                                                                                                               01/29/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                               Assigned On Briefs January 3, 2018

                                 IN RE: KE’ANDRE C.,1 ET AL.

                 Direct Appeal from the Juvenile Court for Maury County
                         No. 2017-JV-4    George L. Lovell, Judge


                                   No. M2017-01361-COA-R3-PT


This is a termination of parental rights case concerning two minor children. Mother is the
biological parent of both children. Father is the biological parent of the younger child
only. The trial court found by clear and convincing evidence that multiple grounds
existed to terminate Mother’s parental rights to both children and Father’s parental rights
to his child. Mother and Father appealed. We reverse the trial court’s finding as to one
ground for termination asserted against Mother and one ground asserted against Father,
but we otherwise affirm the termination of Mother’s and Father’s parental rights.

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

BRANON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, J.J., joined.

Jennifer Lenore Fiola, Columbia, Tennessee, for the appellant, Kendra C.

Shawn David Snyder, Columbia, Tennessee, for the appellant, Anthony H.

Herbert H. Slatery III, Attorney General and Reporter, and Michael Collins Polovich,
Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.



1
 In termination of parental rights cases, it is the policy of this Court to redact names in order to protect the
identities of the children involved. In this case, in order to preserve both clarity and the anonymity of the
children, we will redact the names of individuals sharing the children’s surname and will refer to those
individuals by their given name and the first letter of their surname.
                                       OPINION

                            I. Facts & Procedural History

       The minor children at issue in this case are Makaila, born in November 2008, and
Ke’Andre, born in December 2015 (collectively the “Children”). Kendra C. (“Mother”)
is the biological mother of both Children. Makaila’s biological father is deceased.
Anthony H. (“Father”) is the biological father of Ke’Andre. Accordingly, the petition at
hand relates to the termination of Mother’s parental rights to both Children and to
Father’s parental rights to Ke’Andre only.

       Mother has an extensive history of drug abuse and a relationship with the
Department of Children’s Services (“DCS”) dating back nearly a decade. Her first
interaction with DCS was in December 2008, which was one month after she gave birth
to Makaila. At that time, Child Protective Services received information that Makaila
was exposed to environmental neglect and drugs. Over the next few years, DCS was
required to intervene on Makaila’s behalf on multiple occasions. DCS eventually filed
another dependency and neglect petition in 2014 when it learned that Mother, who was
incarcerated, left Makaila in the care of a relative (with a known history of drug abuse)
who had overdosed. In 2015, DCS filed another petition. Mother was pregnant with
Ke’Andre by this time and tested positive for benzodiazepines, marijuana, opiates, and
oxycodone. She failed additional drug tests in the months following Ke’Andre’s birth.
These positive drug tests also served as a basis for Mother to violate her probation, and
she was incarcerated again in April 2016 and remained incarcerated throughout the
termination proceedings. Both Children were immediately placed in DCS custody and
have been together in the same foster home since that time.

       Father, the biological parent of Ke’Andre, has his own lengthy track record with
the criminal justice system. Although Father testified that he and Mother were not in a
monogamous relationship when Ke’Andre was conceived, Father was present for the
birth of the child because he believed there was a 50/50 chance the child was his. During
the pendency of the termination proceedings, Father wrote a letter to a DCS
representative stating: “I was there when Ke’Andre was born and I want to continue to
be there.” Father’s paternity was eventually established by DNA testing on June 21,
2016. Throughout Mother’s pregnancy and Ke’Andre’s life, Father has been incarcerated
for violations of probation, tested positive for illegal drugs, and has established no
relationship whatsoever with the child.

       On April 20, 2016, DCS filed the current petition to terminate parental rights
against Mother and Father. As grounds for termination, DCS alleged that Mother’s
conduct constituted the following grounds for termination of her parental rights: (1)
abandonment by an incarcerated parent, (2) abandonment for failure to provide a suitable
                                           2
home, (3) substantial noncompliance with the permanency plan, and (4) failure to assume
legal and physical custody. Regarding Ke’Andre, DCS alleged that Father’s rights
should be terminated due to (1) abandonment by an incarcerated parent, (2) substantial
noncompliance with the permanency plan, and (3) failure to assume legal and physical
custody. The trial was held on May 24, 2017. The court heard testimony from Mother,
Father, the DCS representative, and the court appointed special advocate for the Children,
as well as arguments of counsel for all parties. Twenty-eight exhibits were entered into
evidence. At the conclusion of the trial, the court determined that DCS had proven all
grounds alleged against Mother and Father, and that terminating their parental rights was
in the best interest of the Children. A written order terminating parental rights was
subsequently entered by the court on June 20, 2017.

                                   II. Issues Presented

       Mother presents the following issues, as slightly reworded, for review:

       1.      Whether the trial court erred in finding that the Department of
       Children’s Services made a reasonable effort to provide services to Mother
       to substantially comply with the permanency plan?

       2.     Whether the trial court erred in determining that termination of
       Mother’s parental rights is in the best interest of the children?


