IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 18, 2020 Session

IN RE KAYLEIGH B. ET AL.

Appeal from the Juvenile Court for Blount County

No. 33056, 33057, 33058, 33059 Kenlyn Foster, Judge

___________________________________

No. E2019-01153-COA-R3-PT

___________________________________

Jennifer G. (“Mother”) and Brian B. (“Father”) appeal the termination of their parental 

rights to their minor children, Kayleigh B., Layla B., Isaiah B., and Ja’Nyla B.

(collectively, “the Children”). In March 2018, the Tennessee Department of Children’s 

Services (“DCS”) filed a petition to terminate the parents’ rights to the Children in the 

Blount County Juvenile Court (“Juvenile Court”). Following a hearing in May 2019, the 

Juvenile Court terminated Mother’s parental rights based on the statutory grounds of 

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

abandonment by failure to support prior to her incarceration, substantial noncompliance 

with the permanency plan, and persistent conditions. The Juvenile Court also terminated 

Father’s parental rights on the statutory grounds of abandonment by failure to support

prior to the petition’s filing and substantial noncompliance with the permanency plan. 

The Juvenile Court further found that termination of Mother’s and Father’s parental 

rights was in the Children’s best interest. Both Mother and Father timely appealed. We 

reverse the statutory ground of abandonment by failure to support concerning Mother’s 

parental rights. We affirm the Juvenile Court’s judgment in all other respects including 

the termination of Mother’s and Father’s parental rights. 

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

Affirmed as Modified; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Grae A. Hinds, Knoxville, Tennessee, for the appellant, Jennifer G.

James E. Corcoran, III, Knoxville, Tennessee, for the appellant, Brian B.

Herbert H. Slatery, III, Attorney General and Reporter, and Jeffrey D. Ridner, Assistant 

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

03/27/2020
- 2 -

OPINION

Background

The Tennessee Department of Children’s Services (“DCS”) became involved with 

Mother, Father, and the Children in July 2016.1 In July 2016, DCS developed noncustodial permanency plans with the Mother attempting to prevent removal of the 

Children from Mother’s custody. On September 8, 2016, the Juvenile Court removed the 

Children from Mother’s custody and placed the Children in the custody of DCS. At that 

time, Mother did not have appropriate housing and Father was incarcerated. 

DCS developed a permanency plan for the Children in October 2016 with dual 

goals of Return to Parent and Exit Custody with Relative. As to Mother, the permanency 

plan required that Mother (1) pay child support, (2) participate in individual therapy, (3) 

cooperate with random drug screening, (4) participate in family therapy as recommended, 

(5) take her prescriptions as prescribed, (6) complete a parenting assessment and follow 

all recommendations, (7) attend the Children’s appointments to understand their needs, 

(8) obtain and maintain appropriate housing for the Children, (9) obtain and maintain a 

legal source of income, (10) develop a transportation plan to get the Children to school 

and to their appointments, and (11) identify relatives who could be a potential placement 

for the Children. Mother signed the signature page of the permanency plan. 

The October 2016 permanency plan required Father to (1) pay child support, (2) 

complete a mental health assessment and follow all recommendations, (3) participate in 

family therapy as recommended, (4) take his prescriptions as prescribed, (5) complete 

parenting classes, (6) attend the Children’s appointments to understand their needs when 

he is released from prison, (7) obtain and maintain appropriate housing and a legal source 

of income following his release from prison, (8) refrain from incurring new criminal 

charges, (9) comply with the terms of his probation, (10) develop a transportation plan to 

get the Children to school and to their appointments, and (11) identify relatives who 

could be a potential placement for the Children. The permanency plan reflects that 

Father participated in development of the plan by telephone.

DCS also provided Mother with a copy of the “Criteria & Procedures for 

Termination of Parental Rights,” and Ms. Swaney explained the contents to both Mother 

and Father in October 2016. The Juvenile Court entered an order in November 2016, 

approving the requirements of the October 2016 permanency plan as being reasonably 

related to remedying the reasons for foster care and finding the requirements to be in the 

 

1 The DCS case and subsequent court action also involved the Children’s sibling, Mikayla G., who was 

placed into the custody of a relative. She is not part of the termination of parental rights proceedings.
- 3 -

Children’s best interest. Mother appeared for the hearing and was represented by 

counsel. As to Father, the order reflects that he “did not have notice or whereabouts 

unknown.”

At the adjudicatory hearing in November 2016, Mother stipulated that the 

Children were dependent and neglected and that Mother’s housing was inappropriate at 

the time of the removal. Father was still incarcerated at the time of the hearing 

concerning Mother. Father was released from prison in March 2017. Following his 

release from prison, the Court conducted an adjudicatory hearing adverse to Father in 

August 2017, wherein Father stipulated that the Children were dependent and neglected 

and that Father had been incarcerated at the time of the removal.

DCS developed a second permanency plan in March 2017 with dual goals of 

Return to Parent and Adoption. The second plan contained the same requirements as the 

first plan but provided the following additional requirements: (1) Mother and Father will 

participate in random drugs screens, (2) Mother will submit to an alcohol and drug 

assessment and follow the recommendations, and (3) Mother will not incur new criminal 

charges. This plan removed the requirement that the parents would identify relatives as 

potential placements for the Children. The plan reflects that Father participated in the 

development of the plan via telephone and that Mother’s attorney was present during the 

development of the plan. Ms. Swaney also explained the “Criteria & Procedures for 

Termination of Parental Rights” to Father in March 2017. The Juvenile Court approved 

the second permanency plan in April 2017, finding that the requirements of the plan were 

reasonably related to remedying the reasons for foster care and in the Children’s best 

interest. Father appeared at that hearing and was represented by counsel. The order 

reflects that Father did not agree with the plan due to the goal of adoption included. 

During that hearing, the order states that the Juvenile Court explained to Father his duty 

to visit and support the Children.

DCS developed a third permanency plan in September 2017. The plan reflects 

that Father participated by telephone in the development of this plan. Both parents’ 

counsel participated in the meeting. The third permanency plan included the same goals 

and requirements as the previous plan but reflected that Mother had completed an alcohol 

and drug assessment but still needed to comply with follow-up classes, that Mother had 

completed her parenting assessment and was currently participating in parenting sessions, 

and that Father had completed parenting classes. The Juvenile Court approved the third 

plan in December 2017. Neither Mother nor Father were present for this hearing but 

were represented by counsel. The Juvenile Court’s order reflects that Mother was 

incarcerated in Knox County at the time of the hearing. The Juvenile Court approved the 

requirements of the permanency plan as being reasonably related to remedying the 

reasons for foster care and in the Children’s best interest. The Juvenile Court also 

modified the requirements of the plan to include two additional requirements: (1) Father 
- 4 -

and his paramour would comply with a hair follicle drug screen within thirty days and (2) 

Mother would complete a mental health assessment. 

