                                                                                                            04/17/2020
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             Assigned on Briefs November 1, 2019

                                          IN RE DAISY A.1

                      Appeal from the Juvenile Court for Cocke County
                       No. CU-05749      Brad Lewis Davidson, Judge
                          ___________________________________

                                 No. E2019-00561-COA-R3-PT
                            ___________________________________

A mother whose parental rights to her daughter were terminated appeals the court’s best
interest determination. Upon our review of the evidence, we affirm the trial court’s
holdings that clear and convincing evidence existed to sustain three grounds for
termination and that termination is in the child’s best interest.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

Ryan T. Logue, Newport, Tennessee, for the appellant, Autumn S.

Lucy D. Hooper, Newport, Tennessee, for the appellees, Sandy A. and Grant A.

                                                OPINION

                            I.      FACTUAL AND PROCEDURAL HISTORY

      Daisy A. was born in 2015 in Hamblen County, Tennessee, to Autumn S.
(“Mother”) and Andrew A. (“Father”); at the time she gave birth, Mother was 19 years
old. Mother, Father, and Daisy resided in the home of Father’s parents, Sandy and Grant
A. (“Grandmother” and “Grandfather” or collectively, “Grandparents”). Initially, Daisy
was cared for by Mother and Father in a separate part of the house, but in January 2016,
they moved her into the Grandparents’ portion of the home and the Grandparents
assumed caretaking duties of Daisy. Mother and Father’s relationship was tumultuous,
with daily drug usage; as their relationship deteriorated, Mother moved out of the home

1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
in the fall of 2016.

       In November 2016, Grandmother filed a petition in the Juvenile Court of Cocke
County asserting that Daisy was dependent and neglected and had been found “in [the]
yard surrounded by dogs, alone while parent in house asleep.” The petition alleged that
Mother had been seen smoking marijuana in the home and drinking at a party and has
“stayed gone all night or not come home for several days over past 2 weeks”;
Grandmother sought custody of Daisy. After a hearing, the juvenile court entered an
agreed order placing custody of Daisy with Grandparents and granting them “full
authority to consent to any medical, hospital, scholastic, psychological or insurance care
as needed to provide for the child(ren) while in his/her/their care.” The agreed order was
signed by Mother, Father, Grandmother, and Grandfather.

        Grandparents filed a petition for termination of Mother’s parental rights to Daisy
On January 26, 2018. Father joined in the petition and alleged that he “is the legal and
biological father of the minor child . . . and plans on voluntarily terminating his parental
rights to allow Petitioners to adopt the child if this termination action is successful.”

        As grounds for termination, the petition alleged persistence of conditions, pursuant
to Tennessee Code Annotated section 36-1-113(g)(3); abandonment by willful failure to
visit and support, pursuant to section 36-1-113(g)(1) and 36-1-102(1)(A)(1); and failure
to manifest an ability and willingness to assume legal, physical, or financial responsibility
for the child, pursuant to section 36-1-113(g)(14). The petition also alleged that
termination of Mother’s rights was in Daisy’s best interest.

       Status hearings in the dependent and neglect proceeding were held on April 9 and
May 3; at both hearings, Mother appeared and represented to the court that she was in the
process of retaining an attorney. The trial court appointed a guardian ad litem on April 9.
On June 5, Grandparents moved for a default judgment due to Mother’s failure to file an
answer or otherwise make a defense, despite appearing before the court twice and
representing that she was hiring an attorney; the matter was set for June 14, but there is
no indication in the record that a hearing on the default judgment was held on that date.

        On August 3, Grandparents moved the court to order Mother to undergo urine and
hair follicle drug screenings. A hearing on the motion was held on August 14 and an
order entered the same day; the order recites that Mother agreed to submit to a urine drug
screen which “was done in court” that day and “was positive for marijuana,” and to
undergo a hair follicle drug screen on August 17. An August 22, 2018 report of the
results from the hair follicle drug screen was entered as an exhibit at trial and indicates
that Mother tested positive for marijuana.

