IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 18, 2016 Session

IN RE PROMISE A., ET AL.1

Appeal from the Juvenile Court for Montgomery County

No. 151290, 151291 Timothy K. Barnes, Judge

___________________________________

No. M2015-02144-COA-R3-PT – Filed March 16, 2017

___________________________________

The Department of Children’s Services received custody of two children as a result of a 

petition it filed to have the children declared dependent and neglected; the children’s 

mother had died, and they were unable to be placed with their father due to uncertainty 

regarding his paternity of the children and housing arrangement. After custody was 

granted to the Department and a permanency plan developed, the father established his 

paternity; the permanency plan required that he continue to address his housing and 

employment situations, among other matters. Eleven months after the children came into 

custody, the Department filed a petition to terminate Father’s rights on the grounds of 

abandonment by failure to visit or support, abandonment by failure to provide a suitable 

home, substantial noncompliance with the permanency plan, and persistence of 

conditions. After a trial, the court found that clear and convincing evidence existed as to 

all grounds and that termination was in the best interest of the children. Father appeals, 

contending that the evidence preponderates against various findings of the court, that the 

evidence does not support a conclusion that any of the grounds were established, or that 

termination is in the children’s best interest. Inasmuch as the children were not removed 

from the Father’s home at the time they came into the Department’s custody, we reverse 

the judgment terminating the Father’s rights on the grounds of persistence of conditions 

and abandonment by failure to provide a suitable home; in all other respects, the 

judgment is affirmed.

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

Part and Affirmed in Part; Case Remanded

 

1 This Court has a policy of protecting the identity of children in parental termination cases by initializing 

the last names of the parties.
2

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT

and W. NEAL MCBRAYER, JJ., joined.

Taylor R. Dahl, Clarksville, Tennessee, for the appellant, Raymond S. A., Sr.

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

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

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

This is an appeal from the termination of Raymond A.’s (“Father”) rights to his

two children: Promise A., born September 2007, and Raymond A. Jr. born June 2008. 

The Department of Children’s Services (“DCS”) became involved in May 2014, when it 

received a referral that the children’s mother had been hospitalized and, as a result, the 

children were unsupervised. On May 23 the children’s mother passed away; that same 

day DCS filed a Petition to Adjudicate Dependency and Neglect. Pertinent to the instant 

appeal, the petition alleged:

The father to the two younger children is [Father] and he lives in 

Clarksville, Tennessee. It is unknown where the father lives, but it was 

reported he lives in a motel.

* * * 

[Father] reported that he was the father of Raymond Jr. and Promise. . . . 

[Father] stated that he was not in a relationship with [Mother], but he 

visited the children every other weekend. He reported seeing the children a 

month ago. [Father] stated there was no court order for visitation. [Father] 

reported that he moved to Clarksville, TN from Texas along with [Mother] 

and the children. He reported that he currently is staying with a friend and 

does not have a place of his own. . . .

* * * 

[Father] admitted to past prescription drug use, but denied current use. 

[Father] consented to a drug screen and tested negative for all substances 

tested for. [Father] admitted to past prescription drug use, but denied 

current use. . . . 

* * * 

CPSA Williams contacted Texas Department of Family and Protective 

Services. Tamala with DFPS reported that [ ] was listed as being the 

father of [ ]; [Father] was listed as being the father of Raymond A. and 

that the father of Promise was not listed.

* * *
3

[Mother’s sister] stated that [Father] was good with children, but that he 

was not capable of providing for the children financially. She reported that 

[Mother] stated to her that [Father] was not the biological father of any of 

the children. She reported that according to [Mother], [Father] was aware 

that he was not the children’s biological father. She reported that [Mother] 

stated that [Father] signed both Promise and Raymond Jr’s birth certificate 

but she was not aware if this was true. She reported that . . . Promise and 

Raymond’s father’s name is Chris.

* * *

[Father] reported that [Mother] . . . advised that he was not biological father 

of Promise. [Father] reported hearing in the past that he was not the 

biological father of Promise. [Father] asked the worker if he was able to 

take a paternity test to determine paternity.

* * *

CPSA attempted to obtain the birth certificate of Promise and Raymond. 

[Father] nor any of the other family members were able to provide the 

department with definitive proof who the legal father of any children [sic]

is. Due to all three children left without a caretaker, DCS placed them in 

state’s custody.

A protective custody order was entered placing the children in the custody of DCS and 

setting a preliminary hearing on the petition for May 27.2 On October 2, 2014, a hearing 

was held on the dependent and neglect petition; the court found clear and convincing 

evidence that the children were dependent and neglected and continued custody with 

DCS. 

