                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                      September 20, 2016 Session

                                      IN RE JAKOB O., ET AL.

                     Appeal from the Juvenile Court for Rutherford County
                       No. TC1674T       Donna Scott Davenport, Judge
                           ___________________________________

                   No. M2016-00391-COA-R3-PT – Filed December 15, 2016
                          ___________________________________

Upon petition of the Tennessee Department of Children‟s Services (“the Department”),
the trial court terminated the parental rights of Mother. We reverse the trial court‟s
determination that Mother willfully failed to support her children prior to her
incarceration and its determination that she failed to substantially comply with the
requirements of the family permanency plans created in this case. However, clear and
convincing evidence supports the remaining grounds for termination relied upon by the
trial court, as well as the trial court‟s determination that the termination of Mother‟s
parental rights is in the children‟s best interest. Accordingly, we affirm the termination
of Mother‟s parental rights.

    Tenn. R. App. P. 3 Appeal of Right; Judgment of the Juvenile Court Reversed in
                        Part , Affirmed in Part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which RICHARD H.
DINKINS and KENNY ARMSTRONG, JJ., joined.

Carl Moore, Murfreesboro, Tennessee, for the appellant, Jessica K.

Herbert H. Slatery, III, Attorney General and Reporter, Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
                                      OPINION

                       BACKGROUND AND PROCEDURAL HISTORY

      In this appeal, we address the termination of parental rights of Jessica K.
(“Mother”) to her two children, Jakob O. and Lukas O.1 Jakob was born in June 2003;
1
    In cases involving minor children, it is this Court‟s policy to redact names sufficient to protect the
Lukas was born several years later in August 2010. Although the children‟s father,
Bobby O. (“Father”), resided with Mother off-and-on over the years, the two never
married.

       The children first came into the custody of the Department in 2010 shortly after
Lukas tested positive for drugs at his birth. Although Father was not living with Mother
at this time, he later moved in with her in the spring of 2011. By September 2011,
however, Father had moved out from Mother‟s home following a domestic violence
episode between them. The children were eventually returned to Mother in December
2011 at the conclusion of a trial home pass, but by order of the Rutherford County
Juvenile Court, Father‟s visitation with the children was restricted to four hours per
month with a supervising agency.

       Despite the restriction imposed on Father‟s visitation with the children, Mother
allowed Father to move back in with her and the children sometime around August 2012.
A few short months later, in October 2012, the children were removed from Mother‟s
home a second time after the Department received a referral with “allegations of drug
exposed child, environmental neglect[,] and educational neglect.” In light of its
investigation into the children‟s circumstances, the Department petitioned to have the
children declared dependent and neglected.

       In an affidavit filed in support of the Department‟s petition to declare the children
dependent and neglected, a Department employee outlined the specific risks that
necessitated the children‟s removal from Mother‟s home:

        At the time of the current referral, DCS arrived at the home to address
        concerns listed in this referral. CPSA Jones was advised by [Father] that
        Jakob had missed school due to illness. Jakob had been taken to the doctor
        by [Mother] at this time. [Father] was drug screened at that time and was
        positive for Benzoidiazapine but did not have a prescription. [Father]
        denied the use of any medications other than Advil over the counter.
        [Mother] and Jakob returned to the home. [Mother] was drug screened and
        was negative for all substances. [Mother] was screened a second time after
        Jakob admitted that he provided urine for his mother. That drug screen also
        yielded negative results. A third drug screen was administered by law
        enforcement to [Mother] which yielded positive results for THC. Law
        enforcement was present at this time and contacted the codes departments.
        Dennis Blair, Fire Inspector for City of Lavergne Codes Department came
        to the home . . . and deemed the home uninhabitable due to the condition of

children‟s identities.
                                           -2-
       the home. There were dishes in the sink growing mold and bacteria. Old
       food was found in the children‟s bedrooms and there were flies and knats
       [sic] throughout the home. The carpet was filthy with what appeared to be
       animal feces and there was a strong unpleasant odor in the home. The
       outside of the home had several trash bags that appeared to have been there
       for some time. There was wood and nails lying at the entrance of the home.
       There were two containers outside the garage and according to [Father],
       they were filled with gasoline.

       On October 24, 2012, the Juvenile Court entered a protective custody order
placing the children in the temporary custody of the Department. 2 A hearing on the
Department‟s dependency and neglect petition later occurred on February 13, 2013.
Following the hearing, by order entered on March 6, 2013, the Juvenile Court found the
children dependent and neglected. In pertinent part, the Juvenile Court‟s March 6 order
stated as follows: “(1) Mother exposed the Children to environmental neglect in her
home; (2) that the home was in such condition of neglect that it was condemned by the
local codes department; (3) that the neglect found in the home was of such a degree and
was unsafe that the Mother was arrested for Reckless Endangerment; and (4) that the
oldest Child . . . was educationally neglected.”

       Following the children‟s removal from Mother‟s home in October 2012, a number
of family permanency plans were created. The first of these plans was created on
November 8, 2012. Among other things, the November 8, 2012 permanency plan
directed Mother to: “abide by the rules of probation,” refrain from the use of alcohol or
drugs, participate in random drug screens and pill counts, participate in “a non-self
reporting clinical assessment with an A&D and parenting component and follow all
recommendations,” show proof of legal means of income, provide the Department with a
budget, and provide the Department with childcare and transportation plans. The record
shows that on the same day that the first permanency plan was created, Mother received a
copy of the “Criteria & Procedures for Termination of Parental Rights.”

       The second permanency plan was created on May 20, 2013. Save for a few
additional requirements, Mother‟s requirements under the second permanency plan were
substantially similar to what was required of her under the first plan. According to the
second permanency plan, Mother‟s alcohol and drug assessment, which had been
completed in December 2012, recommended that Mother receive counseling to address
her grief, participate in relationship counseling with Father, and receive homemaker
services. Following the creation of the second permanency plan, additional permanency

2
 The terms of the order state that the children were placed into the Department‟s custody effective
October 22, 2012.
                                               -3-
plans were created on November 18, 2013, May 27, 2014, and December 3, 2014.
Mother‟s requirements under these latter three plans were virtually the same as those
established under the first two permanency plans.

        On January 10, 2014, the Department filed a petition to terminate Mother‟s
parental rights in the Rutherford County Juvenile Court.3 At the time that the petition
was filed, Mother was incarcerated for a violation of probation. According to Mother,
she had been on probation for two separate charges: a DUI offense and reckless
endangerment. The reckless endangerment charge specifically stemmed from the
condition of Mother‟s home at the time her children were removed in October 2012. In
support of its request to terminate Mother‟s parental rights, the Department averred that
the following grounds for termination existed: (1) abandonment by failure to visit, Tenn.
Code Ann. § 36-1-102(1)(A)(i); (2) abandonment by failure to support, Tenn. Code Ann.
§ 36-1-102(1)(A)(i); (3) abandonment by an incarcerated parent for failure to visit, Tenn.
Code Ann. § 36-1-102(1)(A)(iv); (4) abandonment by an incarcerated parent for failure to
support, Tenn. Code Ann. § 36-1-102(1)(A)(iv); (5) abandonment by engaging in conduct
prior to incarceration that exhibited a wanton disregard for the children‟s welfare, Tenn.
Code Ann. § 36-1-102(1)(A)(iv); (6) abandonment by failure to provide a suitable home,
Tenn. Code Ann. § 36-1-102(1)(A)(ii); (7) substantial noncompliance with the
permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (8) persistent conditions, Tenn.
Code Ann. § 36-1-113(g)(3).

