.W.3d at 250. Our legislature has listed the grounds upon which termination 

proceedings may be brought. Tenn. Code Ann. § 36-1-113(g) (2017). Because 

termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. 

Marr, 127 S.W.3d 737, 739 (Tenn. 2004), a parent’s rights may be terminated only where 

a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the 

Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

To terminate parental rights, a court must determine by clear and convincing 

evidence the existence of at least one of the statutory grounds for termination and that 

termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables 

the fact-finder to form a firm belief or conviction regarding the truth of the facts, and 

eliminates any serious or substantial doubt about the correctness of these factual 

findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).

Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and 

convincing standard establishes that the truth of the facts asserted is highly probable.” In 

re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

Once a ground for termination is established by clear and convincing evidence, the 

trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing 

In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis 

is separate from and subsequent to the determination that there is clear and convincing 

evidence of grounds for termination.” Id. at 254. The existence of a ground for 

termination “does not inexorably lead to the conclusion that termination of a parent’s 

rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT, 

2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

We are required to review all of the trial court’s findings with respect to grounds 

and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold 

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 interest[ ], regardless of whether the parent challenges 

these findings on appeal.”).

The Tennessee Supreme Court has stated our standard of review:

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 
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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.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard 

witnesses, especially where issues of credibility and weight of oral testimony are 

involved, considerable deference must be accorded to . . . the trial court’s factual 

findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034, 

at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery 

Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

IV.

We first consider whether the trial court deprived mother of due process by 

denying her motion for a continuance. “[W]e will not disturb a trial court’s ruling on 

such a motion unless the record clearly shows abuse of discretion and prejudice to the 

party seeking a continuance.” In re Ashley M., No. E2009–00517–COA–R3–PT, 2009 

WL 3103817, at *4 (Tenn. Ct. App., filed Sept. 29, 2009) (citing Blake v. Plus Mark, 

Inc., 952 S.W.2d 413, 415 (Tenn. 1997)). “A trial court abuses its discretion only when 

it applies an incorrect legal standard, or reaches a decision which is against logic or 

reasoning that causes an injustice to the party complaining.” Id. (citing Eldridge v. 

Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). 

Typically, in ruling on a motion to continue, the trial court should consider the 

following factors: “(1) the length of time the proceeding has been pending, (2) the reason 

for the continuance, (3) the diligence of the party seeking the continuance, and (4) the 

prejudice to the requesting party if the continuance is not granted.” In re Eric G., No. 

E2017–00188–COA–R3–PT, 2017 WL 4844378, at *4 (Tenn. Ct. App., filed Oct. 25, 

2017) (quoting Tidwell v. Burkes, No. M2015–01270–COA–R3–CV, 2016 WL 3771553, 

at *5 (Tenn. Ct. App., filed July 8, 2016)). In parental termination cases, the court must 

also be mindful of the following statutory directives:

The court shall ensure that the hearing on the petition takes 

place within six (6) months of the date that the petition is 

filed, unless the court determines an extension is in the best 
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interests of the child. . . .

Tenn. Code Ann. § 36-1-113(k) (2017) (amended 2018).

In all cases where the termination of parental rights or 

adoption of a child is contested by any person or agency, the 

trial court shall, consistent with due process, expedite the 

contested termination or adoption proceeding by entering 

such scheduling orders as are necessary to ensure that the 

case is not delayed, and such case shall be given priority in 

setting a final hearing of the proceeding and shall be heard at 

the earliest possible date over all other civil litigation other 

than child protective services cases arising under title 37, 

chapter 1, parts 1, 4 and 6.

Tenn. Code Ann. § 36-1-124(a) (2017) (amended 2018).

The first relevant factor to consider is “the length of time the proceeding has been 

pending.” In re Eric G., 2017 WL 4844378, at *4. Here, DCS filed the petition to 

terminate on April 5, 2017. Thus, the statutorily preferred six-month deadline for a final 

hearing was October 5, 2017. The trial began on June 28, 2017, but was continued for 

three months. Mother’s motion for an additional continuance came on September 27, 

2017, just days prior to the statutorily preferred deadline. Absent evidence that a 

continuance would be in the best interest of the children, this factor clearly weighs in 

favor of the trial court’s decision to deny mother’s motion.

The second relevant factor to consider is the “reason for the continuance.” In re 

Eric G., 2017 WL 4844378, at *4. On the second day of trial, mother alleged that she 

was sexually assaulted on August 31, 2017, and therefore was “mentally unable to testify 

in her defense or to assist in her defense through the trial.” Regardless of whether and 

when the alleged sexual assault occurred, the critical question before the trial court was 

whether mother was competent to testify. 

This Court confronted a similar situation in In re Terry S.C., No. M2013–02381–

COA–R3–PT, 2014 WL 3808911 (Tenn. Ct. App., filed July 31, 2014). In that case, 

mother testified that she suffered from post-traumatic stress disorder, a mood disorder, 

and a sleep disorder, and that she had been receiving mental health counseling for two 

and a half years. Id. at *15. In light of that testimony, mother’s counsel orally moved the 

court for a continuance so that mother could undergo a mental evaluation. Id. In denying 

the motion for a continuance, the trial court stated the following in Terry:

I don’t see anything to indicate that she is suffering from a 

mental condition to the extent that we need the mental 
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evaluation. She appears to be coherent. She appears to 

understand questions. She’s testified in a coherent manner. I 

think she understands why she’s here today. So I’m going to 

deny the motion and we’re going to move forward.

