                                                                                           05/03/2017




                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                            Assigned on Briefs April 3, 2017

                                 IN RE DAMIEN G. M.

                  Appeal from the Juvenile Court for Bradley County
                    No. J-12-219 Kurt Andrew Benson, Magistrate
                      ___________________________________

                             No. E2016-02063-COA-R3-PT
                        ___________________________________


This is a termination of parental rights case. Father/Appellant appeals the termination of
his parental rights to the minor child on the grounds of: (1) abandonment by willful
failure to provide a suitable home and willful failure to support; (2) substantial
noncompliance with the requirements of the permanency plan; and (3) persistence of the
conditions that led to the child’s removal from Father’s home. Father also appeals the
trial court’s finding that termination of his parental rights is in the child’s best interest.
Because Appellee has failed to meet its burden to prove, by clear and convincing
evidence, any of the grounds for termination of Father’s parental, we reverse and remand.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                             Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER, J., joined. CHARLES D. SUSANO, JR., J., filed a dissenting opinion.

Berry Foster, Cleveland, Tennessee, for the appellant, Billy S.

Herbert H. Slatery, III, Attorney General and Reporter, and Ellison M. Berryhill,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.


                                         OPINION

                                      I. Background
       The child at issue in this case, Damien G. M., was born to Sandra M. (“Mother”)1
and Billy S. (“Appellant,” or “Father”) in December of 2011.2 Although Appellant and
Mother were not married at the time of Damien’s birth, Appellant was adjudicated the
legal and biological father by order of August 2, 2012.3

       The Tennessee Department of Children’s Services (“DCS,” or “Appellee”) first
became involved with this family in October of 2014, when DCS received a referral
alleging educational neglect of Damien’s older sibling, who is not the subject of this
appeal, and drug exposure of both children. On October 31, 2014, Child Protective
Services investigators attempted to meet with Mother to address the allegations, but she
was unwilling to meet. On December 15, 2014, DCS received a second referral, alleging
drug exposure. DCS was able to contact Mother following the second referral. She met
with DCS and submitted to a drug screen, testing positive for methadone, for which she
allegedly had a valid prescription. DCS received a third referral on February 10, 2015.
At that time, Mother filed a non-custodial permanency plan to address the truancy case
involving the older child. On April 1, 2015, Mother appeared before the Juvenile Court
for Bradley County (the “trial court”) on the truancy case. She allegedly notified the
court that she was homeless and without income. The court ordered her to submit to a
drug test, and she tested positive for methamphetamine. On April 1, 2015, the court
allegedly issued a bench order of removal, placing the children in DCS custody.4

        On April 17, 2015, Damien, who was three years old at the time, was given a hair
follicle drug screen, which was positive for methamphetamine and amphetamine. On
April 20, 2015, DCS conducted a Child and Family Team Meeting, which Father
attended. The parties developed a permanency plan, which was explained to Father,
along with the statement of parent’s responsibilities. In relevant part, Father’s
requirements, under the permanency plan, were to: (1) sign all releases for DCS to obtain
information; (2) submit to random drug screens; (3) refrain from being around those who
use illegal substances; (4) attend Damien’s medical appointment; (5) provide DCS with a
valid lease; (6) provide DCS with a valid driver’s license; (7) maintain stable housing for
six months; (8) maintain contact with DCS; (9) provide proof of legal income; and (10)
submit to alcohol and drug assessment and follow any recommendations.

      On May 4, 2015, DCS filed a “Petition in Response to the Bench Order,” alleging
that Damien had been subjected to severe child abuse by Mother and that he was
dependent and neglected due to Father’s drug use. Based on the allegations contained in