      A trial was held on the petition to terminate Mother’s rights on March 5 and 8,
2019, at which five witnesses testified: Mother, two of Mother’s coworkers,
                                         -2-
Grandmother, and Mother’s mother; 39 exhibits were entered into evidence. On March
18 the court entered an order terminating Mother’s parental rights on the grounds of
abandonment by willfully failing to support and visit Daisy and Mother’s failure to
manifest an ability and willingness to assume custody of Daisy, such that that placing
Daisy in Mother’s custody would pose a risk of substantial harm to her physical or
psychological welfare. The court also found by clear and convincing evidence that
termination of Mother’s rights was in Daisy’s best interest. An amended order was
entered on March 25; the only difference is that the amended order removed a provision
that had relieved Mother’s attorney and the Guardian ad litem from further
representation. Mother timely filed her notice of appeal, and does not contest the court’s
holdings that the evidence supports the grounds upon which her rights were terminated;
she only appeals the findings that four statutory factors render it in Daisy’s best interest
to terminate Mother’s parental rights.

                                II. STANDARD OF REVIEW

        Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s
rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one
ground need be proved, so long as it is proved by clear and convincing evidence. In the
Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

       Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
                                            -3-
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).

                                      III. ANALYSIS

       Even though Mother only appeals the court’s best interest determination, we are
obliged to first consider whether the evidence clearly and convincingly established that
grounds existed to terminate Mother’s rights. In re Carrington, 483 S.W.3d 507, 525-26
(Tenn. 2016) cert. denied sub. nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137
S. Ct. 44 (2016) (“[I]n 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 interests, regardless of whether the parent
challenges these findings on appeal.”).

        At the beginning of the trial, Grandparents informed the court that they were not
pursuing termination on the ground of persistence of conditions because there had not
been an adjudication of dependency and neglect. Accordingly, the court made no findings
with respect to that ground and did not terminate Mother’s rights on that ground. We will
examine the proof relative to the three other grounds to determine whether clear and
convincing evidence exists in the record to establish the grounds of abandonment by
failure to visit and support and failure to manifest a willingness to assume custody.

   A. Grounds for Termination

       1. Abandonment

       Abandonment is identified as a ground for termination in Tennessee Code
Annotated section 36-1-116(g)(1); at the time the petition was filed, “abandonment” was
defined at section 36-1-102(1)(A) as:

       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 parent or parents or the guardian or guardians
              of the child who is the subject of the petition for termination of
              parental rights or adoption, that the parent or parents or the guardian
                                            -4-
                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[.]

       Tenn. Code Ann. § 36-1-102(1)(A).2 Because the petition for termination was
filed on January 26, 2018, the pertinent time period in this case is September 26, 2017 to
January 25, 2018.

       In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), this Court discussed
willfulness in the context of termination cases:

        The concept of “willfulness” is at the core of the statutory definition of
        abandonment. A parent cannot be found to have abandoned a child under
        Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either
        “willfully” failed to visit or “willfully” failed to support the child for a
        period of four consecutive months. . . . In the statutes governing the
        termination of parental rights, “willfulness” does not require the same
        standard of culpability as is required by the penal code. Nor does it require
        malevolence or ill will. Willful conduct consists of acts or failures to act
        that are intentional or voluntary rather than accidental or inadvertent.
        Conduct is “willful” if it is the product of free will rather than coercion.
        Thus, 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. . . . Failure to visit
        or support a child is “willful” when a person is aware of his or her duty to
        visit or support, has the capacity to do so, makes no attempt to do so, and
        has no justifiable excuse for not doing so. Failure to visit or to support is
        not excused by another person’s conduct unless the conduct actually
        prevents the person with the obligation from performing his or her duty . . .
        or amounts to a significant restraint of or interference with the parent’s
        efforts to support or develop a relationship with the child. The parental
        duty of visitation is separate and distinct from the parental duty of support.
        Thus, attempts by others to frustrate or impede a parent’s visitation do not

2
   Effective July 1, 2018, the the Tennessee General Assembly “amended this subsection to remove the
element of willfulness from the decision of abandonment by failure to support or visit. Rather than
include willfulness as an element of the ground, Tenn. Code Ann. § 36-1-102(1) now provides that it is an
affirmative defense[.]” In re Alexis S., No. E2018-01989-COA-R3-PT, 2019 WL 5586820, at *3 n.4
(Tenn. Ct. App. Oct. 29, 2019) (citing Tenn. Code Ann. § 36-1-102(1)(I) (2019)). Although the trial took
place after the amendment took effect, the amended version of the statute is not to be applied to a
termination petition filed prior to the statute’s effective date. See In re Gabriel B., No. W2017-02514-
COA-R3-PT, 2018 WL 3532078 at *4 n.7 (Tenn. Ct. App. July 23, 2018) (citing In re D.A.H., 142
S.W.3d 267, 273 (Tenn. 2004)).


