IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 1, 2022

IN RE KYLIE H. ET AL.

Appeal from the Juvenile Court for Dyer County

No. 7565 Jason L. Hudson, Judge

___________________________________

No. W2021-00612-COA-R3-PT

___________________________________

This is a termination of parental rights case. The Tennessee Department of Children’s 

Services filed a petition to terminate the parental rights of a mother as to two of her minor 

children on various grounds. The trial court ultimately concluded that grounds existed for 

termination and that termination was in the best interests of the children. The mother now 

appeals. We affirm.

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

and Remanded

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

C.J., and ANDY D. BENNETT, J., joined.

Thomas Weakley, Dyersburg, Tennessee, for the appellant, Heather A.

Herbert H. Slatery, III, Attorney General and Reporter, and Carrie Perras, Assistant 

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

OPINION

BACKGROUND AND PROCEDURAL HISTORY

The Dependency and Neglect Proceedings

Heather A. (“Mother”) and Justin H.1(“Father”) are the parents2 of two minor 

 

1 The petition at issue also sought to terminate Father’s rights, which were ultimately terminated 

by the trial court. However, Father did not appeal the termination. Accordingly, we address Father in this 

appeal only insofar as the pertinent facts of the matter require. 

2 According to the trial court’s final order terminating Mother’s parental rights, no father was listed 

on the birth certificate for Kylie, although the record on appeal reflects that Father, in fact, was listed on 

07/15/2022
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children: Kylie H. (born in May 2015) and Kaylee H. (born in September 2016) 

(collectively “Children”). According to a petition for dependency and neglect filed by the 

Department of Children’s Services (“DCS”) on April 3, 2019, DCS received a referral on 

January 2, 2019 regarding the Children, alleging environmental neglect. At the time of this 

referral, Mother was incarcerated for violation of her probation as a result of testing 

positive for methamphetamine. This probation was the result of a previous conviction for 

aggravated assault. Father was also incarcerated at the time for violation of his probation, 

a registration violation, unlawful drug paraphernalia, possession of schedule II drugs, 

unlawful possession of a firearm, evading arrest, and theft of property. Through its 

investigation, DCS learned that the Children were residing with Lee H. (“Grandfather”) 

and his girlfriend, Shauna H. According to DCS, the home did not have utilities and only 

had “minimal food.” Further, on January 2, 2019, Grandfather completed a urine drug 

screen and tested positive for THC. On January 3, 2019, Shauna H. completed a urine drug 

screen and tested positive for methamphetamine, amphetamine, and THC. On January 16, 

2019, Grandfather and Shauna H. agreed to work with DCS and submit to random drug 

screens and make sure that the utilities were turned on. On February 14, 2019, Shauna H. 

completed another drug screen and again tested positive for methamphetamine, 

amphetamine, and THC, while also testing positive for hydrocodone. According to DCS, 

it attempted to contact the family via phone on February 27, 2019, but received no response. 

On March 5, 2019, March 22, 2019, and March 26, 2019, DCS attempted to perform a 

home visit and spoke with Shauna H. on each occasion, as Grandfather was not at the home. 

DCS asked Shauna H. to have Grandfather call, but DCS never received a phone call. DCS 

again attempted to perform a home visit on the first two days of April, but neither 

Grandfather nor Shauna H. were at the home. In the subsequently-filed dependency and 

neglect petition, DCS requested that temporary legal custody be transferred to it in light of 

the foregoing facts. 

On April 3, 2019, the same day DCS filed its dependency and neglect petition, the 

Children were removed from the physical custody of Grandfather via a protective custody 

order entered in the Juvenile Court of Dyer County. According to a sworn custodian 

affidavit and a hair follicle drug screen, the Children tested positive for methamphetamine 

at the time of their removal. Upon their removal, the Children were placed in a foster home 

where they have remained. In an order entered on October 14, 2019, Mother and Father 

stipulated that there was “clear and convincing evidence that [the Children] were dependent 

and neglected at the time of the removal due to the incarceration of both parents and due 

to the illegal drug use of the custodians the [C]hildren were residing with at that time.” 

