                                                                                                            10/23/2019
                       IN THE COURT OF APPEALS OF TENNESSEE
                                     AT KNOXVILLE
                            Assigned on Briefs September 4, 2019

                                          IN RE DYLAN S.

                     Appeal from the Circuit Court for Monroe County
                           No. V17320SJ. Michael Sharp, Judge
                         ___________________________________

                                 No. E2018-02036-COA-R3-PT
                            ___________________________________

This is a termination of parental rights case. Mother/Appellant appeals the trial court’s
termination of her parental rights to the minor child on the grounds of: (1) abandonment
by willful failure to visit and to support, Tenn. Code Ann. § 36-1-113(g)(1); (2)
persistence of the conditions that led to the child’s removal, Tenn. Code Ann. § 36-1-
113(g)(3); and (3) failure to manifest an ability and willingness to assume custody or
financial responsibility for the child, Tenn. Code Ann. § 36-1-113(g)(14). Mother also
appeals the trial court’s determination that termination of her parental rights is in the
child’s best interest. Because Appellee did not meet her burden to show that Mother
willfully failed to support the child, and because Appellee did not meet her burden to
show proof of an order in which the child was adjudicated dependent and neglected, we
reverse the trial court’s findings as to these grounds. We affirm the trial court’s
termination of Mother’s parental rights on the grounds of abandonment by willful failure
to visit and failure to manifest an ability and willingness to assume custody or financial
responsibility, and on its finding that termination of Appellant’s parental rights is in the
child’s best interest.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                     Reversed in Part; Affirmed in Part; and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and W. NEAL MCBRAYER, JJ., joined.

Chessia A. Cox, Athens, Tennessee, for the appellant, Tiffany S.1

Wencke West, Cleveland, Tennessee, for the appellees, Marla H.


        1
          In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
                                              OPINION

                                           I. Background

       Dylan S. (“Child”) was born in December 2007 to Tiffany S. (“Appellant,” or
“Mother”) and Kenneth R. (“Father”).2 Mother and Father were never married and have
been in an on-again-off-again relationship for approximately ten years. On June 25,
2008, Marla H., the Child’s maternal grandmother, filed a petition for temporary custody
of the Child in the Hamilton County Juvenile Court. Marla H. filed the petition in
response to an open Child Protective Services investigation alleging instability in the
parents’ home and arrest of Father for drug related charges. The juvenile court removed
the Child from Mother’s custody and placed him with Marla H. (“Appellee”) and her
husband, Justin H. Child has lived with Appellee and Justin H. since 2008.

       On October 28, 2008, the juvenile court granted temporary custody to Appellee
and Justin H. and set the dependency and neglect hearing for November 25, 2009.
Appellee avers that the juvenile court found the Child to be dependent and neglected
based on drug use by the parents, domestic violence between the parents, and instability
of income and housing. However, as discussed, infra, our record does not contain the
juvenile court’s adjudicatory order on dependency and neglect. The record does reveal
that Mother has a history of drug use and criminal activity. On March 8, 2017, Mother
pled guilty to the charge of possession of drug paraphernalia in Hamilton County. In
addition, Mother has been a victim of domestic violence from Father.3

        On December 15, 2017, Appellee and Justin H. filed a petition for adoption and to
terminate Mother’s parental rights. As grounds for termination, Appellee and Justin H.
averred that Appellant: (1) abandoned the Child by willful failure to visit; (2) abandoned
the Child by willful failure to support; (3) failed to remedy the conditions that led to the
Child’s removal; and (4) failed to manifest an ability and willingness to assume custody
or financial responsibility. Appellee and Justin H. further averred that termination of
Mother’s parental rights was in the Child’s best interest. On her pauper’s oath, the trial
court appointed an attorney to represent Appellant and appointed a guardian ad litem for
the Child. Mother filed an answer to the petition, wherein she denied the material
allegations made therein and contested that termination of her parental rights was in the
Child’s best interest.