Id. 

In reviewing the trial court’s decision in Terry, we observed that

“[t]he question of witness competency is a matter for the trial 

court’s discretion, and the trial court’s decision will not be 

overturned absent abuse of that discretion.” State v. Nash, 

294 S.W.3d 541, 548 (Tenn. 2009) (citing State v. Caughron, 

855 S.W.2d 526, 538 (Tenn. 1993)). “Under Tennessee Rule 

of Evidence 601, “ ‘[e]very person is presumed competent to 

be a witness except as otherwise provided in these rules or by 

statute.’ ” Id. Moreover, “[t]he granting of a continuance lies 

within the sound discretion of the trial court.” State v. 

Schmeiderer, 319 S.W.3d 607, 617 (Tenn. 2010) (citing State 

v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004)).

Id.

We ultimately concluded that the trial court did not abuse its discretion by denying 

the mother’s motion for a continuance. Several facts informed our decision, but it was of 

“paramount[]” importance that “the juvenile court, with the benefit of hearing Mother’s 

testimony and observing her demeanor, found Mother to be coherent.” Id.

As in In re Terry S.C., the trial court in this case observed mother’s demeanor and

found her to be “coherent,” “very aware,” and “very attentive.” The court also observed 

mother actively assisting her attorney throughout the trial by passing notes and speaking 

with her attorney and with father. If there was any doubt about mother’s competency to 

testify at the beginning of trial, that doubt surely diminished throughout the proceedings. 

We conclude that the trial court did not abuse its discretion in finding that mother was 

competent to testify. Therefore, factor two, “the reason for the continuance,” weighs in 

favor of the trial court’s ruling.

The third relevant factor to consider is “the diligence of the party seeking the 

continuance.” In re Eric G., 2017 WL 4844378, at *4. Mother alleged that the alleged 

sexual assault occurred on August 31, 2017. Yet, it is undisputed that mother failed to 

inform her attorney of this fact until around September 25, 2017, two days prior to trial. 

Mother’s brief does not even attempt to argue that mother made a diligent effort to seek a 

continuance. This factor also weighs in favor of the trial court’s ruling.
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Mother relies most heavily on factor four – the “prejudice to the requesting party if 

the continuance is not granted.” The thrust of mother’s argument is that the court’s ruling 

effectively prevented her from testifying, which caused severe prejudice to her case. 

Mother claims that if she had been able to testify in her own defense, she would have 

provided additional evidence that may have impacted the court’s findings. Because we 

have already held that the trial court did not abuse its discretion in finding that mother 

was competent to testify, we conclude that mother’s argument regarding this factor is 

without merit. A party in a civil case who is competent, but unwilling, to testify cannot 

thereafter complain of prejudice that may arise as a consequence of her failure to testify; 

in fact, our courts have long permitted the opposite inference:

The conduct of the party in omitting to produce that evidence 

in elucidation of the subject–matter in dispute which is in his 

power and which rests peculiarly within his own knowledge 

frequently affords occasion for presumptions against him, 

since it raises strong suspicion that such evidence, if adduced, 

would operate to his prejudice.

Fisher v. Travelers’ Ins. Co., 138 S.W. 316, 324 (Tenn. 1911) (internal citation omitted); 

see also Gulf Refining Co. v. Frazier, 83 S.W.2d 285, 303-04 (Tenn. Ct. App. 1934).

Finally, relying on In re A’Mari B., 358 S.W.3d 204, 212 (Tenn. Ct. App. 2011), 

Mother argues that the trial court denied her due process because she was not permitted 

to “meaningfully participate” in her defense. DCS correctly observes that In re A’Mari 

B. is not applicable here. That case involved an incarcerated parent’s constitutional and 

statutory right to “meaningful access to the court and an opportunity to be heard.” Id.

(internal citation omitted); see also Tenn. Code Ann. § 36–1–113(f)(3) (providing that an 

“incarcerated parent . . . has the right to participate in the [termination] hearing . . . 

through personal appearance, teleconference, telecommunication or other means deemed 

by the court to be appropriate under the circumstances” (emphasis added)). We reject 

mother’s suggestion that In re A’Mari B. provides additional constitutional protection to 

non-incarcerated parents. The only process mother was due with respect to her motion 

was for the trial court to properly exercise its discretion. 

In light of the foregoing analysis, we hold that the trial court did not abuse its 

discretion in denying mother’s motion for a continuance. The court properly followed its 

statutory obligation to expedite termination proceedings in a manner that is consistent 

with due process. The evidence does not preponderate against the trial court’s factual 

findings.
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V.

The trial court identified three grounds for terminating mother’s parental rights: 

(A) abandonment for failure to provide a suitable home; (B) substantial noncompliance 

with the permanency plan; and (C) persistence of conditions. We now review each 

ground in turn.

