                                                                                                            04/30/2018
                       IN THE COURT OF APPEALS OF TENNESSEE
                                   AT NASHVILLE
                                January 10, 2018 Session

                                  IN RE KAH’NYIA J., ET AL.1

                    Appeal from the Circuit Court for Robertson County
                    No. 74CCI-2015-CV-617          Ross H. Hicks, Judge
                          ___________________________________

                                No. M2017-00712-COA-R3-PT
                            ___________________________________

A Mother and Father appeal the termination of their parental rights to their son on the
grounds of abandonment by failure to support, substantial noncompliance with a
permanency plan, and persistence of conditions. Father also appeals the termination of
his rights on the ground of failure to provide prenatal support, and Mother also appeals
the termination of her rights to her daughter on the grounds of abandonment by failure to
support, substantial noncompliance with a permanency plan, and persistence of
conditions. Upon a thorough review of the record, we reverse the termination of both
parents’ rights on the ground of persistence of conditions, and the Father’s rights on the
ground of failure to provide prenatal support; we affirm the trial court in all other
respects.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.

H. Garth Click, Springfield, Tennessee, for the appellant, Darroll L.

Ami L. Brooks, Springfield, Tennessee, for the appellant, Rhonda J. L.

John E. Evans, Springfield, Tennessee, for the appellees, Brett K. and Tisha K.

Susan R. Mader, Nashville, Tennessee, as the Guardian ad Litem.




1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
                                                  OPINION

I.         FACTUAL AND PROCEDURAL HISTORY

       Rhonda L. (“Mother”) is the biological mother of Kah’nyia J., born in October
2011. On September 13, 2013, Mother was arrested and charged with the sale of drugs in
a school zone;2 at the time she was arrested she gave Ashley S. her friend and neighbor
(herein “Ms. S.”), what has been characterized as a “power of attorney” for Kah’nyia so
that Ms. S could care for Kah’nyia while Mother was incarcerated.

       Mother gave birth to Darroll L., Jr. (“Darroll Jr.”), in January 2014, while she was
incarcerated; Ms. S also took Darroll Jr. into her home, although the manner in which this
happened is not clear in the record. Darroll L. (“Father”) is the biological father of
Darroll Jr.; although the record is not clear, it appears that Father was arrested at or about
the same time as Mother on the same charge and was also incarcerated on the date
Darroll Jr. was born.

        On March 11, 2014, the Tennessee Department of Children Services (“DCS”)
received a report that Ms. S. was physically abusing the children. On March 12, a
representative or representatives of an organization known as Jonah’s Journey came to
the jail, and Mother executed a document, also characterized in the record as a power of
attorney, agreeing to place Kah’nyia and Darroll Jr. with Brett and Tisha K.
(“Petitioners”).3 At some point DCS filed an Emergency Petition in Davidson County
Juvenile Court to have the children declared dependent and neglected, and Petitioners
entered into an immediate protection agreement with DCS, resulting in the children being
placed in Petitioners’ physical custody on March 13, where they have remained.4 At a


2
  Mother was indicted on December 17 for sale of a controlled substance; she pled guilty and was
sentenced in Davidson County Criminal Court to three years of incarceration.
3
    Brett K. testified that Jonah’s Journey:

           [W]as for women who gave birth while they were incarcerated, typically prison, because
           it was a longer time, and it was for women to not have -- to have another opportunity,
           rather than place them in the State’s foster system. They asked families to facilitate, as
           much as they could, to visit while the mothers were in jail, every other week, as much as
           possible, and that was it. They gave no guidance or no direct guidance to us, as far as
           how to have a relationship. It was simply family taking care of generally an infant, who
           was just born, while the mother was incarcerated so the child did not get lost in the foster
           system.
4
 The only matters from the dependent and neglect proceeding that are a part of the record of this appeal
are (1) a May 19, 2014, document styled “Family Service Decree Note Form” which recites that a hearing
was held on that date at which Mother agreed to temporary custody being given to Petitioners (Mother
verified this in her testimony at the termination hearing); (2) an December 18, 2014, order adjudicating
                                                        2
hearing on May 19, the court granted temporary legal custody of the children to
Petitioners. On September 2, Petitioners filed an intervening petition in the dependent
and neglect proceeding. On October 3, 2014, a child and family team meeting was held,
and a permanency plan was developed (the “permanency plan”), setting out Mother and
Father’s responsibilities and the tasks they needed to complete during and after
incarceration to regain custody of the children.

        A hearing was held in the dependent and neglect proceeding on December 9,
2014, and the court entered an order on December 18 (the “December 18 Order”), stating
in part:

        Upon agreement of the parties in open court and the record the Court made
        the following findings of fact:

        1. Kah’nyia J[.] and Darroll L[.], (hereafter the “Minor Children”), were
        originally placed in the home of the Intervening Petitioners on March 13,
        2014 pursuant to an immediate protection agreement from the Department
        of Children’s Services after their investigation regarding physical abuse.

        2. On May 19, 2014, this Court granted temporary custody to the
        Intervening Petitioners based on agreement reached by the parties and a
        positive report by the Department concerning the Intervening Petitioners.

        3. On September 2, 2014, the Intervening Petitioners filed their intervening
        petition.

        4. Since having custody, the Intervening Petitioners have taken care of all
        medical and health needs Darroll [ ], Jr. He currently is in the eighty-fifth
        (85th) percentile for his weight, is able to pull himself up, and his fractures
        are healing. Also, Kah’nyia is participating in speech therapy and
        preschool.

        5. The Mother has an extensive criminal history including convictions for
        robbery, driving on suspended license, use of stolen plate, facilitation of
        sale of drugs, etc. She is currently incarcerated on a violation of probation
        charge. On August 29, 2014 the Mother pled guilty to the sale of a
        controlled substance and received a three (3) year sentence. The Mother
        stated she expected to be released from prison within a few days within
        December 2014.



the children to be dependent and neglected and continuing their placement in Petitioners’ legal custody;
and (3) the permanency plan developed October 3, 2014.
                                                   3
       6. The Father has an extensive criminal record including convictions for
       criminal trespass, drug possession with intent to sell cocaine, sale of
       cocaine, drug free school zone, unlawful use of drug paraphernalia, theft of
       merchandise, theft of vehicle, criminal impersonation, kidnapping risk of
       bodily injury, burglary. The Father remains incarcerated, but stated he
       expected his release date to be sometime in December 2015.

       7. Neither parent has stable housing or stable employment.

       8. The Minor Children have a strong bond with the Intervening Petitioners
       due to the Intervening Petitioners being the primary caregivers.

