                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs January 16, 2015

                                   IN RE: JONATHAN F.

                    Appeal from the Juvenile Court for Sevier County
                          No. 13001830     Jeff Rader, Judge


              No. E2014-01181-COA-R3-PT-FILED-FEBRUARY 20, 2015


This is a termination of parental rights case. The court-appointed Guardian ad Litem (“the
Guardian”) for the minor child Jonathan F. (“the Child”)1 filed a petition in the Juvenile
Court for Sevier County (“the Juvenile Court”) seeking to terminate the parental rights of
Amy F. (“Mother”) and Uriah F. (“Father”) to the Child. The Department of Children’s
Services (“DCS”) filed a response joining in the Guardian’s petition. After a trial, the
Juvenile Court terminated Mother’s and Father’s parental rights on a host of grounds. We
vacate certain of the grounds as relates to Father. Otherwise, we affirm the termination of
Mother’s and Father’s parental rights to the Child. We affirm the judgment of the Juvenile
Court as modified.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which JOHN W. M CC LARTY
and T HOMAS R. F RIERSON, II, JJ., joined.

Timothy J. Gudmundson, Sevierville, Tennessee, for the appellant, Amy F.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Uriah F.

Herbert H. Slatery, III, Attorney General and Reporter, and, Ryan L. McGehee, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.

Robert L. Huddleston, Guardian ad Litem for Jonathan F.



       1
          Jonathan’s name is also spelled “Johnathan” in the record. In any event, we seek to protect
identities in parental termination cases, so the discrepancy is not at odds with that practice.
                                         OPINION

                                        Background

               The Child was born in March 2009. Mother and Father, the Child’s parents,
had an unusual living arrangement whereby Father’s girlfriend moved in with the family to
serve as the “babysitter.” Father and his girlfriend later had an altercation that resulted in
Father’s arrest. In February 2013, the Child was removed from Mother’s home due to drug
and alcohol issues in the home. Father had been incarcerated in January 2013, and, in April
of that year, was convicted of four counts of assault, aggravated assault, aggravated assault
with bodily harm, and child abuse and neglect. Carol Davis (“Davis”), a DCS family
services worker, was assigned to the Child’s case. DCS provided various services for the
parents over the course of the case. In February 2013, Mother was ordered to pay $50.00 per
month in child support. Permanency plans were developed for Mother and Father. In May
2013, the Child was adjudicated dependent and neglected. The Guardian filed a petition for
termination of parental rights as to Mother and Father in December 2013, a petition DCS
joined. Trial was held in May 2014.

               Davis testified that Mother, while compliant with some aspects of her
permanency plan, continued to struggle with substance abuse. Upon Mother’s most recent
arrest, Davis no longer believed that Mother could provide a safe and stable home. Davis
testified to Mother frequently having transportation and job conflicts with in-home services.
Regarding Mother’s employment, Mother worked at both Johnson’s Inn and Dunkin Donuts
from March 2013 through around June 2013. Sometime before June 2013, however, Mother
stopped working at Dunkin Donuts. Regarding Father, Davis interviewed him in jail and
learned that alcohol was a driver of his violent behaviors. According to Davis, the Child has
several special needs issues such as developmental delay. As of trial, the Child was in a
foster home where he is well-adjusted.

              Mother testified she had been arrested in March 2014 after marijuana and drug
paraphernalia were found at her home. In spite of the fact that green leafy substance, scales,
and other such articles were situated on a table in the living room, Mother claimed she was
unaware that these items were in her home. Mother was working at Johnson’s Inn and
paying $200 per week in rent. Mother also received food stamps. Mother had made only one
documented payment of $50 toward child support. She was required to pay $750 during the
relevant period. Regarding why she had not made all the child support payments as required,
Mother stated that her income simply was not enough to cover her expenses. Nevertheless,
Mother planned to make a $100 payment toward child support on the day of the hearing.
Mother acknowledged having relapsed on drugs, but believed that she would remedy the
problem if given more time.

                                             -2-
               Father, who had been treated for cancer while incarcerated, testified that he was
a changed man. Father was scheduled to be released from prison in 2018, but he believed
he would be released earlier for good behavior. Regarding his violent past, Father testified
that in one instance, he beat someone up who beat up his legless uncle. On the other offense,
Father testified that he never harmed the Child, but admitted that he shoved his girlfriend
while she was holding the Child. While incarcerated, Father had completed a number of
courses and attended Alcoholics Anonymous.

              In a June 2014 order, the Juvenile Court terminated the parental rights of
Mother and Father to the Child. The Juvenile Court made thorough and detailed findings of
fact and conclusions of law, which we quote from:

                                     GROUND I
               ABANDONMENT – BY INCARCERATED PARENT
                                  (as to the Father)
      T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), -102(1)(C) and -102(1)(E)

               This ground applies only to [Father]. It has been alleged that [Father]
       abandoned [the Child] because he willfully failed to visit the child or engaged
       in token visitation in the four (4) months preceding the filing of this Petition.
       However, the relevant time period would actually extend to prior to the
       custodial episode due to [Father] having spent the entirety of this case in the
       custody of either the Sevier County Sheriff or the Tennessee Department of
       Corrections. It was uncontroverted that [Father] has been incarcerated for all
       of the time during the four (4) months preceding this Petition, having been
       incarcerated throughout the entirety of [the Child’s] custodial episode and
       currently serving a sentence in the custody of the Tennessee Department of
       Corrections for violations of his prior probation and for the new charges he
       incurred. It was alleged that [Father] did not have meaningful contact with the
       minor child during all or part of the four (4) months immediately preceding the
       beginning of his latest sentence, which the Tennessee Department of
       Corrections indicates began on June 15, 2013. However, the evidence
       presented at trial indicates that [Father] spent the entirety of this case
       incarcerated, as he spent the time from January 8, 2013 through the imposition
       of his sentence on June 15, 2013 awaiting disposition of his criminal cases in
       the custody of the Sevier County Sheriff. Therefore, the relevant time period
       would be September 8, 2012 through January 8, 2013.