       The trial in the case took place over several dates, beginning on April 23, 2015
and concluding on November 10, 2015. On December 1, 2015, the trial court issued an
oral ruling from the bench and determined that Mother‟s parental rights should be
terminated. A written order memorializing this ruling was later entered by the trial court
on February 5, 2016. Pursuant to its February 5 written order, the trial court concluded
that Mother‟s parental rights should be terminated on six of the eight grounds asserted
against Mother in the Department‟s petition. Specifically, the trial court concluded that:
(1) Mother had abandoned the children by failing to visit them prior to incarceration; (2)
Mother had abandoned the children by failing to support them prior to incarceration; (3)
Mother had abandoned the children by engaging in conduct prior to incarceration that
exhibited a wanton disregard for the children‟s welfare; (4) Mother had abandoned the
children by failing to establish a suitable home; (5) a persistence of conditions existed
that prevented the children‟s return to Mother; and (6) Mother had failed to substantially
comply with the permanency plans. The trial court also concluded that the termination of
Mother‟s parental rights would be in the children‟s best interests. Mother thereafter filed
a timely notice of appeal.

3
 The Department also sought to terminate the parental rights of Father. Although Father‟s parental rights
were eventually terminated by the trial court, he did not appeal.
                                                  -4-
                                          ISSUES

        In her brief on appeal, Mother raises seven issues for our review, which we have
slightly restated as follow:

       1.      Whether the trial court erred in finding abandonment by failure to
       visit prior to incarceration.

       2.    Whether the trial court erred in finding abandonment by failure to
       support prior to incarceration.

       3.     Whether the trial court erred in finding abandonment by wanton
       disregard.

       4.    Whether the trial court erred in finding abandonment by failure to
       provide a suitable home.

       5.     Whether the trial court erred in finding persistence of conditions.

       6.     Whether the trial court erred in finding substantial noncompliance
       with the permanency plans.

       7.     Whether the trial court erred in finding that termination of Mother‟s
       parental rights is in the children‟s best interest.

We note that even if the issues raised in Mother‟s brief had not been this comprehensive,
our review on appeal would not be limited. In order to help “ensure that fundamental
parental rights are not terminated except upon sufficient proof, proper findings, and
fundamentally fair procedures,” we are required to review the trial court‟s findings as to
each ground for termination and as to whether termination is in the child‟s best interest.
See In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[I]n an appeal from an
order terminating parental rights the Court of Appeals must review the trial court‟s
findings as to each ground for termination and as to whether termination is in the child‟s
best interests, regardless of whether the parent challenges these findings on appeal.”).

                               STANDARD OF REVIEW

       “A biological parent‟s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the due process clauses of
the federal and state constitutions.” In re M.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App.
2007) (citations omitted). “Although this right is fundamental and superior to claims of
                                            -5-
other persons and the government, it is not absolute.” In re J.C.D., 254 S.W.3d 432, 437
(Tenn. Ct. App. 2007) (citation omitted). “It continues without interruption only as long
as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its
limitation or termination.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)
(citations omitted). In Tennessee, proceedings to terminate parental rights are governed
by statute. State Dep’t of Children’s Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct.
App. 2006). Pursuant to the Tennessee Code, parties who have standing to seek the
termination of a parent‟s parental rights must prove two things. They must first prove at
least one of the statutory grounds for termination. In re J.C.D., 254 S.W.3d at 438 (citing
Tenn. Code Ann. § 36-1-113(c)(1)). Then, they must prove that termination of parental
rights is in the child‟s best interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).

       Because the decision to terminate a parent‟s parental rights has “profound
consequences,” trial courts must apply a higher standard of proof in deciding termination
cases. In re M.L.P., 228 S.W.3d at 143. “To terminate parental rights, a court must
determine that clear and convincing evidence proves not only that statutory grounds exist
but also that termination is in the child‟s best interest.” In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). “Clear and convincing
evidence is evidence that eliminates any substantial doubt and that produces in the fact-
finder‟s mind a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-COA-
R3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007) (citation omitted). This
heightened burden of proof “minimizes the risk of erroneous decisions.” In re M.L.P.,
228 S.W.3d at 143 (citations omitted).

       Due to the heightened burden of proof required under the statute, we must adapt
our customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005). “First, we must review the trial court‟s specific findings of fact de novo in
accordance with Tenn. R. App. P. 13(d).” In re M.J.B., 140 S.W.3d at 654. “Second, we
must determine whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required
to terminate a biological parent‟s parental rights.” Id. (citations omitted).

                                     DISCUSSION

       Consistent with the Tennessee Supreme Court‟s direction in In re Carrington H.,
we are required to review the trial court‟s findings as to each ground for termination. See
In re Carrington H., 483 S.W.3d at 525-26. Accordingly, in the analysis that follows, we
review each ground for termination relied upon by the trial court separately. However,
notwithstanding the comprehensive nature of our review, we ultimately need only find
that one ground for termination was established in order to uphold the trial court‟s
decision. In re Valentine, 79 S.W.3d at 546.
                                           -6-
Abandonment

       The first ground for termination listed in our termination statute, and the most
frequently relied on, is abandonment. In re Audrey S., 182 S.W.3d at 862 (citations
omitted). The acts that constitute abandonment are outlined in Tennessee Code
Annotated section 36-1-102, which provides five alternative definitions. In this case, the
trial court determined that Mother‟s actions satisfied four bases for abandonment
included among the statutory definitions. We address each of its conclusions regarding
Mother‟s abandonment in turn.

Abandonment Under Tenn. Code Ann. § 36-1-102(1)(A)(iv): Abandonment by Willful
Failure to Visit, Willful Failure to Support, and Wanton Disregard

      The first three bases of abandonment relied upon by the trial court are contained in
the definition of abandonment outlined at Tennessee Code Annotated section 36-1-
102(1)(A)(iv). Pursuant to that statutory definition, a parent‟s parental rights may be
terminated when:

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

Tenn. Code Ann. § 36-1-102(1)(A)(iv).4

        We have previously acknowledged that the above statute contains “two distinct
tests for abandonment” both of which “apply only if a parent is incarcerated at or near the
time of the filing of the termination petition.” In re Audrey S., 182 S.W.3d at 865. The
first test, which itself contains alternative bases for abandonment, “asks whether the
parent „has willfully failed to visit[,] . . . support[,] or . . . make reasonable payments
toward the support of the child for four (4) consecutive months immediately preceding

4
  Although the current version of Tennessee Code Annotated section 36-1-102(1)(A)(iv) has additional
sentences to this definition of abandonment, see Tenn. Code Ann. § 36-1-102(1)(A)(iv) (Supp. 2016), the
amended definition was not effective until July 1, 2016, which was after the trial of this case.
                                                 -7-
such parent‟s . . . incarceration.‟” Id. (citing Tenn. Code Ann. § 36-1-102(1)(A)(iv)).
Although this test tracks the language of the statutory definition of abandonment under
Tennessee Code Annotated § 36-1-102(1)(A)(i), it “shifts the focus from the four-month
period immediately preceding the filing of the termination petition to the four-month
period immediately preceding the parent‟s incarceration.” Id.