DCS subsequently developed a fourth permanency plan in March 2018 with a sole 

goal of Adoption, which the Juvenile Court approved, and filed a petition to terminate 

Mother’s and Father’s parental rights to the Children on March 16, 2018. An initial 

setting for the termination petition was scheduled for May 2018. The order from the 

initial setting reflects that both parents had been served with process and had appeared at 

the hearing. Both parents had been appointed counsel, and they also were present for the 

hearing. At that initial setting, the Juvenile Court scheduled the termination trial for 

September 10, 2018.

An order of continuance was entered on September 17, 2018, continuing the 

termination trial until January 7, 2019. Father’s attorney requested a continuance for the 

January 7, 2019 trial date due to a family emergency, and the trial was rescheduled for 

February 19, 2019. The Juvenile Court subsequently entered an order continuing the trial 

until May 2, 2019. The Juvenile Court’s February 21, 2019 order reads as follows: 

“There being good cause shown or by agreement of the parties, it is hereby ORDERED 

that this matter, currently set for Trial hearing on February 19, 2019 shall be 

CONTINUED until May 2, 2019 at 1:30pm at the Blount County Juvenile Court in 

Maryville, Tennessee.” 

The Juvenile Court conducted a trial on May 2, 2019, concerning DCS’s 

termination petition. Neither Mother nor Father appeared for the termination trial, but the 

Juvenile Court found that they had both been provided with sufficient service and notice. 

Father’s counsel appeared and represented Father during the trial. Mother’s counsel was 

also present to represent Mother’s interests during trial. Kelly Swaney, the DCS case 

manager, was the only witness at trial. DCS admitted as exhibits during trial the court 

records from the dependency and neglect proceeding and Mother’s criminal history. The 

criminal history records reflect that Mother was arrested for and pled guilty to Shoplifting 

in November 2016. Mother was arrested for Driving Under the Influence in December 

2016. Mother subsequently pled guilty to Driving Under the Influence in September 

2017 and was sentenced to supervised probation. Mother was arrested in November 2017 

for Possession with Intent to Sell Methamphetamine and subsequently pled guilty in 

February 2018. Mother was sentenced to six years supervised probation as a result of this 

conviction. 

Following trial, the Juvenile Court entered an order in June 2019 with the 

following findings of fact and conclusions of law:
- 5 -

ABANDONMENT - FAILURE TO SUPPORT

T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(I), -102(1)(C) and -

102(1)(E)

The Petition to Terminate Parental Rights was filed on March 16, 

2018. By the Court’s calculation, four months prior to the filing of the 

petition would commence on or about November 15, 2017. CM Swaney 

testified that during the four months just prior to the filing of the Petition to 

Terminate Parental Rights, [Father] was full-time employed at Even Cut 

Landscaping. CM Swaney also testified that [Father] signed the Criteria 

and Procedures for Termination of Parental Rights, that she explained the 

document to him, and that he understood the document. She also testified 

that he did not pay any child support between November 15, 2017 and 

March 15, 2018.

The Court finds by clear and convincing evidence the ground of 

Abandonment, Failure to Support has been proven by DCS. Specifically 

the Court finds that (a) [Father] was employed with a landscaping service, 

working 40 hours per week, making $11.00 per hour. He got a raise to

$12.00 per hour; (b) he was ordered to pay $100.00 per month in child 

support for all four children; (c) [Father] has not made any payments 

towards his child support and CM Swaney verified that with the child 

support division; [(d)] he signed the Criteria and Procedures for 

Termination of Parental Rights so he was aware of his duty to support the 

children.

ABANDONMENT - FAILURE TO PROVIDE SUITABLE HOME

T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii)

CM Swaney testified that the children were placed into DCS custody 

due to [Mother’s] homelessness. On January 3, 2017, the children had been 

in DCS custody for 4 months. Between the times the children came into 

DCS custody and January 3, 2017, [Mother] did not exert any effort to 

secure a suitable home for her children. CM Swaney testified that she 

provided [Mother] with a resource guide and discussed housing and 

programs that she could get into, but [Mother] was unwilling to take 

advantage of those resources.

CM Swaney testified that she sat with [Mother] to make

appointments for housing options, but [Mother] was not interested. CM 

Swaney testified that [Mother] told her on several occasions that she would 

not leave the home where she was living despite it being an unsafe 

environment for the children.
- 6 -

The Court finds by clear and convincing evidence the ground of 

Abandonment, Failure to Provide a Suitable Home has been proven by 

DCS. Specifically the Court finds: (a) the children were removed from 

[Mother] because of homelessness; (b) that prior to the filing of the 

petition, the Department has been working with the family on addressing 

housing issues; (c) [Mother] reported consistently over the life of the case 

that she was living in an environment that was unsafe for the children; (d) 

that despite assistance from CM Swaney such as sitting down with 

[Mother], offering her options for shelters and help with subsidized 

housing, that [Mother] made no effort to remedy this major barrier to 

reunification; (e) that [Mother] has continued to incur criminal charges 

since the children have come into DCS custody.

ABANDONMENT BY INCARCERATED PARENT

T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), -102 (1)(C) and -

102(1)(E)

DCS Case Manager Kelly Swaney testified that during the four 

months just prior to filing the Petition to Terminate Parental Rights (on 

March 16, 2018), [Mother] was incarcerated in the Knox County Jail. CM 

Swaney also testified that [Mother] was incarcerated from August 18, 2017 

to September 6, 2017. She testified that during the 4 months prior to her 

incarceration, [Mother] did not pay any child support and did not visit the 

children consistently.

Numerous exhibits were received into evidence showing [Mother’s] 

criminal convictions and incarceration during the relevant months. 

[Mother] was convicted of shoplifting, Driving Under the Influence, and 

possession with intent to sell Methamphetamine less than 0.5 grams. 

The Court finds by clear and convincing evidence the ground of 

Abandonment by Incarcerated Parent has been proven by DCS. 

Specifically, the Court finds that (a) [Mother] was incarcerated during the 

four months immediately preceding the filing of the Petition to terminate 

parental rights, [(b)] [Mother] failed to support the children during the four 

months preceding her incarceration, and (c) [Mother] exhibited a wanton 

disregard for the wellbeing of the children by continuing to engage in 

criminal behavior.
- 7 -

SUBSTANTIAL NONCOMPLIANCE WITH PERMANENCY PLAN

T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2)

Substantial compliance with the permanency plan is not compliance 

with absolutely every step on the permanency plan. The Court is required 

to determine the most important action step on the plan that would reunify 

the family, or, put another way, the action step that addresses the reason 

that gave rise to the removal of the children into foster care. 