       9. On October 3, 2014 a child and family team meeting was held and a non-
       custodial permanency plan developed to provide guidance on services and
       actions steps the Mother and Father need to complete before regaining
       custody of the Minor Children.

       10. The Intervening Petitioners have cooperated with the Court and the
       Department of Children’s Services. They continue to facilitate agreed upon
       visitation with the Minor Children and the Father and Mother.

       11. It is the desire of the Intervening Petitioners to be granted full legal
       custody of the Minor Children. The Intervening Petitioners have been
       married for eight (8) years. They both have full-time stable jobs. . . . . They
       have a spacious . . . home that provides the Minor Children with their own
       space. The Intervening Petitioners are active [church] members . . . and
       have no criminal history. The Intervening Petitioners have a strong family
       support group that can assist with the Minor Children. Therefore, the
       Intervening Petitioners are fit and able to provide to permanency for the
       Minor Children.

Based on these findings, the court: (1) adjudicated the children to be dependent and
neglected, (2) ordered that Petitioners retain custody of the children, (3) incorporated the
Permanency plan, and (4) ruled that Mother would have until September 2, 2015, and
Father would have until September 2, 2016 “to work services and action steps outlined in
the non-custodial permanency plan to regain custody” of their respective children.

       Mother was released from prison on July 29, 2015, and Father was released on
August 13, 2015; on August 24, Mother filed a pro se motion in Davidson County
Juvenile Court, requesting full custody of the children. A hearing on the motion was
continued several times; on December 14, before Mother’s motion was heard, Petitioners
filed the petition to terminate the parental rights of Mother and Father in Robertson


                                             4
County Circuit Court that is at issue in this appeal, and the juvenile court stayed the
dependent and neglect proceeding.

        As grounds for termination of both parents’ rights, the petition alleged
abandonment by failure to provide support or visit the children, substantial
noncompliance with the permanency plan, and persistence of conditions; in addition the
petition alleged failure to provide prenatal support as a ground for termination of Father’s
rights to Darroll Jr.5 Mother and Father both filed pro se answers; in due course, the trial
court found them to be indigent, appointed counsel for each, and amended answers were
filed on behalf of both. The court also appointed a Guardian ad Litem.

        The case proceeded to trial, and the court entered an order on March 7, 2017,
terminating Mother’s and Father’s rights to both children on the grounds of abandonment
by failure to support (Tenn. Code Ann. § 36-1-113(g)(1)), substantial noncompliance
with the permanency plan (Tenn. Code Ann. § 36-1-113(g)(2)), and persistence of
conditions (Tenn. Code Ann. § 36-1-113(g)(3)); further, the court terminated Father’s
rights to Darroll Jr. on the ground of failure to provide prenatal support (Tenn. Code Ann.
§ 36-1-113(g)(9)). The court also found that termination of Mother’s and Father’s rights
was in the children’s best interest.

       Mother and Father appeal; each contends that neither the grounds for termination
found by the court nor the finding that termination of their rights is in the children’s best
interest is supported 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).


5
 The petition named the “Unknown Fathers” of Kah’nyia as respondents; no answer or other appearance
was made on behalf of Kah’nyia’s father, and those rights are not at issue in this appeal.


                                                5
       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 proved 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 the Memorandum Opinion and Order, the court made credibility findings as to
Mother and Father and Petitioners. As noted in Kelly v. Kelly, deference to a trial court’s
determination of witness credibility is substantial, and our review of those determinations
is substantially limited:

       When it comes to live, in-court witnesses, appellate courts should afford
       trial courts considerable deference when reviewing issues that hinge on the
       witnesses’ credibility because trial courts are uniquely positioned to
       observe the demeanor and conduct of witnesses. Appellate courts will not
       re-evaluate a trial judge’s assessment of witness credibility absent clear and
       convincing evidence to the contrary. In order for evidence to be clear and
       convincing, it must eliminate any serious or substantial doubt about the
       correctness of the conclusions drawn from the evidence. Whether the
       evidence is clear and convincing is a question of law that appellate courts
       review de novo without a presumption of correctness.

445 S.W.3d 685, 692-93 (Tenn. 2014) (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 at section 36-1-102(1)(A), which reads in
pertinent part:



                                             6
      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[.]

The court made the following findings relative to the ground of abandonment by failure
to support:

      i. The Mother and Father never paid any financial support in August-
      December 2015, which were the four (4) months preceding the filing of the
      petition.

      ii. Tenn. Code. Ann. § 36-1-102(1)(H) states “Every parent who is eighteen
      (18) years of age or older is presumed to have knowledge of a parent’s legal
      obligation to support such parent’s child or children.”

      iii. The Father testified he was already paying child support on a previous
      child, so he had direct knowledge of his responsibility to pay child support
      for any child. Neither the Mother nor the Father presented any testimony or
      evidence that they did not know they needed to pay child support.

      iv. The Mother and Father both testified that they had no issues obtaining
      employment. Also, they testified they had no physical ailment or disability
      that prevented them from working and earning money. Although, their
      work history appears to be unstable by the number of jobs they held in a
      short amount of time, it is clear to the Court that the Mother and Father had
      no trouble finding work and there was no reason they could not provide
      financial support to their children. The parents testified that they were
      working and saving money not only for obtaining lodging, but also to get
      necessary furnishings, clothing, incidentals and an automobile to reestablish
      themselves. While it is understandable that these things were indeed
      necessary for them to reestablish themselves, they nonetheless chose not to
      devote any of their financial resources to the support of the children. It is
      clear the Mother and Father willfully chose not to support their Minor
      Children despite the ability to do so.

      v. The Mother and Father admitted they paid no child support during this
      time period. They stated they offered, but were told by the Petitioners no
      money was needed.


                                             7
       vi. The Petitioners testified that the testimony of the Mother and Father was
       not truthful. The Petitioners testified that Father and Mother never offered
       to pay any financial support for the Minor Children. The Mother and
       Father’s testimony was contradicted on many issues, including this issue,
       and the Court finds Petitioners testimony on this issue to be more credible
       than that of Mother and Father.

On the basis of these findings, the trial court ruled that Mother and Father:

       [A]bandoned the Minor Child as defined in Tenn. Code Ann. § 36-1-
       102(1)(A) as they have never been a source of financial, physical, or
       emotional support for the Minor Children. For a period of four (4)
       consecutive months immediately preceding the filing of the original
       petition, as well as immediately preceding the filing of the amended
       petition, the Respondents willfully failed to provide monetary support of
       any kind for the Minor Children.

       Mother and Father argue that the court erred in finding that their failure to pay
support was willful and that their attempts to provide support were rejected by
Petitioners.

