                                                                                                        01/21/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    October 15, 2019 Session

                                         IN RE C.L. ET AL.

                   Appeal from the Juvenile Court for Hawkins County
                    No. HJ-17-0830            Daniel G. Boyd, Judge
                        ___________________________________

                                No. E2018-02032-COA-R3-PT
                           ___________________________________

C.A. (petitioner) filed a petition to terminate the parental rights of H.L. (mother) and R.L.
(father) with respect to their two children, C.L. and A.L. (the children). The trial court
found clear and convincing evidence to terminate mother and father’s parental rights on
two grounds: abandonment by willful failure to support and persistent conditions. The
court also found clear and convincing evidence that termination of mother and father’s
parental rights is in the best interest of the children. Both parents appeal. We vacate the
trial court’s finding that there is clear and convincing evidence to terminate mother and
father’s parental rights on the ground of abandonment by willful failure to support.
Nevertheless, we affirm the court’s order terminating mother and father’s parental rights
because there is clear and convincing evidence that termination is supported by the
ground of persistent conditions and is in the best interest of the children.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, H.L.1

Samuel E. White, Kingsport, Tennessee, for the appellant, R.L.

William E. Phillips, II, Rogersville, Tennessee, for the appellee, C.A.




        1
         Mr. Eidson did not appear for oral argument. Pursuant to Tenn. R. App. P. 35(g), the case was
submitted on the record, briefs, and arguments presented by counsel for father and counsel for petitioner.
                                                  -1-
                                              OPINION

                                                   I.

       In September 2016, police allegedly observed father erratically driving a golf cart
inside a private storage facility. The children were passengers. Father was arrested and
charged with evading arrest, resisting arrest, driving under the influence, and two counts
of reckless endangerment. During father’s brief incarceration, DCS placed the children
with paternal grandparents because mother’s whereabouts were unknown. Mother
retrieved the children shortly thereafter. When father made bond, mother returned the
children to him.

       On September 29, 2016, petitioner (mother’s aunt) filed a petition for emergency
custody, alleging that: mother and father were separated and going through a divorce;
father had been arrested; mother was unable to keep the children because she did not
have a permanent home; and that mother returned the children to father despite her
awareness of father’s neglect and alcohol abuse. The trial court granted the petition.

       At the preliminary hearing, the court found probable cause that the children were
dependent and neglected. Accordingly, the court entered an order providing that
petitioner would retain temporary custody of the children. Mother was granted
unsupervised visitation at the marital apartment every other weekend from Friday at
7:30 p.m. to Sunday at 7:30 p.m. Father was granted supervised visitation at the home of
paternal grandparents on alternating weekends. The order prohibited father from
transporting the children. The order also instructed father to complete a psychological
assessment and follow treatment recommendations.

       In November 2016, a CASA representative conducted a home visit at father’s two-
bedroom apartment.2 Father was living with his new girlfriend. Mother was also present.
According to the CASA representative, father said that the apartment was being treated
for bed bugs. Father also said that he drank six to eight beers per day for several weeks at
the direction of his doctor. CASA later obtained medical records indicating that father
was cautioned against drinking alcohol. At the time, father was unemployed. He stated
that he was receiving about $500 per month in food stamps and that a friend was
providing cash assistance.

       On December 1, 2016, the parties attended a Child and Family Team Meeting. At
this meeting, parents agreed to take various steps in order to regain custody of the
children. Father agreed to maintain stable housing, secure legal income, submit to a
psychological evaluation, and follow treatment recommendations. Mother agreed to
obtain stable housing, secure legal income, submit to a mental health assessment, and

       2
           CASA stands for “court appointed special advocates.”
                                                  -2-
follow treatment recommendations. Both parents agreed to stop smoking in the presence
of the children.

       On December 9, 2016, a CASA representative followed up with mother, who was
living at maternal great-grandmother’s house. Because the smell of cigarette smoke in
the home was so strong, the meeting took place in the CASA representative’s car.
According to the CASA representative, mother said that father was verbally abusive and
very controlling; mother also expressed concern that father did not pay enough attention
to the children. Mother denied making these statements. Later in December, mother
missed an appointment for a mental health assessment; she claimed that she had to go to
the hospital for an emergency dental procedure.

       Father completed a psychological evaluation in December 2016. The examiner’s
diagnostic impression was that father suffered from moderate alcohol-use disorder, an
unspecified personality disorder, and parent-child relational problems. The evaluation
stated that father “would benefit from alcohol and drug treatment to focus on his pattern
of substance use and on relapse prevention.” The evaluation also recommended “therapy
which addresses appropriate insight, judgment, and impulse control.”

        There is a dispute as to whether mother completed a mental health assessment in
January 2017. At trial, mother testified that she completed the assessment and that she
received a letter from the service provider stating that no further treatment was necessary.
According to counsel for mother, this letter was not brought to the court’s attention prior
to trial because mother and her counsel believed that DCS already had a copy of the
letter. Neither the mental health evaluation nor the aforementioned letter is in the
appellate record. The trial court did not make a finding as to whether mother completed
the assessment; the court merely noted that mother “has not provided the
recommendations of her mental health assessment to which she testified she had
submitted . . . .”