       Father presents the following issues, as slightly reworded, for review:

       3.       Whether the trial court erred in determining that Father abandoned
       his child, pursuant to Tennessee Code Annotated section 36-1-
       102(1)(A)(iv), by engaging in conduct that exhibited a wanton disregard for
       the health, safety, and welfare of the child?

       4.      Whether the trial court erred in determining that termination of
       Father’s parental rights is in the best interest of the child?

                                 III. Standard of Review

        “In Tennessee, proceedings to terminate a parent’s parental rights are governed by
statute.” In re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code
Annotated section 36-1-113 sets forth the grounds and procedures for terminating the
parental rights of a biological parent. Id. at 546. Pursuant to the statute, parties who have
standing to seek termination of a biological parent’s parental rights must prove two
elements. Id. at 552. First, they must prove the existence of at least one of the statutory
                                             3
grounds for termination listed in Tennessee Code Annotated section 36-1-113. Id.
Second, the petitioner must prove that terminating parental rights is in the child’s best
interest, considering, among other things, the factors listed in Tennessee Code Annotated
section 36-1-113(i). Id. In light of the constitutional dimension of the rights at stake in a
termination proceeding, the persons seeking to terminate parental rights must prove both
of these elements by clear and convincing evidence. In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215
S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)).
“Clear and convincing evidence” has been defined as “evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing In re
Valentine, 79 S.W.3d at 546). It produces a firm belief or conviction in the fact-finder’s
mind regarding the truth of the facts sought to be established. In re Bernard T., 319
S.W.3d at 596.

        In sum, in order to terminate parental rights, a trial court must determine by clear
and convincing evidence not only the existence of at least one of the statutory grounds for
termination but also that termination is in the child’s best interest. In re Adoption of
Angela E., 402 S.W.3d at 639. Because of this heightened burden of proof in parental
termination cases, on appeal we must adapt our customary standard of review as set forth
in Tennessee Rule of Appellate Procedure 13(d). In re Audrey S., 182 S.W.3d 838, 861
(Tenn. Ct. App. 2005). First, we review each of the trial court’s specific factual findings
de novo in accordance with Rule 13(d), presuming the finding to be correct unless the
evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at 639.
Second, we must make our 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
Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016) (citing 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.” Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn.
2009)).
                                    IV.     Discussion

        The trial court relied on the following statutory grounds to terminate Mother’s
parental rights: (1) abandonment by an incarcerated parent, (2) abandonment for failure
to provide a suitable home, (3) substantial noncompliance with the permanency plan, (4)
failure to assume legal and physical custody. The trial court relied on the same statutory
grounds to terminate Father’s rights with the exception of failure to provide a suitable
home. Mother and Father do not attempt to defend against each ground for termination
                                             4
of their parental rights found by the trial court. Mother’s sole issue raised on appeal
related to grounds for termination concerns the efforts made by DCS to enable her to
comply with her permanency plan, and Father’s sole issue related to grounds is whether
he exhibited a wanton disregard for the welfare of his child. Although only one ground
must be proven by clear and convincing evidence in order to terminate parental rights,
due to the of the fundamental nature of the parental rights at stake in termination cases,
the Tennessee 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 at 525-26. We will, therefore, review each ground for termination relied
upon by the trial court.

                              A. Grounds for Termination

1. Abandonment by an Incarcerated Parent – Mother

       The trial court found that Mother engaged in conduct that constitutes abandonment
of the Children by an incarcerated parent pursuant to Tennessee Code Annotated sections
36-1-113(g)(1) and 36-1-102(1)(A)(iv).

      For purposes of terminating the parental or guardian rights of a parent or
      parents . . . “abandonment” means that:

      ....

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

Tenn. Code Ann. § 36-1-102(1)(A)(iv). The trial court found that Mother had been in jail
for part or all of the four (4) months preceding the filing of those proceedings based on
the following evidence introduced at trial:


                                            5
       (a) [Mother] had been convicted of False Report and Conspiracy to False
       Report by the Circuit Criminal Court for Maury County, Tennessee,

       (b) [Mother] had been sentenced to serve a term of incarceration of four
       years,

       (c) [Mother’s] sentence was suspended and she was placed on probation,

       (d) [Mother] violated the terms of her probation,

       (e) [Mother] was ordered to report to jail on July 26, 2016 to serve the
       remainder of her sentence, and

       (f) [Mother] has been continuously incarcerated since July 26, 2016.