Mother’s Pertinent Criminal History and Drug Issues

Previously, Mother incurred charges because one of her minor children, not at issue 

in these proceedings, tested positive for methamphetamine. Although Mother was initially 

 

Kaylee’s birth certificate. Mother identified Father as Kylie’s father at trial. 
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charged with aggravated child neglect on a child eight years old or younger, Mother pled 

to a reduced charge of aggravated assault. Mother admitted that, at the time, she had a drug 

problem and was using methamphetamine and marijuana. She was placed on probation, 

but after violating her probation, she was continuously incarcerated from October 20, 2018, 

prior to the filing of DCS’ dependency and neglect petition, until her release on November 

3, 2020. 

Mother admitted that in 2017 she had completed a drug and alcohol program and 

was subsequently placed in a halfway house from March 2017 until October 2017. 

However, according to Mother, despite her completion of the drug and alcohol program, 

her last use of methamphetamine and marijuana was in August 2018, approximately one 

year after completing the program. 

The Permanency Plans 

There were two separate permanency plans developed during the dependency and 

neglect matter. The first permanency plan was created on May 8, 2019. According to the 

trial court, Mother participated in the permanency plan’s development. Pursuant to this 

first plan, Mother was responsible for completing an alcohol and drug assessment and 

following all recommendations, completing a mental health intake assessment and 

following all recommendations, submitting to and passing random drug screens, 

maintaining regular visitation with the Children, complying with her sentence requirements 

and not receiving additional charges, demonstrating during visitation appropriate 

supervision and the ability to parent the Children in an age-appropriate manner, and 

notifying DCS of any changes in contact information. During the pendency of this first 

plan, Mother did not complete an alcohol and drug assessment or a mental health 

assessment or submit to drug screens. However, Mother did maintain regular phone calls 

with the Children but, due to her incarceration, was unable to have in-person visitation. A 

second permanency plan was developed on April 28, 2020. Mother again participated in 

this plan’s development. Her responsibilities remained largely the same in this plan except 

that she was also required to “participate in services or courses offered at her prison 

facility.” 

Termination Proceedings

On June 15, 2020, DCS filed a petition to terminate Mother’s parental rights. In its 

petition, DCS set forth several grounds for termination of Mother’s parental rights pursuant 

to Tennessee Code Annotated section 36-1-113(g). Among other grounds for termination, 

DCS alleged that there had been abandonment by an incarcerated parent as well as 

“substantial noncompliance” with the permanency plans discussed above. DCS further 

contended that there were grounds for termination as a result of a prior conviction for child 

abuse as well as a failure to manifest an ability and willingness to care for the Children. 
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A trial was held on the petition on April 16, 2021. In an amended order dated June 

14, 2021, the trial court made numerous findings concerning the grounds alleged by DCS 

against Mother.3 As to the ground of abandonment by an incarcerated parent, the trial court 

found that there was “clear and convincing evidence that Mother abandoned the [C]hildren 

by being in jail part of all of the four months” prior to the filing of the termination petition 

and that Mother had “engaged in conduct that exhibits a wanton disregard for the 

[C]hildren’s welfare by abusing drugs and engaging in criminal behavior.” As to the 

ground of substantial noncompliance with the permanency plans, the trial court found that 

there was clear and convincing evidence that Mother was indeed in substantial 

noncompliance with the plans. Specifically, the trial court noted in its order Mother’s 

failure to comply with the majority of her responsibilities listed in the plans. As to the 

ground for a sentence of child abuse, the trial court determined that DCS had failed to 

establish by clear and convincing evidence that Mother was sentenced to two or more years 

of imprisonment for actions constituting severe child abuse pursuant to Tennessee Code 

Annotated section 36-1-113(g)(5). 4It also found that there was clear and convincing

evidence that Mother failed to manifest an ability and willingness to care for the Children 

and that placing them in her custody “would pose a substantial harm to the [C]hildren.” 

After determining that there existed grounds for termination of Mother’s parental rights, 

the trial court also found that it was in the Children’s best interest for Mother’s rights to be 

terminated. Specifically, in conjunction with the factors set forth in Tennessee Code 

Annotated section 36-1-113(i), the trial court noted that Mother had not made any lasting 

adjustment of circumstances that would make it safe for the Children to be in her home and 

that, despite DCS’ best efforts, it was apparent that a lasting adjustment would not 

“reasonably appear possible.” Moreover, the trial court acknowledged that Mother was 

involved in criminal activity concerning drugs, which raised “significant concerns about 

[her] physical environment,” and the court further observed that Mother had, at the time, 

only recently been released from prison. Finally, the trial court also found that a change in 

caretakers and physical environment would be detrimental to the Children’s emotional and 

psychological condition, as they had been residing in the same foster home for over two 

years and had bonded with the foster family and had a “questionable” relationship with 

Mother. This appeal followed. 

