06/25/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               February 21, 2018 Session

                              IN RE DAMON B., ET AL.

                  Appeal from the Circuit Court for Gibson County
                       No. 8885     Clayburn Peeples, Judge
                     ___________________________________

                           No. W2017-01858-COA-R3-PT
                       ___________________________________

Parents appeal the termination of their parental rights to their two minor children. The
children came into the custody of the Department of Children’s Services (“DCS”) after
receiving a referral of domestic violence and subsequent concerns raised about the
parents’ drug abuse and mental health. The children were adjudicated dependent and
neglected in juvenile court. Several permanency plans were developed and monitored by
DCS, all of which listed goals of good mental health, a safe environment free from
domestic violence, and a drug free home. DCS filed a petition in circuit court to terminate
the parents’ rights to the children on grounds of (1) abandonment by failure to provide a
suitable home as to both parents; (2) abandonment by incarcerated parent as to Father; (3)
substantial noncompliance with permanency plan as to both parents; and (4) persistence
of conditions as to both parents. A guardian ad litem was appointed to represent the
children in both the juvenile court dependency and neglect case and the circuit court
termination case. The guardian ad litem filed a motion in juvenile court to modify the
parents’ visitation, based in part on her personal observations. Father filed motions to
disqualify the guardian ad litem in both juvenile and circuit court, asserting that the
guardian ad litem began functioning as a necessary witness. The juvenile court granted
the guardian ad litem’s motion to modify the parents’ visitation and denied the father’s
motion to disqualify the guardian ad litem, specifically noting in its ruling that the court
excluded any personal observations by the guardian ad litem. Thereafter, the circuit court
also denied the father’s motion to disqualify the guardian ad litem, holding that the
guardian ad litem was not a “necessary witness” as required under Tennessee Supreme
Court Rule 8, Rule of Professional Conduct 3.7(a). Following a trial, the circuit court
found that DCS had proven the grounds of abandonment for failure to provide a suitable
home, substantial noncompliance with the permanency plan, and persistence of
conditions, and that termination was in the children’s best interest. Based on these
findings, the circuit court terminated both parents’ parental rights. We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the court, in which
BRANDON O. GIBSON and JOHN EVERETT WILLIAMS, JJ., joined.

Harold R. Gunn, Humboldt, Tennessee, for the appellant, Jamie W. 1

Alexander D. Camp, Jackson, Tennessee, for the appellant, Michael B.

Betty S. Scott, Medina, Tennessee, Guardian Ad Litem for Damon B. and Elijah B.

Herbert H. Slatery, III, Attorney General and Reporter; and W. Derek Green, Assistant
Attorney General, for the Tennessee Department of Children’s Services.

                                                 OPINION

       Jamie W. (“Mother”) and Michael B. (“Father”) are the unmarried parents
(collectively, “Parents”) to two minor children, Damon and Elijah B. In May 2015,
Father contacted DCS, alleging that Mother had attempted to shoot Father and that
Parents were unable to care for the children due to Mother’s psychological issues and
Father’s physical ailments. During DCS’s subsequent investigation, Parents reported
multiple instances of domestic violence. Law enforcement had been called on the family
over ten times during the previous two years, resulting in seven arrests and Father’s
conviction for domestic assault in February 2015. Parents admitted to an extensive
history of substance abuse and currently using marijuana and cannabis oil to treat chronic
health conditions.2 Parents also reported having untreated mental health issues; Father
allegedly had PTSD, and Mother reported a history of suicide attempts.

       In late May 2015, DCS began in-home family counseling after Parents admitted
that they needed assistance. Due to Father’s comments about wanting to kill or poison
Cody, Mother’s oldest child from a previous relationship, Parents agreed that the
children’s safety required Father to leave the home; however, Mother later notified DCS
that Father refused to leave and would not allow her to leave either. Because of Parents’

1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
2
    Both Mother and Father suffer from Hepatitis C, which is

          a liver infection caused by the Hepatitis C virus . . . Today, most people become infected
          with the Hepatitis C virus by sharing needles or other equipment to inject drugs. For . . .
          70%–85% of people who become infected with Hepatitis C, it becomes a long-term,
          chronic infection . . . [that] is a serious disease than [sic] can result in long-term health
          problems, even death.