       At the January 2017 adjudicatory hearing, mother and father stipulated that the
children were dependent and neglected.3 Accordingly, on January 26, 2017, the court
entered an order declaring that the children were dependent and neglected. The order
provided that petitioner would retain temporary custody of the children. The visitation
schedule remained unchanged. The order also stated that parents had to comply with the
following requirements before requesting further relief:

                [Father] will follow all recommendations from his
                Psychological Evaluation which includes alcohol and drug
                treatment to focus on his pattern of substance use and on

        3
          At trial, both parents denied that the children were dependent and neglected. Father allegedly
stipulated to dependency and neglect on the advice of counsel. He is now represented by new counsel.
                                                 -3-
              relapse prevention. He is also to have therapy which
              addresses appropriate insight, judgment, and impulse control;

              [Mother] is to undergo a Mental Health Assessment and
              follow all recommendations;

              Both parents are to attend and complete parenting classes;

              [Mother] is to obtain and maintain stable and safe housing
              free from environmental concerns;

              [Father] is to obtain and maintain stable and safe housing free
              from environmental concerns;

              Both parents obtain and maintain a legal source of income to
              take care of themselves and their children;

              [Father] resolve all criminal charges;

              Both parents are encouraged to take steps to obtain their
              GED.

              [N]o individual is to smoke in the presence of the children[.]

(Paragraph numbering omitted.)

       At some point, father moved into a new two-bedroom home. By February 2017,
father was working as a cab driver. He also made money cleaning a storage facility.
Mother continued living with relatives. In or around March 2017, mother got a job at a
gas station, but she quit after a few weeks. Mother claimed that an undiagnosed medical
condition was causing her to experience blackouts, which prevented her from working.
Mother also testified that she sometimes worked with father and used her car as a cab.

       At a “review hearing” in March 2017, the trial court heard testimony from a
CASA representative and the guardian ad litem. The court found that “the parents have
made only minimal progress at best[.]” Accordingly, the court ruled that its previous
orders would remain in effect.

       In April 2017, mother obtained her own three-bedroom apartment. When the
children visited, they each had their own room and a full-size bed. At trial, maternal
grandmother testified that mother’s rent was fully subsidized by the government. She
also testified that mother received a “check” for her utilities. Mother testified that she did
not receive, and had not applied for, food stamps.
                                            -4-
       The trial court initially set mother’s child support obligation at $612 per month,
including $10 per month for arrears. The order did not specify whether mother was
employed, but it stated that mother had the ability to earn $1,257 per month. The court
set father’s child support obligation at $477 per month, including $10 per month for
arrears. The order stated that father was employed but did not specify father’s income.

       Over the next few months, both parents failed to make any child support
payments. When petitioner learned that mother faced potential incarceration for failing
to make payments, petitioner asked the court to reduce mother’s child support obligation
to $110 per month, including $10 per month for arrears. At the recommendation of the
child support magistrate, the trial court reduced mother’s child support obligation to $110
per month, beginning on July 1, 2017. Mother did not make any payments in July 2017.
She paid $110 in both August 2017 and September 2017 using money that maternal
grandmother gave her.

        Mother and father consistently visited the children. During the summer of 2017,
petitioner even allowed mother to babysit the children when petitioner’s normal
babysitter was unavailable. According to maternal grandmother and mother’s best friend,
the children were “upset” and sometimes cried when visitation with mother ended. There
was little testimony regarding the children’s visitation with father. Father testified that he
bought the children food and gifts during his visits and that the children were always
happy to see him. Petitioner testified about one occasion in which father violated the
court’s order by asking mother, rather than paternal grandfather, to supervise his
visitation. Petitioner also testified that the children return from father looking dirty.
Finally, petitioner testified about an incident in which C.L. returned from father with a
“hole” in his head that required immediate medical attention. Father testified that C.L.
hit his head on a coffee table after being pushed by one of father’s grandchildren.

        In October 2017, neither parent made child support payments. On October 31,
2017, petitioner filed a petition to terminate parental rights. The case lingered for nine
months. During that time, both parents made additional child support payments and
continued to visit the children. Mother worked intermittently as a babysitter. Mother
testified that she bought the children over $200 worth of Christmas presents in December
2017 using money that she earned from babysitting.

      In April 2018, CASA conducted a home visit at mother’s new apartment.
According to the CASA representative, the smell of smoke was “overwhelming.” The
CASA representative testified that Mother said she was not seeking employment due to
her undiagnosed medical condition. Mother also claimed that her doctor would not fill
out medical forms for her to apply for disability. Mother later denied making those
statements. Shortly before trial, mother worked as a caregiver for about a week; she quit
because her driver’s license had been suspended due to failure to pay child support.
                                           -5-
       Father did not cooperate with CASA’s attempt to conduct another home visit. In
April 2018, father’s criminal charges were dismissed because the arresting officer failed
to appear for multiple court dates. Father never followed the treatment recommendations
from his psychological evaluation. Although mother submitted proof that she attended a
parenting and divorce class in October 2016, neither parent took additional parenting
classes as required by the trial court’s subsequent orders. Both parents continued to
smoke in front of the children.

