                                                                                         05/21/2020


               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs April 2, 2020

                                  IN RE ARYANA S.

                   Appeal from the Circuit Court for Meigs County
                   No. 2018-AD-2     Michael S. Pemberton, Judge
                       ___________________________________

                            No. E2019-01267-COA-R3-PT
                       ___________________________________


Lacy B. and Quentin B. (collectively, “Petitioners”) filed a petition for adoption and to
terminate the parental rights of the mother, Morgan S. (“Mother”), to the minor child,
Aryana S. (“the Child”). The Trial Court found that Petitioners had proven by clear and
convincing evidence that the grounds of abandonment by failure to support and severe
child abuse existed for termination of Mother’s parental rights but that termination of her
rights was not in the Child’s best interest. Discerning no reversible error, we affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                     Affirmed as Modified; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and CARMA DENNIS MCGEE, JJ., joined.

Wencke West, Cleveland, Tennessee, for the appellants, Quentin B. and Lacy B.

J. Patrick Henry, Kingston, Tennessee, for the appellee, Morgan S.


                                       OPINION

                                      Background

       While Mother was pregnant with the Child, she tested positive for illegal drugs on
several occasions.     Specifically, Mother tested positive in May 2016 for
methamphetamine, amphetamines, and THC. In June 2016, Mother tested positive for
amphetamines and THC. Mother had a prenatal appointment with her doctor in June
2016, wherein they discussed concerns of Mother’s illegal drug use. Thereafter, Mother
tested positive for methamphetamine in September 2016. In January 2017, Mother tested
positive for THC.

       The Child was born in January 2017. Following her birth, the Child tested
positive on a meconium drug test for THC. While at the hospital, Mother used
methamphetamine and was breastfeeding the Child. Mother subsequently tested positive
on a drug screen for methamphetamine. The Child began experiencing withdrawal
symptoms, was diagnosed with Neonatal Abstinence Syndrome, and was transferred to
the Neonatal Intensive Care Unit at the University of Tennessee Medical Center.

        Upon the Child’s release from the hospital, the McMinn County Juvenile Court
(“Juvenile Court”) removed the Child from Mother’s custody and placed the Child in the
custody of Lacy B. (“Great Aunt”). Mother’s contact with the Child was to be
supervised. An adjudicatory hearing was held in March 2017, and Mother waived her
right to an adjudicatory hearing and stipulated to the facts in the petition as being true,
which included Mother’s failed drug tests during her pregnancy, her drug use at the
hospital while breastfeeding, and the Child’s withdrawal symptoms and diagnosis of
Neonatal Abstinence Syndrome. The Juvenile Court, therefore, found that the Child was
dependent and neglected. Based on those same facts, the Juvenile Court found that
Mother had severely abused the Child.

       In January 2017, DCS developed a non-custodial permanency plan with Mother,
which required Mother to complete mental health treatment for manic depressive bipolar
disorder and anxiety, complete an alcohol and drug assessment and follow all
recommendations, comply with random drug testing and pill counts, not associate with
any known drug users or dealers, obtain and maintain stable housing, obtain and maintain
a legal source of income, cooperate with DCS and other service providers, maintain
regular visitation with the Child, financially support the Child, comply with all court
orders, comply with the rules and regulations of DCS and the laws of Tennessee, and
comply with these requirements in an expeditious manner. In its March 2017
adjudicatory hearing order, the Juvenile Court found that the requirements for Mother in
the proposed permanency plan were reasonably related to the conditions necessitating
removal and were in the Child’s best interest. The Juvenile Court ordered that custody of
the Child remain with Great Aunt and closed the dependency and neglect case.

       A subsequent non-custodial permanency plan appears in the record developed in
June 2017. This plan required Mother to complete an alcohol and drug assessment and
follow recommendations; complete a mental health assessment and follow
recommendations; comply with random drug screens and hair follicle drug tests; maintain
appropriate housing, employment, and transportation; and continue with counseling and
aftercare.


                                           -2-
       Following the Juvenile Court action, Great Aunt married Quentin B. (“Great
Uncle”). Mother had filed two petitions in Juvenile Court seeking to regain custody of
the Child. One was denied after Mother was not present for the hearing. The second
petition was not adjudicated due to the filing of this termination action.1 In April 2018,
Petitioners filed their petition for adoption and termination of Mother’s parental rights to
the Child in the Meigs County Circuit Court (“Trial Court”). The termination petition
requested termination of Mother’s parental rights on the statutory grounds of persistent
conditions, severe child abuse, abandonment by failure to visit, abandonment by failure
to support, and failure to manifest an ability and willingness to assume custody of the
Child. They subsequently filed an amended petition in August 2018, which included the
same grounds as to Mother as in the original petition.

