                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                          May 14, 2015 Session


                                          IN RE WESLEY P.

                    Appeal from the Chancery Court for Weakley County
                       No. 22470 W. Michael Maloan, Chancellor

                               ________________________________

                              No. W2014-02246-COA-R3-PT – Filed May 29, 2015
                              _________________________________


The trial court terminated the parental rights of both mother and father on the ground of
severe abuse. Because there is sufficient evidence to conclude that mother and father were
engaged in methamphetamine manufacture in their home, we affirm the finding of severe
abuse. However, because no clear and convincing evidence exists in the record that
termination is in the child‟s best interest, we reverse the termination of both mother‟s and
father‟s parental rights.


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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and KENNY ARMSTRONG, J., joined.

Carol S. Godwin, Martin, Tennessee, for the appellant, Stephanie C.P.

Beth Farmer-Belew, Paris, Tennessee, for the appellant, Kenneth P.1

Herbert H. Slatery, III, Attorney General and Reporter; and Jason I. Coleman, Assistant

       1
           Father filed a brief in this case, but did not participate at oral argument.
Attorney General, for the appellee, Tennessee Department of Children‟s Services.


                                                    OPINION

                                                   Background

        Appellants/Respondents Stephanie C.P. (“Mother”) and Kenneth P.2 (“Father,” and
together with Mother, “Parents”) are the parents of one minor child, born in 2006. At the time
of the child‟s birth, Parents were not married.3 In 2011, Petitioner/Respondent State of
Tennessee Department of Children‟s Services (“DCS”) removed the child and his half-sister4
from Parents because the children were residing in a structure where methamphetamine was
being manufactured. When the child first came into DCS custody, the child and Parents
resided in Weakley County. On October 4, 2011, the trial court entered an agreed order
finding that the child was dependent and neglected and severely abused due to the
manufacture of methamphetamine in the home. The children were placed with relatives, but
Parents maintained supervised visitation. On May 22, 2012, the juvenile court entered an
order restoring custody of both children to Parents. The order provided that it constituted a
final disposition of the matter.

       At some point in early 2013, DCS received a referral indicating that Parents were
again manufacturing methamphetamine in their home. On February 14, 2013, a DCS
caseworker, Kandi Sawyers, and an officer with the Carroll County Sherriff‟s Office, Joel
Pate, arrived at Parents‟ home in Carroll County to investigate the allegations. Officer Pate
found numerous items associated with the manufacture of methamphetamine. Ms. Sawyer
subsequently administered a urine drug test on Mother, who tested positive for
methamphetamines and amphetamines. Father was not present during the inspection of the
home or the drug screening. Mother was arrested and taken into custody on February 14,
2013. Because Father was out of town, as discussed in detail infra, the child was temporarily
placed in the custody of paternal grandmother. Father eventually moved in with paternal
grandmother and the child. The parties participated in a child and family team meeting on
February 19, 2013. At this meeting, Father submitted to a urine drug screen and tested

        2
         In cases involving termination of parental rights, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.

        3
            Parents married during the pendency of this case in the trial court.
        4
            The child‟s half-sister is not at issue in this appeal.
                                                          2
negative for all substances. Both Parents agreed to participate in services with DCS, and the
child was returned to Father, with Mother allowed only supervised visitation with the child.

        Mother and the child participated in a hair follicle drug test in March 2013; both tested
positive for methamphetamines. Mother subsequently entered into an inpatient drug
rehabilitation facility on April 15, 2013. There is some dispute as to whether Father was
required to participate in a hair follicle drug test; regardless, Father did not participate in such
a test at this time. DCS eventually removed the child from the home at midnight on May 31,
2013. Parents were permitted to have supervised and therapeutic visitation with the child.
Father was also not prohibited from attending the child‟s sporting events.

       Father was later arrested in June 2013 on charges of child abuse for allowing the child
to be exposed to methamphetamine. Father eventually pleaded no contest to the charge of
reckless endangerment. Father was sentenced to eleven months, twenty-nine days of
supervised probation. Mother pleaded guilty to attempted aggravated child neglect,
promotion of methamphetamine, and misdemeanor theft5 as a result of the February 14, 2013
home visit. Mother was sentenced to twelve months in jail and several years of supervised
probation. As part of Mother‟s sentence, however, she agreed to undergo one year of
inpatient drug rehabilitation in lieu of incarceration.

                                   Juvenile Court Proceedings

        On April 29, 2013, DCS filed a petition in the Weakley County Juvenile Court to
transfer legal custody of the child to DCS. The petition alleged that while it remained in the
child‟s best interest to live with his parents, Parents agreed to abide by a non-custodial
permanency plan, which had been created at the February 19, 2013 meeting. The plan
required that Mother complete an alcohol and drug assessment, that Mother submit to future
drug screenings, that the family participate in Wolfe Counseling Services and follow all
recommendations, that the child have a hair follicle drug screening, and that Parents would
ensure that the child is appropriately administered his medication. Finally, the petition asked
that Mother only be allowed supervised visitation with the child. Notably, the petition did not
request that Father be required to submit to random drug screens. Approximately one month
later, on May 31, 2013, DCS filed an amended petition alleging that Parents refused to
comply with the agreed-upon plan.6 Due to the alleged non-compliance, DCS asked that the
        5
         During the February 13, 2014 home visit, law enforcement also discovered evidence that Mother had
broken into storage units.
        6
         The amended petition alleged no facts surrounding Parents‟ alleged failure to follow DCS‟s
requirements.
                                                    3
child be removed from Parents‟ custody and that custody be awarded to DCS. On the same
day, May 31, 2013, the Weakley County Juvenile Court entered an ex parte order of
protection placing the child in DCS‟s custody. The juvenile court entered an order appointing
Mother and Father counsel on July 9, 2013. On July 23, 2013, the juvenile court entered an
order maintaining temporary custody of the child with DCS.