A.

The ground of abandonment for failure to provide a suitable home is codified at 

Tenn. Code Ann. §§ 36-1-113(g)(1), -102(1)(A)(ii) (2017). This ground is triggered after 

a child has been adjudicated dependent and neglected, removed from the home, and

for a period of four (4) months following the removal, the 

department or agency has made reasonable efforts to assist 

the parent or parents or the guardian or guardians to establish 

a suitable home for the child, but that the parent or parents or 

the guardian or guardians 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 or guardian in establishing a suitable home for 

the child may be found to be reasonable if such efforts exceed 

the efforts of the parent or guardian toward the same goal, 

when the parent or guardian is aware that the child is in the 

custody of the department.

Tenn. Code Ann. § 36-1-102(1)(A)(ii)(2017).

In applying this statute, we have previously stated that 

[a] “suitable home requires more than a proper physical living 

location.” State v. C. W., No. E2007–00561–COA–R3–PT, 

2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007). It 

requires that the home be free of drugs and domestic violence. 

Id.

DCS’s efforts do not need to be “Herculean.” DCS is 

required to use its “superior insight and training to assist 

parents with the problems DCS has identified in the 

permanency plan, whether the parents ask for assistance or 

not.” State, Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 
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790, 801 (Tenn. Ct. App. 2008). DCS does not bear the sole 

responsibility. Parents also must make reasonable efforts 

toward achieving the goals established by the permanency 

plan to remedy the conditions leading to the removal of the 

child. Id. The burden is on the state to prove by clear and 

convincing efforts that its efforts were reasonable under the 

circumstances. Id.

In re Hannah H., No. E2013–01211–COA–R3–PT, 2014 WL 2587397, at *9 (Tenn. Ct. 

App., filed June 10, 2014).

In this case, the trial court determined that there was clear and convincing 

evidence to terminate on the ground of abandonment for failure to provide a suitable 

home. First, the court identified April 29, 2016, to August 2[8], 2016 as the relevant 

four-month period. Mother correctly observes, however, that some of the trial court’s 

findings relate to events outside that four-month period. Nonetheless, we have previously 

explained that 

[t]he statutory language in question provides only that DCS 

must make reasonable efforts “for a period of four (4) months 

following the removal. . . .” Tenn. Code Ann. § 36–1–

102(1)(A)(ii) (2005 & Supp. 2009) (emphasis added). A

quick survey of this Court’s case law suggests that the Code 

does not limit the window during which DCS may satisfy its 

obligation to make reasonable efforts to the four-month 

period directly following statutory removal.

In re Jakob O., No. M2016–00391–COA–R3–PT, 2016 WL 7243674, at *13 (Tenn. Ct. 

App., filed Sept. 20, 2016) (internal citations omitted); see also In re Billy T.W., No. 

E2016–02298–COA–R3–PT, 2017 WL 4317656, at *9 (Tenn. Ct. App., filed Sept. 27,

2017) (holding that the courts “may consider the parents’ more recent behavior” in 

determining whether they demonstrated a lack of concern for the children). In light of 

this interpretation of the statute, the trial court did not err by considering facts that 

occurred after the four-month period immediately following removal. 

 

Next, the court found that DCS made reasonable efforts to assist mother in 

obtaining a suitable home. The evidence preponderates in favor of that factual finding.

During the four months immediately following removal, DCS developed a permanency 

plan, attempted home visits, helped mother look for parenting classes, scheduled and paid 

for mental health and alcohol and drug assessments, and attempted to administer six drug 

screens. A DCS employee testified that she scheduled the mental health and alcohol and 

drug assessment with a provider that would go to the parents’ home because she knew 

transportation was an issue. In subsequent months, DCS continued to attempt home 
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visits and tried to schedule parenting classes, drug tests, and counseling sessions. 

Uncontradicted testimony established that two DCS employees gave mother their 

personal cell phone numbers “multiple times” and told mother, “[w]e will come pick you 

up, take you somewhere safe, help you get started with a brand new home, a brand new 

life, whatever you need.” These actions by DCS clearly demonstrate the department’s 

willingness to help mother obtain a suitable home. Cf. In re Nevada N., 498 S.W.3d 579, 

596 (Tenn. Ct. App. 2016) (holding that DCS made reasonable efforts to assist mother in 

establishing a suitable home by performing multiple drug screens, maintaining consistent 

communication with mother, and coordinating her alcohol and drug assessments).

The trial court also determined that mother failed to make reasonable efforts to 

provide a suitable home and demonstrated a lack of concern for the children. 

Specifically, the trial court determined that mother

never requested to have any residence inspected for 

suitability, or even been present or available upon [DCS’s] 

request to inspect a residence. Further, the Respondent 

Mother has never been present at any address she has 

provided [DCS], when employees of [DCS] appeared 

unannounced. In fact, those residences were either padlocked 

or the employees were advised the Respondent Mother was 

not present and to not return.

* * *

The Respondent Father claimed to have purchased a trailer, 

and Respondent Mother agreed with this assertion. However, 

no proof has been provided to the Court [by DCS]. The 

Respondent Mother also claimed proof of a lease agreement 

for a lot, which in fact had been manipulated and actually was 

[paternal grandfather’s] lease agreement for a lot.

