                                                                                                      03/28/2017




                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                              Assigned on Briefs February 2, 2017

                                       IN RE JA’MIYA T.

                     Appeal from the Juvenile Court for Shelby County
                       No. AA1036 David S. Walker, Special Judge
                         ___________________________________

                               No. W2016-01433-COA-R3-PT
                           ___________________________________


This is a termination of parental rights case. The trial court terminated Appellant/Father’s
parental rights on the grounds of: (1) abandonment by willful failure to support; and (2)
persistence of conditions. Because the grounds for termination of Father’s parental rights
are met by clear and convincing evidence, and there is also clear and convincing evidence
that termination of Father’s parental rights is in the best interest of the child, we affirm
and remand.

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

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

James Franklin, Jr., Memphis, Tennessee, for the appellant, Derrick T.

Herbert H. Slatery, III, Attorney General and Reporter, and Rachel E. Buckley, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.


                                              OPINION

                                           I. Background

       This case concerns one minor child, Ja’Miya T. (d.o.b July 2008).1 Derrick T.

       1
           In termination of parental rights cases, it is the policy of this Court to remove the names of
(“Father,” or “Appellant”) and Jennifer B. (“Mother”) are Ja’Miya T.’s parents.2 The
Tennessee Department of Children’s Services (“DCS,” or “Appellee”) first became
involved with this family on October 9, 2013, when DCS received a local referral,
reporting abuse of Ja’Miya T. and drug use in the home. A DCS investigator visited the
home and found that the family had been evicted. DCS located Ja’Miya T., Father,
Mother, and Mother’s other children at a motel. Ja’Miya T. was reported to be unkempt;
she was also not enrolled in school. Mother stated that the family was living in various
motels. Mother also admitted to using cocaine and having several untreated mental
illnesses, including bipolar disorder and schizophrenia. In a drug screen, Father tested
positive for marijuana and cocaine. Father and Mother stated that they did not have
stable housing or employment. Ja’Miya T. reported that Father whipped her with
extension cords, and a physical examination revealed new and old bruises.

       In an order entered on February 17, 2014, the Shelby County Juvenile Court (“trial
court”) adjudicated Ja’Miya T. dependent and neglected, finding, in relevant part, that:

               Child Protective Services investigator Julianka Jackson testified.
        Upon arriving at the family’s residence to investigate a referral received by
        [DCS], Ms. Jackson found the family’s household items on the street.
        After speaking with the property’s manager, Ms. Jackson found the family
        at a local motel. Upon further investigation, the mother, Jennifer B[.],
        admitted to not having a home for the child[], admitted to the use of
        cocaine and marijuana, and admitted to having prior mental health issues….
        At this meeting, Derrick T[.] tested positive for controlled substance use.
        The mother was asked but declined to take a drug test. There were also
        allegations of physical abuse of the child[] on the part of the father, Derrick
        T[.] Ms. Jackson spoke with the child[] who advised that [she] had been
        whipped by the father with extension cords. Ms. Jackson observed new and
        old marks on the child[] which were consistent with being beaten with
        extension cords.

               Family Services worker Tiffany Robinson testified. A Child and
        Family Team Meeting was conducted on October 14, 2013. At this
        meeting the father tested positive for cocaine and marijuana. The mother
        refused to take a drug test…. Ms. Robinson testified that the father is also
        not in compliance with the tasks listed in the Permanency Plan. The father
        has failed to participate in or complete an alcohol and drug assessment, a
        mental health assessment, domestic violence counseling, and a parenting

minor children and other parties in order to protect their identities.
        2
          Mother’s parental rights to Ja’Miya T. and three other children were also terminated in these
proceedings. Prior to the hearing on parental termination, paternity testing revealed that Father is the
natural parent of Ja’Miya T., but not Mother’s other children. Mother has not appealed the termination of
her parental rights.
                                                  -2-
       assessment. Furthermore, the father has failed to obtain and maintain a
       stable source of income, obtain and maintain stable housing, and legitimate
       the children. Lastly, the father has only visited with the child[] one time
       since [she] entered [DCS] custody. Ms. Robinson testified that she had
       difficulty maintaining contact with the father as his phone had been
       disconnected.

                                            ***

              By clear and convincing evidence, the minor child[] [is] dependent
       and neglected within the meaning of the law pursuant to Tenn. Code Ann.
       37-1-102(b)(12)(F) and 37-1-102(b)(12)(G). Based on the assessment of
       the family and the child[]’s circumstances, it was reasonable not to make
       efforts to maintain the child[] in the home due to allegations of drug
       exposure and physical abuse.