Centers       for      Disease        Control          and        Prevention,           Viral        Hepatitis,
https://www.cdc.gov/hepatitis/hcv/index.htm, (last visited June 15, 2018).

                                                     -2-
issues with domestic violence, drug use, and mental health concerns, the children were
removed into DCS custody on July 2, 2015. Two weeks later, then five-month-old Elijah
tested positive for marijuana. In an order entered on September 16, 2015, the juvenile
court adjudicated the children dependent and neglected.

       On November 1, 2016, DCS filed a petition in circuit court to terminate Parents’
rights to the children, on grounds of (1) abandonment by failure to provide a suitable
home as to both Parents, (2) abandonment by incarcerated parent as to Father, (3)
substantial noncompliance with permanency plan as to both Parents, and (4) persistence
of conditions as to both Parents. Trial was held July 28, 2017, before the Gibson County
Circuit Court, where numerous witnesses testified.

        Tracy White was the child protective service worker with DCS assigned to
investigate the family’s case when it was initially reported in May 2015. According to
Ms. White’s testimony, Father initially contacted DCS with concerns about his children.
Ms. White stated that, in Father’s words, “the children would be better off in the State’s
custody than with [Mother],” and that Father was “currently afraid to leave them in
[Mother’s] care.” During her initial interview with Parents in May 2015, Ms. White
testified that both Mother and Father admitted they had a history of drug use, and Father
described himself as a former “crack head.” Both Parents agreed to submit to an initial
drug screen which came back positive for marijuana and opiates. Ms. White testified that
then five-month-old Elijah also tested positive for marijuana.

       Ms. White further stated that Parents reported several instances of domestic
violence to her, including “physical violence and threatening with knives and guns” with
the most recent incident occurring on May 22, 2015. Ms. White testified that Parents
described the incident as police responding to a “physical altercation” between Father and
Cody – during which Mother brandished a knife and threatened to stab Father if he hurt
her son. Cody reported that Father was the primary aggressor. Ms. White confirmed that
the two younger children were present during this incident. Ms. White described another
incident where Father slapped and threw a mug at Mother while she held Damon,
shattering glass over Mother and child. Parents admitted to Ms. White that theirs was
“not a healthy home situation.” Father wanted Mother to get psychological help, and
Father believed he needed medical treatment for his Hepatitis C. Parents told Ms. White
they would need assistance with the children in order for that to happen. Ms. White set up
counseling services for Parents and coordinated services through DCS for Damon, who
was developmentally delayed.

        By June 2015, conditions with Mother and Father had not improved. When Ms.
White went to meet with them, “they both agreed that the two of them together was not a
safe environment for the children.” Ms. White discussed with Mother and Father how
they could keep their children safe and allow the children to remain in Parents’ custody.
Initially, the plan was for Father to move out. However, Ms. White testified that Mother

                                          -3-
reported to DCS that Father “was not gonna leave” and “wouldn’t let her leave if she
tried,” and so on July 2, 2015, the children were removed into DCS custody. Following
DCS protocol, Ms. White’s involvement with the case ended once the children were
removed from the home.

        Stephanie Richardson was the case worker assigned when the children came into
DCS custody. She worked with the family from July 2015 to April 2017. Ms. Richardson
testified that domestic violence, substance abuse, and mental health concerns were the
issues that brought the children into DCS custody. Ms. Richardson helped to develop a
permanency plan with Parents, which is a contract outlining responsibilities and goals for
Mother and Father to achieve, with the end goal in this case aiming to reunify Parents
with their children. Ms. Richardson testified that initially, the permanency plan specified
that Parents pay child support; they were asked to maintain a safe and stable home for the
children and asked to visit regularly with the children; Parents were asked to complete
mental health intakes and follow through with any recommendations such as counseling;
they were asked to attend counseling to specifically address domestic violence; they were
also asked to complete an alcohol and drug assessment and any recommended treatment
as well as comply with random drug screens; and finally, they were asked to refrain from
illegal drug use and domestic violence.