4

Additionally, the Respondent Mother claimed to have lived or 

spent time with family in Chattanooga; however, she never 

provided an address, requested a home visit or even 

confirmed such a potential long term place of residence.

The Court finds that the Respondent Mother’s statements as 

to housing are incredible. There is no proof of stable housing. 

 

4 This portion of the termination order states that the lease agreement was in the name of 

“Respondent Father.” Based on the court’s prior findings of fact as well as uncontradicted testimony 

given at trial, this appears to be a clerical error.
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There is no proof that the Margrave address, from which the 

children were removed, has been made suitable for the 

children to return. In fact, Respondent Mother stated that 

there was at the least, still a bug problem at the residence.

Most of the aforementioned findings are supported by the uncontradicted 

testimony presented by DCS at trial. However, it is unclear whether mother admitted to 

an ongoing bug problem. When mother was asked about bugs in her home, she merely 

stated that DCS offered to help her with the problem over two years ago, but “nobody 

ever showed up.”5 Additionally, mother testified, without contradiction, that she 

informed DCS that her grandmother’s home in Marion County, Tennessee, was a 

potential long term place of residence. Nevertheless, because the trial court considered 

mother’s statements relating to housing to be “incredible,” we assume that the trial court 

disbelieved mother’s testimony. We do not disturb that credibility determination. See In 

re Adoption of S.T.D., 2007 WL 3171034, at *4.

Mother argues that the facts relied upon by the trial court do not clearly and 

convincingly support termination on the ground of abandonment for failure to provide a 

suitable home. In addition, mother argues that the trial court “improperly placed the 

burden of proof on [mother] to establish that she did have a suitable home instead of 

placing the burden of proof on [DCS] to show that she did not.” According to mother, 

DCS “did not present any proof about the condition of any of the homes lived in by 

[mother] from the time of removal to trial because no one from the Department had been 

in the homes.” Relying on In re Jimmy B., No. E2015–02070–COA–R3–PT, 2016 WL 

2859180 (Tenn. Ct. App., filed May 11, 2016), Mother concedes that her lack of 

cooperation might be relevant to her compliance with the permanency plan but she argues 

that DCS still has the burden to prove the ground of abandonment by clear and 

convincing evidence.

In In re Jimmy B., this Court held that that DCS failed to prove the ground of 

persistence of conditions by clear and convincing evidence. Id. at *8. In that case, the 

child’s removal was due, in part, to father’s issues with substance abuse. Id. at *7. After 

removal, father failed to submit to drug screens and there was “no evidence in the record 

to suggest that Father has continued using drugs.” Id. Accordingly, DCS was unable to 

present affirmative evidence that father’s substance abuse persisted at the time of 

termination. Id. DCS argued that the father “should not be permitted to benefit from his 

lack of participation in the termination proceedings.” Id. at *8. We rejected that 

argument, concluding the party seeking to terminate parental rights still has the burden of 

proving each ground by clear and convincing evidence “regardless of how difficult it may 

 

5

Father’s testimony also failed to clearly establish the current state of the home. Although Father 

admitted that the home was infested with bugs when the children were removed, he also testified that the 

house had been treated for bugs and was “improving.” 
- 14 -

be in some circumstances.” Id. Importantly, however, we observed that

a parent’s failure to cooperate or participate in such a manner 

may constitute grounds for termination under an alternative 

statutory provision, such as substantial noncompliance with 

permanency plans, which often overlaps factually with 

persistence of conditions but requires the parent to take 

affirmative actions to avoid termination. See Tenn. Code 

Ann. § 36–1–113(g)(2). We are therefore confident that our 

ruling will not encourage parents to engage in 

nonparticipation as a strategy to avoid termination.

Id. at *8 n.7 (emphasis added).

Here, it is true that DCS did not present evidence affirmatively demonstrating the 

actual condition of mother’s home following the removal of the children; however, that 

fact is more relevant to the ground of persistence of conditions. See id. In prior cases, 

we have held that a parent’s failure to cooperate with DCS is relevant to whether the 

parent made “reasonable efforts” to obtain suitable housing under Tenn. Code Ann. § 36-

1-102(1)(A)(ii). See In re Matthew T., No. M2015–00486–COA–R3–PT, 2016 WL 

1621076, at *9 (Tenn. Ct. App., filed Apr. 20, 2016) (citing In re Nicholas G., No. 

W2014–00309–COA–R3–PT, 2014 WL 3778813, at *6 (Tenn. Ct. App., filed July 31, 

2014) (holding that the parent’s failure to cooperate with DCS’s attempt to conduct a 

home study, in conjunction with other circumstances, provided clear and convincing 

evidence to support the ground of abandonment); In re Hannah H., 2014 WL 2587397, 

at *9 (concluding that failure to provide a suitable home was established in part because 

the parent “did not provide documentation of housing or employment on a regular 

basis.”); State, Dept. of Children’s Servs., 2009 WL 605146, at *4 (“[T]he parent has a 

corresponding duty to communicate with the Department and to actively cooperate in [the 

efforts to establish a suitable home].”)). We hold, therefore, that the trial court did not 

improperly shift the burden of proof to mother merely by taking into account her 

perpetual unavailability.