        In this case, the trial court concluded that two bases of abandonment under the
“first test” of Tennessee Code Annotated section 36-1-102(1)(A)(iv) were established.
First, it determined that Mother abandoned the children by willfully failing to visit the
children prior to her incarceration. For purposes of this ground of abandonment,
“willfully failed to visit” means “the willful failure, for a period of four (4) consecutive
months, to visit or engage in more than token visitation[.]” Tenn. Code Ann. § 36-1-
102(1)(E). Token visitation is visitation that, under the circumstances of the particular
case, “constitutes nothing more than perfunctory visitation or visitation of such an
infrequent nature or of such short duration as to merely establish minimal or insubstantial
contact with the child[.]” Id. § 36-1-102(1)(C).

       There is no question that Mother was incarcerated at the time the Department‟s
petition for termination was filed on January 10, 2014 so as to make this basis for
termination applicable. At trial, Mother testified that she was incarcerated from
December 24, 2013 through January 27, 2014.5 Thus, we look to Mother‟s actions in the
four-month period prior to December 24, 2013. In its February 5, 2016 order of
termination, the trial court found that Mother only exercised three visits with the children
during this period. Specifically, it found that Mother had visited with the children on
September 28, 2013, October 5, 2013, and October 28, 2013. According to the trial
court, this limited visitation “was token at best” and constituted a willful failure to
exercise visitation.

       On appeal, Mother does not challenge the trial court‟s finding that she only visited
with the children on three dates in the applicable four-month period. Rather, she
contends that the trial court‟s finding of willfulness cannot be sustained. Among other
things, she notes that her visitation had previously been suspended on May 20, 2013.

       Although an order suspending visitation rights does not preclude a finding that a
parent willfully failed to visit a child, see In re Adoption of Angela E., 402 S.W.3d 636,
642 (Tenn. 2013) (“[T]he prior order suspending Father‟s visitation rights did not
preclude a finding that Father willfully failed to visit the children.”), this Court has
previously found that active efforts to establish visitation rights are inconsistent with a

5
  We note that this testimony was corroborated by an inmate charge history that was introduced into
evidence.
                                               -8-
finding that a party willfully failed to visit. In re Chelbie F., No. M2006-01889-COA-
R3-PT, 2007 WL 1241252, at *6 (Tenn. Ct. App. Apr. 27, 2007). Mother is correct in
her assertion that her visitation with the children was suspended in the months leading up
to the applicable four-month period. The second permanency plan, which was created on
May 20, 2013, specifically stated as follows: “At the time of the meeting held on
05/20/2013 the parents[‟] visitation was suspended due to ongoing concerns regarding
CPS investigation and pass documentation from agency supervising the family‟s visits.” 6
The record reflects that the second permanency plan was later ratified by the Juvenile
Court on June 21, 2013.

        Although Mother‟s visitation was suspended, notes from a May 2013 Child and
Family Team Meeting Summary indicate that a hearing was scheduled for later that
summer to address visitation. A specific hearing date of June 7 was referenced, but it is
unclear if any judicial proceedings were held on that date. What is clear, however, is that
visitation was eventually reinstated. As we have already noted, the trial court specifically
found that Mother visited with the children on September 28, 2013, October 5, 2013, and
October 28, 2013.

        Although there is evidence that visitation was reinstated, the record is silent as to
exactly when this occurred. It is certainly possible that visitation was reinstated prior to
the four-month period applicable to this ground for termination, and yet, there is no
evidence affirmatively establishing this fact. One could also speculate that visitation was
not reinstated until sometime after the applicable four-month period commenced. The
only clarity provided on this issue is that visitation was reinstated by September 28, 2013,
approximately one month into the pertinent four-month period. Because the record is
silent as to the specific date Mother‟s visitation was reinstated, Mother‟s failure to visit
the children in the first month of the applicable four-month period is of questionable
significance. Efforts were clearly made to reinstate visitation, and it would be unfair to
ignore those efforts and ascribe fault to Mother for failing to visit the children during a
period when visitation may have been suspended. With that said, as explained below, we
are ultimately in accord with the trial court‟s determination that Mother‟s visits during
the four-month period were of such an infrequent nature that they represented mere token
visitation. Moreover, we find no error in the trial court‟s determination that Mother‟s
failure to visit was willful.

        Even assuming that Mother‟s visitation had been suspended until immediately
prior to her September 2013 visit, her subsequent actions do not evidence efforts to foster
meaningful parent-child relationships. See In re Keri C., 384 S.W.3d 731, 751 (Tenn. Ct.
App. 2010) (“[W]hile the parent‟s subjective intent and interest in the child is relevant,

6
    This quoted language was presented in all capital letters in the permanency plan itself.
                                                      -9-
the termination statutes generally require that such interest manifest in the form of
objectively reasonable action geared toward establishing a healthy parental
relationship.”). At the latest, we know that Mother‟s visitation was reinstated by
September 28, 2013. Over the roughly three months remaining in the applicable four-
month period, Mother only visited with the children three times. While Mother did visit
with the children twice in October of 2013, she did not make any visits in November or
December of that year.

        Although our focus is rightfully placed on Mother‟s conduct in the pertinent four-
month period, Mother‟s relationship with the children prior to this time is relevant to
determining whether the visitation during the four-month period was merely “token.” Id.
at 749. Indeed, the significance of facts during the relevant time period “is better
assessed with an understanding of the parent‟s prior efforts to forge a relationship with
the child, and whether a bond between parent and child had previously been established.”
Id. The evidence shows that prior to the relevant four-month period, the parents‟
visitation with the children posed a significant barrier to reunification. For example,
when Andrea Byrd (“Ms. Byrd”), a former Department case manager for the children at
issue, was asked what barriers prevented reunification, she responded as follows:
“Visitation was a big one. There wasn‟t a lot of visitation that was occurring.” Ms. Byrd
stated that she worked on this case from January 2013 to April 2014, and her testimony
reflects that the parents‟ visitation with the children was not only inconsistent, but also
destructive. She indicated that Father frequently belittled Mother during visits, which she
noted was of concern because “Jakob was starting to act that way towards [Mother] as
well.” Mother‟s own testimony indicated that in the months following the children‟s
removal, Father would speak in a derogatory manner in front of the children during visits.
Thus, for the visitations that did occur, they were marked by hostility.