        After working with Father for over a year, on July 28, 2015, DCS filed a petition
to terminate Mother and Father’s parental rights. As grounds for termination of Father’s
parental rights to Ja’Miya T., DCS asserted: (1) abandonment by willful failure to
support; and (2) persistence of the conditions that led to the child’s removal from Father’s
home. On May 19 and 23, 2016, the trial court heard the petition to terminate Father’s
parental rights. On June 16, 2016, the trial court entered an order terminating Father’s
parental rights to Ja’Miya T. on the grounds of abandonment by willful failure to support,
persistent conditions, and on its finding that termination of Appellant’s parental rights is
in the child’s best interest. Appellant appeals.

                                         II. Issues

       In his brief, Appellant raises three issues for review:

       1. Whether DCS presented clear and convincing evidence in regard to
          failure to support?

       2. Whether DCS made reasonable efforts in regard to the ground of
          persistence of conditions?

       3. Whether it is reversible error for Special Judge Walker to sit as a
          substitute [j]udge, though the procedures set forth in Tennessee Code
          Annotated Section 17-2-118 have not been followed?

                                 III. Standard of Review

       Under both the United States and Tennessee Constitutions, a parent has a
                                      -3-
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. 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). Furthermore, when the resolution of an issue in a case depends on the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witness and his or her manner and demeanor while testifying, is in a far better position
than this Court to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415
(Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.1997). The
weight, faith, and credit to be given to any witness’ testimony lies in the first instance
with the trier of fact, and the credibility accorded will be given great weight by the
appellate court. See Whitaker, 957 S.W.2d at 837; see also Walton v. Young, 950
S.W.2d 956, 959 (Tenn. 1997). Accordingly, appellate courts will not re-evaluate a trial
judge’s assessment of witness credibility absent clear and convincing evidence to the
                                           -4-
contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn.
1987); Bingham v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978);
Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

                            IV. Authority of the Trial Court

       In his third issue, Appellant alleges that Special Judge Walker was not properly
appointed as a substitute judge, pursuant to Tennessee Code Annotated Section 17-2-118,
so as to have authority to terminate Appellant’s parental rights. From our review of the
record, Appellant failed to raise this issue or object in the trial court. In fact, the trial
court’s order specifically states that, “No party objected to the Special Judge presiding
over this matter.” “[T]he issue of whether a magistrate has been properly appointed to
serve as a special judge in juvenile court has been thoroughly litigated and has never been
deemed to constitute an issue of subject matter jurisdiction” and, therefore, may not be
raised for the first time on appeal. In re Marcell W., No. W2014-02120-COA-R3-CV,
2015 WL 4396261, at *9 (Tenn. Ct. App. July 16, 2015); see also State Dept. of
Children’s Servs. v. A.M.H., 198 S.W.3d 757, 764 (Tenn. Ct. App. 2006) (declining to
consider appellant’s argument concerning a special judge’s authority because “issues not
raised at trial generally will not be considered for the first time on appeal.”). Because the
special judge issue does not raise a question concerning subject matter jurisdiction, the
issue cannot be raised for the first time on appeal. Tenn. R. App. P. 13(b). Accordingly,
Appellant’s argument that Special Judge Walker lacked the authority to preside over the
proceeding for termination of parental rights is waived.

                    V. Grounds for Termination of Parental Rights

       As noted above, the trial court relied on two statutory grounds in terminating
Appellant’s parental rights: (1) abandonment by willful failure to pay support; and (2)
persistence of conditions. See Tenn. Code Ann. §§ 36-1-102(1)(A)(i); 36-1-113(g)(1),
(3). 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 both grounds.

                                    A. Abandonment

       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) and Tennessee
Code Annotated Section 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
                                         -5-
      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[.]

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[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i). As found by the trial court, the relevant, four-
month time period in this case is March 28, 2015 until July 27, 2015.