        2
          Father’s parental rights were also terminated by the trial court; however, he did not appeal.
Accordingly, in the instant appeal, we are concerned only with the termination of Mother’s parental rights
to Child.
        3
          The record contains several True Bills indicating Father violated protective orders issued by
Hamilton County. While the victim is not named in the True Bills, Marla H.’s unrefuted testimony
indicates that Mother obtained a protective order against Father. Marla H. testified that, on multiple
occasions, she witnessed the aftermath of what she described as “beatings” by Father against Mother.
                                                  -2-
       The trial court heard the petition for termination of parental rights on August 1,
2018. Although her court appointed attorney was present, Mother did not appear. By
order of October 15, 2018, the trial court terminated Mother’s parental rights on all
grounds averred in Appellee’s petition and on its finding that termination of Mother’s
parental rights was in the Child’s best interest. Mother appeals.

                                           II. Issues

       There are two dispositive issues:

1. Whether there is clear and convincing evidence to support any of the grounds the trial
court relied on in terminating Mother’s parental rights?

2. If so, whether there is clear and convincing evidence to support the trial court’s
determination that termination of Mother’s parental rights is in the Child’s best interest?

                                   III. Standard of Review

       Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person
seeking to terminate parental rights must prove both the existence of 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 D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).

       Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-
113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence
“establishes that the truth of the facts asserted is highly probable . . . and eliminates any
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied
(Tenn. July 12, 2004). Such evidence “produces in a fact-finder’s mind a firm belief or
                                             -3-
conviction regarding the truth of the facts sought to be established.” Id.

       In light of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). On appeal, we review the trial court’s findings of fact “de
novo on the record, with a presumption of correctness of the findings, unless the
preponderance of the evidence is otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112
(Tenn. 2013); Tenn. R. App. P. 13(d). We must then make our “own determination
regarding whether the facts, either as found by the trial court or as supported by a
preponderance of the evidence, provide clear and convincing evidence that supports all
the elements of the termination claim.” In re Bernard T., 319 S.W.3d 586, 596-97
(Tenn. 2010). We review the trial court’s conclusions of law de novo with no
presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

                     IV. Grounds for Termination of Parental Rights

       Although only one ground must be proven by clear and convincing evidence in
order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this
Court to review every ground relied upon by the trial court to terminate parental rights in
order to prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251
n.14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.

                                    A. Abandonment

      We begin with the ground of abandonment generally. In pertinent part, Tennessee
Code Annotated section 36-1-113(g) provides:

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

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

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 defines
“abandonment,” in relevant part, as follows:

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

                                            -4-
      (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 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)(i)(2017).

      In In re Audrey S., this Court discussed willfulness in the context of the
abandonment ground:

      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 . . . .

      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.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. Aug. 25, 2005) (internal
citations and footnotes omitted). “Whether a parent failed to visit or support a child is a
question of fact. Whether a parent’s failure to visit or support constitutes willful
abandonment . . . is a question of law.” In re Adoption of Angela E., 402 S.W.3d 636,
640 (Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810
(Tenn. 2007)). As previously discussed, this Court reviews questions of law de novo
with no presumption of correctness. Id.

      In its order terminating Mother’s parental rights, the trial court found:
      Based upon all of the above, the court finds by clear and convincing
      evidence that [Mother has] abandoned this child, both for [her] failure to
                                          -5-
       visit and for [her] failure to support this child or to make any reasonable
       payments towards the support of this child. The court finds these actions
       by the parent[] [was] willful. These findings have been proven by clear and
       convincing evidence.

                      1. Abandonment by Willful Failure to Visit

        The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of abandonment by failure to visit. Tenn. Code
Ann. § 36-1-102(1)(A)(i). To constitute abandonment, the failure to visit must be willful,
see discussion supra. We have held that a parent’s failure to visit is willful when it is
“the product of free will, rather than coercion.” In re Audrey S., 182 S.W.3d at 863. The
willful failure to visit must have occurred in the four months immediately preceding the
filing of the termination petition currently before the court. In re D.L.B., 118 S.W.3d
360, 366 (Tenn. 2003).

        In its order terminating Appellant’s parental rights, the trial court made the
following relevant findings concerning abandonment by willful failure to visit:
       The court finds that [Mother] has been in and out of her mother’s house
       throughout the child’s life. . . . The court finds that the mother failed to
       visit during the four months preceding the filing of this petition.

                                            ***

       Furthermore, the court finds that the last time the mother visited this child
       was in May or June of 2017. The court finds that that visit was minimal.

        This court has emphasized that “visitation is not a rote statutory requirement; it is
necessary to maintain the thread of the parent-child relationship[.]” In re Joshua S., No.
E2010-01331-COA-R3-PT, 2011 WL 2464720, at *16 (Tenn. Ct. App. June 16, 2011).
An absence of contact between a parent and child for an extended period of time can lead
to, in effect, the “death” of the relationship. Id.