        On September 5, 2013, Parents entered an agreed order moving the child to a different
kinship foster home, the home of Father‟s brother and his wife. The order stated that “the
parties are working toward reunification of the minor child and his parents.” However, the
order was not signed by counsel for DCS, nor did the order contain a certificate of service
indicating that a copy of the order was sent to DCS. As such, on September 17, 2013, DCS
filed a petition to vacate the September 5, 2013 order, asserting that DCS was not consulted
prior to the entry of the agreed order. The juvenile court entered an order on November 19,
2013, maintaining the child in the kinship foster home and approving a June 30, 2013
permanency plan. According to the juvenile court‟s order, the plan‟s stated goal was “Exit
Custody to Live with Relatives.” The parties participated in further legal proceedings in the
Weakley County Juvenile Court regarding the placement of the child. The child was
subsequently removed from Father‟s brother‟s home and placed in a foster home.7
Eventually, on March 11, 2014, the juvenile court ratified a new permanency plan that
included the goal of adoption. Both Parents objected to the new plan. The trial court‟s order
notes that this plan was developed on December 9, 2014. From the record, it appears that this
was the most recent permanency plan ratified prior to the termination of Parents‟ parental
rights.

                                   Chancery Court Proceedings

       While the above proceedings were taking place in the Weakley County Juvenile Court,
DCS filed a petition to terminate Mother‟s and Father‟s rights to the child on July 19, 2013,
in the Chancery Court of Weakley County. The petition alleged a single ground for
termination: severe abuse. Parents, however, contend that they were not informed of DCS‟s
intention to terminate their rights until months later, approximately around the time that the
final permanency plan was ratified.

       Father filed a response to the petition on February 6, 2014, denying the material
allegations contained therein. On February 25, 2014, Mother filed her own response to the

        7
          According to the record, the child was removed because Father‟s brother and his wife had failed to
take required CPR classes.

                                                     4
petition. In addition to denying the material allegations regarding severe abuse and the child‟s
best interest, Mother denied that Weakley County was an appropriate venue. On February 28,
2014, Mother filed a motion to dismiss the petition on the basis of improper venue. No order
was ever entered on this motion. Instead, a trial on the termination petition occurred on
September 18, 2014.

       Officer Pate, a member of the Carroll County Drug Task Force trained in recognizing
the evidence of methamphetamine use and manufacture, testified about the investigation into
Parents‟ home. When Officer Pate and Ms. Sawyers arrived, a man answered the door. The
man was later revealed to be an unrelated friend of Parents. Both Ms. Sawyers and Officer
Pate testified that they could hear discussion prior to the door opening. When they asked for
Father, the man replied that he would get him. The man returned and indicated that Father
must not be home. As this time, Officer Pate noticed that a back door to the home was ajar.
Soon thereafter, Mother arrived home with the child and gave written consent for Officer
Pate to search the home. Officer Pate testified that he found substantial evidence that
methamphetamine manufacture was taking place at the home during his investigation,
including a glass pipe used for smoking methamphetamine, an empty bottle of sulfuric acid,
and fifteen empty twenty-ounce bottles, typically used in the “shake-and-bake” method of
methamphetamine manufacture. Officer Pate also testified that he found two
methamphetamine labs on the property, and various other items that were typically used to
manufacture or use methamphetamine.

        DCS caseworker Ms. Sawyers also testified. Ms. Sawyers testified that, after receiving
a referral that Parents were exposing their children to illegal drugs, she went to Parents‟
home with Officer Pate to investigate. After Mother arrived at the home, she agreed to
submit to a urine drug screening. According to Ms. Sawyers, Mother‟s drug screening
revealed that she had used methamphetamine. Ms. Sawyers testified that Mother admitted to
having used methamphetamine four days prior to the drug test. Ms. Sawyers also testified
that she later administered a hair follicle test to Mother and the child in March 2013, both of
whom tested positive for methamphetamine. Ms. Sawyers further testified that she informed
Father that he too was required to submit to a hair follicle test, but that Father avoided being
tested during her time on the case. Ms. Sawyers testified that, after the child was returned to
Father, Father refused to keep in contact with DCS or to update DCS as to the child‟s
whereabouts even though Mother and Father agreed to participate in non-custodial services
with DCS. Ms. Sawyers testified that she eventually was required to consult law enforcement
to find Father. According to Ms. Sawyers, Father‟s failure to keep in contact with DCS led to
the filing of the petition for custody in the Weakley County Juvenile Court and the petition to
terminate Parents‟ parental rights in the Weakley County Chancery Court. In addition, Ms.
Sawyers explained that Father‟s refusal to maintain contact with DCS was the catalyst for the
                                                  5
midnight removal of the child on May 31, 2013. Ms. Sawyers admitted, however, that the
child was always in school during this time.

       Mother testified that she first began using drugs, mostly marijuana, in 2004. After that
time, Mother was sober for six years before relapsing in 2011. Mother admitted that she used
methamphetamine in the days leading up to February 14, 2013. Mother contended, however,
that she never used methamphetamine in the parties‟ home or around the child. Further, while
Mother admitted that she and Father had engaged in the manufacture of methamphetamine in
2011,8 prior the child‟s first removal, Mother denied that the parties were engaged in
methamphetamine manufacture in February 2013. However, Mother stated that Father‟s prior
method of methamphetamine manufacture employed the “shake-and-bake” method, which
required the use of twenty-ounce bottles. Mother further testified that the child must have
been exposed to methamphetamine due to a couch that the child slept on nightly, at a friend‟s
house, or through his ADHD medication.