                                                  -5-
       provide justification for the parent’s failure to support the child financially.

       The willfulness of particular conduct depends upon the actor’s intent.
       Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
       peer into a person’s mind to assess intentions or motivations. Accordingly,
       triers-of-fact must infer intent from the circumstantial evidence, including a
       person’s actions or conduct.

Id. at 863-64 (citations and footnotes omitted).

               a. Abandonment by Failure to Support

       The petitioner has the burden of proving a parent’s income and ability to pay when
establishing willful failure to support. In re Anna B., No. M2016-00694-COA-R3-PT,
2017 WL 436510, at *7 (Tenn. Ct. App. Feb. 1, 2017) (no perm. app. filed). This can be
established through evidence showing the parent was able to support the child. In re
Noah B.B., E2014-01676-COA-R3-PT, 2015 WL 1186018 at *9 (Tenn. Ct. App. Mar.
12, 2015) (no perm. app. filed). Mother testified that she did not pay money to
Grandparents during the time period of September 26, 2017 to January 25, 2018, for the
support of Daisy.

        With respect to her ability to pay during the period at issue, Mother testified that
she worked at Olive Garden restaurant in November, and from November 13, 2017 until
May 14, 2018, and estimated that she made $300 “[o]n weeks I worked full hours” there;
that, prior to that job, she worked at Ruby Tuesday’s restaurant, but left “the last week of
September maybe or the first week of October,” and made $250 to $300 per week
bartending there. Mother also testified that she earned $200 being a disc jockey on two
separate occasions. Her 2017 tax return shows that she made slightly more than $13,000
in wages, salaries, and tips that year. Mother also testified that she received money from
her mother in the fall of 2017; at trial, she testified that her mother gave her $50, but
agreed that she had previously testified in her deposition that her mother had given her
$100-$150 for her birthday in September 2017.3

        With respect to her expenses, Mother testified that during the pertinent time
period, she had a car payment of between $260-$270 per month; car insurance of
approximately $90 per month; $50 per month for her phone; that she didn’t pay rent or
utilities during the fall of 2017; that she spent around $15 a day on food for herself and
$40 a week on food for her dog. Pertinent to this issue, but not considered as expenses
3
    Mother testified that she has always been able to find employment and worked at Ole Smokey
Moonshine from July 5, 2016 through April 24, 2017, where she made $300-$400 per week. At the time
of trial, she was working one or two days a week at the Double S Wine Bar in Knoxville and at the Chop
House in Fountain City.

                                                -6-
for purposes of our inquiry, is Mother’s testimony that during the relevant time period,
she bought marijuana and was using it every other day; that she spent $65 on a “quarter”
of marijuana in November 2017; that in the last week of September 2017, she traveled to
Ohio with her then-boyfriend and spent between $250 and $275 for a ticket to the four-
day Lost Lands Festival, where she smoked pot and drank; and that she traveled to
Knoxville and paid $15 or $20 to see a concert.

       As for in-kind support, Mother testified that she had bought a box of diapers “a
few times.” Grandmother testified that Mother provided “two things of diapers and a
couple . . . bags of wipes one time.” As for other support Mother provided Daisy,
Grandmother testified that Mother’s visits with Daisy usually took place at fast food
restaurants where Grandmother bought Daisy’s food; that Daisy’s birthday and Christmas
fell during the pertinent time period, and Mother did not provide any gifts for Daisy’s
birthday and that Mother gave Daisy approximately $15 worth of toys as Christmas
presents at the visitation the week prior to Christmas.

       The trial court made thorough factual findings in this regard, none of which are
challenged by Mother on appeal, and concluded that clear and convincing evidence
existed to establish this ground for termination. From our review of the record, the trial
court’s findings are supported by the testimony and exhibits in the record. The evidence
makes clear that Mother had the capacity to work during the relevant time period and did
work for much of it, which provided her the means to pay her expenses as well as
providing discretionary funds for travel and entertainment. Clear and convincing
evidence shows that Mother’s failure to support Daisy was willful, and we affirm the
court’s holding in that regard.

              b. Abandonment by Failure to Visit

       The trial court held that “[t]here exists clear and convincing evidence of
Respondent’s abandonment of the minor child for willful failure to visit and the visitation
that occurred during the pertinent time period was ‘token visitation.’” The order contains
numerous factual findings relating to this ground, none of which are disputed by Mother.
Upon our review, we conclude that the evidence supports the trial court’s factual findings
and holding.

