                                                                                                            10/30/2017
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                     September 6, 2017 Session

                                      IN RE BRANTLEY B.1

                    Appeal from the Chancery Court for DeKalb County
                     No. 2016-AD-3     Ronald Thurman, Chancellor
                         ___________________________________

                                No. M2016-02547-COA-R3-PT
                            ___________________________________


Mother appeals the termination of her parental rights to her son resulting from a petition
for termination and adoption filed by her son’s Father and Stepmother. The trial court
terminated Mother’s rights on the grounds of abandonment by failure to support and
persistence of conditions, and on a finding that termination was in the child’s best
interest. Upon a thorough review of the record, we reverse the termination of Mother’s
rights on the ground of persistence of conditions; we affirm the termination of her rights
on the ground of abandonment by failure to support and the holding that termination is in
the child’s best interest.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Rachel M. Thomas, Nashville, Tennessee, for the appellant, Lydia P.

Kelsy Miller, Cookeville, Tennessee, for the appellees, Justin B. and April B.

                                                OPINION

       The child that is the subject of this action, Brantley B., was born to Lydia P.
(“Mother”) and Justin B. (“Father”) in February 2012; Mother and Father were not
married at the time of his birth. On December 19, 2012, Father filed a petition alleging
that he had taken custody of Brantley because Mother was using drugs and was suicidal,

1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
was purchasing drugs in Brantley’s presence, and was addicted to drugs and in need of
treatment; Father sought to have Brantley declared dependent and neglected and to be
awarded custody of him. An ex parte order was entered on that date, holding that there
was probable cause to believe that Brantley was dependent and neglected and restraining
Mother from interfering with Father’s custody, and setting a preliminary hearing for
January 3, 2013. The matter was heard on that date, and on January 8 the court entered
an agreed order appointing counsel for Mother, appointing a guardian ad litem, and
continuing the December 19 restraining order.

        On March 31, 2016, Father and his wife April B. (“Stepmother”), collectively
“Petitioners,” filed a petition to terminate Mother’s parental rights to Brantley and for
adoption by Stepmother. The petition alleged, inter alia, that Mother had a “long-
standing substance abuse problem,” and that she had failed to pay child support during
the time Brantley had been in Father’s custody. As grounds for termination, the petition
asserted abandonment by failure to pay child support in the four months preceding the
filing of the petition, Tennessee Code Annotated sections 36-1-113(g)(1) and -
102(1)(A)(i), and persistence of conditions, Tennessee Code Annotated section 36-1-
113(g)(3); the petition also alleged that terminating Mother’s rights was in Brantley’s
best interest. Mother filed an initial response, pro se; she subsequently retained counsel,
who also filed an answer to the petition. A guardian ad litem was appointed, and the case
proceeded to trial on October 25, 2016, at which Mother, Stepmother, Father, Mother’s
father, and Mother’s mother testified.

       The court entered an order on November 12, 2016, holding that both grounds for
termination were established by clear and convincing evidence and that it was in
Brantley’s best interest that her parental rights be terminated. Mother appeals, asserting
that neither the grounds for termination nor the best interest determination were proven
by clear and convincing evidence.

II. STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes
on termination of parental rights provide the only authority for a court to terminate a
parent’s rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental
rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann.
§ 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights,
only one ground need be proved, so long as it is proved by clear and convincing
evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
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        Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proven by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence, that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).

III. ANALYSIS

       A. Abandonment by Failure to Support

       Abandonment is identified as a ground for termination in Tennessee Code
Annotated section 36-1-116(g)(1) and defined in section 36-1-102(1)(A), which reads in
pertinent part:

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

Tenn. Code Ann. § 36-1-102(1)(A). A failure to support is “‘willful’ when a person is
aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to
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do so, and has no justifiable excuse for not doing so.” In re Audrey, 182 S.W.3d 838, 864
(Tenn. Ct. App. 2005).

      With respect to this ground, the court made the following finding:

      In this case, as it relates to the ground of abandonment, the Respondent
      testified that she has not paid child support in the four months preceding the
      filing of the petition, the filing being March the 31st of 2016. She also
      testified that she worked during this period of time. By her own admission,
      she was capable of paying child support, and there was no proof presented
      to indicate that she was unable to work and provide for the child. The
      evidence showed that she has worked in at least eight different positions
      during the child's life, most of which were paying her more than minimum
      wage, yet she paid no support. She also had very little living expenses at
      [the] time, due to not paying rent. Under relevant case law, whether there is
      a child support order or not, a parent has a moral obligation to support their
      children. Even so, there are a number of orders, some of them being made
      an exhibit to these proceedings that set forth a child support obligation
      through the Juvenile Court of Dekalb County. From the proof, there has
      been no support paid.
      ***
      Therefore, the Court finds by clear and convincing evidence that
      Respondent willfully abandoned the child by failure to pay child support.