       A failure to provide support is not sufficient, on its own, to establish
abandonment; that failure to support must be willful. A failure to support is “‘willful’
when a person [1] is aware of his or her duty to visit or support, [2] has the capacity to do
so, [3] makes no attempt to do so, and [4] has no justifiable excuse for not doing so.” In
re Audrey, 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (footnote omitted). Further, this
court has recognized:

       Willfulness of a parent’s conduct depends on the parent’s intent, and intent
       is seldom capable of direct proof. In re Audrey S., 182 S.W.3d at 864
       (citing In re Adoption of S.M.F., No. M2004-00876-COA-R9-PT, 2004 WL
       2804892, at *8 (Tenn. Ct. App. Dec. 6, 2004)). Triers-of-fact lack the
       ability to peer into a person’s mind to assess intentions or motivations and
       must infer intent from circumstantial evidence, including the parent’s
       actions or conduct. Id. Because testimony may be critical to the
       determination of whether a parent’s conduct was willful, trial courts are
       best situated to make a determination of willfulness. In re D.L.B., 118
       S.W.3d at 367. The question of intent or willfulness depends on the totality
       of the circumstances, and the facts must be applied to the standard
       definition of willfulness. V.D. v. N.M.B., No. M2003-00186-COA-R3-CV,
       2004 WL 1732323, at *6 (Tenn. Ct. App. July 26, 2004).

In re Alysia S., 460 S.W.3d 536, 566 (Tenn. Ct. App. 2014).

                                             8
            1.       Awareness of Duty

       With respect to this element, Mother argues that her failure to pay support was not
willful because “[t]here was no Court Order for child support.” Contrary to Mother’s
argument, the law is clear that “[t]he obligation to pay support exists even in the absence
of a court order to do so.” State Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d
513, 523–24 (Tenn. Ct. App. 2004) (citations omitted). Moreover, ‘[a]ll parents have a
duty to support their children,” In re M.J.B., 140 S.W.3d 643, 655 (Tenn. Ct. App. 2004),
and “[e]very parent . . . is presumed to have knowledge of a parent’s legal obligation to
support such parent’s child or children.” Tenn. Code. Ann. § 36-1-102(1)(H).
Accordingly, Mother is deemed to be aware of that obligation.

       The trial court found that Father was making child support payments for his other
children, which made him aware of his responsibility to pay support. This holding is
supported by Father’s testimony that he is paying “just under $800 a month” in child
support for two other children.

            2.       Capacity to Pay

       The trial court made the following findings relative to Mother’s and Father’s
capacity to support the children:

       iv. The Mother and Father both testified that they had no issues obtaining
       employment. Also, they testified they had no physical ailment or disability
       that prevented them from working and earning money. Although their work
       history appears to be unstable by the number of jobs they held in a short
       amount of time, it is clear to the Court that the Mother and Father had no
       trouble finding work and there was no reason they could not provide
       financial support to their children. The parents testified that they were
       working and saving money not only for obtaining lodging, but also to get
       necessary furnishings, clothing, incidentals and an automobile to reestablish
       themselves. While it is understandable that these things were indeed
       necessary for them to reestablish themselves, they nonetheless chose not to
       devote any of their financial resources to the support of the children. It is
       clear the Mother and Father willfully chose not to support their Minor
       Children despite the ability to do so.

       In their briefs, neither Mother nor Father cites evidence which they contend
preponderates against the finding; rather they challenge the sufficiency of the evidence to
support the ground. Upon our review, the testimony supports the findings. The evidence
shows that Mother and Father were employed for the majority of the pertinent time
period and were receiving income and, therefore, had funds with which to support the


                                            9
children.6 In addition, in the court’s specific credibility findings, the court noted that,
contrary to Mother’s testimony, she received food stamp benefits for Kah’niya during the
period July through December 2015, even though she did not have custody of her;
Mother does not dispute this finding.

              3.        Attempt to Pay

      The trial court made the following findings relative to Mother’s and Father’s
attempt to pay support to Petitioners:

        v. The Mother and Father admitted they paid no child support during this
        time period. They stated they offered, but were told by the Petitioners no
        money was needed.

        vi. The Petitioners testified that the testimony of the Mother and Father was
        not truthful. The Petitioners testified that Father and Mother never offered
        to pay any financial support for the Minor Children. The Mother and
        Father’s testimony was contradicted on many issues, including this issue,
        and the Court finds Petitioners testimony on this issue to be more credible
        than that of Mother and Father.

       Mother and Father both testified that they made attempts to pay support to
Petitioners but were rebuffed. Contrary to Mother’s and Father’s testimony, both
Petitioners testified that they received no support from Mother or Father. The court heard
the conflicting testimony and resolved the conflict when it made the following specific
credibility finding:

        b. The Mother and Father testified that they offered money to the
        Petitioners for child support. However, both the Petitioners testified that no
        such offer was made. More significantly, no such payments were ever
        made.1

        [Footnote 1: “Father testified that he sent some money at Halloween but
        offered no evidence to support his bare testimony in this regard. Father also
        testified that he pays monetary support for other children of whom he is the
        biological father.”]



6
  The petition to terminate their rights was filed on December 14, 2015. Mother was released from jail in
July 2015, and Father was released in August of the same year; each testified that they worked at
Standard Candy Company from August 2015 through January 2016, when they were fired because they
were fighting and arguing at work. As noted by the trial court, Mother and Father testified that they saved
their earnings.
                                                    10
      Affording the credibility determination the deference required we hold that the
supports the finding that neither Mother nor Father attempted to pay support.

              4.         Excuse for Not Paying

       Other than the general adverse credibility finding, the court did not make a
specific finding as to this element; the parties do not specifically address this element in
the briefs. Upon our review, there is no evidence in the record from which to conclude
that Mother and Father had a justifiable excuse for their failure to pay support.

      From our review of the record, the evidence clearly and convincingly shows that
Mother’s and Father’s failure to pay support was willful, and that the ground of
abandonment by failure to support was established.

        B.         Noncompliance with the Permanency Plan

       Relying on In re Kaleb N.F., No. M2012-00881-COA-R3-PT, 2013 WL 1087561
(Tenn. Ct. App. March 12, 2013), and In re Alysia S., 460 S.W.3d 536, Mother and
Father argue that substantial noncompliance with a permanency plan cannot be used as a
ground for termination because that ground is only applicable if the permanency plan is
developed within the context of the children being in foster care with DCS. Petitioners
argue that this ground for termination applies “since the non-custodial perm plan used in
this case is identical in every way to a perm plan except for its title.” Upon our review of
the record and in accordance with applicable law, for the reasons set forth hereinafter, we
have determined that noncompliance with the permanency plan is available as a ground
for termination.

