IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 3, 2018

IN RE MAYA R. ET AL.

Appeal from the Juvenile Court for Knox County

No. 161765 Timothy E. Irwin, Judge

No. E2017-01634-COA-R3-PT

Mother appeals the trial court’s decision to terminate her parental rights to two children 

on the grounds of (1) persistence of conditions, (2) substantial noncompliance with the 

requirements of the permanency plan, and (3) failure to manifest an ability and 

willingness to personally assume legal and physical custody or financial responsibility of 

the children. She further challenges the trial court’s finding by clear and convincing 

evidence that termination of her parental rights was in the best interest of the children. 

We reverse in part and affirm in part.

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

Part and Affirmed in Part

ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

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

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Bettina T.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan Keith Crews, Assistant

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

Children’s Services.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Bettina T. (“Mother”) and Richard R. (“Father”) are the biological parents of 

Maya R., born in April 2008, and Nickolas R., born in June 2010. Mother and Father 

never married, but Father was listed on the birth certificates of both children and he did 

not dispute being the children’s father. Mother also has three older children who are not 

involved in this case. 

04/04/2018
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The family resided in Ohio until moving to Tennessee in 2011. Mother and Father 

had a tumultuous, on-again-off-again relationship riddled with domestic violence. While 

living in Ohio, Mother underwent surgery to have a rod inserted into her arm after Father 

broke her arm. He also caused injuries to her mouth that required stitches. Before 

moving to Tennessee, Mother lost custody of her three older children due to domestic 

violence in the home. She sent two of the children to live with an aunt and uncle in North 

Carolina. Ohio’s child protective agency removed the third child from the home after 

Mother’s family reported that she failed to protect the child from Father. That child was 

adopted by a family in Ohio. In addition to the domestic violence in the home, Mother 

had a substance abuse problem. She admitted to using crack cocaine while living in 

Ohio. 

 

The domestic violence and substance abuse continued when the family moved to 

Tennessee. The Tennessee Department of Children’s Services (“DCS”) first became 

involved with the family in 2014 due to allegations of domestic violence and drug use in 

the home. DCS investigated the family on six or seven occasions for domestic violence 

or drug use. In regard to the domestic violence issue, Mother called the police in April 

2015 after an altercation between her and Father regarding his use of her car. A few 

months later, she made Father move out of the home because “he put his hands around 

her throat.” Mother allowed Father to return to the home and, in October 2015, the 

manager of her apartment complex placed him on the no-trespass list after he caused a 

domestic disturbance. In January 2016, police responded to yet another domestic 

disturbance in the home. On this occasion, the altercation between Mother and Father 

escalated to the point that Mother barricaded herself and the children in the children’s 

bedroom. The police helped Mother and the children escape through a window and

transported Father to his sister’s residence in Anderson County. 

On April 20, 2016, another altercation occurred between Mother and Father. He 

stole her car after breaking the windshield and repeatedly punching her in the head and 

face. Nearly a month later, on May 13, Mother filed a petition for an order of protection 

against Father based on the events that occurred on April 20. In the petition, Mother 

stated that “[t]here hasn’t been a day that I am not scared he will hurt me or get someone 

to hurt me. [Father] threatened to kill or hurt me everyday.” The trial court issued an ex 

parte temporary order of protection three days later, ordering Father to have no contact 

with Mother and to immediately move out of the home. On June 23, 2016, the trial court 

granted Mother an order of protection that was effective until June 22, 2017.

Although the order of protection was in effect, Father contacted Mother on May 

31, 2016, requesting a visit with the children. Mother disregarded the order of protection 

and agreed to meet Father with the children at the auto shop where he worked and 

temporarily resided in his van. Mother and the children spent the night with him in his 

van and, upon waking the following morning, Father “began to accuse [Mother] of 

stealing his crystal-meth.” He then stabbed her in the thigh with his pocket knife while 
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the children were outside playing. Thereafter, he drove Mother and the children to his 

sister’s home and fled the scene. Police arrested Father later that day and charged him

with two counts of aggravated assault. After pleading guilty to both charges, he received 

a sentence of four years, with ninety days to be served in jail. 