       A bench trial took place on August 7, 2018.4 The court heard testimony from
petitioner, parents, mother’s best friend, maternal grandmother, a CASA representative,
and a DCS representative. The court entered an order terminating parental rights on
October 4, 2018. A separate order containing specific findings of fact and conclusions of
law was entered on October 29, 2018.5 Both parents appealed.

                                                    II.

        Although not stated as such, mother and father raise the following issues:

                Whether the trial court erred by finding clear and convincing
                evidence that mother and father’s parental rights can be
                terminated on the ground of abandonment by willful failure to
                support.

                Whether the trial court erred by finding clear and convincing
                evidence that mother and father’s parental rights can be
                terminated on the ground of persistent conditions.

                Whether the trial court erred by finding clear and convincing
                evidence that termination of mother and father’s parental
                rights is in the best interest of the children.


        4
          Trial courts have a duty to “ensure that the hearing on the petition [to terminate parental rights]
takes place within six (6) months of the date that the petition is filed, unless the court determines an
extension is in the best interests of the child.” Tenn. Code Ann. § 36-1-113(k). In this case, the record
does not indicate why the hearing was continued past the statutorily-prescribed six-month deadline. This
unexplained delay is concerning, but we have consistently held that the untimeliness of a termination
hearing is not reversible error. E.g., In re Maison W., No. M2015–02153–COA–R3–PT, 2016 WL
3192801, at *15-16 (Tenn. Ct. App., filed May 27, 2016).
        5
           Trial courts have a duty to “enter an order that makes specific findings of fact and conclusions
of law within thirty (30) days of the conclusion of the [termination of parental rights] hearing.” Tenn.
Code Ann. § 36-1-113(k). Here, it took eighty-three days. Again, this unexplained delay is lamentable,
but is not reversible error. See, e.g., In re Maison W., 2016 WL 3192801, at *15-16.
                                                   -6-
                                            III.

       A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash–Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). Although this right is fundamental, it is not
absolute. The State may interfere with a parent’s rights in certain circumstances. In re
Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which
termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g) (Supp. 2018)
(amended 2019). Because termination proceedings are statutory, In re Angela E., 303
S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), a parent’s rights
may be terminated only where a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835,
838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App.
1998).

       To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables
the fact-finder to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these factual
findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

        Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

       We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
that in an appeal from an order terminating parental rights the Court of Appeals must
review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interest[ ], regardless of whether the parent challenges
these findings on appeal.”).

                                           -7-
      The Tennessee Supreme Court has stated our standard of review:

             An appellate court reviews a trial court’s findings of fact in
             termination proceedings using the standard of review in Tenn.
             R. App. P. 13(d). Under Rule 13(d), appellate courts review
             factual findings de novo on the record and accord these
             findings a presumption of correctness unless the evidence
             preponderates otherwise. In light of the heightened burden of
             proof in termination proceedings, however, the reviewing
             court must make its own determination as to whether the
             facts, either as found by the trial court or as supported by a
             preponderance of the evidence, amount to clear and
             convincing evidence of the elements necessary to terminate
             parental rights. The trial court’s ruling that the evidence
             sufficiently supports termination of parental rights is a
             conclusion of law, which appellate courts review de novo
             with no presumption of correctness. Additionally, all other
             questions of law in parental termination appeals, as in other
             appeals, are reviewed de novo with no presumption of
             correctness.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

                                          IV.

       The trial court found clear and convincing evidence to terminate mother and
father’s parental rights on two grounds: (A) abandonment by willful failure to support
and (B) persistent conditions.

                                          A.

       Tenn. Code Ann. § 36-1-113(g)(1) provides for the termination of parental rights
on the ground of abandonment. When the petition to terminate parental rights was filed,
“abandonment” was defined to include the following circumstances:

             [f]or a period of four (4) consecutive months immediately
             preceding the filing of a proceeding or pleading to terminate
             the parental rights of the parent . . . the parent . . . ha[s]
                                          -8-
                willfully failed to support or ha[s] willfully failed to make
                reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i) (effective July 1, 2016).6 This means that the
parent willfully failed “to provide monetary support or . . . more than token payments
toward the support of the child[.]” Id. at § 36-1-102(1)(D). “ ‘[T]oken support’ means
that the support, under the circumstances of the individual case, is insignificant given the
parent’s means[.]” Id. at § 36-1-102(1)(B). A parent’s “means” includes “both income
and available resources for the payment of debt.” In re Adoption of Angela E., 402
S.W.3d 636, 641 (Tenn. 2013) (citations omitted).

       “Whether a parent failed to . . . support a child is a question of fact. Whether a
parent’s failure to . . . support constitutes willful abandonment, however, is a question of
law.” Id. at 640 (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)).
“Failure to . . . support a child is ‘willful’ when a person is aware of his or her duty to . . .
support, has the capacity to do so, makes no attempt to do so, and has no justifiable
excuse for not doing so.” In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).

                                                     1.