       Tennessee Code Annotated section 36-1-113(g)(2) authorizes a court to terminate
parental rights when there is “substantial noncompliance . . . with the statement of
responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.”7 Tennessee
Code Annotated section 37-2-402(9) defines a “permanency plan” as “a written plan for a

7
 Part 4 of Chapter 2 is entitled “Foster Care”; section 37-2-401, inter alia, sets forth the legislative intent.
Pertinent to this case, subsections (a) and (b) state:

        (a) The primary purpose of this part is to protect children from unnecessary separation
        from parents who will give them good homes and loving care, to protect them from
        needless prolonged placement in foster care and the uncertainty it provides, and to
        provide them a reasonable assurance that, if an early return to the care of their parents is
        not possible, they will be placed in a permanent home at an early date.

        (b) The secondary purpose of this part is to provide a mechanism to monitor the care of
        children in foster care to ensure that everything reasonably possible is being done to
        achieve a permanent plan for the child.


                                                      11
child placed in foster care with the department of children’s services or in the care of an
agency as defined in subdivision (3) and as provided in § 37-2-403.” In turn, “agency” is
defined at section 37-2-402(3) as “[a] child care agency, as defined . . . in chapter 5, part
5 of this title, regardless of whether such agency is licensed or approved,. . .”; section 37-
5-501(b)(5) defines “child care agency” as “the person or entity that provides child care,
regardless of whether such person or entity is licensed.”

       The evidence and testimony clearly shows that Petitioners are providing the
children with “child care.”8 When they were placed in Petitioners’ home, Kah’nyia was
under three years old and Darroll Jr. was just a few months old. Petitioners have provided
a home for the children and for them to attend daycare and a headstart program. The
Domestic Adoptive Parent Homestudy9 reports that both children exhibited evidence of
developmental delays when they came into the home, and Petitioners have “ensured that
[Kah’nyia] has received speech and physical therapy for her delays and counseling for
losses and her history of neglect and abuse….[Darroll Jr.] appears to be developmentally
on target….” Even though the children are not in custody of DCS, the testimony
established that the Petitioners have been approved to be foster parents, and
representatives of Jonah’s Journey offered them the same advice and guidance given to
foster parents.

        DCS became involved with the children on March 11, 2014, after the Child
Protective Services division received a report that Darroll Jr. had been abused. DCS
initiated an emergency petition to gain custody of the children and to have them declared
dependent and neglected. Contemporaneously with DCS’ effort, representatives of
Jonah’s Journey secured Mother’s consent to place the children with Petitioners which
led to DCS entering into a protection agreement with the Petitioners; this placement was
approved by the juvenile court after DCS “vouche[d]” for the placement. Until
Petitioners intervened in September, DCS was the only party to the dependent and
neglect proceeding; a family service worker and supervisor from DCS held the October 3
meeting where the permanency plan was developed; the plan was made a part of the
December 18 Order. Pursuant to the requirements of the plan, the DCS family service
worker referred Mother for a parenting assessment to an organization called “Parenting
Solutions.”


8
  “Child care” is defined at Tennessee Code Annotated section 37-5-501(b)(4) as “the provision of
supervision, protection and the basic needs of a child for twenty-four (24) hours a day including the
provision of such temporary services to a child awaiting placement in permanent care.”
9
  This study, introduced without objection at the termination hearing, was prepared by Lisa Mosley and
Carole Ozment, employed by Adoption Assistance, Inc.; the attestation on the report states that Adoption
Assistance is “a licensed Child-Placing Agency in the State of Tennessee” and that the conclusions in the
report were reached “in accordance with the Child Welfare Standards and Tennessee Code Annotated §§
37-4-201—207.”
                                                   12
       In In re Kaleb N.F., this court held that section 36-1-113(g)(2) was not appropriate
“where DCS did not take the child into State protective custody, did not create a
‘permanency plan’ that satisfied the requirements of the statute, did not obtain court
approval of any permanency plan, did not include in the permanency plan notification to
Mother of the criteria for termination and the consequences of failing to comply with the
DCS plan, and did not undertake to provide reasonable efforts to assist Mother.” 2013
WL 1087561 at *21. The question presented in this appeal—whether “the ground of
substantial noncompliance may be ever relied upon by private parties, such as
prospective adoptive parents who seek to terminate the parental rights of a child’s
biological parent”—was specifically left open. Id. The record in this case shows that,
coupled with the substantial involvement of DCS, the care in which these children were
placed qualifies as “foster care with [DCS] or in the care of an agency” within the
meaning of section 37-2-402(9), such that this ground for termination is available to
Petitioners. Accordingly, we proceed to examine whether there is clear and convincing
evidence to support the court’s findings or whether the evidence preponderates against
those findings.

       The court held that Mother’s and Father’s noncompliance with the permanency
plan related to three areas: use of drugs; the children’s physical safety needs; and the
children’s emotional and developmental needs. We discuss the evidence relative to each
area in turn.

                1.        The use of drugs

       The permanency plan stated that “after completing their respective periods of
incarceration, [Mother and Father] will submit to random drug screens which will be
conducted by their probation/parole officer, or the Davidson County Juvenile Court.
FSW will assist with random drug screens, if necessary while the family case is open
with this department.” Further, the Plan encouraged, but did not require, Mother and
Father to attend Narcotics Anonymous meetings at least once per week. The trial court
found that Mother and Father “continue to use both illegal drugs and prescription drugs
inappropriately,” “never attended narcotics anonymous meetings,” and did not have
random drug screens, in violation of the permanency plan.

       Mother argues that the evidence preponderates against the trial court’s findings
because she lives a “drug free lifestyle.” She testified that she does not have a drug
problem; that in the year before her testimony she did not abuse any illegal drugs; that
neither Petitioners, the Guardian ad Litem, nor the juvenile or trial court ever requested
that she take a drug screen; and that she has passed drug screens which she was required
to take for employment purposes.10 Further, Mother testified about and introduced as
exhibits certificates of completion of two substance abuse classes while she was

10
     No documentary evidence of these drug screens was entered into evidence.
                                                    13
incarcerated. Petitioners did not introduce any testimony or other evidence that Mother
had used drugs since the permanency plan was put in place. The evidence does not
support the finding that Mother was not in compliance with this requirement of the
permanency plan; accordingly, we reverse the finding.