On June 10, 2016, DCS obtained an ex parte restraining order against Mother and 

Father. The restraining order prohibited Father from having any contact with the children 

and ordered Mother not to permit Father to have contact with the children. The trial court 

scheduled a preliminary hearing on the matter for June 14, 2016, but Mother failed to 

appear. The trial court found probable cause to believe that the children were dependent 

and neglected due to “domestic violence in [the] home, substance abuse issues, and 

inability to provide appropriate care and supervision” for the children and awarded 

temporary custody of the children to DCS. The children have continuously remained in 

foster care since that time.

Father was released from jail on August 7, 2016. At the time of his release, he 

signed a conditional release order mandating that he have no contact with Mother. 

Shortly thereafter, despite the order of protection and conditional release order, Mother 

again reunited with Father. Mother met with a DCS case manager on August 22, 2016 to 

discuss her attending non-offender domestic violence classes. The case manager noted 

that Mother had a black eye, which Mother reported was the result of her windshield 

breaking and hitting her in the eye when she drove over a pothole. Two days later, on 

August 24, 2016, a police officer stopped Father for several traffic violations, and Mother 

was a passenger in the vehicle. She reported to the police officer that three days earlier, 

Father “assaulted [her] by striking [her] in the right eye with his elbow.” The police 

officer observed that Mother also had an abrasion inside her left ear. Father was arrested 

and, on October 28, 2016, he pled guilty to aggravated assault, resulting in the revocation 

of his probation and a sentence of five years’ incarceration.1

The trial court held a hearing on September 13, 2016, and on October 25, 2016, it 

entered an order adjudicating the children dependent and neglected due to Mother’s 

“[a]lcohol and [d]rug issues, her mental health issues, her failure to comply with the 

[r]estraining [o]rder, and the domestic violence in the home with the father, and failure to 

provide for the appropriate care and supervision of the children.” Mother was allowed 

supervised visitation with the children. Initially, her visitation was scheduled for once a 

week for one hour. After she missed some of her scheduled visits, however, she 

requested that visitation be every other week for two hours because “she felt that might 

make it so that she was able to attend more visits.” 

 

1

Father was incarcerated at the time of trial.
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On March 27, 2017, DCS filed its petition to terminate Mother’s parental rights.2 

DCS alleged four grounds for termination: (1) abandonment by willfully failing to 

engage in more than token visitation, (2) persistence of conditions, (3) substantial 

noncompliance with the permanency plan, and (4) failure to manifest an ability and 

willingness to personally assume legal and physical custody or financial responsibility of 

the children. The trial court heard the matter on July 26, 2017, and determined there was 

clear and convincing evidence to support three of the four grounds alleged: persistence 

of conditions, substantial noncompliance, and failure to manifest an ability or willingness 

to assume legal and physical custody or financial responsibility. The court did not find 

that clear and convincing evidence supported the ground of abandonment by willfully 

failing to engage in more than token visitation.3 The trial court then concluded that it was 

in the best interest of the children for Mother’s rights to be terminated. Mother timely 

appealed. 

We consolidate and restate the issues raised by Mother on appeal as follows: (1) 

whether the trial court erred in finding by clear and convincing evidence that grounds 

existed to terminate Mother’s parental rights, and (2) whether the trial court erred in 

determining that termination of Mother’s parental rights was in the best interest of the 

children.

STANDARD OF REVIEW

Under both the federal and state constitutions, a parent has a fundamental right to 

the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 

651 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v. 

McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d 

674, 678 (Tenn. 1994)). Although this right is fundamental, it is not absolute. The state 

may interfere with parental rights in certain situations. In re Angela E., 303 S.W.3d at 

250. Our legislature has identified “‘those situations in which the state’s interest in the 

 

2 DCS sought to terminate Father’s parental rights through separate proceedings, and the trial court 

consolidated the cases for trial. The record on appeal does not include an order terminating Father’s 

parental rights; however, the trial court issued an oral ruling at the conclusion of the trial stating that the 

court terminated his rights. He is not a party to this appeal.