             Upon the testimony presented at trial and especially the argument of
       counsel for the Department, the trial court finds that [Father] abandoned his

                                              -3-
        child through failure to have meaningful visitation with [the Child] during the
        requisite time period referenced above. Instead of focusing on raising his son,
        [Father] instead chose to spend time with his young girlfriend, Nikki [D.], and
        engage in other criminal acts, including his admitted use of marijuana. Further
        proof of such is shown in that [Father] was also arrested during the requisite
        time period for an Aggravated Assault on a victim where the injuries included
        a subdural hematoma.2 Additionally, there was a stipulation during the
        dependency and neglect portion of the case that the home was bare of food and
        basic essentials. [Father] offers no credible proof that he was providing for the
        child in any other form besides what could be described as token support. The
        trial court finds that clear and convincing evidence demonstrates that [Father]
        abandoned his child through his behaviors for the four (4) months prior to his
        continued incarceration.

                                     GROUND II
                   ABANDONMENT – FAILURE TO SUPPORT
                                  (as to the Mother)
       T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(I), -102(1)(B) and -102(1)(D)

                It was alleged that [Mother] has abandoned [the Child] because she
        willfully has not supported the child or has made only token payments toward
        the children’s support in the four (4) months immediately preceding the filing
        of this Petition. By previous Order of this Court, dated June 14, 2013,
        [Mother] was ordered to pay $50.00 per month for the current support of the
        minor child. Testimony at trial, along with documentary evidence introduced
        as to her pay history through the Tennessee Department of Human Services,
        Child Support Enforcement Services, Non-Custodial Parent Payment
        Summary, showed that [Mother] had made one single payment of $50.00,
        credited on August 21, 2013. The requisite time period for the four (4) months
        prior to the filing of the Petition was from August 16, 2013 to December 16,
        2013. The one sole payment credited to [Mother] does fall within the requisite
        four (4) month period, albeit by a matter of days. With the time that it
        naturally takes for a money order to be purchased, sent to the Child Support
        Central Receiving Unit in Nashville, and eventually credited to the proper
        account, it is more than likely correct to state that the one payment that
        [Mother] made during the entirety of the case was actually placed into the mail
        prior to the four (4) month period, even if it was credited during that four (4)


        2
         According to the Affidavit of Complaint, this incident occurred on October 14, 2012, with [Father]
being arrested five (5) days later. The lapse of time was due to [Father] reportedly having fled the scene.

                                                   -4-
month period. Even if the trial court was to consider this one payment to be
in the four (4) month time period, it is token in nature as it applies to [Mother].

        [Mother] is able-bodied and capable of working and earning enough to
support herself as well as paying child support. Testimony at trial indicated
that she had worked at several different jobs during the custodial episode,
including one period of employment at Dunkin Donuts which, it appears,
ended on her own volition. There was no testimony that [Mother] has applied
for Social Security Disability due to any permanent physical or mental
affliction. Nor was there proof presented to lead to the conclusion that
[Mother] was in jail or incapacitated for any substantial period of time in the
four (4) months before this Petition was filed. Indeed, [Mother’s] own
testimony leads to the conclusion that she was working – one job or two jobs,
depending on that date – but not paying support. [Mother] did not pay any
substantial support for the minor child in the four (4) months prior to the filing
of the Petition. This claim has been substantiated through testimony and
documentary proof. Furthermore, both the Department and Guardian ad Litem
elicited testimony from [Mother] that indicated that [the Child] was not the
only active child support case in which she was failing to provide support.
Testimony was provided that showed that [Mother] knew how to make
payments, as she had a long history of making payments throughout the years
leading up to 2010, but had failed to make a payment in that other case in
nearly two (2) years with one single payment having been made in 2012 and
none in 2011, 2013, or 2014. In addition, there was no testimony that
demonstrated any gifts or other things of value that would count as anything
more than token support. [Mother] willfully failed to provide support for the
care of [the Child] for the requisite four (4) month time period despite having
the ability to do so.

        When the parties were last before the court two (2) weeks ago, [Mother]
indicated that she had submitted another $50.00 payment the week prior as part
of a permanency hearing. As indicated by the Guardian ad Litem and the
Department, there is no proof of that payment having ever been made.
[Mother] provides no proof as to why there is no record of this payment, only
that the payment must have been sent to the wrong address. Given her
previous history with paying child support and the complete lack of proof as
to her reasoning why her sworn account of this payment was not true, the court
finds that only one payment has ever been made by [Mother].

                                       ***

                                        -5-
       [Mother] was able to provide regular support for the care of [the Child],
although she simply did not do so. Despite having reported employment
throughout the case, [Mother] failed to provide support in the amount that
would rise to anything but token support. [Mother] did not provide support
besides being on notice that failure to do so could result in the termination of
her parental rights. In addition, [Mother] admitted in her responses to the
Request for Admissions submitted by the Department that she had failed to pay
her child support as ordered. That being the case, the trial court finds by clear
and convincing evidence that [Mother] abandoned [the Child] by willfully
failing to support the minor child for the four (4) months immediately
preceding the filing of this Petition.