       Evidence of Father’s drug use came from his sister, Mary W. (herein Ms. W.), and
Father. Ms. W. testified Father has had “substance issues” and that she is familiar with
how Father acts when he is using illegal narcotics. She testified on both direct and cross
examination that Father had told her that he had used cocaine since his release from jail
and that he showed signs of cocaine use, including not taking a shower, being more tired
than usual, and not being his normal self in general. Father testified that he had not used
any illegal drugs since being released from jail. The trial court resolved the conflict in
testimony in its credibility findings:

       10. The Court also finds that some testimony of the Mother and Father is
       not credible. For example:
       ***
       e. The Mother and Father testified that they did not do any illegal drugs
       since leaving jail. [Ms. W.] testified that the Father was doing drugs,
       including cocaine, since leaving jail. [Ms. W.] testified that she knows the
       physical signs of drug use on her brother, the Father. She said the Father
       admitted to her directly that he was doing drugs again. [Ms. W.] knew the
       Father meant cocaine based on his history.

Ms. W.’s testimony, which the court determined to be credible, is clear and convincing
evidence of Father’s drug use; his testimony to the contrary does not preponderate against
the court’s finding.

            2.       The physical safety needs of the children

       The permanency plan required that Mother and Father apply for public or other
suitable housing, “[p]rovide proof of residence with all utilities for a period of three (3)
consecutive months,” and “be able to utilize and demonstrate proof of their methods of
legal transportation. This will include but is not limited to Metro Trans Buses, valid
driver’s licenses, registered vehicles, with proof of current insurance.” The trial court
found:

       aa. The Respondents made no reasonable efforts to provide a suitable home
       and demonstrated a lack of concern for the Minor Children to such a degree
       that it appears unlikely they will be able to provide a suitable home for the
       Minor Children at an early date. Placement of physical and/or legal custody
       of the Minor Children with the Respondents would pose a risk of


                                            14
       substantial harm to the physical or psychological welfare of the Minor
       Children.

        The evidence relative to this area of inquiry consisted of testimony of Mother,
Father, and Ms. W. Mother testified that she and Father lived in a two-bedroom duplex
with a basement apartment from October 2015 through the date of trial. Their lease was
admitted as an exhibit, showing that Mother and Father agreed not to allow any person to
stay at the residence for more than five days without providing notice to their landlord.
Mother testified that she had a friend who stayed at the residence for around two weeks,
that the friend invited others to the residence despite being told not to, and that the police
eventually had to be called to remove the friend from the residence. Mother further
testified that she and Father “once or twice” had someone stay with them for a couple of
weeks until that person could find a place of their own, and that Mother and Father
notified the landlord about the person staying. Ms. W. testified that her son resided with
Mother and Father for at least seven or eight months in the past year.11 Upon our review,
the testimony is not clear and convincing evidence that Mother and Father made no
reasonable effort to provide a suitable home for the children or that it is unlikely that they
would be able to provide a suitable home, and we reverse the finding in that regard.

       The trial court also found:

       bb. The Mother and Father continue to have drug and domestic violence
       issues. They continue to violate their lease by having other adults live with
       them, and they risk having utilities disconnected. The evidence was clear
       that neither the Mother nor Father have provided a suitable or stable home.

        The evidence relative to this area of inquiry consisted of testimony of Mother,
Father, and Ms. W. Mother testified to two incidents in which the police had to be called
to the residence because of a dispute between her and Father. The first incident occurred
when Mother left the house following an argument, and upon her return, Father would
not let her into the house, causing her to call the police; Father testified that he did lock
Mother out, and that he needed some time “to cool off” after the argument. A second
incident occurred when Mother was at home and wanted to leave, but was prevented by
Father; Mother called the police. Mother also testified to an incident when she and

11
  The court resolved the discrepancy between Mother and Father’s testimony that they only had a couple
of people stay with them for a couple of weeks and Father’s sister’s testimony that her son lived with
Mother and Father for over seven months by making the following credibility determination:

       c. The Mother and Father testified that no other adult lived with them longer than five (5)
       days as allowed for in their lease, which was admitted as Exhibit 9. However, [Ms. W.],
       the Father's sister, testified that her own son lived with the Mother and Father for the
       better part of a year.


                                                   15
Father got into an argument at the Standard Candy Company, where they both worked;
the employer called the police, and they both lost their jobs as a result. Ms. W. testified
that several times she witnessed Father with scratches and bruises, and when asked about
the source of the injuries, Father explained that they were result of fighting with Mother.
Mother and Father were responsible for electricity at the residence, and the bill for
August/September 2016, introduced at trial, showed that Mother and Father were late on
their payment of the bill and faced termination of services if not paid. Mother testified
that the electricity was not disconnected, but that they still owed an unpaid balance.

        The testimony is clear and convincing evidence in support of the finding of
continued domestic violence and the risk of loss of electricity; in addition, as noted
earlier, the court found that Father was still using drugs. While there is testimony that
adults were allowed to live in the residence for more than five days, Mother testified that
the landlord was notified; there is no evidence to the contrary; the evidence that Mother
and Father violated their lease is not clear and convincing.

       cc. The Mother and Father testified they did not have a working car

       Mother and Father both testified that they previously had a car with which they
had problems, but that they owned a working vehicle at the time of trial; there was no
testimony or other evidence to the contrary. This testimony preponderates against the
court’s finding that they did not have a working vehicle; accordingly, we reverse the
finding.

       dd. The Mother has picked up at least two driving on suspended/revoked
       license charges, and did not have a valid license.

        Mother testified that due to unpaid court costs, she has had her driver’s license
revoked; since being released from jail Mother has been cited for driving on a suspended
license twice. She also testified that she did not, at the time of her testimony, have a
valid driver’s license. Mother’s testimony is clear and convincing evidence in support of
this finding.

       ee. The Mother testified that there are still thousands of dollars of unpaid
       court costs. Also, neither the Mother nor the Father paid anything toward
       the $50 per month fee assessed for their court appointed attorneys in this
       matter.

       Mother testified that she had around $3,000 in unpaid court costs stemming from
her conviction and incarceration, and that she is currently making slow payments to the
court to satisfy that debt; Father testified that he has a “couple of thousand” in unpaid
court costs. The evidence in the record before us that neither Mother nor Father paid the
fifty dollar per month payment the court ordered they pay their appointed attorneys

                                            16
consists of a motion filed on August 30, 2106, by Petitioners requesting, inter alia, that
Mother’s and Father’s counsel be removed; the motion stated that “neither the Father not
Mother have made any payments toward their attorney fees.” There is no order disposing
of this motion in the record. The testimony of Mother and Father is clear and convincing
evidence that each has unpaid court costs; the evidence does not support the
determination that they have not paid the $50 fee for their appointed counsel.

           3.       The Children’s emotional and developmental needs

      The permanency plan required that Mother and Father “complete a parenting
assessment with a mental health component while incarcerated at the department's
expense and comply with all recommendations.” Relative to this area, the court found:

      aa. The Mother did not comply with her parenting assessment. She did not
      have the requested psychological examination or intensive parenting
      classes. The Mother has not dealt with any of her mental health or lack of
      parenting classes. The Father also has done nothing to address his parenting
      since leaving jail.