3

Pursuant to the holding of our Supreme Court in In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 

2016), we must “review the trial court’s findings as to each ground for termination and as to whether 

termination is in the child’s best interests, regardless of whether the parent challenges these findings on 

appeal.” We do not interpret In re Carrington H. to require us to “review those grounds for termination 

that the trial court found were not supported by clear and convincing evidence” unless DCS raises an 

issue on appeal concerning the trial court’s ruling that the Department failed to prove one of these

grounds. In re P.T.F., No. E2016-01077-COA-R3-PT, 2017 WL 2536847, at *8 (Tenn. Ct. App. June 12, 

2017). Therefore, we will not discuss the ground of abandonment by willfully failing to engage in more 

than token visitation. 
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welfare of a child justifies interference with a parent’s constitutional rights by setting 

forth grounds on which termination proceedings can be brought.’” In re Jacobe M.J., 

434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-

COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 

29, 2005)). The existence of any one of the statutory grounds will support a termination 

of parental rights. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Because terminating a parent’s fundamental parental rights has severe 

consequences, termination cases require a court to apply a higher standard of proof. State 

Dep’t of Children’s Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). 

Consequently, a court must determine by clear and convincing evidence both that 

grounds for termination exist and that termination is in the best interest of the child. 

Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d at 546. “Clear and 

convincing evidence ‘establishes that the truth of the facts asserted is highly probable, 

and eliminates any serious or substantial doubt about the correctness of the conclusions 

drawn from the evidence.’” In re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 

2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643, 

653 (Tenn. Ct. App. 2004) (citations omitted)). 

We review the trial court’s findings of fact de novo with a presumption of 

correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re 

Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we 

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

preponderance of the evidence, establish the existence of one or more grounds for 

termination by clear and convincing evidence. In re M.J.B., 140 S.W.3d at 654.

ANALYSIS

I. Grounds for Termination

A. Persistence of Conditions

The juvenile court relied on Tenn. Code Ann. § 36-1-113(g)(3) as a ground for 

terminating Mother’s parental rights. This ground is often referred to as “persistence of 

conditions” and allows courts to terminate parental rights in situations where:

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;
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(B) There is little likelihood that these conditions will be remedied at an 

early date so that the child can be safely returned to the parent or parents or 

the guardian or guardians in the near future; and

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

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

and permanent home.

Tenn. Code Ann. § 36-1-113(g)(3).

We have held that the persistence of conditions ground applies “only where the 

prior court order removing the child from the parent’s home was based on a judicial 

finding of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 874. At the 

conclusion of the preliminary hearing on June 14, 2016, the juvenile court issued an order 

removing the children from the home based on a finding that there was probable cause to 

believe the children were dependent and neglected due to “domestic violence in [the] 

home, substance abuse issues, and inability to provide appropriate care and supervision.” 

Although the June 14, 2016 order contains a finding of probable cause that the children 

were dependent and neglected, it does not contain a finding that the children were in fact

dependent and neglected. The juvenile court did not make such a finding until it entered

the October 25, 2016 order adjudicating the children dependent and neglected. Thus, for 

the persistence of conditions ground to apply, the children must have been removed from 

the home for a period of six months after the October 25, 2016 order. See Tenn. Code 

Ann. § 36-1-113(g)(3); see also In re Audrey S., 182 S.W.3d at 875 (holding that trial 

court erred in terminating the mother’s parental rights on the ground of persistence of 

conditions because the only order in the record removing the child from mother’s custody 

contained a finding of probable cause that the child was dependent and neglected but 

contained no finding that the child was in fact dependent and neglected). 

DCS filed its petition to terminate Mother’s parental rights on March 27, 2017—

only five months after the juvenile court made a finding of dependency and neglect. 