        Considered against this backdrop of visitations, Mother‟s three visits in the four
months immediately preceding her December 2013 incarceration cannot be considered a
reasonable effort to foster meaningful parent-child bonds with her children. The absence
of beneficial visitation was a problem, and the infrequent nature of Mother‟s visits prior
to her incarceration did little to forge meaningful relationships. We accordingly conclude
that there is clear and convincing evidence to support the trial court‟s determination that
Mother only engaged in token visitation during the relevant period.

        We also conclude that the proof clearly and convincingly establishes that Mother‟s
failure to engage in more than token visitation was willful. On appeal, Mother contends
that there were several obstacles to her exercise of visitation. Namely, she asserts that the
requirements added in the third permanency plan were “too much to be surmounted.”
The third permanency plan, which was created on November 18, 2013, required Mother
to give at least 48 hours‟ notice before a visit, prevented Mother from exercising
                                           - 10 -
visitation if she failed a drug screen, and directed Mother to exercise her visitation
separate from Father. It is not entirely clear why Mother contends that the drug screening
requirement posed an unreasonable burden to her visitation. We observe that notes from
the November 18, 2013 Child and Family Team Meeting Summary indicated that Mother
“has been passing drug screens.” In any event, it was not unreasonable to condition
Mother‟s right to visit on remaining drug-free given her past history. Such a requirement
is far from atypical. See, e.g., In re Elijah B., No. E2010-00387-COA-R3-PT, 2010 WL
5549229, at *8 (Tenn. Ct. App. Dec. 29, 2010) (visitation not permitted under a “no-
contact” order until parent passed drug test). With respect to the other visitation
requirements, Mother places blame at the feet of Father. She argues that she had
difficulty in complying with the 48 hours‟ notice requirement because Father kept
breaking her phone. Moreover, she argues that the requirement for separate visitation
was a barrier because she relied on Father for transportation.

        Although Mother testified that Father broke her phone on several occasions, her
own testimony indicates that she was not without the ability to remain in the necessary
communication regarding the children. When asked generally if there was ever a period
that she could not communicate with the Department, Mother testified as follows: “Well,
[Father] would break my phone periodically, that I may not have had a phone at the time,
but I would go to -- down to Ms. Barbara’s and call, and I was also at my home to get
correspondence through the mail. (emphasis added) The referenced individual, Barbara
C., lived close to Mother and was someone Mother considered to be a part of her support
system. Mother even testified that she planned to allow Barbara to care for the children
while she was at work if the children were returned to her. Inasmuch as Mother‟s own
testimony indicates that she had the ability to use Barbara‟s phone to contact the
Department, the fact that Father may have broken her phone on occasion is not a
sufficient excuse to relieve her from making efforts to exercise visitation. Moreover, it is
unclear how the separate visitation requirement imposed by the third permanency plan
constituted any burden to Mother‟s visits. In her reply brief, Mother suggests that it was
a barrier because she relied on Father for visitation, explaining as follows: “[T]he
requirement for separate visitation removed any incentive for Father to assist Mother
getting to visitation.” Even if Father had been unwilling to take Mother to visitations,
such unwillingness is no excuse. Although Mother may have depended on Father for
transportation, she did not need to do so. The permanency plans entered in this case,
including the third permanency plan, plainly indicate that the Department or provider
agency would be able to provide transportation to and from visitations.

        In Mother‟s brief, she also argues that no evidence was submitted as to whether
visitation could be coordinated with her work schedule. At trial, she specifically
suggested that the Department had not been accommodating of her work. Indeed, when
asked how many times she thought she had visited the children in 2013, Mother
                                           - 11 -
responded as follows: “I think that the only times that I haven‟t seen my kids through this
whole episode . . . is when . . . they weren‟t accommodating for my working second shift
or when visitation has been suspended.” It is unclear what relevance Mother‟s work
schedule has to this basis for termination given the facts of this case. According to
Mother‟s own testimony, she was not working during the pertinent four-month period.
Considering the record as a whole, we therefore agree with the trial court‟s conclusion
that Mother‟s failure to exercise more than token visitation with the children during the
relevant period was willful.

        The trial court also determined that Mother‟s parental rights should be terminated
due to her failure to support the children in the four-month period prior to her
incarceration. This basis for termination is also part of the “first test” of abandonment as
defined in Tennessee Code Annotated section 36-1-102(1)(A)(iv). According to the trial
court, the evidence introduced at trial clearly and convincingly showed that “Mother . . .
willfully and intentionally failed to support her Children . . . during the . . . four (4)
months preceding her incarceration on December 24, 2013.”

       “[A] court can only determine willfulness of a parent‟s failure to support where
there is sufficient evidence regarding the parent‟s ability to pay.” In re Jamie G., No.
M2014-01310-COA-R3-PT, 2015 WL 3456437, at *15 (Tenn. Ct. App. May 29, 2015).
In its brief on appeal, the Department concedes that the record is “not sufficiently
illuminating to determine Mother‟s ability to pay support” in this case. We agree. As the
Department indicated in its oral argument before this Court, the record is silent as to
Mother‟s expenses during the relevant four-month period. We therefore reverse the trial
court with respect to this basis for determination, as there is an absence of clear and
convincing evidence that Mother willfully failed to support her children in the four
months preceding her incarceration.

        In addition to concluding that Mother willfully failed to visit and support the
children in the four-month period prior to her incarceration, the trial court found that the
“second test” of Tennessee Code Annotated section 36-1-102(1)(A)(iv) had been
established. “The second test asks whether the parent „has engaged in conduct prior to
incarceration which exhibits a wanton disregard for the welfare of the child.‟” In re
Audrey S., 182 S.W.3d at 865 (citing Tenn. Code Ann. § 36-1-102(1)(A)(iv)). Notably,
“it is not expressly limited to any particular four-month period.” Id.

       As this Court has previously observed, this statute “reflects the commonsense
notion that parental incarceration is a strong indicator that there may be problems in the
home that threaten the welfare of the child.” Id. at 866. Indeed, the “decision to engage
in conduct that carries with it the risk of incarceration is itself indicative that the parent
may not be fit to care for the child.” Id. (citation omitted). With that said, an
                                            - 12 -
incarcerated parent can only be found guilty of abandonment under the second test of
Tennessee Code Annotated section 36-1-102(1)(A)(iv) “if the court finds, by clear and
convincing evidence, that the parent‟s pre-incarceration conduct displayed a wanton
disregard for the welfare of the child.” Id. Under the statute, “the parent‟s incarceration
serves only as a triggering mechanism that allows the court to take a closer look at the
child‟s situation to determine whether the parental behavior that resulted in incarceration
is part of a broader pattern of conduct that renders the parent unfit or poses a risk of
substantial harm to the welfare of the child.” Id. “We have repeatedly held that
probation violations, repeated incarceration, criminal behavior, substance abuse, and the
failure to provide adequate support or supervision for a child can, alone or in
combination, constitute conduct that exhibits a wanton disregard for the welfare of a
child.” Id. at 867-68 (citations omitted).