        1
           Damien’s mother surrendered her parental rights on September 24, 2015. She is not a party to
this appeal.
        2
           In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
        3
           The August 2, 2012 order is not part of the appellate record; however, the parties do not dispute
Appellant’s paternity.
        4
            The April 1, 2015 order is not in the appellate record.
                                                    -2-
the petition, DCS asked the trial court to find Damien dependent and neglected. After
Damien was removed from Mother’s custody, DCS approached Father for possible
placement of the child. However, when he was drug tested, Father tested positive for
methamphetamine, and, as a result, Damien was placed with a family acquaintance. In
May of 2015, DCS received a copy of Father’s first drug and alcohol assessment, which
recommended that he attend five chemical dependency support group meetings; the
record indicates that Father attended the recommended meetings. Family Services
Worker Zachery Peters testified that Father continued to fail random drug tests after he
completed the recommended meetings. Mr. Peters further testified that Father completed
a second alcohol and drug assessment, which recommended no further treatment.
Although Mr. Peters testified that he last requested a drug screen sometime around March
of 2016, the appellate record contains no specific proof of: (1) the exact dates that Father
was asked to submit to drug screens; (2) the dates of the drug screens he failed; (3) the
dates of drug screens he refused to take; or (4) whether the requested drugs screens, failed
drug screens, and refusals occurred before or after Father’s second alcohol and drug
assessment.

       On June 17, 2015, Mr. Peters met with Father to discuss his lack of progress and
positive drug screens. Father stated that his positive screens were due to Mother breaking
into his residence and contaminating his tea with methamphetamine. He also opined that
his positive screens could be the result of his consumption of energy drinks. On or about
June 25, 2015, the trial court allegedly adjudicated Damien to be dependent and
neglected due to Father’s illegal drug use.5 Also on June 25, 2015, the trial court ratified
the April 20, 2015 permanency plan, finding the goals and responsibilities to be
appropriate and reasonably related to the reasons the child came into DCS custody.

       On August 5, 2015, Father was served with a child support summons and petition.
On September 14, 2015, he failed to attend the hearing on the petition in the child support
court. By default, Father was ordered to pay $308.00 per month in child support
(pursuant to the guidelines for full-time minimum wage income) and $42.00 per month
toward child support arrears. In its petition to terminate Father’s parental rights, DCS
averred that he had “only paid . . . $800.00 total in support for this child . . . since August
2, 2012 . . . . During that period [of non-payment], more than . . . $12,355.00 has accrued
pursuant to the court’s orders.” According to the petition to terminate parental rights,
Father was incarcerated, for non-payment of child support, from September 9, 2015 until
October 28, 2015.

      On February 3, 2016, DCS filed a petition to terminate Father’s parental rights on
grounds of: (1) persistence of the conditions that led to the child’s removal; (2)
abandonment by willful failure to support; (3) substantial non-compliance with the

       5
           Our appellate record does not contain an adjudicatory order of dependency and neglect, see
discussion infra.
                                                -3-
requirements of the permanency plan; and (4) abandonment by failure to provide a
suitable home. The petition was heard on August 25, 2016. By order of September 14,
2016, the trial court terminated Father’s parental rights on all of the grounds asserted by
DCS and on its finding that termination of Father’s parental rights is in the child’s best
interest. Father appeals.
                                         II. Issues

       Father raises the following issues for review, as stated in his brief:

   1. The Appellant would respectfully submit that no clear and convincing
      evidence was presented to support a finding of persistent conditions.

   2. The Appellant would respectfully submit that no clear and convincing
      evidence was presented to support a finding of abandonment—failure to
      provide a suitable home.

   3. The Appellant would respectfully submit that no clear and convincing
      evidence was presented to support a finding of abandonment—failure to
      support.

   4. The Appellant would respectfully submit that no clear and convincing
      evidence was presented to support a finding of substantial non-compliance
      with the permanency plan.

   5. The Appellant would respectfully submit that no clear and convincing
      evidence was presented to support a finding that termination of Appellant’s
      parental rights would be in the best interest of this child as required by
      Tenn. Code Ann. § 36-1-113(c).

                                 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 or
entity 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.
                                             -4-
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 conviction
regarding the truth of the facts sought to be established.” Id. at 653.

       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). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). 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 the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).