       George Merkel, the DCS Family Services Worker, referred Mother for a parenting
assessment to Barbara Newman, an assessment specialist with an entity called Family
Solutions. Ms. Newman interviewed Mother in jail on October 24, 2014, where she
gathered background information on Mother’s life, education, history of incarceration,
parenting style, skills and relationship with the children, and why they were not in her
custody; her assessment was introduced into evidence. In the assessment, Ms. Newman
concluded:

      [Mother] presents as having little insight into her current circumstances.
      She believes she is a victim and has demonstrated little, if any,
      accountability for her actions. She believes she is a good mother and has
      done nothing wrong. [Mother] does not seem to connect the dots with her
      incarceration and her children. She stated during the interview one has
      nothing to do with the other. She gave her children to a friend to keep while
      she went to jail. She has revealed that she is stressed and deeply depressed.
      [Mother] has identified the DCS involvement as a problem she is currently
      struggling with. [Mother] has revealed she isolates herself when the
      opportunity presents itself.

      In conclusion, these are clear signs of [Mother]’s psychological wellbeing
      being impaired. Based on [Mother]’s comments, it is this Assessor’s
      recommendation to explore the condition of her mental health by
      recommending she completes a Psychological Examination. This
      examination will provide a more intensive calculation of [Mother]’s

                                           17
           psychological standing and further determine her mental health needs, if
           any, and her competence as a parent. It is this Assessor’s recommendation
           that [Mother] follows all counsel from the psychological evaluation results.

           ***

           This Assessor recommends that [Mother] completes intensive individual
           Parenting Classes for a minimum of 16 weeks to offer her support and to
           learn additional skill sets to further develop her strengths as a parent. It is
           further recommended [Mother] follow all counsel and her parenting skills
           are reassessed at the conclusion of this sixteen-week term.

       Mother’s testimony on this issue was limited; she testified that she was informed
that she needed to undergo a mental health assessment and attend a parenting class.
When asked about the parenting class, Mother responded that she completed parenting
and substance abuse classes while incarcerated; certificates of completion of three
parenting classes and two substance abuse classes were entered into evidence at trial.12
Mother did not testify as to the specific nature or curriculum of the classes or the extent
to which they were the classes that were suggested in the parenting assessment.

       There is no evidence that the content of the parenting classes Mother attended
while in jail addressed matters which were identified by Ms. Newman in the parenting
assessment; Mother testified that she did not take any parenting classes or obtain a
psychological evaluation after her release from jail.13 Mother’s testimony and other
relevant evidence is clear and convincing evidence that she did not have the
psychological examination or the intensive parenting classes recommended by Ms.
Newman, as found by the court.

        Father testified that he completed several different educational programs while in
jail: a parenting program, a drug and alcohol treatment program, and a class entitled
“Motivation to Change”; certificates of completion for these classes were entered into


12
  The substance abuse certificates were dated October 10, 2013, and April 16, 2014; the parenting class
certificates were dated June 4 and 15, 2014, and August 20, 2014.
13
     Pertinent to this issue, Mother testified as follows:

           Q. Do you have any other followup about anything else that DCS wanted you to do as a
           result of your assessment?
           A. No. The only thing they wanted me to do was that, something about mental health, and
           that I needed to take parenting, which I took that three times. But they said it was just the
           mental health, that they would have to come out and evaluate me. I’ve never had mental
           health problems ever.


                                                         18
evidence at trial.14 Father testified that he completed an “outpatient substance abuse
program” after his release from jail, that the program lasted six months, and met once a
week for an hour each week; a certificate of completion was entered as an exhibit at trial.
Father testified that this outpatient program is the only substance abuse class that he has
completed since his release from jail and that he has completed no additional parenting
classes since his release. While Father participated in a substance abuse program since
his release from jail, the evidence does not preponderate against the finding that he had
done nothing to address his parenting skills.

        The court also found:

        bb. Since leaving jail, neither the Mother nor the Father have taken any
        steps towards improving their parenting or stability. On the contrary, the
        Mother and Father have lived a volatile lifestyle including drug activity and
        domestic violence.

       As noted above, the testimony shows that Mother has not taken steps to comply
with the recommendations in her parenting assessment by attaining psychological
consultation or engaging in any parenting classes since leaving jail. Likewise, other than
the outpatient class Father attended, there is no proof that he has taken measures to
improve his parenting skills or stability since his release. Further, the testimony reflects
that Mother and Father continue to engage in arguments and fights that result in physical
conflict, contact with the police, or both. This finding is supported by clear and
convincing evidence.

        Reviewing the record as to the ground of failure to comply with the requirements
of the permanency plan, there is clear and convincing evidence that Father continues to
use drugs, that Mother and Father continue to engage in incidents of domestic violence,
that they owe thousands of dollars in unpaid court costs, that Mother has received two
citations for driving on a suspended license, and that Mother and Father have failed to
address their parenting deficiencies since their release from custody. This evidence is
sufficient to support the termination of Mother’s and Father’s parental rights on the
ground of substantial noncompliance with the permanency plan in the three areas
identified by the court.




14
   Relative to the substance abuse requirement, Father, who was released from jail on August 13, 2015,
introduced certificates of completion of a 45 day intensive alcohol and drug treatment program dated July
23, 2014, and a weekly outpatient group program dated March 22, 2016. He also introduced certificates
of participation in a parent training program dated June 25, 2015, and participation in a “Motivation to
Change” program dated July 7, 2015.
                                                   19
       C.     Persistence of Conditions

       Parental rights may also be terminated on the basis of persistence of conditions,
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[.]

      For this ground to apply, the child must be removed from the home of the parent
whose rights are at issue. In Re Jayden B.T., No. E2014-00715-COA-R3-PT, 2015 WL
3876573, at *9–10 (Tenn. Ct. App. June 23, 2015) (citing In re K.M.K., No. E2014-
00471-COA-R3-PT, 2015 WL 866730 at *7 (Tenn. Ct. App. Feb. 27, 2015) (citing In re
Maria S., No. E2013-01295-COA-R3-PT, 2013 WL 1304616 at *10 (Tenn. Ct. App. Apr.
1, 2013), as holding, “burden of proof not met where ‘the Children were not removed
from Father's home’ and the father was incarcerated during the pertinent time”)).

       The proof in this case is clear that, at the time that both children came into DCS
custody, they were in the custody of Ms. S, not in that of either parent. As in the In re
Jayden B.T. decision, we hold that the ground of persistence of conditions is not available
as a ground to terminate the rights of either parent, and reverse the court’s finding as to
persistence of conditions as a statutory ground for terminating Mother’s and Father’s
parental rights.