       First, we consider mother’s alleged failure to support. The petition to terminate
parental rights was filed on October 31, 2017. Therefore, the relevant four-month period
is June 30, 2017, to October 30, 2017. See In re Jacob C.H., No. E2013-00587-COA-
R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App., filed Feb. 20, 2014) (“The applicable
four month window . . . includes the four months preceding the day the petition to
terminate parental rights is filed but excludes the day the petition is filed.”).

      At the recommendation of the child support magistrate, the trial court reduced
mother’s child support obligation to $110 per month, beginning on July 1, 2017. Mother
did not make any payments in July 2017. In both August 2017 and September 2017,
mother paid $110 in child support using money that maternal grandmother gave her. In
October 2017, mother did not make any payments.

       The trial court ruled that “Mother did not make [the August 2017 and September
2017] payments,” because “these payments were made by Mother’s mother and not
mother herself.” Even if the payments could fairly be attributed to mother, the court
ruled that the payments were merely “token support.” The court found that “Mother is
capable of working and has not taken steps to secure employment or otherwise earn

        6
          We apply the version of the statute in effect when the petition was filed. Under the current
version of the statute, the petitioner no longer has the burden of proving willfulness; instead, a parent may
demonstrate the absence of willfulness as an affirmative defense. Tenn. Code Ann. §§ 36-1-102(1)(A)(i),
-102(I) (effective July 1, 2018) (amended 2019).
                                                   -9-
income to support the children.”

       As an initial matter, we must decide whether the court erred by finding that mother
did not make the August 2017 and September 2017 child support payments. According
to petitioner, a parent who pays child support with money obtained from a relative is
“logically indistinguishable from Child Support Enforcement intercepting a parent’s tax
refund from the federal government to satisfy, or contribute to, a parent’s outstanding
child support obligation.” See In re Dustin T., No. E2016–00527–COA–R3–PT, 2016
WL 6803226, at *13 (Tenn. Ct. App., filed Nov. 17, 2016) (holding that interception of a
tax refund does not constitute a voluntary payment of child support). We disagree. The
voluntary nature of a child support payment, rather than the source of the payment, is the
most important consideration. We are unaware of any legal authority that prohibits a
parent from paying child support with money obtained from a relative. On the contrary,
the child support guidelines indicate that a parent is expected to use all available
resources to pay child support. See Tenn. Comp. R. & Regs. 1240-02-04-.04(3)
(requiring consideration of a parent’s “gross income,” including “all income from any
source . . . whether earned or unearned, and includ[ing] . . . [g]ifts that consist of cash”).
Accordingly, we hold that the trial court erred by ruling that mother did not make the two
child support payments.

       The next question is whether mother’s payments constitute “reasonable payments”
or “token payments” toward the support of the children. Tenn. Code Ann. §§ 36-1-
102(1)(A)(i), -102(1)(D). Again, token support is defined as “support, under the
circumstances of the individual case, [that] is insignificant given the parent’s means[.]”
Id. at § 36-1-102(1)(B). A parent’s “means” includes “both income and available
resources for the payment of debt.” In re Adoption of Angela E., 402 S.W.3d 636, 641
(Tenn. 2013) (citations omitted).

       Mother was unemployed and therefore had no income during the relevant four-
month period. It appears that mother’s only “available resource[ ] for the payment of
debt” was cash assistance from maternal grandmother, which mother used to make two
child support payments. The trial court found that mother willfully failed to make
additional child support payments because she was voluntarily unemployed. The
evidence preponderates in favor of the court’s finding that mother was voluntarily
unemployed. Nevertheless, we think it is significant that mother managed to pay half of
the child support she owed during the relevant four-month period. Although it is a close
call, we disagree with the court’s conclusion that mother’s two child support payments
were merely token support.

       Even if mother’s two payments were token support, petitioner failed to present
clear and convincing evidence that mother had the capacity to provide more than token
support, a necessary element of willfulness. In re Audrey S., 182 S.W.3d at 864. A
petitioner must submit evidence of a parent’s income and expenses during the relevant
                                         - 10 -
four-month period in order to prove that a parent had the capacity to pay child support.
E.g., In re L.J., 2015 WL 5121111, at *6 (Tenn. Ct. App., filed Aug. 31, 2015) (citing In
re Adoption of Angela E., 402 S.W.3d at 641). Here, petitioner presented little evidence
of mother’s expenses. Maternal grandmother testified that mother did not have to pay
rent or utilities, but mother testified that she did not receive food stamps. It is unclear
whether mother was responsible for paying for food, groceries, and transportation. If she
was, it is unclear what those monthly expenses were. Therefore, even if we imputed
additional income to mother because of her voluntary unemployment, the lack of
evidence regarding mother’s monthly expenses would prevent us from forming a “firm
belief or conviction” regarding mother’s capacity to pay child support. See In re
Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). Accordingly, we hold that the trial court
erred by terminating mother’s parental rights on the ground of abandonment by willful
failure to support.

                                                   2.

