                                                                                                             11/26/2019
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             Assigned on Briefs November 1, 2019

                                        IN RE: KOLTON C.

                    Appeal from the Chancery Court for Bradley County
                       No. 2018-CV-227 Jerri Bryant, Chancellor
                         ___________________________________

                                 No. E2019-00736-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) severe child
abuse, Tenn. Code Ann. § 36-1-113(g)(4); and (2) abandonment by willful failure to visit
and to support, Tenn. Code Ann. §§ 36-1-113(g)(1), § 36-1-102(1)(A)(i). 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
failed to support the child, we reverse the trial court’s termination of parental rights as to
this ground. We affirm the trial court’s termination of Mother’s parental rights on the
grounds of severe child abuse and failure to visit, and on its finding that termination of
Appellant’s parental rights is in the child’s best interest.

        Tenn. P. App. P. 3 Appeal as of Right; Judgment of the Chancery 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.

Bradley N. Wilson, Cleveland, Tennessee, for the appellant, Cassandra C.1

H. Franklin Chancey, and Rachel Fisher, Cleveland, Tennessee, for the appellee, Erin S.

                                                OPINION

                                             I. Background

        Kolton C. (“Child”) was born in February 2018 to Cassandra C. (“Appellant,” or

        1
           In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
“Mother”) and Brandon S. (“Father”).2 Mother and Father were never married. The
Child was born addicted to heroin, which Mother admitted to using during the pregnancy
and up to two days before delivery. Erin S. (“Appellee”) is a nurse at the hospital where
Mother gave birth to the Child. After learning from a co-worker that Mother had
expressed an interest in adoption, Erin S. met with Mother to discuss that option. With
Mother’s approval on February 22, 2018, Erin S. filed a petition, in the Polk County
Juvenile Court seeking temporary custody of the Child. The juvenile court granted the
petition, and the Child has remained with Erin S. since March 2018.

       On March 6, 2018, Mother voluntarily entered into a thirteen-month rehabilitation
program with Teen Challenge located in Knoxville, Tennessee. According to the record,
the facility allows limited calls and visits for patients. In order to receive visitors,
patients must list approved visitors on a correspondence authorization form. Although
Mother was aware of this requirement, it is undisputed that she did not list Erin S. or the
Child on her form.

       On March 28, 2018, the juvenile court held a dependency and neglect hearing.
Despite notice, Mother neither appeared nor filed any responsive pleading. By order of
April 28, 2018, the juvenile court found the Child to be dependent and neglected because
the Child was born drug-exposed and neither parent was able to support or care for him.
The juvenile court continued temporary custody with Erin S. and gave her sole discretion
concerning visitation.

       On July 12, 2018, Erin S. filed in the Bradley County Chancery Court (“trial
court”), a petition for adoption and to terminate Mother’s parental rights. As grounds for
termination of Mother’s parental rights, Appellee averred that Mother: (1) committed
severe child abuse by using drugs while the Child was in utero; (2) abandoned the Child
by failing to visit; and (3) abandoned the Child by failing to provide support. Appellee
also 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 Mother and
appointed a guardian ad litem for the Child. Mother filed an answer to the petition,
wherein she denied all grounds and contested that termination of her parental rights was
in the Child’s best interest.

       The trial court heard the petition for termination of parental rights on February 4
and February 14, 2019. By order of March 25, 2019, 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 is in the Child’s best interest. Mother appeals.




       2
           Father surrendered his parental rights on January 29, 2019. He is not a party to this appeal.
                                                    -2-
                                         II. Issues

       There are two dispositive issues, which we state as follows:

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
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
                                           -3-
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. Severe Child Abuse

        The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of severe child abuse. Tenn. Code Ann. § 36-
1-113(g)(4). Tennessee Code Annotated section 36-1-113(g)(4) provides that a ground
for terminating parental rights exists if:

       The parent or guardian has been found to have committed severe child
       abuse as defined in § 37-1-102, under any prior order of a court or is found
       by the court hearing the petition to terminate parental rights or the petition
       for adoption to have committed severe child abuse against any child[.]