        Mother testified that although she had previously attended an in-patient drug
rehabilitation center in 2011, she left the center without the tools to allow her to avoid drug
use. Accordingly, Mother relapsed into drug abuse approximately eight months after entering
that program. In contrast, Mother testified that she would soon complete one-year court-
ordered stay in a drug rehabilitation center, where she learned the appropriate coping
mechanisms to remain drug-free. There was no dispute that Mother was not using any drugs
at the time of trial and that she had met all requirements with regard to her plea agreement
and drug rehabilitation program. At the time of trial, Mother was working at a Jackson,
Tennessee, area restaurant and also helping others with addiction problems at Pathways, a
drug rehabilitation center. Mother testified that, although she was not allowed to have
children where she currently lived, she would graduate from her current program in
November 2014. At that time, Mother had options that would allow her to parent her child
full-time.

        A licensed clinical social worker at Pathways, Tajauna Miller, testified that she works
closely with Mother at Pathways. Although Ms. Miller is not Mother‟s counselor, Ms. Miller
testified that she works alongside Mother with other drug users and that she is familiar with
Mother‟s efforts to remain drug-free. Ms. Miller testified that those who participate in a
program like the one followed by Mother have high chances of remaining drug-free. Both
Mother and Ms. Miller acknowledged, however, that there was no guarantee that Mother

        8
           Mother testified that Father was the party actually engaged in making methamphetamine in 2011, as
their source of income at that time. Mother testified, however, that because she was aware of Father‟s conduct,
she was equally culpable.
                                                      6
would remain drug-free.

       Mother further testified that she participated in all therapeutic visitations with the
child that were offered by DCS. In addition, when allowed by her drug rehabilitation
program, she attended any visitation or sporting events that she was able. Mother testified
that she and the child have a close bond and that the child often inquired as to whether he
could return home. All DCS workers and counselors that testified supported Mother‟s
testimony that she participated in all allowable visitation, that the visitation was healthy for
the child, that Mother appropriately parented the child during the visitation, and that the child
exhibited a close bond with Mother.

       Finally, Mother admitted that in addition the charges related to her drug use and
misdemeanor theft in February 2013, she also pleaded guilty to burglary and felony theft in
November 2013. According to documents in the record, this offense occurred on July 13,
2013. Mother admitted that she committed these crimes. Mother agreed to serve a total of
four years of supervised probation for these crimes. Father was later convicted of burglary
and theft charges arising from the same incident. Both Mother and Father maintained that
Father took no part in the crimes, but was merely convicted because Mother was driving
Father‟s car. Father‟s appeal of his conviction was pending at the time of trial. Mother
remains on probation for these charges. It is unclear from the record whether Father was
sentenced to any jail time as a result of these convictions.

        Father likewise denied that the parties were engaged in the manufacture of
methamphetamine in February 2013. Father admitted that, while he engaged in
manufacturing methamphetamine in 2011, he did not abuse the drug at that time or at any
time prior to the removal of the child. Instead, he testified that he only used marijuana at that
time. Father further testified that he was unaware that Mother was abusing drugs in February
2013. Father also indicated his belief that the child‟s positive methamphetamine test was the
result of sleeping on a couch that had previously been located in a known methamphetamine
lab.

        Father testified that, on February 14, 2013, he was in Kentucky performing a job.
Father testified that he was unable to return immediately upon learning of Mother‟s arrest
because he was required to complete the job. Father further testified that he saw no reason to
return to Carroll County and forego his pay, as the child was initially placed with paternal
grandmother.

       Father also denied that DCS ever required him to undergo a hair follicle drug
screening. According to Father, after he passed his initial urine drug screening, DCS either
                                             7
did not require a hair follicle test or refused to pay for one to be administered. Because DCS
would not pay for the hair follicle test, Father testified that he was under the impression that
one was not required. Father did submit to a hair follicle test approximately three weeks prior
to trial, which was positive for methamphetamine. Father explained that he regretted his
action, but that it was an isolated incident that would not be repeated.

        Father admitted at trial that he was currently on probation in Kentucky, where in 2010
he pleaded guilty to possession of a controlled substance, methamphetamine, for an incident
that occurred in 2006. Less than a year after Father was placed on probation, the child was
removed from the home due to allegations of methamphetamine manufacture. Father further
testified that he is also on probation in Tennessee with regard to the reckless endangerment
charge that occurred as a result of the child‟s positive hair follicle test in 2013. Father also
admitted that he was arrested in March 2014 for driving on a revoked license, which is the
most recent of three times Father was arrested for such offense. Finally, Father admitted that
he had been convicted of burglary and theft in May 2014 but, like Mother, denied that he had
any involvement in that crime.

        Father testified that he changed jobs to be home more for the child after Mother was
arrested. Father further testified that he maintains steady employment and that he financially
contributes to the child‟s well-being by providing sports equipment for the child and other
items. Father further testified that he participated in all required therapeutic visitation with
the child, that he attends all of the child‟s sporting events and extracurricular activities, and
that he and the child maintain a very close relationship. All counselors and DCS workers that
testified confirmed that, other than Father‟s recent failed drug screening, after the child was
removed from the home, Father complied with all requirements of DCS, attended all
scheduled visitation, and had a healthy, close, and loving relationship with the child.