       The Trial Court conducted a trial in February 2019. In its June 2019 order, the
Trial Court determined that Petitioners had proven by clear and convincing evidence the
grounds of severe child abuse and abandonment by failure to financially support the
Child. However, the Trial Court found that termination of Mother’s parental rights was
not in the Child’s best interest. Concerning its best interest analysis, the Trial Court
found as follows:

                While the testimony as to the family background and “grounds” for
        termination was of some length, the testimony as to the best interest prong
        was not, although certainly a fair amount of the testimony overlaps into
        both considerations. Some of the testimony as to the jobs and incomes of
        the parties is certainly of import as to best interests analysis. By way of
        additional proof on the issue, the Petitioners basically took the position that
        continuing to reside in their home would ensure that the child has a stable
        environment. Both Petitioners testified that the child was doing well, is
        well adjusted and cared for and is being taught right from wrong. This court
        has no reason to doubt the Petitioners in this regard. The Petitioners
        testified that they are also worried about [Mother] relapsing into drug use.2



1
 The record is unclear whether the second custody petition was not adjudicated and remained pending or
whether the petition was dismissed for lack of jurisdiction due to the filing of the termination action. The
Juvenile Court’s order is not included in the record on appeal.
2
  The concern about a relapse for recovering addicts is a very real concern and one this court shares.
However, based upon the steps/actions [Mother] has taken since removal, this court is of the opinion that
[Mother] has addressed her addiction and has, for the time being, overcome the addiction. There exists no
guarantees that [Mother] will remain clean and maintain her sobriety. This court is not returning the child
to [Mother]. The only issue before this court is whether to terminate [Mother’s] parental rights. The
Order of the McMinn County Juvenile Court as to temporary custody remains in effect. To seek return of
her child to her custody, [Mother] must file the appropriate petition in that court.

                                                   -3-
               In addition to her other testimony set out herein, [Mother] countered
        by arguing that this court should preserve the family unit that is essential to
        physical and psychological well-being of children, in addition to the
        testimony set out above.

        ***

        This court will review each of [the best interest] factors individually.

                Subsection (i)(1) mandates this court to consider “[w]hether 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.” As should be apparent from this court’s
        findings of fact and conclusions thus far, this court finds that [Mother] has
        made such adjustment(s) to make her home safe and in the child’s best
        interests. She has admitted her past mistakes, most importantly to herself,
        has successfully completed drug rehabilitation, has obtained suitable
        employment, transportation and housing and went back to school and
        obtained her [C.N.A.] certification. Additionally, the proof was clear at
        trial that [Mother] was no longer associating with the type of people she
        was at the time of conception of this child as well as during and
        immediately after her birth.3

                The second statutory consideration is that of “[w]hether 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.” Tenn. Code Ann. § 36-1-
        113(i)(2). Other than the creation of the Non-Custodial Family Parenting
        Plan, based upon the proof introduced at trial, this court is unsure what
        efforts were made by “available social services agenc[ies]” to effect lasting
        adjustments. However, as noted above, [Mother] made the efforts herself.
        From the proof, the entire reason for removal of the child in the first place
        was that of [Mother’s] drug use and its sequelae. Per the only proof before
        the court on the issue, [Mother] testified that she has been “sober” since
        shortly after the birth of the child and has attended drug counseling and
        treatment. When determining whether a “lasting adjustment” is made, the
        best a court can do is to evaluate any change from the time of the

3
  The court would note that while it is not terminating the parental rights of the mother, it is also not
returning the child to its mother. The McMinn County Juvenile Court removed the child from the mother
on a temporary basis and retains jurisdiction for that purpose. Therefore, if the mother wishes to have the
child returned to her, she will have to take the proper steps in McMinn County Juvenile Court.

                                                   -4-
occurrence of the conduct to the present. Together with [Mother’s]
successful efforts as to achieving and maintaining her sobriety, [Mother]
has, as noted above, gone back to school and gotten her [C.N.A.]
certification, acquired suitable housing and transportation and has made
what appears to the court to have been a significant change in lots, if not
all, aspects of her life. When evaluating the change in her life from the date
of the child’s birth to the present, this court finds that [Mother] has made
the requisite “lasting adjustment,” at least to date.

        The court’s conclusion as to the third statutory consideration, that of
maintaining regular visitation or other conduct with the children, are the
same as its conclusions as to the alleged ground of termination of
abandonment-failure to visit. While recognizing that there may be some
“daylight” between a ground for termination, i.e., abandonment-failure to
visit, and best interest consideration of “maintaining regular visitation or
other conduct with the children,” the court here finds that the analysis set
out above as to termination of abandonment for failure to visit is applicable
here. Therefore, the court does not find that the Petitioners have carried
their burden as to this consideration.[4]