ISSUES PRESENTED 

Mother raises two issues on appeal for our review, restated as follows: 

 

3 The original order was entered on May 13, 2021. However, due to a “clerical mistake,” there was 

a paragraph containing the names of parties who were not part of the proceedings. Accordingly, an

amended order was entered to rectify that mistake. 

4

 In their brief on appeal, DCS raises an issue that the trial court erred when it declined to terminate 

Mother’s parental rights pursuant to Tennessee Code Annotated section 36-1-113(g)(5). However, in light 

of the manner of our disposition contained herein, we pretermit this issue. 
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1. Whether there exists clear and convincing evidence that there are grounds for 

termination of Mother’s parental rights; and

2. Whether there exists clear and convincing evidence that termination of 

Mother’s parental rights is in the Children’s best interests. 

STANDARD OF REVIEW 

“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.” In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 

2016) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000); In re Angela E., 303 S.W.3d 240, 

250 (Tenn. 2010)). Although this right is considered to be both fundamental and 

constitutionally protected, it is not absolute. In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. 

App. 2007). This right “continues without interruption only as long as a parent has not 

relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination.” 

In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). “[T]he state as parens patriae 

has a special duty to protect minors,” Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993) 

(quoting Matter of Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)), and “Tennessee 

law . . . thus . . . upholds the state’s authority as parens patriae when interference with 

parenting is necessary to prevent serious harm to a child.” Id. 

Under Tennessee law there exist “[w]ell-defined circumstances . . . under which a 

parent’s rights may be terminated.” In re Roger T., No. W2014-02184-COA-R3-PT, 2015 

WL 1897696, at *6 (Tenn. Ct. App. Apr. 27, 2015). These circumstances are statutorily 

defined. Id. (citing In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005)). “To 

terminate parental rights, a court must determine that clear and convincing evidence proves 

not only that statutory grounds exist but also that termination is in the child’s best interest.” 

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). 

“‘Clear and convincing evidence’ is ‘evidence in which there is no serious or substantial 

doubt about the correctness of the conclusions drawn from the evidence.’” Id. (quoting 

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). This heightened 

burden of proof “minimizes the risk of erroneous decisions.” In re M.L.P., 228 S.W.3d 

139, 143 (Tenn. Ct. App. 2007). 

Due to this heightened burden of proof, we must adapt our customary standard of 

review: 

First, we must review the trial court’s specific findings of fact de novo 

in accordance with Tenn. R. App. P. 13(d). Thus, each of the trial court’s 

specific factual findings will be presumed to be correct unless the evidence 

preponderates otherwise. Second, we must determine whether the facts, 

either as found by the trial court or as supported by the preponderance of the 

evidence, clearly and convincingly establish the elements required to 
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terminate a biological parent’s parental rights. 

In re Audrey S., 182 S.W.3d at 861. 

DISCUSSION

Abandonment By an Incarcerated Parent

Mother’s first issue on appeal is whether the trial court erred in finding by clear and 

convincing evidence that she had committed abandonment by an incarcerated parent. 

Abandonment by an incarcerated parent is expressly defined by Tennessee Code Annotated 

section 36-1-102(1)(A)(iv) and is established when: 

A parent or guardian is incarcerated at the time of the filing of a proceeding, 

pleading, petition, or amended petition to terminate the parental rights of the 

parent or guardian of the child who is the subject of the petition for 

termination of parental rights or adoption, or a parent or guardian has been 

incarcerated during all or part of the four (4) consecutive months 

immediately preceding the filing of the action and has: 

(a) Failed to visit, has failed to support, or has failed to make reasonable 

payments toward the support of the child for four (4) consecutive months 

immediately preceding the parent’s or guardian’s incarceration; 