       Turning to the record, the petition to terminate Appellant’s parental rights was
filed on December 15, 2017; therefore, the relevant four-month time period is from
August 15, 2017 to December 14, 2017. Mother does not dispute the relevant time
period, nor does she dispute that she failed to visit the Child during this period. This fact
is supported by the unrefuted testimony. The evidence shows that the Child has lived
with Appellee and Justin H. since he was six months old. At the time of the termination
hearing, the Child was almost eleven years old. The record shows that Mother knew
where the Child was staying and knew how to contact Appellee to arrange visitation.
Despite this knowledge, the record shows that Mother took no action to visit or to
maintain a relationship with the Child.
                                            -6-
        There is no evidence that Appellee kept Mother from contact with the Child.
Rather, the record clearly and convincingly demonstrates that Mother had the capacity to
visit the Child, made no attempts to do so, and had no justifiable excuse for her failure to
do so. See In re Adoption of Angela E., 402 S.W.3d at 640. We, therefore, affirm the
trial court’s termination of Mother’s parental rights on the ground of abandonment by
willful failure to visit the Child for a period of four consecutive months preceding the
filing of the termination petition.

                    2. Abandonment by Willful Failure to Support

       A parent willfully fails to support his or her child when, for the relevant four-
month period, the parent fails to provide monetary support or fails to provide more than
“token payments” toward the support of the child. Tenn. Code Ann. § 36-1-
102(1)(D) (defining “willfully failed to support” and “willfully failed to make reasonable
payments toward such child’s support”). “Token support” is support that, considering the
individual circumstances of the case, is “insignificant given the parent’s means.” Id. at
(1)(B). This Court has held that failure to pay support is “willful” if the parent “is aware
of his or her duty to support, has the capacity to provide the support, makes no attempt to
provide support, and has no justifiable excuse for not providing the support.” In re
J.J.C., 148 S.W.3d 919, 926 (Tenn. Ct. App. Jan. 23, 2004), perm. app. denied (Tenn.
May 10, 2004) (quoting In Re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003
WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). Although it is undisputed that
Mother paid no support for the Child during the relevant time period, in order to prove
this ground, Appellee had the burden to show that Mother had the capacity to provide
support. In re J.J.C., 148 S.W.3d at 926. As this Court explained:

       It is axiomatic that “in order to establish the ground of abandonment by
       willful failure to support by clear and convincing evidence, the party
       seeking termination must generally ‘submit . . . evidence regarding [the
       parent’s] employment, income, [or] other non-monetary assets,’ as well as
       the parent’s ‘expenses during the four-month period.’” In re Michael B.,
       No. M2015-02497-COA-R3-PT, 2016 WL 7486361, at *11 (Tenn. Ct.
       App. Oct. 6, 2016) (quoting In re Destiny H., No. W2015-00649-COA-R3-
       PT, 2016 WL 722143, at *9 (Tenn. Ct. App. Feb. 24, 2016)). Such
       evidence need not be an accounting of every dollar earned and spent, and it
       need not even be tied to dollars and cents, but it must be clear and
       convincing evidence that the parent had the capacity to pay support, did not
       do so, and had no justification for not doing so.             In the case
       of In re Adoption of Angela E., 402 S.W.3d at 641, in the context of
       examining whether the father’s payments were “token support,” our
       Supreme Court stated that the evidence of the father’s income and expenses
       was “limited at best” and failed to prove that his payments were “token
       support.” See also In re Michael B., 2016 WL 7486361, at *11 (discussing
                                           -7-
       In re Adoption of Angela E. and other cases regarding proof of
       employment, income, other non-monetary assets, and expenses necessary to
       establish a parent’s capacity to pay support).

In re Preston L., No. M2016-02338-COA-R3-PT, 2017 WL 4315356, at *5 (Tenn. Ct.
App. Sept. 27, 2017).

       In its order terminating Mother’s parental rights, the trial court found:

       The court finds that the mother . . . has never provided any meaningful
       support of any kind, or made any reasonable payments toward the support
       of the child for many years. Furthermore, the court finds that on those rare
       occasions when the mother did provide any money to the petitioner herein,
       she always asked the petitioner to give it back to her, which the petitioner
       apparently did. The un-refuted evidence before this court is that the mother
       has not provided any support, or even a birthday card or gift, nor any
       Christmas gift for the child.