                       GROUND III
SUBSTANTIAL NONCOMPLIANCE WITH PERMANENCY PLAN
              (as to both Mother and Father)
         T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2)

       After [the Child] came into State’s custody on February 1, 2013, the
Department of Children’s Services created permanency plans for [Father] and
[Mother]. The permanency plan listed a number of requirements that the
Respondents needed to satisfy before the minor child could safely be returned
home. The initial plan gave the Respondents until August 1, 2013, to satisfy
those requirements, with a revised permanency plan extending the goal of
completing the requirements to beyond the time when the Petition to Terminate
Parental Rights was filed.

        The initial plan required [Mother] to complete the following tasks:
maintaining standard and regular visitation with the minor child; obtain and
maintain a safe, stable, and reliable home for the minor child to live in free of
abuse and neglect; complete an alcohol and drug assessment and follow all
recommendations; refrain from using illegal drugs; submit to random and
frequent drug screens; appropriately supervise the minor child and protect him
from known sex offenders; seek emotional support, education, and resource
information for domestic violence victimization; attend all court hearings;
follow all court orders, and not incur any new legal charges; obtain and
maintain reliable transportation, including taking steps to obtain a valid drivers
license, appropriate car seat for the minor child, and automobile insurance;
obtain and maintain a legal source of income; and complete a mental health
assessment and follow all recommendations after reporting her history honestly
to the examiner . . . .

                                       -6-
                                     ***

       Likewise, the initial permanency plan required [Father] to complete the
following tasks: complete an alcohol and drug assessment and follow all
recommendations; submit to random drug screens; follow all court orders,
including the no-contact order entered through his criminal prosecution; obtain
and maintain a legal source of income; obtain and maintain safe and stable
housing; obtain reliable transportation, including obtaining a valid drivers
license, appropriate car seat for the minor child, and automobile insurance;
properly supervise the minor child and protect him from known sex offenders;
resolve his legal charges and not incur new charges; complete a batterer’s
intervention program; submit to a mental health assessment and follow all
recommendations; and complete an anger management program . . . .

                                     ***

        Both [Mother] and [Father] have failed to substantially comply with the
responsibilities and requirements set out for them in the permanency plans.
The court finds that Department of Children’s Services and their service
providers have made attempts in order to assist [Mother] and [Father] with the
tasks on their plans; however, [Mother] and [Father] have not focused on
completing the tasks at hand and have not attempted to address the issues that
brought [the Child] into State’s custody within the bounds of the permanency
plans. When questioned about the parents’ level of compliance, FSW Carol
Davis indicated that [Mother] had shown some compliance with visitation at
times (although several court orders indicate that visitation has been sporadic
throughout the case, with one three (3) month period without visits recently),
completed two (2) alcohol and drug assessments but was noncompliant with
the recommendations thereof, and had communicated with Safe Space. All
other areas of the plan were action steps where [Mother] had been substantially
noncompliant. Likewise, FSW Carol Davis indicated that [Father] had
completed the alcohol and drug assessment in the Sevier County Jail that the
Department had paid for and was in the process of resolving the criminal
issues that he had incurred. However, [Father] was also noncompliant with all
other action steps of the permanency plans . . . .

                                     ***




                                      -7-
                        GROUND IV
ABANDONMENT FOR FAILURE TO PROVIDE A SUITABLE HOME
            (applies to both Mother and Father)
        T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii)

       The trial court finds that clear and convincing proof has shown that the
Sevier County Juvenile Court adjudicated the child as dependent and neglected
and placed him in the custody of the Department, pursuant to a Petition filed
by the Department in Juvenile Court, after he was removed from the physical
custody of [Mother] on February 1, 2013, [Father] having been incarcerated
a few weeks prior. The Sevier County Juvenile Court’s initial Protective
Custody Order approving the removal found that it was appropriate for
reasonable efforts to not be made by the Department of Children’s Services at
the time of the removal due to exigent circumstances. [Father] and [Mother]
provided no credible evidence that either has made any reasonable efforts
known to the Petitioner to provide a suitable home for [the Child]. At no time
has [Mother] maintained stable housing to the point where she informed the
Department and/or the Guardian ad Litem that she had obtained safe, stable
housing to the point of a home inspection was being requested, as per the
permanency plans. It is crucial in this analysis to point out that clear and
convincing proof was provided at trial that [Mother] was arrested on March
12, 2014 – a mere six (6) weeks prior to trial – on criminal drug charges,
including a felony charge of Possession of Schedule VI for Sell or Delivery.
The court does not feel that criminal activity involving the drug trade qualifies
as a suitable home. [Father] has been incarcerated through this custodial
episode and is expected to be in the custody of the Tennessee Department of
Corrections with a sentence expiration date of April 8, 2018. [Father]
mentioned an unknown home at an unknown address as rebuttal that he had
provided a suitable home for [the Child]. The court finds this to be
unsubstantiated and illusory.