We also disagree with mother’s assertion that the evidence does not clearly and 

convincingly support the ground of abandonment for failure to provide a suitable home. 

We have already explained the many ways in which DCS made reasonable efforts to 

assist mother (immediately after removal and in the months that followed). We have also 

explained that the trial court properly considered mother’s evasive, and sometimes 

deceitful, behavior as evidence of her general lack of concern. Mother did take some 

positive steps, such as completing mental health and alcohol and drug assessments, 

passing some drug tests, and attending some mental health counseling sessions; however,

as we discuss in the next section of this opinion, mother failed to substantially comply 

with the requirements of the permanency plan. Those failures also weigh in favor of the 
- 15 -

trial court’s finding that mother did not take reasonable steps to provide a suitable home. 

For all these reasons, we conclude that there is clear and convincing evidence to 

terminate on the ground of abandonment for failure to provide a suitable home.

B.

Tenn. Code Ann. § 36-1-113(g)(2) (2017) allows for termination of parental rights 

when “[t]here has been substantial noncompliance by the parent or guardian with the 

statement of responsibilities in a permanency plan . . . .” In order to rely on this ground 

of termination, DCS must demonstrate that the permanency plan includes a “statement of 

responsibilities” that “clearly communicate[s] to the parent: ‘this is what you must do to 

regain custody of your child.’ ” In re Navada N., 498 S.W.3d 579, 603 (Tenn. Ct. App. 

2016) (citing In re Abigail F.K., No. E2012–00016–COA–R3–JV, 2012 WL 4038526, at 

*13 (Tenn. Ct. App., filed Sept. 14, 2012)). In addition, DCS must prove “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.” Id. (citing In re M.J.B., 140 S.W.3d 643, 656-57 (Tenn. Ct. App. 2004)).

After establishing the existence of a valid and enforceable permanency plan, DCS 

“must show 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.” 

Id. (citing In re M.J.B., 140 S.W.3d at 657). It is not sufficient to show “that a parent 

has not complied with every jot and tittle of the permanency plan.” Id. (quoting In re 

M.J.B., 140 S.W.3d at 656).

In this case, the trial court found the permanency plan (as originally enacted and as 

amended) to be valid and enforceable. Specifically, the court found that the plan was

ratified and approved by the Court as the Respondents were 

informed of its contents, which Dr. Brietstein claimed both 

had the mental ability to understand it’s [sic] requirements. 

The Permanency Plan is reasonable, and the requirements 

therein are reasonably related to remedying the conditions 

that necessitate foster care placement.

Mother, on the other hand, argues that the permanency plan was invalid because it 

was “vague, complex, impossible and lacking in a clear statement of responsibilities. . . .” 

Specifically, mother compares the permanency plan in this case to the permanency plans 

that this Court found unacceptable in In re Abigail F.K. and In re Navada. 

In In re Abigail F.K., the permanency plan was “repetitive, confusing, and 

incomplete.” 2012 WL 4038526, at *12. For example, one lengthy sentence, variously 

described as a “description of concern” and part of the “underlying needs,” was repeated 
- 16 -

at least twenty-eight times throughout the sixteen-page document. Id. Although the plan 

listed various “action steps,” the plan did not contain a section explicitly labeled 

“statement of responsibilities.” Id. at *13. We explained that the omission of a statement 

of responsibilities “is not a mere technicality.” Id. The statute requires substantial 

compliance with “the statement of responsibilities in a permanency plan,” and “[i]t is 

difficult for the Court to find that Mother failed to substantially comply with the plan’s 

statement of responsibilities if the plan does not contain one.” In re Abigail F.K., 2012 

WL 4038526, at *13 (emphasis in original).

The permanency plan in In re Navada was “largely identical” to the plan in In re 

Abigail. In re Navada N., 498 S.W.3d at 604. The plan used phrases like “description of 

concern,” “desired outcome,” and “action steps,” but it “fail[ed] to include a clear 

statement of responsibilities . . . .” Id. at 604-05. Also, due to modifications, the record 

contained five permanency plans, each plan being approximately thirty pages. Id. at 604. 

Finally, we observed that some of the action steps required of the parents were 

impossible for the parents to complete, at least while they lacked physical custody of the 

children. Id. at 605 n.17. For example, the parents could not ensure that the child would 

“participate in individual counseling,” “learn effective communication skills,” and 

“strengthen the bond with peers and adults,” while they lacked custody of the child. Id.

In our view, there are significant differences between the permanency plan in this 

case and the plans described above. Most importantly, the permanency plan in this case 

had a clearly labeled “statement of responsibilities” after each “description of concern”

identified by DCS. Each section heading states: “Statement of Responsibilities: This 

section contains both the desired outcomes and action steps that together comprise the 

responsibilities of the parents and/or other responsible person(s) to achieve the 

permanency goals.” The “action steps” listed under each “statement of responsibilities”

are clearly enumerated and plainly identify which parent is responsible for completing 

each task. The lack of a clear “statement of responsibilities” was fatal to the permanency 

plans in the cases discussed above. Here, however, that is a non-issue.