                   IV. Grounds for Termination of Parental Rights

       As noted earlier, the trial court relied on the following statutory grounds in
terminating Appellant’s parental rights: (1) persistence of the conditions that led to the
child’s removal from Father’s home, Tenn. Code Ann. § 36-1-113(g)(3); (2)
abandonment by willful failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-
102(1)(A)(i); (3) substantial noncompliance with the requirements of the permanency
plan, Tenn. Code Ann. § 36-1-113(g)(2); and (3) abandonment by failure to provide a
suitable home; Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(ii). In its appellate
brief, DCS concedes that it has not met its burden of proof to show abandonment by
willful failure to support, abandonment by failure to provide a suitable home, and
persistence of the conditions that led to the child’s removal. 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) (emphasis
added). Although DCS relies only on the ground of substantial non-compliance with the
requirements of the permanency plan, because the trial court relied on four grounds, we
will review all of the grounds cited by the trial court.
                                             -5-
                               A. Persistence of Conditions

       Tennessee Code Annotated Section 36-1-113(g)(3) defines persistence of
conditions as follows:

       (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:

       (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(s) or guardian(s), 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(s) or
       guardian(s) 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.

Concerning this ground, in its order terminating Father’s parental rights, the trial court
made the following findings:

               The child has been removed from [Father’s] home by court order for
       more than six months; and the conditions that led to the removal still
       persist. The child . . . was adjudicated dependent and neglected in part
       based on the [F]ather’s drug use and a finding that the child could not
       remain in the [F]ather’s home. The court finds that there is little chance
       that those conditions will be remedied soon so that the child can be returned
       safely to the home. The court finds that continuation of the parent/child
       relationship greatly diminishes the child’s chances of being placed into a
       safe, stable and permanent home.

       The purpose behind the “persistence of conditions” ground for terminating
parental rights is “to prevent the child’s lingering in the uncertain status of foster child if
a parent cannot within a reasonable time demonstrate an ability to provide a safe and
caring environment for the child.” In re 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., 182 S.W.3d 838, 872 (Tenn.Ct.App.2005), perm. app. denied
(Tenn. Nov. 7, 2005), this Court held that “based on the statutory text and its historical
                                          -6-
development, [the ground of persistence of conditions found in Tennessee Code
Annotated Section 36-1-113(g)(3)] applies as 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.
In the first instance, although the parties and the trial court reference an April 1, 2015
order removing Damien to state custody and a June 25, 2015 order, wherein the trial
court allegedly adjudicated Damien to be dependent and neglected due to Father’s illegal
drug use, neither of these orders is contained in the appellate record. We emphasize that
our jurisdiction is appellate only, and our review is limited to the record transmitted to
this Court. In the absence of any order adjudicating Damien to be dependent and
neglected, this Court cannot engage in its reviewing function. In other words, without the
order, we cannot ascertain what the conditions were that led to the child’s removal such
that we may review the trial court’s determination that those conditions persist. In re
Audrey S., 182 S.W.3d 838, 875 (Tenn. Ct. App. 2005) (holding that the statutory ground
of persistence of the conditions that led to the children’s removal was not applicable
because removal of the children to state custody was based on the father’s petition for a
change in custody, and was not based on an adjudication of dependency and neglect); In
re Destaney D., No. E2014-01651-COA-R3-PT, 2015 WL 3876761, *6 (Tenn. Ct. App.
June 23, 2015) (“[W]e hold that the statutory ground of persistence of conditions is not
applicable to Father ... inasmuch as the record contains no order removing the Children
from Father’s home.”).

       However, even if this record contained an order adjudicating the child to be
dependent and neglected, as a threshold requirement for applicability of the ground of
persistence of conditions in termination of parental rights cases, the child must not only
have been adjudicated dependent and neglected, but he or she must also have been
removed from the defendant parent’s home. Tenn. Code Ann. § 36-1-113(g)(3) (“The
child has been removed from the home of the parent ....”). From the record and DCS’s
concession, it is clear that Damien was not, in fact, living in Father’s home at the time he
was removed to state custody. Rather, all evidence indicates that he was removed from
Mother’s custody. In In re Maria B.S., this Court was presented with a situation similar
to the case at bar. In Maria B.S., father’s parental rights were terminated on a finding of
persistence of conditions; however, the children had not, in fact, been removed from
father’s home because he was incarcerated at the time. In reversing the ground of
persistence of conditions, we explained:

       We next address whether the Trial Court erred in finding and holding that
       clear and convincing evidence existed to terminate Father’s parental rights
       to the Children pursuant to Tenn. Code Ann. § 36-1-113(g)(3). Father
       argues that this ground could not be applied to his case as the Children were
       not removed from his home by order of a court. “The child has been
       removed from the home of the parent or guardian by order of a court....”
       Tenn. Code Ann. § 36–1-113(g)(3).
                                           -7-
             We agree with Father as to this issue. Father was incarcerated at the
      time of the Children’s birth. No one removed the Children from Father-he
      never had the Children in the first place. There is case precedent to support
      Father’s position that, without removal from that parent’s home, the ground
      of persistent conditions is inapplicable. See In re T.L., No. E2004-02615-
      COA-R3-PT, 2005 WL 2860202, at *7 (Tenn. Ct. App. Oct.31, 2005), Rule
      11 appl. perm. appeal denied Feb. 17, 2006; In re D.L.B., No. W2001-
      02245-COA-R3CV, 2002 WL 1838147, at *9 (Tenn. Ct. App. Aug.6,
      2002), rev’d on other grounds, 118 S.W.3d 360 (Tenn. 2003); In re B.P.C.,
      M2006-02084-COA-R3PT, 2007 WL 1159199, at *7 (Tenn. Ct. App. April
      18, 2007), no appl. perm. appeal filed.

In re Maria B.S., No. E2012-01295-COA-R3-PT, 2013 WL 1304616, *11 (Tenn. Ct.
App. March 4, 2013); see also In re Destaney D., 2015 WL 3876761, *5 (“The legal
deficiency concerning the trial court’s determination regarding this ground for
termination lies in the fact that the Children were not removed from Father’s home. The
testimony at trial established that the reason for the Children’s removal was drug abuse
by the mother when the Children were in the mother’s custody.”); accord In re K.M.K.,
No. E2014-00471-COA-R3-PT, 2015 WL 866730 (Tenn. Ct. App. Feb. 27, 2015).

       Based on the foregoing authority, we hold that the statutory ground of persistence
of conditions is not applicable to Father under the facts presented here insomuch as the
record contains no court order removing the child from Father’s home (on grounds of
dependency and neglect or otherwise), and there is no evidence to suggest that Damien
was residing in Father’s home at the time of his removal.

                   C. Abandonment by Willful Failure to Support

       The trial court found, by clear and convincing evidence, that Father’s parental
rights should be terminated on the ground of abandonment by willful failure to pay
support pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) as defined at
Tennessee Code Annotated Sections 36-1-102(1)(A)(i). 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 non-exclusive, so that listing conditions, acts or
      omissions in one ground does not prevent them from coming within another
      ground:

      (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
      occurred[.]
                                       -8-
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:

   (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... have willfully failed
            to support or have willfully failed to make reasonable payments toward
            the support of the child[.]

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

         Pursuant to T.C.A. §§ 36-1-113(g) and 36-1-102(1)(A)(i) the Court finds
         by clear and convincing evidence[,] that [Father] has abandoned the child
         by willfully failing to make reasonable payments toward the support of the
         children [sic] in the four months preceding the filing of this petition.
         [Father] has been ordered by this Court to pay current and arrears child
         support . . . . To date, [Father] has not paid anything towards the child
         support obligation . . . The undisputed evidence was that [Father] has
         consistently reported having employment and regular income, but has
         refused to provide documentation.

   Although the trial court relied on the definition of abandonment found at Tennessee
Code Annotated Section 36-1-102 (1)(A)(i), as noted above, in its petition to terminate
parental rights, DCS averred that Father was incarcerated from September 9, 2015 until
October 28, 2015. Other than DCS’s averment, there is no substantive evidence in the
record from which to determine the exact dates of Father’s incarceration. The dates of
incarceration are important only insofar as these dates dictate the statutory definition of
abandonment that is applicable in this case. Tennessee Code Annotated Section 36-1-
102(1)(A)(iv) applies to incarcerated parents and provides, in relevant part, that:

         (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:

                                              ***

         (iv) A parent or guardian is incarcerated at the time of the institution of an
                                             -9-
      action or proceeding to declare a child to be an abandoned child, or the
      parent or guardian has been incarcerated during all or part of the four (4)
      months immediately preceding the institution of such action or proceeding,
      and either has willfully failed to visit or has willfully failed to support or
      has willfully failed to make reasonable payments toward the support of the
      child for four (4) consecutive months immediately preceding such parent's
      or guardian's incarceration, or the parent or guardian has engaged in
      conduct prior to incarceration that exhibits a wanton disregard for the
      welfare of the child.