       D.     Failure to Provide Prenatal Support

       The trial court ruled that Father’s parental rights should be terminated for failure
to provide prenatal support for Darroll Jr. pursuant to Tennessee Code Annotated section
36-1-113(g)(9)(A):

                                            20
       The parental rights of any person who, at the time of the filing of a petition
       to terminate the parental rights of such person . . . , is the putative father of
       the child may also be terminated based upon any one (1) or more of the
       following additional grounds:

              (i) The person has failed, without good cause or excuse, to
              pay a reasonable share of prenatal, natal, and postnatal
              expenses involving the birth of the child in accordance with
              the person’s financial means promptly upon the person’s
              receipt of notice of the child’s impending birth.

In its ruling the trial court specifically held that Father was not the legal father of Darroll
Jr.; Father argues that the trial court erred in using this as a ground for termination
because he is the legal father of Darroll Jr. and section 113(g)(9)(A) only applies to a
putative father.

       Tennessee Code Annotated section 36-1-102(28) defines “legal parent” as:

       (i) The biological mother of a child;

       (ii) A man who is or has been married to the biological mother of the child
       if the child was born during the marriage or within three hundred (300)
       days after the marriage was terminated for any reason, or if the child was
       born after a decree of separation was entered by a court;

       (iii) A man who attempted to marry the biological mother of the child
       before the child’s birth by a marriage apparently in compliance with the
       law, even if the marriage is declared invalid, if the child was born during
       the attempted marriage or within three hundred (300) days after the
       termination of the attempted marriage for any reason;

       (iv) A man who has been adjudicated to be the legal father of the child by
       any court or administrative body of this state or any other state or territory
       or foreign country or who has signed, pursuant to §§ 24-7-113, 68-3-
       203(g), 68-3-302, or 68-3-305(b), an unrevoked and sworn
       acknowledgment of paternity under Tennessee law, or who has signed such
       a sworn acknowledgment pursuant to the law of any other state, territory, or
       foreign country; or

       (v) An adoptive parent of a child or adult; . . .

       Under the facts presented the court correctly held that Father is not the “legal
parent” as defined in the statute. Mother and Father acknowledge that he is the biological

                                               21
father of Darroll Jr., and he married Mother in February 2015, a little over a year after
Darroll Jr.’s birth; Mother and Father remain married. Because Darroll Jr., was not born
during the marriage, neither subsection (ii) nor (iii) apply. Further, subsection (iv) does
not apply because there was no evidence presented that Father had been adjudicated to be
the legal father of Darroll Jr. or executed an unrevoked and sworn acknowledgement of
paternity.

          Tennessee Code Annotated section 36-1-102(43) defines “putative father” as:

          “Putative father” means a biological or alleged biological father of a child
          who, at the time of the filing of a petition to terminate the parental rights of
          such person . . . meets at least one (1) of the criteria set out in § 36-1-
          117(c)[15] and is not a legal parent.


15
     Tennessee Code Annotated section 36-1-117(c) states:

          The parental rights of the putative father of a child who has not filed a petition to
          establish paternity of the child or who has not established paternity of the child who is the
          subject of an adoption proceeding and who meets any of the following criteria shall be
          terminated by surrender, parental consent, termination of parental rights pursuant to § 36-
          1-113, or by waiver of interest, before the court may enter an order of adoption
          concerning that child:

                  (1) The biological father of a child has filed with the putative father
                  registry, pursuant to § 36-2-318, a statement of an intent to claim
                  paternity of the child at any time prior to or within thirty (30) days after
                  the child's birth and has notified the registry of all address changes;

                  (2) The biological father has been specifically identified to the petitioners
                  or their attorney, or to the department, the licensed child-placing agency,
                  or the licensed clinical social worker involved in the care, placement,
                  supervision, or study of the child as the child’s father by the child’s
                  biological mother in a sworn, written statement or by other information
                  that the court determines to be credible and reliable;

                  (3) The biological father has claimed to the child’s biological mother, or
                  to the petitioners or their attorney, or to the department, a licensed child-
                  placing agency, or a licensed clinical social worker who or that is
                  involved in the care, placement, supervision, or study of the child that the
                  biological father believes that the biological father is the father of the
                  child; provided, that if the biological father has previously notified the
                  department of the biological father’s claim to paternity of the child
                  pursuant to the putative father registry, § 36-2-318(e)(3), the biological
                  father shall be subject to all the requirements for waiver of notice
                  provisions of § 36-2-318(f)(2) and to all requirements for filing a
                  paternity petition;


                                                      22
The evidence offered at trial shows that Father meets the criteria set out at section 36-1-
117(c)(2). Mother and Father both testified that they were in a relationship and living
together at the time Mother took a pregnancy test and discovered she was pregnant; they
both acknowledged that Father was the biological father of Darroll Jr. There was no
evidence to the contrary of their acknowledgements. The evidence fully supports the
court’s determination that section 36-1-113(g)(9)(A) is applicable to Father, as the
putative biological father of Darroll Jr.

      We proceed to determine whether there is clear and convincing evidence to
support the termination of Father’s rights.

       The court made seven factual findings relative to this ground. We have
determined that six of the findings are not relevant because they address matters arising
after Darroll Jr.’s birth. In the remaining finding, the court held:

       b. The Father failed, without good cause or excuse, to pay a reasonable
       share of prenatal, natal, and postnatal expenses involving the birth of the
       Minor Child in accordance with his financial means promptly upon the
       person’s receipt of notice of the Minor Child’s impending birth.

        When questioned about what Father’s payment of expenses relating to her
pregnancy with Darroll Jr. before they were incarcerated, Mother testified that Father did
not give her money to “pay for any doctor visits or prenatal vitamins or anything like
that” because she was on TennCare and did not have to pay for her doctors’ bills, but that
Father paid for out-of-pocket expenses like “prescriptions” and “stuff like that.” Father
testified that prior to his incarceration he paid for “everything”; when asked to explain,
Father clarified that he paid for food and shelter and paid a share of the cost of Mother’s


              (4) The biological father is recorded on the child’s birth certificate as the
              father of the child;

              (5) The biological father is openly living with the child at the time the
              adoption proceeding is commenced and is holding himself out as the
              father of the child; provided, that if custody of the child has been
              removed from the biological mother by court order, notice shall be given
              to any man who was openly living with the child at time of the initiation
              of the custody or guardianship proceeding that resulted in the removal of
              the custody or guardianship of the child from the biological mother or
              biological father, if the man held himself out to be the father of the child
              at the time of the removal; or

              (6) The biological father has entered a permanency plan under title 37,
              chapter 2, part 4, or under similar provisions of any other state or
              territory in which the biological father acknowledges paternity of the
              child.
                                                  23
medicine expenses. Father was unable to give a specific figure for how much he spent in
support of Mother while she was pregnant. Father also testified that after his arrest and
incarceration he was unable to continue to pay for Mother’s expenses due to lack of
income. The testimony that Father provided prenatal support is uncontradicted and
preponderates against the court’s finding; accordingly, we reverse the termination of
Father’s parental rights in the ground of failure to provide prenatal support.