       As noted above, the definition of abandonment for incarcerated parents provides
that abandonment occurs when the parent “engaged in conduct prior to incarceration that
exhibits a wanton disregard for the welfare of the child.” Tenn. Code Ann. § 36-1-
102(1)(A)(iv).     This definition “reflects the commonsense notion that parental
incarceration is a strong indicator that there may be problems in the home that threaten
the welfare of the child.” In re Audrey S., 182 S.W.3d at 866. Incarceration severely
compromises a parent’s ability to perform parental duties, and a parent’s decision to
engage in conduct that carries with it the risk of incarceration is itself indicative that the
parent may not be fit to care for the child. Id. However, incarceration is not an infallible
predictor of parental unfitness. Id. Rather, “incarceration serves only as a triggering
mechanism that allows the court to take a closer look at the child’s situation to determine
whether the parental behavior that resulted in incarceration is part of a broader pattern of
conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of
the child.” Id. The issue is whether the parent’s pre-incarceration conduct displayed a
wanton disregard for the welfare of the child. Id.

      To that end, the trial court further found that the following conduct amounted to
Mother’s “wanton disregard for the health, safety and welfare” of the Children by clear
and convincing evidence:

       (a) On June 5, 2014, Petitioner DCS filed a Petition for Temporary Legal
       Custody regarding the minor child, Makaila [ ]. At that time, [Mother] was
       incarcerated in the Maury County jail serving an eighty (80) day sentence.
       [Mother] was convicted of False Report and Conspiracy to File a False
       Report and sentenced to serve 4 years of incarceration, but placed on
       supervised visitation and released on June 26, 2014.

                                              6
(b) On June 29, 2015, Petitioner DCS filed a Petition for an Order
Controlling Conduct. The petition asserted grounds of Lack of Supervision
and [Mother’s] refusal to submit to a random drug screen and cooperate
with the Child Protective Services investigation. On July 31, 2015, an
Order was entered that required [Mother] to cooperate with the Child
Protective Services investigation, including submitting to a hair follicle
drug screen by July 17, 2015. On September 1, 2015, [Mother] stipulated
to a finding by clear and convincing evidence that the minor child, Makaila
[ ], was dependent and neglected due to “failed drug screens.”

(c) On September 2, 2016, [Mother] tested positive for the presence of
benzodiazepines, marijuana, opiates and oxycodone.

(d) On April 14, 2016, a Violation of Probation was filed by [Mother’s]
probation officer alleging that “On or about 3/24/2016, [Mother] appeared
before the administrative case review committee (ACRC). [Mother] was
referred to [the] ACRC in reference to multiple failed drug screens.
[Mother] was instructed to complete substance abuse treatment. [Mother]
failed to enter or complete treatment as instructed.” The probation officer
also noted that [Mother] has violated the terms of her probation because,
“On or about 2/1/[2016] [Mother] was drug screened and tested positive for
Benzodiazepines (no valid prescription) and marijuana. On or about
2/4/2016 positive results were confirmed by Alere Toxicology Services.
On or about 2/8/2016, [Mother] was drug screened and tested positive for
Benzodiazepines (no valid prescription) and marijuana. On or about
2/11/2016 positive results were confirmed by Alere Toxicology Services.
On or about 3/7/2016, [Mother] was drug screened and tested positive for
Benzodiazepines, marijuana (no valid prescription). On or about 3/10/2016
positive results were confirmed by Alere Toxicology Services.”

(e) As a result of violating her Probation, a Revocation Order was entered
on July 21, 2016 that compelled [Mother] to serve out the remainder of her
four-year sentence, beginning on Tuesday, July 26, 2016. [Mother]
remains incarcerated as of the time of the hearing on the Petition to
Terminate Parental Rights.

(f) On April 20, 2016, Petitioner DCS filed a Petition to Adjudicate
Dependency and Neglect as to both Children. At that time, [Mother] had
admitted to using and abusing cocaine, benzodiazepines and opiates while
pregnant with the minor child, Ke’Andre [ ]. Moreover, [Mother] had not
completed [a]lcohol and drug treatment and was incarcerated for violating

                                    7
       the terms of her probation. [Mother] was drug screened on April 20, 2016
       and she was positive for the presence of marijuana.

       (g) On June 8, 2016, [Mother] was drug screened and tested positive for
       the presence of cocaine, benzodiazepines, marijuana and benzoylecgonine.

       (h) On July 12, 2016, [Mother] was drug screened and tested positive for
       the presence of cocaine and marijuana.

The trial court also noted that the criteria and procedures for terminating parental rights
had been reviewed with Mother in June 2014, which made her aware of the consequences
of her actions.

       A parent’s “poor judgment and bad acts that affect the children constitute a
wanton disregard for the welfare of the children.” State, Dep’t of Children’s Servs. v.
Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009) (citing State v. Harville, No. E2008-
00475-COA-R3-PT, 2009 WL 961782, *7 (Tenn. Ct. App. Apr. 9, 2009)). For example,
“[w]e have repeatedly held that probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for
a child can, alone or in combination, constitute conduct that exhibits a wanton disregard
for the welfare of the child.” In re Audrey S., 182 S.W.3d 838, 867-68 (Tenn. Ct. App.
2005). These behaviors do not have to have occurred within a specific time period, and
a court may look beyond the four (4) months immediately preceding the parent’s
incarceration. Id. Mother’s history of poor judgment and bad acts affecting her Children
is lengthy and dates back to the month after Makaila’s birth. Unfortunately, Mother has
not been willing or able to stay drug-free and out of jail in a way that would allow her to
perform basic parenting duties for these Children. When Mother was out of jail, her
Children were at times being cared for by drug-using relatives, friends of friends, or in
the custody of DCS. We affirm the trial court’s finding that Mother’s conduct constitutes
abandonment of the Children by exhibiting a wanton disregard for their health, safety,
and welfare.