       DCS entered the deposition testimony of Dr. Lisa Piercey as an evidentiary exhibit.
Dr. Piercey is Vice President of West Tennessee Healthcare and serves as the medical
director of the Madison County Child Advocacy Center. Dr. Piercey testified that the child‟s
positive drug screening could only occur if the child had inhaled or ingested something that
was contaminated with methamphetamine. Shestated that the positive drug screening could
not have been the result of any prescription medicine that the child was taking. Dr. Piercey
further testified that a research study showed that methamphetamine residue only remains in
a home for forty-eight to seventy-two hours after manufacturing or use ceases. Dr. Piercey
admitted, however, that there was no data as to whether that window of time could increase
due to repeated and substantial exposure to methamphetamine manufacture over a long
period of time. The doctor further testified to the significant and prolonged effects in the
child due to the exposure to methamphetamine. According to Dr. Piercey, a child exposed to
                                               8
methamphetamine could have short-term effects, such as an immediate negative physical
reaction to the exposure, mid-term effects, like withdrawal, or long-term effects, which often
will not materialize for years after exposure. Although Dr. Piercey observed no short-term or
mid-term negative effects on the child, she testified that it was too early to definitively
determine whether the child would suffer from long-term effects from the exposure. These
long-term effects can include neurological impairment, developmental delay, mental
retardation, cerebral palsy, behavioral abnormalities, and problems with attention span and
mood. Further, the doctor testified that the manufacture of methamphetamines has significant
safety risks, which can include fire, explosion, or acute inhalation injury.

        A DCS caseworker, Julia Haynes, testified that she repeatedly requested that Father
take a urine drug screen, but that he only acquiesced on her fourth attempt, three weeks prior
to trial. Ms. Haynes admitted, however, that DCS informed Father that they would be
unwilling to pay for any drug screens. Ms. Haynes testified that Father agreed to those terms,
but subsequently refused to make himself available for the drug screens. Ms. Haynes also
testified that the child is doing well in his foster home, and that the foster family is willing to
adopt the child. According to Ms. Haynes, the child has a strong bond with foster parents,
and he feels safe in their care.

        At the conclusion of the trial, the trial court orally ruled that the ground of severe
abuse had been proven as to both Parents. The trial court also ruled that it was in the child‟s
best interest that Father‟s parental rights be terminated. The trial court, however, took the
issue of whether the child‟s best interest supported termination of Mother‟s rights under
advisement. The parties were given the opportunity to file post-trial briefs on that issue. On
September 26, 2013, DCS filed a Memorandum in Support of a finding that termination of
Mother‟s parental rights would be in the child‟s best interest. Mother filed a memorandum in
opposition on September 29, 2013. Ultimately, the trial court entered an order terminating
both Parents‟ rights on October 22, 2014, based upon a finding of severe abuse. In its order,
the trial court determined that it was in the child‟s best interest that both Parents‟ rights be
terminated. Parents filed timely notices of appeal.

                                                  Analysis

                                                   Venue

      Mother first argues that the trial court erred in implicitly denying her motion to
dismiss the termination petition on the basis of improper venue. 9 For most civil cases, venue

       9
           Father does not raise venue as an issue on appeal, nor did he object to venue in the trial court.
                                                       9
in transitory actions is proper in the county in which the cause of action arose or in the county
where the defendant resides or is found. See Tenn. Code Ann. § 20-4-101(a). However, the
Tennessee General Assembly may enact different venue provisions for specific causes of
action, and it has exercised this power with regard to proceedings to terminate parental rights.
Venue in a termination preceding is, therefore, governed by Tennessee Code Annotated
Section 36-1-114, which states:

               The termination or adoption petition may be filed in the county:

               (1) Where the petitioners reside;
               (2) Where the child resides;
               (3) Where the child resided when:

               (A) The child became subject to the care and control of a public
               or private child-caring or child-placing agency; or
               (B) The child became subject to partial or complete
               guardianship or co-guardianship pursuant to a surrender
               proceeding as provided in this part; or
               (4) In which is located any licensed child-placing agency or
               institution operated under the laws of this state having custody
               or guardianship of the child or to which the child has been
               surrendered as provided in this part.

        In this case, it is undisputed that neither Parents nor the child resided in Weakley
County at the time of the filing of the termination petition. In addition, the DCS caseworker
that initially filed the petition worked in Carroll County at all times relevant to this case. DCS
argues, however, that venue was proper in Weakley County pursuant to subsection (3)(A), as
Weakley County was where the child resided when he and his half-sister were first subject to
DCS Custody in April 2011.

       A “child caring agency” is “any agency authorized by law to care for children outside
their own homes for twenty-four (24) hours per day.” There appears to be no dispute that
DCS qualifies as a child caring agency as it relates to this case. Here, the child resided in
Weakley County at the time he first became subject to the care and control of DCS. There is
nothing in the statute or in any caselaw provided to this Court by Mother that suggests that
Tennessee Code Annotated Section 36-1-114(3)(A) is limited to the child‟s residence
immediately preceding the removal of the child. Clearly, Tennessee Code Annotated Section
36-1-114(3)(A)‟s use of the past tense indicates that the residency of the child may be
determined using a prior residence of the child, so long as the child resided there when he or
                                             10
she became subject to the care or control of a child-caring agency. Indeed, this Court in
examining the predecessor to this venue statute, indicated that the General Assembly‟s
purpose in creating a venue statute particular to termination proceedings was to “tip[] the
venue scales in favor of [DCS] and against the biological parents.” In re B.N.S., No. M2003-
02524-COA-R3-PT, 2004 WL 892535, at *2 (Tenn. Ct. App. April 26, 2004). Under these
circumstances, we cannot conclude that venue was improperly established in Weakley
County.