       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
                                        -6-
       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
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 its order terminating Father’s parental rights, the trial court made the following,
relevant findings concerning the ground of abandonment by willful failure to support:

       11. Pursuant to T.C.A. § 36-1-113(g)(1) and as defined by T.C.A. § 36-1-
       102(1)(A)(i), Respondent[] [] Derrick [] T[.] ha[s] abandoned… [Ja’Miya
       T.] in that, for a period of four (4) consecutive months immediately
       preceding the filing of the Petition for Termination of Parental Rights, [he]
       willfully failed to make any contribution whatsoever toward the support of
       the child[], despite being able-bodied and capable of being employed. The
       Department filed the petition on July 28, 2015, and [the] parent[] failed to
       support the child[] in the four months prior to the date the petition was
       filed, which was from March 28, 2015 to July 27, 2015. Family Service
       Worker Tiffany Robinson testified that the parent[] [has] not contributed to
       the support of the child[] since [she] entered foster care.

                                           ***

       13. Pursuant to T.C.A. 37-2-403(a)(2)(B), Ms. Robinson advised Mr. T[.]
       on November 5, 2013; June 11, 2014; and September 19, 2014 that willful
       failure to visit or contribute to the support of the child[] was a ground for
       termination of parental rights. The Department provided Mr. T[.] with its
       Criteria and Procedures for Termination of Parental Rights form on all
       three dates and explained the form each time. Mr. T[.] signed the Criteria
       form on November 5, 2013 and again on June 11, 2014, and he refused to
       sign the Criteria form on September 19, 2014, which was documented by
       Ms. Robinson. Mr. T[.] also signed the permanency plan on October 22,
                                             -7-
       2014 which states that he is required to provide support for the child[].
       According to Mr. T[.], he bought the child[] clothes at one point, but the
       foster parent threw the clothes away so he did not send any more clothing.
       Mr. T[.] did not tell Ms. Robinson about the foster parent’s actions. Mr.
       T[.] also reported that the Internal Revenue Service (“IRS”) confiscated his
       tax refund to pay back child support, but he did not have proof with him at
       court. Mr. T[.] testified that he currently works full-time at Nike on Shelby
       Drive, and he works eight hours a day, five days a week, making $9.00 an
       hour. Mr. T[.] testified that he takes home about $360.00 a week. Mr. T[.]
       reports his expenses are a monthly $62.00 cable bill; $150.00 to $300.00
       utility bill; and miscellaneous household supplies. Mr. T[.] also pays half
       the rent for himself and Ms. B[.] Mr. T[.] stated he currently had the ability
       to pay up to $200.00 a month in child support for Ja’Miya. Previously, Mr.
       T[.] worked doing “under the table” jobs for which he was paid cash, and
       he also worked for a temporary agency and also at Nike on Winchester
       Road. Mr. T[.] testified that he bought the children treats at visits…

        The record contains no evidence that Father made any child support payments.
Despite the lack of evidence, he testified, without providing receipts or confirmation, that
his tax return had been applied towards child support, as follows:

       Q.     Have you paid any child support to the child support office?

       A.     No. I just started receiving letters, but I do allow them to take my
              income tax this year.

                                           ***

       Q.     Mr. T[.], do you have any receipts from the IRS in regards to the tax
              returns that you paid your child support from?

       A.     I’m waiting on them now.

In its order terminating Appellant’s parental rights, the trial court made a credibility
finding, stating that “Mr. T[.] is not a credible witness.” As set out above, a credibility
finding by the trier of fact is given great weight by this Court. See Whitaker, 957 S.W.2d
at 837; McCaleb, 910 S.W.2d at 415; Walton, 950 S.W.2d at 959. Assuming, arguendo,
that the foregoing testimony is material, our review focuses on Father’s payment of child
support during the four months preceding the filing of the petition for termination of
parental rights, i.e., from March 28, 2015 until July 27, 2015. Accordingly, even if we
take Father’s testimony as true, his payment of a tax return in 2016, the year of the
hearing on the petition to terminate his parental rights, would be not a payment within the
relevant four-month period. This Court has stated that a last-minute child support
                                             -8-
payment outside of the relevant period is “not so much genuine child support as it [is] a
bid for self-preservation.” In re Jacob C. H., No. E2013-00587-COA-R3-PT, 2014 WL
689085, at *6 (Tenn. Ct. App. Feb. 20, 2014).