        Tennessee Code Annotated section 36-1-102(1)(C) defines “token visitation” as
“visitation, under the circumstances of the individual case, [that] constitutes nothing more
than perfunctory visitation or visitation of such an infrequent nature or of such short
duration as to merely establish minimal or insubstantial contact with the child.” As this
Court stated in In re Jayvien O.:

               Determining whether Mother’s visitation amounted to token
       visitation “requires that we examine the frequency, duration, and quality of
                                           -7-
        the visits that occurred.” In re Keri C., 384 S.W.3d 731, 750 (Tenn. Ct.
        App. 2010). To determine whether visitation was sufficient, “the court
        should consider quality as well as quantity.” In re L.J., No. E2014–02042–
        COA–R3–PT, 2015 WL 5121111, at *4 (Tenn. Ct. App. Aug. 31, 2015) (no
        perm. app. filed). The concept of visitation requires “‘much more than a
        mere physical presence.’” Id. (quoting State Dep’t of Children’s Servs. v.
        L.L.T., No. E2003–00501–COA–R3–JV, 2003 WL 23094559, at *4 (Tenn.
        Ct. App. Dec. 30, 2003)).

No. W2015-02268-COA-R3-PT, 2016 WL 3268683, at *6 (Tenn. Ct. App. June 7, 2016).

        Exhibit 36, a record of Mother’s visits which Grandmother prepared, shows that
Mother had five visits totaling 9.5 hours during the pertinent time period; Mother testified
that the visits were scheduled to accommodate Daisy’s schedule, as well as her own and
the Petitioners’ schedule.4 Grandmother testified that Mother was forty minutes late at
the first visit and appeared to be hungover because she “s[a]t at the picnic table with the
head on the table”; that Mother showed up to another visit dressed in a T-shirt and fishnet
stockings and heavy makeup; that at other visits, Mother spent a lot of time on her phone
and that Grandmother would have to prompt Mother to take Daisy to the playground
rather than sitting at the table and talking to Grandmother because “it was supposed to be
time for her and Daisy”; that she did not deny Mother visitation and that Mother never
asked to visit Daisy for a full day or overnight. With particular relevance to the quality of
Mother’s visits and, by extension, her relationship with Daisy, Grandmother testified that
Daisy does not mention or ask about Mother in between visits, describing their
relationship as follows:

        She is no more familiar with Autumn really than she with other people that
        we see in our lives at church or at, you know, places we visit. She sees
        Autumn as someone that she plays with sometimes but she doesn’t really
        have that connection with her like a child would typically have with a
        mother figure and see her as someone that’s caring for her.

        ***

        She does connect the word mommy to Autumn but she has also called other
        people mommy. She has called Autumn’s mother mommy at a recent visit
        to McDonald’s. . . . Autumn’s mom was saying, . . .” What’s my name?”
        And she called her mommy. She has called . . . my son’s girlfriend mommy

4
  Additionally, in her deposition, which was admitted as an exhibit at trial, Mother agreed that her visits
were not meaningful because they were “not long enough” but that “it [was] like all the time, I guess, we
could work out with [Grandmother’s] schedule and my schedule and Daisy’s eating, sleeping, whatever
schedule.”
                                                   -8-
       as well so the term to her is not necessarily been solely connected to
       Autumn.

        The foregoing testimony shows that Mother was able to visit Daisy and only
visited her five times during the relevant four-month period. Although Daisy’s birthday
and the Christmas holidays fell during that time period, Mother did not ask for or attempt
to visit with Daisy on those days. During the five visits, the evidence shows that Mother
was not fully present and engaged with Daisy but, rather, spent much of their time
together on her phone, such that her interaction with Daisy was minimal and
insubstantial. Mother’s behavior was willful within the meaning of section 36-1-
102(1)(A)(i), and we agree with the trial court that the evidence that Mother’s visits
amount to token visitation and that she did not make a reasonable attempt to establish a
meaningful relationship with Daisy is clear and convincing; we affirm the holding that
Mother has abandoned Daisy by willfully failing to visit her.

       2. Failure to Manifest an Ability and Willingness to Assume Custody

       Tennessee Code Annotated section 36-1-113(g)(14) provides:

       A legal parent or guardian has failed to manifest, by act or omission, an
       ability and willingness to personally assume legal and physical custody or
       financial responsibility of the child, and placing the child in the person’s
       legal and physical custody would pose a risk of substantial harm to the
       physical or psychological welfare of the child.