       Trial Exhibit 4 is a record of Father’s child support payments; it shows that, as of
August 16, 2016, Father had not paid any child support from April 1, 2014 to September
2, 2016. Accordingly, whether we apply the four-month statutory period prior to Father’s
alleged incarceration under Tennessee Code Annotated Section 36-1-102(1)(A)(iv), or
whether we apply the four-month statutory period immediately preceding the filing of the
petition to terminate Father’s parental rights under Tennessee Code Annotated Section
36-1-102(1)(A)(i), there is no dispute that Father has not paid child support for Damien
since April 1, 2014. The question, however, is whether Father’s failure to pay support
was willful under either of the foregoing statutory definitions.

       In In re Audrey S., this Court discussed willfulness in the context of termination
of parental rights 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 ....

              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. 2005) (internal citations and
                                      - 10 -
footnotes omitted).

        For purposes of Tennessee Code Annotated Section 36-1-102(1)(A)(i), “token
support” means that the support, under the circumstances of an individual case, is not
significant considering the parent’s means. Tenn. Code Ann. § 36-1-102(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. 2004) (quoting In re Adoption of Muir, No. M2002-
02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). In
other words, a parent’s failure to pay child support is not, ipso facto, sufficient to support
the ground of abandonment by willful failure to support. Rather, the parent’s failure to
pay must be willful. The burden to show that the parent’s failure to pay is willful, i.e.,
that the parent has income and ability to pay is on the moving party (here, DCS) and not
on Father.

       Turning to the record, the only proof provided by DCS concerning Father’s ability
to pay was the testimony of Mr. Peters, who testified, in relevant part, as follows:
       Q. Okay. Has [Father] provided you proof of legal income?



       A. No, he has not.

       Q. Okay. Does [Father] report working?

       A. He does.

       Q. Where does he work?

       A. He works for a wrecker company with his brother.

Father did not testify in this case, and the foregoing testimony is the only evidence
concerning Father’s employment. There is no evidence indicating Father’s income or his
expenses. In this regard, the instant case is factually similar to In re The Adoption of
Angela E., et al., wherein the Tennessee Supreme Court held that the evidence was
insufficient to establish that father had abandoned the child based on willful failure to
support. Specifically, the Court stated:

              Mother and Stepfather contend that Father had the ability to pay his
       child support obligation in full and that his payment of $3500 of the
       $10,336 owed between March 2005 and July 2005 was insufficient given
       his means. The evidence concerning Father's income and expenses is
                                         - 11 -
       limited at best, however, and we conclude that Mother and Stepfather failed
       to prove that Father's payment history between March 5, 2005, and July 5,
       2005, reflected mere “token support.”

                                               ***

              For the four-month period immediately preceding the filing of the
       petition to terminate parental rights, Father paid $3500 in child support to
       Mother. No evidence was introduced concerning Father’s monthly
       expenses.

In re The Adoption of Angela E., et al., 402 S.W.3d 636, 641 (Tenn. 2013). The same is
true in this case. In order to meet its burden to show that Father willfully failed to pay
support, or made only token support, DCS must show that Father “ha[d] the capacity to
provide the support, ma[de] no attempt to provide support, and ha[d] no justifiable excuse
for not providing the support.” In re J.J.C., 148 S.W.3d at 926 (citation omitted). In the
absence of any proof as to Father’s income and expenses during either the four-month
time period before his alleged incarceration, or during the four-month time period
immediately preceding the filing of the petition to terminate his parental rights, we
conclude that Appellee has failed to show, by clear and convincing proof, that Father has
abandoned Damien by willful failure to provide support. Accordingly, we reverse this
ground for termination of his parental rights.