4
    Concerning the ground of abandonment by failure to visit, the Trial Court found as follows:

         As to the ground of abandonment-failure to visit, the proof was clear that
[Mother] exercises her twice weekly supervised visitation. The Petitioners argue that
such visitation is perfunctory in nature and that [Mother] sleeps while at the visits. It was
clear to the court that to the extent a relationship exists between [Mother] and [Great
Aunt], it is, at best a strained one. [Mother’s] visitation with her child was supervised by
her grandmother and not by the Petitioners, who were not present for any of the
visitation. While there exists no question that [Mother] exercised the visitation made
available to her, as noted above, some questions exist as to the quality of that visitation.
Of note, the grandmother did not testify, although the Petitioners introduced the hearsay
statements of the grandmother as to the “sleeping” issue without objection. However,
[Mother] denied the allegations as to the perfunctory nature of the visits and testified that
she exercised all of the visitation that she was permitted and that she was attentive during
the visitation. As to credibility, this court finds [Mother] to have been a credible witness
at trial. The basis for this finding is comprised of several observations by the court.
First, [Mother] did not deny or minimize her past drug use and past mistakes. Rather, she
was candid about her drug use and how long it had lasted. She did not evade questions,
even those questions for which the answers were not helpful to her position.
Additionally, the court observed her demeanor as she testified. She did not appear to the
court to be angry or disrespectful toward Petitioners’ counsel and appeared to be
genuinely sorry for her past actions and their impact on others. Therefore, this court
finds the testimony of [Mother] as to the visits with the child to be more probative than
that of the hearsay declarations of the grandmother and finds that the Petitioners have not
proven by clear and convincing evidence the ground of abandonment for failure to visit
as contemplated by Tenn. Code Ann. 36-1-113(g)(1).

                                            -5-
                Next, Tenn. Code Ann. § 36-1-113(i)(4) instructs the court to
        determine “[w]hether a meaningful relationship has otherwise been
        established between the parent or guardian and the child.” As should be
        obvious from the discussion above as to visitation, it is difficult for this
        court to state whether a meaningful relationship exists or not. [Mother] was
        obviously limited in her opportunities to visit and has therefore been
        limited in her ability to establish a meaningful relationship. [Mother]
        exercised what visitation was offered and the court has already found that
        the above “third factor” mitigates in favor of [Mother]. However, the proof
        at trial was not sufficient for this court to state whether such a relationship
        exists. However, this court will state that based upon the limited visitation
        permitted, the establishment of a meaningful relationship would have been
        difficult.5

               However, [Mother] is the natural parent of the child, whereas the
        Petitioners are the great aunt and uncle and legal custodians and [Mother]
        has complied with the non-custodial permanent parenting plan. This court
        has serious and grave concerns as to terminating the parental rights of a
        parent who has largely or totally complied with the terms of a non-custodial
        permanent parenting plan to which she, [Great Aunt] and DCS agreed to.
        Not only does termination under such circumstance strike this court as
        being fundamentally unfair to the parent, this court has serious and grave
        concerns as to how such a ruling would impact the efforts of DCS. If
        termination of parental rights can occur despite the parents’ compliance
        with an agreed to non-custodial permanent parenting plan, what good are
        such plans?      Further, termination under such circumstances would
        hamstring the efforts of DCS and render such agreements to be no more
        than a sham agreement which need not be honored or complied with. This
        court is unwilling to take such a position in light of sufficient facts
        demonstrating substantial compliance with the agreed to non-custodial
        permanent parenting plan.

               That having been said, this court has no question that the Petitioners
        have provided the children at issue herein with a loving and safe home.
        This court also has no question that the child has prospered in the
        Petitioners’ home and that the Petitioners, and their children, have become

5
  As noted above, this court can only decide whether the termination of parental rights is appropriate or
not appropriate based upon the proof at trial. The decision as to the return of the child from the
“temporary custody” of the Petitioners to [Mother] will have to be made by the McMinn County Juvenile
Court.

                                                  -6-
        extremely attached to each other. However, the court finds that the
        Petitioners have not carried their burden as to this statutory consideration.

                Next, courts are instructed to consider “[t]he effect a change of
        caretakers and physical environment is likely to have on the child’s
        emotional, psychological and medical condition.” Tenn. Code Ann. § 36-1-
        113(i)(5). No expert proof was introduced on this issue. Indeed, there was
        scant proof on the issue from the parties. What is clear to this court from
        the proof is that the child has been with the Petitioners from the time she
        left the hospital until the date of the Order.6 This court has no doubt that
        this child has bonded with its temporary custodians and has a much greater
        bond with them than she does her mother. This court would be less than
        candid if it did not acknowledge that it was concerned about a change being
        detrimental to her emotional and psychological wellbeing. Yet, this court
        also recognizes the importance of the natural parent and child relationship
        and that termination of the relationship could also be detrimental to the
        child’s long term emotional and psychological wellbeing. Therefore, while
        acknowledging that the proof on this issue preponderates in favor of the
        Petitioners, it does not rise to the level of clear and convincing proof.

               As previously discussed, based upon the proof presented at trial, the
        court finds that [Mother’s] prenatal, perinatal and post-natal drug use to
        meet the requirements of the sixth (6th) statutory factor, set out at Tenn.
        Code Ann. § 36-1-113(i)(6).