       Next we consider father’s alleged failure to support. The relevant four-month
period is still June 30, 2017, to October 30, 2017. Father’s child support was set at $477
per month. Records from the Child Support Enforcement Services indicate that father did
not make any child support payments during the relevant four months. The trial court
ruled that father’s failure to support was willful because father was employed by Cabbie
Cab and was receiving benefits from the Social Security Administration. The court also
noted that father was able to pay a $3,000 cash bond in December 2017 in order to avoid
incarceration for his failure to pay child support.

        At trial, father testified that he was expecting his $3,736 tax refund to be
intercepted by Child Support Enforcement Services during the relevant four-month
period. The refund was not credited to father’s account until December 2017. Father
also testified that he “borrow[ed]” money to pay the $3,000 cash bond in order to avoid
incarceration. Father paid the cash bond shortly after his tax refund was intercepted.
This actually put father ahead on his child support payments. Although this is relevant to
the best interest analysis, it is irrelevant when analyzing abandonment. See Tenn. Code
Ann. § 36-1-102(1)(F) (“Abandonment may not be repented of by resuming . . . support
subsequent to the filing of any petition seeking to terminate parental or guardianship
rights[.]”). Moreover, even if the tax refund had been intercepted during the relevant
four-month period, interception of a tax refund does not qualify as a voluntary payment
of child support. In re Dustin T., 2016 WL 6803226, at *13. Accordingly, the evidence
preponderates in favor of the court’s finding that father failed to pay monetary support
during the relevant four-month period.7

        7
           Father argues that he provided “in-kind” support in the form of food and gifts. These gifts are
not “monetary support,” as required by Tenn. Code Ann. § 36-1-102(1)(D); however, father’s provision
of gifts does weigh against a finding of willfulness. See In re Kaleb N.F., No. M2012–00881–COA–R3–
                                                 - 11 -
       Nevertheless, we hold that petitioner failed to present clear and convincing
evidence that father’s failure to support was willful. Specifically, petitioner failed to
present sufficient evidence that father had the capacity to support the children during the
relevant four-month period. At trial, father testified, without contradiction, that he only
earns between $350 and $750 per month as a cab driver. There is no evidence regarding
the amount of father’s benefits from the Social Security Administration. Father testified,
without contradiction, that he “borrow[ed]” the money to pay his $3,000 cash bond. A
CASA representative testified that in November 2016 father was receiving cash
assistance from a friend and $500 per month in food stamps. However, that was several
months prior to the relevant four-month period. The only evidence of father’s expenses
is father’s testimony that his rent is $500 per month and that he has to pay family
members to supervise his visitation.

        Given father’s limited income and the paucity of evidence regarding father’s
monthly expenses, we hold that petitioner failed to present clear and convincing evidence
that father had the capacity to pay $477 per month in child support during the relevant
four-month period. The trial court erred by terminating father’s parental rights on the
ground of abandonment by willful failure to support.

                                                  B.

         Tenn. Code Ann. § 36-1-113(g)(3) provides for the termination of parental rights
on the ground of persistent conditions. When the petition to terminate parental rights was
filed, the statute required petitioner to present clear and convincing evidence of the
following circumstances:

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

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

               (B) There is little likelihood that these conditions will be
               remedied at an early date so that the child can be safely
               returned to the parent or parents or the guardian or guardians

PT, 2013 WL 1087561, at *23 (Tenn. Ct. App., filed Mar. 12, 2013) (holding that a parent’s provision of
gifts “may be considered as part of the background to the willfulness determination.”).
                                                - 12 -
                 in the near future; and

                 (C) The continuation of the parent or guardian and child
                 relationship greatly diminishes the child’s chances of early
                 integration into a safe, stable and permanent home[.]

Tenn. Code Ann. § 36-1-113(g)(3) (effective July 1, 2017).8 The purpose of allowing the
termination of parental rights under these circumstances is “to prevent the child’s
lingering in the uncertain status of foster child if a parent cannot within a reasonable time
demonstrate an ability to provide a safe and caring environment for the child.” In re
Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012) (citations omitted). “The
failure to remedy the conditions which led to the removal need not be willful.” Id.

                                                      1.

       First, we consider the evidence with respect to mother. It is undisputed that more
than six months had passed since the children had been removed from the home of
mother.9 The trial court ruled that mother “failed to remedy the conditions which . . . led
to removal of the children from [her] custody.” The preponderance of the evidence
suggests otherwise. The primary condition that led to the children’s removal from
mother was mother’s lack of a permanent home. Since April 2017, mother has had her
own three-bedroom apartment; she no longer relies on family members for housing.

       Nevertheless, mother’s parental rights may still be terminated due to the
persistence of “other conditions that in all reasonable probability would cause the
child[ren] to be subjected to further abuse or neglect and that, therefore, prevent the
child[ren]’s safe return to the care of [mother.]” Tenn. Code Ann. § 36-1-113(g)(3)(A)
(emphasis added). The trial court found that mother has been voluntarily unemployed or
underemployed throughout this case. Even at the time of trial, mother still did not have a
steady source of legal income. Mother also had not taken the appropriate parenting
classes. Nor did she provide the recommendations of her mental health assessment (if
she did, in fact, complete the assessment). Finally, mother continued to smoke in the
presence of the children.