       We agree with the trial court that clear and convincing evidence exists to support
the conclusion that Mother engaged in conduct prior to her incarceration that
demonstrated a wanton disregard for her children‟s welfare. An inmate charge history
that was introduced into evidence shows that Mother was incarcerated on three occasions
prior to her incarceration on December 24, 2013. With respect to her December 2013
incarceration, Mother testified that it stemmed from a violation of probation. When
asked what offense her probation was related to, Mother asserted that she had been on
probation for two charges: a DUI and reckless endangerment. She testified that the DUI
occurred in August 2012 and indicated that Lukas had been with her at the time. The
reckless endangerment charge stemmed from the condition of the home when her
children were removed in October 2012. Although Mother argues in her brief that there
is no proof in the record that she was actually convicted of the reckless endangerment
charge, this assertion is contradicted by her own testimony. Indeed, as evident by the
following exchange, Mother specifically admitted that she had been convicted of the
offense:

       Q. So you were charged with and convicted of reckless endangerment –

       A. Yes.

       Q. -- from when the children were removed from your home?

       A. Yes.

There was also evidence that the children‟s welfare was potentially compromised by
Mother‟s drug usage. We note that Jakob testified that Mother had often taken him to go
drug dealing. Moreover, we note that when Lukas was born, he tested positive for drugs.
In addition to these concerns, the trial court noted that Mother had “continued to
                                          - 13 -
cohabitate with the Father, even after, by her own acknowledgement, she recognized his
anger and inappropriate behaviors did not present an environment appropriate for her
Children.” The trial court also referenced Jakob‟s testimony that he observed a lot of
fighting between his parents and extensive drinking of alcohol. Because we are of the
opinion that clear and convincing evidence establishes Mother‟s wanton disregard for the
children, we do not disturb the trial court‟s determination that this ground for termination
is applicable.

Abandonment Under Tenn. Code Ann. § 36-1-102(1)(A)(ii): Failure to Provide a Suitable
Home

       The trial court also found that Mother abandoned the children by failing to
establish a suitable home. This ground for termination is applicable when:

       The child has been removed from the home of the parent or parents or the
       guardian or guardians as the result of a petition filed in the juvenile court in
       which the child was found to be a dependent and neglected child, as defined
       in § 37-1-102, and the child was placed in the custody of the department or
       a licensed child-placing agency, that the juvenile court found, or the court
       where the termination of parental rights petition is filed finds, that the
       department or a licensed child-placing agency made reasonable efforts to
       prevent removal of the child or that the circumstances of the child‟s
       situation prevented reasonable efforts from being made prior to the child‟s
       removal; and for a period of four (4) months following the removal, the
       department or agency has made reasonable efforts to assist the parent or
       parents or the guardian or guardians to establish a suitable home for the
       child, but that the parent or parents or the guardian or guardians have made
       no reasonable efforts to provide a suitable home and have demonstrated a
       lack of concern for the child to such a degree that it appears unlikely that
       they will be able to provide a suitable home for the child at an early date.
       The efforts of the department or agency to assist a parent or guardian in
       establishing a suitable home for the child may be found to be reasonable if
       such efforts exceed the efforts of the parent or guardian toward the same
       goal, when the parent or guardian is aware that the child is in the custody of
       the department[.]

Tenn. Code Ann. § 36-1-102(1)(A)(ii). Under this ground for termination, it is important
to recognize that a “„suitable home requires more than a proper physical living location.‟”
In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct.
App. June 10, 2014) (quoting State v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL

                                            - 14 -
4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007)). For example, a suitable home “requires
that the home be free of drugs and domestic violence.” Id. (citation omitted).

       In concluding that this ground for termination existed, the trial court placed much
emphasis on its finding that Father continued to have a presence in Mother‟s home at the
time of trial. Indeed, after chronicling the hostile nature of Mother and Father‟s
relationship, the trial court found as follows: “Mother and Father living together is
clearly not a suitable home.” There is no question that Mother and Father‟s continued
cohabitation presented an unsuitable home environment for the children. Mother
admitted as much in her brief, expressly conceding that the home was unsafe while
Father was there.

        The record is replete with examples demonstrating how Father‟s continued
presence in the home was antithetical to the children‟s well-being. Jakob, for example,
testified that there was a lot of fighting in Mother‟s home. When asked if this fighting
was “just arguing,” Jakob responded as follows: “It was a lot of physical.” At one point
in his testimony, he recounted an occasion on which Father had pushed Mother:

      [O]ne time, you know, Mom tried to take me away because Dad -- she got
      tired of Dad fighting with her and stuff, so she tried to leave, but Dad went
      outside and Mom was trying to take me and Lukas. Lukas was still in her
      stomach, and so we were running -- well, not really running, but she was
      going as fast as she could, and she went through -- she went past a big
      stump that we have, and when Dad pushed -- I mean, Dad pushed Mom
      over with me in her hands, and when she fell over, she hit this giant log,
      and it fell and hit my leg[.]

Immediately following this narrative, Jakob mentioned a time when Father shoved
Mother onto a coffee table.

       The domestic violence between Mother and Father spanned multiple years. Based
on Mother‟s testimony, we know that the domestic violence between the two occurred as
early as August or September of 2011; although Father left Mother‟s home at that time,
he would eventually return. We also know that the violence was present as late as the
spring of 2015. In describing what prompted her to obtain an order of protection as to
Father in March of that year, Mother revealed the following account:

      Well, I was getting ready for work one day. [Father] was asking for my
      debit card so he could go rent Redbox movies. I refused. I had just gotten
      out of the shower and sat down to eat. I had a small bowel [sic] of syrup.
      He sat down on my bed and continued to ask me for my debit card. And
                                          - 15 -
       when I continued to refuse, he kind of flung the bowl of syrup at me. And I
       got up, went took another shower, put on different clothes for work. I sat
       down in my room on my bed and tried to eat again, and he began to ask me
       again for the card. I said, This isn‟t going to work, so I went into the
       kitchen to make sandwiches to take to work with me. He followed me into
       the kitchen, continued asking me for the card, calling me names, and he
       picked up a kitchen knife, and he didn‟t try -- I mean, he didn‟t cut me with
       it or anything, but him holding it in the kitchen with me in the kitchen and
       his behavior from that day, I felt threatened.