For [Mother], the children came into DCS custody because she had 

no suitable housing for the children despite efforts by the Department 

before the children came into custody to prevent her children from coming 

into foster care. She was unable to provide housing for them after the 

children were removed, she still cannot provide suitable housing for them, 

and after nearly three years in foster care, [Mother] is not in a position to 

provide housing for them now. 

[Mother] completed some of the action steps on her permanency 

plan. She had an alcohol and drug assessment and a parenting assessment. 

She did visit, albeit sporadically. However, [Mother] did not obtain a legal 

source of income sufficient to provide for the needs of the children. She 

did not provide a transportation plan and she did not provide a suitable 

home for the children, which was the most important action step on the 

permanency plan. The Court finds by clear and convincing evidence that 

[Mother] is in substantial noncompliance with the permanency plan 

because she did not complete the most important action step on the 

permanency plan, i.e. to find appropriate housing for the children.

Regarding [Father], the Court finds that he had several action steps 

on the permanency plan to complete. He was required to have a mental 

health assessment and follow the recommendations, cooperate with drug 

screens, take medications as prescribed, and participate in family therapy. 

The Court finds that the biggest barrier to reunification with [Father] was 

that the children did not have a relationship with him. He had been 

incarcerated for most of the children’s lives so when he was released from 

incarceration, he initially made significant progress towards remedying the 

reunification barriers, but then he stopped complying and he stopped 

communicating. When CM Swaney asked him to comply with drug 

screens, he failed to do so.

[Father] did not complete the recommendations from his mental

health assessment. He has not made himself available for random drug 
- 8 -

screens. He has stopped communicating with CM Swaney. He does not 

have housing. He did have transportation, but CM Swaney testified that it 

needed a modification to be able to transport the children. CM Swaney 

offered to assist him [with] that modification, but he would not follow 

through. Despite the Department’s significant efforts to help [Father] 

satisfy the requirements of his permanency plan, he has still failed to do so. 

The Court finds by clear and convincing evidence that [Father] is in 

substantial noncompliance with his requirements in the permanency plan.

PERSISTENT CONDITIONS

T.C.A. §§ 36-1-113(g)(3)

The children were removed from [Mother] because of homelessness. 

The Court finds that those conditions still persist. There is no appropriate 

housing of which the Court is aware. The Court does not have any 

knowledge that [Mother] can meet the needs of the children because she 

has refused to allow CM Swaney to visit her home to assess it for safety. 

The Court received uncontroverted evidence that [Mother] does not have 

transportation. She has not addressed her substance abuse issues, as 

evidenced by her convictions for DUI first offense and possession with 

intent to sell Methamphetamine.

The Court finds that there is not just little chance, but that there is no 

chance that these conditions will be remedied. If [Mother] could not move

out of a home with domestic violence that was unsafe for her children in the 

nearly three years that the children have been in foster care, the Court holds 

out no hope that she will remedy these conditions at any time. 

Furthermore, trying to maintain a parent-child relationship between 

[Mother] and the children greatly diminishes these children’s chances of 

being placed in suitable, safe, permanent homes. The Court finds that the 

ground of persistent conditions has been met by the Department by clear 

and convincing evidence.

BEST INTERESTS

Having found the above grounds by clear and convincing evidence, 

the Court is required to review whether it is in the children’s best interest to 

terminate the parent[s’] rights and free the children for adoption. The Court 

finds that the Department has demonstrated by clear and convincing 

evidence that termination is in the best interest of the children.

[Father] and [Mother] have made no lasting changes to their lifestyle 

that would allow the children to be safely returned to their homes. 
- 9 -

[Mother] refused to leave an environment that was unsafe for her children. 

The Department provided significant services to the family to assist in 

resolving these issues and [Mother] has not made those changes.

There has not been regular visitation between [Father] and the 

children. The visitation between [Mother] and the children has been 

sporadic at best. The children have been in foster care for nearly three 

years. Changing caregivers at this stage of the proceeding would be 

detrimental to their psychological welfare and emotional state.

There continues to be drug use and criminal activity by [Mother], 

and neither [Father] nor [Mother] have paid child support consistent with 

the guideline. Therefore, the Court finds by clear and convincing evidence 

that it is in the best interest of these children for the parental rights of 

[Mother] and [Father] to be terminated and for the children to be freed for 

adoption.

(Internal citations omitted.)

The Juvenile Court terminated Mother’s rights on the statutory grounds of 

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

abandonment by failure to support prior to her incarceration, substantial noncompliance 

with the permanency plan, and persistent conditions and terminated Father’s parental 

rights on the statutory grounds of abandonment by failure to support prior to the 

petition’s filing and substantial noncompliance with the permanency plan. The Juvenile 

Court further found that termination of Mother’s and Father’s parental rights was in the 

Children’s best interest. Both Mother and Father timely filed notices of appeal to this 

Court.

Discussion

Although not stated exactly as such, Mother raises one issue for our review: 

whether the evidence presented supports the Juvenile Court’s finding by clear and 

convincing evidence that termination of Mother’s parental rights was in the Children’s 

best interest. Father raises five additional issues for our review: (1) whether Father was 

provided a fundamentally fair proceeding, including notice and an opportunity to be 

heard, (2) whether the Juvenile Court erred by finding by clear and convincing evidence 

that Father had abandoned the Children by failing to support them, (3) whether the 

Juvenile Court erred by finding by clear and convincing evidence that Father had failed to 

substantially comply with the requirements of the permanency plan, (4) whether 

Tennessee’s procedure for appointing attorneys to represent parents in termination of 

parental rights proceedings provides “sufficient guarantees” that the parent will receive a 
- 10 -

fundamentally fair proceeding, and (5) whether termination of Father’s parental rights 

was in the Children’s best interest. 

With regard to the termination of parental rights, our Supreme Court has 

instructed:

A parent’s right to the care and custody of her child is among the 

oldest of the judicially recognized fundamental liberty interests protected 

by the Due Process Clauses of the federal and state constitutions.2 Troxel v. 