                              Termination of Parental Rights

        We next consider whether the trial court erred in terminating Mother‟s and Father‟s
parental rights on the ground of severe abuse. Under both the United States and Tennessee
Constitutions, a parent has a fundamental right to the care, custody, and control of his or her
child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). Our termination statutes identify “those situations in which the state‟s
interest in the welfare of a child justifies interference with a parent‟s constitutional rights by
setting forth grounds on which termination proceedings can be brought.” In re Jacobe M.J.,
434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (citing In re W.B., Nos. M2004-00999-COA-
R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29,
2005)). A person seeking to terminate parental rights must prove both the existence of one of
the statutory grounds for termination and that termination is in the child‟s best interest. Tenn.
Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).

        Because of the fundamental nature of the parent‟s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination
and the best interest inquiry must be established by clear and convincing evidence. Tenn.
Code Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d at 546.

       In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review as set forth in Tenn. R. App.
P. 13(d). As to the trial court‟s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We must
then determine whether the facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements necessary to
terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). The clear and
                                                11
convincing evidence standard defies precise definition, Majors v. Smith, 776 S.W.2d 538,
540 (Tenn. Ct. App. 1989), but has been described as a “high evidentiary burden.” In re Alex
B.T., No. W2011-00511-COA-R3PT, 2011 WL 5549757, at *9 (Tenn. Ct. App. Nov. 15,
2011); see also In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005) (explaining the need
for the “heightened” standard of proof as due to the stakes of a termination proceeding being
“so profoundly high”); Gates v. Williams, No. E2010-01192-COA-R3-CV, 2011 WL
683935, at *3 (Tenn. Ct. App. Feb. 28, 2011) (describing the clear and convincing standard
as a “high burden”). It is more exacting than the “preponderance of the evidence” standard,
although it does not demand the certainty required by the “beyond a reasonable doubt”
standard. In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). Clear and convincing
evidence “establishes that the truth of the facts asserted is highly probable . . . and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
“produces in a fact-finder‟s mind a firm belief or conviction regarding the truth of the facts
sought to be established.” Id..

       Furthermore, when the resolution of an issue in a case depends upon the truthfulness
of witnesses, the trial judge who has had the opportunity to observe the witnesses and their
manner and demeanor while testifying is in a far better position than this Court to decide
those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be
given to any witness‟s testimony lies in the first instance with the trier of fact, and the
credibility accorded will be given great weight by the appellate court. In re Jacobe, 434
S.W.3d at 568; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). The trial
court‟s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. Morrison v.
Allen, 33 8 S. W.35 417, 426 (Tenn. 2011).

                                  Ground for Termination

       Here, DCS sought to terminate Mother‟s and Father‟s parental rights on a single
ground: severe abuse. On appeal, only Mother argues that the trial court erred in finding that
this ground had been met. Accordingly, we will only consider whether there is clear and
convincing evidence to establish the ground of severe abuse as it relates to Mother in this
case.

       Tennessee Code Annotated Section 36-1-113(g)(4) provides for the initiation of
parental termination proceedings, in relevant part, as follows:

                                               12
                 The parent or guardian has been found to have committed severe
                 child abuse as defined in § 37-1-102, under any prior order of a
                 court or is found by the court hearing the petition to terminate
                 parental rights ... to have committed severe child abuse against
                 the child who is the subject of the petition . . . .

In turn, Tennessee Code Annotated Section 37-1-102(b)(21) defines severe child abuse as:

                 (A)(i) The knowing exposure of a child to or the knowing
                 failure to protect a child from abuse or neglect that is likely to
                 cause serious bodily injury10 or death and the knowing use of
                 force on a child that is likely to cause serious bodily injury or
                 death;
                                               * * *
                  (B) Specific brutality, abuse or neglect towards a child that in
                 the opinion of qualified experts has caused or will reasonably be
                 expected to produce severe psychosis, severe neurotic disorder,
                 severe depression, severe developmental delay or intellectual
                 disability, or severe impairment of the child's ability to function
                 adequately in the child's environment, and the knowing failure
                 to protect a child from such conduct;

                                             * * *
                 (D) Knowingly allowing a child to be present within a structure
                 where the act of creating methamphetamine . . . is occurring; . . .
                 .

        The trial court found that both Parents were guilty of severe abuse, stating:

                 [T]he Court concludes and finds that grounds for Termination of
                 Parental Rights do exist against [Mother and Father] by clear
                 and convincing evidence, based on severe abuse of the minor as
                 defined in T.C.A. §37-1-102(b)(21), because the parents
                 stipulated to said severe abuse on September 13, 2011, and in

        10
            Serious bodily injury “includes, but is not limited to, second- or third-degree burns, a fracture of any
bone, a concussion, subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain contusion,
injuries to the skin that involve severe bruising or the likelihood of permanent or protracted disfigurement,
including those sustained by whipping children with objects.” Tenn. Code Ann. 39-15-402(d).
                                                        13
              2013 the minor child again ingested methamphetamine while in
              the care of the parents, while the mother was using
              methamphetamine and the child was in a structure where the
              process of manufacturing methamphetamine was occurring. Mr.
              and Mrs. Phillips are responsible for said severe abuse.

