IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 1, 2016

IN RE CASEY C., ET AL.

Appeal from the Juvenile Court for Montgomery County

No. 15-316, 15-317, 15-318 Tim Barnes, Judge

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No. M2016-01344-COA-R3-PT – Filed December 19, 2016

___________________________________

This is a termination of parental rights case. Mother/Appellant appeals the termination of 

her parental rights to three minor children on the grounds of: (1) abandonment by failure 

to provide a suitable home; (2) abandonment by willful failure to support; and (3) 

persistence of the conditions that led to the children’s removal from Appellant’s custody. 

The trial court also found, by clear and convincing evidence, that termination of 

Appellant’s parental rights is in the children’s best interests. Discerning no error, we 

affirm.

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

Affirmed and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and W. NEAL MCBRAYER, J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Lisa C.

Herbert H. Slatery, III, Attorney General and Reporter; and Alexander S. Rieger, 

Assistant Attorney General, for the appellee, Tennessee Department of Children’s 

Services.

OPINION

I. Background

The three minor children at issue in this case were born to Lisa C. (―Mother‖ or 
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―Appellant‖) and Chad C. (―Father‖).1 Casey C. was born in July of 2004;2 Corey C. was 

born in December of 2006, and Leaya C. (together with Casey C. and Corey C., the 

―Children‖) was born in July of 2008. 

On or about October 28, 2010, DCS received a referral alleging environmental 

neglect. On October 28, 2010, Child Protective Services (―CPS‖) visited the home and 

found that the family had no electricity and inadequate food. On November 1, 2010, 

DCS filed a petition for temporary legal custody and removal of the Children based on 

allegations of drug exposure and environmental neglect. In its petition, DCS specifically 

averred that both parents were ―on drugs using crack. The family’s electricity is cut off. . 

. . The parents have been asking for food and food stamps.‖ On the same day, the trial 

court entered a protective custody order removing the Children from the home and 

awarding temporary custody to DCS.

On July 16, 2012, nunc pro tunc to October 27, 2011, DCS filed a notice and 

motion for trial home visit seeking a trial home visit between Mother, Father and the 

Children. The trial court granted the motion and approved a ninety-day trial home visit. 

On January 19, 2012, the trial court entered an order stating that the trial home visit 

would self-execute on January 25, 2012, when complete care, custody and control of the 

Children would be restored to Mother and Father. Unfortunately, the trial home visit did 

not lead to reunification.

On July 19, 2013, DCS filed a petition for dependency and neglect and sought a 

protective order prohibiting Mother from allowing the Children contact with the Father. 

In its dependency and neglect petition, DCS alleged, in relevant part, that, on July 13, 

2013, DCS had contacted Mother by phone in furtherance of its investigation. The CPS

investigator noted that Mother ―was slurring her words, and was unable to answer [the 

CPS investigator’s] questions.‖ Based on the phone conversation, CPS proceeded to a 

home visit. CPS investigators reported that, during the home visit, they ―observed that 

[Mother] was clearly intoxicated. [Mother] continued to have slurred speech and was not 

able to maintain balance.‖ CPS investigators further observed that Mother ―was not able 

to walk through the home without using the walls and furniture to prevent her from 

falling.‖ CPS investigators asked Mother about her intoxicated condition, and Mother 

replied that ―she had two drinks today and that was all.‖ CPS investigators also asked 

whether Mother had taken any prescription medication, to which she replied that ―she had 

 

1

Father’s parental rights were terminated by order of April 4, 2016. He did not appeal.

2

In cases involving minor children, it is the policy of this Court to redact the parties’ names so as to

protect their identities.
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not taken any of her pain medication today.‖3 However, when CPS investigators 

performed a pill count, they observed that Mother

provided CPS [investigators] with three medications Hydrocodone, 

Carisoprorol, and Alprazolam. All three of the prescriptions were filled on 

July 12, 2013 and there were 56 pills provided for each prescription. The 

instructions on each were to take four pills per day. CPS [investigators] . . . 

noted that there were seven Carisoprorol left in the bottle, which indicates 

that 49 pills were taken within the previous four days. CPS [investigators]

observed the prescription of Hydrocodone, there were 34 pills remaining in 

the bottle. If taken as prescribed, there should have been 40 pills remaining 

in the bottle. CPS [investigators] observed the Alprazolam prescription; 

there were 50 remaining which indicates that [Mother] has taken less than 

prescribed.