        Mother concedes, and her testimony along with that of Father and Stepmother,
confirms, that she did not pay any child support during the four months preceding the
filing of the petition, November 30, 2015, to March 30, 2016 (the “relevant time period”
herein). She contends that her failure to pay support was not willful because she had a
rent obligation during the time period; she also asserts that she had a justifiable excuse
because “the child support office[] represent[ed] that the case was closed.”

       With respect to her awareness of the duty to support Brantley, Mother cites her
testimony that “Judge Cook told me to go through the state” but she was “never
instructed” to pay Father directly, and argues that she was “not aware of a stand-alone
duty to support — she believed that she was supposed to pay child support through the
child support office.” This argument, however, is contrary to the law and the evidence.

      “All parents have a duty to support their children.” In re M.J.B., 140 S.W.3d 643,
655 (Tenn. Ct. App. 2004). The record includes an order entered on June 5, 2014, in the
dependent and neglect proceeding, setting Mother’s child support obligation at $46.85
per week, which Mother was ordered to pay directly to Father. Mother also testified that
she was aware of her child support obligation and that Brantley needed clothes and food,

                                            4
which only Father was providing. Accordingly, there is clear and convincing evidence
that Mother was aware of her duty to support Brantley.

       As to the capacity or ability to pay her support obligation, Mother argues on
appeal:

        In its Order, the trial court cited erroneous facts regarding whether Mother
        was employed and had to pay rent. Had the trial court considered that
        Mother was living somewhere that did cost rent and was unemployed for a
        significant portion of the four-month period, it might have found that
        Mother was unable to provide financial support during this time period.

Mother does not include citations to the testimony or other parts of the record in support
of this argument.

      Mother testified that she became employed in August or September 2015 at Fast
Break Express in Lebanon, making $9 per hour and working 32 to 35 hours per week,
and was fired in December 2015 for stealing;2 that she was employed by her landlord in
the months of February and March of 2016 at a rate of $200 per week. This is clear and
convincing evidence that Mother had the ability to pay.

       With respect to her living arrangements and rent, Mother testified that she lived
with her boyfriend on Maple Street in Lebanon “for four or five months” before moving
to Castalian Springs with him in December 2015 until May 2016; the couple took in a
roommate for two or three months who paid “100 a month or 200” dollars toward the
rent. She also testified as follows:

        Q. Any of these other places that you’ve lived, did you have to pay rent?
        Did you have to pay rent at your father’s house?
        A. No.
        Q. Did you have to pay rent at any of the transitional living houses?
        A. Yes.

        As regards other expenses during the relevant time period, Mother testified:

        Q. . . . Now, before we filed this petition for termination, you would agree
        with me that you were spending money on drugs –
        A. Yes, ma’am.
        Q. -- for the past four years?
        A. Yes.

2
 Mother testified that she stole money at work in order “[t]o buy drugs,” was convicted of felony theft,
and was sentenced to three years of probation.
                                                   5
       Q. Okay. And how were you taking those drugs?
       A. I was snorting them.
       Q. And you were buying these off the street; is that right?
       A. Yes, ma’am.
       Q. Now, I believe at one point in the beginning, were you spending
       anywhere between 3- to $400 a week?
       A. I mean, it could be, yes, easily.

       Mother’s testimony established that she was not living at a transitional living
house during the relevant time period, as she testified that she lived with her boyfriend in
Lebanon and then in Castalian Springs at that time. The record does not preponderate
against the court’s finding that Mother “had very little living expenses at [the] time, due
to not paying rent.” The evidence clearly establishes that Mother was able to work and
did work portions of the relevant time period and had the ability to pay support.

        Mother contends that she had a justifiable excuse for not paying support, based on
a letter dated December 7, 2015, from the Child Support Enforcement Division of the
Office of the District Attorney General, as well the statement she attributes to the juvenile
judge quoted earlier in this opinion. Upon our review, we do not agree that this evidence
supports Mother’s argument.

       The letter from the Child Support Enforcement office states:

       Ms. P[.],

       In response to your message left, the case was closed in July 2015.
       However, that does not do away with the order, that just means that the
       child support obligation is not being enforced through the Child Support
       Enforcement office, at this time.

       Thank you,

       /s/ Donna Prall
       CSSII

Mother testified that the juvenile judge “told me to go through the state.”