The first permanency plan was developed on June 20, 2014; the first permanency 

goal, with a target date of December 8, was “return to parent,” and the secondary goal 

was “exit custody with relative.” The plan, inter alia, required Father to pay support for 

and attend all scheduled visits with the children; have a drug and alcohol assessment and 

comply with any recommendations; be subject to twice-monthly drug screens; 

demonstrate an ability to provide the children with a safe home environment and meet 

their basic, physical, and medical needs; have a legal source of income; and complete a 

paternity test. A second permanency plan was completed on October 22; the plan 

continued many of the requirements of the first plan, maintained the primary goal of 

return to parent, and changed the secondary goal to adoption. The second plan modified 

the first by adding the requirements that Father implement the recommendations from the 

alcohol and drug assessment he took, complete a psychiatric intake and assessment and 

random drug screens, and that he participate in the Parenting Education class through 

Family Support Services. 

 

2 The record does not reveal the result of the May 27 hearing.
4

DCS filed a petition to terminate Father’s rights on April 9, 2015, alleging as 

grounds: persistence of conditions pursuant to Tennessee Code Annotated section 36-1-

113(g)(3); abandonment by failure to visit, support, or to establish a suitable home 

pursuant to section 36-1-113(g)(1); and substantial non-compliance with permanency 

plans pursuant to section 36-1-113(g)(2). The petition also alleged that termination was 

in the children’s best interest. Father was appointed counsel, and a guardian ad litem was 

appointed.

A hearing was held over two days in September 2015, at which DCS family 

service worker Lawanna Hassan, the children’s foster father, and Father testified. At the 

completion of the hearing, the court stated its factual findings and that termination of 

Father’s parental rights was in the best interest of the children, and terminated his rights 

on the grounds of failure to visit or support, persistence of conditions, substantial 

noncompliance with the permanency plans, and failure to establish a suitable home; an 

order was entered on February 4, 2016, memorializing the oral ruling. 

Father appeals, articulating the following issues for our review:

1. Whether there is clear and convincing evidence to support the 

termination of parental rights on any of the grounds enumerated, 

specifically whether there is clear and convincing evidence of 

substantial noncompliance with the permanency plan, abandonment 

by failure to provide a suitable home, abandonment by failure to 

visit and support, or persistence of conditions.

2. Whether there is clear and convincing evidence to support that 

termination of the Father’s parental rights was in the best interests of 

the minor children. 

3. Whether the Father’s lack of counsel in the dependency and neglect 

adjudicatory hearing, which directly preceded the termination of 

parental rights proceeding, violated the Father’s right to due process, 

as due process requires States to provide parents with fundamentally 

fair procedures.

4. Whether the Department of Children’s Services provided reasonable 

efforts to reunify the children with their Father.

II. STANDARD OF REVIEW

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

Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 

809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain 

circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of 

Children’s Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes 

on termination of parental rights provide the only authority for a court to terminate a 
5

parent’s rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental 

rights may be terminated only where a statutorily defined ground exists. Tenn. Code 

Ann.§ 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 

980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental 

rights, only one ground need be proved, so long as it is proved by clear and convincing 

evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

Because the decision to terminate parental rights affects fundamental 

constitutional rights and carries grave consequences, courts must apply a higher standard 

of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court 

may terminate a person’s parental rights only if (1) the existence of at least one statutory 

ground is proved by clear and convincing evidence and (2) it is shown, also by clear and 

convincing evidence that termination of the parent’s rights is in the best interest of the 

child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09; 

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of 

proof in these cases, a reviewing court must adapt the customary standard of review set 

forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 

2004). As to the court’s findings of fact, our review is de novo with a presumption of 

correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. 

App. P. 13(d). Id. 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. Id.

III. ANALYSIS

A. Grounds for Termination

The trial court found that the following statutory grounds for termination were 

established: abandonment by failure to visit, failure to support, and failure to provide a 

suitable home; that the conditions which led to the children’s coming into DCS custody 

persisted; and that Father was in substantial noncompliance with the permanency plans.

Father challenges the court’s holdings with respect to each ground for termination. 