                                      ***

                                 GROUND V
                       PERSISTENT CONDITIONS
                    (applies to both Mother and Father)
                           T.C.A. § 36-1-113(g)(3)

      There are three primary elements that must be shown by clear and
convincing evidence in order to find that persistent conditions exist,

                                       -8-
  constituting a ground for termination of parental rights. One aspect of this
  ground is that the child must be removed from the home of the parent or
  guardian against whom termination of parental rights is sought. In Re: B.P.C.,
  No. M2006-02084-COA-R3-PT (Tenn. Ct. App. April 18, 2007). That applies
  here, as testimony at trial showed that [the Child] was removed from the home
  of [Mother], [Father], and [Father’s] girlfriend (prior to her becoming a victim
  – like [the Child] – of [Father’s] aggravated assaults and child abuse). With
  regards to persistence, the trial court must endeavor to apply the proof as
  received at trial to indicate whether or not the conditions that led to the minor
  child coming into custody have been remedied or will be remedied in the near
  future. See In Re: the Adoption of S.T.D., No. E2007-01240-COA-R3-PT
  (Tenn. Ct. App. Oct. 30, 2007). For [Mother], the evidence was clear and
  convincing that she had not effectively dealt with her dependency on drugs and
  alcohol, as evidenced by her failed drug screens, including a hair follicle in
  November of 2013, or with the issues of domestic violence in her life. For
  [Father], the evidence was clear and convincing that he has not dealt with the
  anger management issues, domestic violence issues, and alcohol and drug
  issues that contributed to the removal of [the Child] from the home. Finally,
  the continuation of the parental relationship must be found to greatly diminish
  the chances for the child being in a safe, stable, and permanent home. Due to
  the failure to deal with the issues enumerated above and the lack of a safe,
  stable, and permanent home, the trial court finds that such a condition exists
  here.

                                        ***

                        GROUND VI
CHILD ABUSE CONVICTION WITH SENTENCE GREATER THAN TWO
                           YEARS
                    (applies to the Father)
                   T.C.A. §§ 36-1-113(g)(5)

         Of all of the grounds alleged against [Father] in this case, this is the
  most clear. Under T.C.A. § 36-1-113(g)(5), a ground for termination is
  established when that “parent or guardian has been sentenced to more than two
  (2) years’ imprisonment for conduct against the child who is the subject of the
  petition, or for conduct against any sibling or half-sibling of the child or any
  other child residing temporarily or permanently in the home of such parent .
  . .” The ground does not require that the parent be incarcerated for the entirety
  or even a portion of the sentence, although [Father] is obviously incarcerated

                                         -9-
        for his conviction where [the Child] is listed as the victim as he had to be
        transported from a prison in Davidson County for his participation in this trial
        ....

               One of the several certified copies of judgments offered into evidence
        shows that [Father] entered into a sentence on Case Number . . ., Count 3, on
        April 30, 2013, having been convicted of Child Abuse and Neglect with the
        minor child being listed as the victim. The judgment indicates that The
        Honorable Richard Vance found [Father] guilty of Child Abuse and Neglect,
        a Class D felony, with a four (4) year sentence to serve in the custody of the
        Tennessee Department of Corrections, with [Father] being considered as a
        Range I (Standard) offender as part of the plea negotiations and with the
        sentence in this case to run concurrent with [Father’s] sentence in Case . . . and
        consecutive to his violations of probation in Case Number . . . and Case . . . .
        Through the policy of the Sevier County Circuit Court, minors are not
        referenced by name on judgments, so “JF” is referenced as the victim on the
        judgment, both in the “Victim Name” and “Special Conditions” sections.
        Testimony solicited at trial, which was uncontroverted, showed that [Father’s]
        sentence is set to expire on April 8, 2018. The minor child was under eight (8)
        years of age at the time of the entrance of sentence. There does not seem to be
        any dispute as to the proof as stated above.

                There does not appear to be a justifiable defense that can effectively
        combat the statute at issue once the above analysis of the proof has occurred.
        For instance, in In the Matter of K.G., No. W2003-00809-COA-R3-PT, it was
        unsuccessfully argued that the Mother in that case did not have notice by her
        criminal defense attorney that her plea of guilty to criminal child abuse charges
        could result in the termination of her parental rights. The Court of Appeals
        found this argument to be unpersuasive. Likewise, in this case, [Father] argues
        that he did not abuse [the Child] despite the certified copy of the judgment of
        conviction that states otherwise.3

                                                     ***



        3
          There is an undisputed pattern of failure to take responsibility for his actions throughout [Father’s]
testimony. According to [Father], all of his convictions were miscarriages of justice, where victims either
had to be assaulted because they had it coming or he had to plea guilty in order to avoid more serious charges
or a longer, more onerous sentence. He seems to have an excuse for everything. For this reason, the
credibility of his testimony has been effectively questioned.

                                                     -10-
                                  GROUND VII
                             WANTON DISREGARD
                              (applies to the Father)
                            T.C.A §§ 36-1-102(1)(A)(iv)

                                          ***

       As with the Father in In Re: Kierra B., No. E2012-02539-COA-R3-PT
(Tenn. Ct. App. Jan. 14, 2014), [Father] has been incarcerated for the entirety
of the four (4) months preceding the filing of the Petition to Terminate
Parental Rights. However, the Father in Kierra B. merely was serving a
sentence for Sell and/or Delivery in a School Zone; [Father] had been
convicted of multiple felony and misdemeanor assaults – violent offenses – as
well as a felony conviction for abusing the minor child at issue in this case.