       Mother’s obligation to pay support directly to Father was set in the June 5, 2014
order entered in juvenile court; the record does not show the reason that the Child
Support Enforcement Office became involved. In any event, the letter only advises
Mother that the office had closed its case and would not be involved further “at this
time”; the letter specifically states that the obligation established in the order remained.
Similarly, Mother’s testimony regarding what the juvenile judge purportedly told her,
                                               6
given the lack of context, completeness, or further explanation, has no probative value to
this inquiry, particularly in light of the requirement in the order that payments be made
directly to Father.

        In our consideration of this matter, we are mindful of the instruction in In re
Audrey S. that a parent’s “[f]ailure to visit or to support is not excused by another
person’s conduct unless the conduct actually prevents the person with the obligation from
performing his or her duty or amounts to a significant restraint of or interference with the
parent’s efforts to support or develop a relationship with the child.” 182 S.W.3d at 864
(internal citations omitted). Neither the letter nor the judge’s purported comment
restrained, prevented, or excused Mother from paying support. To the contrary, the
record contains a printout from the Tennessee Department of Human Services Child
Support Enforcement Services, for the period December 1, 2012 through November 2,
2016, showing that the only child support payments Mother made, totaling $923.00, were
made over the four month period of June 13 through October 10, 2016, well after the
relevant time period.

       Mother also argues that trial court erred in failing to consider her testimony that
she provided toys, books, a backpack, candy, and clothes, as well as gifts on various
holidays “as circumstantial evidence of a lack of willfulness.” Mother made the same
argument before the trial court, which held that: “Any support paid by the [Mother]
would have been considered token under the case law and not in compliance with the
child support guidelines.” We agree with the court’s conclusion.

        Tennessee Code Annotated section 36-1-102(1)(B) defines “token support” as
“support [that], under the circumstances of the individual case, is insignificant given the
parent’s means.” The items mentioned by Mother are items and gifts that did not assist
Father in providing for Brantley on a meaningful and continuous basis. Further, Mother
testified that the money she earned or obtained, which could have been used for
Brantley’s support, was used to support her addiction. The evidence does not
preponderate against the trial court’s holding that Mother’s support was token.

       We conclude that the record clearly and convincingly establishes that Mother’s
failure to pay support was willful within the meaning of Tennessee Code Annotated
section 36-1-102(1)(D); accordingly, we affirm the termination of Mother’s parental
rights on the ground of abandonment by failure to support.

       B. Persistence of Conditions

      Mother challenges the trial court’s conclusion that the Petitioners proved, by clear
and convincing evidence, the ground of persistence of conditions.


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       Parental rights may be terminated on the basis of “persistence of conditions” as
defined by Tennessee Code Annotated section 36-1-113(g)(3) when:

       The child has been removed from the home of the parent or guardian by
       order of a court for a period of six (6) months and:
           (A) The conditions that led to the child’s removal or other conditions
           that in all reasonable probability would cause the child to be subjected
           to further abuse or neglect and that, therefore, prevent the child’s safe
           return to the care of the parent or parents or the guardian or guardians,
           still persist;
           (B) There is little likelihood that these conditions will be remedied at
           an early date so that the child can be safely returned to the parent or
           parents or the guardian or guardians in the near future; and
           (C) The continuation of the parent or guardian and child relationship
           greatly diminishes the child’s chances of early integration into a safe,
           stable and permanent home[.]

       With respect to this ground, this court has held that “Tenn[essee] Code
Ann[otated] [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 874. The Ex Parte Restraining Order entered in the dependency and neglect
proceeding on December 19, 2012, states only that “[b]ased on the allegations in the
petition, there is probable cause to believe that the minor child[ is] dependent and
neglected and will suffer irreparable harm if a restraining order is not issued at this time.”
While the ex parte order includes a finding of probable cause that Brantley was
dependent and neglected, the record does not contain an adjudication or any finding in
that regard. Given the high standard of proof applicable to parental termination cases, we
cannot assume that the requirement that there be a finding that Brantley was dependent,
neglected, or abused has been met or that there is clear and convincing evidence that
Brantley was found to be dependent or abused. In the absence of same, and given the
fundamental constitutional rights at issue and heightened standard of proof applicable to
this case, we are unable to affirm the holding that termination on the ground of
persistence of conditions was established by clear and convincing evidence.
Accordingly, we reverse the termination of Mother’s rights on the ground of persistence
of conditions.