Mother explained the prescription discrepancy by stating that Father had ―broken into the 

family home and stole[n] her medication.‖ 

In response to DCS’s petition for dependency and neglect, Mother agreed to sign 

an immediate protection agreement, allowing the Children to temporarily reside with 

Samuel R., who was the pastor of Mother’s church and a registered foster parent. In light 

of this agreement, DCS did not immediately move forward with its dependency and 

neglect / custody petition. However, in the fall of 2013, Mr. R. notified DCS that he and 

his wife could no longer financially support the Children. Because Mr. R. could only be 

compensated for foster care if the Children were in State custody, on September 26, 

2013, the trial court entered a protective custody order removing the Children from 

Mother’s custody and placing temporary custody with DCS. On November 26, 2013, the 

trial court entered an order adjudicating the Children to be dependent and neglected. The 

trial court specifically found that ―the [C]hildren are dependent and neglected within the 

meaning of the statute base[d] on Mother’s continued drug and alcohol use within the 

home.‖ 

On January 26, 2015, DCS filed a petition to terminate Mother’s parental rights. 

As grounds for termination, DCS averred: (1) abandonment by willful failure to support 

the Children; (2) abandonment by failure to provide a suitable home after reasonable 

efforts by DCS; (3) abandonment by willful failure to visit the Children; and (4) 

persistence of the conditions that led to the Children’s removal from Mother’s home. 

DCS also averred that termination of Mother’s parental rights was in the Children’s best 

 

3

In 2009, Mother was involved in a car wreck that left her in a coma for six weeks. Mother testified that 

she is in constant pain and has trouble with her short-term memory.
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interests. By separate orders, which were both entered on March 3, 2015, the trial court 

appointed a guardian ad litem to represent the Children and appointed an attorney for 

Mother. By order of August 20, 2015, a new attorney was appointed to represent 

Mother, and the case was continued to allow Mother’s new attorney time to prepare for 

the hearing on DCS’s petition to terminate parental rights.

The trial court heard the petition to terminate parental rights on December 1 and 7, 

2015. By order of April 4, 2016, the trial court found that there was clear and convincing 

evidence that Mother’s parental rights to the Children should be terminated on the 

grounds of: (1) abandonment by willful failure to support; (2) abandonment by failure to 

provide a suitable home; and (3) persistence of the conditions that led to the Children’s 

removal from Appellant’s custody. The trial court also found, by clear and convincing 

evidence, that it was in the children’s best interest that Mother’s parental rights be 

terminated. Mother appeals.

II. Issue

The sole issue for review is whether the trial court erred in terminating Mother’s 

parental rights.

III. Standard of Review

Under both the United States and Tennessee Constitutions, a parent has a 

fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 

405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 

1996). Thus, the state may interfere with parental rights only when a compelling interest 

exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 

(1982)). Our termination statutes identify ―those situations in which the state’s interest in 

the welfare of a child justifies interference with a parent’s constitutional rights by setting 

forth grounds on which termination proceedings can be brought.‖ In re W.B., Nos.

M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 

(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person 

seeking to terminate parental rights must prove both the existence of one of the statutory 

grounds for termination and that termination is in the children’s best interest. Tenn. Code 

Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 

79 S.W.3d 539, 546 (Tenn. 2002).

Because of the fundamental nature of the parent’s rights and the grave 

consequences of the termination of those rights, courts must require a higher standard of 

proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the 

grounds for termination and that termination of parental rights is in the children’s best 
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interests must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-

113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence ―establishes 

that the truth of the facts asserted is highly probable ... and eliminates any serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.‖ In 

re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence ―produces in a 

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

established.‖ Id. at 653.

In light of the heightened standard of proof in termination of parental rights cases, 

a reviewing court must modify the customary standard of review in Tennessee Rule of 

Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo 

with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. 

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

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

elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 

(Tenn. 2002).

IV. Grounds for Termination of Mother’s Parental Rights

As noted earlier, the trial court relied on the following statutory grounds in 

terminating Appellant’s parental rights: (1) abandonment by willful failure to support, 

Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(i); (2) 

abandonment by failure to establish a suitable home and lack of concern, Tennessee Code 

Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(ii); and (3) persistence of the 

conditions that led to the Children’s removal, Tennessee Code Annotated Section 36-1-

113(g)(3). Although only one ground must be proven by clear and convincing evidence 

in order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this 

Court to review every ground relied on by the trial court to terminate parental rights in 

order to prevent ―unnecessary remands of cases.‖ In re Angela E., 303 S.W.3d 240, 251 

n.14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.