1. Substantial Noncompliance with Permanency Plans 

A ground for termination is “substantial noncompliance by the parent or guardian 

with the statement of responsibilities in a permanency plan pursuant to the provisions of 

title 37, chapter 2, part 4.” Tenn. Code Ann. § 36-1-113(g)(2). Elaborating on this 

ground in In re M.J.B., this Court has stated:

Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2) 

requires more proof than that a parent has not complied with every jot and 

tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
6

113(g)(2), the Department must demonstrate first that the requirements of 

the permanency plan are reasonable and related to remedying the conditions 

that caused the child to be removed from the parent’s custody in the first 

place, In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 

(Tenn.Ct.App.2003), and second that the parent’s noncompliance is 

substantial in light of the degree of noncompliance and the importance of 

the particular requirement that has not been met. In re Valentine, 79 S.W.3d 

at 548–49; In re Z.J.S., 2003 WL 21266854, at *12. Trivial, minor, or 

technical deviations from a permanency plan’s requirements will not be 

deemed to amount to substantial noncompliance. In re Valentine, 79 

S.W.3d at 548; Department of Children’s Servs. v. C.L., No. M2001-02729-

COA-R3-JV, 2003 WL 22037399, at *18 (Tenn. Ct. App. Aug. 29, 2003) 

(No Tenn. R. App. P. 11 application filed).

140 S.W.3d at 656–57. Whether there has been substantial noncompliance with a 

permanency plan is a question of law, reviewed on appeal de novo with no presumption 

of correctness. In re Valentine, 79 S.W.3d at 548.

With respect to the ground of substantial noncompliance, the trial court made the 

following findings of fact:

At the outset, the Court finds that the requirements under the 

permanency plans for [Father] were clearly reasonable and related to 

remedying the conditions that warranted foster care for the children. This 

Court previously made such a finding when ratifying the permanency plans 

on July 29th, 2014 and April 1st, 2015. The Court finds that [Father] was

given multiple copies of these plans; it believes the testimony was five 

copies were given to [Father]. [Father] knew what his obligations in the 

permanency plans were and the tasks that he was asked to do, were not 

done in a timely manner. He was asked to do an A&D assessment in July 

2014. He finally completed that, according to his own testimony, a couple 

of months ago, which the Court would assume is July of 2015, over a year 

later.

He was asked to provide prescriptions and participate in random 

drug screens. His testimony during this hearing was that he does not have 

prescriptions, but apparently he provided no proof that this is true. He was 

asked to provide random pill counts. His own testimony was that he did 

not do that. He has not provided any proof of a legal means of income. He 

has not provided a lease agreement or any proof of showing that he has 

stable housing.
7

The Court would find that [Father] was offered the assistance of the 

department of Children’s Services in finding suitable housing and that he 

consistently turned down that help and further did not avail himself to [sic]

DCS for further help, much the same way that he did not avail himself to

[sic] the help of his attorney early on.

The Court therefore finds that [Father] has made no progress 

towards accomplishing the tasks under the permanency plans. DCS clearly 

made reasonable efforts as described above to assist [Father], therefore, 

[Father] is in substantial noncompliance with the permanency plan 

obligations. 

Father argues that the trial court’s finding that the requirements of the permanency 

plans were reasonable and related to the remedying the conditions that caused the 

children’s removal in the first place is unsupported because “the condition that caused the 

children to be removed . . . was the death of their mother and Father’s inability to 

immediately produce their birth certificates.” This is not a complete or accurate 

statement of the circumstances upon which the children came into DCS custody. 

While the children’s mother’s death was the precipitating factor in their coming 

into DCS custody, it was not the sole factor. The interviews and investigation conducted 

by DCS produced, in addition to uncertainty regarding the paternity of the children, 

concerns about Father’s housing situation, drug use and criminal history, as noted in the 

allegations of the petition quoted at section I, supra. As a result of taking custody of the 

children, DCS was required by Tennessee Code Annotated section 37-2-403 to develop a 

plan for each child that addressed the circumstances by which they came into custody; 

here those circumstances were the death of their mother and, in light of the uncertainty as 

to their father, the lack of a placement for the children. 

For the reasons set forth below, we agree with the trial court that the requirements 

of the permanency plans were reasonably related to remedying the conditions that led to 

the children’s not being placed with Father upon the mother’s death. The first 

permanency plan was developed on June 20, 2014, with the first permanency goal being 

“return to parent,” with the secondary goal of “exit custody with relative”; the target date 

was December 8. Pertinent to the issues in this appeal, the plan required Father to pay 

support for and attend all scheduled visits with the children; have a drug and alcohol 

assessment and comply with any recommendations, and be subject to twice-monthly drug 

screens; demonstrate an ability to provide the children with a safe home environment and 

meet their basic, physical, and medical needs; have a legal source of income; and 

complete a paternity test. A second permanency plan was completed on October 22; the 

plan continued many of the requirements of the first plan, maintained the primary goal of 

return to parent, and changed the secondary goal to adoption. The second plan modified 

the first by adding the requirements that Father implement the recommendations from the 
8

alcohol and drug assessment he took and complete a psychiatric intake and assessment, 

that he submit to random drug screens, and that he participate in the Parenting Education 

class through Family Support Services. The permanency plans reflect these concerns, 

particularly Father’s housing and employment situation, and set forth steps to assist 

Father in acquiring a more stable lifestyle. 