(b) Failed to visit, has failed to support, or has failed to make reasonable 

payments toward the support of the child during an aggregation of the first 

one hundred twenty (120) days of non-incarceration immediately preceding 

the filing of the action; or 

(c) Has engaged in conduct prior to incarceration that exhibits a wanton 

disregard for the welfare of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (emphasis added).5 

As this Court has previously noted, this ground for termination is not applicable 

solely on the basis that a parent is incarcerated. In re Audrey S., 182 S.W.3d at 866. Rather, 

“[a]n incarcerated or recently incarcerated parent can be found guilty of abandonment only 

if the court finds, by clear and convincing evidence, that the parent’s pre-incarceration 

conduct displayed a wanton disregard for the welfare of the child.” Id. Indeed, 

incarceration “serves only as a triggering mechanism that allows the court to take a closer 

look at the child’s situation to determine whether the parental behavior that resulted in 

 

5 Based on our review of the trial court’s order, it found Mother had committed abandonment via 

incarceration and engaged in conduct prior to incarceration that exhibited a wanton disregard for the 

Children. Accordingly, our analysis of the trial court’s findings is limited to the portions of section 36-1-

102(1)(A)(iv)(c) concerning wanton disregard. 
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incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a 

risk of substantial harm to the welfare of the child.” Id. This Court has held in prior cases 

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 welfare of the 

child.” Id. at 867-68. In determining whether certain conduct rises to the level of wanton 

disregard, we have previously explained that “‘a parent’s criminal behavior does not 

automatically constitute wanton disregard for the welfare of a child,’ but such behavior 

may ‘constitute such a wanton disregard under the appropriate circumstances.’” In re 

Jonathan M., 591 S.W.3d 546, 555 (Tenn. Ct. App. 2019) (quoting In re Kierra B., No. 

E2012-02539-COA-R3-PT, 2014 WL 118504, at *8 (Tenn. Ct. App. Jan. 14, 2014)). 

“When considering whether a parent’s criminal conduct constitutes wanton disregard, we 

consider ‘the severity and frequency of the criminal acts.’” Id. (quoting In re Kierra B., 

2014 WL 118504, at *8). 

Turning to the present matter, in its order terminating Mother’s parental rights, the 

trial court determined as follows: 

There is clear and convincing evidence that Mother abandoned the [C]hildren

by being in jail part of all of the four months just before the Petition to 

Terminate Parental Rights was filed and that she has engaged in conduct that 

exhibits a wanton disregard for the [C]hildren’s welfare by abusing drugs 

and engaging in criminal behavior.

In her brief, Mother maintains “that the record does not reflect that there was evidence of 

abandonment regarding those four months before she went into custody of October of 

2018” and that “[t]here is no evidence that during the four months preceding when 

[Mother] began that incarceration . . . [she] engaged in conduct that exhibit[ed] a wanton 

disregard for the welfare of the [C]hildren.” Respectfully, we find this argument to 

misinterpret the requirements under the statute. Despite Mother’s insistence that there was 

no evidence presented as to wanton disregard in the four months preceding her 

incarceration, this Court has previously held that “parental conduct exhibiting wanton 

disregard for a child’s welfare may occur at any time prior to incarceration and is not 

limited to acts occurring during the four-month period immediately preceding the parent’s 

incarceration.” State, Dep’t of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. 

App. 2009) (emphasis added) (citing In re Jeremiah T., No. E2008-02099-COA-R3-PT, 

2009 WL 1162860, *8 (Tenn. Ct. App. Apr. 30, 2009)). 

Based upon our review of the record and the trial court’s order, we find that there 

was indeed clear and convincing evidence to support a finding of wanton disregard in 

connection with the ground of abandonment by an incarcerated parent. In support of this, 

we first note that Mother was continuously incarcerated when the petition to terminate her 

rights was filed and during the preceding four-month period. Moreover, as the trial court 
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noted, Mother has an extensive history of drug use that ultimately led to her being 

incarcerated at the time of the filing of the petition. As we have previously noted, this 

incarceration was the result of a probation violation after Mother tested positive for 

methamphetamine. In fact, it was this incarceration that ultimately led to the Children 

being placed with Grandfather and further exposed to drug abuse and unsafe living 

conditions. Of particular concern is the fact that Mother unilaterally chose to partake in 

drug use, knowing that such action would be a violation of her probation and would result 

in the Children being removed from her custody and thereby potentially risk their physical 

and psychological wellbeing. As we noted previously, this Court has repeatedly 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 welfare of a child.” In re Audrey 

S., 182 S.W.3d at 867-68. Here, Mother’s conduct clearly exhibited a wanton disregard 

for the Children’s welfare. She chose to partake in illegal substance abuse, violating her 

probation, which ultimately led to the Children being placed into another harmful and 

dangerous environment. In light of the foregoing, we conclude that there is indeed clear 

and convincing evidence to support a finding of wanton disregard. Accordingly, we affirm 

the trial court’s finding of abandonment by incarceration in this regard. 