Here, it was undisputed that Mother and Father previously engaged in methamphetamine
production in their home when the child was originally removed in April 2011. In addition, it
is also undisputed that both Mother and Father agreed that this behavior constituted severe
abuse and that the juvenile court entered an order finding the child dependent and neglected
due to severe abuse on October 4, 2011. After that finding, however, the juvenile court,
apparently believing that the issues in Parents‟ home had been remedied, returned the child to
Parents. Nearly a year passed before there was another referral for DCS to investigate.

        Upon investigation in February 2013, DCS and law enforcement concluded that
Parents were again manufacturing methamphetamine in their home. The trial court concluded
that clear and convincing evidence confirmed DCS‟s conclusion. From the record, we agree.
Here, Officer Pate testified that he observed several hallmarks of methamphetamine
production in Parents‟ home in February 2013, including sulfuric acid, a multitude of twenty-
ounce bottles, and other items. Due to these items and Officer Pate‟s training and experience,
Officer Pate concluded that Parents were again manufacturing methamphetamine in their
home. In addition, Mother tested positive for methamphetamine at that time and admitted to
methamphetamine use. Shortly thereafter, the child also tested positive for
methamphetamine. According to Dr. Piercey, the child‟s positive drug test was the result of
recent exposure to methamphetamine.

       Both Mother and Father, however, consistently denied that they were engaged in
methamphetamine production in February 2011. Parents offered various explanations for the
child‟s methamphetamine exposure. In addition, Parents blamed the existence of the
implements used to manufacture methamphetamine on third-parties or denied that the items
were used in methamphetamine manufacture. The trial court, however, found that Parents
simply were not credible on this issue. As previously discussed, a trial court‟s credibility
findings will be given great weight on appeal. See In re Jacobe, 434 S.W.3d at 568. From
our review of the record, we conclude that Officer Pate was clearly qualified to opine as to
whether the items found in Parents‟ home was used in methamphetamine manufacture. Under
these circumstances, his testimony is entitled to great weight from this Court. In addition, Dr.
Piercey explained that the child‟s positive drug screening was likely the result of having
recently been exposed to the use or manufacture of methamphetamine Based on this
evidence, the trial court determined that Mother and Father were again manufacturing
                                              14
methamphetamine in their home in February 2013. Given the trial court‟s credibility findings,
and the great weight of the evidence presented, we conclude that the evidence does not
preponderate against this finding. Because severe child abuse includes “[k]nowingly
allowing a child to be present within a structure where the act of creating methamphetamine .
. . is occurring,” we conclude that clear and convincing evidence exists to establish the
ground of severe abuse. Tenn. Code Ann. § 37-1-102(b)(21)(D).

                                         Best Interest

        Before a court in this State can terminate a biological parent‟s parental rights, it must
also find that doing so is in the best interest of the child. See Tenn. Code Ann. § 36-1-
113(c)(2). When a parent has been found to be unfit upon establishment of a ground for
termination of parental rights, then “the interests of parent and child diverge.” In re Audrey
S., 182 S.W.3d at 877. The focus shifts to the child‟s best interest. Id. 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.” Id. However, when the interests of the parent and the child conflict,
courts are to resolve the conflict in favor of the rights and best interest of the child. Tenn.
Code Ann. § 36-1-101(d). Tennessee Code Annotated § 36-1-113i provides a list of factors
the trial court is to consider when determining if termination is in the child‟s best interest:

              (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
                                             15
               another child or adult in the family or household;
               (7) Whether the physical environment of the parent‟s or
               guardian‟s home is healthy and safe, whether there is criminal
               activity in the home, or whether there is such use of alcohol,
               controlled substances or controlled substance analogues as may
               render the parent or guardian consistently unable to care for the
               child in a safe and stable manner;
               (8) Whether the parent‟s or guardian‟s mental and/or emotional
               status would be detrimental to the child or prevent the parent or
               guardian from effectively providing safe and stable care and
               supervision for the child; or
               (9) Whether the parent or guardian has paid child support
               consistent with the child support guidelines promulgated by the
               department pursuant to § 36-5-101.

       The trial court, however, is not limited to these factors. Tenn. Code Ann. § 36-1-
113(i). The best interests of a child must be determined from the child‟s perspective and not
the parents. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004). As with the
ground for termination, the party who seeks termination bears the burden of proving by clear
and convincing evidence that termination of the parental rights of each parent is in the child‟s
best interest. Tenn. Code Ann. § 36-1-113(c).

        In this case, both Parents argue that the trial court erred in concluding that termination
of their parental rights was in the child‟s best interests. The trial court concluded that it was
in the child‟s best interest that both Parents‟ rights be severed based upon the factors outlined
in Tennessee Code Annotated Section 36-1-113(i). In its written order, the trial court
explained:

                      Some factors favor termination while other factors
               support denial of termination. The following factors support
               denial of termination. There is no dispute that [P]arents have a
               meaningful relationship with the child and they visit the child on
               a regular basis. There is no evidence that a change in caregivers
               and physical environment is likely to have an adverse effect on
               [the child]. There is no evidence regarding [P]arents‟ mental or
               emotional status. [Father] has provided for the child in the form
               of paying extracurricular fees and providing items for the
               extracurricular activities.
                      The factors that weigh in favor of termination are the
                                               16
               following and they heavily outweigh the factors in favor of
               denial of termination and they are the following. [Father] used
               methamphetamine as recently as August of 2014, just weeks
               prior to the hearing in this matter. [Mother] has made
               adjustments to her circumstances of conduct in that she has been
               drug free since the child was removed from the home in May of
               2013 but she has yet to maintain sobriety outside of a protective
               environment. There is concern that the testimony of both parents
               is that they are undecided whether to live together in light of the
               father‟s recent methamphetamine use.
                        It is unclear if the mother effected a lasting adjustment in
               her circumstances in light of the foregoing factors contributing
               to the child‟s removal and the child'‟ subsequent positive drug
               screens for methamphetamine. Both parents severely abused the
               child on two separate occasions and the uncertainty that the
               mother and father may continue to do so in the future is of great
               concern. [Mother] lives in a controlled environment due to her
               rehabilitation. [Father] is awaiting sentencing on burglary
               charges that are related to the charges the mother pled guilty to
               and he is on probation in Kentucky and Tennessee. Again, the
               Court is concerned about whether any future home will be safe
               and healthy in light of [P]arents‟ past performance. The record
               supports the conclusion [P]arents are unable to care for [the
               child] in a safe and stable manner. Neither parent has paid child
               support according to the child support guidelines.
                        When all the statutory factors are evaluated the Court
               finds by clear and convincing evidence that termination is in the
               best interest of the minor child.