Therefore, the persistence of conditions ground cannot be a basis for terminating 

Mother’s parental rights because the children had not been removed from Mother’s home 

for a period of six months by court order based on a “finding of dependency, neglect, or 

abuse.” In re Audrey S., 182 S.W.3d at 874. Accordingly, the juvenile court erred in 

relying on Tenn. Code Ann. § 36-1-113(g)(3) as a ground for terminating Mother’s 

parental rights.4

 

4 On appeal, DCS does not defend the trial court’s termination of Mother’s parental rights on the ground 

of persistence of conditions, acknowledging that the children were not removed from the home for a 

period of six months by a court order finding that the children were dependent, neglected, or abused.
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B. Substantial Noncompliance with the Permanency Plan

We next consider the trial court’s termination of Mother’s parental rights based on 

her substantial noncompliance with the permanency plan. Tennessee Code Annotated 

section 36-1-113(g)(2) allows a court to terminate parental rights where “[t]here has been 

substantial noncompliance by the parent . . . with the statement of responsibilities in a 

permanency plan pursuant to title 37, chapter 2, part 4.” To succeed under this ground,

DCS 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 M.J.B., 140 S.W.3d at 656. Conditions that 

make foster care placement necessary may “include conditions related both to the child’s 

removal and to family reunification.” In re Valentine, 79 S.W.3d at 547. The court must 

then determine whether the noncompliance is substantial. In re M.J.B., 140 S.W.3d at 

656. In assessing a parent’s substantial noncompliance with a permanency plan, the court 

should measure “both the degree of noncompliance and the weight assigned to that 

requirement.” In re Valentine, 79 S.W.3d at 548. “Trivial, minor, or technical deviations 

from a permanency plan’s requirements will not be deemed to amount to substantial 

noncompliance.” In re M.J.B., 140 S.W.3d at 656. 

In the case at hand, DCS, with Mother’s participation, developed a permanency 

plan on July 8, 2016, and the trial court ratified the plan on October 25, 2016. Listing a 

goal of “Return to Parent,” the permanency plan required Mother to (1) complete an 

alcohol and drug assessment and follow all recommendations, (2) demonstrate sobriety 

by submitting to and passing all random drug screens, (3) provide prescriptions to DCS 

and submit to pill counts, (4) refrain from associating with known drug users, (5) 

complete a mental health assessment and follow all recommendations, (6) sign releases of 

information to DCS, (7) complete non-offender domestic violence classes, (8) obtain and 

maintain a legal source of income, (9) comply with all court orders, (10) obtain and 

maintain a safe and suitable home for the children, (11) pay child support, and (12) have 

safe and reliable transportation. DCS revised the permanency plan on March 3, 2017, 

adding the goal of “Adoption,” to which Mother objected. The trial court ratified the 

revised permanency plan on April 12, 2017.5

The children entered DCS custody due to domestic violence in the home, the 

parents’ substance abuse issues, and the parents’ “inability to provide appropriate care 

and supervision” for the children. Accordingly, the permanency plan for Mother sought 

to remedy these conditions. As the trial court found, the plan requirements were 

reasonable and related to remedying the conditions that caused the children’s removal. 

Mother argues that DCS failed to prove this ground by clear and convincing 

evidence because she substantially complied with the requirements of the permanency 

 

5 The trial court ratified the revised plan after DCS filed the petition to terminate Mother’s parental rights.
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plan. We respectfully disagree. Mother failed to comply with the permanency plan’s 

requirements relating to her mental health issues. She completed a mental health 

assessment on July 7, 2016, at Omni Community Health; however, she did not complete 

the individual therapy and case management recommended by the assessment. Susan 

Owens, the DCS case manager, testified that DCS provided both of those services to 

Mother, but she attended no individual therapy and only two case management sessions, 

which both occurred in July 2016. Mother reported to DCS that she completed a second 

mental health assessment at Cherokee Health on January 30, 2017. DCS was unable to 

obtain any information about the assessment, however, because Mother failed to sign a 

release. In April 2017, shortly after being served with the termination petition, Mother 

requested another mental health assessment. DCS referred her to Health Connect, where 

she completed both a mental health assessment and a drug and alcohol assessment on 