       The evidence preponderates in favor of the trial court’s factual findings regarding
the persistence of these “other conditions.” We agree with the trial court that mother’s

       8
           We apply the version of the statute in effect when the petition was filed.
       9
          At the time the petition to terminate parental rights was filed, the six-month period was
generally measured from the order adjudicating a child dependent and neglected. In re Frederick S., No.
W2018-00941-COA-R3-PT, 2018 WL 6819355, at *5 (Tenn. Ct. App., filed Dec. 26, 2018) (citing In re
Audrey S., 182 S.W.3d 838, 875-76 (Tenn. Ct. App. 2005)). The children were adjudicated dependent
and neglected on January 26, 2017 – nine months prior to the filing of the petition.
                                                    - 13 -
prolonged state of financial instability, coupled with her refusal to seek employment on
account of an undiagnosed medical condition, creates a reasonable probability that
returning the children to mother would subject them to further neglect.10 There is little
likelihood that mother will be able to remedy her condition of financial instability at an
early date because she has repeatedly demonstrated an unwillingness to obtain and
maintain stable employment. At the time of trial, mother had not even applied for food
stamps. Continuation of the parent-child relationship would greatly diminish the
children’s chances of early integration into a safe, stable and permanent home.
Accordingly, we hold that clear and convincing evidence exists to terminate mother’s
parental rights on the ground of persistent conditions.

                                                   2.

        Now we consider the evidence with respect to father. It is undisputed that more
than six months had passed since the children had been removed from the home of father.
The trial court determined that the conditions which led to that removal still persist.
Specifically, the court noted that father’s criminal charges were dismissed “only after the
charging officer failed to appear in court after several resets.” The court further observed
that father failed to comply with the treatment recommendations from his psychological
assessment, i.e., alcohol and drug treatment and therapy to address “appropriate insight,
judgment, and impulse control.”

       Father does not dispute the trial court’s factual findings relative to this ground.
Instead, father argues that the court should have given more weight to the fact that his
criminal charges were dismissed. Father reminds this Court that individuals who are
accused of a crime are presumed innocent until proven guilty. That is true – in criminal
cases. Here, however, the trial court did not convict father of a crime. Rather, the court
found, by a preponderance of the evidence, that father has a history of alcohol abuse and
that he has refused to seek appropriate treatment. Those findings are supported by the
evidence. A CASA representative testified that father admitted to drinking six to eight
beers per day for several weeks at the direction of his doctor, a false statement that father
continued to assert at trial. The examiner who conducted father’s psychological
evaluation also found that father suffered from “moderate alcohol-use disorder.” It is
undisputed that father failed to seek either alcohol and drug treatment or therapy.

        We agree with the trial court that this evidence clearly and convincingly

        10
           Although a parent’s unemployment and/or incapacity to financially support a child often
precludes a finding of willful abandonment, prolonged financial instability is relevant to the termination
of parental rights on the ground of persistent conditions. See, e.g., In re Jamie G., No. M2014–01310–
COA–R3–PT, 2015 WL 3456437, at *22 (Tenn. Ct. App., filed May 29, 2015); In re Brandon T., No.
M2012–02055–COA–R3–PT, 2013 WL 12180664, at *5 (Tenn. Ct. App., filed Apr. 17, 2013); State,
Dept. of Children’s Services v. Peterson, 341 S.W.3d 281, 289 (Tenn. Ct. App. 2009); In re C.M.S., No.
W2004-00295-COA-R3-PT, 2004 WL 2715331, at *4 (Tenn. Ct. App., filed Nov. 19, 2004).
                                                 - 14 -
demonstrates that the conditions which led to the children’s removal from father still
persist.11 Because father has failed to take appropriate steps to address his alcohol abuse
and poor judgment, there is a reasonable probability that returning the children to father
will lead to further abuse or neglect. Given father’s stubborn resistance to seeking
treatment, there is little likelihood that he will remedy these conditions at an early date.
We agree with the trial court that continuation of the parent-child relationship will greatly
diminish the children’s opportunity to enter into a safe, stable and permanent home.
Accordingly, we hold that there is clear and convincing evidence to terminate father’s
parental rights on the ground of persistent conditions.

                                                 V.

                                                 A.

       Because at least one statutory ground warrants the termination of mother and
father’s parental rights, we now focus on whether termination is in the best interest of
C.L. and A.L. We are guided by the statutory factors set forth in Tenn. Code Ann. § 36-
1-113(i):

               In determining whether termination of parental or
               guardianship rights is in the best interest of the child pursuant
               to this part, the court shall consider, but is not limited to, the
               following:

               (1) Whether the parent or guardian has made such an
               adjustment of circumstance, conduct, or conditions as to
               make it safe and in the child’s best interests 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

       11
           We also note that there are “other conditions” that raise serious questions as to whether
returning the children to father would subject them to further abuse or neglect. For example, although
father has worked as a cab driver throughout these proceedings, it is unclear whether father has the
financial capacity to independently support the children.
                                               - 15 -
              established between the parent or guardian and the child;

              (5) The effect a change of caretakers and physical
              environment is likely to have on the child’s emotional,
              psychological and medical condition;