      In July 2015, the children were placed in custody with the foster parents and began
having bi-monthly supervised visits with Parents.

        During a visit in January 2016, Ms. Richardson testified that DCS called law
enforcement after Father, “crying and cursing,” got into the foster parents’ car with the
children and refused to leave. Ms. Richardson stated that the foster mom came back into
the building to explain what was going on and told Ms. Richardson that she was scared
and didn’t know what to do. The permanency plan was revised later that month to forbid
Father from putting the children in the car after visits. It also added that Parents refrain
from discussing the case with the children and required Parents to complete a
psychological evaluation with a parenting component and follow recommendations. At
that time, Parents had begun parenting classes, and Mother had one class left to complete.

        Parents completed their mental health intakes in August 2015 and reported to DCS
that they attended counseling from August to December 2015. However, in January 2016,
Ms. Richardson learned that Mother had actually only been to one counseling
appointment and Father had two or three appointments. The counseling center had also
permanently discontinued services for Father due to his multiple absences. In June 2016,
Ms. Richardson followed up with a new counselor Father was seeing and learned that
Father failed to mention his domestic violence issues to the counselor, focusing
exclusively on his perceived health problems instead.



                                           -4-
       Ms. Richardson met regularly with Mother and Father to discuss their progress in
reaching the goals of the permanency plans. Ms. Richardson testified that since the
children came into DCS custody, Parents were asked to complete ten to twelve drug
screens. In that time, Mother had one negative drug screen, all of Father’s were positive,
and both Parents refused to submit to drug screens on multiple occasions. In Ms.
Richardson’s professional opinion, Parents have not accomplished goals in the
permanency plan to create an environment in which she felt it was reasonably safe to
return the children to Parents’ custody. Specifically, Ms. Richardson testified that neither
parent has consistently attended counseling or addressed their drug and alcohol issues.

       William Beyer is a licensed senior psychological examiner, health service
provider, and licensed professional counselor. Mr. Beyer testified that on March 30,
2016, at the request of DCS, he performed a psychological evaluation with an assessment
component on each of Parents. Mr. Beyer testified that in performing these types of
evaluations, he has very little access to outside information and had to rely solely on what
Mother and Father disclosed to him.

        Mr. Beyer testified that Mother reported “significant conflicts” in her relationship
with Father with “pretty bad episodes” of domestic violence after the children were born,
but she insisted that it “never got physical after that.” Mother indicated to Mr. Beyer that
her relationship with Father “had been quite chaotic and that she was making some
attempt to kind of separate herself from him.” Mr. Beyer’s testimony highlighted a few
key points where Mother was not entirely forthcoming in her evaluation. Mr. Beyer
stated that Mother never told him that she had already lost custody of two other children,
nor did Mother disclose that she filed several orders of protection against Father in their
ongoing issues with domestic violence. And while Mother admitted to testing positive for
marijuana after a trip to Colorado, she did not disclose to Mr. Beyer that she tested
positive for codeine in November 2015 or for methamphetamine in February 2016.

       Mr. Beyer diagnosed Mother with major depressive disorder, generalized anxiety
disorder, and PTSD. He explained that Mother suffered from “learned helplessness,”
where “a long pattern of abuse” causes a person to feel incapable of “being assertive or
escaping.” Mr. Beyer recommended that Mother receive trauma-focused counseling and
stressed that it was critical for her to remain free from alcohol and drugs. Mr. Beyer
further recommended that Mother remain under psychiatric care in order to address her
anxiety and depression, which are illnesses that “can become progressively worse over
time and further impair decision making.” Mr. Beyer opined that moving away from
Father – whose personality would create ongoing conflicts in raising the children – would
be an important step in establishing appropriate boundaries. At the time of his evaluation,
Mr. Beyer testified that Mother and Father’s relationship did not seem healthy because of
a pattern of conflict between the two.