A. Reasonable Efforts

Before addressing the specific grounds for termination of Appellant’s parental 

rights, we note that, historically, the decision to pursue termination of parental rights on 

the grounds of abandonment has invoked DCS’s statutory duty to make reasonable efforts 

to facilitate the safe return of children to the parent’s home. In re R.L.F., 278 S.W.3d 

305, 315 (Tenn.Ct.App.2008) (citing Tenn. Code Ann. §§ 37-1-166(b), –166(a)(2), –

166(g)(2)); see also In re Tiffany B., 228 S.W.3d 148, 151, 160 (Tenn.Ct.App.2007) 

(vacating a finding of abandonment, substantial noncompliance, and persistence of 

conditions for failure to make reasonable efforts). However, in In re Kaliyah S., 455 
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S.W.3d 533 (Tenn. 2015), the Tennessee Supreme Court specifically overruled ―the 

holding of In re Tiffany B. and other cases following the holding in In re C.M.M. to the 

extent that the court required DCS to prove by clear and convincing evidence that it made 

reasonable efforts to reunify as a precondition to termination of parental rights (citations 

omitted).‖ Id. at 555 n.34. In Kaliyah, the Court specifically stated that

proof of reasonable efforts is not a precondition to termination of parental 

rights of a respondent parent. As with other factual findings made in 

connection with the best interest analysis, reasonable efforts must be 

proven by a preponderance of the evidence, not by clear and convincing 

evidence. In re Audrey S., 182 S.W.3d at 861. After making the underlying 

factual findings, the trial court should then consider the combined weight of 

those facts to determine whether they amount to clear and convincing 

evidence that the termination is in the child’s best interest (citations 

omitted).

Id. at 555.

Nonetheless, proof of reasonable efforts is specifically required by statute to prove 

the ground of abandonment by failure to provide a suitable home. Tennessee Code 

Annotated Section 36-1-102(1)(A)(ii)’s definition of abandonment requires DCS to make 

reasonable efforts to assist the parents to establish a suitable home. The statute focuses on 

the four month period following removal of the children from the parent’s custody. In its 

order terminating Mother’s parental rights, the trial court outlined the various efforts 

DCS made to assist Mother in fulfilling her obligations under the permanency plans and 

concluded that, during the relevant time period, ―DCS made reasonable efforts to assist 

[Mother] to establish a suitable home for the children, but [Mother] has failed to make 

even minimal efforts to provide a suitable home for her children.‖ Although Appellant 

did not raise an issue concerning the trial court's findings on DCS’s reasonable efforts, 

because DCS’s obligation to provide reasonable efforts is triggered by the trial court’s

reliance on the grounds of abandonment by failure to provide suitable housing, we have 

reviewed the record to determine whether the evidence preponderates in favor of the trial 

court’s findings concerning DCS’s reasonable efforts. Although Mother testified that 

DCS had provided no services or help to her, the record indicates otherwise. DCS 

caseworker, Joi Mosley, testified that DCS developed permanency plans for the Children. 

These plans set out tasks and goals that would help Mother regain custody of the 

Children. Mother testified that she understood her requirements under these plans. Of 

primary concern was Mother’s lack of proper housing, her lack of income, and her 

continued drug use. To aid Mother in addressing these concerns, Ms. Mosely testified 

that DCS provided Mother with a list of employment opportunities and offered to provide 

her with transportation to any job interviews. DCS set up parenting classes and alcohol 
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and drug treatment. However, Ms. Mosley testified that, when she would attempt to 

contact Mother to come in for drug screenings, Mother would often not answer the call. 

Ms. Mosley further stated that she attempted to assist Mother with completing the 

necessary forms to apply for disability, but Mother would never meet with Ms. Mosley to 

complete the paperwork. From the entire record, and in light of the particular facts of this 

case, we conclude that the evidence supports the trial court’s finding that DCS has made 

reasonable efforts to assist Mother; however, for the reasons discussed below, it does not 

appear that Mother has availed herself of these opportunities.

