                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      May 14, 2015 Session

                                  IN RE JAMEL H., ET. AL.1

                  Appeal from the Juvenile Court for Hamilton County
                  Nos. 259926, 259927  Hon. Robert D. Philyaw, Judge


                  No. E2014-02539-COA-R3-PT-FILED-JULY 13, 2015


This is a termination of parental rights case in which the Tennessee Department of
Children‟s Services filed a petition to terminate the parental rights of the mother to her
two minor children and of the father to his minor child that he shared with the mother.
Following a bench trial, the trial court found that clear and convincing evidence existed
to support the termination of the mother‟s parental rights on the statutory grounds of
abandonment for failure to visit, abandonment for failure to provide a suitable home, and
failure to comply with the requirements contained in the permanency plan. The court
found that clear and convincing evidence existed to support the termination of the
father‟s parental rights on the statutory grounds of abandonment for failure to provide a
suitable home and failure to comply with the requirements contained in the permanency
plan. The court also found that termination of each parent‟s rights was in the best interest
of the children. The parents appeal. We affirm the court‟s termination of the mother‟s
parental rights but reverse the court‟s termination of the father‟s parental rights.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY and THOMAS R. FRIERSON, II, JJ., joined.

Rachel M. Wright, Chattanooga, Tennessee, for the appellant, Ann H.

David C. Veazey, Chattanooga, Tennessee, for the appellant, Johnny J.




1
  This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
Herbert H. Slatery, III, Attorney General and Reporter, and Rebekah A. Baker, Senior
Counsel, Nashville, Tennessee, for the appellee, State of Tennessee, Department of
Children‟s Services.

                                              OPINION

                                       I.      BACKGROUND

       Jamel H. was born to Ann. H. (“Mother”) in April 2005.2 Breanna J. was born to
Mother and Johnny J. (“Father”) in July 2009. Mother lived with Father, who assisted
her in caring for Jamel and Breanna (collectively “the Children”) until he was arrested for
violating his probation on November 4, 2011. He was subsequently ordered to serve a
ten-year sentence and was incarcerated at Turney Center Industrial Complex. The
Children remained with Mother, who moved in with her father and her uncle. Mother
had received assistance from the Tennessee Department of Children‟s Services (“DCS”)
as a minor due to her father‟s use and manufacturing of methamphetamines. Mother
eventually left Jamel at the residence and took Breanna with her to look for more suitable
housing. Jamel was placed into protective custody on October 17, 2012, after Mother‟s
father was hospitalized and the residence was condemned and deemed unsuitable for
habitation. Thereafter, Mother attended a child and family team meeting with Breanna
on October 22, 2012. Breanna was placed into protective custody when Mother tested
positive for marijuana and professed that she was unable to provide for herself or the
Children. The Children were subsequently adjudicated as dependent and neglected and
placed into foster care.

        DCS developed four permanency plans from November 2012 until October 2013.
These plans were ratified by the trial court. All four plans required Mother to complete
an alcohol and drug assessment and follow all recommendations, submit to random drug
screens, participate in domestic violence counseling and education, participate in grief
counseling, obtain and maintain stable housing for three months, obtain and maintain a
legal income, sign all necessary releases, notify DCS of any changes in circumstances,
visit the Children, and apply for TennCare. Three of the plans required Father to obtain
and maintain stable housing for three months, obtain and maintain a legal income, sign all
necessary releases of information, and notify DCS of changes in circumstances.

        On March 17, 2014, DCS filed a petition to terminate each parent‟s parental rights
to their respective children. DCS alleged that termination was supported by the statutory
grounds of abandonment for failure to visit and for failure to provide a suitable home and
substantial noncompliance with the permanency plans. Relative to Father, DCS further
2
  Mother identified Eric R. as the biological father of Jamel H. Eric R.‟s rights were also terminated at
the hearing, but he is not a party to this appeal.
                                                   -2-
alleged that he had never visited Breanna, that DCS had been unable to assist him in
providing a suitable home because he was incarcerated, and that he had failed to comply
with the requirements contained in the permanency plan by not providing a suitable home
or visiting Breanna.

       A hearing was held at which several witnesses testified on September 29, 2014.
Kalia Williams, a family service worker for DCS, testified that the Children have
remained in the same foster home since June 2013. She asserted that the Children are
“doing well” and “seem[] to have adjusted very well.” She stated that they each have
their own rooms and are the only children in the foster home.