            C. Failure to Substantially Comply with the Permanency Plan

        The trial court ratified one permanency plan in this case. As set out above,
Father’s requirements under the plan included: (1) sign all releases for DCS to obtain
information; (2) submit to random drug screens; (3) refrain from being around those that
use illegal substances; (4) attend Damien’s medical appointment; (5) provide DCS with a
valid lease; (6) provide DCS with a valid driver’s license; (7) maintain stable housing for
six months; (8) maintain contact with DCS; (9) provide proof of legal income; (10)
submit to alcohol and drug assessment and follow any recommendations. In its order
terminating Father’s parental rights, the trial court found that Father

       has not substantially complied with the permanency plan. [Father] has not
       submitted to random drug screens since April of this year. Although he has
       established a home, his continuously testing positive for methamphetamine,
       and his refusal to submit to drug screens render his home inappropriate. . . .
       Father has not provided proof of legal income.


       Tennessee Code Annotated Section 36-1-113(g)(2) authorizes termination of

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parental rights when:

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

A trial court must find that the requirements of a permanency plan are “reasonable and
related to remedying the conditions which necessitate foster care placement.” Tenn. Code
Ann. § 37-2-403(a)(2)(C). Here, the trial court made a finding that the requirements
under the permanency plan were reasonable and related to remedying the conditions that
necessitated the child’s removal.

        At the hearing, Mr. Peters testified that Father submitted to the required alcohol
and drug assessment. Concerning the recommendations given to Father, Mr. Peters
stated:

       [Father] obtained two [alcohol and drug assessments]. His first A & D
       assessment recommended five support group meetings. [Father] attended
       those meetings, but he continued to fail drug tests after having completed
       them.

                                            ***

       The second round of A & D [assessment], the assessment he took
       recommended no treatment at all.

       As set out above, the trial court primarily relied on Father’s failure to submit to
random drug screens as the basis for its finding that he had failed to substantially comply
with the requirements of the permanency plan. It appears that the trial court gave little
consideration to the fact that Father satisfied the majority of the requirements of the plan.
From our review of the record, Father complied with all of the permanency plan
requirements except for the drug screens and proof of income (but see above discussion
concerning DCS’s failure to meet its burden to show that Father had the ability to pay
child support). While we concede that Father’s failure to submit to drug screens
undermines his attempts to regain custody of Damien, we have concern that the drug
screening requirement may not garner the weight it did at the outset of these proceedings
in light of the second drug and alcohol assessment, which recommended no further
treatment. In In re Valentine, the Tennessee Supreme Court explained:

       Substantial noncompliance is a question of law which we review de novo
       with no presumption of correctness. Substantial noncompliance is not
       defined in the termination statute. The statute is clear, however, that
       noncompliance is not enough to justify termination of parental rights; the
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       noncompliance must be substantial. Black's Law Dictionary defines
       “substantial” as “[o]f real worth and importance.” Black’s Law Dictionary
       1428 (6th ed.1990). In the context of the requirements of a permanency
       plan, the real worth and importance of noncompliance should be measured
       by both the degree of noncompliance and the weight assigned to that
       requirement. Terms 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. In In re Valentine, the Court ultimately held that
the ground of substantial non-compliance was not proven:

       Ms. Wallace complied with the requirements of attending parenting classes
       and maintaining stable housing. She partially complied with the
       requirement of maintaining supervised visitation. Her poor record of
       visitation prior to the filing of the termination petition stands in marked
       contrast to her commendable efforts in the year prior to the hearing.
       Improvement toward compliance should be considered in a parent's favor.
       See State Dept. of Human Services v. Defriece, 937 S.W.2d 954, 961
       (Tenn.Ct.App.1996) (stating that decision reversing trial court’s termination
       of parental rights was influenced by evidence of improvement in mother's
       ability to provide a stable environment for child). Ms. Wallace did not
       comply with the requirements of attending individual counseling and
       undergoing a neuropsychiatric evaluation. We assign little weight to these
       requirements, given the fact that Ms. Wallace was obtaining other
       counseling and was not referred for a neuropsychiatric evaluation. Of the
       requirements entitled to significant weight—parenting classes, stable
       housing, and supervised visitation—Ms. Wallace complied with two and
       partially complied with the other. We conclude that this proof does not rise
       to the level of clear and convincing evidence of substantial noncompliance
       with the requirements of the permanency plans under Tenn. Code Ann. §
       36-1-113(g)(2).