The trial court clearly struggled with this question, referring to the issue as “troubling” in its
oral ruling. Moreover, with regard to Mother, the trial court appeared even less certain,
describing the issue as “even more challenging” and directing the parties to complete
additional briefing on this issue prior to rendering a final ruling. Although we will discuss
the relevant factors with regard to both Parents, we consider this issue individually as to each
Parent.

      Not unlike the trial court, this Court has also struggled with this issue. However,
because the applicable factors do not reveal a clear picture in favor of a finding that
termination is in the child‟s best interest, we must reach a different conclusion than that of
                                               17
the trial court. Several factors weigh in favor of a finding that neither Mother‟s nor Father‟s
rights should be terminated. First, we note that it is undisputed that Mother and Father enjoy
a close and meaningful relationship with the child. See Tenn. Code Ann. § 36-1-113(i)(4).
Testimony from counselors shows that Parents‟ relationship with the child is loving and
healthy. The record also shows that Parents have maintained regular visitation with the child.
See Tenn. Code Ann. § 36-1-113(i)(3). There is no dispute that Father attends regular
visitation with the child and also attends the child‟s sporting events. Father often visits with
the child approximately three times per week. The evidence also shows that Mother attended
all visitation with the child that she was able to attend, even while she was being treated at a
residential rehabilitation facility. There was also no testimony that visitation between Parents
and this child was ever disruptive or harmful for the child. Further, nothing in the record
indicates that either Mother‟s or Father‟s mental or emotional statuses prevents them from
effectively parenting the child. See Tenn. Code Ann. § 36-1-113(I)(6). Indeed, although we
do not discount the seriousness of the child‟s exposure to methamphetamine, we note that
there is no other evidence in the record to suggest that the child was not well-cared for prior
to his removal. Finally, unlike in many parental termination cases, it appears from the record
that the child would not be harmed by a change in caretakers or physical environment;
although testimony indicates that the child had done well in his foster parents‟ home, the
child knows Mother and Father as his parents and has frequently and consistently expressed
his desire to return to their care. See Tenn. Code Ann. § 36-1-113(i)(5).

        Some factors are less clear. First, there is no dispute that neither Mother nor Father
has paid child support in accordance with the child support guidelines while the child has
been removed from their care. See Tenn. Code Ann. § 36-1-113(i)(9). Parents testified,
however, that they provided the child with in-kind support during this time, including
sporting equipment and other items. The question of the physical environment of each
Parent‟s home was also uncertain. Although Parents were married at the time of trial, they
were living apart due to Mother‟s drug treatment. See Tenn. Code Ann. § 36-1-113(i)(7).
Mother was somewhat unable to testify as to the physical environment of any future home
she may have with the child, as she was currently living in a home that did not allow her
children to reside with her. See Tenn. Code Ann. § 36-1-113(i)(7). Mother testified that she
was unsure whether Parents would reside together when her treatment was completed.
Nothing in the record indicated that Father‟s current home was physically unsuitable for the
child; however, Father‟s drug use so close to the trial on the return of his son certainly does
not convince this Court that the home will be free of “criminal activity” or the “use of . . .
controlled substances . . . as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner,” especially given the fact that the child was
removed from the home due to the use and manufacture of methamphetamine. Id. In
addition, both Parents have a history of criminal conduct. In fact, both Parents pleaded guilty
                                               18
or were convicted of criminal acts that occurred after the removal of the child. Finally, the
trial court found, and this Court has affirmed, that the manufacture of methamphetamine in
the home constituted severe abuse of the child. Consequently, we must conclude that both
Parents have been found to have shown neglect toward the child. See Tenn. Code Ann. § 36-
1-113(i)(6). Accordingly, these factors militate in favor of a finding that termination of both
Parents‟ rights is in the child‟s best interests.

        Two factors remain: (1) “[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;” and (2) “[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)(1) & (2). Both of these factors focus on whether
Parents have remedied the conditions that led to the removal of the child so that the child can
be returned to their care. In this case, Mother‟s drug use and the manufacture of
methamphetamine in the home were the main catalysts for the removal of the child. The
evidence was undisputed that Mother has been sober since the removal of the child. Her
sobriety, however, has been reinforced by the fact that she has been residing in a controlled
environment. Indeed, it was undisputed that Mother had previously completed a thirty-day
course of drug rehabilitation, but returned to abusing methamphetamine in approximately
eight months. In addition, Mother admitted at trial that she could not resume full-time care of
the child until after her course of treatment was completed. The trial court found these facts
highly relevant as to the question of whether Mother had made a lasting adjustment in
circumstances and conduct so as to make it safe for the child to return to her care in the
future. Mother argues on appeal that the trial court erred in focusing on her inability to
predict the future, where there was considerable evidence that Mother‟s sobriety was a
lasting adjustment in circumstances, including the fact that Mother is far more involved in
her rehabilitation program than before, she has been sober longer, and her co-worker testified
that those who are as committed to a rehabilitation program as Mother is have good chances
of remaining sober. Accordingly, Mother argues that she has done everything possible to
redeem her previous poor behavior.