Tenn. Code Ann. § 36-1-113(g)(4). Tennessee Code Annotated section 37-1-102 defines
“severe child abuse,” in relevant part, as “[t]he knowing exposure of a child to or the
knowing failure to protect a child from abuse or neglect that is likely to cause serious
bodily injury or death[.]” Tenn. Code Ann. § 37-1-102(b)(22)(A)(i).

       In its order terminating Appellant’s parental rights, the trial court made the
following relevant findings concerning severe child abuse:

       Respondent, CASSANDRA [C.], admitted that she used illegal drugs while
       pregnant. . . . Respondent, CASSANDRA [C.], admitted to medical care
       professionals that she used illegal drugs specifically heroin, two (2) days
       before the birth of the minor child. . . . The deposition of the minor child’s
       pediatrician establishes that the minor child tested positive for drugs at birth
       and was diagnosed with Neonatal Abstinence Syndrome resulting in his
       transfer to NICU. . . . The minor child remained hospitalized for about
                                            -4-
      three (3) weeks and, after his discharge on March 2, 2018, Petitioner, ERIN
      [S.], helped him with his continuing withdrawal which lasted for over two
      (2) months.

       It is undisputed that Mother used illegal drugs throughout her pregnancy and up to
two days before the Child was born. According to the testimony of his pediatrician, the
Child required treatment for Neonatal Abstinence Syndrome. The Child was kept in the
Newborn Intensive Care Unit (“NICU”) for three weeks after his birth. Furthermore, the
Child’s pediatrician testified that “when we follow children who have had significant
drug exposure in utero, as this child has, we anticipate developmental delays and
emotional delays that can be longstanding.”

       In her brief, Mother concedes that “Custodian [Erin S.,] satisfied the burden of
proof as to severe child abuse under case law.” Nonetheless, Mother maintains that
“current case law interpreting the definition of severe abuse to include in utero drug use
contravenes a public policy of fostering and promoting addiction treatment rather than
allowing such problems to linger untreated in the shadows.” This Court has very recently
addressed this argument. In In re Colton, No. M2018-01053-COA-R3-PT, 2018 WL
5415921 (Tenn. Ct. App. Oct. 29, 2018), we explained that

      [f]or over a decade, this Court has held that prenatal drug use constitutes
      severe child abuse for purposes of terminating parental rights. See In
      Matter of M.J.J., No. M2004-02759-COA-R3-PT, 2005 WL 873305, at *8
      (Tenn. Ct. App. Apr. 14, 2005). In In re Benjamin M., 310 S.W.3d 844,
      846-51 (Tenn. Ct. App. 2009), we discussed the issue in great detail in light
      of a parent’s argument that a “child” within the meaning of the statute
      “does not include a fetus.” Id. at 847. We agreed with DCS that this
      argument “misses the point because the fetus did not stay a fetus but
      became a child that sustained injury at the hand of the Mother.” Id. As a
      result, we concluded that a parent may be held responsible for prenatal
      conduct that exposes a child, once born, to great bodily harm. Id. We also
      considered the mother’s arguments regarding whether a fetus is a child or a
      person within the meaning of criminal law and wrongful death actions but
      found that neither argument was helpful in a parental termination case.
      Id. at 849-50. We ultimately concluded that “the statutory language
      defining severe child abuse clearly reflects an intent that actions before a
      child is born can constitute abuse to a child that is born injured by those
      actions.” Id. at 850. Consequently, “[w]hen a child is born alive but
      injured, the pre-birth timing of the actions is not dispositive.” Id. at 850-
      51.