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed.2d 49 (2000); 

Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed.2d 551 

(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption 

of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 

855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although 

fundamental and constitutionally protected, are not absolute. In re Angela 

E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty 

to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority 

as parens patriae when interference with parenting is necessary to prevent 

serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re 

Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky 

v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed.2d 599 (1982); In 

re Angela E., 303 S.W.3d at 250. “When the State initiates a parental rights 

termination proceeding, it seeks not merely to infringe that fundamental 

liberty interest, but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388. 

[“]Few consequences of judicial action are so grave as the severance of 

natural family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J., 

519 U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed.2d 473 (1996). The parental 

rights at stake are [“]far more precious than any property right.” Santosky, 

455 U.S. at 758-59 102 S. Ct. 1388. Termination of parental rights has the 

legal effect of reducing the parent to the role of a complete stranger and of 

[“]severing forever all legal rights and obligations of the parent or guardian 

of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455 

U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating 

parental rights is [“]final and irrevocable”). In light of the interests and 

consequences at stake, parents are constitutionally entitled to 

[“]fundamentally fair procedures” in termination proceedings. Santosky, 

455 U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of 

Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed.2d 640 

 

2 U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, 

without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states 

“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or

outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the 

judgment of his peers or the law of the land.”
- 11 -

(1981) (discussing the due process right of parents to fundamentally fair 

procedures).

Among the constitutionally mandated [“]fundamentally fair 

procedures” is a heightened standard of proof – clear and convincing 

evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard 

minimizes the risk of unnecessary or erroneous governmental interference 

with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 

596 (Tenn. 2010). [“]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 at 596 (citations omitted). 

The clear-and-convincing-evidence standard ensures that the facts are 

established as highly probable, rather than as simply more probable than 

not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re

M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

Tennessee statutes governing parental termination proceedings 

incorporate this constitutionally mandated standard of proof. Tennessee 

Code Annotated section 36-1113[sic](c) provides:

Termination of parental or guardianship rights must be based 

upon:

(1) A finding by the court by clear and convincing evidence that 

the grounds for termination of parental or guardianship rights 

have been established; and

(2) That termination of the parent’s or guardian’s rights is in the 

best interests of the child.

This statute requires the State to establish by clear and convincing proof 

that at least one of the enumerated statutory grounds3for termination exists 

and that termination is in the child’s best interests. In re Angela E., 303 

S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is 

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

convincing evidence of grounds for termination.” In re Angela E., 303 

S.W.3d at 254. Although several factors relevant to the best interests 

analysis are statutorily enumerated,4the list is illustrative, not exclusive. 

The parties are free to offer proof of other relevant factors. In re Audrey S., 

 

3 Tenn. Code Ann. § 36-1-113(g)(1)-(13).

4 Tenn. Code Ann. § 36-1-113(i).
- 12 -

182 S.W.3d at 878. The trial court must then determine whether the 

combined weight of the facts “amount[s] to clear and convincing evidence 

that termination is in the child’s best interest.” In re Kaliyah S., 455 

S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent 

receives the constitutionally required “individualized determination that a 

parent is either unfit or will cause substantial harm to his or her child before 

the fundamental right to the care and custody of the child can be taken 

away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

Furthermore, other statutes impose certain requirements upon trial 

courts hearing termination petitions. A trial court must “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 

interests of the child.” Tenn. Code Ann. § 36-1113[sic](k). A trial court 

must “enter an order that makes specific findings of fact and conclusions of 

law within thirty (30) days of the conclusion of the hearing.” Id. This 

portion of the statute requires a trial court to make “findings of fact and 

conclusions of law as to whether clear and convincing evidence establishes

the existence of each of the grounds asserted for terminating [parental] 

rights.” In re Angela E., 303 S.W.3d at 255. “Should the trial court 

conclude that clear and convincing evidence of ground(s) for termination 

does exist, then the trial court must also make a written finding whether 

clear and convincing evidence establishes that termination of [parental] 

rights is in the [child’s] best interests.” Id. If the trial court’s best interests 

analysis “is based on additional factual findings besides the ones made in 

conjunction with the grounds for termination, the trial court must also 

include these findings in the written order.” Id. Appellate courts “may not 

conduct de novo review of the termination decision in the absence of such 

findings.” Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & 

n.15 (Tenn. Ct. App. 2007)). 

B. Standards of Appellate 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). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at 

246. 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 re Bernard T., 319 S.W.3d at 

596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of 

A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened 

burden of proof in termination proceedings, however, the reviewing court 

must make its own determination as to whether the facts, either as found by 
- 13 -

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. In re Bernard T., 319 S.W.3d at 596-97. 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. In re M.L.P., 281 S.W.3d at 393 (quoting In re 

Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions 

of law in parental termination appeals, as in other appeals, are reviewed de 

novo with no presumption of correctness. In re Angela E., 303 S.W.3d at 

246.

In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but 

renumbered). 

We first address Father’s issue of whether he received a fundamentally fair trial. 

Father argues that he did not receive a fundamentally fair proceeding, “including notice 

and an opportunity to be heard.” Upon a review of the record, we note that Father’s 

counsel was present at the termination proceedings and that counsel did not request a 

continuance on Father’s behalf. As such, we find and hold that Father waived the issue 

of notice for purposes of the appeal. 

Additionally, Father essentially argues that due to ineffective assistance of trial 

counsel, Father was deprived of a fundamentally fair proceeding. The Tennessee 

Supreme Court has held as follows: “[W]e decline to hold that securing the constitutional 

right of parents to fundamentally fair procedures requires adoption of an additional 

procedure, subsequent to or separate from an appeal as of right, by which parents may 

attack the judgment terminating parental rights based upon ineffective assistance of 

appointed counsel.” In re Carrington H., 483 S.W.3d 507, 535 (Tenn. 2016). Following 

In re Carrington H., it is somewhat unclear whether ineffective assistance of counsel is 

an avenue for appeal during an appeal as of right pursuant to Tennessee Rule of 

Appellate Procedure 3. See In re LaiLonnii J., No. E2018-01198-COA-R3-PT, 2019 WL 

669758, at *10-11 (Tenn. Ct. App. Feb. 19, 2019) (determining that, pursuant to In re 

Carrington H., “there is no right to effective assistance of counsel in parental termination 

cases” but that the parent was entitled to fundamentally fair procedures); In re Brianna 

T., No. E2017-01132-COA-R3-PT, 2017 WL 6550621, at *4 n.4 (Tenn. Ct. App. Dec. 