Further, the permanency plan in this case was only revised twice and the revisions 

left the vast majority of the plan unchanged.

6

 Also, it is disingenuous for mother to argue 

that the plan required impossible tasks. DCS correctly points out that some of the action 

steps presupposed completion of other tasks. For example, one action step stated that 

“[t]he parents will utilize the new skills they learn in their parenting classes and apply 

them while parenting their children . . . .” Completion of that task was only impossible 

because mother never completed a single parenting class. The plan also specifically 

modified tasks that would be impossible while mother did not have custody of the 

children. For example, mother was required to schedule and maintain routine medical 

 

6 The revisions incorporated recommendations from mother’s mental health and alcohol and drug 

assessments. They also addressed mother’s failure to consistently communicate with DCS.
- 17 -

and dental appointments for the children; however, the plan provided that “parents will 

demonstrate this ability while the children are not in their physical care by maintain[ing] 

a planner that keeps a log of all the children’s appointments/meetings . . . .”

A preponderance of the evidence also suggests that mother had the ability to 

understand the requirements of the permanency plan. At the June 16 meeting, DCS 

explained to mother the purpose and requirements of the permanency plan. Mother 

agreed to and signed the plan. She then proceeded to complete at least some 

requirements of the plan. 

According to the trial court, Dr. Brietstein, who the parties stipulated was an 

expert, stated that mother had the mental ability to understand the plan’s requirements. 

After reviewing the trial transcript, it is clear that Dr. Brietstein was never directly asked 

about the permanency plan. However, Dr. Brietstein did state the following:

I give an intelligence test or kind of what I call a brief 

intelligence test. [Mother is] not a dumb person by any 

means. In fact, she has average intelligence, which I think 

corresponds with the fact that she went to college, even 

though she dropped out. She has average intelligence. And 

so any deficit she might have in parenting ability is not due to 

the fact that she lacks intelligence.

Later, the following exchange took place between counsel for DCS and Dr. 

Brietstein:

Q. You also stated in the history that there were several 

types of therapies and medications that [mother] had been 

given and started and just didn’t go through with; is –

A. Correct.

Q. – that correct?

A. Yes.

Q. That’s not – that would have been by choice, not by her 

lack of intelligence or understanding of what she needed to 

do, how to get to her appointments, how to make a schedule 

or anything like that; is that your – would you be able to agree 

with that?

A. I would agree with that.
- 18 -

This testimony indicates that mother was of average intelligence and could most 

likely understand the permanency plan that she signed. That fact further distinguishes 

this case from In re Navada, where the court expressed concerns about the mother’s 

mental ability due to her difficulty reading aloud. 498 S.W.3d at 604 n.14. We therefore 

conclude that the trial court did not err in finding that the permanency plan was valid and 

enforceable against mother. 

Mother next argues that the trial court erred in finding that the evidence clearly 

and convincingly showed that mother’s noncompliance with the permanency plan was 

substantial. The permanency plan required parents to: complete a mental health 

assessment and follow all recommendations of the provider, complete an alcohol and 

drug assessment and follow all recommendations of the provider, submit to random drug 

screenings and bring any and all prescribed medications to the screenings, complete a 

parenting assessment, attend parenting classes, utilize the new skills they learn in their 

parenting classes, ensure that each child is enrolled and attends school, schedule and 

maintain children’s medical and dental appointments (or keep a log of those 

appointments when not responsible for the children’s physical care), obtain and maintain 

stable housing for three months, provide proof of housing, provide proof of legal income, 

willingly open home to DCS for home visits, maintain consistent (at least weekly)

communication with DCS, attend all hearings and court dates, have a valid driver’s 

license, ensure access to legal transportation, and be a law-abiding citizen.7

It is undisputed that mother completed alcohol and drug assessments,8a mental 

health evaluation, and, after much delay, intensive outpatient treatment. It is also 

undisputed that mother had a valid driver’s license, that she attended some medication 

management and mental health counseling sessions, and that she passed a handful of drug 

tests. Finally, DCS admitted that mother provided a letter from a lawyer stating that 

mother had applied for disability benefits.

It is also undisputed, however, that mother failed to maintain weekly 

communication with DCS, submit to multiple drug screens, attend the majority of the 

 

7 At trial, a DCS caseworker could not recall all of these tasks from memory. Mother points to 

that testimony as evidence of the confusing nature of the permanency plan. If mother was required to 

memorize every requirement of the permanency plan, perhaps we would agree; however, mother had 

access to a written copy of the plan. As we previously explained, that written plan included an 

understandable statement of responsibilities associated with each of the department’s specific concerns. 

8 The trial court incorrectly states that “Respondent Mother failed to resubmit to a new alcohol 

and drug assessment . . . .” The record shows that mother did submit to a second alcohol and drug 

assessment. DCS does not dispute that fact.
- 19 -

children’s medical appointments, attend a majority of visits with the children, attend 

multiple child and family team meetings, obtain stable housing for three months, 

willingly open her home to DCS for home visits, provide proof of legal income, and to 

take a single parenting class. Furthermore, mother consistently tested positive for 

prescription drugs but never produced proof of a prescription.9 She was also arrested for 

public intoxication and drug paraphernalia.