                As to the seventh (7th) factor, set out at Tenn. Code Ann. § 36-1-
        113(i)(7), the proof was that [Mother] has obtained suitable, healthy and
        safe housing. The guardian ad litem reported that he had visited both the
        homes of the Petitioners and [Mother] and found both to be suitable in
        terms of housing. Once again, the testimony of the mother and the report of
        the guardian ad litem established that [Mother’s] home was suitable, safe
        and healthy. The Petitioners submitted no proof to the contrary. The
        Petitioners did establish that a man, perhaps a one-time or on and off
        boyfriend of [Mother] had resided in the home for a period of time after the
        birth of the child. There was some indication from the proof that this
        “boyfriend” may have been involved in the use of illicit drugs. [Mother]
        testified that this “boyfriend” was in [Mother’s] home for a short period of
        time after she obtained the residence. However, she testified that he had


6
 As noted above, the child will continue to reside with the Petitioners until further Order of the McMinn
County Juvenile Court.

                                                  -7-
        not resided or visited there in quite some time. Therefore, the court finds
        that the proof on this factor mitigates in favor of [Mother].7

               As to the eighth factor, set out in Tenn. Code Ann. § 36-1-113(i)(8),
        no specific proof was introduced as to the mental and/or emotional status of
        any of the parties herein. With that said, the court did observe the parties
        during the course of the trial and, in that short time frame, observed nothing
        of concern in that regard.

               As to the ninth (9th) and final consideration set out in Tenn. Code
        Ann. § 36-1-113(i)(9), the court finds the proof to be clear and convincing
        that [Mother] has failed to pay child support for her child since her birth.

                As noted above, as to the actual terms of the Non-Custodial Family
        Parenting Plan, the court finds them to be of significance in respect to its
        “best interest” analysis and decision. The parties herein and DCS were
        signatories on the Plan. Here the proof in this case was clear to the court
        that [Mother] complied with most of the above plan of action, and exceeded
        some of the requirements.8 Since the removal of her child, [Mother]
        attended community college and obtained her [certified nursing assistant]
        certificate. As a result, at the time of trial she had found stable
        employment. This led to the acquisition of appropriate housing and
        transportation.9 She testified that . . . while she was no longer in
        alcohol/drug aftercare, she had successfully completed a program and that
        she remains sober. Additionally, [Mother] submitted evidence that she had
        completed a parenting course as well. All of the above has led to [Mother]
        meeting the “desired outcome” of the Non-Custodial Family Parenting
        Plan, namely, that she “complete all requirements, follow through with all
        recommendations, provide evidence that she will be able to provide a safe,
        stable, drug free environment.”




7
  Once again, the presence or lack thereof of others in [Mother’s] home may become an issue in any
subsequent proceedings in the McMinn County Juvenile Court.
8
  No documentary proof was entered as to the Alcohol and Drug Assessment and completion of the hair
follicle test. However, the court would note that [Mother] is employed in the health care field as a
[certified nursing assistant] and, per her testimony, was required to submit to pre-employment drug
testing.
9
  [Mother] testified that she had obtained suitable housing and transportation. This fact was confirmed by
the report of the guardian ad litem.

                                                  -8-
       This court is of the opinion that terminating the parental rights of a
parent who has met or exceeded the requirements placed upon her by a
Juvenile Court and DCS would not only be fundamentally unfair, but would
also set an extremely bad precedent. Such a precedent would not only
render the efforts of DCS to effectuate real and positive change on the part
of parents, it would render Agreed Family Parenting plans useless. If
courts could proceed to terminate parental rights where parents had
complied with such plans, then why bother with the plans in the first place.

        In this case, we have a mother who had been involved with drugs for
a long time and her involvement finally caught up with her, and her
newborn child. As a result, [Mother] put her child at risk and her parental
rights at risk. As stated above, if the story ended here, the court would
terminate [Mother’s] parental rights. However, [Mother] has taken the
right steps, at least to date and has become, albeit belatedly, a productive
member of society.

        The question becomes whether she should be stripped of her right to
be a parent based upon her previous “sins.” This court thinks not. There
are certainly previous “sins” that, in and of themselves, are enough to
justify termination of parental rights. In particular the court is referencing
certain sex and physical abuse crimes where the child is the victim. That is
not the case here. Like the Petitioners, this court is concerned with the
possibility of [Mother] relapsing into drug use and the effect that would
have on her as well as this child. But, parental rights are not terminated
based upon what might happen in the future. To terminate the parental
rights of a parent who has obviously erred and been punished, but then who
has done everything asked of them is not a position this court will take.
Doing so could very well remove the primary incentive for people such as
[Mother] to take the steps she has taken and become a productive member
of society.

       Therefore, this court is convinced that the reuniting of parent and
child is the appropriate choice here. The court is also convinced that the
Petitioners have provided the child with a safe and stable home and, had
[Mother] not taken the steps she did, would have certainly been suitable
adoptive parents. However, the court is constrained to point out that the
proof before it was that the placement of the child was a voluntary
placement, agreed to by [Mother] with the above conditions being required
to have been met prior to return of the child.