       C. Best Interest Determination

        Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is in the best interest of the child for the
parent’s rights to be terminated, again using the clear and convincing evidence standard.
In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of factors at
                                             8
Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the
child’s best interest.3 The list of factors in the statute “is not exhaustive, and the statute
does not require every factor to appear before a court can find that termination is in a
child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
Tenn. Dep’t. of Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-
PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue,
we are also mindful of the following instruction in White v. Moody:

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

3
    The factors at Tenn. Code Ann. § 36-1-113(i) are:

          In determining whether termination of parental or guardianship rights is in the best
          interest of the child pursuant to this part, the court shall consider, but is not limited to, the
          following:

          (1) Whether the parent or guardian has made such an adjustment of circumstance,
          conduct, or conditions as to make it safe and in the child’s best interest to be in the home
          of the parent or guardian;
          (2) Whether the parent or guardian has failed to effect a lasting adjustment after
          reasonable efforts by available social services agencies for such duration of time that
          lasting adjustment does not reasonably appear possible;
          (3) Whether the parent or guardian has maintained regular visitation or other contact with
          the child;
          (4) Whether a meaningful relationship has otherwise been established between the parent
          or guardian and the child;
          (5) The effect a change of caretakers and physical environment is likely to have on the
          child’s emotional, psychological and medical condition;
          (6) Whether the parent or guardian, or other person residing with the parent or guardian,
          has shown brutality, physical, sexual, emotional or psychological abuse, or neglect
          toward the child, or another child or adult in the family or household;
          (7) Whether the physical environment of the parent’s or guardian’s home is healthy and
          safe, whether there is criminal activity in the home, or whether there is such use of
          alcohol, controlled substances or controlled substance analogues as may render the parent
          or guardian consistently unable to care for the child in a safe and stable manner;
          (8) Whether the parent’s or guardian’s mental and/or emotional status would be
          detrimental to the child or prevent the parent or guardian from effectively providing safe
          and stable care and supervision for the child; or
          (9) Whether the parent or guardian has paid child support consistent with the child
          support guidelines promulgated by the department pursuant to § 36-5-101.

                                                         9
171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).
In this inquiry, we are instructed that:

       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. White v. Moody, 171 S.W.3d
       [187] at 194 [(Tenn. Ct. App. 2004)].

In re Audrey S., 182 S.W. 3d at 878.

        The trial court concluded that termination of Mother’s rights was in Brantley’s
best interest, after considering all nine statutory factors. Mother challenges whether
Petitioners proved, by clear and convincing evidence, that terminating her parental rights
was in his best interest, contesting the court’s findings with respect to factors (1), (2), (4),
(5), (6), (7), (8), and (9). We have carefully reviewed the record, including the testimony
cited by Mother in support of her arguments, and conclude that the evidence does not
preponderate against the trial court’s factual findings that: (1) Mother has “started to see
the light” and that “while there has been supervised visitation, there has been no proof
that the home would be safe otherwise”; (2) Mother “did not complete or comply with the
efforts by both the Juvenile Court and the Department of Children’s Services to try to
kick her habit” and “left several rehabilitation programs against their advice” and
“resided in as many a[s] thirteen different locations during the child’s four years”; (3)
Mother has maintained regular visitation; (4) Stepmother “has been the mother figure
here” while “the bond between the child and [Mother] is more in a buddy friendship than
it is a parent-child relationship”; (5) that there is no request by Mother for a change of
custody; (6) that “[t]here’s no proof that [mother’s drug abuse] affected the child”; (7)
that there is no proof that Father and Stepmother’s homes, as well as the homes of the
maternal grandmother and grandfather, are not healthy or safe but that Mother had “a
significant drug addiction to the point that she attempted to fake a drug screen with the
Juvenile Court and has failed a number of drug screens”; (8) that Mother has been
diagnosed as manic-depressive bipolar, receives medication treatment, and has attempted
and made threats of suicide; and (9) Mother has not paid child support.

       With respect to factor (4) Mother’s argument centers on her belief that the “side-
by-side comparison of Mother vs. Step-mother in which Step-mother wins is completely
inappropriate.” We do not agree that what the court did in its best interest analysis was
inappropriate in any respect. The specific factor at issue was whether a meaningful
relationship had been established between Mother and Brantley. The court determined
that Mother had a relationship with Brantley, and that the character of that relationship is
                                           10
“more in a buddy friendship than it is a parent-child relationship”; the court attributed this
to the fact that Stepmother had been “acting as the parent.” The trial court clearly put the
finding in the proper context when it prefaced the holding by saying “[Mother] has a
relationship but it’s not the same. . . . The Court must determine the child’s best interest.”
The court then examined each woman’s relationship with Brantley and determined that
Stepmother had a more meaningful relationship with Brantley; the evidence does not
preponderate against this finding.

       Upon our consideration of the record before us, we conclude that the combined
weight of the facts amount to clear and convincing evidence that termination of Mother’s
parental rights is in Brantley’s best interest.

IV. CONCLUSION

       For the foregoing reasons, we reverse the court’s termination of Mother’s rights on
the ground of persistence of conditions; in all other respects, we affirm the judgment.




                                                  RICHARD H. DINKINS, JUDGE




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