Father also argues that the failure of his counsel in the dependent and neglect 

proceeding to attend the meeting where the permanency plans were developed deprived 

him of the opportunity to challenge some of the requirements of the permanency plans, 

thereby resulting in requirements that were not reasonable or related to the circumstances 

that led to the children being placed in DCS custody. He contends that these matters, 

along with the failure of the court to appoint counsel for him after permitting his counsel 

to withdraw in the dependent and neglect proceeding, resulted in a fundamentally unfair 

procedure.3 We find no merit to Father’s contention that the fact that he was 

unrepresented during a portion of the dependent and neglect proceeding rendered that 

proceeding or the termination proceeding unfair or deprived him of due process. This 

Court has previously held that “any deprivation of due process based upon the failure to 

appoint counsel during a dependency and neglect proceeding is remedied if the appellant 

is afforded full protection at the termination proceeding.” In re Arteria H., 326 S.W.3d 

167, 183 (Tenn. Ct. App. 2010), overruled on other grounds by In re Kaliyah S., 455 

S.W.3d 533 (Tenn. 2015) (citing In re S.Y., 121 S.W.3d 358, 364 (Tenn. Ct. App. 2003)). 

Father was represented by counsel at all times during the termination proceedings; 

moreover, the reasonableness of the requirements of the permanency plans is an issue that 

was resolved by the trial court and that we consider in this appeal. The requirements of 

the permanency plans were reasonable and related to the circumstances and conditions 

that caused the children to come into DCS custody. 

We now address whether the record clearly and convincingly supports the finding 

that Father was in substantial noncompliance with the permanency plans. Ms. Hassan 

testified that Father received both permanency plans; that she explained to Father that 

DCS could assist him with anything listed on the permanency plan but that Father 

“always stated that he didn’t need any assistance”; that, with respect to Father, “[i]t 

doesn’t seem like there’s any concern to actually get the tasks done and there’s no hurry 

to it”; that she requested a walk-through of the home since the . . . petition was filed, but 

he never gave us a time when we could come out to the home”; that Father did not visit 

the children until he received the petition to terminate his parental rights; that Father has 

never provided proof of income, but recently “stated that he’s a clergyman and showed us 

his card and stated that he did not have to provide proof of income for that reason”; that 

she made several attempts to contact Father, including by phone and mail; that Father 

 

3

In his statement of issues Father refers to a due process right, which he contends “requires States to 

provide parents with fundamentally fair procedures.” 

 
9

complied with the request for a paternity test; that he completed a parenting assessment, 

which was paid for by DCS and which recommended that he take a parenting class;4that 

Father completed an “online four-hour parenting class,” which Ms. Hassan had “no way 

to determine if it . . . would meet the criteria”; that Father provided proof of completing 

that class in the six months allotted only “two, maybe three months ago [before the 

hearing]”;5that Father had provided no proof of a stable home or income, had attended 

no school meetings, doctors’ visits, or otherwise participated in the children’s lives, as 

required by the permanency plans. 

The foster father, who was tasked with supervising visitation between Father and 

children, testified that there was no contact between father and children from January 

2015, when the children were placed in his home, until April 2015, when the petition to 

terminate Father’s parental rights was filed. 

Father testified that he received both permanency plans and understood the criteria 

for terminating his rights, and that if he did not complete DCS’s requests, the court could 

terminate his rights to his children. Father did not introduce evidence contrary to the 

testimony of Ms. Hassan or the foster father; rather he argues that he “actually completed 

numerous tasks,” including the paternity test, alcohol and drug assessment, drug screens, 

parenting assessment, and a four hour parenting class. 

Viewing the evidence as a whole, the tasks that Father completed were insufficient 

to establish substantial compliance with the permanency plans. The testimony shows that 

he completed many of the tasks only after the petition to terminate his rights was filed 

and in anticipation of the hearing on the petition. At the time of the hearing, he had not 

secured separate living arrangements or demonstrated “the ability to provide the children 

with a safe and nurturing home environment,” as required by the plans but, rather, was 

 

4 Despite Father’s contention that there is no testimony to support “the Juvenile Court [’s finding] that the 

F[amily] S[ervices] W[orker] specifically testified that DCS paid for a paternity test and she set up the 

alcohol and drug assessment for [Father] at Renewal House,” we observe that Ms. Hassan testified that:

The Department actually paid for the A[lcohol] & D[rug] assessment. We had a 

representative from Renewal House that would be in our office regularly. She actually 

went in and did the A&D assessment with [Father]. We also paid for the parenting 

assessment. We made several attempts to get ahold of him to ask if he needed assistance

with other services and also provided our information so that, you know, we knew he had 

the information to contact us.