       Ms. Williams testified that Father had not visited Breanna since her removal. She
acknowledged that Father was incarcerated at the time of removal and had been
incarcerated since that time. She related that she communicated with Father via mail and
by telephone. She asserted that Father had not completed any requirements contained in
the permanency plans but then admitted that Father had maintained contact with DCS.
She also admitted that she did not send Father any releases for information and that he
was unable to maintain housing or provide proof of an income due to his incarceration.
She agreed that she would have revised the requirements in the permanency plans if she
knew that he would remain incarcerated for such a long period of time. She
acknowledged that Father had actually not failed to comply with the requirements in the
permanency plans but asserted that his incarceration was simply too long for DCS to
work with him. She last spoke with him in April 2014, when he advised her that he did
not want his parental rights terminated. She asked him to provide her contact information
for family members that might provide a home for Breanna. He did not provide her with
the requested information. She related that he advised her that he was in a program that
provided for his release within ten months.

       Ms. Williams testified that she discussed the criteria and procedures for
termination with Mother and that she later hand-delivered a letter to Mother in which she
outlined the consequences for failure to follow the requirements in the permanency plans.
She stated that Mother visited consistently until May 2013. She related that since that
time, Mother had not called, written letters, or sent anything for the Children. She
claimed that Mother‟s brother could not even provide contact information for Mother.
She noted that Mother had also not completed any of the requirements in the plans.

       Ms. Williams agreed that Mother had been in foster care herself until she reached
the age of majority. She knew that Mother did not drive or have a cell phone. She also
agreed that Mother had been in and out of an abusive relationship since the Children were
removed from her custody. She claimed that she made two referrals to a shelter for
Mother in May 2013 but that she was unable to confirm Mother‟s placement because she
                                          -3-
could not locate Mother. She stated that Mother claimed that her boyfriend prevented her
from using the telephone and visiting the Children. She acknowledged that she observed
Mother‟s injuries. Likewise, she testified that she believed that Mother‟s boyfriend
prevented Mother from visiting the Children.

        Father testified that he lived with Mother when Breanna was born and that he
remained in the home with them providing daily care for Breanna until his incarceration
on November 4, 2011. He provided that he was serving a ten-year sentence and was not
eligible for parole until August 2015. He noted that he would serve approximately two
more years if he was not paroled. He agreed that Breanna needed permanency and that
he was not in a position to care for her. He acknowledged that Breanna was happy in her
current placement and that adoption was likely best for her.

       Foster Mother testified that the Children had been in her care for approximately
one year and five months. She related that the Children are “fantastic” and “wonderful.”
She believed that they had bonded to her and her husband and asserted that she intended
to adopt the Children if they became free for adoption. She provided that she and her
husband could provide for the Children‟s educational, medical, financial, and emotional
needs. She stated that the Children had been in therapy for “anger issues” but claimed
that they are responding to therapy and seem well-adjusted. She worked with Breanna
specifically to address anger issues and a healthy way to express feelings. She noted that
Breanna is “doing great” in school and that Jamel is “getting up to grade level.”

       Mother agreed that Father was living with her when Breanna was born and that he
remained with her and the Children until he was arrested and subsequently incarcerated.
She testified that she currently lives with her father and that she is unemployed. She
agreed that she is unable to provide for the Children but claimed that she could provide
for them in approximately two months. She acknowledged that she had not even visited
the Children since May 2013 and that she had not completed any requirements contained
in the permanency plans. She explained that her boyfriend prevented her from visiting
the Children and working with DCS to complete the requirements contained in the plans.
She stated that she left her boyfriend at some point in 2013 but then went back to him.
She insisted that she is no longer with him. She acknowledged that the Children are
doing well in their foster home but asserted that her rights should not be terminated
because the Children need their mother and because she wanted them to be with her.

       Following the presentation of the above evidence, the trial court terminated
Mother‟s parental rights by order, dated November 24, 2014, on the following grounds:
abandonment for failure to visit, abandonment for failure to provide a suitable home, and
substantial noncompliance with the permanency plans. The court also found that
termination of her parental rights was in the best interest of the Children. Likewise, the
                                           -4-
trial court terminated Father‟s parental rights by order, dated November 24, 2014,3 on the
following grounds: abandonment for failure to provide a suitable home and substantial
noncompliance with the permanency plans. The court also found that termination of his
parental rights was in the best interest of Breanna. This timely appeal followed.

                                              II.     ISSUES

        We consolidate and restate the issues raised on appeal as follows:

        A. Whether clear and convincing evidence supports the trial court‟s
           termination of Mother‟s parental rights to the Children based upon her
           abandonment for failure to visit pursuant to Tennessee Code Annotated
           section 36-1-102(A)(i).