22, 2017) (interpreting the Tennessee Supreme Court’s holding in In re Carrington H. to 

stand for the proposition that “an indigent parent’s right to appointed counsel in 

termination of parental rights cases does not include the right to challenge an order 

terminating parental rights based on ineffective assistance of counsel”); In re Hailey C., 

No. M2016-00818-COA-R3-PT, 2017 WL 4331039, at *5 (Tenn. Ct. App. Sept. 28, 

2017) (declining to address the parent’s argument of ineffective assistance of counsel

during the termination trial based upon its interpretation of the holding in In re 

Carrington H. that “a parent has no such right in Tennessee”); In re Karissa V., No. 
- 14 -

E2016-00395-COA-R3-PT, 2017 WL 758513, at *12-13 (Tenn. Ct. App. Feb. 27, 2017)

(finding a parent’s argument that “she is entitled to relief because her counsel was 

ineffective” to be unavailing and explaining the Supreme Court’s decision in In re 

Carrington H. to hold that “there is no mechanism to seek relief based upon alleged 

ineffective assistance of counsel in parental termination cases,” but parents are entitled to 

fundamentally fair procedures).

Upon our review of the Supreme Court’s decision in In re Carrington H., 483 

S.W.3d 507 (Tenn. 2016), we note that the Court did not specifically hold that a parent 

may or may not raise ineffective assistance of counsel on direct appeals. Instead the 

Court held that the “adoption of an additional procedure, subsequent to or separate from 

an appeal as of right (emphasis added)” by which the parent may attack the termination 

judgment based upon an alleged ineffective assistance of counsel is not required to 

provide the parent with fundamentally fair procedures. The issue of whether a parent in a 

termination of parental rights action may raise ineffective assistance of counsel on direct 

appeal is a question that should be settled by our Supreme Court. 

We further note, however, that the Supreme Court in In re Carrington H. analyzed 

on direct appeal a parent’s claim of ineffective assistance of counsel by determining 

whether the actions of counsel prevented the parent from receiving a fundamentally fair 

proceeding. See id. at 535-536. As such, we will address on appeal whether the 

representation of Father by appointed trial counsel deprived Father of a fundamentally 

fair proceeding. 

Father argues that his appointed trial counsel made several errors during trial. 

First, Father argues that his trial counsel failed to request a continuance when Father was 

not present for the trial. We note that counsel’s absence of a continuance request when 

Father was not present could have been a strategic decision between Father and counsel

to prevent Father from being called as a witness during trial by DCS. It is not 

unreasonable that trial counsel proceeding in Father’s absence was a strategic decision 

that counsel believed would not hurt and might help Father’s case. Additionally, if 

Father’s absence from trial was not a strategic decision by trial counsel, Father must 

accept the responsibility for his absence. As such, we determine that the fact that 

Father’s counsel did not request a continuance in this action did not deny Father a 

fundamentally fair proceeding. 

Father also assigns blame to his appointed counsel for not filing an answer to 

DCS’s termination petition. However, we note that an answer is not required to be filed 

in response to a termination of parental rights petition. See Tenn. R. Civ. P. 8.04

(requires allegations in parental termination actions to be proven even if not denied in a 

responsive pleading). Furthermore, by declining to file an answer, Father’s counsel 

“avoided admitting or denying each allegation of the petition,” which could have been 
- 15 -

beneficial to Father, “but which was, in any event, a reasonable choice.” See In re 

Carrington H., 483 S.W.3d at 536.

Father also avers that trial counsel made other errors by declining to make an 

opening statement, not making specific arguments on the behalf of Father, not objecting

to certain testimony or admission of evidence, and not eliciting certain testimony during 

trial. These choices by counsel may well have been strategic decisions by counsel 

seeking to best represent Father’s interests. Upon review of the record, we note that 

counsel elicited testimony from Ms. Swaney concerning a clean hair follicle drug screen 

by Father and Father’s progression from supervised visitation to unsupervised visitation, 

both of which were beneficial to his cause. Counsel further argued on Father’s behalf 

during closing arguments that DCS had not met its burden of proof to terminate Father’s 

parental rights to the Children. Father’s counsel made arguments that the proof presented 

was not sufficient to support that Father had not supported the Children, pointed out the 

steps Father had completed on the permanency plans, and argued that termination of 

Father’s parental rights was not in the Children’s best interest. Furthermore, Father has 

failed to establish how counsel’s alleged errors during trial deprived him of a 

fundamentally fair proceeding. Upon review of the record, we find and hold that Father’s 

appointed counsel’s representation did not deprive him of a fundamentally fair 

proceeding. 

Additionally, Father argues that Tennessee’s process of appointing attorneys to 

represent parents in parental termination actions does not “provide sufficient guarantees” 

that a parent will receive a fundamentally fair proceeding. According to Father, “there 

are no qualifications” for appointed attorneys in Tennessee representing parents in 

termination of parental rights proceedings. Counsel proceeds to compare the 

requirements for counsel in death penalty criminal actions to the lack of “qualifications” 

for termination of parental rights actions and argues that “some minimum standards” are 

necessary in termination of parental rights cases. We find Father’s argument that 

Tennessee’s entire attorney appointment procedure for indigent parents in termination 

proceedings does not “provide sufficient guarantees” that a parent will receive a 

fundamentally fair proceeding to be unavailing. Furthermore, we lack the authority to 

amend Tennessee Supreme Court Rule 13 to include minimum qualifications for 

appointed attorneys in termination proceedings. Therefore, we find this issue to be 

without merit.

We next address Father’s issue concerning the statutory ground of abandonment 

by failure to support. Concerning this ground, Tennessee Code Annotated § 36-1-

102(1)(A)(i) (2017) provides:

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

filing of a proceeding, pleading, petition, or any amended petition to 

terminate the parental rights of the parent or parents or the guardian or 
- 16 -

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 . . . have failed to support or have failed to make reasonable 

payments toward the support of the child;

The petition was filed on March 16, 2018. The Juvenile Court found in its order that the 

relevant four-month period began on November 15, 2017. While we note that the correct 

four-month period extended from November 16, 2017, through March 15, 2018, it makes 

no difference in our analysis. 

As relevant to this ground, Father argues that the Juvenile Court erred by relying 

on evidence that was hearsay. However, there was no objection to admission of the 

evidence at trial. Therefore, we find that Father waived this issue on appeal because it 

was not raised in the proceedings below. See Black v. Blount, 938 S.W.2d 394, 403 

(Tenn. 1996) (“Under Tennessee law, issues raised for the first time on appeal are 

waived.”).