2. Abandonment by an Incarcerated Parent – Father

       The trial court held that Father abandoned Ke’Andre by exhibiting a wanton
disregard for his welfare in the following way:

       (a) On June 8, 2015, [Father] was placed on two years’ probation for
       Attempted Tampering with evidence and Simple Possession. On June 23,
       2015, [Father] pled guilty to one count of Promotion of Prostitution in
       Rutherford County Circuit Court and was sentenced to 3 years supervised
       probation and was required to register as a sex offender.
                                            8
       (b) On June 7, 2016, a Violation of Probation was filed against [Father]
       stating that he had failed two drug screens for marijuana on March 2, 2016
       and April 18, 2016 and was arrested on June 8, 2016 in Maury County,
       Tennessee.

       (c) On June 8, 2016, [Father] pled guilty to Attempted Tampering with
       Evidence, a Class D Felony, and Simple Possession of Marijuana, a class A
       Misdemeanor. He was sentenced to serve two years, which was suspended
       to probation and ran concurrently.

       (d) On August 9, 2016, a Violation of Probation [was] filed against
       [Father] in Rutherford County, Tennessee and he was arrested August 9,
       2016.

       (e) On September 16, 2016, [Father’s] probation was revoked and [Father]
       was ordered to serve 3 years in jail. [Father] entered a plea of guilty to one
       count of Promoting Prostitution in Rutherford County, Tennessee and he
       was required to register as a sex offender as part of his sentence.

        Father argues that the trial court erred in holding that the conduct above
constitutes wanton disregard of Ke’Andre because he was not actually legitimated as the
child’s Father until June 21, 2016, and, therefore, his actions before that date should not
be used against him. In support of his position, Father points to our decision in In re
Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244 (Tenn. Ct. App. June 9,
2015), in which case the father had no specific knowledge that his child’s mother was
even pregnant and only learned after the child’s birth that the child existed. In that case,
we held that a person “cannot disregard . . . someone whom he does not know exists.” Id.
However, the facts of In re Anthony R. are easily distinguishable from the case at bar
because Father was aware of Ke’Andre’s existence. Father was physically present for
the birth of Ke’Andre because he believed there was at least a fifty percent chance that
the child was his. And it was not until after Ke’Andre was born that Father engaged in
the conduct that resulted in the revocation of his probation. We reject Father’s attempt to
now claim ignorance and rely on the fact that he failed to take steps to legitimate his child
until required to do so by a court.

        The trial court specifically found that Father “knew on or before [Ke’Andre’s date
of birth] that he may be the father of the minor child.” We conclude that the evidence
does not preponderate against the trial court’s factual findings on this issue, and that
Father’s patterns of criminal behavior, illegal drug use, and incarceration, along with his
failure to take any voluntary actions to legitimate or otherwise support the child, amount

                                             9
to a wanton disregard for the welfare of Ke’Andre. This ground for termination has been
established by clear and convincing evidence.

3. Abandonment for Failure to Provide a Suitable Home – Mother re: Makaila

       The trial court held that DCS also carried its burden of proof with regard to
Mother’s abandonment of Makaila for failure to provide a suitable home pursuant to
Tennessee Code Annotated section 36-1-102(1)(A)(ii). However, DCS does not defend
this ground for termination on appeal, conceding that the “record does not illuminate
whether the children’s latest removal into state custody resulted in a final dependency-
and-neglect adjudication.” We agree. Accordingly, we reverse the trial court’s
determination that Mother abandoned Makaila by failing to provide a suitable home.

4. Substantial Noncompliance with Permanency Plans – Mother

       A court may terminate a parent’s parental rights when the parent is in “substantial
noncompliance . . . with the statement of responsibilities in a permanency plan.” Tenn.
Code Ann. § 36-1-113(g)(2). In terminating parental rights under this ground, the court
“must first find that the plan requirements are reasonable and related to conditions that
necessitate foster care placement.” In re Hannah H., No. E2013-01211-COA-R3-PT,
2014 WL 2587397, at *10 (Tenn. Ct. App. June 10, 2014). “The trial court must then
find that the noncompliance is substantial.” Id. (citation omitted). Although the
termination statute does not define what conduct constitutes substantial noncompliance,
the significance of the noncompliance “should be measured by both the degree of
noncompliance and the weight assigned to that requirement.” In re Valentine, 79 S.W.3d
at 548. Because determining whether substantial noncompliance exists is a question of
law, we review the issue de novo with no presumption of correctness. Id. at 548.