The court’s finding is supported by this testimony.

5 Upon our review of Ms. Hassan’s testimony, we note that, shortly after giving the quoted testimony, she 

used the terminology “two, maybe three weeks ago.” This misstatement is not material because Father 

provided the proof to DCS, at the earliest, in June of 2015, which was past the target completion date of 

April 22, 2015.
10

living with the people with whom he was living at the time the dependent and neglect 

proceeding was initiated and who had been rejected as a potential placement for the 

children.6The permanency plans required that he have a legal means of income, pay 

child support, and be able to meet the children’s financial needs. He testified, however, 

that he had not provided proof of income to DCS and had not paid support; significantly, 

until the termination petition was filed, he had not attended his scheduled visitations. The 

evidence clearly and convincingly supports the finding that Father was in substantial 

noncompliance with the provisions of the permanency plans. 

2. Abandonment by Failure to Visit or Support

Abandonment is listed as a ground for termination in Tennessee Code Annotated 

section 36-1-113(g)(1); that term is defined in Tennessee Code Annotated section 36-1-

102(1)(A), which reads in pertinent part:

For purposes of terminating the parental or guardian rights of a parent or 

parents or a guardian or guardians of a child to that child in order to make 

that child available for adoption, “abandonment” means that:

***

(i) For a period of four (4) consecutive months immediately preceding the 

filing of a proceeding or pleading to terminate the parental rights of the 

parent or parents or the guardian or guardians of the child who is the 

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

parent or parents or the guardian or guardians either have willfully failed to 

visit or have willfully failed to support or have willfully failed to make 

reasonable payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i). 

The record is clear that during the four-month period preceding the filing of the 

termination petition, Father did not visit the children. He acknowledged that he did not 

visit them between September 2014 and May 2015 and asserts that this was not willful 

 

6 All persons living in the home in which Father was living were required to pass a background check and 

drug screen in order for the children to be placed with him. Father argues at length that DCS ran a 

background check on the wrong person: a Mr. F[.], instead of a Mr. G[.]. One person on which DCS 

performed a background check did not pass; Father was informed of this. Upon learning from Ms. 

Hassan that the children could not be placed in the home “due to Mr. F[.]’s background check,” Father 

should have been alerted that the wrong name was used in the background check and communicated that 

to DCS. In any event, in light of the entire record, any error on the part of DCS in running the 

background check does not affect Father’s responsibility to comply with the requirements of the 

permanency plan. 
11

but was “largely due to communication difficulties between DCS and [Father], not due to 

willful failure.” In support, Father cites testimony that he spoke with Ms. Hassan’s 

predecessor

7

regarding one occasion in which he would not be able to exercise his 

visitation due to a flat tire and was advised by the caseworker that the worker “would try 

to rearrange it or we’ll just go to the next visit, and the next thing I know he never called 

me back.” 

In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), the court discussed 

willfulness in the context of termination cases: 

 

The concept of “willfulness” is at the core of the statutory definition 

of abandonment. A parent cannot be found to have abandoned a child 

under Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either 

“willfully” failed to visit or “willfully” failed to support the child for a 

period of four consecutive months. . . . In the statutes governing the 

termination of parental rights, “willfulness” does not require the same 

standard of culpability as is required by the penal code. Nor does it require 

malevolence or ill will. Willful conduct consists of acts or failures to act 

that are intentional or voluntary rather than accidental or inadvertent. 

Conduct is “willful” if it is the product of free will rather than coercion. . . . 

Failure to visit or support a child is “willful” when a person is aware of his 

or her duty to visit or support, has the capacity to do so, makes no attempt 

to do so, and has no justifiable excuse for not doing so. Failure to visit or 

to support is not excused by another person’s conduct unless the conduct 

actually prevents the person with the obligation from performing his or her 

duty . . . or amounts to a significant restraint of or interference with the 

parent=s efforts to support or develop a relationship with the child. . . .

Id. at 863B64 (citations and footnotes omitted). The record will not support a conclusion 

that Father’s failure to visit his children was not willful. 