Father further argues that the Juvenile Court did not specifically find Father’s 

failure to support to be willful. This Court has held that “‘[f]ailure to support a child is 

‘willful’ when a person is aware of his or her duty to support, has the capacity to provide 

the support, makes no attempt to provide support, and has no justifiable excuse for not 

providing the support.’” In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005)

(quoting In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT, 2004 WL 1085228, 

at *4 (Tenn. Ct. App. May 12, 2004)). As relevant to the issue of willfulness, the 

Juvenile Court specifically found that Father knew of his responsibility to support the 

Children and, as relevant to his ability to support, that he was employed full time during 

the four-month period, earning $11-12 per hour. The Juvenile Court further found that 

Father had failed to provide any financial support for the Children during the relevant 

four-month period and that DCS had proven the ground of abandonment by failure to 

support by clear and convincing evidence. Although not specifically using the word 

“willful,” the Juvenile Court’s findings concerning Father’s ability and knowledge clearly 

and convincingly support that Father’s failure to support the Children was willful. We 

find Father’s argument in this regard to be without merit.

Father further argues that he was hospitalized for three weeks during the relevant 

four-month period, and therefore, his failure to support was not willful. The case 

manager testified that Father was employed full time during the relevant four-month 

period. According to Ms. Swaney, Father had informed her that he had been admitted to 

the hospital but she was unaware of the timeframe. Father indicated to her that he had 

been in the hospital for a while but she was unaware how long. An affidavit by Ms. 

Swaney admitted as an exhibit during trial reflects that Father informed her during a 

phone call in late February 2018 that he had been hospitalized for three weeks for an 

infection in his leg. The affidavit does not specify the dates of Father’s hospitalization.
- 17 -

The Juvenile Court found that Father was employed full time at a landscaping 

company making $11.00 per hour and had gotten a raise to $12.00 per hour. Father had 

been ordered to pay $100 per month in child support for the Children, $25 per child per 

month. The Juvenile Court found that Father was aware of his duty to support the 

Children, was employed full time, and had not made any payments toward the Children’s 

support. Even if Father had been hospitalized for three weeks in February 2018, this does 

not explain why Father had not provided any support for the Children prior to his 

hospitalization during the beginning and the remainder of the four-month period. The 

evidence presented does not preponderate against the Juvenile Court’s factual findings 

concerning Father’s abandonment of the Children by failing to support them. As such, 

we find by clear and convincing evidence and hold, as did the Juvenile Court, that Father 

abandoned the Children by failing to provide financial support for them. 

We next address Father’s issue concerning substantial noncompliance with the 

permanency plans. As to this ground, Tennessee Code Annotated § 36-1-113(g)(2) 

(Supp. 2019) provides as a statutory ground for termination of parental rights as follows:

There has been substantial noncompliance by the parent or guardian with 

the statement of responsibilities in a permanency plan pursuant to title 37, 

chapter 2, part 4[.]

Throughout the time the Children were in DCS custody, the requirements of the 

court-approved permanency plans required Father to (1) pay child support, (2) complete 

a mental health assessment and follow all recommendations, (3) participate in family 

therapy as recommended, (4) take his prescriptions as prescribed, (5) complete parenting 

classes, (6) attend the Children’s appointments to understand their needs when he is 

released from prison, (7) obtain and maintain appropriate housing and a legal source of 

income following his release from prison, (8) refrain from incurring new criminal 

charges, (9) comply with the terms of his probation, (10) develop a transportation plan to 

get the Children to school and to their appointments, (11) identify relatives who could be 

a potential placement for the Children, (12) participate in random drug screens, and (13) 

comply with a hair follicle drug screen.

The Juvenile Court found that the largest barrier to reunifying the Children with 

Father was his lack of a relationship with them. We note, as did the Juvenile Court, that 

Father made some progress on the requirements of his permanency plan. Father 

completed parenting classes, gained employment, and complied with a mental health 

assessment. Although the Juvenile Court found that Father had not complied with the 

recommendations of his mental health assessment, Ms. Swaney’s testimony at trial 

reflected that Father had complied with the recommended Narcotics Anonymous classes 

for approximately three months. 
- 18 -

The Juvenile Court found that despite Father’s initial progress, he had stopped 

complying and communicating with DCS. Ms. Swaney had been unable to drug screen 

Father since July 2017. When Ms. Swaney requested that Father appear for a drug 

screen, Father made excuses that he was unavailable and failed to comply. DCS provided 

funding for a hair follicle drug screen but Father failed to comply with that drug screen. 

Father had ceased visitation with the Children and had not visited since November 2017. 

Father also does not have housing for the Children. Although Father had transportation, 

he failed to modify his vehicle so that the Children could be safely transported in his 

vehicle, despite offers of financial assistance from DCS. Upon our review of the record, 

we find and hold, as did the Juvenile Court, that DCS proved this ground by clear and 

convincing evidence. 

Although Mother does not raise an issue for review concerning the statutory 

grounds utilized for termination of her parental rights, we will nonetheless review the 

Juvenile Court’s findings concerning each ground as directed by our Supreme Court in In 

re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016). The first statutory ground 

concerning Mother that we address is abandonment by failure to provide a suitable home. 

Concerning this ground, Tennessee Code Annotated § 36-1-102(1)(A)(ii) (2017)

provides:

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 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[.]
- 19 -

The Juvenile Court removed the Children from Mother’s custody in September

2016 due to Mother’s homelessness and found that DCS had attempted to prevent 

removal from Mother’s custody by addressing her housing issues. The Juvenile Court 

subsequently found the Children to be dependent and neglected. Additionally, the 

Juvenile Court found that during the four months immediately following the Children’s 

removal, DCS provided reasonable efforts to assist Mother with reunification by 

providing her with a resource guide, discussing housing options and programs for her but 

that Mother was unwilling to participate with any of those options. Ms. Swaney testified 

that Mother had informed her on multiple occasions that she would not leave her home 

despite the fact that it was an unsafe environment. The Juvenile Court found that despite 

Ms. Swaney offering Mother housing options, including shelters and assistance with 

subsidized housing, Mother “made no effort to remedy this major barrier to 

reunification.” Additionally, Mother continued to participate in criminal activity and 

incur criminal charges while the Children were in DCS custody. We find by clear and 

convincing evidence and hold, as did the Juvenile Court, that Mother abandoned the 

Children by failing to provide a suitable home for them.