        Although the record clearly shows that Mother failed to provide any support for
the Child during the relevant time period, what is lacking from the record is proof that
Mother’s failure to provide support was willful. As noted by this court, “[w]illful
conduct consists of acts or failures to act that are intentional or voluntary rather than
accidental or inadvertent.” In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. Aug.
25, 2005) (citations omitted). In the context of willful failure to support one’s child, the
willfulness criterion must be established, by the party seeking termination, by showing
that the parent had the means and ability to provide support. In re J.J.C., 148 S.W.3d at
926. Here, the record is devoid of any evidence to show Mother’s income, expenses, or
employment history. The absence of such evidence is fatal to the ground of abandonment
by willful failure to support. Appellee contends that the unrefuted testimony that Mother
failed to pay any child support is ipso facto sufficient to prove the ground of
abandonment. We disagree. As discussed above, Appellee not only has the burden to
show that Mother failed to provide support during the relevant time period, but she also
has the burden to show that Mother’s failure to do so was willful. Appellee has failed to
meet her burden to show that Mother’s failure to support was willful; as such, we reverse
the trial court’s termination of her parental rights on this ground.

          B. Persistence of the Conditions that Led to the Child’s Removal

        The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of persistence of the conditions that led to the
Child’s removal from her custody. Tenn. Code Ann. § 36-1-113(g)(3). Tennessee Code
Annotated section 36-1-113(g)(3) defines persistence of conditions as follows:

                                            -8-
       (3) The child has been removed from the home of the parent or guardian by
       order of a court for a period of six (6) months and:

       (A) The conditions that led to the child’s removal or other conditions that in
       all reasonable probability would cause the child to be subjected to further
       abuse or neglect and that, therefore, prevent the child’s safe return to the
       care of the 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 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). The purpose behind the “persistence of conditions”
ground for terminating parental rights is “to prevent the child’s lingering in the uncertain
status . . . if a parent cannot within a reasonable time demonstrate an ability to provide a
safe and caring environment for the child.” In re Arteria H., 326 S.W.3d 167, 178
(Tenn. Ct. App. 2010), overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533
(Tenn. 2015).

       In In re Audrey S., this Court held that based on the statutory text and its historical
development, the ground of persistence of conditions found in Tennessee Code
Annotated section 36-1-113(g)(3) provides a ground for termination of parental rights
only where the prior court order removing the child from the parent’s home was based on
a judicial finding of dependency, neglect, or abuse. In re Audrey S., 182 S.W.3d at 872.
Where the parents have not admitted this element, the petitioner has the burden of
proving it. “[T]he mere suggestion or possibility of an order adjudicating the child
dependent and neglected is not good enough.” In re R.L.M., No. E2013-02723-COA-
R3-PT, 2015 WL 389635, at *3 (Tenn. Ct. App. Jan. 29, 2015) (emphasis added); see
also In re Audrey S., 182 S.W.3d at 872 (holding that a temporary custody order and
preceding restraining order entered in a dependency and neglect proceeding were not
sufficient to make a judicial finding that the child was dependent, neglected, or abused).

       The record contains the following from the juvenile court proceedings: (1) Marla
H.’s petition for temporary custody based on the allegations of dependency and neglect;
(2) findings and recommendations of the juvenile court referee, which were filed on
October 28, 2018. These findings and recommendations are signed by the Special
Referee, but there is no indication that they were adopted as the findings of the juvenile
court. We have conducted a thorough search of the record for evidence of an
adjudicatory hearing. Although Appellee alleges “[t]he grounds for dependency and
                                            -9-
neglect found by the court involved drug use by the parents, domestic violence between
the parents, and instability of income and housing,” the record contains no adjudicatory
order on dependency and neglect. This Court has explained that, in order to meet the
burden of proof for termination of a parent’s parental rights on the ground of persistence
of conditions, the petitioner is “required to offer proof of an order in which the child was
adjudicated dependent and neglected.” In re R.L.M., No. E2013-02723-COA-R3-PT,
2015 WL 389635, *4 (Tenn. Ct. App. Jan. 29, 2015). In In re R.L.M, we explained that

       [d]espite the various indications . . . that there was such a judicial finding of
       dependency and neglect, no adjudicatory order appears of record.
       Consistent with our prior holdings, we conclude that neither the trial court
       nor this Court is permitted to proceed to termination absent clear and
       convincing proof of every necessary element of a ground for termination.