B. Abandonment by Willful Failure to Support

Tennessee Code Annotated Section 36-1-113(g)(1) provides that termination of 

parental rights may be based upon the ground of ―[a]bandonment by the parent or 

guardian, as defined in § 36-1-102....‖ Tennessee Code Annotated Section 36-1-

102(1)(A)(i) defines abandonment, in relevant part, 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 a guardian or guardians of the child who is the subject 

of the petition for termination of parental rights or adoption, that a parent or 

parents or a guardian or guardians . . . have willfully failed to . . . to 

support or have willfully failed to make reasonable payments toward the 

support of the child.

Id.

Failure to support a child is ―willful‖ when a person is aware of his or her duty to . 

. . support, has the capacity to do so, makes no attempt to do so, and has no justifiable 

excuse for not doing so. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005). 

Willfulness depends on the actor’s intent, and intent is seldom capable of direct proof. Id. 

Therefore, the trier-of-fact must infer intent from the circumstantial evidence, including a 

person’s actions or conduct. Id. ―Whether a parent failed to . . . support [his or her] child 

is a question of fact. Whether a parent’s failure to visit or support constitutes willful 

abandonment, however, is a question of law.‖ In re Adoption of Angela E., 402 S.W.3d 

636, 649 (Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 

(Tenn. 2007)). Whether there is a court order, requiring a parent to support his or her 

child, is not dispositive because Tennessee Code Annotated Section 36-1-102(1)(H) 

provides that ―every parent who is eighteen (18) years of age or older is presumed to have 

knowledge of a parent’s legal obligation to support such parent's child or children.‖

Therefore, a parent’s obligation to support his or her child exists regardless of a court 

order requiring the parent to pay support. See, e.g., In re Shandajha A.G., No. E2012-
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02579-COA-R3-PT, 2013 WL 3787594 (Tenn. Ct. App. July 17, 2013).

The relevant four-month time period in this case is September 26, 2014 until 

January 25, 2015. Mother testified that, during this time, she gave the Children small 

amounts of money, i.e., one or two dollars for use in vending machines. Mother testified 

that, on occasion, she would bring small toys or clothes for the Children when she 

participated in visitation. Concerning these items, the trial court found that:

If the Court were to take the evidence most favorable to [M]other, 

according to her own testimony, it would find that she testified that she 

would give the children money for a book fair or science fair, no specificity 

as to that, but that she would occasionally give them a dollar or two . . . that 

she would sometimes bring snacks, that she had on occasion given them 

money for vending machines at DCS, and that she had taken them toys and 

birthday and Christmas presents in 2012. Children cannot survive on such 

meager support in kind, if, in fact, any of the [aforementioned] even took 

place.

Although the trial court does not use the term ―token support‖ in its order, it is clear that 

the trial court found that the small amount of money and gifts that Mother allegedly gave 

to the Children was token support, which did not rise to the level of support necessary to 

preclude a finding a willful failure to support. As explained by the Tennessee Supreme 

Court,

[t]oken support payments are not sufficient to preclude a finding of a 

willful failure to support. Token support is support that ―under the 

circumstances of the individual case, is insignificant given the parent’s 

means.‖ Tenn. Code Ann. § 36-1-102(1)(B). In the context of token 

support, the word ―means‖ connotes both income and available resources 

for the payment of debt. In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 

WL 21266854, at *11 n. 24 (Tenn. Ct. App. June 3, 2003); see also Black’s 

Law Dictionary 1070 (9th ed. 2009).

In re Adoption of Angela E., 402 S.W.3d 636, 641 (Tenn. 2013). Here, Mother claimed 

that her lack of support (other than the token support mentioned above) was not willful 

because of the injuries she had sustained in a car accident some thirteen years prior to the 

date of hearing on the petition to terminate her parental rights. Although Mother testified 

that she is unable to work (so as to have money to provide support for the Children), in its 

order terminating her parental rights, the trial court specifically found that

[t]here is absolutely no proof that was tendered to the Court that [Mother] 
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has actively pursued disability with the social security agency, however she 

testifies that she has applied ten times.

This finding is supported by the preponderance of the evidence. Although Mother stated 

that she had applied and been denied disability numerous times, she failed to provide any 

proof of her attempts. Furthermore, there is nothing in the record to show that Mother is 

physically or mentally unable to work. In fact, Mother was briefly employed, in the fall 

of 2015, at a thrift store. However, she was fired from that job for not showing up. 