We next address the statutory ground of abandonment by failure to provide 

financial support by an incarcerated parent. Concerning this ground, the version of 

Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2017) in effect at the time of the 

termination petition’s provides in relevant part:

A parent or guardian is incarcerated at the time of the institution of an 

action or proceeding to declare a child to be an abandoned child, or the 

parent or guardian has been incarcerated during all or part of the four (4) 

months immediately preceding the institution of such action or proceeding, 

and . . . has willfully failed to support or has willfully failed to make

reasonable payments toward the support of the child for four (4) 

consecutive months immediately preceding such parent’s or guardian’s 

incarceration . . . . If the four-month period immediately preceding the 

institution of the action or the four-month period immediately preceding 

such parent’s incarceration is interrupted by a period or periods of 

incarceration, and there are not four (4) consecutive months without 

incarceration immediately preceding either event, a four-month period shall 

be created by aggregating the shorter periods of nonincarceration beginning 

with the most recent period of nonincarceration prior to commencement of 

the action and moving back in time. Periods of incarceration of less than 

seven (7) days duration shall be counted as periods of nonincarceration. 

Periods of incarceration not discovered by the petitioner and concealed, 

denied, or forgotten by the parent shall also be counted as periods of 

nonincarceration. A finding that the parent has abandoned the child for a 

defined period in excess of four (4) months that would necessarily include 

the four (4) months of nonincarceration immediately prior to the institution 
- 20 -

of the action, but which does not precisely define the relevant four-month 

period, shall be sufficient to establish abandonment[.]

Tennessee Code Annotated § 36-1-102(1)(D) provides that a parent must have willfully 

failed to provide more than token financial support for the child during the relevant fourmonth period. 

Upon review of the Juvenile Court’s findings concerning Mother’s abandonment 

of the Children by her failure to provide financial support, we determine that the Juvenile 

Court’s findings did not rise to the level of clear and convincing evidence. We note that 

the version of this statutory ground in effect at the time of the termination petition’s filing 

required DCS to prove that a parent’s failure to support was willful. The Juvenile Court 

made no such finding as to Mother’s willfulness. Additionally, the evidence presented at 

trial does not support the Juvenile Court’s finding that Mother failed to pay financial 

support. When asked during trial whether Mother paid child support, Ms. Swaney 

replied, “I do not know. I don’t know that there was an order.” She also stated, “I don’t 

believe that mom owes anything.” Based on the foregoing, we reverse this ground as to 

Mother. 

We next address the statutory ground of abandonment by wanton disregard. As 

relevant to this ground, Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2017) provides 

in pertinent part:

A parent or guardian is incarcerated at the time of the institution of an 

action or proceeding to declare a child to be an abandoned child, or the 

parent or guardian has been incarcerated during all or part of the four (4) 

months immediately preceding the institution of such action or proceeding, 

and . . . the parent or guardian has engaged in conduct prior to incarceration 

that exhibits a wanton disregard for the welfare of the child. 

Mother was incarcerated during part of the four months prior to the filing of the

termination petition. The Children were placed into DCS custody in September 2016 due 

to Mother’s homelessness. Following that time, Mother continued participating in 

criminal activity. She received a conviction for shoplifting in November 2016. Mother 

was subsequently arrested for driving under the influence in December 2016, to which 

she later pled guilty in September 2017. Mother was arrested for possession with intent 

to sell methamphetamine in November 2017, to which she pled guilty in February 2018. 

Based on Mother’s criminal activity, the Juvenile Court found that Mother had 

abandoned the Children by demonstrating wanton disregard for their welfare. This Court 

has previously held that “probation violations, repeated incarceration, criminal behavior, 

substance abuse, and the failure to provide adequate support or supervision for a child 

can, alone or in combination, constitute conduct that exhibits a wanton disregard for the 
- 21 -

welfare of a child.” In re Audrey S., 182 S.W.3d 838, 867-68 (Tenn. Ct. App. 2005). We 

find and hold, as did the Juvenile Court, that DCS proved this ground by clear and 

convincing evidence. 

We next address the statutory ground of substantial noncompliance with the 

permanency plan requirements. As already stated above, Tennessee Code Annotated § 

36-1-113(g)(2) provides as a ground for termination of a parent’s rights when “[t]here has 

been substantial noncompliance by the parent or guardian with the statement of 

responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.” Pursuant to 

the court-approved permanency plans, Mother was required to complete the following: 

(1) pay child support, (2) participate in individual therapy, (3) cooperate with random 

drug screening, (4) participate in family therapy as recommended, (5) take her 

prescriptions as prescribed, (6) complete a parenting assessment and follow all 

recommendations, (7) attend the Children’s appointments to understand their needs, (8) 

obtain and maintain appropriate housing for the Children, (9) obtain and maintain a legal 

source of income, (10) develop a transportation plan to get the Children to school and to 

their appointments, (11) identify relatives who could be a potential placement for the 

Children, (12) comply with random drug screens, (13) submit to an alcohol and drug 

assessment and follow the recommendations, (14) not incur new criminal charges, and 

(15) complete a mental health assessment. 

As the Juvenile Court acknowledged, Mother had completed some steps on the 

permanency plan, including completing an alcohol and drug assessment and a parenting 

assessment. However, Mother had not obtained a legal source of income to support the 

Children or provided a transportation plan to DCS. Mother also had not provided 

appropriate housing for the Children, which the Juvenile Court found was the most 

important action step for Mother to complete on the permanency plans. In fact, Mother 

had informed Ms. Swaney that she was in an unsafe living situation but was unwilling to 

leave. Upon reviewing the record, we find by clear and convincing evidence and hold, as 

did the Juvenile Court, that Mother had not substantially complied with the requirements 

on the permanency plans, which were reasonably related to the reasons the Children were 

in foster care and were in the Children’s best interest.

We next address whether the Juvenile Court erred in finding by clear and 

convincing evidence that the conditions leading to the Children’s removal from Mother

persisted. Although the statute at issue has since been amended, the version of Tennessee 

Code Annotated § 36-1-113(g)(3) (2017) that was in effect at the time of the termination 

petition’s filing and is applicable to the current proceeding stated as follows:

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:
- 22 -

(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[.]

In this case, the Children were removed from Mother’s custody due to Mother’s 

homelessness. The Court found that Mother still had not obtained suitable housing for 

the Children. Additionally, the Juvenile Court found that Mother did not have 

transportation for the Children and had unaddressed substance abuse issues, as evidenced 

by her convictions for driving under the influence and possession with intent to sell 

methamphetamine. The Juvenile Court found that the conditions leading to the 

Children’s removal from Mother’s custody persist. The Juvenile Court further found that 

“there is not just little chance, but that there is no chance” that those conditions will be 

remedied such that the Children could return home to Mother’s custody. Furthermore, 

the Juvenile Court found that continuing the parent-child relationship between Mother 

and the Children greatly diminished the Children’s chances of being placed into safe and 

permanent homes. The evidence does not preponderate against any of these findings. 