        This ground requires the petitioner to prove two elements by clear and convincing
evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, Petitioners must prove that
Mother failed to manifest an ability and willingness to personally assume legal and
physical custody or financial responsibility of Daisy. Tenn. Code Ann. § 36-1-
113(g)(14). Then, they must prove that placing Daisy in Mother’s custody would pose a
risk of substantial harm to her physical or psychological welfare. Id.

       In In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7
(Tenn. Ct. App. May 31, 2018), a panel of this Court held that a party seeking to
terminate a parent’s rights must prove by clear and convincing evidence that the parents
failed to manifest both an ability and a willingness to personally assume legal and
physical custody of the child or that they failed to manifest an ability and a willingness to
personally assume financial responsibility for the child. When evaluating ability, we
focus “on the parent’s lifestyle and circumstances.” Id. “When evaluating willingness,
we look for more than mere words.” Id. Rather, a parent must have demonstrated
willingness “by attempting to overcome the obstacles that prevent them from assuming
custody or financial responsibility for the child.” Id.

                                            -9-
      The court made numerous findings with respect to this ground, which related to
Mother’s lifestyle, drug usage, mental health, lack of safe, stable, and drug-free housing,
and her paramours, none of which findings are contested by Mother. Upon our review,
we conclude that all of the findings are supported by clear and convincing evidence.

       With respect to her housing arrangement, Mother testified that, at the time of trial,
she did not have her own home and was living with her boyfriend Cody at his parents’
home:

       Q: You live with Cody, your boyfriend . . . ; right?
       A: Yes.
       ***
       Q: Okay. Is this house appropriate for Daisy? Did you say there would be a
       room for her?
       A: Yes.
       Q: Okay. Is that set up for Daisy right now? Do you have any beds or...
       A: Yes. There’s big bed and a TV and basic things, yes.
       Q: Okay. What kind of bed is it? Did you say it was futon?
       A: Well it was and we bought a brand new like a new like huge mattress for
       it. Like it’s more comfortable than our bed honestly so...(witness paused)...
       Q: Okay. Who lives in the home?
       A: Right now me, Cody and his parents as well but they have another home
       they own that they’re like renovating but they plan on being back out of in
       the next few weeks and sell this house or... ...rent it out or...(witness
       paused)...I don’t know.
       Q. So there’s four (4) of you in the home right now?
       A: Yes.
       Q: And how many bedrooms?
       A: Three (3) and then an extra like office space room that could be a
       bedroom if we needed it.
       Q: Okay. Have you asked Cody’s parents if...if you did get Daisy back if
       she could live there?
       A: Yes they’re excited. They want to meet her and be involved in her life as
       well.
       Q: Okay. And if you break up with Cody, what’s the plan?
       A: I could always go home if I wanted to. But like I said, I mean, I have no
       short coming of people who love me and are willing to love Daisy just as
       much and have a house over my head anywhere I needed to be.
       Q: Do you feel like your mom’s house is appropriate for Daisy?
       A: Now, yes.
       Q: Has it been in the past?
       A: It wasn’t before. There was way too many people living there and it just
       was not as clean as it should [have] been and mom has went above and
                                            - 10 -
       beyond to redo. They’ve redone...finished the floors... ...they’ve moved a
       lot of the stuff that was cluttered into a storage building[.]

        In addition to the testimony recounted earlier of Mother’s conduct and behavior
during the period of September 26, 2017 to January 25, 2018, evidence was also
introduced of Mother’s social media accounts which contained numerous posts
referencing drug use; Mother testified that she has used drugs, specifically marijuana,
since she was a freshman in high school; that she “smoked weed a couple of times” while
she was pregnant with Daisy; that she does not consider marijuana to be a drug and that
she had traded items for marijuana; that she did not feel her marijuana usage affected her
ability to work in any way; that she continued to use marijuana after custody of Daisy
was placed with Grandparents and that she failed urine and hair follicle drug screens in
August 2018; and that she tried cocaine one time and “tried acid twice in my whole life.”

       With respect to Mother’s employment, Bernadette McCann, the Human Resources
Director for Westgate Resorts, testified that Mother had been employed by Westgate but
was terminated “due to vaping marijuana on property,” which was a violation of the
company’s drug policy. Mr. Glenn Brown, Director of Sales for Westgate Smokey
Mountain Resorts, testified that Mother admitted to him that she used marijuana on
company property. He also testified that Mother had “numerous infractions” such as
“being late, refusing to . . . take a tour, which is basically her job description, and . . .
sometimes even being insubordinate.”