      Regarding his income during the relevant four month period, Father testified as
follows:

      Q.     And you also testified that you are currently working at Nike?

      A.     Yes.

      Q.     And when did you start working there?

      A.     I started December 2015.

      Q.     Okay. And prior to that, where did you work?

      A.     I was working at Staff Solution. It’s right there about where my
             house is, where I live now.

      Q.     Okay. And approximately how long did you work there?

      A.     Well, I worked there it was a little under a month.

      Q.     A month. Okay. But prior to the temp service and Nike, you were
             not able to find employment?

      A.     Oh. I had worked at Benihana. I worked at the other Nike on
             Winchester.

                                          ***

      Q.     Now, since the child[] [has] been in custody were you working at
             Benihana’s or this was before [she] came into custody?

      A.     That was after [she] came into custody.

      Q.     Okay. Now, as far as the income you earn from these different
             places –

      A.     No. Wait. That was after [she] came into my custody, the first job I
             worked was the Nike on Winchester, then Benihana’s.

                                          -9-
       Q.     Okay. Now, as far as the income you earned there, did you have the
              ability to support the child[]?

       A.     Yes.

When questioned by the trial court, Father explained that he had additional “under-the-
table work” during the relevant time period:

       THE COURT: You said earlier that you were at one time doing under-the-
            table work. What did you mean when you said that, sir?

       A.     When people pay you out of their pocket instead of with a check. It
              was during the time when the kids first came into custody.

       THE COURT: So, you were receiving income at that time, but you were
            getting paid in cash; is that right?

       A.     Yes.

Father contends that DCS failed to meet its burden to show that Father had the ability to
pay child support during the relevant four-month period. In support of his arguments,
Father relies on the case of In re Envy J., in which this Court declined to uphold the
trial court’s finding of the parent’s failure to support, concluding that the record was
insufficient to show that the parent willfully failed to support the children. In re Envy
J., No. W2015-01197-COA-R3-PT, 2016 WL 5266668, at *14 (Tenn. Ct. App. Sept.
22, 2016). In In re Envy J., the parent did not testify, and DCS’ only proof regarding
the parent’s income was the testimony of the DCS case manager. Id. Unlike In re
Envy J., here, Father testified regarding his work history and, by his own admission,
stated that he “ha[d] the ability to support” during the relevant four-month period.

        Father also argues that he could not pay child support because he did not know
how to send the payments. We find this argument unpersuasive because the
permanency plan provided Father with the address. Father contends that he provided
support to Ja’Miya T. by: (1) buying clothes that he kept in his possession; (2) giving
Ja’Miya T. one dollar at visits; and (3) buying ice cream and cookies during visits.
Given Father’s testimony regarding his employment during the relevant period, we
conclude that these payments were merely token. Furthermore, Father has provided no
proof, e.g., receipts, to support his testimony, and the foster parent contradicted Father,
testifying that Father never provided clothes or bought treats at visits. From our review,
we conclude that the evidence does not preponderate against the trial court’s findings
that Father had the ability to provide support, but chose not to. Accordingly, there is
clear and convincing evidence to support the trial court’s termination of Father’s
parental rights on the ground of abandonment by willful failure to support.
                                            - 10 -
                               B. Persistence of Conditions

       Tennessee Code Annotated Section 36-1-113(g)(3) provides that termination of
parental rights may be based on persistence of conditions:

       (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.

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 at 178.

        In In re Audrey S., 182 S.W.3d at 872, this Court held that based upon the
statutory text and its historical development, the ground of persistence of conditions
found in Tennessee Code Annotated Section 36-1-113(g)(3) provides a ground for
termination of parental rights only where the prior court order removing the child from
the parent’s home was based on a judicial finding of dependency, neglect, or abuse. As
set out in the juvenile court’s January 16, 2014 order, supra, the finding of dependency
and neglect in this case was based on the family’s homelessness, drug use in the home,
alleged abuse by Father, and instability created by Mother’s untreated mental health
issues.

       In its order terminating Father’s parental rights, the trial court specifically found
that DCS had proven, by clear and convincing evidence, that Father failed to remedy the
conditions that led to Ja’Miya T.’s removal from his custody:

       14. Pursuant to T.C.A. § 36-1-113(g)(3),… Ja’Miya [] T[.]… ha[s] been in
       the custody of [DCS] for more than six (6) months preceding the filing of
                                        - 11 -
this petition, and the conditions which led to removal still persist and other
conditions exist which in all probability would cause the child[] to be
subjected to further abuse and neglect and which, therefore, prevent the
child[]’s safe return to the care of… Derrick [] T[.] Further, there is little
likelihood that these conditions will be remedied at an early date so that the
child[] can be safely returned to [Father] in the near future; the continuation
of the legal parent and child relationship greatly diminishes the child[]’s
chances of early integration into a safe, stable, and permanent home; and
continuation of the legal parent and child relationship is not in the child[]’s
best interest. [Father] ha[s] not made such a lasting adjustment as to enable
the child[] to be returned to [him] safely.