The trial court did not specifically state which requirements of the permanency 

plan the court believed were the most important. Because the children were initially 

removed on account of environmental and medical neglect, it is evident that the 

requirements relating to obtaining housing and legal income were of extreme importance. 

Yet, mother failed to comply with those requirements. As discussed above, the trial court 

found mother’s testimony relating to housing to be “incredible.” All other evidence in 

the record suggests that mother failed to submit to home visits and even engaged in 

deception to present the appearance of stable housing. Although mother claimed that she 

was physically unable to work, she never presented medical records documenting her 

alleged ailments. She presented a letter stating that she applied for disability benefits, but 

she never presented proof of legal income.

The degree to which mother complied with other requirements of the permanency 

plan is also troubling. Mother only attended mental health counseling “inconsistently.” 

She completed intensive outpatient treatment two months after she was supposed to 

complete the program. She failed to attend the majority of visits with the children, as 

well as their medical and dental appointments. She also refused or was unavailable for 

many drug screenings. 

In light of mother’s failure to comply with the most important aspects of the 

permanency plan as well as her half-hearted compliance with the plan’s other 

requirements, we conclude that the trial court did not err in finding clear and convincing 

evidence that mother failed to substantially comply with the permanency plan.

C. 

The ground of persistence of conditions is codified at Tenn. Code Ann. § 36-1-

113(g)(3) (2017), which provides:

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 

 

9 The trial court also found that mother “admitted on one occasion that she would test positive for 

cocaine, opiates, and THC.” That finding is supported by the testimony of two DCS employees; 

however, mother sharply refuted their testimony. Because the trial court did not make a credibility 

determination on this issue, it is unclear whether the court failed to consider mother’s testimony or simply 

rejected it.
- 20 -

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

The children were removed on April 28, 2016, due to allegations of 

environmental, medical, and educational neglect, substance abuse, domestic violence, and 

sexual abuse. The trial court found that

The Respondent Mother has failed to show any progress 

toward addressing any of the issues that resulted in the 

children being removed, aside from checking the box of 

intensive outpatient treatment and inconsistent mental health 

and medicine management counseling . . . . As of September 

27, 2017, the children had been removed from her care for 

over fourteen months. . . . All conditions that resulted in the 

children being removed from the Respondent Mother persist 

today, as on April 28, 2016.

Again relying on In re Jimmy B., 2016 WL 2859180 (Tenn. Ct. App., filed, May 

11, 2016), mother argues that the trial court improperly shifted the burden by faulting 

mother for “fail[ing] to show any progress toward addressing any of the issues that 

resulted in the children being removed . . . .” She also argues that the evidence 

preponderates against a finding that persistent conditions existed.

With respect to environmental neglect, mother testified that she currently lives in 

the home from which the children were removed. Father testified that the home was 

“improving” and mother agreed that “they’ve been working on it.” However, due to 

mother’s failure to cooperate with DCS home visits, DCS was unable to present evidence 

affirmatively contradicting that testimony. Although mother’s failure to cooperate with 

DCS is relevant to whether she made “reasonable efforts” to provide a suitable home and 
- 21 -

whether she substantially complied with the permanency plan, see supra Parts V.A and 

B, her actions do not relieve DCS of its burden to prove persistence of conditions by clear 

and convincing evidence. Cf. In re Jimmy B., 2016 WL 2859180, at *8. Because there 

is little evidence in the record concerning the current state of mother’s home, DCS has 

failed to prove by clear and convincing evidence that concerns about environmental 

neglect persist.

Because mother has not had physical custody of the children, it is also 

inappropriate to say that there are still concerns about the children’s medical and 

educational well-being. DCS has adequately provided for those needs and, subsequent to 

removal, mother was never given an opportunity to demonstrate her ability to remedy 

those concerns. 

Nevertheless, DCS has presented clear and convincing evidence that mother 

continues to display signs of substance abuse. Throughout the proceedings, mother 

consistently tested positive for prescription drugs without providing proof of a 

prescription. In April 2017, soon after completing intensive outpatient treatment, mother 

was arrested for public intoxication and drug paraphernalia. We can identity no evidence 

in the record tending to suggest that this condition “will be remedied at an early date.” 

Tenn. Code Ann. § 36-1-113(g)(3)(B). Although mother did submit to a second alcohol 

and drug assessment following her arrest, she tested positive for prescription drugs on 

June 8, 2017. She also testified on the first day of trial that she had last taken prescription 

drugs “a couple of weeks ago.”

Mother also testified that she currently lives in the same home as father. There are 

still unresolved factual questions about father’s alleged acts of domestic violence and 

sexual abuse. Although the trial court never made findings relating to the specific 

incidents alleged, the court did credit the testimony of Dr. Brietstein that father was a 

“powder-keg.” The trial court also found that father repeatedly failed drug tests and 

admitted to using illegal or non-prescribed narcotics, including just a couple of days 

before trial. In early 2017, father was also arrested for public intoxication and possession 

of drug paraphernalia. It is likely, therefore, that if the children are returned to mother, 

they will be living in a home where substance abuse and criminal activity is rampant. 