May 26, 2017. The assessments recommended “dual diagnoses intensive outpatient 

therapy, as well as individual therapy” to address the mental health and substance abuse 

issues. Ms. Owens testified that these services were available to Mother but, as of trial, 

she had not begun any of them. During Mother’s testimony, she stated that she was 

attending counseling at Cherokee Health once every two weeks. At the time of trial, she 

had attended three counseling sessions. When asked what this counseling addressed, 

Mother responded that “[i]t’s basically mental health and non[-]offender domestic 

violence.” She testified that she was scheduled to begin her intensive outpatient 

treatment one week after the trial. 

The permanency plan included several requirements addressing Mother’s 

substance abuse. As mentioned above, Mother completed a drug and alcohol assessment

on May 26, 2017, and she had not complied with the recommendations as of trial. 

Furthermore, she failed to comply with the requirement that she demonstrate sobriety by 

submitting to and passing random drug screens. DCS began requesting that Mother 

complete random drug screens as far back as 2014. Ms. Owens testified that, “[o]n 

several of the occasions [Mother] was unable to produce a sample, and then failed to 

either come to the Department the next day to do a drug screen or to go to Net Gain the 

following day.” Moreover, Ms. Owens stated that Mother had refused to submit to a drug 

screen. In February 2017, Mother submitted to a drug screen and tested positive for 

amphetamine and methamphetamine. When she completed the drug and alcohol 

assessment on May 26, 2017, she tested positive for alcohol, amphetamine, and 

methamphetamine. Ms. Owens acknowledged that Mother submitted a negative drug 

screen on July 11, 2017—fifteen days before trial.

Mother did not comply with the requirement that she complete non-offender 

domestic violence classes. DCS arranged for Mother to complete the non-offender 

classes through a therapeutic visitation worker at Omni Community Health; however, 

Mother refused to complete the program after only two sessions. Ms. Owens testified 

that Mother complained that the worker was too young and was not qualified to teach the 

classes because the worker had not been abused. DCS provided Mother with additional 
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resources to complete the classes, but she never provided proof that she completed 

counseling elsewhere.

 

Mother also failed to comply with the requirement that she obtain and maintain a 

suitable home for the children. Shortly after the children were removed from the home, 

Mother was evicted from her apartment. Ms. Owens testified that Mother reported to 

DCS that she was evicted because she allowed Father on the premises after he was placed 

on the no-trespass list. Thereafter, Mother resided with Father’s sister. Following 

Father’s release from jail in August 2016, he began visiting Mother at his sister’s home in 

violation of the order of protection. Consequently, Father’s sister informed Mother she 

could no longer stay at her home. According to Ms. Owens, DCS provided Mother with 

assistance to find housing, such as giving her information for several shelters she could 

contact and faxing the children’s birth certificates to the housing authority. DCS, in fact, 

recommended that Mother find housing at the Knoxville Area Rescue Mission 

(“KARM”). Mother chose not to take advantage of the assistance offered by DCS, 

choosing to reside with friends or in her car. Mother testified that she chose to stay with 

friends or in her car rather than entering KARM because she had heard from friends that 

it “would not be a good place to go” for someone with a prior drug problem. On April 

21, 2017, one month after DCS filed the petition to terminate, Mother entered KARM. 

She testified that she had applied for public and private housing and hoped to secure 

housing a couple of months after trial; however, at the time of trial, she still resided at 

KARM, which she described as “dangerous” and plagued by “[s]hootings, stabbings, 

ODs, needles all over the place, [and] any drug you want.” 

 

Finally, Mother complied with the requirement that she obtain a legal source of 

income; however, she did not do so until two months after DCS filed the petition to 

terminate. She testified that she began working at the University of Tennessee

Conference Center on May 16, 2017. She worked between thirty and thirty-four hours 

per week.