       With respect to her mental health, Mother testified as follows:

       Q: Okay. Do you plan on staying THC free?
       A: Maybe for a little while, yeah. Just using the CBD for anxiety
       and...(witness paused)...
       Q: Okay. Well that brings us to your anxiety. Have you ever done like a
       mental health assessment? Have you ever sought treatment?
       A: Yes from my doctor and stuff and that’s what they classified like as bad
       anxiety.
       ***
       Q: Did they tell you what you needed to do to maybe help your anxiety?
       A: Well pretty much like, it was talked about like CBD oil actually... when
       it first become a big thing. . . . And they prescribed me I guess anti-
       depressants and stuff. I tried taking those for like a week and it was worse
       than being depressed and anxiety because you feel numb and... that’s worse
       than not feeling anything so I’d rather not.
       Q: Did...did you schedule up a follow up appointment with your provider to
       tell them that you didn’t like the medication?
       A: Yes I did and they were just like, “Well it’s your choice if you want to
       take it or not,” and I chose not to and I didn’t get it refilled or anything.
                                             - 11 -
      Q: Did they give you any other suggestions of things that you could do,
      maybe like therapy?
      A: Yeah kind of more like we talked about like nature therapy like hiking,
      like just other ways, taking even a drive on pretty day or something helps
      relieve me like...
      Q: And how would...how would you say your mental health is right now?
      A: Really good, I’m in a way better mental state. I love life and the
      beautiful side of things now.

        Considering the foregoing testimony and the exhibits in the record, the holding
that Mother has failed to manifest an ability or willingness to personally assume legal and
physical custody or financial responsibility of Daisy is supported by clear and convincing
evidence. Mother has made one $40 payment to Petitioners since Daisy was placed in
their custody and has made no serious attempts to regain custody of her child. She
testified that she contacted attorneys and came away from those meetings knowing that it
would have been a “joke” for her to file a Petition for Visitation and that she knew what
she needed to do to assume legal and physical custody of the minor child. Mother’s
actions since 2016 do not show her desire or willingness to take care of the child; her
focus has clearly been elsewhere. Although the petition to terminate her rights had been
pending for more than a year at the time of trial, Mother had not secured stable housing;
the home where she resided at the time of trial belonged to her boyfriend’s parents who
“plan on being back out of [the house] in the next few weeks and sell this house or... rent
it out or... I don’t know.”

      We have not been cited to any evidence from which to conclude that Mother has
shown a serious desire to assume responsibility for Daisy, or the ability to do so,
assuming there were a desire.

       Considering the second element of this ground, this Court has observed the
following regarding the requirement of “substantial harm”:

              The courts have not undertaken to define the circumstances that pose
      a risk of substantial harm to a child. These circumstances are not amenable
      to precise definition because of the variability of human conduct. However,
      the use of the modifier “substantial” indicates two things. First, it connotes
      a real hazard or danger that is not minor, trivial, or insignificant. Second, it
      indicates that the harm must be more than a theoretical possibility. While
      the harm need not be inevitable, it must be sufficiently probable to prompt a
      reasonable person to believe that the harm will occur more likely than not.

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

      Mother acknowledged her continued drug use until two and half weeks before
                                     - 12 -
trial, her continued vaping of CBD oil, her belief that marijuana is not a drug, and that the
man she currently lives with continues to smoke marijuana on a daily basis. Mother
testified that she quit smoking marijuana shortly before the termination hearing in order
to qualify for a job she wanted. The evidence clearly and convincingly establishes that
Mother does not have a stable housing situation and that her history of drug use and her
decision to live with someone who smokes marijuana on a daily basis pose a risk of
substantial harm to Daisy’s physical and psychological welfare. Accordingly, we hold
that this ground for termination was established by clear and convincing evidence and
affirm the trial court’s holding in that regard.