Id. The same is true in this appeal. In the absence of the necessary adjudicatory order on
dependency and neglect, we conclude that Appellees have failed to meet their burden to
show, by clear and convincing proof, that the conditions that led to the Child’s removal
from Mother persist. As such, we reverse the trial court’s termination of Mother’s
parental rights on this ground.

          C. Failure to Manifest an Ability and Willingness to Assume Custody or
                        Financial Responsibility of the Child

      Tennessee Code Annotated section 36-1-113(g)(14) provides a ground for
termination of a parent’s parental rights when he or she:

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

Tenn. Code Ann. § 36-1-113(g)(14). This ground for termination of parental rights was
added to the statute effective July 1, 2016. See 2016 Tenn. Pub. Acts, c. 919, § 20.
Concerning the substantive requirements to meet the burden of proof, in In re Maya R.,
No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018),
we explained that, first, the petitioner must prove that the parent has failed to manifest
“an ability and willingness to personally assume legal and physical custody or financial
responsibility of the child.” Tenn. Code Ann. § 36-1-113(g)(14). Second, the petitioner
must prove that placing the child in the parent’s custody “would pose a risk of substantial
harm to the physical or psychological welfare of the child.” Id.

       Concerning the first prong, i.e., whether the parent has failed to manifest an ability
                                           - 10 -
and willingness to personally assume custody and financial responsibility of the Child,
there has been some disagreement in this Court regarding the measure of proof required
to satisfy this burden. 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:

             As to the first prong [of Tennessee Code Annotated Section 36-1-
      113(g)(14)], the statute requires the party seeking termination to prove a
      negative: that the parent failed to manifest an ability and willingness to
      personally assume legal and physical custody or financial responsibility of
      the child. Here, despite finding that the parents “ha[d not] failed to
      manifest a willingness to assume custody” and that the “parents want these
      children,” the juvenile court concluded DCS proved by clear and
      convincing evidence this ground against both parents. The court based its
      conclusion on the finding that the parents “d[id not] have the ability” to
      personally assume custody of the children.

             In general, “statutory phrases separated by the word ‘and’ are
      usually to be interpreted in the conjunctive.” Stewart v. State, 33 S.W.3d
      785, 792 (Tenn. 2000). In the context of a “negative proof” connected by
      the word “and,” a party “must prove that . . . all” of the listed items were
      not met. Antonin Scalia & Bryan A. Garner, Reading Law: The
      Interpretation of Legal Texts 120 (2012).

              At oral argument, DCS urged that we interpret the word “and” in the
      disjunctive so that it only had to prove an inability or unwillingness of the
      parents to assume custody of the children. Our supreme court has
      “recognized that the word ‘and’ can also be construed in the disjunctive
      where such a construction is necessary to further the intent of the
      legislature.” Stewart v. State, 33 S.W.3d at 792. But because “we generally
      presume that the General Assembly purposefully chooses the words used in
      statutory language,” id.; cf. Scalia & Garner, supra, at 116 (“Under the
      conjunctive/disjunctive canon, and combines items while or creates
      alternatives.”), and the presumption has not been rebutted, we decline to
      adopt DCS’s interpretation here.

             We conclude that Tennessee Code Annotated § 36-1-113(g)(14)
      could not serve as a basis for terminating Mother’s and Father’s parental
      rights. The proof at trial negated a required element of the statutory
      ground. The juvenile court found: “In this case, these parents definitely
      want to assume legal and physical custody of the children and are willing to
      assume financial responsibility for the children.”


                                         - 11 -
       However, in the subsequent case of In re Amynn K., No. E2017-01866-COA-R3-
PT, 2018 WL 3058280 (Tenn. Ct. App. June 20, 2018), a panel of this Court parsed the
conjunctive (as opposed to disjunctive) language used in Tennessee Code Annotated
section 36-1-113(g)(14) and compared the statutory language to other similar statutes
before holding that

       [u]pon consideration of the statutory language and the relevant legal
       authority, we hold that the first prong of Tennessee Code Annotated § 36-1-
       113(g)(14) requires that the petitioner prove that a parent has failed to meet
       the requirement of manifesting both a willingness and an ability to assume
       legal and physical custody of the child or has failed to meet the requirement
       of manifesting both a willingness and an ability to assume financial
       responsibility of the child.