        B. Whether clear and convincing evidence supports the trial court‟s
           termination of each parent‟s parental rights based upon their
           abandonment for failure to provide a suitable home pursuant to
           Tennessee Code Annotated section 36-1-102(A)(ii).

        C. Whether clear and convincing evidence supports the trial court‟s
           termination of each parent‟s parental rights based upon their failure to
           comply with the requirements contained in the permanency plans
           pursuant to Tennessee Code Annotated section 37-1-166(g)(1).

                                  III.    STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person‟s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and „severing forever all legal rights and obligations‟ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “„[F]ew consequences of judicial action are so grave as the severance of


3
  Following the hearing, the trial court stated that termination of Father‟s parental rights to Breanna was
supported by the statutory grounds of abandonment for failure to visit and abandonment by engaging in
behavior that exhibited a wanton disregard for her welfare. Neither of these abandonment grounds are
included in the final order terminating Father‟s parental rights to Breanna. Notably, the ground of wanton
disregard was not even alleged in the termination petition.
                                                     -5-
natural family ties.‟” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination of
the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent‟s rights may be
terminated only upon

       (1)    [a] finding by the court by clear and convincing evidence that the
       grounds for termination of parental or guardianship rights have been
       established; and

       (2)    [t]hat termination of the parent‟s or guardian‟s rights is in the best
       interest [] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child‟s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court‟s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder‟s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2010, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

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       A reviewing court must review the trial court‟s findings of fact de novo
       with a presumption of correctness under [Rule 13(d) of the Tennessee
       Rules of Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d
       [793,] 809 [(Tenn. 2007)]. In light of the heightened burden of proof in
       proceedings under [Tennessee Code Annotated section] 36-1-113, the
       reviewing court must then make its 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. State Dep’t of
       Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48 [(Tenn. Ct. App.
       2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct. App. 2006);
       In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004). Appellate
       courts conduct a de novo review of the trial court‟s decisions regarding
       questions of law in termination proceedings. However, these decisions,
       unlike the trial court‟s findings of fact, are not presumed to be correct. In
       re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re Adoption of
       A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).

                                     IV.    DISCUSSION

                                             A.

       In terminating Mother‟s parental rights based upon the statutory ground of
abandonment for failure to visit, the court considered the four months preceding March
17, 2014, the filing date of the termination petition. Thus, the relevant time period was
November 16, 2013, to March 16, 2014. Mother concedes that she had not visited the
Children since May 2013 but asserts that her failure to visit was not willful. She claims
that her abusive boyfriend prevented any attempt to visit the Children. DCS responds
that Mother chose her relationship over the Children. DCS notes that Mother left her
boyfriend and then returned to him at some point in 2013.

        A parent‟s willful failure to visit the child “means the willful failure, for a period
of four (4) consecutive months, to visit or engage in more than token visitation.” Tenn.
Code Ann. § 36-1-102(1)(E). Token visitation is defined 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.” Tenn. Code Ann. § 36-1-
102(1)(c).

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        This court has consistently held that the term willfulness as it applies to a party‟s
failure to visit must contain the element of intent. In re Swanson, 2 S.W.3d 180, 188-89
(Tenn. 1999). The element of intent utilized in termination proceedings “does not require
the same standard of culpability as is required by the penal code.” In re Audrey S., 182
S.W.3d at 863. “Willful conduct consists of acts or failures to act that are intentional or
voluntary rather than accidental or inadvertent.” Id. “[A] person acts „willfully‟ if he or
she is a free agent, knows what he or she is doing, and intends to do what he or she is
doing.” Id. at 863-64.

       The Supreme Court has held that “a parent who attempted to visit and maintain
relations with his child, but was thwarted by the acts of others and circumstances beyond
his control, did not willfully abandon his child.” In re A.M.H., 215 S.W.3d at 810 (citing
Swanson, 2 S.W.3d at 189). However, “[a] parent‟s failure to visit may be excused by
the acts of another only if those acts actually prevent the parent from visiting the child or
constitute a significant restraint or interference with the parent‟s attempts to visit the
child.” In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (citation omitted). In In re
A.M.H., the Court was “presented with a situation in which the parents of [the child]
actively pursued legal proceedings to regain custody [ ] during the „abandonment‟ period
but failed to visit for a period of four consecutive months immediately prior to the filing
of a petition for termination of parental rights.” 215 S.W.3d at 810.