       Permanency plans were created in this case that each contained substantially the
same actions steps for Mother to complete. These requirements of Mother’s permanency
plans were reasonably related to remedying the reason that the Children were initially
removed from the home, which stemmed from mother’s illegal drug use and inability to
stay out of jail in order to properly care for her Children.

     The trial court made the following findings with respect to Mother’s
noncompliance with permanency plans:

      (a) The initial permanency plan listed a number of requirements that
      [Mother] needed to satisfy before the children could be safely returned to
      her. The plan gave her until November 1, 2016 to satisfy the requirements.


                                           10
(b) The plan required [Mother] to: (a) participate in an intake at Bradford
Health Services for intensive outpatient treatment and with Centerstone for
individual counsel[ing] and to follow recommendations of the service
providers and sign releases, (b) attend AA/NA meetings (a minimum of 4
meetings per week) and keep proof of attendance, (c) submit to and pass
random drug tests, including hair follicle, swab tests, and urine tests, (d)
maintain her current housing, (e) provide proof of job applications and
proof of income once employed, (f) develop a transportation plan, (g) avoid
associating with anyone involved in illegal drug use, (h) utilize caregivers
and live with individuals who can pass random drug screens and
background checks, (i) follow the rules of probation and not incur any new
charges, (j) attend prenatal appointments, [(k)] develop a healthy support
system, and [(l)] make a list of items needed for her upcoming delivery.

(c) [Mother] participated in the development of the initial permanency plan
by telephone and attended court for the plan’s ratification on June 13, 2016.
Although [Mother] left prior to the court hearing her case, the Department
explained the requirements and responsibilities to [Mother] and she
previously agreed to the provisions of the plan.

(d) The initial permanency plan was revised on September 2, 2016. The
revised plan reiterated the requirements of the initial plan in regard to
[Mother]. The revised plan gave [Mother] until November 11, 2016 to
complete the plan requirements.

(e) The Court finds by clear and convincing evidence that [Mother] failed
to substantially comply with the requirements of the permanency plans in
that: (1) [Mother] participated in the initial intake with Bradford [H]ealth
Services, but she failed to complete her alcohol and drug treatment or the
individual counseling through Centerstone. Moreover, [Mother] was
ordered by the Circuit Criminal Court for Maury County, Tennessee, to
attend drug treatment and her failure to do so was one of the factors that led
to the revocation of her probation and her current incarceration, (2)
[Mother] failed to provide proof of her attendance at AA/NA meetings, (3)
[Mother] routinely and repeatedly failed random drug screens. According
to criminal court records, [Mother] failed drug screens administered by her
probation officer, which was one of the factors that led to the revocation of
her probation and current incarceration, (4) [Mother] failed to maintain
housing in that she violated the terms of her probation and was ordered to
serve the remainder of her 3-year sentence in jail, (5) [Mother] failed to
provide proof that she applied for employment and [f]ailed to provide proof

                                     11
      of income, (6) [Mother] failed to develop a transportation plan or did not
      obtain a valid driver’s license, (7) [Mother] continued to associate with
      individuals involved in illegal drug use. Specifically, [Mother] continued
      to associate and reside with [Father], who repeatedly tested positive for the
      presence of marijuana when drug screened by his probation officer, (8)
      [Mother] continued to reside with individuals who were unable to pass drug
      screens or background checks. Specifically, [Mother] continued to
      associate and reside with [Father], a registered sex offender, who
      repeatedly failed random drug screens administered by his probation officer
      for the presence of marijuana, [(9)] [Mother] failed to attend grief and loss
      counseling at Centerstone, and [(10)] [Mother] did not develop a healthy
      support system. Instead, she continued to associate with individuals who
      used and abused drugs and engaged in criminal activity. In particular,
      [Mother] continued to associate and reside with [Father], who had been
      convicted of Promotion of Prostitution, Attempted Tampering with
      Evidence and Simple Possession of Marijuana.

       With the exception of the finding that Mother lived with Father, our review of the
record supports the trial court’s findings regarding Mother’s permanency plans and
failure to comply with them. On appeal, Mother asserts that the trial court erred in
finding that DCS made reasonable efforts to assist her in complying with the
requirements of her permanency plan. With regard to the efforts made by DCS to assist
Mother, the trial court found that the following services provided or referred to Mother
by DCS constituted sufficient “reasonable efforts”:

      (a) random drug screens, (b) therapeutic visitation services with parenting
      assistance, (c) alcohol and drug treatment counseling, (d) case management
      services, (e) individual counseling, (f) grief and loss counseling, (g)
      []transportation to and from services and visits with the children, (h) daily
      care and support for the children, (i) medical and dental care for the
      children, (j) development of permanency plans for reunification of the
      children with the parents, and (k) ongoing advice and recommendations to
      [Mother and Father] regarding how to resolve barriers to reunification and
      access to services.