            In numerous cases since Benjamin M., this Court has repeatedly
      confirmed that severe child abuse can be based on a mother’s prenatal drug
                                         -5-
      use. See, e.g., In re P.T.F., No. E2016-01077-COA-R3-PT, 2017 WL
      2536847, at *5 (Tenn. Ct. App. June 12, 2017) (“This Court has
      consistently upheld termination of a mother’s parental rights on the ground
      of severe child abuse when she has used drugs during pregnancy.”); In re
      Garvin M., 2014 WL 1887334, at *5 (“there are numerous cases holding
      that a mother’s use of drugs while pregnant can constitute severe child
      abuse”); In re Shannon P., No. E2012-00445-COA-R3-PT, 2013 WL
      3777174, at *5 (Tenn. Ct. App. July 16, 2013) perm. app. denied (Tenn.
      Oct. 16, 2013) (“there is substantial case law supporting a finding of severe
      child abuse for a parent exposing a child to drugs in utero”); In re Ethin
      E.S., No. E2011-02478-COA-R3-PT, 2012 WL 1948817, at *8 (Tenn. Ct.
      App. May 31, 2012) (“this Court has repeatedly held that a mother’s
      prenatal drug use can constitute severe child abuse in termination of
      parental rights cases”); In re Joshua E.R., No. W2011-02127-COA-R3-
      PT, 2012 WL 1691620, at *3 (Tenn. Ct. App. May 15, 2012) (“In light of
      our prior holdings, and the supreme court and General Assembly’s
      disinclination to overrule them, we continue to hold that prenatal drug
      abuse may constitute severe child abuse for the purpose of terminating
      parental rights.”); In re B.A.C., 317 S.W.3d 718, 725 (Tenn. Ct. App.
      2009) (“we are content to rely on the reasoning set forth in . . . In re
      Benjamin M. . . . thoroughly addressing the question of whether prenatal
      drug use may constitute severe child abuse”). This long line of cases
      “demonstrate[s] the uniform view of this Court that prenatal drug use does,
      in fact, constitute severe child abuse.” In re P.T.F., 2017 WL 2536847, at
      *4. “A child has the right ‘to begin life free from the impairment of drug
      addiction and other ill effects of prenatal drug abuse.’” Id. at *5
      (quoting In re Benjamin M., 310 S.W.3d at 849).

In re Colton, 2018 WL 5415921, at *7-8 (footnote omitted). We decline to deviate from
these holdings. Turning to the record, there is undisputed evidence that Mother used
illegal drugs up to two days before the Child was born. The Child’s exposure to these
illicit drugs required treatment in the NICU for three weeks. Thereafter, the Child
continued to experience withdrawal symptoms for an additional two months. According
to his pediatrician, the Child may experience emotional and developmental delays such
that the full extent of his injuries from drug exposure may not be known for years. There
is no dispute that Mother knowingly exposed this Child to drugs, which exposure has and
is likely to continue to cause him injury. From the record, there is clear and convincing
evidence to support the trial court’s termination of Mother’s parental right on the ground
of severe child abuse.

                                   B. Abandonment

      The trial court also terminated Mother’s parental rights on the ground of
                                      -6-
abandonment by failure to visit and failure to support. 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:

      (i) For a period of four (4) consecutive months immediately preceding the
      filing of a proceeding, pleading, petition, or any amended petition 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 failed to visit or have failed to support or have failed
      to make reasonable payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i). Prior to 2018, the statutory definition of
abandonment placed the burden of proof on the petitioner to show that the parent’s failure
to visit or failure to support was “willful.”

       In 2018, the General Assembly amended the statute to shift the burden of proof to
the parent or guardian to show that his or her failure to support or visit was not willful.
For cases filed on or after July 1, 2018, Tennessee Code Annotated section 36-1-
102(1)(I) now provides that

      For purposes of this subdivision (1), it shall be a defense to abandonment
      for failure to visit or failure to support that a parent or guardian’s failure to
      visit or support was not willful. The parent or guardian shall bear the
      burden of proof that the failure to visit or support was not willful. Such
      defense must be established by a preponderance of evidence. The absence
      of willfulness is an affirmative defense pursuant to Rule 8.03 of the
                                             -7-
       Tennessee Rules of Civil Procedure

Tenn. Code Ann. § 36-1-102(1)(I). Here, Appellee filed her petition on July 12, 2018;
accordingly, Mother has the burden to show that her failure to visit and failure to support
the Child was not willful. As stated in the final order, the trial court applied the correct
standard in this case, to-wit:

       The Court finds based on the record that there is sufficient evidence to
       warrant a determination that Respondent, CASSANDRA [C.], abandoned
       the minor child by failing to support and engaging in only token visitation.
       Respondent, CASSANDRA [C.], must provide by preponderance of the
       evidence, that her failure to visit and support the minor child was not
       willful.