       Here, the record reflects that Mother consistently visited the Children until May
2013, after which time, she claims that she was subject to abuse and control by her
boyfriend and that he prevented her from visiting the Children. Ms. Williams conceded
that she observed Mother‟s injuries and believed that Mother was likely prevented from
maintaining consistent visitation with the Children. Accordingly, we conclude that the
record did not contain clear and convincing evidence to establish that Mother abandoned
the Children by willfully failing to visit during the requisite time period. This conclusion
does not end our inquiry because only one statutory ground is required to support the
termination of Mother‟s parental rights. Tenn. Code Ann. § 36-1-113(c).

                                             B.

       A parent may be found to have abandoned his or her child by failing to establish a
suitable home. The relevant abandonment statutory provision provides, in pertinent part,

       The child has been removed from the home of the [parents] as the result of
       a petition filed in the juvenile court in which the child was found to be a
       dependent and neglected child [ ], and the child was placed in the custody
       of the department or a licensed child-placing agency, that the juvenile court
       found, or the court where the termination of parental rights petition is filed
                                            -8-
        finds, that the department or licensed child-placing agency made reasonable
        efforts to prevent removal of the child or that the circumstances of the
        child‟s situation prevented reasonable efforts from being made prior to the
        child‟s removal; and for a period of four (4) months following the removal,
        the department or agency has made reasonable efforts to assist the [parents]
        to establish a suitable home for the child, but that the [parents] have made
        no reasonable efforts to provide a suitable home and have demonstrated a
        lack of concern for the child to such a degree that it appears unlikely that
        they will be able to provide a suitable home for the child at an early date.
        The efforts of the department or agency to assist a [parent] in establishing a
        suitable home for the child may be found to be reasonable if such efforts
        exceed the efforts of the [parent] toward the same goal, when the [parent] is
        aware that the child is in the custody of the department[.]

Tenn. Code Ann. § 36-1-102(1)(A)(ii) (emphasis added). Termination for failure to
provide a suitable home requires a finding, supported by clear and convincing evidence,
that a parent failed to provide a suitable home for his or her child even after DCS assisted
that parent in his or her attempt to establish a suitable home. Tenn. Code Ann. § 36-1-
102(1)(A)(ii).4 DCS is required to use its “superior insight and training to assist parents .
. . whether the parents ask for assistance or not.” State, Dep’t of Childrens Servs. v.
Estes, 284 S.W.3d 790, 801 (Tenn. Ct. App. 2008).

                                                Mother

       Here, the Children were removed from Mother‟s care on two separate dates in
October 2012; thus the relevant time period for Jamel is from October 18, 2012, to
February 18, 2013, and for Breanna is from October 23, 2012, to February 23, 2012.
Mother concedes that she failed to provide a suitable home for the Children but argues
that her failure was a result of DCS‟s lack of assistance. She acknowledges that Ms.
Williams attempted to find her a space in two shelters in May 2013 but asserts that the
record is devoid of any evidence concerning DCS‟s efforts in the four months following
removal. She claims that she was willing to work with DCS as evidenced by her
attendance at several child and family team meetings and her consistent visitation with
the Children until May 2013. DCS responds that it made reasonable efforts to assist
Mother but that Ms. Williams was unable to locate her when she found her a place to stay

4
  During the pendency of this action, the Supreme Court issued an opinion in which it specifically
overruled the progeny of cases requiring “DCS to prove by clear and convincing evidence that it made
reasonable efforts to reunify as a precondition to termination of parental rights.” In re Kaliyah S., 455
S.W.3d 533, 555, n. 34 (Tenn. 2015). However, that holding does not abrogate DCS‟s responsibility to
make reasonable efforts to assist parents in establishing a suitable home pursuant to Tennessee Code
Annotated section 36-1-102(1)(A)(ii).
                                                   -9-
in May 2013. We agree with Mother that the record is devoid of any evidence that DCS
made any efforts related to housing during the relevant time period. Accordingly, we
conclude that the record did not contain clear and convincing evidence to establish that
Mother abandoned the Children by failing to provide a suitable home. This conclusion
does not end our inquiry because only one statutory ground is required to support the
termination of Mother‟s parental rights. Tenn. Code Ann. § 36-1-113(c).

                                          Father

       Father argues that this statutory ground of termination is inapplicable to him
because the Children were not removed from his home. He notes that he was
incarcerated at the time of Breanna‟s removal and that he remained incarcerated
throughout the entirety of Breanna‟s involvement with DCS. DCS agrees with Father
and argues that the trial court improperly terminated his parental rights based upon the
statutory ground of abandonment for failure to provide a suitable home. We agree that
this ground is inapplicable to Father when Breanna was removed from Mother‟s care and
when DCS admittedly could not assist Father in establishing a suitable home while he
was incarcerated. Accordingly, we conclude that the record did not contain clear and
convincing evidence to establish that Father abandoned Breanna by failing to provide a
suitable home. This conclusion does not end our inquiry because only one statutory
ground is required to support the termination of Father‟s parental rights. Tenn. Code
Ann. § 36-1-113(c).