Mother testified that she was sick and called in, but that her message did not get to her 

manager. In total, Mother was employed for three weeks. From the evidence, the trial 

court found that her failure to support the Children was willful. Specifically, the court 

found that there is

no evidence that this wreck that happened some 13 years ago has rendered 

her unable to be employed. If, in fact, she has applied for disability ten 

times as she testified, the Court would wonder what kind of magical 

thinking makes you think that the eleventh time is the charm.

The Court finds that the [M]other has not taken reasonable steps to 

have gainful employment, that she has during her extended period of 

unemployment abused drugs and has consistently tested positive for 

cocaine, that despite having provided only token support for her children, 

she smokes by her admission, some ten cigarettes [per day] and if she had 

provided support that the cigarettes and her cocaine cost, that would get her 

out of this problem of having failed to support her children. [Mother] has 

chosen to indulge her own habits and addiction at the expense of her

relationship with her children and at the expense of her children being 

supported by a parent. 

Mother’s own testimony supports the trial court’s finding:

Q [to Mother]: You also testified . . . that the fact that you don’t have a job, 

which [according to] your testimony is the sole reason why you haven’t 

been able to [support the Children], was not willful. But you had a job at 

City Thrift in October 2015; is that correct?

A. Yes, ma’am.

***

Q. Okay. So you’re able to have a job. You’re capable of having a job. 
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Yes or no?

A. No. That job, it was really hard on me.

Q. But you were capable—they hired you; correct?

A. They hired me.

Q. You worked there for three weeks; is that correct?

A. Yes, ma’am.

Q. So you were capable of working?

A. Yes.

***

Q. So you smoke a pack of cigarettes every two days; correct?

A. Yeah.

Q. How do you pay for those cigarettes?

A. My friend.

***

Q. How do you supply your cocaine habit?

A. Friends will come over. And it’s not my cocaine. It’s theirs.

Q. So do your friends just give you cocaine for free?

A. Yeah.

Q. How are you paying for your storage unit that your furniture is stored 

in?

A. My friends are—her and her husband are helping me pay that.

Q. So your friends are paying for your cigarettes, for your drugs, and for 
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your storage unit, but your friends haven’t offered to help pay for your 

kids?

A. No, ma’am.

It is clear from the foregoing testimony, and the record as a whole, that Mother is able to 

get money for her cigarette and cocaine habits, but is unconcerned with providing any 

meaningful support for the Children. We conclude, therefore, that the facts, as found by 

the trial court, are supported by the preponderance of the evidence and clearly and 

convincingly establish the elements necessary to terminate Appellant’s parental rights on 

the ground of abandonment by willful failure to support. Tenn. Code Ann. § 36-1-

113(g)(1).

C. Abandonment by Failure to Establish a Suitable Home and Lack of Concern

Tennessee Code Annotated Section 36-1-102(1)(A)(ii) further defines 

―abandonment‖ for purposes of termination of parental rights as follows:

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

or agency has made reasonable efforts to assist the parent(s) or guardian(s) 

to establish a suitable home for the child, but that the parent(s) or 

guardian(s) 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.

Id. 

As discussed above, the Children were taken into DCS custody due, in part, to the 

sexual abuse perpetrated by Father against Leaya. The record indicates that DCS made it 

abundantly clear to Mother that, if she was to have contact with the Children, she could 

not have them around Father. Nonetheless, Mother continued to live with Father 

because, according to her testimony, he was her sole means of support and, without his 

income, she would have been homeless. As found by the trial court:

At the beginning of this case when the children came into custody, the 

[M]other did not have a suitable home for them. That is one of the reasons 

they came into custody. The [M]other has resorted to living with the 

person that she knew was accused of molesting one of her children. She 

chose to do that because, by her own testimony, otherwise she would have 

been homeless. So she chose to live with this man knowing and being 
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advised that she could not have her children so long as she lived with him. 

She did not have sufficient income at any relevant period to provide a 

suitable home. And again, the Court finds no reason to find her disabled 

and would find this failure to provide a suitable home a willful refusal to 

become gainfully employed.

Although Mother testified that she had filled out several applications for housing, the trial 

court noted that her efforts to procure housing without first procuring employment was 

―some type of magical thinking.‖ Again, Mother’s unwillingness to engage in any 

meaningful employment negates her ability to provide a proper home for the Children. 