We have previously recognized that a parent’s efforts to comply with a 

permanency plan after the filing of a petition to terminate can be “too little, too late.” In 

re A.W., 114 S.W.3d 541, 546-47 (Tenn. Ct. App. 2003) (holding that, although the 

mother’s condition improved upon taking medication for her mental health issues, her 

efforts came “too little, too late” because she refused to take the medication until two 

months before trial); see also In re Malaya B., No. E2015-01880-COA-R3-PT, 2016 WL 

3083045, at *5 (Tenn. Ct. App. May 24, 2016) (holding that the mother’s efforts to 

comply with the permanency plan were “too little, too late” because she only made 

efforts to address her mental health issues after the filing of the termination petition); In 

re Emily N.I., No. E2011-01439-COA-R3-PT, 2012 WL 1940810, at *16 (Tenn. Ct. App. 

May 30, 2012) (holding that “the Parents’ refusal to complete a number of the 

requirements until after the termination petition was filed . . . was simply ‘[t]oo little, too 

late.’”). Here, although Mother completed some of the requirements of the permanency 
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plan by the time of trial, the proof showed that she made no real effort at compliance until 

after DCS filed the petition to terminate. We conclude, therefore, that there is clear and 

convincing evidence that Mother did not substantially comply with the permanency plan.

C. Failure to Manifest an Ability and Willingness to Personally Assume Custody

The trial court also relied on Tenn. Code Ann. § 36-1-113(g)(14) as a ground for 

terminating Mother’s parental rights.6 Pursuant to this ground, a court may terminate 

parental rights in situations where:

A legal parent or guardian has failed to manifest, by act or omission, an 

ability and willingness to personally assume legal and physical custody or 

financial responsibility of the child, and placing the child in the person’s 

legal and physical custody would pose a risk of substantial harm to the 

physical or psychological welfare of the child.

Tenn. Code Ann. § 36-1-113(g)(14). Essentially, this ground requires DCS to prove two 

elements by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). 

First, DCS must prove that Mother failed to manifest “an ability and willingness to 

personally assume legal and physical custody or financial responsibility of the 

child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). DCS must then prove that placing the 

children in Mother’s “legal and physical custody would pose a risk of substantial harm to 

the physical or psychological welfare of the child[ren].” Id. 

In the present case, Mother failed to manifest an ability to personally assume legal 

and physical custody of the children because she was living an itinerant lifestyle, residing 

with friends or in her car, at the time DCS filed the termination petition. Her housing 

situation changed a few months before trial when she entered KARM. She testified, 

however, that KARM was “dangerous” and rife with “[s]hootings, stabbings, ODs, 

 

6 Mother cites to Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv) in reference to this ground for termination. 

Mother is correct that the grounds in subsection (g)(9) do not apply to her because they apply to putative 

fathers. See Tenn. Code Ann. § 36-1-113(g)(9). It is clear from the record, however, that the trial court 

relied on Tenn. Code Ann. § 36-1-113(g)(14) as a ground for terminating Mother’s parental rights, not 

(g)(9). The trial court’s order tracks the language in subsection (g)(14) verbatim. Moreover, at the 

beginning of the trial, the court repeated the grounds alleged by DCS, stating as follows: 

And finally, the kind of catchall ground, the new ground, failed to manifest by act or 

omission an ability and willingness to personally assume legal and physical custody or

financial responsibility of the children, placing the children in [Mother’s] legal and 

physical custody would pose a substantial risk of harm to their physical and 

psychological welfare.

Subsection (g)(14) became effective on July 1, 2016. Thus, it is the “new ground” to which the trial court 

referred. See 2016 TENN. PUB. ACTS Ch. 919 (S.B. 1393). 
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needles all over the place, [and] any drug you want.” Additionally, Mother failed to 

manifest a willingness to personally assume legal and physical custody of the children:

she completed virtually nothing required by the permanency plan until after the 

termination petition was filed. Moreover, by the time of trial, she still had not secured 

housing, completed non-offender domestic violence classes, or completed the 

recommendations of her mental health and alcohol and drug assessments. 