The record is clear that Father knew that he could visit and in fact had visited; he 

did not testify that he was prevented in any way from visiting the children, and the record 

belies an inference that anything DCS did or did not do prevented him from exercising 

his visitation. Father had successfully exercised several visitations prior to September 

2014, and it is disingenuous for him to contend on appeal that he needed counsel to 

“explain the process to him, for all of those visits” and that the lack of counsel explains 

away his failure to visit. The record supports a finding that his failure to visit was willful. 

 

7 Ms. Hassan assumed responsibility for this case in July 2014. 

 
12

Similarly, the evidence of Father’s willful failure to pay support is clear and 

convincing. Both Ms. Hassan and Father testified that he did not pay any child support. 

Father testified that he works, providing “tree service, lawn service, landscaping, 

drywall” but that he has never paid child support for the following reasons: he “was 

under the impression [he] was going to get [his] children back”; DCS was “going to send 

[him] some kind of verification of where I was supposed to send this money to,” which 

he never received; and “it was very difficult” to both work and try to find another 

residence. 

As to Father’s reasons for not paying support, we note that the obligation to 

support one’s children was clearly set forth I the permanency plan and does not abate 

because a parent believes he or she will regain custody. Second, contrary to Father’s 

insistence, the payment address was provided in both permanency plans. Third, Ms. 

Hassan and Father both testified that DCS offered to assist Father with finding another 

residence, but he refused the assistance. 

Accordingly, the record clearly and convincingly supports the termination of 

Father’s parental rights on the grounds of abandonment by failure to visit and by failure 

to support.

3. Abandonment by Failure to Establish a Suitable Home and 

Persistence of Conditions 

The grounds of abandonment by failure to establish a suitable home8and 

persistence of conditions9are predicated on the child being removed from the home of 

 

8 Tennessee Code Annotated section 36-1-113(g)(1) provides that abandonment, as defined at Tennessee 

Code Annotated section 36-1-102(1)(A), is a ground for termination of parental rights; the latter statute 

defines “abandonment” as follows: 

For purposes of terminating the parental or guardian rights of a parent or parents or a 

guardian or guardians of a child to that child in order to make that child available for 

adoption, “abandonment” means that:

***

(ii) The child has been removed from the home of the parent or parents or the guardian 

or guardians as the result of a petition filed in the juvenile court in which the child was 

found to be a dependent and neglected child, as defined in § 37-1-102, and the child was 

placed in the custody of the department or a licensed child-placing agency, that the 

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

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

prevent removal of the child or that the circumstances of the child's situation prevented 

reasonable efforts from being made prior to the child's removal; and for a period of four 

(4) months following the removal, the department or agency has made reasonable efforts 

to assist the parent or parents or the guardian or guardians to establish a suitable home for
13

the person whose parental rights are sought to be terminated. This Court in In re Navada 

N. held that “this ground [of abandonment by failure to provide a suitable home] is 

inapplicable when the child is not removed from the parent at issue’s home before being 

placed with DCS.” 498 S.W.3d 579, 596-97 (Tenn. Ct. App. 2016), no perm. app. filed

(citing In Re Jayden B.T., No. E2014-00715-COA-R3-PT, 2015 WL 3876573, at *9 

(Tenn. Ct. App. June 23, 2015), appeal denied (Sept. 25, 2015); In re K.M.K., No. 

E2014-00471-COA-R3-PT, 2015 WL 866730, at *5 (Tenn. Ct. App. Feb. 27, 2015)). 

Similarly, this court in In Re Jayden B.T. held the requirement to apply when the ground 

for termination asserted is persistence of conditions. 2015 WL 3876573, at *9. 

Father testified that he was not living with the children’s mother at the time the 

children were placed in foster care in May 2014. He testified that, prior to their removal, 

he had been visiting with his children “just about every other weekend,” but he did not 

testify where the visits took place. He testified that he was living at a certain address 

since the time DCS became involved and that he was unable to prove that the children 

were his biological children because their birth certificates “were in the house where they 

 

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[.]

(Emphasis added.)