15. The Department made reasonable efforts to assist the parent[] in
remedying the conditions that necessitate foster care by providing services,
transportation assistance, and visitation with the child[]. Ms. B[.] and Mr.
T[.] reside together after acquiring housing in March 2015…. Ms. B[.]
provided the Court with proof she renewed her lease on March 27, 2016.
Mr. T[.] stated he was at work when Ms. B[.] signed the lease so he is not
named as an occupant, but the landlord is aware that he resides there. Both
testified that they have been together for thirteen years and they have no
plans to separate. (See Exhibit 12, Lease for Ms. B[.])

                                    ***

17. . . . Mr. T[.] testified that he does not believe Ms. B[.] has mental
health issues.

18. [Father’s] visitation with the children is not consistent. Ms. Robinson
testified that she explained this requirement in depth to… Mr. T[.] The
parent[] [has] not been consistent in visiting the child[] since [she] [was]
placed in the current foster home…. [Foster parent] testified that the child[]
[has] seen the parent[] three or four times since the child[] [was] placed in
her home in July 2015. [Father] maintain[s] [that his] last visit with the
child[] was in March 2016 at a Burger King, but [foster parent] testified the
last visit was either January or February 2016, and the March 2016 visit
was a no[]-show. Mr. T[.] stated no visit occurred in April 2016 because
the foster parent had to go out of town. Mr. T[.] testified that he buys the
child[] treats at visits because the foster parent will report [she] [has]
already eaten dinner. [Foster parent] testified [that Father] do[es] not buy
the child[] food at visits.

19. Ms. Robinson testified that she has additional concerns with the
parent[’]s[] care of the child[], specifically with the need for follow-up for
                                     - 12 -
       [Ja’Miya T.’s] mental health treatment for Attention Deficit/Hyperactivity
       Disorder (“ADHD”) and need for continued compliance with the
       Individualized Education Plans (“IEPs”) for [her] education. [Ja’Miya T.]
       [was] school-aged when [she] entered foster care, and [she] [was] not
       enrolled in school. According to Ms. B[.], the family had moved and she
       was unable to get them re-enrolled as soon as they moved. Mr. T[.]
       testified that he tried to get the children into school but had not been
       successful at the time [DCS] became involved, but the child[] had been out
       of school for a short period of time.

The trial court also found that Mother’s untreated drug and mental health issues were
problematic, but found that Father was steadfast in his plan to remain in the same home
with Mother. Because Father continues to live with Mother, we must consider the
conditions and safety of the household as a whole, which inquiry implicates Mother’s
mental health diagnoses and drug addiction. The record shows that Mother failed to
comply with DCS’ requests for drug testing after she attended a drug rehabilitation
program. Mother also testified that she has no plans to participate in any sobriety
program. Father testified that Mother’s drug use around Ja’Miya T. remains a “concern”
for him, and he is “concerned” about Mother’s capability to sustain her sobriety.
Nonetheless, Father stated that Mother’s assurance that “[s]he said she is not going to do
drugs” was sufficient to support his decision to stay in the same household.

        Dr. LaShaunda P. Massey, the psychologist who evaluated Mother, testified that
Mother has schizoaffective disorder and mild mental retardation, which require
psychological treatment and case management. Notwithstanding a learning disability,
Mother and Father both testified that Mother does not have any mental illness. Mother
stated that, pursuant to DCS’ request, she visited a facility, and a doctor told her that she
did not need treatment. No evidence of this recommendation is contained in the record.
Additionally, DCS requested that Father have a psychological evaluation, which he failed
to do.

       Following a permanency plan hearing, on November 16, 2015, the court entered
an order stating, in relevant part, that

       father is in substantial compliance with the permanency plan in that he has
       participated in a parenting assessment, an [alcohol and drug] program,
       domestic violence classes, was visiting [the child], and has housing and
       income. Father also completed a psychological evaluation; however,
       [DCS] has not heard from him since May[] 2015.