        “Under this ground, the (trial) court looks at any pre-incarceration
behavior that could constitute a wanton disregard for the child.” 4 [Father’s]
testimony at trial included references to behaviors that preceded his
incarceration where he was exposing this child to sex offenders, moving his
girlfriend into the marital residence, exposing his child to substance abuse and
domestic abuse, and a conviction out of Alabama that landed him on the Sex
Offender Registry. [Father] also testified to a lengthy history of drug and
alcohol abuse. There is clear and convincing proof of serious criminal
behavior by [Father] that was detrimental to the welfare of this child. While
[Father] provided testimony on one hand that paints a delightful picture of a
family unit performing songs together, his more glaring testimony is that of his
decision to move his girlfriend into the marital home with the minor child, a
domestic arrangement that was only interrupted when [Father] was arrested for
stabbing his girlfriend in the arm and neck during a fight. It is noted again that
this was not one single lapse of judgment by [Father]; this is a repeated pattern
of behavior over the period of several occasions that encompassed the entirety
of [the Child’s] life prior to [Father’s] incarceration, and this repetition served
only to increase the jeopardy to [the Child’s] welfare.

        While [Father’s] past includes felony convictions of Aggravated
Assault and Aggravated Child Abuse in which the child who is the subject of
this action was the victim, these are not the only marks against him with regard
to the welfare of this child. [Father’s] past clearly demonstrates a willful and

4
    Dawn Coppock, “Coppock on Tennessee Adoption Law.” (Sixth Ed., 2011), p. 75.

                                          -11-
wanton disregard for the welfare and safety of the minor child, all of which
follows a pattern of criminality, substance abuse, physical altercations, sexual
assaults, and willful poor choices . . . This ground for termination of [Father’s]
parental rights has been proven by clear and convincing evidence.

                             BEST INTERESTS
                             T.C.A § 36-1-113(i)

                                       ***

It is in the minor child’s best interests for termination to be granted, because
[Father] and [Mother] have not made changes in their individual or
collaborative conduct or circumstances that would make it safe for the minor
child to go home. [Mother] has continued to have problems with stability and
in demonstrating a dedication to sobriety due to her continued use of illegal
drugs, unprescribed drugs, criminal activity and abuse of alcohol. [Mother] has
failed to make an adjustment of circumstances, conduct, and conditions that
would make it safe to return the minor child to her. Furthermore, her inability
to remain truthful with members of the Department of Children’s Services, the
Guardian ad Litem, or this court is an additional obstacle that has not been
overcome. Sadly, [Mother] has made no lasting adjustment despite the
attempts of many to help her. [Father] remains incarcerated and will continue
to remain in the custody of the Tennessee Department of Corrections for the
foreseeable future. Neither [Father] or [Mother] have provided proof of any
substantial progress that they have made towards remedying the issues that led
to [the Child] coming into the custody of the Department.

It is in the minor child’s best interests for termination to be granted, because
[Mother] and [Father] have not made lasting changes in either their lifestyle
or conduct after reasonable efforts by the State to assist them, so that lasting
change does not appear possible at this point.

It is in the minor child’s best interests for termination to be granted, because
[Father] has failed to maintain regular, positive, appropriate visitation with the
minor child. In fact, it is accurate to state that [Father] has a negative
relationship with the minor child through the physical abuse that led to his
most recent incarceration. His testimony of his relationship with [the Child]
rings hollow. Therapist Rose Gainey indicated that [the Child] only mentioned
his father once, and that was in relationship to the police arresting him.



                                       -12-
Crystal [H.], the foster mother for [the Child], said that [the Child] has never
referred to his biological father.

It is in the minor child’s best interests for termination to be granted, because
neither [Mother] nor [Father] has paid reasonable child support other than
token support. In addition, neither [Mother] or [Father] has demonstrated the
ability to provide for this child that would lead a reasonable observer to
conclude that either biological parent would be able to provide for this child
over an extended period of time.

It is in the child’s best interests for termination to be granted because neither
[Mother] nor [Father] has taken the appropriate steps to deal with their
respective drug, anger, and domestic abuse problems, and their continued
involvement there would make it unsafe to return the minor child to either of
them in the near future.

It is in the minor child’s best interests for termination to be granted, because
the physical environment of [Mother] cannot be vouched for, as she has not
been able to provide a suitable home for the nearly fifteen (15) months that the
minor child has been in the custody of the Department. It is noted that
[Mother] was arrested at her residence for felony drug charges just over six (6)
weeks prior to this termination trial. Due to his incarceration, [Father] has not
been able to show if he has a home or if it is either healthy or safe.

Despite his claims to the contrary, the court finds that [Father] has a negative
relationship with [the Child], having been a victim of abuse at the hands of
[Father] as evidenced by his felony conviction for Child Abuse and Neglect,
and a change of [the Child’s] environment would have a deleterious effect on
his well-being.

        Taking all of the enumerated factors into consideration, as well as the
totality of the circumstances, the lack of credibility of [Mother] in her
testimony, the court’s familiarity with this case, the proof provided and the
argument of counsel, the court finds that termination of [Mother’s] parental
rights is in the best interest of [the Child].

        Taking all of the enumerated factors into consideration, as well as the
totality of the circumstances, the lack of credibility of [Father] in his
testimony, the court’s familiarity with this case, the proof provided and the



                                      -13-
       argument of counsel, the court finds that termination of [Father’s] parental
       rights is in the best interest of [the Child.]

             This best interests determination is found by clear and convincing
       evidence.

(Footnotes in original but renumbered, footnote excluded, format modified). Mother and
Father timely appealed the judgment of the Juvenile Court terminating their parental rights
to the Child.