Id. at *14. This dispute continues in cases where a parent manifests a willingness to
assume custody and financial responsibility but is simply unable to do so; however, this
is not such a case. In cases, such as the one at bar, where the parent has manifested
neither a willingness nor an ability to assume custody and responsibility, this Court has
upheld termination of the parent’s parental rights on this ground. See, e.g., In re J’Khari
F., No. M2018-00708-COA-R3-PT, 2019 WL 411538, at *15 (Tenn. Ct. App. Jan. 31,
2019) (noting both In re Ayden S. and In re Amynn K. but ultimately concluding that
DCS presented sufficient evidence that “Mother was not able or willing to assume
physical or legal custody of or financial responsibility for the Child”); In re Colton B.,
No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *9-10 (Tenn. Ct. App. Oct. 29,
2018) perm. app. denied (Tenn. Jan. 22, 2019) (noting the split in authority but holding
that it was unnecessary to choose one approach where the parent had manifested neither
an ability nor a willingness to parent the child). Likewise, here, the trial court found that
Mother has:

       failed to manifest any ability to assume custody of this child. [She]
       continue[s] to plead guilty to criminal charges and drug related offenses,
       even as late as 2017.
                                          ***

       The court is moved by the fact that [Mother] failed to appear at this hearing
       and . . . failed to assist [her] counsel, even though counsel was appointed
       for them and for their benefit.

       The court finds that [Mother] has [not] shown any desire to consistently
       provide for or care for this child, including a willingness and/or ability to
       provide the child with a safe and stable home, and food, shelter and other
       necessities.

                                           - 12 -
From our review of the record, there is clear and convincing proof to support the trial
court’s findings.

        Turning to the record, as recently as 2017, Mother was charged with a drug related
offense. Unrefuted testimony shows that prior to the termination hearing, Mother moved
back into Father’s home despite a protracted history of domestic abuse and violence
between them. As discussed in detail above, Mother has paid no child support in the
relevant four-month period. Further evidence shows that Mother has never sent gifts or
cards to the Child and has failed to acknowledge the Child’s birthday. Marla H. testified
that, even during the few sporadic times Mother lived with Appellee and the Child,
Mother did not take over the Child’s care. Rather, during these times, Marla H. testified
that “as far as like preparing meals or any financial or domestic things, I’ve cared for Dyl
as far as, like everything you would care for a child.” Finally, despite notice of the
hearing, Mother did not appear before the trial court. Mother’s attorney indicated that
she made multiple attempts using various means to contact Mother about the hearing.
Mother’s attorney stated, “I’ve sent letters and left phone messages with other family and
friends[,] but I’ve not spoken to her directly in the time frame from when we had our
phone conference and chose this reset date. . . .” As noted by the trial court, Mother’s
failure to appear and to assist her counsel in preparing a defense is indicative of Mother’s
efforts and care throughout this Child’s life. Even when faced by the possibility of
having her parental rights forever terminated, she failed to make any real effort. This fact
clearly shows a failure to manifest an ability and willingness to assume parental
responsibility.

       Turning to the second prong of Tennessee Code Annotated section 36-1-
113(g)(14), i.e., whether placing the child in the parent’s custody “would pose a risk of
substantial harm to the physical or psychological welfare of the child,” this Court has
explained:

       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.

In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct.
App. Oct. 11, 2018) (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).

       The trial court made the following relevant findings:

                                            - 13 -
       The court finds that [Mother] has [not] demonstrated any ability to protect
       the subject child from exposure to illegal drugs or domestic violence. The
       court finds that [Mother] ha[s] failed to disassociate [herself] from persons
       and/or parties involved with the use and/or distribution of illegal drugs.
       The court further finds that [Mother] has [not] shown any ability to
       maintain stable housing and/or stable home for this child.

       The court finds that [Mother] continue[s] to be unstable, and that [she]
       ha[s] failed to take any reasonable steps to provide a safe, stable home
       environment for [her] child. The court find[s] that [Mother’s] lifestyle[]
       and the individuals that [she] continue[s] to associate with pose a risk of
       substantial harm to the child.