      Nearly the opposite is true of Father. While there was no direct evidence that Father
was abusing methamphetamine at the time of the child‟s removal,11 Father has admittedly
abused methamphetamine in the child‟s absence. Indeed, even with the permanent cessation

        11
          That is not to say that Father was not involved in the manufacture of methamphetamine in February
2013. The trial court found that Father was engaged in the manufacture of methamphetamine at this time and
Father has not raised this finding as an error on appeal.
                                                   19
of the relationship with his son on the horizon, Father chose to use illegal drugs mere weeks
before the trial on the termination petition. Because of Father‟s recent drug use, the trial court
concluded that he had also not made a lasting adjustment of circumstances and that it could
be unsafe to return the child to his care. Father argues on appeal, however, that the court
should not allow his “one time mistake” to outweigh the multiple factors that weigh in favor
of a finding that the child‟s best interests would not be served by terminating Father‟s
parental rights.

       In this case, there is no dispute that Parents have previously engaged in behavior that
put the child in substantial risk of harm. Indeed, the fact that the child had not yet suffered
physical effects from Parents‟ methamphetamine use and manufacture at the time of the
removal can only be attributed to sheer chance. As previously discussed, however, the burden
remains on DCS to prove by clear and convincing evidence that termination of both Parents‟
parental rights is in the child‟s best interest. Tenn. Code Ann. § 36-1-113(c). Here, all of the
evidence presented in the record indicates that Mother has made every effort to change her
circumstances to allow her to maintain a relationship with the child. We cannot conclude that
Mother‟s inability to guarantee that she will remain sober is clear and convincing evidence
sufficient to support a finding that the child‟s best interests would be better served by
terminating his relationship with Mother at this juncture.

       However, due to Mother‟s uncertain living arrangements and Father‟s recent drug use,
we agree with the trial court that it is uncertain whether the child could have been safely
reintegrated into Parents‟ homes at the time of trial. We note, however, that “[d]espite the
harm that results to a child from the parent being unavailable to care for him, in a given
instance, that harm may be outweighed by the benefit to the child of continuing the parental
relationship.” In re Adoption of J.K.W., No. E2006-00906-COA-R3-PT, 2007 WL 161048,
at *8 (Tenn. Ct. App. Jan. 23, 2007), perm. app. denied (Tenn. 2007). Furthermore, as
explained by this Court:

                      Ascertaining a child‟s best interests does not call for a
               rote examination of each of Tenn. Code Ann. § 36-1-113(i)‟s
               nine factors and then a determination of whether the sum of the
               factors tips in favor of or against the parent. The relevancy and
               weight to be given each factor depends on the unique facts of
               each case. Thus, depending upon the circumstances of a
               particular child and a particular parent, the consideration of one
               factor may very well dictate the outcome of the analysis.

In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
                                           20
        Here, the record indicates that both Parents have a significant relationship with the
child and that the child would likely be harmed by the severance of the relationship. This
Court has previously held that “the development of a „relationship,‟ without more, is an
insufficient basis to support a finding that it is not in the best interest of [the minor child] to
terminate his parents‟ parental rights” when the evidence established that the child could
never be returned to the care of his parents during his minority. State of Tennessee Dep’t of
Children’s Servs. v. D.G.B. and C.B., No. E2001-02426-COA-R3-JV, 2002 WL 31014838,
at *10 (Tenn. Ct. App. Sept. 10, 2002) (involving parents whose mental incompetence meant
that they would “never” have the ability to care for a child). In this case, however, there is no
suggestion in the record that the child will never be able to be returned to the care of either
parent. In fact, other than Parents‟ involvement with illegal drugs, nothing in the record
indicates that Parents ever failed to meet the child‟s needs with regard to shelter, food, or
medical care. Furthermore, Parents have made significant, though not perfect, efforts to
remedy the conditions that led to the child‟s removal and have endeavored to support and
visit the child consistently since he was removed from their care. Often, the best interest
element of a termination of parental rights case turns on a delicate balance between the
substantial need to provide the child stability and the interest of the child in maintaining a
relationship with his or her biological family. Considering the totality of the evidence both in
favor and against termination of Parents‟ parental rights, we must conclude that DCS failed
to “eliminate[] any serious or substantial doubt” in this Court that the termination of either
Parents‟ parental rights is in the child‟s best interests. In re M.J.B., 140 S.W.3d at 653.
Because a finding that termination is in the child‟s best interest is necessary to terminate a
parent‟s parental rights, we must reverse the termination of both Mother‟s and Father‟s
parental rights.

                                          Conclusion

        The judgment of the Chancery Court of Weakley County is affirmed as to the finding
that a ground exists to terminate the Appellants‟ parental rights, but reversed as to the finding
that termination is in the child‟s best interest. Consequently, the termination of the parental
rights of Stephanie C. P. and Kenneth P. to their child, Wesley P., is reversed. Costs of this
appeal are taxed to Appellee State of Tennessee Department of Children‟s Services, for
which execution may issue if necessary.


                                                     _________________________________
                                                     J. STEVEN STAFFORD, JUDGE

                                                21