       In addition to the foregoing, DCS attempted on more than one occasion to verify
Mother’s housing situation, but Mother was either not home or failed to show up for a
scheduled visit. Regarding Mother’s treatment programs, DCS provided Mother with the
contact information for one treatment program and spoke directly with the other facility
to set up Mother’s referral. DCS also provided Mother with a list of employers who
hired felons. We find no merit in Mother’s assertion that the state failed to make

                                           12
reasonable efforts to assist her in complying with the requirements of her permanency
plan. The record supports the trial court’s findings on this ground, and we conclude that
those findings constitute Mother’s substantial noncompliance with permanency plans
pursuant to Tennessee Code Annotated section 36-1-113(g)(2).

5.    Substantial Noncompliance with Permanency Plan – Father

      The trial court also held that Father was not in substantial compliance with his
respective permanency plans based on the following findings:

      (f) The initial permanency plan required [Father] to complete the following
      requirements: (a) participate in DNA testing regarding the paternity of the
      minor child, Ke’Andre [ ], and (b) once legitimated, participate in
      permanency planning.

      (g) [Father] was legitimated as the father of the minor child, Ke’Andre [ ],
      on or about June 21, 2016 and the initial permanency plan was revised on
      September 2, 2016 to add the following requirements to be completed by
      [Father]: (1) obtain a legal source of income and provide proof to the
      Department, (2) pay child support and provide basic supplies for the child,
      (3) maintain employment for four months to show stability, (4) not incur
      any new charges and follow the rules of probation, (5) obtain stable
      housing, (6) submit to and pass random drug screens, (7) submit a list of
      needed household items to the Department, if needed, (8) provide a copy of
      the lease or rental agreement to the Department along with proof of paid
      utilities and maintain the same for four months, and (9) maintain a home
      free from illegal activities.

      (h) At the time the plan was ratified on September 12, 2016, [Father] was
      unable to be present because he had been arrested on August 9, 2016 for
      Violation of Probation in Rutherford County, Tennessee. On September
      16, 2016, [Father’s] probation was revoked and he was ordered to serve the
      remainder of a three year sentence in jail.

      ....

      (k) The Court finds by clear and convincing evidence that [Father] failed to
      substantially comply with the requirements of the permanency plan in that:
      (1) [Father] did not maintain employment due to incarceration, (2) [Father]
      failed to follow the rules of probation resulting in his current incarceration,
      (3) [Father] failed to maintain suitable housing due to his current

                                            13
       incarceration, and (4) [Father] failed to maintain a home free from illegal
       activities.

       While Father does not dispute this ground for termination on appeal, we are not
convinced that the facts support its application to Father’s case. The portions of Father’s
permanency plan with which he did not comply were created for him after his
incarceration, at which time it was all but impossible for Father to comply. The trial
court even noted that Father’s inability to maintain suitable housing and maintain
employment were because he was already incarcerated at the time these requirements
were put into place.

       DCS defends the trial court’s finding that Father is guilty of substantial
noncompliance with his permanency plan based on case law that stands for the
proposition that incarceration does not relieve a parent of their responsibilities to their
children. See In re Aiden R., No. E2015-01799-COA-R3-PT, 2016 WL 3564313, at *9
(Tenn. Ct. App. June 23, 2016) (no perm. app. filed). We do not dispute this general
statement of the law. However, in the case at bar, incarceration was a complete barrier to
Father’s success under his permanency plan. This Court has addressed a similar situation
and explained the predicament as follows:

       We next address whether the Juvenile Court erred in finding that Father
       failed to substantially fulfill the requirements of his permanency plan.
       Again, Father’s context must be understood. An incarcerated parent is not
       absolved of his or her parental responsibilities while in jail or prison.
       However, incarceration is a relevant consideration when judging that
       parent’s ability to fulfill his or her responsibilities to the child. Among
       other things, Father completed an alcohol and drug assessment and was in
       the process of resolving his legal charges. In our judgment, Father did
       much of what he reasonably could be expected to do under his conditions,
       and the evidence is not clear and convincing that he failed to comply with
       his permanency plan in a substantial way.

       We are aware of this Court’s opinion of In Re: Kason C., et al., No.
       M2013-02624-COA-R3-PT, 2014 WL 2768003 (Tenn. Ct. App. June 17,
       2014), no perm. app.[ ] f iled, in which this Court found that there was clear
       and convincing evidence to support the Juvenile Court’s finding that the
       father had failed to substantially comply with the reasonable parenting
       responsibilities set out in the parenting plans, at least in part, because of
       the father’s incarceration. This Court in In Re: Kason C. correctly noted
       that a parent’s substantial noncompliance with a permanency plan is not
       required to be willful to justify termination of that parent’s parental rights

                                            14
       on that ground. We, however, believe that caution by the courts is
       appropriate here to avoid making incarceration solely on its own into a de
       facto ground for termination. Clearly in most situations an incarcerated
       parent is going to be unable to complete at least some significant portion
       of the permanency plan. Our General Assembly, however, has not deemed
       it appropriate to make incarceration solely by itself a ground for
       termination. This being so, we are concerned that a blanket holding that a
       parent who is unable to complete a permanency plan solely because of his
       incarceration may, in effect, have his parental rights terminated not because
       of failure to substantially comply with the permanency plan but, in reality,
       because of his incarceration. We vacate this ground.