                                    -9-
               In sum, this court has no question that the Petitioners have provided
        the child at issue herein with a loving and safe home. This court also has
        no question that this child has prospered in the Petitioners’ home and that
        the Petitioners, and their children, have become extremely attached to the
        child. Given the epidemic of drug abuse in our country, and specifically
        the prevalence of babies being born addicted to drugs, people willing to
        step up and serve as custodians of these babies are of utmost importance in
        our society and should not just be thanked, they should be applauded.
        However, these people are temporary custodians of the child. While they
        may later seek to become the adoptive parents of the child, as the
        petitioners here have, they are not the child’s parent or parents during the
        period of time they are serving as custodians. While it is fairly common
        that the temporary custodians later become the legal parents of the child
        through adoption, such is usually the case when the natural parents fail to
        confront, address and remedy the issues that resulted in their children being
        removed from their custody and placed with the temporary custodians.
        Unfortunately, this court has seen enough of these cases to know that more
        often than not, the natural parents fail to take the necessary steps and the
        temporary custodians become the adoptive parents.

(Footnotes in original but renumbered) (other internal citations omitted). Petitioners
timely appealed to this Court.

                                              Discussion

       Although not stated exactly as such, Petitioners raises the following issue for our
review: whether the Trial Court erred by finding that Petitioners had not established by
clear and convincing evidence that termination of Mother’s parental rights was in the best
interest of the Child.

       With regard to the termination of parental rights, our Supreme Court has
instructed:

               A parent’s right to the care and custody of her child is among the
        oldest of the judicially recognized fundamental liberty interests protected
        by the Due Process Clauses of the federal and state constitutions.10 Troxel
        v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed.2d 49 (2000);
10
   U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”

                                                 - 10 -
Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed.2d 551
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption
of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk,
855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although
fundamental and constitutionally protected, are not absolute. In re Angela
E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
as parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed.2d 599 (1982); In
re Angela E., 303 S.W.3d at 250. “When the State initiates a parental rights
termination proceeding, it seeks not merely to infringe that fundamental
liberty interest, but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388.
[“]Few consequences of judicial action are so grave as the severance of
natural family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J.,
519 U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed.2d 473 (1996). The parental
rights at stake are [“]far more precious than any property right.” Santosky,
455 U.S. at 758-59 102 S. Ct. 1388. Termination of parental rights has the
legal effect of reducing the parent to the role of a complete stranger and of
[“]severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455
U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating
parental rights is [“]final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
[“]fundamentally fair procedures” in termination proceedings. Santosky,
455 U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed.2d 640
(1981) (discussing the due process right of parents to fundamentally fair
procedures).

       Among the constitutionally mandated [“]fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010). [“]Clear and convincing evidence enables the fact-finder
to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than

                                    - 11 -
          not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
          M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

                Tennessee statutes governing parental termination proceedings
          incorporate this constitutionally mandated standard of proof. Tennessee
          Code Annotated section 36-1[-]113(c) provides:

                  Termination of parental or guardianship rights must be based
                  upon:

              (1) A finding by the court by clear and convincing evidence that
                  the grounds for termination of parental or guardianship rights
                  have been established; and
              (2) That termination of the parent’s or guardian’s rights is in the
                  best interests of the child.

          This statute requires the State to establish by clear and convincing proof
          that at least one of the enumerated statutory grounds11 for termination exists
          and that termination is in the child’s best interests. In re Angela E., 303
          S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
          Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
          separate from and subsequent to the determination that there is clear and
          convincing evidence of grounds for termination.” In re Angela E., 303
          S.W.3d at 254. Although several factors relevant to the best interests
          analysis are statutorily enumerated,12 the list is illustrative, not exclusive.
          The parties are free to offer proof of other relevant factors. In re Audrey S.,
          182 S.W.3d at 878. The trial court must then determine whether the
          combined weight of the facts “amount[s] to clear and convincing evidence
          that termination is in the child’s best interest.” In re Kaliyah S., 455
          S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
          receives the constitutionally required “individualized determination that a
          parent is either unfit or will cause substantial harm to his or her child before
          the fundamental right to the care and custody of the child can be taken
          away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

                 Furthermore, other statutes impose certain requirements upon trial
          courts hearing termination petitions. A trial court must “ensure that the
          hearing on the petition takes place within six (6) months of the date that the
          petition is filed, unless the court determines an extension is in the best

11
     Tenn. Code Ann. § 36-1-113(g)(1)-(13).
12
     Tenn. Code Ann. § 36-1-113(i).

                                               - 12 -
interests of the child.” Tenn. Code Ann. § 36-1113[sic](k). A trial court
must “enter an order that makes specific findings of fact and conclusions of
law within thirty (30) days of the conclusion of the hearing.” Id. This
portion of the statute requires a trial court to make “findings of fact and
conclusions of law as to whether clear and convincing evidence establishes
the existence of each of the grounds asserted for terminating [parental]
rights.” In re Angela E., 303 S.W.3d at 255. “Should the trial court
conclude that clear and convincing evidence of ground(s) for termination
does exist, then the trial court must also make a written finding whether
clear and convincing evidence establishes that termination of [parental]
rights is in the [child’s] best interests.” Id. If the trial court’s best interests
analysis “is based on additional factual findings besides the ones made in
conjunction with the grounds for termination, the trial court must also
include these findings in the written order.” Id. Appellate courts “may not
conduct de novo review of the termination decision in the absence of such
findings.” Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 &
n.15 (Tenn. Ct. App. 2007)).