       B. Best Interest

        Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is in the best interest of the child for the
parent’s rights to be terminated, again using the clear and convincing evidence standard.
In re Valentine, 79 S.W.3d at 546. The Legislature has set out a list of factors at
Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the
child’s best interest.5 The list of factors in the statute “is not exhaustive, and the statute

5
    The factors at Tennessee Code Annotated section 36-1-113(i) are:

          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 interest to be in
                  the home of the parent or guardian;
                  (2) Whether the parent or guardian has failed to effect a lasting adjustment after
                  reasonable efforts by available social services agencies for such duration of time
                  that lasting adjustment does not reasonably appear possible;
                  (3) Whether the parent or guardian has maintained regular visitation or other
                  contact with the child;
                  (4) Whether a meaningful relationship has otherwise been established between
                  the parent or guardian and the child;
                  (5) The effect a change of caretakers and physical environment is likely to have
                  on the child’s emotional, psychological and medical condition;
                  (6) Whether the parent or guardian, or other person residing with the parent or
                  guardian, has shown brutality, physical, sexual, emotional or psychological
                  abuse, or neglect toward the child, or another child or adult in the family or
                  household;
                  (7) Whether the physical environment of the parent’s or guardian’s home is
                  healthy and safe, whether there is criminal activity in the home, or whether there
                  is such use of alcohol, controlled substances or controlled substance analogues as
                  may render the parent or guardian consistently unable to care for the child in a
                  safe and stable manner;
                  (8) Whether the parent’s or guardian’s mental and/or emotional status would be
                                                       - 13 -
does not require every factor to appear before a court can find that termination is in a
child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-
PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue
we are also mindful of the following instruction in White v. Moody:

       [A]scertaining a child’s best interests in a termination proceeding is a fact-
       intensive inquiry requiring the courts to weigh the evidence regarding the
       statutory factors, as well as any other relevant factors, to determine whether
       irrevocably severing the relationship between the parent and the child is in
       the child’s best interests. The child’s best interests must be viewed from
       the child’s, rather than the parent’s, perspective.

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).

The Tennessee Supreme Court recently explained:

       Facts considered in the best interests analysis must be proven by “a
       preponderance of the evidence, not by clear and convincing evidence.” In
       re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
       861). “After making the underlying factual findings, the trial court should
       then consider the combined weight of those facts to determine whether they
       amount to clear and convincing evidence that termination is in the child’s
       best interest[s].” Id. When considering these statutory factors, courts must
       remember that “[t]he child’s best interests [are] viewed from the child’s,
       rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
       Indeed, “[a] focus on the perspective of the child is the common theme”
       evident in all of the statutory factors. Id. “[W]hen the best interests of the
       child and those of the adults are in conflict, such conflict shall always be
       resolved to favor the rights and the best interests of the child....” Tenn.
       Code Ann. § 36–1–101(d) (2017).

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

        The trial court made findings with respect to factors (1), (3), (4), (5), (6), (7), (8),
and (9). On appeal, Mother takes issue with the Court’s findings relative to factors (1),
(4), (5), and (8). The court’s specific findings relative to those factors were:

              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.

                                              - 14 -
[1] Respondent has failed to make such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the child’s best interest to
be in her home. She continues to use drugs and has recently lost a good job
due to drug use. She has tested positive for drugs in this action and testified
she would test positive at the time of the hearing. She has a pattern of living
with boyfriends who utilize drugs and is currently living with a boyfriend
whose parents own the home and where having and using marijuana in the
home is acceptable. Respondent admitted she needed a more stable home
and one to call her own. She has presented no proof to this court that she
has a stable, drug free home. Since the minor child was removed from her
custody, Respondent has presented no objective evidence to adjustments to
her circumstances in a positive manner and she has not adjusted her
conduct so that is would be safe for the minor child and the child's best
interest to be in her home.

***

[4] Respondent ha[s] had visits with the minor child; however, the court
finds there exists no meaningful relationship with the child and the court
incorporates its findings under paragraph eleven (11) above [relating to the
three grounds for termination]. There was no evidence presented to show
that if Respondent’s parental rights are terminated it would affect the minor
child in a negative way.

[5] A change of caretakers and physical environment is likely to have an
extremely negative impact on the child’s emotional, psychological and
medical condition as she is doing well and thriving in the home with
Petitioners. The evidence showed she is safe, stable and happy in the home
with Petitioners which is the only home he has ever known. The child is
highly social and well adjusted and at her age needs the structure and
stability provided by Petitioners.

***

[8] Respondent’s mental and/or emotional status would be detrimental to
the child or prevents Respondent from effectively providing safe and stable
care and supervision for the child. Respondent reported suffering mental
health issues and was prescribed medications which she refused to take.
She has a history of threatening suicide and holding a gun to her head. She
testified she needed a healthier mindset for the minor child.