In re Jonathan F., No. E2014-01181-COA-R3-PT, 2015 WL 739638, at *13 (Tenn. Ct.
App. Feb. 20, 2015).

        Much like the case of In re Jonathan F., we believe that terminating Father’s
parental rights in this case on the ground of substantial noncompliance with his
permanency plan would be tantamount to terminating his parental rights solely based on
his incarceration. Although Father’s incarceration is a serious variable to be considered
in the context of several of the grounds alleged for the termination of his parental rights,
it cannot stand alone as a de facto bar to Father’s right to parent. We therefore reverse
the trial court’s finding of Father’s substantial noncompliance with a permanency plan as
a ground for termination of his parental rights to Ke’Andre.

6.     Failure to Assume Legal and Physical Custody – Mother and Father

      Tennessee Code Annotated section 36-1-113(g)(14) provides that parental rights
may be terminated when:

       A legal parent or guardian has failed to manifest, by act or omission, an
       ability and willingness to personally assume legal and physical custody or
       financial responsibility of the child, and placing the child in the person’s
       legal and physical custody would pose a risk of substantial harm to the
       physical or psychological welfare of the child.

Tenn. Code Ann. § 36-1-113(g)(14). The trial court held that Mother and Father failed to
manifest an ability and willingness to assume legal and physical custody of the Children
based on the following findings:

       21. Based upon the criminal court documents pertaining to [Mother and
       Father], the testimony of [Mother and Father] and FSW Staggs, the Court
       finds by clear and convincing evidence that [Mother and Father] are both
                                            15
      currently incarcerated and serving the remainder of multiple-year sentences
      for previous convictions.

      22. As repeatedly outlined here, [Mother and Father] both have a history of
      drug use and abuse and have not participated in any drug treatment or
      counseling. The criminal court records pertaining to [Mother and Father]
      clearly show that they were positive for the pretense of illegal drugs when
      drug screened by their respective probation officers. Moreover, FSW
      Staggs and the Dependency and Neglect records involving these parties
      indicate that [Mother] routinely and regularly tested positive for the
      presence of various illegal substances when she was drug screened by DCS
      Representatives. FSW Staggs testified that both [Mother and Father] were
      offered drug and alcohol treatment and counseling, but that both [ ] failed to
      avail themselves of those services. Moreover, the criminal court records
      indicate that [Mother] was ordered by the Circuit Criminal Court for Maury
      County, Tennessee, to attend in-patient drug treatment, but [Mother]
      [f]ailed to complete the treatment.

      23. Based upon the court records of the Dependency and Neglect matters
      involving these parties and the testimony of FSW Staggs[,] Petitioner DCS
      has been involved with [Mother] on numerous occasions from 2014 to
      present and [Mother] was offered or provided with therapy, treatment and
      counseling to address her drug use and abuse issues, yet [Mother] failed to
      complete or participate in those services.

      24. Based upon the testimony of FSW Staggs, [Father] was offered or
      provided with therapy, treatment and counseling services to address his
      drug use and abuse issues after he was determined by DNA testing to be the
      biological father of the child, [K]e’Andre [ ]. However, [Father] failed to
      participate in these services because he was charged with Violation of
      Probation and ordered to serve a multiple year term of incarceration.

      25. As a result of the foregoing, the Court finds by clear and convincing
      evidence that [Mother and Father] have failed to manifest an ability and
      willingness to personally assume legal and physical custody or financial
      responsibility of the children and placing the children in the legal and
      physical custody of [Mother and Father] would pose a risk of substantial
      harm to the physical or psychological welfare of the children.

       Neither Mother nor Father challenge this ground on appeal. At the time of trial,
there was no dispute that Mother and Father were both incarcerated and lacked the ability
to assume custody of the Children. Furthermore, each parent knowingly engaged in
                                           16
repeated criminal conduct that necessitated their re-incarceration and would put the
Children at physical and/or psychological risk if placed in their custody. The record does
not preponderate against the trial court’s findings on this ground, and we conclude that
DCS has proven by clear and convincing evidence that Mother and Father failed to
manifest an ability and willingness to assume legal and physical custody or financial
responsibility of the Children.