The evidence clearly and convincingly supports the trial court’s findings.

       Turning to the record, the Child testified that he does not enjoy seeing his Mother.
Indeed, it is apparent, from the record, that the Child considers Appellee and Justin H. to
be his parents and finds their home to be a safe and nurturing environment. The Child,
who was almost eleven at the time of the hearing, has resided exclusively with Appellee
and Justin H. for nearly ten years. The Child has done well in the home and, by all
accounts, is happy and well-adjusted. Conversely, the undisputed testimony shows that,
throughout the Child’s life, Mother has engaged in illegal drug use, criminal activity, and
has maintained a generally unstable lifestyle. There is no evidence concerning any
significant steps Mother has taken to remedy her situation so as to make a safe and stable
home for the Child. From the totality of the circumstances and the Child’s own
testimony, we conclude there is clear and convincing evidence that returning the Child to
Mother’s custody “would pose a risk of substantial harm to the physical and
psychological welfare of the Child.” Tenn. Code Ann. § 36-1-113(g)(14). Accordingly,
we affirm the trial court’s termination of Mother’s parental rights on the ground of failure
to manifest an ability and willingness to assume custody or financial responsibility of the
child.

                                         V. Best Interest

       When at least one ground for termination of parental rights has been established,
the petitioner must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). As 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
                                          - 14 -
       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 Tennessee Legislature has codified certain factors that courts should
consider in ascertaining the best interest of the child in a termination of parental rights
case. As is relevant to this appeal, these factors include, but are 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;

                                            ***

       (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;
                                            - 15 -
                                             ***

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

Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. Aug. 11, 2005),
perm. app. denied (Tenn. Nov. 21, 2005). Depending on the circumstances of an
individual case, the consideration of a single factor or other facts outside the enumerated,
statutory factors may dictate the outcome of the best interest analysis. In re Audrey S.,
182 S.W.3d at 877. As explained by this Court:

       Ascertaining a child’s best interests does not call for a rote examination of
       each of Tenn. Code Ann. § 36-1-113(i)’s 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. Thus, depending upon the circumstances of a
       particular child and a particular parent, the consideration of one factor may
       very well dictate the outcome of the analysis.

Moody, 171 S.W.3d at 194.

       Concerning the Child’s best interest, the trial court found:

       [T]he petitioner and her husband have cared for this child most of his entire
       life. The court finds that the petitioner and her husband have provided a
       safe, stable, loving home, and have cared for the child all the days of his
       life. The court finds that the child is apparently thriving in the petitioners’
       home, and that the petitioners have protected this child from the
       destructive, criminal, and potentially harmful behavior of his biological
       parents. The court finds that it is very much in the best interest of this child
       for the termination of the parental rights of [Mother].

The evidence clearly and convincingly supports the trial court’s finding that termination
of Mother’s parental rights is in the Child’s best interest. As discussed above, the Child
has not lived with Mother and has not had consistent, quality time with her since he was
six months old. The Child testified that he likes the house he lives in, the school he goes
to, and living with his grandparents. Conversely, Mother’s lifestyle is unstable. She
engages in drug and other criminal activity. Furthermore, she insists on living with
                                           - 16 -
Father despite the well-established fact that he is violent and abusive. To remove this
Child from the only home he has ever known, which is stable and safe, would likely
cause the Child significant emotional and/or physical harm. This fact, coupled with
Mother’s failure to support or to visit the Child, along with her refusal to even manifest a
willingness or ability to parent him, clearly and convincingly supports the trial court’s
finding that termination of Mother’s parental rights is in the Child’s best interest.

                                      VI. Conclusion

        For the foregoing reasons, we reverse the trial court’s termination of Mother’s
parental rights on the grounds of abandonment by willful failure to support and
persistence of conditions. We affirm the termination of Mother’s parental rights on the
remaining grounds of abandonment by willful failure to visit and failure to manifest an
ability and willingness to assume custody or financial responsibility for the Child, and on
its finding that termination of Mother’s parental rights is in the Child’s best interest. The
case is remanded for such further proceedings as may be necessary and are consistent
with this opinion. Costs of the appeal are assessed to Appellant, Tiffany S. Because
Tiffany S. is proceeding in forma pauperis in this appeal, execution for costs may issue if
necessary.


                                                    _________________________________

                                                    KENNY ARMSTRONG, JUDGE




                                           - 17 -