                      B. Standards of Appellate Review

        An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened
burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount
to clear and convincing evidence of the elements necessary to terminate
parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s
ruling that the evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela E., 303 S.W.3d at
246.



                                      - 13 -
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).

        Additionally, the Trial Court is the arbiter of witness credibility of those who
testify live before it. As our Supreme Court has instructed:

       When credibility and weight to be given testimony are involved,
       considerable deference must be afforded to the trial court when the trial
       judge had the opportunity to observe the witnesses’ demeanor and to hear
       in-court testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.
       1997) (quoting Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)).
       Because trial courts are able to observe the witnesses, assess their
       demeanor, and evaluate other indicators of credibility, an assessment of
       credibility will not be overturned on appeal absent clear and convincing
       evidence to the contrary. Wells v. Bd. of Regents, 9 S.W.3d 779, 783
       (Tenn. 1999).

Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011).

       Although the parties have not raised grounds as an issue on appeal, our Supreme
Court has instructed “that in 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.” In re Carrington H., 483 S.W.3d 507, 525-26
(footnote omitted).

      First, we will address the statutory ground of severe child abuse. As this Court has
previously stated:

       Tennessee Courts have determined that parents can be held to answer for
       prenatal conduct that causes severe abuse to later-born child. In In re
       M.J.J., No. M2004-02759-COA-R3-PT, 2005 WL 873305 (Tenn. Ct. App.
       Apr.14, 2005), a pregnant mother gave birth to a child who, like herself,
       tested positive at birth for methamphetamines and opiates. The child was
       born with tremors, but otherwise developed normally. Despite the fact that
       the child developed well, the court notes that “the healthy development of
       the child in this case does not diminish the severity of the harm to which
       the child was exposed.” Id. at *8. This Court affirmed the trial court’s
       finding that, “by taking this illegal controlled substance [of
       methamphetamines], Mother had exposed [the child] to a substantial risk of
       great bodily injury.” Id. The court concluded that “the record clearly

                                          - 14 -
      supports the trial court’s finding that Mother’s prenatal drug use constituted
      severe child abuse for purposes of parental rights termination.”

Cornelius v. State, Dep’t of Children’s Servs., 314 S.W.3d 902, 910 (Tenn. Ct. App.
2009).

       During the adjudicatory hearing in the Juvenile Court proceedings, Mother
stipulated to the facts in the dependency and neglect petition against her, which included
Mother’s failed drug tests during her pregnancy, her drug use at the hospital while
breastfeeding, the Child’s withdrawal symptoms following birth, and the Child’s
diagnosis of Neonatal Abstinence Syndrome. Mother acknowledged during the
termination trial that she had waived the adjudicatory hearing and had agreed during the
dependency and neglect action that the facts in the dependency and neglect petition were
true. Mother again acknowledged at the termination trial that the facts in that petition
were true. The dependency and neglect petition and the adjudicatory hearing order were
admitted as exhibits in the termination trial. Despite her stipulation to the facts in the
dependency and neglect petition, Mother denied using methamphetamine throughout her
entire pregnancy and stated that she stopped before her first doctor’s appointment but that
it was still in her system. Mother further testified at trial that she used illegal drugs
following the Child’s birth while breastfeeding the Child. The evidence does not
preponderate against any of the Trial Court’s findings relevant to this ground. We find
and hold, as did the Trial Court, that Petitioners have proven the ground of severe child
abuse by clear and convincing evidence.

       We next address the ground of abandonment by failure to visit. Petitioners filed
an original and an amended petition in this matter. Both petitions contained the same
grounds against Mother, including abandonment by failure to support the Child. As such,
the correct four-month period would be immediately prior to the original petition. See In
re Ava M., No. E2019-01675-COA-R3-PT, slip op. at 21-23 (Tenn. Ct. App. May 20,
2020); In re P.G., No. M2017-02291-COA-R3-PT, 2018 WL 3954327, at *7 (Tenn. Ct.
App. Aug. 17, 2018), no appl. perm. appeal filed. We note that the original petition was
filed in April 2018 and that the relevant statute in effect at that time concerning
abandonment stated as follows in pertinent part:

      For purposes of terminating the parental or guardian rights of a parent or
      parents or a guardian or guardians of a child to that child in order to make
      that child available for adoption, “abandonment” means that:

      (i) For a period of four (4) consecutive months immediately preceding the
      filing of a proceeding or pleading to terminate the parental rights of the
      parent or parents or the guardian or guardians of the child who is the
      subject of the petition for termination of parental rights or adoption, that the

                                           - 15 -
       parent or parents or the guardian or guardians either have willfully failed to
       visit or have willfully failed to support or have willfully failed to make
       reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A) (2017). The version of Tennessee Code Annotated §
36-1-102(1)(A)(i) in effect in April 2018 required that a parent’s failure to support be
willful. This Court has held that “‘[f]ailure to support a child is ‘willful’ when a person is
aware of his or her duty to support, has the capacity to provide the support, makes no
attempt to provide support, and has no justifiable excuse for not providing the support.’”
In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005).

       Concerning this statutory ground, the Trial Court found that the proof presented
was “clear that [Mother’s] efforts in this regard fall short of what is expected under the
law.” The Trial Court acknowledged that there was no order requiring Mother to pay
support and that there was no request for support from Petitioners and correctly
determined that the lack of such an order does not prevent the Court from finding this
ground. The absence of a court order requiring a parent to pay child support does not
negate that parent’s obligation to pay support. See In re M.A.C., No. M2007-01981-
COA-R3-PT, 2008 WL 2787763, at *5 (Tenn. Ct. App. July 17, 2008) (“Though Mother
was not under a court order setting support for her children, such an order is not
required.”). However, the Trial Court failed to make findings of fact identifying the
relevant four-month period. Even assuming the Trial Court’s findings encompassed the
four-month period, the Trial Court also failed to make findings of fact concerning
Mother’s willfulness in not paying support. Under the statute in effect when the petition
was filed, Petitioners had the burden of showing Mother’s willfulness. As such, we
reverse this ground for termination of Mother’s parental rights.

       Because the Trial Court did not find that clear and convincing evidence existed to
terminate Mother’s parental rights on the grounds of abandonment by failure to visit,
persistent conditions, and failure to manifest an ability and willingness to assume custody
of the Child and no party has raised those grounds as an issue, we are not required by In
re Carrington to address them. See In re Carrington H., 2016 WL 819593, at *13
(instructing this Court to “review the trial court’s findings as to each ground for
termination” and the best interest analysis).

       Next, we will address Petitioners’ argument of whether the Trial Court erred by
determining that termination of Mother’s parental rights was not in the Child’s best
interest. Tennessee Code Annotated § 36-1-113(i) provides a set of non-exclusive factors
courts are to consider in determining whether termination of parental rights is in a child’s
best interest:



                                            - 16 -
(i)   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




                                   - 17 -
      (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) (Supp. 2019).

      With regard to making a determination concerning a child’s best interest, our
Supreme Court has instructed:

              When conducting the best interests analysis, courts must consider
      nine statutory factors listed in Tennessee Code Annotated section 36-1-
      113(i). These statutory factors are illustrative, not exclusive, and any party
      to the termination proceeding is free to offer proof of any other factor
      relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
      523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
      Facts considered in the best interests analysis must be proven by “a
      preponderance of the evidence, not by clear and convincing evidence.” In
      re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
      861). “After making the underlying factual findings, the trial court should
      then consider the combined weight of those facts to determine whether they
      amount to clear and convincing evidence that termination is in the child’s
      best interest[s].” Id. When considering these statutory factors, courts must
      remember that “[t]he child’s best interests [are] viewed from the child’s,
      rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
      Indeed, “[a] focus on the perspective of the child is the common theme”
      evident in all of the statutory factors. Id. “[W]hen the best interests of the
      child and those of the adults are in conflict, such conflict shall always be
      resolved to favor the rights and the best interests of the child. . . .” Tenn.
      Code Ann. § 36-1-101(d) (2017).

             Ascertaining a child’s best interests involves more than a “rote
      examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
      And the best interests analysis consists of more than tallying the number of
      statutory factors weighing in favor of or against termination. White v.
      Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
      and circumstances of each unique case dictate how weighty and relevant
      each statutory factor is in the context of the case. See In re Audrey S., 182
      S.W.3d at 878. Simply put, the best interests analysis is and must remain a
      factually intensive undertaking, so as to ensure that every parent receives
      individualized consideration before fundamental parental rights are
      terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon
      the circumstances of a particular child and a particular parent, the

                                          - 18 -
       consideration of one factor may very well dictate the outcome of the
       analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
       S.W.3d at 194). But this does not mean that a court is relieved of the
       obligation of considering all the factors and all the proof. Even if the
       circumstances of a particular case ultimately result in the court ascribing
       more weight—even outcome determinative weight—to a particular
       statutory factor, the court must consider all of the statutory factors, as well
       as any other relevant proof any party offers.

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).