                                         Discussion

               Although not stated exactly as such, Mother raises the following issues on
appeal: 1) whether the Juvenile Court erred in finding that Mother abandoned the Child by
willful failure to provide support; 2) whether the Juvenile Court erred in finding that Mother
had failed to substantially fulfill the requirements of her permanency plan; 3) whether the
Juvenile Court erred in finding that Mother failed to provide a suitable home for the Child;
4) whether the Juvenile Court erred in finding that Mother demonstrated persistent
conditions; and, 5) whether the Juvenile Court erred in finding that termination of Mother’s
parental rights was in the Child’s best interest. Although not stated exactly as such, Father
raises the following issues on appeal: 1) whether the Juvenile Court erred in finding that
Father abandoned the Child by willful failure to visit; 2) whether the Juvenile Court erred in
finding that Father abandoned the Child by willful failure to provide support; 3) whether the
Juvenile Court erred in finding that Father failed to substantially fulfill the requirements of
his permanency plan; 4) whether the Juvenile Court erred in finding that Father failed to
provide a suitable home; 5) whether the Juvenile Court erred in finding that Father
demonstrated persistent conditions; 6) whether the Juvenile Court erred in finding that Father
had been sentenced to more than two years of imprisonment for conduct against the Child;
7) whether the Juvenile Court erred in finding that Father engaged in conduct exhibiting
wanton disregard for the welfare of the Child; and, 8) whether the Juvenile Court erred in
finding that it is in the Child’s best interest for Father’s parental rights to be terminated.

              Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

                      This Court must review findings of fact made by the trial
              court de novo upon the record “accompanied by a presumption
              of the correctness of the finding, unless the preponderance of the
              evidence is otherwise.” Tenn. R. App. P. 13(d). To terminate
              parental rights, a trial court must determine by clear and

                                             -14-
             convincing evidence not only the existence of at least one of the
             statutory grounds for termination 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)). Upon
             reviewing a termination of parental rights, this Court's duty,
             then, is to determine whether the trial court's findings, made
             under a clear and convincing standard, are supported by a
             preponderance of the evidence.

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

              In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

             It is well established that “parents have a fundamental right to
             the care, custody, and control of their children.” In re Drinnon,
             776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v.
             Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)).
             “However, this right is not absolute and parental rights may be
             terminated if there is clear and convincing evidence justifying
             such termination under the applicable statute.” Id. (citing
             Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
             599 (1982)).

                    Termination of parental or guardianship rights must be
             based upon a finding by the court that: (1) the grounds for
             termination of parental or guardianship rights have been
             established by clear and convincing evidence; and (2)
             termination of the parent’s or guardian’s rights is in the best
             interests of the child. Tenn. Code Ann. § 36-1-113(c). Before
             a parent’s rights can be terminated, it must be shown that the
             parent is unfit or substantial harm to the child will result if
             parental rights are not terminated. In re Swanson, 2 S.W.3d
             180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
             (Tenn. Ct. App. 1998). Similarly, before the court may inquire
             as to whether termination of parental rights is in the best
             interests of the child, the court must first determine that the
             grounds for termination have been established by clear and
             convincing evidence. Tenn. Code Ann. § 36-1-113(c).



                                           -15-
Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.
LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear
and convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

              We quote from the termination statute the grounds for termination of parental
rights relevant to this appeal:

       (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the grounds listed in this subsection (g). The following grounds
       are cumulative and non-exclusive, so that listing conditions, acts or omissions
       in one ground does not prevent them from coming within another ground:

       (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred;

       (2) There has been substantial noncompliance by the parent or guardian with
       the statement of responsibilities in a permanency plan pursuant to the
       provisions of title 37, chapter 2, part 4;

       (3) The child has been removed from the home of the parent or guardian by
       order of a court for a period of six (6) months and:

       (A) The conditions that led to the child's removal or other conditions that in all
       reasonable probability would cause the child to be subjected to further abuse
       or neglect and that, therefore, prevent the child's safe return to the care of the
       a parent or parents or a 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 a parent or parents or a
       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;

                                              ***

       (5) The parent or guardian has been sentenced to more than two (2) years'
       imprisonment for conduct against the child who is the subject of the petition,

                                              -16-
      or for conduct against any sibling or half-sibling of the child or any other child
      residing temporarily or permanently in the home of such parent or guardian,
      that has been found under any prior order of a court or that is found by the
      court hearing the petition to be severe child abuse, as defined in § 37-1-102.
      Unless otherwise stated, for purposes of this subdivision (g)(5), “sentenced”
      shall not be construed to mean that the parent or guardian must have actually
      served more than two (2) years in confinement, but shall only be construed to
      mean that the court had imposed a sentence of two (2) or more years upon the
      parent or guardian;

Tenn. Code Ann. § 36-1-113(g) (2014).

             Abandonment means, in relevant part, the following:

      (1)(A) For purposes of terminating the parental or guardian rights of a parent
      or parents or a guardian or guardians of a child to that child in order to make
      that child available for adoption, “abandonment” means that:

      (i) For a period of four (4) consecutive months immediately preceding the
      filing of a proceeding or pleading to terminate the parental rights of the a
      parent or parents or a guardian or guardians of the child who is the subject of
      the petition for termination of parental rights or adoption, that the a parent or
      parents or a guardian or guardians either have willfully failed to visit or have
      willfully failed to support or have willfully failed to make reasonable payments
      toward the support of the child;

      (ii) The child has been removed from the home of the a parent or parents or a
      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 childplacing 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 a parent or parents or a guardian or guardians
      to establish a suitable home for the child, but that the a parent or parents or a
      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

                                             -17-
       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;

                                               ***

       (iv) 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 either
       has willfully failed to visit or 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, or the parent or guardian has engaged in conduct prior to
       incarceration that exhibits a wanton disregard for the welfare of the child; or
       ....

Tenn. Code Ann. § 36-1-102 (1)(A) (2014).