                                            C.

        Tennessee law requires the development of a plan of care for each foster child and
further requires that the plan include parental responsibilities that are reasonably related
to the plan‟s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of
parental rights exists when a petitioner proves by clear and convincing evidence that
“[t]here has been substantial noncompliance by the parent or guardian with the statement
of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2). To
establish noncompliance, the trial court must initially find “that the requirements of the
permanency plans are reasonable and related to remedying the conditions that caused the
child to be removed from the parent‟s custody in the first place.” In re M.J.B., 140
S.W.3d at 656; see In re Valentine, 79 S.W.3d at 547. When the trial court does not
make such findings, the appellate court should review the issue de novo. In re Valentine,
79 S.W.3d at 547. Second, the court must find that the parent‟s noncompliance is
substantial, In re M.J.B., 140 S.W.3d at 656, meaning that the parent must be in
“noncompliance with requirements in a permanency plan that are reasonable and related
to remedying the conditions that warranted removing the child from the parent‟s
custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12
                                           - 10 -
(Tenn. Ct. App. June 3, 2003). To assess a parent‟s substantial noncompliance with a
permanency plan, the court must weigh “both the degree of noncompliance and the
weight assigned to that particular requirement.” Id. at *12. Conversely, “[t]erms which
are not reasonable and related are irrelevant, and substantial noncompliance with such
terms is irrelevant.” In re Valentine, 79 S.W.3d at 548-49.

                                          Mother

       Mother does not assert that she complied with the requirements contained in the
permanency plans. She also does not provide an explanation for her noncompliance.
Indeed, she did not take issue on appeal with the court‟s termination of her parental rights
based upon this statutory ground. Having reviewed the record, we conclude that there
was clear and convincing evidence to establish that Mother failed to substantially comply
with the requirements contained in the permanency plans. Accordingly, a statutory
ground supported the termination of her parental rights.

                                          Father

        Father concedes that he did not substantially comply with the requirements
contained in the permanency plans. He asserts that the requirements of the permanency
plans were unreasonable as applied to him, an incarcerated parent that never even
received a copy of the permanency plans. He notes that he maintained contact with DCS,
the only requirement that was seemingly applicable in his situation. DCS agrees with
Father and argues that the trial court improperly terminated his parental rights based upon
the statutory ground of substantial noncompliance with the permanency plans.

       Pursuant to the permanency plans, Father was required to provide proof of a legal
income; provide proof of a safe, stable living environment; sign releases of information
as necessary; and maintain contact with DCS. Father remained in contact with DCS but
did not complete any other requirements. Ms. Williams conceded that she never sent
Father any requests for release of information. Father was simply unable to complete the
remainder of the requirements due to his incarceration. With these considerations in
mind, we conclude that the record did not contain clear and convincing evidence to
support the termination of Father‟s parental rights to Breanna based upon his substantial
noncompliance with the permanency plans. Accordingly, we reverse the trial court‟s
termination of Father‟s parental rights to Breanna because DCS failed to provide clear
and convincing evidence to establish the statutory grounds pled in the termination
petition and found by the trial court.




                                           - 11 -
                                             D.

       Having concluded that there was clear and convincing evidence establishing at
least one statutory ground to terminate Mother‟s parental rights, we must now consider
whether termination of her parental rights was in the best interest of the Children.
Although Mother has not appealed the court‟s best interest finding, we have reviewed the
issue because of the gravity and finality that this decision will have on her parental rights.
See In re Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010) (considering the best
interest issue even though the issue was not raised on appeal). Following our review, we
conclude that there was clear and convincing evidence to establish that termination of
Mother‟s parental rights was in the best interest of the Children pursuant to Tennessee
Code Annotated section 36-1-113(i).

                                    V.     CONCLUSION

       The judgment of the trial court is affirmed as to the termination of Ann H.‟s
parental rights to Jamel H. and Breanna J. The judgment of the trial court is reversed as
to the termination of Johnny J.‟s parental rights to Breanna J. Costs of the appeal are
taxed one-half to the appellant, Ann H., and one-half to the appellee, State of Tennessee,
Department of Children‟s Services.


                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




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