9 Tennessee Code Annotated section 36-1-113(g)(3) provides that persistence of conditions is a ground 

for termination:

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

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

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

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

neglect and that, therefore, prevent the child’s safe return to the care of the parent or 

parents or the guardian or guardians, still persist;

(B) There is little likelihood that these conditions will be remedied at an early date so 

that the child can be safely returned to the parent or parents or the guardian or 

guardians in the near future; and

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

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

home;

(Emphasis added.)
14

were staying.” This testimony, as well as trial Exhibit 2,10 establishes that the children 

lived in a different home from Father’s. Inasmuch as the children were not removed from 

Father’s home, these grounds for termination are not applicable, and we reverse the 

determination to the contrary.11 

C. Best Interest 

Once a ground for termination has been proven, the trial court must then determine 

whether it is in the best interest of the child for the parent’s rights to be terminated, again 

using the clear and convincing evidence standard. In re Valentine, 79 S.W.3d at 546. The 

legislature set out a list of factors at Tennessee Code Annotated section 36-1-113(i) for 

the courts to follow in determining the child’s best interest.12 The list of factors in the 

 

10 Exhibit 2 contained the Protective Custody Order, entered May 23, 2014, and the Petition to Adjudicate 

Dependency and Neglect, filed the same day. In the petition, DCS alleged that “the mother’s boyfriend, 

Rob P[.] . . . has stated he and the children are at the home where the mother and children lived.” 

11 Although not establishing grounds for termination, Father’s living situation and the circumstances by 

which the children came into DCS custody are relevant to the involvement of DCS and Father’s 

compliance with the permanency plans, as well as the best interest of children.

 

12 The factors at Tennessee Code Annotated section 36-1-113(i) are:

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 interest to be in the home 

of the parent or guardian;

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

reasonable efforts by available social services agencies for such duration of time that 

lasting adjustment does not reasonably appear possible;

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

the child;

(4) Whether a meaningful relationship has otherwise been established between the parent 

or guardian and the child;

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

child’s emotional, psychological and medical condition;

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

has shown brutality, physical, sexual, emotional or psychological abuse, or neglect 

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

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

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

alcohol, controlled substances or controlled substance analogues as may render the parent 

or guardian consistently unable to care for the child in a safe and stable manner;

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

detrimental to the child or prevent the parent or guardian from effectively providing safe
15

statute “is not exhaustive, and the statute does not require every factor to appear before a 

court can find that termination is in a child’s best interest.” In re S.L.A., 223 S.W.3d 295, 

301 (Tenn. Ct. App. 2006) (citing Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-

01735-COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re 

I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 

31, 2006)). “The parties are free to offer proof of other relevant factors.” In re 

Carrington H., 483 S.W.3d 507, 523 (Tenn. 2016), cert. denied sub nom. Vanessa G. v. 

Tennessee Dep’t of Children’s Servs., 137 S. Ct. 44, 196 L. Ed. 2d 28 (2016) (citing In re 

Audrey S., 182 S.W.3d at 878.). “The weight and relevance of these factors may vary 

from case to case and it is possible that a single factor is determinative.” In re B.A.C., 317 

S.W.3d 718, 727 (Tenn. Ct. App. 2009) (quoting In re D.C.A., No. M2008-01279-COAR3-PT, 2009 WL 837877, at *8 (Tenn. Ct. App. Mar. 30, 2009) (no perm. app. filed). As 

we consider this issue, we apply the instruction in White v. Moody: 

[A]scertaining a child’s best interests in a termination proceeding is a factintensive inquiry requiring the courts to weigh the evidence regarding the 

statutory factors, as well as any other relevant factors, to determine whether 

irrevocably severing the relationship between the parent and the child is in 

the child’s best interests. The child’s best interests must be viewed from 

the child’s, rather than the parent’s, perspective. 

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted). 

In making this determination, the trial court made the following findings relative 

to factors (1), (2), (3), (5), (8), and (9):

Considering the factors in TCA 36-1-113(i), the Court finds that 

[Father] has failed to make an adjustment of circumstance, conduct or 

conditions as to make it safe and in the children’s best interest to return 

home. [Father] is in the exact same position he was in when the children 

came into foster care. [Father] failed to effect a lasting adjustment after 

reasonable efforts by DCS to assist [and] that [a] lasting adjustment does 

not reasonably appear possible. [Father] has failed to visit the children or 

provide regular support for the children.

The Court may also consider other factors when determining if 

termination of parental rights is in the children’s best interest. The Court 

has heard the testimony of the resource parent, and would find that the 

children have been well situated in the D[.]’s home for over eight months. 

 

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.
16

They have provided very well for the needs of the children and while in 

their home, the children have thrived. There has been a lapse in the 

children’s behavior and conduct subsequent to the period of phone contact 

with [Father], during which time there was some acting out that involved 

one incident of Raymond Jr. acting out of character and writing on the wall. 