Concerning the concept of willfulness in the context of abandonment for purposes of
termination of parental rights, this Court has stated:

       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. With the foregoing in mind, we turn to address
the specific findings on abandonment.

                           1. Abandonment by Failure to Visit

                                            -8-
       The trial court found sufficient 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). 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. In its order terminating
Appellant’s parental rights, the trial court made the following relevant findings
concerning this ground:

               Hospital records introduced by Petitioner, ERIN [S.], show that
       Respondent, CASSANDRA [C.], did not seek to visit the minor child
       during his hospitalization from being born-drug exposed. . . . Respondent,
       CASSANDRA [C.] sought one visit with the minor child on March 5,
       2018. Petitioner, ERIN [S.] testified that Respondent, CASSANDRA [C.]
       knew where she worked and Theresa [C.], the maternal grandmother, had
       her telephone number. Respondent, CASSANDRA [C.], did not make
       phone calls to Petitioner, ERIN [S.], to ask about the minor child.
       Respondent, CASSANDRA [C.], did not place Petitioner, ERIN [S.], on
       her visitation list with TEEN CHALLENGE. Respondent, CASSANDRA
       [C.] has not attempted to visit the child since. Jessie [S.] and Kendall [I.],
       witnesses for Petitioner, ERIN [S.] testified that Respondent,
       CASSANDRA [C.], did not acknowledge or seek visitation with the minor
       child on June 13, 2018 during court proceedings in the Juvenile Court of
       Polk County, Tennessee when the minor child attended court with
       Petitioner, ERIN [S.]. Respondent, CASSANDRA [C.], only sought
       visitation after the adoption petition was filed. []

        Turning to the record, the petition to terminate Appellant’s parental rights was
filed on July 12, 2018; therefore, the relevant four-month time period is from March 12,
2018 until July 11, 2018. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014
WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (concluding that the day before the
petition is filed is the last day in the relevant four-month period). Mother does not
dispute that she failed to visit the Child during the relevant time period. Instead, she
contends that Erin S. prevented the Child from visiting Mother in the rehabilitation
facility. Thus, Mother argues that her failure to visit was not willful.

       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 793, 810
(Tenn. 2007) (citing Swanson, 2 S.W.3d 180, 189 (Tenn. Oct. 4, 1999)). 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
                                            -9-
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).

        The juvenile court’s order transferring custody to Erin S. permitted visitation at
the sole discretion of Erin S. The record shows that, in March 2018, Mother voluntarily
entered into a thirteen-month rehabilitation program. At that time, Mother knew that the
Child was in Erin S.’s custody and, in fact, Mother had consented to this placement.
Furthermore, the record shows that the Child’s maternal grandmother had Erin S.’s
contact information — a fact that Mother knew. Nonetheless, the record shows that
Mother did not attempt to contact Erin S. during the relevant four-month period. As
noted above, Teen Challenge only allowed calls and visits according to the patient’s
correspondence authorization form. Despite the fact that Mother knew about this
requirement, she failed to include Erin S. and/or the Child on her form. Furthermore,
Mother knew the Child was born addicted to drugs, yet there is no evidence that Mother
reached out to Erin S. or to anyone else to inquire about the Child’s well-being. Under
the trial court’s order, it was Mother’s initial burden to pursue visitation. Then, it was
left to Erin S. to approve and facilitate visitation. There is nothing in the juvenile court’s
order mandating that Erin S. was unilaterally responsible for visitation between the
Mother and the Child. Here, Mother failed to instigate visitation, which she could have
done by putting Erin S.’s name on the correspondence authorization form or by reaching
out to Erin S. Having failed to make any such effort, Mother’s contention that Erin S.
somehow thwarted visitation is disingenuous. Therefore, we conclude that there is clear
and convincing evidence to support the trial court’s termination of Mother’s parental
rights on the ground of abandonment by failure to visit.

                         2. Abandonment by Failure to Support

       A parent 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
“failed to support” and “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). “Terminating parental
rights based on failure to support presupposes: (1) that the parent is aware of his or her
duty to support; (2) that the parent is able to provide financial support, either through
income from private employment or qualification for government benefits; and (3) that
the parent has voluntarily and intentionally chosen not to provide financial support
without a justifiable excuse.” In re M.J.B., 140 S.W.3d 643, 645 (Tenn. Ct. App. Apr. 8,
2004) (citation omitted).