Simply put, without an income, she cannot afford housing. Accordingly, Mother has 

chosen to live with the person accused of abusing her child. 

Not only does the record indicate that Mother has failed to provide a suitable 

physical abode for the Children, but (by her own admission) she also continues to use 

illegal drugs. From the record, it is clear that Mother’s drug use has kept her from taking 

the necessary steps to regain custody of her Children. For example, around the time that 

Mother was fired from her thrift store job, she tested positive for cocaine use. It appears 

that her inability to maintain consistent employment and her inability to make good 

parenting choices is due, at least in part, to her addiction, which (as discussed below) has 

not been treated due to Mother’s lack of participation in her own recovery. 

From the record, we conclude that the facts, as found by the trial court, are 

supported by the preponderance of the evidence and clearly and convincingly establish 

the elements necessary to terminate Appellant’s parental rights on the ground of 

abandonment by failure to provide a suitable home and lack of concern. Tenn. Code Ann. 

§ 36-1-113(g)(1).

D. Persistence of Conditions

Tennessee Code Annotated Section 36-1-113(g)(3) provides that termination of 

parental rights may be based upon persistence of conditions:

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

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

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

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

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

care of the parent(s) or guardian(s), still persist;
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(B) There is little likelihood that these conditions will be remedied at an 

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

guardian(s) in the near future; and

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

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

and permanent home

Id.; see also In re S.Y., 121 S.W.3d 358, 369 (Tenn.Ct.App.2003). The purpose behind 

the ―persistence of conditions‖ ground for terminating parental rights is ―to prevent the 

child’s lingering in the uncertain status of foster child if a parent cannot within a 

reasonable time demonstrate an ability to provide a safe and caring environment for the 

child.” In re Arteria H., 326 S.W.3d 167, 178 (Tenn.Ct.App.2010).

In the case of In re Audrey S., 182 S.W.3d 838 (Tenn.Ct.App.2005), this Court 

held that, based upon the statutory text and its historical development, the ground of 

persistence of conditions found in Tennessee Code Annotated Section 36-1- 113(g)(3) 

provides a ground for termination of parental rights only where the prior court order 

removing the child from the parent’s home was based on a judicial finding of 

dependency, neglect, or abuse. Id. at 872. As discussed above, the Children were 

adjudicated to be dependent and neglected based on environmental neglect and Mother’s 

continued drug use. In its order terminating her parental rights, the trial court specifically 

found that:

When the children came into custody, [Mother] did not have a 

suitable home. Today[, Mother] does not have a suitable home. When the 

children came into custody, [Mother] did not have employment or a legal 

source of income. Today, some two years later, [Mother] still does not 

have a legal means of income.

Two years ago, [Mother] demonstrated a problem with drugs, having 

tested positive for cocaine. Many times during the two years . . .[that the] 

children have been in foster care and as late as November 2015, [Mother] 

has tested positive for cocaine and [Mother], by her own admission, used 

cocaine three weeks ago. The conditions that led to the children coming 

into the custody of DCS persist unto this day and have not changed a bit 

over the past 26 months.

As discussed in detail above, despite DCS’s efforts to assist her, Mother has failed 

to procure adequate housing. In fact, there is little evidence in the record concerning 

Mother’s current living arrangement. From her testimony, however, it is clear that she 
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maintains regular contact with ―friends‖ who provide her with cigarettes and drugs. 

Certainly, Mother’s choice in ―friends‖ does not bode well for the home environment that 

she would provide for her Children. More concerning, however, is the fact that Mother 

continues to test positive for cocaine use. As set out in context above, even in her own 

testimony, she does not deny that she uses cocaine. Although Mother has, on a few 

occasions, tested negative for drugs, the majority of the drug test results (included in the 

record) show positive for cocaine. DCS has assisted Mother in making contact with drug 

and alcohol treatment facilities; however, Mother has failed to follow through after the 

initial assessment. In her testimony, Mother stated that she has not been ready to address 

her addiction, but opines that she ―just need[s] a chance, just six months so that I can go 

and fix myself. Just six months so that I can get the help that I need . . . .‖ From the 

record, Mother has had ample opportunity and assistance to make permanent changes that 

would allow the Children to be returned to her custody; however, as of the hearing date, 

she had not availed herself of these opportunities. Given Mother’s history of 

noncompliance, there is little likelihood that additional time would prompt her to make a 

change in her circumstance. This Court has previously held that ―in determining whether 

grounds for termination of the parental rights of a biological parent are established, both 

the trial court and this Court must look to the evidence of the parent’s past actions, rather 

than the parent’s future aspirations.‖ In re Adoption of Logan A.S., No. W2009-02661-