                                           -5-
       Mr. Beyer testified that Father was “very fervent” in his discussions about having
Hepatitis C, how cannabis oil played a significant role in his health, and that it was a cure
for Hepatitis C. Throughout his interview with Father, Mr. Beyer stated that he would ask
Father a question, and it would repeatedly lead back to Father’s Hepatitis C and his use of
cannabis oil. Mr. Beyer testified that he had to redirect Father to stay on topic. Mr.
Beyer’s testimony showed that Father was likewise not entirely honest during the
evaluation. Mr. Beyer testified that while Father acknowledged using alcohol only prior
to the children’s birth, he claimed to have prescriptions for benzodiazepines and
oxycodone and otherwise denied a history of drug use. Father never disclosed to Mr.
Beyer that he had a history of addiction treatment. When asked about Elijah testing
positive for THC or marijuana in 2015, Father told Mr. Beyer that the only way Elijah
could have tested positive for the drug was that Father must have transferred some
cannabis oil residue from his finger onto a baby bottle while cleaning it.

       Regarding domestic violence, Father reported to Mr. Beyer that Mother slapped
him and would sometimes call the police on him, but Father denied any domestic
violence since the children’s birth or that his arguments with Mother were ever physical.
However, Mr. Beyer also testified that Father admitted calling DCS in 2015 with
concerns that his children might suffer “due to the unresolved problems between
[Mother] and [Father].” When Mr. Beyer asked Father about his prior criminal history,
Father mentioned having one criminal charge “during the time [he] was at [his] sickest,”
but neglected to disclose his other arrests for assault, aggravated assault, vandalism, and
DUI.

        Noting that Father found difficulty accepting responsibility, Mr. Beyer diagnosed
Father with a histrionic personality disorder, potentially overlapping with narcissistic
personality. Mr. Beyer opined that treatment would be difficult because personality
disorders are “very difficult to overcome” even over a “long time span of intensive
counseling,” and those with a histrionic personality disorder in particular are “not ...
willing to entertain alternative viewpoints … tend[ing] to place blame on the other
individuals for their own failings or shortcomings.” But Mr. Beyer felt that treatment
would not be impossible, adding that Father would need to work on controlling his
frustration and his temper, as “his ability to work effectively with [Mother] and DCS will
hinge on his ability to demonstrate self-control even when he disagrees with others.”

       The permanency plan was revised in April 2016 to add the specific treatment
recommendations of Mother and Father’s psychological evaluations with Mr. Beyer.
Mother’s additional action steps required that she complete therapy to address her
depression and PTSD and remain under the care of a psychiatrist. Father’s additional
action steps required that he complete counseling to address grief and loss and controlling
his frustration and temper. Due to Father being “verbally aggressive” toward the foster
parents, the team also decided that Father would participate in Child and Family Team
Meetings by phone.

                                            -6-
       In May 2016, Father moved next door to Mother’s home in the public housing
complex where she lived after the children’s removal. The following month, Mother
obtained a year-long order of protection against Father, alleging that he had threatened
her and her brother-in-law with a rifle.

        David French, a foster care counselor with Youth Villages, began supervising the
children’s visits with Father in the summer of 2016 because the foster parents no longer
felt comfortable doing it themselves. Mr. French described multiple incidents during
which Father became irrational, volatile, and loud during visitations. Mr. French testified
that Father refused to exit the foster parents’ vehicle on multiple occasions and
sometimes became “verbally aggressive” with the foster parents. Mr. French stated that
Father’s behavior made the children “fearful” during visits and especially upset after they
were over. Both children experienced diarrhea on the way to and from visits, and Mr.
French testified that they would not fall into a normal routine or behavior for several
days, during which Damon would bang his head on the floor and walls. Mr. French
testified that he recommended that Father’s visitation be stopped “due to the nature of the
trauma it was creating for the children.”

       The permanency plan was again revised on June 30, 2016. It added that Parents
participate in services with Youth Villages to address positive parenting skills and
emphasized that they resume the parenting classes that they had nearly completed.

       In August 2016, the juvenile court found that Father was refusing drug screens,
attending counseling only inconsistently, and that he had been “increasingly non-
compliant with [DCS].” That same month, Father was incarcerated for ten days for
violating the order of protection after Mother gave him a ride to court.