In re Valentine, 79 S.W.3d at 549. Likewise, in this case, the recommendation of no
further treatment in Father’s most recent alcohol and drug assessment may have
significant impact on the requirements of the permanency plan. As noted above, the trial
court ratified only one plan in this case, and there is no indication that DCS revisited the
requirements at any time after the initial plan was drafted. In light of Father’s current
alcohol and drug assessment, which recommended no further treatment, we cannot
conclude that his failure to submit to random drug testing is substantial enough to warrant
the grave consequences of termination of his parental rights at this point. We also note
that DCS failed to provide any specific details regarding the number of random drug
screens Father refused and whether those drug screens were scheduled before or after
Father’s apparent successful completion of the second round of alcohol and drug
                                            - 14 -
assessment.

           D. Abandonment by Willful Failure to Provide a Suitable Home

       Tennessee Code Annotated Section 36-1-113(g)(1) authorizes termination of
parental rights on the ground of abandonment as defined by Tennessee Code Annotated
Section 36-1-102(1)(A)(ii):

       (ii) The child has been removed from the home of the parent or parents or a
       guardian or guardians as the result of a petition filed in the juvenile court in
       which the child was found to be a dependent and neglected child, as defined
       in § 37-1-102, and the child was placed in the custody of the department or
       a licensed child-placing agency, that the juvenile court found, or the court
       where the termination of parental rights petition is filed finds, that the
       department or a licensed 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 parent(s) or
       guardian(s) to establish a suitable home for the child, but that the parent(s)
       or guardian(s) 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.

       In its order terminating Father’s parental rights, the trial court made the following
findings concerning the ground of abandonment by failure to provide a suitable home:

       In its adjudicatory order, the Court found that the child should be removed
       from [Father’s] home and placed into foster care because [Father] was
       unable to provide a safe and stable home for the child due to drug use. . . .
       [Father] has an appropriate brick and mortar home, but his drug use renders
       the home inappropriate for the child . . . . [Father’s] failure to make even
       minimal efforts to improve his home and personal condition demonstrates a
       lack of concern for the child to such a degree that it appears unlikely that
       she [sic] will be able to provide a suitable home for the child at an early
       date.

       As noted above, the “adjudicatory order” is omitted from the appellate record, and
this Court cannot review the specific facts that led to the child’s removal. Also, as
discussed above, there is no proof that the child was removed from Father’s home; rather,
it appears that he was removed from Mother’s custody. Family Services Worker, Mr.
Peters, testified that Father owns a house and that he provided proof of ownership. In
                                           - 15 -
light of his current alcohol and drug assessment, it is unclear whether Father is currently
using illicit drugs so as to make his home an unsuitable environment for the child. The
trial court states that Father failed “to make even minimal efforts to improve his home
and personal condition,” but the record shows otherwise. Father satisfied many of the
requirements DCS set out for him, i.e., he maintains a home; he provided proof of
ownership; he submitted to alcohol and drug assessments; he has a valid driver’s license;
and he has maintained some semblance of contact with Damien. The termination of
parental rights analysis is not a one-size-fits-all proposition. From our review of the
record, there is a concern that the entire case was given short shrift, e.g., the lack of a
dependency and neglect order in the record; the fact that information for Damien’s
sibling (who is not the subject of this appeal) is included in the record; the lack of
witnesses (only Mr. Peters and the child’s foster parent testified); the lack of any review
of the original permanency plan; and the relative sparsity of findings in the trial court’s
order terminating Father’s parental rights. The burden of proof is on DCS, and, from the
totality of the circumstance and the record as a whole, we conclude that DCS has not met
its burden to show, by clear and convincing proof, any of the grounds for termination of
Father’s parental rights. Having determined that none of the grounds for termination of
parental rights is met in this case, we pretermit the best interest discussion.

                                     V. Conclusion

       For the foregoing reasons, we reverse the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Appellee, The Tennessee Department of
Children’s Services.




                                                   _________________________________
                                                   KENNY ARMSTRONG, JUDGE




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