COA-R3-PT, 2010 WL 3984712, at *8 (Tenn. Ct. App. Oct. 12, 2010). Based on the 

totality of the circumstances, we conclude that there is clear and convincing evidence in 

the record to support the trial court’s finding that the conditions that led to the Children’s 

removal from Mother’s custody still persist, and ―[t]here is little likelihood that these 

conditions will be remedied at an early date so that the [C]hild[ren] can be safely returned 

to the parent . . . in the near future.‖ Tenn. Code Ann. § 36-1-113(g)(3)(B).

V. Best Interests

When at least one ground for termination of parental rights has been established, 

the petitioner must then prove, by clear and convincing evidence, that termination of the 

parent’s rights is in the child's best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn.

Ct. App. 1994). When a parent has been found to be unfit upon establishment of a ground 

for termination of parental rights, then ―the interests of parent and child diverge.‖ In re 

Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id. 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.‖ Id. However, when the interests of the parent and the 

child conflict, courts are to resolve the conflict in favor of the rights and best interest of 

the child. Tenn. Code Ann. § 36-1-101(d). ―The child’s best interest must be viewed from 

the child’s, rather than the parent’s, perspective.‖ White, 171 S.W.3d 194.
- 15 -

The Tennessee Legislature has codified certain factors that courts should consider 

in ascertaining the best interest of the child. These factors include, but are not limited to:

(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;

***

(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;

* * *

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

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

there is such use of alcohol or controlled substances as may render the 

parent or guardian consistently unable to care for the child in a safe and 

stable manner;

***

(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). This Court has noted that, ―this list [of factors] is not 

exhaustive, and the statute does not require a trial court to find the existence of each 

enumerated factor before it may conclude that terminating a parent's rights is in the best 

interest of a child.‖ In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). 

Depending on the circumstances of an individual case, the consideration of a single factor 

or other facts outside the enumerated, statutory factors may dictate the outcome of the 

best interest analysis. In re Audrey S., 182 S.W.3d at 877.
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In its order, the trial court stated, in relevant part, that

[t]he Court has heard the testimony of the resource parent, and would find 

that the children have been well situated in [Samuel R.’s] home for over 

eight months. They have provided very well for the needs of the children 

and while in their home, the children have thrived. Based on the oldest 

child’s testimony, there is a strong bond that exists between the children 

and their foster family. It is also evident by the child’s testimony that he 

believes he would be better off to be with the foster parents than to return to 

his mother’s care. Having heard the testimony and reviewed the evidence, 

the Court would find by clear and convincing evidence that the termination 

of . . . [Mother’s] parental rights would be in the children’s best interest[s].

From our review, the record supports the trial court’s finding that termination of 

Mother’s parental rights is in the Children’s best interests. As discussed above, despite 

DCS’s efforts to assist her, Mother has failed to make any meaningful change to her 

circumstances. She continues to be unemployed. She had not found suitable housing, 

and she continues to use drugs. She maintains friendships with people who enable her to 

continue her drug habit. In addition, Mother has failed to provide anything other than 

token support for the Children. Although Mother has maintained minimum contact with 

the Children, there is no evidence that there is a meaningful relationship between Mother 

and the Children. Rather, the evidence shows that the Children have bonded with their 

foster parents. The evidence further shows that the Children have been well cared for in 

their current foster placement. Given the Children’s ages and the lack of stability in 

Mother’s household, we conclude that it would likely cause the Children emotional and 

psychological harm to be placed in Mother’s custody. Accordingly, we conclude that the

facts, as found by the trial court, are supported by the preponderance of the evidence and 

clearly and convincingly establish that termination of Mother’s parental rights is in the 

Children’s best interests.

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s order, terminating Mother’s 

parental rights to these Children. The case is remanded for such further proceedings as 

may be necessary and are consistent with this opinion. Costs of the appeal are assessed 

to the Appellant, Lisa C. Because Lisa C. is proceeding in forma pauperis in this appeal, 

execution for costs may issue if necessary.

_________________________________

ARNOLD B. GOLDIN, JUDGE