       The acrimony between Mother and Father was even present when Mother and
Father exercised visitations with the children. Mother admitted that there had been
occasions during visits where Father had laid hands on her in an inappropriate manner;
she also indicated that there had been many visits where Father had spoken to her in a
derogatory manner in front of the children. When she was asked whether Father‟s
treatment of her presented an inappropriate environment for the children to be in, Mother
responded, “Absolutely. Absolutely.” At one visit at the Opry Mills mall, Jakob reported
seeing Mother and Father “shoving each other around . . . and getting mad at each other.”
Although Mother admitted that she had a red mark on her face when she returned the
children to their foster parent following the visit, she denied that the red mark was the
result of anything that had occurred at Opry Mills. In addition to being directly hostile
and violent to Mother, Father took his anger out on Jakob. Jakob testified that Father
would get upset “over the stupidest things” and cuss him out. For example, he noted that
although he and Father would go fishing together, Father often got very upset:

       [A] lot of the time, if I lost a fish, if I had to cut the rope or something --
       o[r] if I had to cut the string or something, he would end up getting really
       mad at me, slapping me or something. And at one point, he got so mad, he
       took the fishing pole that he gave to me from the very start, and he took it
       and he just snapped it in half, and that‟s not okay. He just took it, snapped
       it, and he said, Try Fishing now.

       The trial court was not without justification in concluding that Father‟s presence in
Mother‟s home presented an unsuitable environment for the children, and we reject
Mother‟s suggestion that the trial court did not determine that Father lived there at the
time of trial. It is true that, at one point in its termination order, the trial court
commented that it “ha[d] no idea where the Father is living.” However, when this
statement is viewed in context with the rest of the trial court‟s order, it is clear that it does
not carry the significance that Mother might ascribe to it. The statement appears to be
mere hyperbole or a reflection that the court did not personally know where Father was

                                             - 16 -
living; indeed, subsequent to that statement, the trial court made several findings based
on the proof presented that Father still lived with Mother:

       38. Finding in fact, that the Court has no idea where the Father is living.
       The Court gives great weight to the State‟s witnesses, especially Father‟s
       probation officer . . . who testified that Father‟s current address that Father
       provided to the probation officer was the same address where the Mother
       currently resides. Mother has been adamant in her position that Father no
       longer resides in her home since the Domestic Violence incident that
       occurred in March of . . . 2015 . . . but the Court gives greater weight to
       the State’s witnesses and finds the proof supports the State’s position
       that Mother and Father are still residing together.

       ....

       39. Finding in fact, that even though the Mother sits here today and
       testified that she is maintaining the dwelling where she resides the Court
       finds the home is not a suitable home due to the history wherein the Mother
       has time and again allowed the Father back into home, and as demonstrated
       by the testimony of the Child, Jakob, exposing the Children to the domestic
       violence, the arguing and fighting. What is extremely disturbing is that
       over a year after the State‟s Termination Petition was filed, in or around
       March of 2015, the parents once again become engaged in a domestic
       altercation that led to the issuance of an Order of Protection. The Court
       finds Father still resides with the Mother[.]

         The evidence does not preponderate against the trial court‟s finding that Father
still lived with Mother at the time of trial. Although Mother claimed that she had not
spoken to Father since she obtained an order of protection against him in March 2015, the
trial court was free to reject this testimony. “[T]rial courts are able to observe witnesses
as they testify and to assess their demeanor, which best situates trial judges to evaluate
witness credibility.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)
(citations omitted). On appeal, we will not re-evaluate a trial judge‟s assessment of
witness credibility absent clear and convincing evidence to the contrary. Id. (citations
omitted). Moreover, we note that there were witnesses who offered evidence that
connected Father to Mother‟s home even after an order of protection had been entered
against him. Father‟s probation officer, Taisha Kuilan, testified that as late as September
2015, Father had represented that his address was 708 Wilowview Drive. This is the
same address where Mother lived. Moreover, we note that a Department case manager
testified that she had seen men‟s boots outside the home. This same case manager

                                           - 17 -
asserted that in August 2015, she had seen mail inside the home that had been sent to
Father.

        The trial court not only concluded that Mother had failed to provide a suitable
home due to Father‟s continued presence, but it also determined that she would not be
able to provide a suitable home at an early date in the future. There is clear and
convincing evidence to support the trial court‟s conclusion on this issue. Mother
admitted that there was a long history of Father being in her life, out of her life, and back
in her life again. Despite her testimony that Father was finally out of her life by the time
of trial, the trial court found that Father was back in the home. Based on Mother‟s long-
standing history of allowing Father back into the home, there were years of evidence to
support the trial court‟s determination that Mother‟s home situation would not likely be
suitable for the children at some point soon in the future.

      While there is certainly adequate proof that Mother failed to provide a suitable
home and would be unable to do so at an early date, we have already noted that this
ground for termination specifically requires that:

       [F]or a period of four (4) months following the removal, the department . . .
       has made reasonable efforts to assist the parent . . . to establish a suitable
       home . . . but that the parent . . . ha[s] made no reasonable efforts to provide
       a suitable home and ha[s] demonstrated a lack of concern for the child to
       such a degree that it appears unlikely that they will be able to provide a
       suitable home for the child at an early date.

Tenn. Code Ann. § 36-1-102(1)(A)(ii). The entirety of the definition cannot be ignored.
As noted by the Tennessee Supreme Court, “proof of reasonable efforts is required to
prove the ground of abandonment by failure to provide a suitable home.” In re Kaliyah
S., 455 S.W.3d 533, 555 n.32 (Tenn. 2015).

       In this case, the trial court‟s order makes several references indicating that it
focused on the four-month period immediately following the children‟s removal. For
example, it noted that “[i]n the four months following the removal the parents[‟]
residence was still unsuitable for the Children.” Moreover, in referencing the
Department‟s efforts, the trial court noted that “DCS made reasonable efforts to assist the
parents toward the goal of reunification; toward assisting them with providing a suitable
home during the four months following the removal[.]” Having reviewed the record, it is
unclear what specific evidence exists regarding the Department‟s efforts in the four-
month period immediately following removal. At the outset, we note that the case
worker assigned to the case at the beginning of that period did not testify at trial.
Although Ms. Byrd took over the case approximately three months after the children‟s
                                            - 18 -
removal, her testimony concerning the Department‟s efforts was not specifically related
to the fourth-month period immediately following removal. Indeed, outside of her
recollection that a Child and Family Team Meeting occurred on February 15, 2013, her
testimony about the Department‟s efforts was either non-specific as to the timing or
concerned dates outside the first four months of the children‟s removal.

       With respect to this point, we observe that although the Department‟s brief on
appeal mentions several services that the Department provided to Mother, some of the
testimony specifically referenced to support this point concerned a period of time well
past the first four months following removal. For example, consider the following
exchange between the Department‟s attorney at trial and Ms. Byrd, which appeared
within a portion of the trial testimony referenced by the Department:

      Q. And the permanency plan that you took out, Exhibit 4, from
      November 18, 2013, is this same summary attached to it?

      A. Yes, sir.

      Q. And the concerns that you had that you discussed just a few minutes
      ago, are those based upon responsibilities and tasks that are outlined in that
      permanency plan?

      A. Yes, sir.

      Q. What efforts did you try to make at that point in time? I know it
      was a few months before the TPR, but what efforts did you make to try to
      assist the parents with those needs or concerns?