       Shortly before DCS petitioned to terminate Mother’s and Father’s parental rights
on November 1, 2016, Parents resumed counseling. Mother inconsistently saw Sonya
Goodrich to address Mother’s past trauma, PTSD, domestic violence issues, and drug
use. While Mother had domestic violence issues with others, Ms. Goodrich found that
Father “was a big part” of the significant trauma Mother had experienced throughout her
life. Ms. Goodrich testified that Mother disclosed “severe beatings” by Father prior to the
children’s birth as well as more recent incidents of domestic violence. In March 2017,
Mother reported to Ms. Goodrich that Father was harassing and stalking her. Mother also
claimed that she had quit using drugs and was passing her drug screens, which Ms.
Goodrich later discovered was a lie. In actuality, during the timeframe Mother was seeing
Ms. Goodrich, from October 2016 to April 2017, Mother refused three drug screens and
tested positive for methamphetamine, amphetamine, and marijuana. Ms. Goodrich
ultimately reported to DCS that Mother did not complete any of her treatment goals.



                                           -7-
       On a referral from Ms. Richardson to address the ongoing domestic violence,
Father met with licensed therapist Alvin Bonds approximately six to eight times between
October 2016 and July 2017. Mr. Bonds focused his treatment on anger management and
diagnosed Father with severe cannabis use disorder, noting that marijuana was not
appropriate for Father to use while parenting due to its “detrimental” effect on a parent’s
faculties and ability to focus. When asked whether Father was willing to stop using
cannabis oil or marijuana, Mr. Bonds testified that Father’s response was, “not at this
time.”

         In November 2016, Ms. Richardson set up an appointment for both Parents to
address domestic violence issues with Mr. Bonds. Mr. Bonds testified that neither parent
reported any physical violence. Father explained to Mr. Bonds that the children were
removed due to lead poisoning and “consistent turmoil” between himself and Mother.
Father failed to disclose that the police had been called during his arguments with Mother
or that he had multiple charges for domestic assault in the previous four years, including
one conviction after the children were born. Neither Parent disclosed to Mr. Bonds that
Elijah had tested positive for marijuana, and while Father was very open about his
cannabis oil and marijuana use in treating his Hepatitis C, Father failed to report that he
had also tested positive for methamphetamine in June 2017. Mr. Bonds stated that Father
denied any substance abuse and denied any physical aggression towards Mother. Mr.
Bonds observed that Mother and Father’s relationship is “definitely one that is unhealthy,
so it is a positive thing they are separated and no longer together.”

         The foster mom testified that the children have been with her and her husband for
a little over two years. She explained that Damon was developmentally delayed when he
initially came into their custody but testified that now both boys are above average. The
foster mom described behavioral incidents with the children after visits with Mother and
Father. She stated that the children were “very violent and would hit each other,” they
would get in trouble at school, and would complain of having stomachaches and diarrhea.
This was consistent after visits with Parents; however, after the juvenile court suspended
visits with Parents, the foster mom said there was a noticeable improvement in the
children’s behavior. She testified that Mother admitted being fearful of Father being
around the children, that Mother told the foster mom she would never leave the children
alone with Father, and that Mother admitted she was scared of Father because he
wouldn’t leave her alone. The foster mom admitted she also had safety concerns for
herself and the children regarding Father. The foster mom testified that she and her
husband love the children and have developed a strong bond with them. If given the
opportunity, they would adopt the children “[i]n a second.”

      Father testified that he did everything he felt he could do in order to regain
custody of his children, stating he “went above and beyond” what DCS asked him to do
in completing goals of the permanency plans. Father stated that he stopped using
marijuana after the children were taken into DCS custody and said he would not use

                                           -8-
marijuana if the children came back into his custody. This was contrary to what Father
told the various counselors he saw, including Mr. Bonds and Mr. Beyer. Father denied
knowledge of any instances of domestic violence despite being presented with police
reports from the incidents and denied having either a drug or alcohol addiction. Father
testified he had not used illegal drugs since his children were born but was later presented
with the results of a drug screen from June 2017 in which he tested positive for
methamphetamine, which Father then admitted did qualify as an illegal drug. Father
reported to Ms. Richardson as late as March 2017 that he was still seeing Mother daily
and testified at trial that he “would marry her in a heartbeat” in order to reunite his
family.