Upon our review of the record, we determine, as did the Juvenile Court, that DCS has 

proven the ground of persistent conditions by clear and convincing evidence. 

Finally, having determined that grounds exist for the termination of Mother’s and 

Father’s parental rights, we next address the best interest analysis. Both parents have 

raised the best interest analysis as an issue on appeal and argue that the Juvenile Court 

erred by determining that it was in the Children’s best interest for their respective 

parental rights to be terminated. Tennessee Code Annotated § 36-1-113(i) provides a set 

of non-exclusive factors courts are to consider in determining whether termination of 

parental rights is in a child’s best interest:

(i) 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
- 23 -

(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 and stable care and supervision for 

the child; or

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

with the child support guidelines promulgated by the department 

pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i) (Supp. 2019).
- 24 -

With regard to making a determination concerning a child’s best interest, our 

Supreme Court has instructed:

When conducting the best interests analysis, courts must consider 

nine statutory factors listed in Tennessee Code Annotated section 36-1-

113(i). These statutory factors are illustrative, not exclusive, and any party 

to the termination proceeding is free to offer proof of any other factor 

relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at 

523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). 

Facts considered in the best interests analysis must be proven by “a 

preponderance of the evidence, not by clear and convincing evidence.” In 

re Kaliyah S., 455 S.W.3d at 555 (citing 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 termination is in the child’s 

best interest[s].” Id. When considering these statutory factors, courts must 

remember that “[t]he child’s best interests [are] viewed from the child’s, 

rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. 

Indeed, “[a] focus on the perspective of the child is the common theme” 

evident in all of the statutory factors. Id. “[W]hen the best interests of the 

child and those of the adults are in conflict, such conflict shall always be 

resolved to favor the rights and the best interests of the child. . . .” Tenn. 

Code Ann. § 36-1-101(d) (2017).

Ascertaining a child’s best interests involves more than a “rote 

examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878. 

And the best interests analysis consists of more than tallying the number of 

statutory factors weighing in favor of or against termination. White v. 

Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts 

and circumstances of each unique case dictate how weighty and relevant 

each statutory factor is in the context of the case. See In re Audrey S., 182 

S.W.3d at 878. Simply put, the best interests analysis is and must remain a 

factually intensive undertaking, so as to ensure that every parent receives 

individualized consideration before fundamental parental rights are 

terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon 

the circumstances of a particular child and a particular parent, the 

consideration of one factor may very well dictate the outcome of the 

analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 

S.W.3d at 194). But this does not mean that a court is relieved of the 

obligation of considering all the factors and all the proof. Even if the 

circumstances of a particular case ultimately result in the court ascribing 

more weight—even outcome determinative weight—to a particular 
- 25 -

statutory factor, the court must consider all of the statutory factors, as well 

as any other relevant proof any party offers.

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).

Both parents argue that the Juvenile Court erred by failing to apply a presumption 

against separating siblings. See Ray v. Ray, 83 S.W.3d 726, 738 (Tenn. Ct. App. 2001). 

This Court has explained that “[t]he preference for keeping siblings together ‘is simply a 

factor for the court to consider in determining the best interest of the child . . . . It is not a 

controlling factor. Courts have previously separated siblings if separation was in the best 

interest of the child before the court.” Grigsby v. Alvis-Crawford, No. W2016-00393-

COA-R3-JV, 2017 WL 417221, at *4 (Tenn. Ct. App. Jan. 31, 2017) (quoting In re S.B.,

No. M1999-00140-COA-R3-CV, 2000 WL 575934, at *5 (Tenn. Ct. App. May 12, 

2000)). 

We note that the parents failed to raise the Children’s placement as an issue at trial 

for the Juvenile Court to consider. Because the Children’s placement in separate foster 

homes is not included in the non-exclusive list of factors set forth in Tennessee Code 

Annotated § 36-1-113(i) for the Juvenile Court to consider and the parents failed to raise 

it at trial, there is little evidence in the record pertaining to the effects of or reasoning 

behind the placement decision. The mere fact that the Children were in separate foster 

homes, without more, does not preponderate against the Juvenile Court’s findings 

concerning best interest. 

The Juvenile Court considered the factors in Tennessee Code Annotated § 36-1-

113(i) in making its decision. Pursuant to factors (1) and (2), the Juvenile Court found 

that Mother and Father had made no changes to their lifestyles that would allow the 

Children to be placed into their respective custody, despite “significant services” to assist 

the family. As relevant to Mother, the Juvenile Court found that she had refused to leave 

an environment that was unsafe for the Children. As to factor (3), the Juvenile Court 

found that neither Mother nor Father had maintained consistent visitation with the 

Children. Ms. Swaney’s testimony established that Father had not visited with the 

Children since November 2017. Additionally, the Juvenile Court found as relevant to 

factor (5) that the Children had been in foster care for nearly three years and changing 

caregivers at this point would have a detrimental effect on the Children’s psychological 

welfare and emotional state. Pursuant to factor (7), the Juvenile Court found that Mother 

had continued her drug use and criminal activity. Upon our review of the record on 

appeal, we determine that the evidence presented does not preponderate against these 

findings by the Juvenile Court.

The Juvenile Court further found that as relevant to factor (9), neither Mother nor 

Father had paid child support for the Children. The evidence in the record supports the 

Juvenile Court’s finding regarding Father’s failure to pay child support. As such, we find 
- 26 -

and hold, as did the Juvenile Court, that, in consideration of all relevant factors, DCS 

proved by clear and convincing evidence that the termination of Father’s parental rights 

was in the Children’s best interest. However, there was no evidence presented at trial 

that Mother had failed to support the Children. To the contrary, Ms. Swaney’s testimony 

reflects that she did not know if Mother paid support or whether there was an order 

requiring her to do so. She also stated that she did not believe Mother owed any support. 

The testimony in the record preponderates against the Juvenile Court’s finding that 

Mother failed to provide support for the Children. Nonetheless, considering the Juvenile 

Court’s findings as to the remaining factors, which the evidence does not preponderate 

against, we find and hold, as did the Juvenile Court, that DCS proved by clear and 

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

Children’s best interest. We, therefore, affirm the Juvenile Court’s judgment terminating 

Mother’s and Father’s parental rights to the Children.

Conclusion

The judgment of the Juvenile Court terminating Mother’s and Father’s parental 

rights to the Children is affirmed, as modified. This cause is remanded to the Juvenile

Court for collection of the costs assessed below. The costs on appeal are assessed against 

the appellants, Jennifer G. and Brian B., and their surety, if any.

_________________________________

D. MICHAEL SWINEY, CHIEF JUDGE