              We have discussed the willful character of abandonment for failure to support
as follows:

               This court has consistently held that the term willfulness as it applies
       to a party's failure to support a child must contain the element of intent. In re
       Swanson, 2 S.W.3d 180, 188-89 (Tenn. 1999). Indeed, “defining abandonment
       as the mere non-payment of support [is] unconstitutional because this language
       creates an irrebuttable presumption of abandonment, irrespective of intent.”
       In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003) (citing In re Swanson, 2
       S.W.3d at 188). The element of intent utilized in termination proceedings
       “does not require the same standard of culpability as is required by the penal
       code.” In re Audry S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). “Willful
       conduct consists of acts or failures to act that are intentional or voluntary rather
       than accidental or inadvertent.” Id. “[A] person acts ‘willfully’ if he or she is
       a free agent, knows what he or she is doing, and intends to do what he or she
       is doing.” Id. at 863-64. Additionally, “ ‘[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 the support, and has no

                                              -18-
       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)).

In re: Dylan H., No. E2010-01953-COA-R3-PT, 2011 WL 6310465, at *6 (Tenn. Ct. App.
Dec. 16, 2011), no appl. perm. appeal filed.

                We first address whether the Juvenile Court erred in finding that Mother
abandoned the Child by willful failure to provide support. The record reflects that Mother
worked at Johnson’s Inn, and, for a period, also had worked at Dunkin Donuts but left when
she felt this schedule was excessive. Over the custodial period, Mother worked various jobs,
managed to sustain herself, and, on the day of trial, suddenly seemed willing to produce
money toward child support. Mother had made only one payment of $50 toward child
support, even though she should have paid $750. In our view, Mother’s failure to pay child
support was willful. The record reflects that Mother had experience with paying child
support and knew how to make said payments. The evidence does not preponderate against
any of the Juvenile Court’s findings relevant to this ground for termination. These facts
combine to support the requisite willfulness necessary to sustain the ground of willful failure
to support. We affirm this ground under the standard of clear and convincing evidence.

               We next address whether the Juvenile Court erred in finding that Mother had
failed to substantially fulfill the requirements of her permanency plan. Mother completed
her assessment and in-home treatment, but failed to comply with the permanency plan in
other respects. The central issue for Mother was that of addressing her substance abuse. By
the time of trial, Mother had not resolved her substance abuse problem. This dovetails with
Mother’s general failure to provide a suitable environment in which the Child could safely
live. In our view, Mother’s failure to tackle the core problem for her in this case represents
substantial noncompliance with the permanency plan. The evidence does not preponderate
against any of the Juvenile Court’s findings relevant to this ground for termination. We
affirm this ground under the standard of clear and convincing evidence.

              We next address whether the Juvenile Court erred in finding that Mother failed
to provide a suitable home for the Child. A suitable home for purposes of termination of
parental rights is not merely a solidly built structure. A suitable home must be a safe and
stable environment in which a child can live. The presence of drug paraphernalia in
Mother’s home, along with Mother’s ongoing substance abuse issues, seriously renders her
home unsuitable for the Child. The evidence does not preponderate against any of the
Juvenile Court’s findings relevant to this ground for termination. We affirm this ground
under the standard of clear and convincing evidence.

                                             -19-
              We next address whether the Juvenile Court erred in finding that Mother
demonstrated persistent conditions. This ground is especially powerful in Mother’s case.
As repeated above, the central and unresolved problem facing Mother is her substance abuse.
Mother’s long-time substance abuse problem still has not been remedied, nor, given her
relapse despite repeated efforts to assist, does it appear that this substance abuse problem will
be remedied in the near future. The evidence does not preponderate against any of the
Juvenile Court’s findings relevant to this ground for termination. We affirm this ground
under the standard of clear and convincing evidence.

              We next address whether the Juvenile Court erred in finding that termination
of Mother’s parental rights was in the Child’s best interest. The Juvenile Court, relying upon
Tenn. Code Ann. § 36-1-113(i), made detailed findings as to this issue which are supported
by the record. Of particular note on this issue is Mother’s longstanding and doggedly
persistent substance abuse problem. While some evidence in the record suggests that the
Child has a close bond with Mother, Mother’s inability to sever her ties with drugs poses an
unacceptable risk to the welfare of the Child. The evidence does not preponderate against
any of the Juvenile Court’s findings relevant to the best interest determination. By the
standard of clear and convincing evidence, we find and hold that it is in the Child’s best
interest for Mother’s parental rights to be terminated.

               We now move to Father’s issues on appeal and first address whether the
Juvenile Court erred in finding that Father abandoned the Child by willful failure to visit.
This ground is problematic. It is not at all clear from the record that Father failed to visit the
Child in the requisite time period as the record shows that Father, Mother, Father’s girlfriend,
and the Child all lived together during the relevant time period. The Juvenile Court makes
mention of Father spending time with his girlfriend rather than spending appropriate time
with the Child. Father’s unusual arrangement of having a live-in girlfriend may be
distasteful, but it does not go to the elements of this ground. The evidence preponderates
against this finding of the Juvenile Court, and we, therefore, vacate this ground.

               We next address whether the Juvenile Court erred in finding that Father
abandoned the Child by willful failure to provide support. This ground, too, poses problems.
The record is largely silent as to Father’s intentions or ability to provide support to the Child
in the relevant time period. As opposed to Mother’s case, for instance, where the record
reflects that she worked multiple jobs at times and had a history of making child support
payments, knew the system, sustained herself and could produce funds at trial, no comparable
evidence is available regarding Father. There is a dearth of evidence to sustain willfulness
of failure to support on the part of Father. We vacate this ground.