        The Trial Court considered the factors in Tennessee Code Annotated § 36-1-113(i)
in making its decision. Pursuant to factors (1) and (2), the Trial Court found that Mother
had made an adjustment to her circumstances that had made her home safe and in the
Child’s best interest. The Trial Court found that Mother had admitted her past mistakes,
completed drug treatment, obtained her C.N.A. certification, and obtained suitable
employment, transportation, and housing.13 The Trial Court further found that Mother
was no longer associating with inappropriate people as she had been when the Child was
removed from her custody. The Trial Court found that according to the proof presented
at trial, Mother had been sober since shortly after the Child’s birth. Petitioners did not
present evidence that demonstrated ongoing drug use by Mother after the Child was
removed from Mother. As such, the Trial Court found that Mother had, at the time of
trial, made a lasting adjustment in her circumstances.

        Concerning factor (3), the Trial Court found that this factor weighed in favor of
Mother and that Mother had exercised her visitation twice a week. Although Petitioners
argued that the visitation was perfunctory in nature and that Mother had slept at these
visits, the Trial Court found the hearsay evidence presented by Petitioners to be less
credible than Mother’s testimony concerning visitation. Pursuant to factor (4), the Trial
Court found that Mother had limited ability to visit the Child and that she had limited
ability to develop a relationship with the Child. Therefore, the Trial Court found that the
evidence presented “was not sufficient for this court to state whether such a relationship
exists” between Mother and the Child.

       As to factor (5), the Trial Court recognized that the Child had been in Great Aunt’s
custody since the Child left the hospital following her birth and that the Child had bonded
with Petitioners. The Trial Court acknowledged that the Child had “a much greater bond
with [Petitioners] than she does with [Mother].” Although acknowledging this bond and
the concern that such a change in caretakers would have a detrimental effect on the

13
  The Trial Court found that Mother had obtained her L.P.N. certification but the evidence before the
Court demonstrated that Mother actually obtained her C.N.A. certification.

                                               - 19 -
Child’s emotional and psychological wellbeing, the Trial Court recognized the
importance of the Child’s relationship with her biological parent and that termination of
that relationship also could be detrimental to the Child’s long-term emotional and
psychological wellbeing.

       Concerning factor (6), the Trial Court found that Petitioners had presented
evidence sufficient to prove that Mother’s “prenatal, perinatal and post-natal drug use”
had satisfied this factor as to whether Mother had “shown brutality, physical, sexual,
emotional or psychological abuse or neglect toward the child.” The Trial Court found as
to factor (7) that Mother had obtained a suitable, healthy, and safe home and that
Petitioners had not submitted proof to the contrary. Concerning factor (8), the Trial
Court found that no specific proof was presented concerning the parties’ mental or
emotional state. As relevant to factor (9), the Trial Court found that Mother had not
financially supported the Child since her birth.

       The evidence presented does not preponderate against the Trial Court’s findings of
fact concerning best interest. However, in its best interest analysis, the Trial Court
seemed to place great emphasis on its concern with terminating the parental rights of a
parent who has “largely or totally complied” with the requirements of a permanency plan.
The Trial Court stated as follows:

       Not only does termination under such circumstance strike this court as
       being fundamentally unfair to the parent, this court has serious and grave
       concerns as to how such a ruling would impact the efforts of DCS. If
       termination of parental rights can occur despite the parents’ compliance
       with an agreed to non-custodial permanent parenting plan, what good are
       such plans?     Further, termination under such circumstances would
       hamstring the efforts of DCS and render such agreements to be no more
       than a sham agreement which need not be honored or complied with. This
       court is unwilling to take such a position in light of sufficient facts
       demonstrating substantial compliance with the agreed to non-custodial
       permanent parenting plan.

The best interest analysis is to be conducted according to the child’s best interest, not the
parent’s. See In re Gabriella D., 531 S.W.3d at 681. While relevant, a parent’s
compliance with the requirements on a permanency plan is not the sole determinative
factor when making a decision in a termination of parental rights case. Instead, the
parent’s efforts are one of many factors to be considered by a trial court when making its
decision concerning best interest.

       Based on the evidence presented to the Trial Court and as found by the Trial
Court, Mother has made significant progress in turning her life around. We note the high

                                           - 20 -
standard of clear and convincing evidence applicable to termination of parental rights
cases. “‘Clear and convincing evidence’ is ‘evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’” In
re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Despite the Trial Court’s apparent
emphasis on Mother’s progress on the requirements of the permanency plan, we find and
hold, as did the Trial Court, that the entirety of the proof presented did not rise to the
level of clear and convincing evidence that termination of Mother’s rights was in the
Child’s best interest. We find no reversible error in the Trial Court’s decision not to
terminate Mother’s parental rights.




                                       Conclusion

      The judgment of the Trial Court is affirmed as modified, and this cause is
remanded to the Trial Court for collection of the costs assessed below. The costs on
appeal are assessed against the appellants, Lacy B. and Quentin B., and their surety, if
any.




                                         _________________________________
                                         D. MICHAEL SWINEY, CHIEF JUDGE




                                          - 21 -