In addition, the evidence preponderates in favor of a finding that “other conditions 

that in all reasonable probability would cause the child to be subjected to further abuse or 

neglect . . . .” Tenn. Code Ann. § 36-1-113(g)(3)(A) (emphasis added). For instance, 

mother admitted at trial that she still does not have a job and has never reported a source 

of legal income to DCS. During the course of the termination proceedings, mother only 

paid $600.00 in child support out of the $2,700.00 she owed. Although the trial court 

determined that this failure to support was not “willful” for purposes of abandonment, 

mother’s lack of financial stability creates a reasonable probability that the children will 

be subjected to further neglect if they are returned to her. Although mother claims to 
- 22 -

have filed for disability benefits, it is unlikely that mother’s financial hardships “will be 

remedied at an early date.” Tenn. Code Ann. § 36-1-113(g)(3)(B).

As further explained in our best interest analysis, we also conclude that “[t]he 

continuation of the parent or guardian and child relationship greatly diminishes the 

child[ren]’s chances of early integration into a safe, stable, and permanent home.” Tenn. 

Code Ann. § 36-1-113(g)(3)(C). Accordingly, we hold that the trial court did not err in 

finding that clear and convincing evidence that termination is justified on the ground of 

persistence of conditions. 

VI.

A.

Because we have found statutory grounds warranting the termination of parental 

rights, we now focus on whether termination is in the best interest of T.E.R., M.A.R., and 

T.Z.R. We are guided by the following statutory factors as set forth in Tenn. Code Ann. 

§ 36-1-113(i) (2017), which provides: 

In determining whether termination of parental or 

guardianship rights is in the best interest of the child pursuant 

to this part, the court shall consider, but is not limited to, the 

following:

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

adjustment of circumstance, conduct, or conditions as to 

make it safe and in the child’s best interests 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;
- 23 -

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

with the parent or guardian, has shown brutality, physical, 

sexual, emotional or psychological abuse, or neglect toward 

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

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

guardian’s home is healthy and safe, whether there is criminal 

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

controlled substances or controlled substance analogues as 

may render the parent or guardian consistently unable to care 

for the child in a safe and stable manner;

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

emotional status would be detrimental to the child or prevent 

the parent or guardian from effectively providing safe and 

stable care and supervision for the child; or

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

consistent with the child support guidelines promulgated by 

the department pursuant to § 36-5-101.

“The above list is not exhaustive[,] and there is no requirement that all of the factors must 

be present before a trial court can determine that termination of parental rights is in a 

child’s best interest.” State Dep’t of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502 

(Tenn. Ct. App. 2007) (citing State Dep’t of Children’s Servs. v. P.M.T., No. E2006-

00057-COA-R3-PT, 2006 WL 2644373, at *9 (Tenn. Ct. App., filed Sept. 15, 2006)). In 

addition, “[t]he child’s best interest must be viewed from the child’s, rather than the 

parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005) (citing 

White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

B.

Here, the trial court found that “there is no doubt” that mother loves the children. 

Likewise, the children interacted well with mother when she visited them. Thus, best 

interest factor (4) seems to weigh against termination. Nevertheless, we agree with the 

trial court that a host of other best interest factors weigh in favor of termination. 

Our prior analysis of mother’s failure to provide a suitable home and her 

substantial noncompliance with the permanency plan strongly suggests that best interest 

factors (1) and (2) weigh in favor of termination. DCS consistently made reasonable 

efforts to help mother maintain custody of the children and mother refused to effect a 

lasting adjustment in circumstances. Given mother’s inconsistent visitation with the 
- 24 -

children (especially as the case progressed), best interest factor (3) weighs in favor of 

termination. Best interest factor (5), which concerns the effect of a potential change in 

caretakers, also favors termination. Although the children exhibited behavioral issues in 

some of their early foster home placements, a DCS employee testified that the children 

are now “doing very well” and have experienced “significant improvement” in their 

current placement. The children live with an elderly woman, who they call 

“Grandmother.” The foster mother is not willing to adopt because of her age, but DCS 

insists that she has done more than anyone else to improve the children’s behavioral 

issues. Best interest factor (6) is difficult to weigh due to unresolved factual questions 

surrounding father’s alleged acts of domestic violence and sexual abuse. However, other 

statutory factors also weigh in favor of termination. For example, mother continues to 

display signs of substance abuse, as does father (with whom she continues to live). 

Mother also failed to pay the required amount of child support.

Taking into account the statutory best interest factors, we conclude that clear and 

convincing evidence supports the trial court’s finding that termination is in the best 

interest of the children.

VII.

The judgment of the trial court is affirmed. The costs on appeal are assessed to the 

appellant, J.E.R. This case is remanded, pursuant to applicable law, for enforcement of 

the trial court’s judgment and collection of costs assessed below. 

_______________________________

 CHARLES D. SUSANO, JR., JUDGE