              (6) Whether the parent or guardian, or other person residing
              with the parent or guardian, has shown brutality, physical,
              sexual, emotional or psychological abuse, or neglect toward
              the child, or another child or adult in the family or household;

              (7) Whether the physical environment of the parent’s or
              guardian’s home is healthy and safe, whether there is criminal
              activity in the home, or whether there is such use of alcohol,
              controlled substances or controlled substance analogues as
              may render the parent or guardian consistently unable to care
              for the child in a safe and stable manner;

              (8) Whether the parent’s or guardian’s mental and/or
              emotional status would be detrimental to the child or prevent
              the parent or guardian from effectively providing safe and
              stable care and supervision for the child; or

              (9) Whether the parent or guardian has paid child support
              consistent with the child support guidelines promulgated by
              the department pursuant to § 36-5-101.

“Ascertaining a child’s best interests does not call for a rote examination of [these] nine
factors and then a determination of whether the sum of the factors tips in favor of or
against the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case.” In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005).
Most importantly, “[t]he child’s best interest must be viewed from the child’s, rather than
the parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)
(citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

                                            B.

        The trial court expressly considered the best interest factors discussed above. The
court determined that factors (1), (2), (5), (7), (8), and (9) weigh in favor of terminating
mother and father’s parental rights. The court determined that factors (3) and (4) weigh
against termination of mother and father’s parental rights. Finally, the court found that
factor (6) was inapplicable.

                                           - 16 -
       Factors (1) and (2) concern whether parents made a lasting adjustment in
circumstances and whether reasonable social services were made available to them.
Mother and father both obtained safe and stable housing. Father also began working as a
cab driver and his criminal charges were eventually dismissed. As previously discussed,
however, both parents stubbornly refused to comply with simple instructions from the
court regarding other important matters. Mother has demonstrated an unwillingness to
obtain and maintain stable employment. Mother also failed to disclose the results of the
mental health evaluation that she allegedly completed. Father has refused to seek
treatment for his abuse of alcohol. He has also refused to attend therapy for “appropriate
insight, judgment, and impulse control.” Both parents continue to smoke in front of the
children.

       DCS and CASA made reasonable efforts to help mother and father regain custody
of the children. For example, DCS helped the parties develop a permanency plan at a
Child and Family Team Meeting on December 1, 2016. A DCS representative testified
that she helped mother schedule (and reschedule) multiple mental health assessments.
She also attempted to conduct home visits and to make phone calls to mother. DCS
informed mother that she could apply for “Section 8 housing.” The DCS representative
spoke to father multiple times on the phone “[t]o try to help him, to follow up with him
about his services, to see if he had followed up with his recommendations.” CASA
representatives also conducted home visits and attempted to help parents comply with the
court’s orders. We agree with the trial court that factors (1) and (2) clearly and
convincingly weigh in favor of termination.

       All parties, including petitioner, agree with the trial court’s conclusion that factors
(3) and (4) weigh against terminating mother and father’s parental rights. It is undisputed
that both parents maintained consistent visitation throughout the proceedings and that the
children have a close bond with parents.

       The court ruled that factor (5) weighs in favor of termination. This factor
concerns “[t]he effect a change of caretakers and physical environment is likely to have
on the child’s emotional, psychological and medical condition.” According to petitioner,
the children’s health has improved under her care:

              [A.L.] has opened up, she’s a social butterfly that hasn’t met a
              stranger. At first she’s quiet, but then she doesn’t stop
              talking, but she’s so friendly, she appears more healthy. Both
              of the children have been more healthy in my care. They’ve –
              you know, they’ve gone to school, they go to school every
              day, they don’t miss because “I didn’t want to get out of bed,”
              you know, they eat, they’re not fed McDonald’s every meal,
              you know, I cook for them.

                                            - 17 -
                                            *       *       *


                They’re not constantly on antibiotics from this infection or
                that infection, [A.L.] had chronic ear infections, she’s [had]
                one in two years. . . . They don’t have to take their sinus
                medication anymore, allergy medication, it’s not necessary.

Petitioner attributed these positive changes to “a healthier home environment.” Petitioner
also testified that she took C.L. to the hospital after he returned from father with a severe
head injury that required staples. Finally, petitioner testified that she does not smoke in
her home.12 Accordingly, we agree with the trial court that factor (5) weighs in favor of
termination.

        The court ruled that factor (6) is inapplicable. Petitioner disagrees and argues that
this factor also weighs in favor of termination. We agree with petitioner. The children
were adjudicated dependent and neglected in parents’ care. Thus, both parents “ha[ve]
shown . . . neglect toward the child[ren.]”

       We also agree with the trial court that factor (7) weighs in favor of termination.
As the court observed, both parents continue to smoke in their homes in violation of the
court’s orders. Each time a CASA representative conducted a home visit with mother,
the smell of smoke was “overwhelming.” Father has also failed to seek treatment for his
alcohol abuse and has not attended therapy to address appropriate insight, judgment, and
impulse control. This further jeopardizes father’s ability to consistently care for the
children in a safe and stable manner.