                              B. Best Interest of the Children

        Because the trial court properly found the existence of multiple statutory grounds
for termination of Mother’s and Father’s parental rights to the Children, we now consider
the chancery court’s finding that terminating Father’s parental rights is in the best interest
of the Child. Tennessee Code Annotated section 36-1-113(i) sets forth a list of factors
that are relevant in a best-interest analysis. However, this list of factors is not exhaustive,
and a court need not find the existence of every factor for termination. In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). This Court has also noted that the best interests
“of a child must be determined from the child’s perspective and not the parents.” In re
Arteria H., 326 S.W.3d 167, 182 (Tenn. Ct. App. 2010) (citing White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

        Mother and Father both argue that termination of their parental rights is not in the
best interest of the Children. In finding that termination was in Children’s best interest,
the trial court stated as follows:

       Based upon the criminal court records pertaining to both [Mother and
       Father], the court records pertaining to the underlying dependency and
       neglect matters, the testimony of FSW Staggs [DCS representative], and the
       children’s foster care mother, the Court finds by clear and convincing
       evidence that it is in the best interest of the children for termination to be
       granted because:

       (a) [Mother and Father] have not made changes to their conduct or
       circumstances that would make it safe for the children to go home.
       [Mother] has long-standing issues with illegal and prescription drug use and
       abuse and has failed to complete drug treatment and counseling. As result,
       [Mother] has been found guilty of violating the terms of her probation and
       she is serving a 4-year term of incarceration in jail. The same is true for
       [Father]. He repeatedly failed drug screens for the presence of marijuana in
       his system and attempted to tamper with his GPS device, which resulted in
       the revocation of his probation and he is serving the remainder of a three
       [year] term of incarceration.

                                              17
(b) [Mother and Father] have not made lasting changes in their lifestyle or
conduct after reasonable efforts by the state to help, so that lasting change
does not appear possible. [Mother] has been offered or referred drug
treatment and counseling on several different occasions, which she
repeatedly failed to complete. [Mother] failed numerous drug screens for
the presence of a variety of different drugs in her system, including, but not
limited to, marijuana, cocaine, benzodiazepines, opiates and oxycodone.

Since being legitimated, the minor child, Ke’Andre [ ], is at risk of harm
from [Father] due [to] his criminal activities and drug use and abuse.
[Father] has been convicted of criminal offenses, including, [but] not
limited to, Promotion of Prostitution, Tampering with Evidence, and
Simple Possession of Marijuana. He violated the terms of his probation for,
[among] other reasons, failing several drug screens for the presence of
marijuana in his system.

(c) There is no meaningful relationship between Ke’Andre [ ] and [Father],
who has been incarcerated for the majority of the time the child has been in
DCS custody.

(d) Changing caregivers at this stage in the lives of these children would
have detrimental effects on them. These children have been in the home of
their current foster parents since they were placed into DCS custody in
April of 2016. The children refer to their foster care parents as “mom” and
“dad” and have bonded with them. To change caregivers after such a long
period of time would be disruptive to the children and destabilize their
lives.

(e) There is crime in the homes of [Mother and Father]. As stated earlier,
both [Mother and Father] have a history of engaging in criminal activity
and drug use and abuse. Both [Mother and Father] are currently serving
lengthy sentences in jail as a result of violating the terms of their probation
by engaging in additional criminal activity and illegal drug use and abuse
while on probation.

(f) As outlined above, [Mother and Father] both use and abuse drugs,
rendering them consistently unable to care for the children in a safe and
stable manner.




                                      18
        Mother alleges that the trial court erred in its best interest analysis because, in
general, she does have a bond with her Children and that many of the lifestyle changes
she has been unable to make have been the result of the state’s failure to assist her in
doing so. The trial court made no finding that Mother did not have a bond with her
Children, but the fact remains that she has been gone from their lives for such a
substantial period of time that the Children have now also bonded with their foster
family. Further, the bond between Mother and her Children does not negate the fact that
Mother’s behavior has made it unsafe, and in some instances impossible, for the Children
to be in her care. We again reject Mother’s attempt to blame the state for her current
situation. Father also asserts that the trial court erred in finding that termination of his
parental rights to Ke’Andre was in the child’s best interest. We disagree. Ke’Andre has
virtually no relationship with his Father, and the trial court explained in detail why it
would be harmful for the child to ever be placed in his Father’s care.

       We hold that the trial court properly analyzed the Children’s best interest in
accordance with Tennessee Code Annotated section 36-1-113(i), and the record supports
the findings of the trial court outlined above. We affirm the trial court’s holding that
there is clear and convincing evidence that it is in the best interest of the Children that
Mother’s and Father’s parental rights be terminated.

                                      IV. Conclusion

        For the foregoing reasons, we reverse the order of the trial court insofar as it found
grounds to terminate Mother’s parental rights due to failure to provide a suitable home
and Father’s parental rights for failure to substantial noncompliance with the permanency
plan. The remainder of the trial court’s order is affirmed, in that other grounds have been
proven by clear and convincing evidence to terminate Mother’s and Father’s rights to the
Children, and that it is in the best interest of the Children to do so. Costs of this appeal
are taxed equally to the Appellants, Kendra C. and Anthony H. Because Kendra C. and
Anthony H. are is proceeding in forma pauperis in this appeal, execution may issue for
costs, if necessary.



                                                  _________________________________
                                                  BRANDON O. GIBSON, JUDGE




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