With respect to factor (1), Mother contends on appeal that “there is insufficient
                                  - 15 -
proof to indicate Mother failed to adjust her circumstances from the time [the] child came
into Petitioners/Appellees’ custody.” To support this position, she cites to one page of her
testimony that her boyfriend’s family “is excited at the possibility of the child coming to
live with them.”

       With respect to factor (4), Mother argues that the record does not indicate that
Mother has failed to maintain regular visitation; in support, she cites her testimony that at
the end of a visit a few weeks prior to the termination hearing, “Daisy was asking to
please stay with her mommy and play.”

        With respect to factor 5, Mother argues that being reduced to a complete stranger
“could have equally detrimental emotional or psychological impacts on the child.” She
faults the Petitioners for not offering expert testimony that removing [the] child from her
current caregivers would have “detrimental emotional and psychological effects,” But
does not cite to evidence that preponderates against the trial court’s finding that Daisy is
doing well and thriving, and that Daisy needs the structure and stability provided by the
Petitioners.

        With respect to factor (8), Mother states that while the Court commented that
Mother “still act[s] like a teenager” and “still want[s] to go to parties, . . . to concerts,
. . . to party and drink and smoke pot,” it also complemented her on her work ethic.6
Mother argues that she “has potential to be a provider to her child given the opportunity”
and, to support this assertion, cites to her testimony that she has worked since she was 16
years old and recently quit smoking pot for two and a half weeks so that she could obtain
better employment.

       We have carefully considered the testimony on which Mother relies in arguing that
the evidence preponderates against the trial court’s factual findings. The testimony cited
by Mother, placed in context and viewed with the other testimony and exhibits, does not
preponderate against the trial court’s findings. We have carefully reviewed the entire
record in this case. We are of the firm conviction that the trial court’s findings at to
Daisy’s best interest are supported by the record. In addition to the evidence we have
detailed in our discussion of the grounds for termination, we also find the following
evidence pertinent to the best interest determination.

       The testimony and photographic evidence show that Mother neglected Daisy in
her early infancy. Grandmother testified that the child would go for hours without having
her diaper changed and that the portion of the home in which Mother, Father, and Daisy
lived was filthy, with dirty diapers lying around and that drugs and drug paraphernalia
were present. Grandmother also testified that Mother was ambivalent about spending

6
  Those statements by the Court were made in the course of its oral ruling, and were not incorporated into
the final order.
                                                 - 16 -
time with Daisy and that Mother would not come home at night or come home very late.
Mother testified that she has struggled with anxiety and depression has addressed her
diagnosed mental health issues by self-medicating with marijuana and vaping CBD oil.
The evidence also shows that Mother’s current living environment is unstable and not
suitable for a child. Mother is living with her boyfriend in his parent’s home that they
might sell or rent out at any point. Though Mother testified that there was a room for
Daisy in the house and that she had sent photos of it to her attorney, no photos were ever
made part of the record. Moreover, her testimony about the presence of drugs and her
boyfriend’s use of drugs (and his parents’ acquiescence to that use) illustrates that the
home is not suitable for a child. We have already held that the record contains clear and
convincing evidence that Mother has failed to provide support for Daisy and has failed to
maintain regular contact or otherwise establish a meaningful relationship with Daisy such
that Daisy calls many people “Mommy” and views Mother as a playmate.

       Mother testified that Sandy was properly feeding Daisy, that Grandparents have
provided for her needs and are dependable people, that Daisy is happy, doing well and
being cared for. Grandmother testified that Daisy calls their house “home” and has her
own room there. She described Daisy’s relationship with her and Grandfather as “very
strongly bonded.” When asked what effect changing caretakers would have on Daisy,
Grandmother testified:

       I think it would be very devastating to Daisy. Daisy is a very habitual...has
       a very habitual personality. She has high expectations that things are going
       a certain way. She tends to have a little bit almost of an OCD character. In
       fact, it’s to the point we’ve even discussed it with a pediatrician. Just things
       like the placement of certain items, if they’re not in the particular order that
       she thinks that they’re supposed to be and that they’re always...you know,
       the salt and pepper on the table or her toys and where they’re stored and
       those kinds of things, then she will get upset and she cannot settle until
       those things are put into their place and so she is very much aware of those
       types of things. . . .

       The record clearly establishes termination of Mother’s parental rights is in Daisy’s
best interest.

                                     IV. CONCLUSION

       For the foregoing reasons, we affirm the termination of Mother’s parental rights.




                                                     RICHARD H. DINKINS, JUDGE
                                            - 17 -