Substantial Noncompliance with the Permanency Plan

Mother also maintains that the trial court’s finding of her being in substantial 

noncompliance with the permanency plan was in error. Tennessee Code Annotated section 

36-1-113(g)(2) provides that termination of a party’s parental rights may be predicated 

upon a “substantial noncompliance by the parent or guardian with the statement of 

responsibilities in a permanency plan[.]” Tenn. Code Ann. § 36-1-113(g)(2). The mere 

“fact that a parent is noncompliant with a permanency plan is not sufficient to terminate 

parental rights.” In re Skylar P., No. E2016-02023-COA-R3-PT, 2017 WL 2684608, at *6 

(Tenn. Ct. App. June 21, 2017) (citing In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002)). 

Rather, there must be a finding that a parent’s noncompliance with a permanency plan is 

substantial. Id. (citing In re Valentine, 79 S.W.3d at 548). Whether there has been 

substantial noncompliance with a permanency plan is a question of law which we review 

de novo with no presumption of correctness. In re Valentine, 79 S.W.3d at 548. Although 

substantial noncompliance is not statutorily defined, our Supreme Court has previously 

stated that “[i]n the context of the requirements of a permanency plan, the real worth and 

importance of noncompliance should be measured by both the degree of noncompliance 

and the weight assigned to that requirement [and] [t]erms which are not reasonable and 

related are irrelevant, and substantial noncompliance with such terms is irrelevant.” Id. 

Accordingly, “[t]rivial, 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 643, 656 (Tenn. Ct. App. 2004) (citing In re Valentine, 79 S.W.3d at 548; 

Dep’t of Children’s Servs. v. C.L., No. M2001-0279-COA-R3-JV, 2003 WL 22037399, at 

*18 (Tenn. Ct. App. Aug. 29, 2003)). 
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Here, we agree with the trial court that there existed clear and convincing evidence 

to support this ground for termination. The first permanency plan was dated May 8, 2019 

and required the following of Mother: 

1. Complete a mental health intake and follow all recommendations;

2. Sign releases of information such that DCS can “monitor, track, and 

adjust” all services provided to Mother; 

3. Submit to random drug screens and test negative;

4. Submit to an alcohol and drug assessment and follow all 

recommendations; 

5. Inform DCS if her contact or address changes within 24 hours of the 

changes occurring; 

6. Comply with her sentence requirements and not accrue additional 

charges; and 

7. Have “quality supervised visitation for at least 2 visits per month lasting 

at least 2 hours each.” 

According to the trial court’s order terminating Mother’s parental rights, “[w]ith the 

exception of Mother participating in telephone calls with the [C]hildren and complying 

with the sentence requirements, Mother . . . completed none of the tasks during the time 

this plan was in effect.”6 Specifically, the trial court noted that Mother did not complete 

an alcohol and drug assessment or a mental health assessment. The second permanency 

plan was dated April 28, 2020. Mother’s responsibilities under this second plan remained 

largely the same as the first, with the addition of requiring Mother to “participate in 

services/courses that are offered at the prison” and to maintain contact with DCS in order 

to facilitate “completion of action steps” in the permanency plan. As to this plan, the trial 

court again determined that Mother was in substantial noncompliance. Of note, a DCS 

case manager testified that, as to Mother’s requirements under this permanency plan, “[s]he 

was complying with sentencing at that time and random drug screens at the correctional 

facility.” Otherwise, according to the case manager, she was not in compliance.7

In reviewing both of the permanency plans in effect in this case, we can ascertain 

 

6

It appears that this particular permanency plan was in place until the subsequent permanency plan 

developed on April 28, 2020 went into effect. 