The father has showed very poor judgment in arguing with the resource 

parent and yelling over the phone and in front of the children. This would 

illustrate to the Court that [Father] is not equipped to appropriately care for 

the children and it is also a good illustration of who is acting on the 

children’s behalf. Having heard the testimony and reviewed the evidence,

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

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

From our review of the record, there is clear and convincing evidence in support 

of the above findings. With respect to factor (1), as discussed in sections A1 and A2, 

supra, Ms. Hassan testified at length about the conditions that prevented the children 

from being placed with Father, the efforts made by DCS to assist him in addressing the 

deficiencies identified, and his failure to remedy those concerns. As noted by the court, 

at the time of the termination hearing, Father was in the same situation he was in when 

the dependent and neglect proceeding began. 

With respect to factor (2), Father cites to no evidence to support his argument that 

DCS “did not provide reasonable efforts when it first separated the children from 

[Father].” To the contrary, the testimony of Ms. Hassan establishes that DCS 

investigated the issues brought to light when contact was initially made; provided 

services to Father, including a parenting assessment, visitation transportation, and 

supervision; attempted to contact Father by phone and mail; attempted to visit his home;

and orchestrated foster care. DCS made reasonable efforts to assist Father in making an 

adjustment of his circumstances and, despite those efforts, he failed to do so; the record 

fully supports trial court’s findings that DCS’s efforts were reasonable and that Father 

failed to make a lasting adjustment of his circumstances. 

With respect to factor (3), Ms. Hassan testified that, other than the three visits in 

the summer of 2014, Father had no contact with the children, who asked about him and 

wanted to know why they were not visiting with him; that she attempted to contact him to 

set up more visitation and to let him know that the children were asking about him; that 

she was unable to get in touch with him. In the absence of Father’s visitation, Ms. 

Hassan testified that the children “were doing wonderful . . ., had been progressing well 

in their therapy [. . ., and] were thriving in school.”

With respect to factor (5), Ms. Hassan testified that, at the time the termination 

petition was filed, the children had been in their current pre-adoptive foster home for

approximately four months, and that during that time:
17

. . . they were doing wonderful. They had been progressing well in their 

therapy. They were thriving in school. Promise[’s]. . . reading grade. . . 

went from near failing to exceptional. Raymond Jr. was still having some 

difficulty in school but had progressed . . ., and it was noted at that point 

that he would be passing to the next grade. 

The foster father testified that the children “were really doing well up until when the 

phone calls and the visits started” in May 2015. 

Related to factor (8), there is testimony that Father frequently became agitated 

during encounters with Ms. Hassan; that, at one Foster Care Review Board hearing,

bailiffs were called in because he had become aggressive in his behavior; and that he 

became agitated while on the phone with the foster parent and yelled at the parent. This 

is evidence of behaviors that are or could be detrimental to the children or put them in 

danger. 

With respect to factor (9), Father acknowledged that he had not paid support for 

the children. 

There is also significant evidence in the record with respect to factor (4). When 

asked whether a meaningful relationship appeared to exist between Father and the 

children, Ms. Hassan testified as follows:

The children generally only ask about him when they, like, know 

that a phone call is supposed to happen or a visit. They can be easily 

distracted after the visits. Because they would be upset that they were 

leaving, but you could easily -- like, we could play a game in the car 

driving the half hour away, and they would be fine. After that they weren’t 

upset anymore. They would have some behavioral issues afterwards but 

most of them could easily be addressed. During the visits they would run 

up and say, Hi, I love you, but they were more focused on playing a game 

or playing with the phones and things like that.

In addition, Ms. Hassan gave the following assessment of the relationship between Father 

and the children:

Q. Isn’t it fair to say that [Father] and the children interacted well during 

the visits?

A. The children appeared to get on his nerves. He yelled at them multiple 

times. They interacted well when they were looking at stuff on the phone; 

but other than that, no.
18

As evidence that he has a meaningful relationship with his children, Father cites Ms. 

Hassan’s testimony that daughter wrote a letter to Father telling him she loves and misses 

him, daughter asked if she could call her father, and that both children asked when they 

could go live with their father. The testimony cited by Father, however, does not 

establish a meaningful relationship; the record is clear that Father did not attend visits 

with the children until the petition for termination was filed, and that he did not attend 

IEP meetings, parent teacher conferences, or medical appointments. Considering the 

record as a whole, there is clear and convincing evidence that Father did not have a 

meaningful relationship with the children. 

In addition to the specific factors, the record supports the findings as to other 

matters that the trial court held bore on the children’s best interest. We agree with the 

trial court that the termination of Father’s rights is in the best interest of the children. 

IV. CONCLUSION

For the foregoing reasons, the judgment terminating Father’s parental rights on the 

grounds of persistence of conditions and abandonment by failure to provide a suitable 

home is reversed; in all other respects, the judgment is affirmed. 

RICHARD H. DINKINS, JUDGE