      As discussed above, Mother carries the burden of proof by a preponderance of the
evidence to show that her failure to support was not willful. See Tenn. Code Ann. § 36-
1-102(1)(I). This Court has held that failure to pay support is “willful” if the parent “is
                                          - 10 -
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)). A parent will not be
found to have abandoned his or her child if the failure to support the child was not within
his or her control. In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re
Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)).

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

             Respondent, CASSANDRA [C.], did not provide support for the
       minor child. Respondent, CASSANDRA [C.], testified that she could not
       provide financial support for the child because she needed money to enter
       the rehabilitation program with TEEN CHALLENGE. The TEEN
       CHALLENGE documents show that as of March 6, 2018, Respondent,
       CASSANDRA [C.], did not pay any money down to TEEN CHALLENGE
       and as of the date of those records she paid $500 towards the $1000 she
       was supposed to pay to enter the program.

       Turning to the record, it is undisputed that Mother failed to pay any support for the
Child during the relevant four-month time period. However, it is also undisputed that,
during this time period, Mother was voluntarily admitted to an inpatient rehabilitation
program. Mother testified that she was not allowed to work outside of the facility, and
she received no compensation during the relevant four-month time period. Appellee
argues that Mother voluntarily chose Teen Challenge when there were other programs
that would have allowed Mother to work. Appellee also notes that Mother owned a car,
which she was not using during her rehabilitation program. Appellee opines that Mother
could have sold the vehicle to provide support for the Child. Appellee, however, offered
no evidence to show the value of the vehicle or that the title was actually held by Mother.
In addition, there is no evidence concerning Mother’s income, expenses, or employment
history during the relevant time period.

       Because Mother’s rehabilitation was voluntary, we concede that she had some
choice in the program she attended. However, Mother should not be punished for
seeking help with her drug addiction. Although Mother chose a program that required
her to pay, the evidence shows that, as of the date of the hearing on the petition to
termination her parental rights, Mother had not paid the full balance owed to the program.
This fact tends to indicate that Mother had very limited financial means during the
relevant time period. There can be no doubt that the necessity of treatment for her drug
addiction was more imperative than gainful employment during the relevant time period.
Accordingly, although there is no dispute that Mother failed to provide support for the
Child, we conclude that Mother met her burden to show that her failure to do so was not
                                          - 11 -
willful. Therefore, we reverse the trial court’s termination of Mother’s parental rights on
the ground of abandonment by failure to support.

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

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

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

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

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:

              Respondent, CASSANDRA [C.], does not have a home, a job,
       [and] faces criminal charges. . . . Respondent, CASSANDRA [C.], has
       mental health issues which are currently not being treated. Respondent,
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CASSANDRA [C.], put forth no evidence of being drug free other than
her own testimony. Respondent, CASSANDRA [C.], did not provide
the Court with clean drug screens or the success rate of the TEEN
CHALLENGE program. Respondent, CASSANDRA [C.], presented
no evidence that she has made a lasting adjustment or any indication
that her current progress would continue. Respondent, CASSANDRA
[C.], does not have a specific plan to maintain her adjustment of
circumstances.

       Respondent, CASSANDRA [C.], does not have a meaningful
relationship with the minor child. Respondent, CASSANDRA [C.],
visited the minor child on March 5, 2018 before entering the
rehabilitation program with TEEN CHALLENGE. Respondent,
CASSANDRA [C.], did not call the child nor place the child or
Petitioner, ERIN [S.], on her visitor list with TEEN CHALLENGE.
Respondent, CASSANDRA [C.], did not seek to visit the minor child
on June 13, 2018 when he attended court proceedings with Petitioner,
ERIN [S.]. Respondent, CASSANDRA [C.], engaged in token visitation
with the minor child.

       Jessie [S.], the sister of Petitioner, ERIN [S.], testified that the
minor child seemed to be emotionally healthy with Petitioner, ERIN
[S.]. Kendyll [I.], the babysitter for the minor child, testified that there
was a bond between Petitioner, ERIN [S.], and the minor child. The
Court accepts the testimony of Andrea [C.], as a disinterested third
party that the child is happy and in a suitable home for placement. The
Court cannot overlook the fact that Petitioner, ERIN [S.], is medically-
trained, and the minor child suffered medical issues that have had to be
addressed by someone with the heightened qualifications of the
Petitioner, ERIN [S.].