With respect to the second element, placing the children in Mother’s custody 

would pose a risk of substantial harm to the physical or psychological welfare of the 

children. We have made the following observations about what constitutes “substantial 

harm”:

The courts have not undertaken to define the circumstances that pose a risk 

of substantial harm to a child. These circumstances are not amenable to 

precise definition because of the variability of human conduct. However, 

the use of the modifier “substantial” indicates two things. First, it connotes 

a real hazard or danger that is not minor, trivial, or insignificant. Second, it 

indicates that the harm must be more than a theoretical possibility. While 

the harm need not be inevitable, it must be sufficiently probable to prompt a 

reasonable person to believe that the harm will occur more likely than not.

Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted). 

Mother has an extensive history of domestic violence and substance abuse. A

thorough examination of the record shows that she has barely begun to address these 

issues. Mother has a pattern of separating from and then reuniting with Father. She has 

attended a few therapy sessions at Cherokee Health for mental health and non-offender 

domestic violence; however, she has not completed the non-offender domestic violence 

classes or any alcohol and drug treatment or the recommendations of her mental health 

and alcohol and drug assessments. Since DCS became involved with the family in 2014, 

Mother has only submitted one negative drug screen—a mere fifteen days before trial. 

Moreover, we find it significant that Mother has denied that she has a substance abuse 

issue. She contends that testing positive for amphetamines and methamphetamines only 

twice does not make her an addict. 

 

In light of the foregoing, removing the children from their current home and 

placing them back in Mother’s custody would expose them to a substantial risk that 

Mother will fail to obtain or once again lose suitable housing or expose the children to 

drug use or domestic violence. We, therefore, conclude that DCS proved by clear and 

convincing evidence that Mother failed to manifest an ability and willingness to assume 

custody or financial responsibility of her children and that placing them in her care would 

pose a risk of substantial harm to their physical or psychological welfare.
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II. Best Interest

Having determined that clear and convincing evidence of at least one statutory 

ground exists to terminate Mother’s parental rights, we must next consider whether the 

trial court properly determined that termination of Mother’s parental rights is in the best 

interest of the children. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 

S.W.3d at 860. After a court finds that clear and convincing evidence exists to support a 

ground for termination, the child’s interests diverge from those of the parent and the court 

focuses on the child’s best interests. In re Audrey S., 182 S.W.3d at 877. A court must 

view the child’s best interest from the perspective of the child, not that of the parent. Id.

at 878. A finding that at least one ground for termination of parental rights exists does 

not necessarily require that a parent’s rights be terminated. Because some parental 

misconduct is redeemable, our termination of parental rights statutes recognize that 

“terminating an unfit parent’s parental rights is not always in the child’s best interest.” 

Id. at 877.

When considering whether terminating a parent’s rights to a child is in the child’s 

best interest, a trial court is to consider the following non-exclusive factors: 

(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;
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(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). A trial court is not required to find that each of the 

enumerated factors exists before concluding that it is in the best interest of the child to 

terminate a parent’s rights. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).

Here, the trial court found that the best interest factors weighed in favor of 

terminating Mother’s parental rights. Specifically, the court found that “[Mother] has not 

made such an adjustment of circumstance, conduct, or conditions as to make it safe and 

in the children’s best interest to be in her home despite reasonable efforts by available 

social services agencies for such duration of time that lasting adjustment does not 

reasonably appear possible.” See Tenn. Code Ann. § 36-1-113(i)(1), (2). DCS assisted 

Mother in reunification by scheduling visits with the children, giving her information for 

several shelters, and faxing the children’s birth certificates to the housing authority. DCS 

further assisted Mother by providing, referring, or otherwise ensuring that she had access 

to the following services: (1) a mental health assessment, (2) mental health case 

management, (3) an alcohol and drug assessment, (4) drug screens, and (5) non-offender 

domestic violence classes. Despite the availability of these services, Mother failed to 

complete several of the permanency plan’s requirements addressing the conditions that 

caused the children’s removal. For instance, substance abuse remained an issue because 

she had not completed any alcohol and drug treatment and tested positive for 

amphetamine and methamphetamine two months prior to trial. In fact, since 2014, 

Mother only submitted one negative drug screen—fifteen days before trial. The domestic 

violence issue also remained unresolved because Mother maintained a relationship with 

her abuser until his current incarceration began in August 2016—two months after the 

children’s removal—and failed to complete non-offender domestic violence classes. 