       Mother testified the reason her children were removed from the home was
domestic violence and substance abuse. Mother stated that she completed everything
asked of her in the permanency plans with the exception of having failed multiple drug
screens. Mother admitted that in the past two years, she has taken nine drug screens and
passed only one of them. All of the other drug screens were positive for marijuana or
THC, opiates or methamphetamine. Mother testified that at that this time, she does not
have a relationship with Father. Mother stated that she is currently taking Effexor for
depression, which her regular doctor prescribes. Mother is not currently seeing a
psychiatrist. Mother denied any physical altercations with Father occurring since the
children were born; however, Mother did admit that in May 2015, she held a knife to
protect her older son Cody when Father and Cody were fighting. She also admitted to
seeking an order of protection against Father in June 2016 after Father threatened her
with a rifle. Mother testified that the foster parents take good care of her children.

       In a written order entered on August 24, 2017, the circuit court found that DCS
had proven the grounds of abandonment for failure to provide a suitable home,
substantial noncompliance with the permanency plan, and persistence of conditions as to
both Parents and that termination was in the children’s best interest. The circuit court
terminated Mother and Father’s parental rights to their children.

                                          ISSUES

      Mother and Father timely appealed, raising the following issues which we have
condensed and re-worded as follows:

   1. Whether the circuit court erred by denying Father’s motion to disqualify the
      guardian ad litem.
   2. Whether the circuit court properly determined that grounds existed to support the
      termination of Mother’s and Father’s parental rights.
   3. Whether the circuit court properly determined that termination of parental rights
      was in the children’s best interest.


                                           -9-
                                  STANDARD OF REVIEW

       “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 F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann.
§ 36-1-113(c)). We review findings of fact made by the trial court de novo upon the
record “accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.” In re F.R.R., 193 S.W.3d at 530 (quoting
Tenn. R. App. P. 13(d)).

        However, because of the heightened burden of proof in termination proceedings,
this court must make its own determination “as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.” In re
Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re Bernard T., 319 S.W.3d 586,
596-97 (Tenn. 2010). The trial court’s ruling regarding whether the evidence sufficiently
supported termination is a conclusion of law, which we review de novo with no
presumption of correctness. See In re Carrington H., 483 S.W.3d at 524.

                                         ANALYSIS

                                  I.   GUARDIAN AD LITEM

       Attorney Betty Scott was appointed as the children’s guardian ad litem in the
dependency and neglect case filed in Gibson County Juvenile Court. Thereafter, DCS
filed a Petition to Terminate Parental Rights in Gibson County Circuit Court3 and Ms.
Scott was appointed to serve as the guardian ad litem in that case as well.

       On May 10, 2017, Ms. Scott filed a motion to modify Parents’ visitation in the
juvenile court case. The basis for this motion was to cease all forms of contact between
Parents and children until Parents consistently passed drug screens and otherwise
complied with the permanency plan and demonstrated that Parents could rationally
participate in non-confrontational meetings over a consistent period of time. But Ms.
Scott also included in her motion the following statements about her personal
observations:

           3. Attorney Scott has personally witnessed the parents harassing foster
              parents before and after court.


       3
         The termination petition was filed in circuit court while the dependency and neglect
proceedings remained under the jurisdiction of the juvenile court.

                                            - 10 -
                                            ...

          10. That Mother had an Order of Protection against Father for several
              months. Subsequent to a juvenile court hearing last winter, while the
              Order of Protection was in effect, this Guardian Ad Litem
              specifically asked Mother if she drove Father to court that day.
              Although mother denied it, this Guardian ad Litem observed them
              driving from the parking lot together in Mother’s vehicle.

(emphasis added).

       On June 14, 2017, the juvenile court heard the guardian ad litem’s motion to
modify Parents’ visitation and Father’s motion to disqualify the guardian ad litem. In its
order filed July 26, 2017, the juvenile court denied Father’s motion, specifically noting
the court would not “consider any allegations purported to be witnessed by the Guardian
ad Litem.” The court also found that suspending Parents’ visitation was in the children’s
best interest “due to Father’s admitted refusal to submit to drug screens, Mother’s
consistent positive drug screens, the parent’s [sic] non-compliance with the Family
Permanency Plan, and [Father’s] volatile behaviors.”