Relying on the November 16, 2015 order, Father now argues that his compliance with the
permanency plan is proof that the conditions that led to the child’s removal have also
been remedied. We disagree. Although the permanency plan, by its nature, addresses the
                                        - 13 -
concerns that bar a parent from reunification with the child, persistence of conditions and
substantial compliance with the permanency plan are two separate grounds for
termination of parental rights. Therefore, apparent satisfaction of the requirements of the
permanency plan does not, ipso facto, render the ground of persistence of conditions
inapplicable. Tenn. Code Ann. § 36-1-113(g)(3). Furthermore, in its November 16, 2015
order, the court acknowledged Father’s present compliance with the permanency plan,
but went further to express remaining concern with unaddressed issues: “Progress toward
resolving the reasons the child[] [is] in foster care has been made, but… services need to
be completed.” Moreover, the court specifically noted the fact that DCS had not “heard
from [Father] since May[] 2015.” In short, the record indicates that the conditions that
led to removal persist, specifically, Father’s insistence on remaining in the home with
Mother despite her untreated drug addiction and unaddressed mental health issues.
Father’s complacency in this regard indicates too high a risk that the child would be
further exposed to neglect and abuse if placed in a household where these issues persist.

        Father further argues that the trial court erred in finding that DCS made reasonable
efforts to assist him. In the absence of such reasonable efforts, Father contends that the
trial court cannot terminate his parental rights on the persistence of conditions ground.
Under the Tennessee Supreme Court’s holding in In re Kaliyah S., Father’s argument is
without merit. In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). In Kaliyah, the
Tennessee Supreme Court stated: “[W]e hold that, in a termination proceeding, the extent
of the efforts made by [DCS] is weighed in the court’s best-interest analysis, but [DCS]
need not prove that it made reasonable efforts as an essential component of its petition to
terminate parental rights.” Id. at 535. Accordingly, “proof of reasonable efforts is not a
precondition to termination of parental rights of a respondent parent” on the grounds of
persistence of conditions. Id. at 555. However, the trial court may consider reasonable
efforts in its best interest analysis. Id. Therefore, we will address the trial court’s
findings on reasonable efforts in the best interest section below.

       As to the ground of persistence of conditions, from the totality of the
circumstances and for the reasons discussed above, we conclude that there is clear and
convincing evidence to support the trial court’s termination of Father’s parental rights on
the ground of persistence of the conditions that led to the child’s removal.

                                    VI. 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. 2004). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id. at 877.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
                                           - 14 -
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child’s best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at
194.

       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 the instant case, 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;

       (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;

                                            ***

       (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 parents 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 §
                                         - 15 -
      36-5-101.

Tenn. Code Ann. §§ 36-1-113(i). This Court has noted that “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 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.

       In its order terminating Appellant’s parental rights, the trial court made the
following findings concerning Ja’Miya T.’s best interest:

      a. Pursuant to T.C.A. § 36-1-113(i)(1), Mr. T[.] has not made an adjustment
      of circumstance, conduct, or condition as to make it safe and in the child’s
      best interest to be in his home. He and Ms. B[.] live together, and the
      mother’s drug addiction has not been adequately addressed, nor is her
      mental health being treated. The parents have no plan to separate at this
      time.

      b. Pursuant to T.C.A. § 36-1-113(i)(2), Mr. T[.] has had no recent contact
      with [DCS] and has failed to effect a lasting adjustment after reasonable
      efforts by [DCS] to contact him to the extent that lasting adjustment does
      not reasonably appear possible. Mr. T[.] cut off contact with Ms. Robinson
      in summer 2015, and Ms. B[.] cut off most contact with Ms. Robinson in
      December 2015. Ms. B[.] has refused reasonable requests for hair follicle
      drug screens.

      c. Pursuant to T.C.A. § 36-1-113(i)(3), Mr. T[.] has had no recent visitation
      with Ja’Miya. The Court credits the Family Service Worker and foster
      parent’s testimony that [Father’s] last visit was in January or February 2016
      and not March 2016. [Father] [has] not had recent visitation, and [his]
      visitation has been sporadic for the past year. The foster parent reported
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       [Father] [has] visited three or four times since the child[] [was] placed in
       her home in July 2016. [Father] [was] often late to the visits [that he] did
       attend.

       d. Pursuant to T.C.A. § 36-1-113(i)(4), Mr. T[.] has a meaningful
       relationship with the child.

       e. Pursuant to T.C.A. § 36-1-113(i)(5), a change of caretakers and physical
       environment would have a negative effect on the child’s emotional,
       psychological, and medical condition. [Ja’Miya T.] [has] [an] IEP[] and
       special needs that the foster parent is addressing at this time.