The trial court also found that Mother failed to maintain regular visitation with the 

children. See Tenn. Code Ann. § 36-1-113(i)(3). Between December 2016 and March 

2017, Mother had the opportunity to visit the children once every other week for two 

hours. She missed four of the nine visits. Mother explained that she missed those visits 
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because her car was impounded but, by the time of trial, she was attending visitations 

because she had learned to use the bus system. The evidence in the record, however, 

shows that, while Mother did visit the children, she continued missing visits after DCS 

filed the termination petition. She, in fact, missed two visits approximately one month 

before trial.

In addition, the trial court found that “a change of caretakers and physical 

environment is likely to have a detrimental effect on the children’s emotional and 

psychological condition.” See Tenn. Code Ann. § 36-1-113(i)(5). The children were 

placed with their current foster family two months prior to trial. According to the foster 

mother, she and her husband have the resources to care for the children and are open to 

adopting the children should they become available for adoption. The foster mother 

testified that, when the children arrived at her home, Nickolas was behind in school and 

was unable to read two-letter words. The foster parents worked with him on his reading 

and he was reading short stories by the time of trial. In addition, upon arriving at the 

foster parents’ home, Nickolas displayed aggressive behavior towards Maya and the 

foster parents’ biological son. Specifically, he placed his hands on their throats when 

they irritated him. The foster mother stated that her husband talked to Nickolas about his 

behavior and things “[had] been improved tremendously.”

The trial court found that Mother “has shown neglect toward the children and has 

exposed them to the brutality, physical, emotional or psychological abuse inflicted upon 

her by their father due to her failure to separate from him.” See Tenn. Code Ann. § 36-1-

113(i)(6). A thorough examination of the record shows that Mother exposed the children 

to her abusive relationship with Father and that she repeatedly reunited with him, despite 

obtaining an order of protection against him.

The trial court also found that the physical environment of Mother’s home was not 

healthy or safe for the children. See Tenn. Code Ann. § 36-1-113(i)(7). The trial court 

stated as follows: “The Court cannot find that KARM [is] not a healthy and safe physical 

environment. We do not remove children from their families just because they are living 

at KARM. On the other hand, it is not a permanent home and [Mother], herself, believed 

it to be unsafe.” The record supports this finding because Mother testified that KARM 

was rife with “[s]hootings, stabbings, ODs, needles all over the place, [and] any drug you 

want.” The court then found that Mother’s substance abuse problems may render her 

consistently unable to care for the children in a safe and stable manner. See Tenn. Code 

Ann. § 36-1-113(i)(7). As discussed in more detail above, the evidence shows that 

Mother had barely begun to address her substance abuse issue by the time of trial.

Finally, the trial court found that Mother failed to pay child support consistent 

with the child support guidelines. See Tenn. Code Ann. § 36-1-113(i)(9). The record 

contains no evidence pertaining to whether Mother paid child support once the children 
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were removed from the home. Thus, we cannot conclude that the record supports the 

trial court’s finding as to this factor. 

 

In light of the foregoing, we conclude that there is clear and convincing evidence 

to establish that termination of Mother’s parental rights is in the best interest of the 

children.

CONCLUSION

The judgment of the trial court is reversed in part and affirmed in part, and this 

matter is remanded with costs of appeal assessed against the appellant, Bettina T., for 

which execution may issue if necessary.

________________________________

 ANDY D. BENNETT, JUDGE