      A. Well, I always gave the parents blank budgets. I offered to sit down
      and help them complete the budget, child care plan, if they needed it. I
      maintained contact with the probation officer; initially, assisted with the
      assessments, which provided recommendations such as counseling. And
      [Mother] had already been involved with the Guidance Center so she was
      receiving those there. And I also would do random drug screens.

(emphasis added)

       If this ground for termination depended on proof of efforts in the first four months
following the children‟s removal, we could not find it applicable given the proof
presented in this case. Indeed, although the evidence clearly shows that Mother failed to
provide a suitable home for the children, the record is less than revealing about what
                                          - 19 -
specific efforts were made by the Department in the four months immediately following
the children‟s removal from Mother‟s home. According to an ordinary reading of the
statute, however, the proof necessary to support termination under this ground need not
be limited to any particular four-month period after removal. As long as the proof relates
to “a period of four (4) months following the removal,” Tenn. Code Ann. § 36-1-
102(1)(A)(ii), the ground may be established. The statute does not limit the court‟s
inquiry to a period of four months immediately following the removal. We made this
observation in a previous appeal, noting as follows:

       The statutory language in question provides only that DCS must make
       reasonable efforts “for a period of four (4) months following the removal. .
       . .” Tenn. Code Ann. § 36-1-102(1)(A)(ii)(2005 & Supp. 2009) (emphasis
       added). A quick survey of this Court‟s case law suggests that the Code
       does not limit the window during which DCS may satisfy its obligation to
       make reasonable efforts to the four-month period directly following
       statutory removal. See, e.g., In re B.T., No. M2008-00946-COA-R3-PT,
       2008 WL 4922532, at *8 (Tenn. Ct. App. Nov. 13, 2008) (no perm. app.
       filed) (evaluating the four-month period preceding the filing of DCS‟
       termination petition); In re J.C.W., No. M2007-02433-COA-R3-PT, 2008
       WL 4414675, at *4-6 (Tenn. Ct. App. Sept. 26, 2008) (no perm. app. filed)
       (examining both the four-month period following removal and the four-
       month period preceding the filing of DCS‟ termination petition).

In re J.D.L., No. M2009-00574-COA-R3-PT, 2009 WL 4407786, at *12 n.8 (Tenn. Ct.
App. Dec. 2, 2009).

        With this in mind, we note that although the trial court‟s findings do reference the
first four months following the children‟s removal in analyzing this ground for
termination, the trial court‟s findings are not strictly limited to this period. Indeed, the
trial court‟s findings specifically reference the respective efforts made by Mother and the
Department over the three plus years following the children‟s removal. Consider the
following excerpt from the trial court‟s termination order:

       42. Finding in fact, based upon the findings herein and the proof submitted,
       including the Exhibits, that the parents over the past 3 plus years, date of
       custody being October 22, 2012, have failed to make any reasonable efforts
       to better their position; that they have individually failed to provide a
       suitable home for the Children; and both have demonstrated by their own
       actions, as described herein this Order, a severe lack of concern for the
       welfare of their Children.

                                           - 20 -
      ....

      44. Mother and Father have individually failed to provide a suitable home
      for their respective Children and/or have demonstrated a lack of concern for
      the Children, in that at the time of the removal they were not providing an
      appropriate home for their Children and they have failed to make any effort
      whatsoever to provide a home for their Children over the course of the
      last three years preceding today’s hearing.

      ....

      46. Regarding reasonable efforts the Court finds, finding in fact and by
      conclusions of law, by clear and convincing evidence, that DCS has made
      reasonable efforts toward all of the grounds found herein and as applicable
      to the finding of best interests.

      ....

      Therefore based upon the aforementioned, the totality of the proof,
      including testimony and exhibits . . . the Court finds DCS made reasonable
      efforts to assist the parents toward the goal of reunification; toward
      assisting them with providing a suitable home during the four months
      following the removal and throughout[.]

(emphasis added).

       Although we would agree that the evidence does not support the trial court‟s
findings inasmuch as those findings specifically concern the Department‟s efforts in the
first four months immediately after the removal, the evidence does support its
determination that Mother failed to provide a suitable home despite reasonable efforts
made by the Department for several years preceding the trial. Ms. Byrd was a case
manager on this case from January 23, 2013 to April 2014. Her testimony reveals the
multiple efforts the Department made to assist Mother during that period. In addition to
helping to develop permanency plans and participating in Child and Family Team
Meetings, Ms. Byrd performed random drug screens, assisted with assessments of the
parents, offered to help Mother complete a budget and childcare plan, and maintained
contact with the probation officer. According to Ms. Byrd, the Department also paid for
therapeutic visitation and couples counseling. Concerning Father‟s presence specifically,
Ms. Byrd testified that she had discussions with Mother about how Father‟s presence in
her life was a barrier. Ms. Byrd also testified that she completed a referral for
homemaker services and conducted some home visits. Sherry Davis (“Ms. Davis”), who
                                         - 21 -
later worked on the case for approximately a six month period, testified how the
Department also scheduled visits for family therapy. According to Ms. Davis, the
Department discussed the need for family therapy in Child and Family Team Meetings.
She described how the Department provided case management services and testified that
the Department provided funding for whatever services were not being covered by
Mother‟s means. Kimberly Roberts (“Ms. Roberts”), who took over as case manager on
February 23, 2015, testified that she had conducted home visits and alerted Mother to
certain physical concerns about her home. She also attempted to do random drug screens.

         There does not appear to be any question that Mother addressed many of the
environmental concerns associated with the children‟s removal. Mother testified that her
home was certified as habitable within a week or two after it had been condemned, and
Ms. Roberts asserted that Mother appeared to have made repairs to areas on the outside of
the home that had been identified as concerns. Notwithstanding these efforts, we again
note that “a suitable home requires more than a physical space.” In re A.D.A., 84 S.W.3d
592, 599 (Tenn. Ct. App. 2002). As already detailed, Father‟s presence in the home
clearly rendered the home unsuitable for the children. Mother‟s testimony indicated that
Father remained in the home from the time of the children‟s removal until about a month
before trial commenced. Save for an order of protection that was obtained against Father
in the spring of 2015, there is no evidence that Mother made any meaningful attempt to
establish a home free from Father during this period. Moreover, despite the order of
protection, the trial court implicitly discredited Mother‟s testimony that Father remained
out of the home at the time of trial. Indeed, the trial court specifically found that “Father
still resides with the Mother.” In light of the foregoing discussion, the record clearly and
convincingly establishes the ground for termination outlined in Tennessee Code
Annotated section 36-1-102(1)(A)(ii).

Persistence of Conditions

       We next consider the trial court‟s determination that Mother‟s parental rights
should be terminated pursuant to the ground for termination outlined in Tennessee Code
Annotated section 36-1-113(g)(3). This ground for termination, commonly referred to as
a “persistence of conditions,” is applicable when:

       (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 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

                                           - 22 -
              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[.]

Tenn. Code Ann. § 36-1-113(g)(3). The purpose behind this 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 A.R., No. W2008-00558-COA-R3-PT, 2008
WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re D.C.C., No. M2007-
01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).