7 This same DCS case manager testified, and the trial court noted in its order, that, in response to a 

question as to whether Mother had completed a mental health intake, Mother had “been at Mending Hearts 

Halfway House completing their program,” and the case manager had received a certificate of completion 

for that program the day prior to the trial. However, in its order, the trial court noted that, although Mother’s 

incarceration may have arguably contributed to her lack of compliance, “incarceration alone is not a 

complete barrier to Mother for completing her responsibilities,” as the DCS case manager had testified that 

there were courses offered through Mother’s facility that she could have utilized to comply with the plan, 

but that she chose not to do so for over a year. 
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from Mother’s responsibilities that both plans were designed to focus on Mother’s drug 

abuse and mental health issues, as well as issues she had with her then-present 

incarceration. In separate orders ratifying each permanency plan, the trial court determined 

that the plans were reasonable with appropriate responsibilities assigned to Mother that 

were reasonably related to the goal of reunification. We agree with the trial court. Based 

on the history of this case, it is apparent that Mother’s extensive long-term drug abuse, 

ultimately resulting in incarceration, was largely what led to the dependency and neglect 

petition and then later the termination proceeding against her. Based on the record, Mother 

failed to complete a drug and alcohol assessment and follow the recommendations. 

Moreover, according to trial testimony, Mother’s submission of a completed mental health 

intake was not received until trial, long after the permanency plans were put into place. 

Although we would be remiss not to acknowledge that Mother did in fact comply 

with portions of the permanency plans, we find her failure to complete the alcohol and drug 

assessment to be highly significant considering her extensive history of drug abuse. The 

record on appeal makes it clear that Mother’s history of drug abuse is largely the main 

contributing factor that ultimately led to her incarceration prior to the termination 

proceedings. Indeed, Mother’s incarceration at the time the petition for termination was 

filed was also the result of her methamphetamine use due to a positive drug screen while 

on probation.

8

 

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

support a finding of Mother’s substantial noncompliance with the permanency plan, and 

we affirm the trial court in this regard.

Failure to Manifest an Ability and Willingness

Mother also contends that the trial court erred in finding that she had failed to 

manifest an ability and willingness to care for the Children. Tennessee Code Annotated 

section 36-1-113(g)(14) provides a ground for termination when: 

A 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[.]

In order for Mother’s parental rights to be terminated pursuant to this ground, DCS must 

show, by clear and convincing evidence, that Mother has failed to manifest an ability and 

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

 

8 As we noted previously, Mother was on probation as a result of a prior conviction for aggravated 

assault. 
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the Children. Id. DCS must then prove that placing the Children in Mother’s custody poses 

“a risk of substantial harm to the physical or psychological welfare of” the Children. Id. 

Section 36-1-113(g)(14) requires a parent to “manifest both an ability and willingness to

personally assume legal and physical custody or financial responsibility.” In re Neveah M., 

614 S.W.3d 659, 677 (Tenn. 2020) (emphasis added). Accordingly, if a party seeking the 

termination of parental rights establishes that a parent has “failed to manifest either ability 

or willingness, then the first prong of the statute is satisfied.” Id. (citing In re Amynn K., 

No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *13 (Tenn. Ct. App. June 20, 

2018)). 

In its order, the trial court found that this ground was supported by clear and 

convincing evidence. Specifically, it noted Mother’s residency at a halfway house which 

“would not be an appropriate home” for the Children. Despite the fact that Mother was 

apparently looking for another home, she had not taken sufficient action prior to trial, with 

the court noting that “[t]here simply has not been enough progress shown” by Mother. 

Moreover, the trial court noted its concerns regarding Mother’s stability, stating that 

“[M]other is still within a structured environment and has not shown that she will not 

resume previous habits and behaviors.” Aptly noted by the trial court, “[m]ere words are 

not enough to establish the ability and willingness of a parent to assume legal custody and 

financial responsibility for their children, and there is not enough progress and stability to 

show that Mother could do this at this time.” The trial court also found that Mother had 

not demonstrated that she was willing to assume a parental relationship with the Children 

as she had “failed to participate in any services over the entirety of the case until 

approximately the last 4 months” in addition to not having “established a safe and stable 

permanent home.” Accordingly, the court determined that Mother had failed to manifest 

an ability and willingness to assume physical and legal custody, as well as financial 

responsibility, of the Children. We take no issue with the trial court’s findings in this 

regard. Not only did Mother not have a suitable home in which the Children could reside 

with her, she had not yet demonstrated her ability to remain stable once outside of a 

controlled environment. Due to her extensive drug use history and previous violation of 

her probation, we find the trial court’s concern warranted. Although we acknowledge the 

strides Mother has made in obtaining employment and working to improve her situation, 

we cannot say that this is sufficient to render a showing that she has the ability and 

willingness to assume physical and legal custody, and financial responsibility, of the 