       The trial court ruled that factor (8) weighs in favor of termination. The court
noted mother’s failure “to complete her mental health evaluation or provide the
assessment to the Court.” The court also noted father’s failure “to comply with the
recommendations of his psychological assessment seeking further therapy to address
appropriate insight, judgment, and impulse control.” We agree that these facts call into
question the mental and emotional health of both parents.

       Finally, factor (9) concerns whether parents have paid child support consistent
with the child support guidelines. The trial court ruled that this factor favors termination.
Mother did not pay any child support from March 2017 to July 2017. She paid $110 in
        12
          Father and maternal grandmother testified that petitioner does smoke in front of the children;
however, a CASA representative testified that “[petitioner’s] home is very appropriate, no safety concerns
whatsoever.” The trial court did not make a specific finding of fact on whether petitioner smokes in her
home, but the court seems to have made an implicit credibility determination in favor of petitioner and the
various social workers who testified at trial.
                                                  - 18 -
August and September 2017 but did not make any payments in October or November
2017. She paid $510.45 in December 2017. Mother also made payments in February,
March, and August of 2018. A few days before trial, mother sold her car to pay $550 in
child support. It is unclear how much support mother still owes. Father did not pay any
child support from March 2017 to November 2017. In December 2017, father’s tax
refund was intercepted. Father also paid a $3,000 cash bond which was used to pay his
child support through April 2018. Father fell behind on payments in the summer of 2018.
A few days before trial, father made another payment. At trial, father testified that he
was less than $1,000 behind. The record supports the trial court’s finding that parents
have failed to pay child support consistent with the guidelines; however, parents’ efforts
to catch up on missed payments somewhat dilutes the significance of this factor.

        In addition to the factors discussed above, it is appropriate to say a few words
about petitioner and her relationship with the children. Petitioner is the maternal great-
aunt of the children. She is a registered nurse and works three days per week from 6:00
a.m. to 7:00 p.m. Petitioner testified that her fiancé, who she has dated for fifteen years,
“helps a lot” with the children. He also works. Petitioner’s mother helps get the children
to and from school; she also babysits the children when petitioner has to work. Petitioner
testified that she “love[s] [the children] with all [her] heart and would do anything
necessary for them.” She intends to adopt the children. A CASA representative testified
about her relationship with the children:

              The children appeared very bonded to [petitioner], they call
              her “auntie” . . . and then they call her fiancé Uncle [M.],
              they’re very comfortable in the home, they’re always doing
              activities, they’re playing games . . . . They’re outside
              playing with different types of ride toys; they’re always clean,
              she’s – if they need redirection she gives them redirection and
              they respond very well to her. I don’t have any concerns
              about the care with [petitioner].


                                      *      *      *


              The home is very appropriate, no safety concerns whatsoever.
              Each child now, when they first came they shared a bedroom,
              but now they each have their own bedroom and the last time I
              was there . . . the kids are very proud of their bedroom[s],
              they – they show off their bedroom and what it’s decorated
              in, . . . they’ve always been very interactive with us when we
              go out to do the visits.

                                           - 19 -
       Considering the totality of the circumstances, there is clear and convincing
evidence that termination of mother and father’s parental rights is in the best interest of
the children. In this case, we think factors (1) and (2) should be given more weight than
some of the other statutory best interest factors. The children were removed from
parents’ custody in September 2016. At the time of trial, nearly two years later, mother
showed no signs of being willing or able to maintain a steady job. Mother also displayed
a complete disregard for the trial court’s orders by failing to attend additional parenting
classes, continuing to smoke in front of the children, and failing to attend or disclose the
results of her mental health evaluation. Father showed no willingness to attend court-
ordered therapy or alcohol and drug treatment. He also failed to attend parenting classes
and continues to smoke in front of the children.

        It is true that both parents consistently visited the children and maintained a
meaningful relationship with them. That is certainly important. See In re Addalyne S.,
556 S.W.3d 774, 795-96 (Tenn. Ct. App. 2018). But “[t]he existence of a meaningful
relationship between the parent and the child . . . does [not] foreclose the possibility that
termination is in the child’s best interest[.]” In re Briana H., No. M2017-02296-COA-
R3-PT, 2018 WL 4191227, at *14 (Tenn. Ct. App., filed Aug. 31, 2018). This is
especially true when the child “also ha[s] a meaningful relationship with the foster
parents,” or other guardians. See In re Holly B.C., No. E2012–00362–COA–R3–PT,
2012 WL 6727609, at *12 (Tenn. Ct. App., filed Dec. 27, 2012). The children clearly
have a close bond with petitioner and her fiancé. Petitioner will be able to financially
support the children. There is no evidence that petitioner has mental health issues or
problems will alcohol. Petitioner’s home is safe and presents no environmental concerns.
Viewed from the children’s perspective, termination of mother and father’s parental
rights is in their best interest.

                                            VI.

       The judgment of the trial court is affirmed as modified by this opinion. Costs on
appeal are taxed to the appellants, H.L. and R.L. This case is remanded, pursuant to
applicable law, for enforcement of the trial court’s judgment and for the collection of
costs assessed below.




                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                           - 20 -