       Meanwhile, on June 26, 2017, Father filed a motion to disqualify the guardian ad
litem in the circuit court case, arguing that the guardian ad litem had inserted herself as a
necessary witness in the dependency and neglect case. On August 4, 2017, the circuit
court denied Father’s motion to disqualify the guardian ad litem. In its order, the court
determined that the guardian ad litem was not a “necessary witness” as required under
Tennessee Supreme Court Rule 8, Rule of Professional Conduct 3.7(a) and therefore
there was no need to disqualify Ms. Scott.

       Father argues the circuit court erred when it failed to disqualify the guardian ad
litem, claiming that the guardian ad litem began functioning as a “necessary witness” in
the concurrent dependency and neglect action. The basis for this argument is that the
guardian ad litem filed a motion to modify visitation in the juvenile court, supported, in
part, by her personal observations of Father harassing the foster parents before and after
court and witnessing Mother and Father riding in the same car when an order of
protection was in place.

        Rule of Professional Conduct 3.7(a) precludes a lawyer from acting as an advocate
at trial when the lawyer is likely to be a “necessary witness.” Tenn. R. Sup. Ct. Rule 8,
RPC 3.7. However, the guardian ad litem did not testify in the termination proceedings.
Admittedly, she proffered her own testimony via affidavits in support of a motion filed in
the juvenile court dependency and neglect action that was a separate action in a different
court. See Tenn. Code Ann. § 37-1-103(c); see also In re Kaliyah S., 455 S.W.3d 533,


                                           - 11 -
539 (Tenn. 2015) (holding that termination actions are distinct from dependency-and-
neglect actions).

        Admittedly, the guardian ad litem referenced in her motion to modify visitation in
the dependency and neglect action that she personally witnessed two incidents of
noncompliance; however, in making its ruling, the juvenile court prohibited the guardian
ad litem from testifying in support of her motion and struck any allegations from the
motion that the guardian ad litem purportedly witnessed. The court instead relied upon a
plethora of other evidence – specifically, the testimony of both Parents, two DCS case
workers, Youth Villages counselor David French, the foster parents, as well as exhibits
and the record as a whole – in granting the guardian ad litem’s motion to suspend
Parents’ visitation and denying Father’s motion to disqualify the guardian ad litem.
Father’s inability to cross examine the guardian ad litem on her two noted observations
was harmless. Not only were there multiple witnesses to those observations, but there
was additional evidence to substantiate the circuit court’s order to terminate parental
rights. As such, the guardian ad litem was not a “necessary witness” under Tennessee
Supreme Court Rule 8, Rule of Professional Conduct 3.7(a).

        As for the termination action, we find it significant that had Father not filed a
separate motion to disqualify the guardian ad litem in the termination proceeding, the
circuit court would not have been aware that the guardian ad litem personally witnessed
Father’s non-compliance.

      Father also argues that the circuit court erred by permitting the guardian ad litem
to operate as an “unrestricted” Rule 40A guardian. There are two Tennessee Supreme
Court Rules that apply to guardians ad litem: Rule 40 and Rule 40A.

       Tennessee Supreme Court Rule 40 sets forth the powers of guardians ad litem
appointed by the juvenile court in neglect, abuse, and dependency proceedings. Tenn.
Sup. Ct. R. 40(a); Runyon v. Zacharias, __ S.W.3d. __No. W2016-02141-COA-R3-CV,
2018 WL 526712, at *7, n. 3 (Tenn. Ct. App. Jan. 23, 2018), appeal denied (May 17,
2018) (“Rule 40 only applies to ‘neglect, abuse and dependency proceedings’ in juvenile
court.”).

       Guardians appointed under Rule 40 have broad authority to perform any activities
that could be expected of any attorney participating in a trial, including petitioning the
court on the child’s behalf, participating in formal discovery, making opening statements
and closing arguments, examining witnesses in court, filing briefs and legal memoranda,
and preparing and submitting proposed findings of fact and conclusions of law. Tenn.
Sup. Ct. R. 40(d). Here, the guardian ad litem’s motion to modify visitation was filed in
the juvenile court in compliance with Tennessee Supreme Court Rule 40.