Children, as there was no indication of any concrete plans Mother had to care for the 

Children, who had been out of her custody for more than two years. Accordingly, we 

conclude that there was clear and convincing evidence to show that Mother had failed to 

manifest an ability and willingness to assume legal and physical custody, and financial 

responsibility, of the Children. 

As to the second prong, the trial court also found that placing the Children in 

Mother’s custody would pose a risk of substantial harm to the physical or psychological 

welfare of the Children. Specifically, it noted that “[t]he only parent the [C]hildren have 
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known for the last 2 years is their foster parent [and] [t]hey have bonded with their foster 

family.” Furthermore, the Children’s bond to Mother as a parent was also in question in 

the trial court below, with proffered testimony by the DCS case manager indicating fear in 

the Children when partaking in video chats with Mother. Ultimately, the case manager 

testified that she believed that there was no bond between the Children and Mother. In 

light of this, taken in conjunction with Mother’s previous actions that ultimately resulted 

in the Children being placed in the custody of relatives who were abusing 

methamphetamine, we conclude that placing the Children in Mother’s custody would pose 

a risk of substantial harm to the Children’s physical and psychological welfare and that, as 

found by the trial court, “[r]emoving the [C]hildren from a stable, drug free home to a near 

stranger poses a risk of substantial harm to the [C]hildren.”

Accordingly, as the trial court’s determination concerning section 36-1-113(g)(14) 

has been satisfied by clear and convincing evidence, we affirm the trial court’s termination 

of Mother’s parental rights on this ground. 

Best Interests of the Children

Once it is determined that a ground exists for terminating a party’s parental rights, 

the focus then shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 

877. Tennessee Code Annotated section 36-1-113(i) provides a non-exhaustive list of 

factors for the courts to consider whether termination is in the child’s best interest, as 

follows:9

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

circumstances, 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;

 

9Although not relevant to the issues posed by this particular appeal, we observe that Tennessee 

Code Annotated section 36-1-113(i) was recently amended by the General Assembly to incorporate 

additional factors to be considered as part of the best interest analysis under the statute. See 2021 Tenn. 

Pub. Acts, c. 190, §1. This amended version went into effect on April 22, 2021, well after the filing of the 

petition in this matter, which occurred on June 15, 2020. As such, we analyze the best interest factors as 

they existed at the time of the filing in this matter. See In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004) 

(“[S]tatutes are presumed to operate prospectively unless the legislature clearly indicates otherwise.”). 
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(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). 

The Supreme Court has previously elucidated: 

“The best interests analysis is separate from and subsequent to the 

determination that there is clear and convincing evidence of grounds for 

termination.”

When conducting the best interests analysis, courts must consider . . . 

[the] 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 proceedings is free to offer proof of any other factor 

relevant to the best interests analysis. Facts considered in the best interests 

analysis must be proved by “a preponderance of the evidence, not by clear 

and convincing evidence.” “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].” 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.” Indeed, “[a] 

focus on the perspective of the child is the common theme” evident in all 

statutory factors. “[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.” 
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In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017) (internal citations omitted). 

Making a determination as to a child’s best interest “does not call for a rote examination 

of each of Tenn. Code Ann. § 36-1-113(i)’s . . . factors and then a determination of whether 

the sum of the factors tips in favor of or against the parent.” In re Audrey S., 182 S.W.3d 

at 878. Rather, “[t]he relevancy and weight to be given each factor depends on the unique 

facts of each case.” Id. 

Here, after analyzing the above enumerated best interests factors, the trial court 

determined that it was in the Children’s best interests to terminate Mother’s parental rights. 

On appeal, it appears that Mother’s primary argument against the trial court’s best interests 

finding is that she maintained regular phone calls with the Children.10 As will be discussed 

in more detail below, however, we affirm the trial court’s determination as to the Children’s 

best interests. 