       f. Pursuant to T.C.A. § 36-1-113(i)(6), Mr. T[.] has shown brutality toward
       the child[]. The Court found Mr. T[.] physically abused the child[] by
       whipping [her] with extension cords in the findings from January 16, 2014
       at the adjudication hearing. Both Mr. T[.] and Ms. B[.] deny that any
       physical abuse occurred in the home.

       g. Pursuant to T.C.A. § 36-1-113(i)(7), there is arguably criminal activity in
       Mr. T[.]’s home, as [DCS] has been unable to verify that Ms. B[.] is no
       longer using cocaine.

       h. Pursuant to T.C.A. § 36-1-113(i)(8), Mr. T[.]’s mental and emotional
       status would be detrimental to the child and prevent him from providing
       safe and stable care and supervision for the child. Mr. T[.] is concerned
       about Ms. B[.]’s sobriety, but he denies she has any mental health
       problems.

       i. Pursuant to T.C.A. § 36-1-113(i)(9), Mr. T[.] has paid no child support
       for the child in accordance with the child support guidelines. Mr. T[.]
       testified that the IRS seized his income tax returns, which the court finds is
       an involuntary seizure and not voluntary payment of child support.

       Concerning the first factor, i.e., whether the parent has made an adjustment of
conditions to make it safe and in the child’s best interest to be in the parent’s home,
Father testified that he intends to continue living with Mother, despite his concerns about
Mother’s drug use. Furthermore, despite medical diagnosis, Father denies that Mother
has any mental health problems. Regarding the second factor, the trial court found that
DCS made reasonable efforts to assist Father, as follows:

       [t]he Department made reasonable efforts to assist the parents in remedying
       the conditions that necessitate foster care by providing services,
       transportation assistance, and visitation with the children.
                                            - 17 -
The record supports the trial court’s finding. From our review, DCS provided the
following services to Father: (1) drug and alcohol counseling; (2) psychological
evaluations; and (3) bus passes. The trial court also found that DCS made numerous
attempts to maintain contact with Father, even after he stopped communicating with
DCS. Specifically, the court found that:

       [DCS case manager] Ms. Robinson testified that Mr. T[.] has not been in
       contact with her in some time, and the Court finds that Mr. T[.] stopped
       communicating with [DCS] around the time the DNA testing results on
       [Mother’s Children] were returned excluding him as the father of those
       children.

Given the services DCS provided and the fact that, for a long period of time, Father was
not in communication with DCS, we conclude that DCS’ efforts to assist Father exceeded
Father’s efforts in this case. Tenn. Code Ann. § 36-1-102(1)(A)(ii) (stating that DCS’
efforts “may be found to be reasonable if such efforts exceed the efforts of the
parent…”).

       Despite DCS’ efforts, as discussed above, drug use and mental health issues in the
home remain unaddressed, and we cannot conclude that return to that environment would
be in Ja’Miya T.’s best interest. This is especially so in light of the fact that Mother will
likely be left alone with Ja’Miya T. when Father leaves the home. By insisting on
remaining with Mother, Father is not able to provide a safe and stable home. In this
regard, Father has “failed to effect a lasting adjustment after reasonable efforts by social
services agencies for such duration of time that lasting adjustment does not reasonably
appear possible.”

        In addition, the record indicates that Father has had only sporadic visitation and
contact with Ja’Miya T. The foster parent and the DCS case manager testified that
Father’s last visit was in January 2016. Accordingly, there is no indication that Ja’Miya
T. has any meaningful relationship with Father. Conversely, Ja’Miya T.’s foster parent
testified that Ja’Miya T. has adjusted well in her new home. She now receives therapy,
medication, and individualized education to address her special needs. Given Ja’Miya
T.’s need for stability and individualized education, removal from her current home
would likely cause mental and emotional distress. Accordingly, we conclude that the
facts, as found by the trial court, are supported by the preponderance of the evidence and
clearly and convincingly establish that termination of Appellant’s parental rights is
Ja’Miya T.’s best interest.

                                     VII. Conclusion

       For the foregoing reasons, we affirm the order of the trial court terminating
                                       - 18 -
Appellant’s parental rights. 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 the
Appellant, Derrick T. Because Appellant is proceeding in forma pauperis in this appeal,
execution for costs may issue if necessary.




                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




                                         - 19 -