       In determining that this ground for termination was applicable, the trial court
concluded that Mother had not demonstrated that she would be able to be protective of
her children. In pertinent part, the trial court found as follows:

       [T]he Court finds conditions persist, namely Mother‟s failure to protect the
       Children from an environment wherein Mother and Father engage in
       inappropriate behavior which has escalated on more than one occasion to
       domestic violence, which prevent the Children from returning to Mother‟s
       care in the near future; further that there is little likelihood that these
       conditions will be remedied at an early date so that the Children could be
       returned to the Mother‟s care in the near future.

We agree that this ground for termination was sufficiently established. The children were
removed from Mother‟s care for over six months, and the evidence shows that a return of
the children to Mother‟s care was inhibited by Father‟s continued presence. As we have
already noted, the trial court found that Father still lived with Mother when it entered its
order of termination, and given Mother‟s history of allowing Father back into the home,
the trial court was not without support in concluding that this concern would not be
remedied in the near future. Having concluded that there is clear and convincing
evidence to support this ground for termination, we now move to the final ground for
termination relied upon by the trial court.




                                             - 23 -
Substantial Noncompliance with the Permanency Plan Requirements

       The trial court also terminated Mother‟s parent rights under the ground for
termination contained in Tennessee Code Annotated section 36-1-113(g)(2). Pursuant to
that statute, a court may terminate a parent‟s parental rights when the parent is in
“substantial noncompliance . . . with the statement of responsibilities in a permanency
plan.” Tenn. Code Ann. § 36-1-113(g)(2). In conjunction with terminating a parent‟s
parental rights under this ground, the court “must first find that the plan requirements are
reasonable and related to conditions that necessitate foster care placement.” In re
Hannah H., 2014 WL 2587397, at *10 (citations omitted). “The trial court must then
find that the noncompliance is substantial.” Id. (citation omitted). Although the
termination statute does not define what conduct constitutes substantial noncompliance,
terminating parental rights under this ground “requires more proof than that a parent has
not complied with every jot and tittle of the permanency plan.” In re M.J.B., 140 S.W.3d
at 656. The significance of the noncompliance “should be measured by both the degree
of noncompliance and the weight assigned to that requirement.” In re Valentine, 79
S.W.3d at 548. “Terms which are not reasonable and related are irrelevant, and
substantial noncompliance with such terms is irrelevant.” Id. at 548-49. Because
determining whether substantial noncompliance exists is a question of law, we review the
issue de novo with no presumption of correctness. Id. at 548.

       Although there was some testimony indicating that Mother was not in strict
compliance with all of the permanency plan requirements, we do not agree that there is
clear and convincing evidence of substantial noncompliance in this case. In relevant part,
we note that Ms. Roberts testified at trial that Mother had completed all of the tasks on
her permanency plan. Ms. Roberts was assigned as a Department case manager to the
case on February 23, 2015 and was the current case manager at the time of trial. Given
the Department‟s representation at the time of trial that Mother had accomplished the
permanency plan tasks required of her, we do not agree that this ground for termination
was established by the requisite standard of proof. We therefore reverse the trial court‟s
order to the extent that it terminates Mother‟s parental rights on this ground.

Best Interests

        Despite our conclusion that statutory grounds for termination exist, such proof
does not by itself justify the termination of a parent‟s parental rights. “Because not all
parental conduct is irredeemable, Tennessee‟s termination of parental rights statutes
recognize the possibility that terminating an unfit parent‟s parental rights is not always in
the child‟s best interest.” In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013)
(citation omitted), perm. app. denied (Tenn. Mar. 5, 2014). As such, “[w]hen at least one
ground for termination of parental rights has been established, the petitioner must then
                                           - 24 -
prove, by clear and convincing evidence, that termination of the parent‟s rights is in the
child‟s best interest.” Id. at 572 (citing White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.
App. 2004)).

       When conducting a best interests analysis, conflicts between the interests of the
parent and child are to be resolved in “favor of the rights and best interest of the child.”
Id. at 573 (citing Tenn. Code Ann. § 36-1-101(d)). Importantly, the best interests
analysis “must be viewed from the child‟s, rather than the parent‟s, perspective.” White
v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee,
the General Assembly has codified a list of nine non-exclusive factors that trial courts are
to consider when conducting a best interests inquiry in termination of parental rights
proceedings. These factors are as follows:

       (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;
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       (8) Whether the parent‟s or guardian‟s mental and/or emotional status
       would be detrimental to the child or prevent the parent or guardian from
       effectively providing safe and stable care and supervision for the child; or
       (9) Whether the parent or guardian has paid child support consistent with
       the child support guidelines promulgated by the department pursuant to §
       36-5-101.

Tenn. Code Ann. § 36-1-113(i). “Ascertaining a child‟s best interests does not call for a
rote examination” of these factors, and “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.” In re Audrey S., 182 S.W.3d at 878 (citing Moody, 171 S.W.3d
at 194).

        In this case, the trial court made several findings regarding the children‟s best
interest. In concluding that Mother had not made the necessary changes in her conduct or
circumstances, the trial court noted that Mother continued to reside with Father. The trial
court stated that this continued relationship was inappropriate due to unaddressed issues
of domestic violence. The trial court further found that Mother was unlikely to make any
type of adjustment in the near future. The trial court noted that the majority of Lukas‟
life had been spent in foster care and also found that Jakob and Mother had no
meaningful relationship. The court specifically observed that Mother had not visited with
Jakob for a number of months prior to trial due to his refusal to visit with her. The trial
court also found that the children were in a loving and stable home at the time of trial.

        The evidence does not preponderate against the trial court‟s factual findings on
these issues, and we agree that such facts and considerations provide clear and
convincing evidence that terminating Mother‟s parental rights is in the children‟s best
interest. The children need permanency in their lives. Lukas has been in foster care for
the majority of his life, and Jakob expressed fear that Mother would be unable to care for
him and Lukas if they were returned to her. Jakob was twelve years of age at the time he
testified, and he specifically stated that he did not want to return to Mother. The evidence
suggests that the children are happy in their current foster placement, and the foster
parents testified that they desire to adopt the children. Having carefully reviewed the
entirety of the record transmitted to us on appeal, we therefore affirm the trial court‟s
termination of Mother‟s parental rights.

                                     CONCLUSION

       We reverse the trial court‟s determination that Mother abandoned the children by
failing to support them prior to her incarceration and that Mother failed to substantially
comply with the requirements of the family permanency plans. However, because clear
                                           - 26 -
and convincing evidence supports the remaining grounds for termination, as well as the
trial court‟s determination that termination is in the children‟s best interest, we uphold the
termination of Mother‟s parental rights. Costs of this appeal are assessed against the
Appellant Mother, Jessica K. Because Mother is proceeding in forma pauperis in this
appeal, execution may issue for costs if necessary.


                                                     _________________________________
                                                     ARNOLD B. GOLDIN, JUDGE




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