          E.      Best Interest

        Once a ground for termination has been proven, 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 Tennessee Code Annotated section 36-1-113(i) 16



16
     Section 36-1-113(i) provides:

          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
                                                        24
for the courts to follow in determining a child’s best interest. 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. Dept. of Children’s Svcs. 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)).

       In its discussion of the best interest of the children, the court made three specific
findings and one finding which addressed each of the statutory factors. The three specific
findings, neither of which is specifically challenged by Mother or Father are as follows:

       17. The Petitioners have consistently provided the only safe, stable home
       the Minor Children have ever known. The Petitioners have always put the
       needs of the Minor Children first unlike the Respondent biological parents.
       The Petitioners went to great lengths to assist the parents with visitation
       including taking the Minor Children for consistent visitation at the jail,
       paying their own money into the Mother and Father’s jail accounts, and
       trying to work with the parents on a set schedule once they were released.

       18. Minor Children need stability and permanency. The Petitioners can
       provide this, but the parents cannot.

       19. The Petitioners submitted a favorable home study. (Exhibit 20).

We have reviewed the evidence in the record pertinent to these findings and each is
supported by the testimony of Petitioners, day care workers, family friends, co-workers,
and Tisha K.’s mother, as well as the information contained in the adoptive home study.

       With respect to the findings relative to the factors at Tennessee Code Annotated
section 36-1-113(i), Mother does not challenge any specific finding; Father challenges
the court’s findings as to factors (1), (3), (4) and (5). We address Father’s challenges
first.

       The court made the following findings as to factor (1):

       i. The Mother and Father failed to complete tasks and the conditions that
       lead to the removal of their children still exist today.



              (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.
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       ii. The Mother and Father still live a volatile lifestyle involving drugs,
       domestic violence, and failure to provide stability.

Father argues that “Proof at trial showed that Appellants were no longer incarcerated, had
obtained employment and stable housing, were removed from the conduct that resulted in
their incarceration and made adjustments to all such necessary conditions in order to
allow the minor child to return to their custody.” These matters have been addressed in
the discussion of compliance with the permanency plan section, supra; as held earlier,
there is clear and convincing evidence to support these findings, and the evidence cited
by Father does not preponderate against the findings.

       The court made the following finding as to factor (3):

       i. The Mother and Father demanded to have visitation set up on short notice
       or demanded to speak to the children after they went to bed. The Mother
       and Father’s demands became a direct barrier to an appropriate visitation
       schedule.

       ii. The Father voluntarily failed to visit his own child since he was denied
       visitation with Kah’nyia, which was not his biological child. He told the
       Petitioners if he could not see them both, he did not want visitation.

Father argues that he made “every available attempt” to obtain visitation and custody of
Darroll Jr. after his release from jail.

       The record shows that Father wrote Petitioners a letter in January of 2015, stating
that he would no longer be calling Petitioners or the children; he also testified that he had
seen Darroll Jr. five or six times since his birth. Further, Tisha K. testified that Father
told Petitioners while he was incarcerated that he did not want to see Darroll Jr. if he
could not also see Kah’nyia. This evidence supports the finding Father has not
maintained regular visitation with the children.

        With respect to Mother’s visitation, Brett K. testified that the Petitioners attempted
to set up a regimented visitation schedule with Mother; that Mother resisted the effort,
stating that they were trying to keep the children from her; that Mother would demand
visitation on less than a day’s notice and get upset when Petitioners would not agree; and
despite being told not to call after the children’s bedtime, Mother would continually call
and ask to speak to them. Brett K.’s testimony supports the court’s finding.

       The court made the following finding as to factor (4):

       i. The Mother and Father admitted in court they have no relationship with
       [Darroll Jr.]

                                             26
       ii. [Father] is not the Father of Kah’nyia, and the Mother’s relationship with
       Kah’nyia is not meaningful. Testimony from the Petitioners and the
       teachers and daycare workers stated the Minor Child, Kah’yia, had night
       terrors and was inconsolable at school after visits with the Mother. The
       Minor Child would only calm down after speaking with the Petitioner. The
       Minor Child, [Darroll Jr.] has no real relationship with the Mother and
       Father. Placing the Minor Children back with the parents would put them in
       substantial risk of physical or psychological harm.

        Father argues that the lack of a meaningful relationship between he and Darroll Jr.
is due to Petitioners’ action in “utilizing both the Davidson County Juvenile Court and
the trial court as barriers to between [sic] [Father] and [Darroll Jr.]”; Father cites no
evidence in support of this argument. As noted earlier, Father distanced himself from the
children beginning with the letter he wrote in January of 2015 and in his statements to
Petitioners. The record supports the finding that Father does not have a meaningful
relationship with Darroll Jr. and the finding as to this factor is affirmed.

       The court made the following finding as to factor (5):

       i. The Petitioners have provided the Minor Children with the only safe and
       stable home they have ever known. The Minor Children continue to thrive
       under their care.

       ii. It would devastate the Minor Children to leave the home of the
       Petitioners to be returned to volatile parents with whom they have little
       relationship.

Father argues with respect to this finding that “[a]ny evidence regarding the stability
[Petitioners] have provided to [Darroll Jr.] is immaterial based on the evidence of their
conduct towards actively prohibiting [Father] from building relationship with his son.”
The trial court correctly considered this to be material evidence on this factor and we find
no error in the court’s consideration of the evidence; in addition, the evidence does not
support Father’s argument that Petitioners prevented him from establishing a relationship
with Darroll, Jr.

       While not contesting any specific finding, Mother argues that Petitioners did not
prove that it was in the best interest of the children to terminate her rights. We have
reviewed the record with respect to the court’s finding as to the remaining best interest
factors and have determined that each finding is supported by clear and convincing
evidence.



                                            27
IV.   CONCLUSION

       For the foregoing reasons, we reverse the judgment of the trial court terminating
Mother and Father’s parental rights on the ground of persistence of conditions and
Father’s parental rights to Darroll Jr. based on the ground of failure to provide prenatal
support; we affirm the judgment in all other respects.




                                                RICHARD H. DINKINS, JUDGE




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