Mother’s argument concerning her phone calls with the Children fails to take into 

consideration the trial court’s findings regarding the other factors concerning best interests. 

Moreover, her argument fails to even take into proper account what the evidence 

demonstrated regarding the quality of Mother’s calls with the Children. Of particular 

importance to this latter point is testimony indicating that, during video calls with Mother, 

the Children tend to either flee or do not participate and do not appear to have a bond with 

Mother. 

Regarding the other factors and considerations in this case, we find that they also 

favor terminating Mother’s rights. The trial court was correct in that Mother has failed to 

make an adjustment of circumstances that would make it safe and in the Children’s best 

interests to be in her home. Mother was released from prison shortly before the trial and 

was living in a halfway house. She had not yet established a “safe and stable permanent 

home” for herself and the Children, and in light of her prior drug history, there are concerns 

as to Mother’s ability to remain stable once she is no longer in a controlled environment. 

See Tenn. Code Ann. § 36-1-113(i)(1). Moreover, the record shows that Mother has not 

made a lasting adjustment after reasonable efforts by social services agencies for such a 

duration of time that a lasting adjustment appears possible. Specifically, Mother only 

recently began working with services identified in the permanency plan, despite the fact 

that DCS made efforts to ensure that she could take classes while incarcerated. It appears 

that Mother only recently began to make any progress, despite services being offered for 

 

10 Mother also maintains that this case would be an appropriate application for the missing witness 

rule, which provides that “the failure of a party to call a witness gives rise to a permissible inference that 

the missing witness’ testimony would have been unfavorable to the party who failed to call the witness.” 

In re Estate of Price, 272 S.W.3d 113, 140 (Tenn. Ct. App. 2008) (quoting Gentry v. Gentry, No. E2000-

02714-COA-R3-CV, 2001 WL 839714, at *4 (Tenn. Ct. App. July 25, 2001)). However, Mother fails to 

indicate in the record wherein she requested such an inference to be drawn in the trial court. Accordingly, 

we decline to address this assertion on appeal. 
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two years. In light of the length of time in which services have been offered, we do not 

find a recent effort to be sufficient in evincing a lasting adjustment. See Tenn. Code Ann. 

§ 36-1-113(i)(2). The record also supports a finding of neglect on the part of Mother 

towards the Children. Specifically, Mother has admitted that she has a drug history which 

ultimately resulted in her incarceration and the placement of the Children in Grandfather’s 

custody where they later tested positive for methamphetamine. Furthermore, Mother’s 

previous criminal activity concerning drugs raises significant concerns about any potential 

physical environment the Children may be in while in her custody. Again, as we noted 

earlier, Mother failed to complete the alcohol and drug assessment required of her in the 

permanency plans. In light of this, there are valid concerns that circumstances exist which 

render Mother unable to properly care for the Children. See Tenn. Code Ann. § 36-1-

113(i)(7). Finally, we also find that the record supports the finding that a change in the 

caretakers and physical environment of the Children would be detrimental to their 

emotional and physical condition. See Tenn. Code Ann. § 36-1-113(i)(8). The Children 

have been in the same foster home since April 3, 2019. The foster family wishes to adopt 

the Children, and the record provides clear and convincing evidence that changing 

caretakers at this point would be detrimental to the Children due to their bond with the 

foster family. As such, we conclude that this factor weighs in support of terminating 

Mother’s parental rights. 

We, therefore, conclude that the facts here are clear and convincing such that 

termination is in the Children’s best interests and favor termination of Mother’s parental 

rights. Although we acknowledge Mother’s contention that she maintained regular 

visitation with the Children via telephone calls and video chats, we find no indication that 

the Children have a meaningful relationship with her. Moreover, the record clearly 

supports that the Children are in a safe and stable pre-adoptive home and have a bond with 

their foster family, and when considering this and all of the facts of this case, we therefore 

agree with the trial court’s finding that the termination of Mother’s parental rights is in the 

best interests of the Children. 

CONCLUSION

Based on the foregoing, we affirm the trial court’s order terminating Mother’s 

parental rights.

 s/ Arnold B. Goldin 

 ARNOLD B. GOLDIN, JUDGE