                                               -20-
                We next address whether the Juvenile Court erred in finding that Father failed
to substantially fulfill the requirements of his permanency plan. Again, Father’s context must
be understood. An incarcerated parent is not absolved of his or her parental responsibilities
while in jail or prison. However, incarceration is a relevant consideration when judging that
parent’s ability to fulfill his or her responsibilities to the child. Among other things, Father
completed an alcohol and drug assessment and was in the process of resolving his legal
charges. In our judgment, Father did much of what he reasonably could be expected to do
under his conditions, and the evidence is not clear and convincing that he failed to comply
with his permanency plan in a substantial way.

               We are aware of this Court’s opinion of In Re: Kason C., et al., No. M2013-
02624-COA-R3-PT, 2014 WL 2768003 (Tenn. Ct. App. June 17, 2014), no appl. perm.
appeal filed, in which this Court found that there was clear and convincing evidence to
support the Juvenile Court’s finding that the father there had failed to substantially comply
with the reasonable parenting responsibilities set out in the parenting plans, at least in part,
because of the father’s incarceration. This Court in In Re: Kason C. correctly noted that a
parent’s substantial noncompliance with a permanency plan is not required to be willful to
justify termination of that parent’s parental rights on that ground. We, however, believe that
caution by the courts is appropriate here to avoid making incarceration solely on its own into
a de facto ground for termination. Clearly in most situations an incarcerated parent is going
to be unable to complete at least some significant portion of the permanency plan. Our
General Assembly, however, has not deemed it appropriate to make incarceration solely by
itself a ground for termination. This being so, we are concerned that a blanket holding that
a parent who is unable to complete a permanency plan solely because of his incarceration
may, in effect, have his parental rights terminated not because of failure to substantially
comply with the permanency plan but, in reality, because of his incarceration. We vacate this
ground.

               We next address whether the Juvenile Court erred in finding that Father failed
to provide a suitable home. Father testified to having a home lined up upon his eventual
release. The Juvenile Court found this prospective home to be illusory. Once again we
encounter the same difficulties presented by Father’s incarceration. What additional
reasonable efforts should or could the incarcerated Father have made to procure a suitable
home for the Child? Is every incarcerated parent de facto liable under this ground? We
believe not. In our judgment, clear and convincing evidence has not been adduced that
Father failed to provide the Child with a suitable home. We vacate this ground.

              We next address whether the Juvenile Court erred in finding that Father
demonstrated persistent conditions. This issue presents a technical problem. Father was
incarcerated when the Child was removed from Mother’s home. In our understanding of this

                                              -21-
ground for termination, the Child must be removed from the home of the parent whose rights
are sought to be terminated under the ground. Here, the Child was not removed from
Father’s home, as such, because Father was incarcerated some time before the Child’s
removal and the home had ceased to be Father’s home for purposes of the persistent
conditions statute. Therefore, we cannot find the other elements of persistent conditions, and
we vacate this ground.

               We next address whether the Juvenile Court erred in finding that Father had
been sentenced to more than two years of imprisonment for conduct against the Child. The
Juvenile Court correctly identified the relevant statute, applied the facts of this case including
Father’s convictions which were entered into the record, and concluded that this ground for
termination of parental rights was sustained by clear and convincing evidence. Father argues
that the ground is inapplicable in that the Child was not the target of his violence. However,
we are constrained to note the entry of a conviction involving child abuse relating to the
Child, and, as did the Juvenile Court, we find Father’s explanations for his conduct
unavailing. The evidence does not preponderate against any of the Juvenile Court’s findings
relevant to this ground for termination. We affirm this ground under the standard of clear
and convincing evidence.

                We next address whether the Juvenile Court erred in finding that Father
engaged in conduct exhibiting wanton disregard for the welfare of the Child. Father’s history
is rife with violence, substance abuse, and criminality. We note the Juvenile Court’s finding,
supported by Father’s testimony in the record, of Father’s waffling explanations for his
behavior. Explanations aside, Father’s pattern of violence, which has exposed the Child to
harm and resulted in Father’s prison sentence, has demonstrated a profound disregard for the
Child’s well-being. The evidence does not preponderate against any of the Juvenile Court’s
findings relevant to this ground for termination. We affirm this ground under the standard
of clear and convincing evidence.

               The final issue we address is whether the Juvenile Court erred in finding that
it is in the Child’s best interest for Father’s parental rights to be terminated. The Juvenile
Court made detailed findings as to this issue as quoted in this Opinion and which we need
not set forth again. The evidence does not preponderate against any of the Juvenile Court’s
findings relevant to the best interest determination. We affirm, by clear and convincing
evidence, the Juvenile Court’s finding that it is in the Child’s best interest for Father’s
parental rights to be terminated.

              In sum, we affirm the termination of Mother’s and Father’s parental rights. We
modify the Juvenile Court’s judgment to vacate certain of the grounds against Father.
Specifically as regards Father, we affirm the grounds of 1) a sentence to more than two years

                                              -22-
for conduct against the Child and 2) wanton disregard, and vacate the other grounds for
termination of parental rights. The judgment of the Juvenile Court is affirmed as so
modified.

                                       Conclusion

             The judgment of the Juvenile Court is affirmed as modified, and this cause is
remanded to the Juvenile Court for collection of the costs below. The costs on appeal are
assessed equally against the Appellants, Amy F. and Uriah F., and their surety, if any.




                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




                                           -23-