       Respondent, CASSANDRA [C.], showed abuse toward the minor
child. . . . Respondent, CASSANDRA [C.], used illegal drugs
knowingly while pregnant with the minor child is in complete disregard
to the effect of heroin on this child.

       Respondent, CASSANDRA [C.], is homeless. Respondent,
CASSANDRA [C.]’s plan is to bring the child to the home of the
maternal grandparents. The Court can only draw an inference that the
maternal grandparents’ home is safe and does not have criminal
activity. . . . Respondent, CASSANDRA [C.], if not using illegal drugs
in the maternal grandparents’ home, was using illegal drugs while
residing in the maternal grandparents’ home. The testimony of the
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       maternal grandparents is that their daughter would stay gone a few days
       and come back. The home of Petitioner, ERIN [S.], is a healthy, stable
       and safe home.

               The medical records introduced as Exhibit 2-3 indicate that
       Respondent, CASSANDRA [C.]’s diagnosis of bipolar disorder and
       anxiety. The medical records do not show any treatment for these
       disorders. Respondent, CASSANDRA [C.], suffers from mental issues
       which are not being addressed. [] The Court finds that it would be
       detrimental to the child and could keep Respondent, CASSANDRA
       [C.], from providing a safe, stable home for the child.

              Respondent, CASSANDRA [C.], testified that she could not
       provide financial support for the child because she needed money to
       enter the rehabilitation program with TEEN CHALLENGE. The TEEN
       CHALLENGE documents show that as of March 6, 2018, Respondent,
       CASSANDRA [C.], did not pay any money down to TEEN
       CHALLENGE and as of the date of those records she paid $500
       towards the $1000 she was supposed to pay to enter the program. []

                                              ***

               The minor child deserves more than a chance that Respondent,
       CASSANDRA [C.], will maintain sobriety. The child at this time is in
       a home that is stable with a parent, who because of her medical training,
       is able to assist him with development. Petitioner, ERIN [S.], provided
       a home study and a background report to the Court. The home study
       shows Petitioner, ERIN [S.]’s home is safe, without criminal activity.
       Petitioner took care of the child going through withdrawals, took care of
       a child during his hospitalization for drug exposure in utero . . . and
       tried to keep the maternal grandparents in a relationship with the child[.]
       Petitioner, ERIN [S.], testified that she spent over $9,000 to purchase
       items for the child and set up housekeeping for the minor child. [] There
       is no proof in the record that Petitioner, ERIN [S.], is anything but a
       good parent and has taken care of this child since a time close to his
       birth.    It is in the best interest of the child for Respondent,
       CASSANDRA [C.]’s, rights to be terminated.

       The foregoing findings are supported by the evidence. As discussed above, the
Child has lived solely with Erin S. since he was discharged from the hospital, and he has
not had consistent, quality time with Mother since his birth. The Child has bonded with
Erin S. and is currently in a safe, nurturing home. Conversely, at the time of the hearing,
Mother had not completed her inpatient rehabilitation program, and there was no proof
                                            - 15 -
concerning her ability to maintain sobriety. Furthermore, Mother’s mental health issues
remain untreated at the time of the hearing. Mother testified that she cannot afford a
house or apartment and intends to return to her parents’ home. Meanwhile, the Child has
bonded with Erin S. and has thrived while in her care. The Child’s needs have been fully
satisfied during the time he has lived with Appellee. To remove him from her home
would likely cause the Child significant emotional and/or physical harm. This is
especially true given the lack of evidence concerning the stability of Mother’s sobriety
and the myriad problems in her life that remain unaddressed. From the record, we
conclude that there is clear and convincing evidence to support the trial court’s
conclusion 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 ground of abandonment by failure to support. We affirm the
termination of Mother’s parental rights on the remaining grounds and on the trial court’s
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, Cassandra C. Because
Cassandra C. is proceeding in forma pauperis in this appeal, execution for costs may
issue if necessary.


                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




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