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        Tennessee Supreme Court Rule 40A applies to custody proceedings. See Tenn.
Sup. Ct. R. 40A § 3(a); see also Runyon, 2018 WL 526712, at *3 (“Rule 40A authorizes
the trial court presiding over a custody proceeding to appoint an attorney as a guardian ad
litem”). Before the rule was amended in 2011, a guardian ad litem’s role was more
limited. For example, they could not “make opening and closing statements or examine
witnesses in court.” In re Jonathan S. C-B, No. M2010-02536-COA-R3-JV, 2012 WL
3112897, at *21 (Tenn. Ct. App. July 31, 2012). It appears Father has relied on this
previous version of Rule 40A in arguing that the circuit court erred here by designating
the guardian ad litem as “unrestricted.”

       Rule 40A specifies that “the guardian ad litem now functions as a lawyer, not as a
witness or special master,” Tenn. Sup. Ct. R. 40A, § 9 (Commentary), and may “take any
action that may be taken by an attorney representing a party pursuant to the Rules of Civil
Procedure.” Tenn. Sup. Ct. R. 40A, § 9(b), Potter v. Paterson, No. E2013-01569-COA-
R3-CV, 2014 WL 2442776, at *7 (Tenn. Ct. App. May 28, 2014). Therefore, the circuit
court was well within its discretion to designate the guardian ad litem in this case as
“unrestricted” under Rule 40A.

                            II.   GROUNDS FOR TERMINATION

                  A. Abandonment by Failure to Provide a Suitable Home

      Abandonment is a statutory ground for termination of parental rights. See Tenn.
Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 defines
“abandonment,” in relevant part, as

       The child has been removed from the home of the parent or parents … as
       the result of a petition filed in the juvenile court in which the child was
       found to be a dependent and neglected child … and the child was placed in
       the custody of the department or a licensed child-placing agency … and for
       a period of four (4) months following the removal, the department or
       agency has made reasonable efforts to assist the parent or parents … to
       establish a suitable home for the child, but that the parent or parents …
       have made no reasonable efforts to provide a suitable home and have
       demonstrated a lack of concern for the child to such a degree that it appears
       unlikely that they will be able to provide a suitable home for the child at an
       early date. The efforts of the department or agency to assist a parent … in
       establishing a suitable home for the child may be found to be reasonable if
       such efforts exceed the efforts of the parent … toward the same goal, when
       the parent … is aware that the child is in the custody of the department;

Tenn. Code Ann. § 36-1-102(a)(ii). In order for a home to be considered suitable, a
parent or guardian must provide more than an appropriate physical dwelling structure. In

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re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App.
June 10, 2014). The home must also be free from drugs and domestic violence. Id. A
parent’s compliance with counseling requirements is also “directly related to the
establishment and maintenance of a suitable home.” In re Matthew T., No. M2015-
00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016) (quoting In
re M.F.O., No. M2008–01322–COA–R3–PT, 2009 WL 1456319, at *5 (Tenn. Ct. App.
May 21, 2009)).

       The circuit court found that DCS made reasonable efforts to assist both Mother
and Father with establishing a suitable home for the children. Further, the circuit court
found that Mother and Father have made no reasonable efforts to provide a suitable home
and that a suitable home will likely not be provided in the near future. In its order, the
court stated:

       [T]he parents continue to use drugs, and fail to acknowledge, much less
       address, the underlying issues of anger and domestic violence which caused
       the children to be removed from their home. [Mother] has failed 8 drug
       screens for various drugs including marijuana, codeine, and
       methamphetamine; passed one drug screen; and refused to submit to 4 drug
       screens since the children have been in DCS custody. [Father] has failed 5
       drug screens for marijuana; on June 30, 2017, failed for Methamphetamines
       drug screens and marijuana; and has refused five during the time the
       children have been in DCS custody. [Father] refuses to acknowledge the
       domestic violence incidents between him and [Mother] that have occurred
       since the children were born. [Mother] has acknowledged to various people
       the abusive relationship that occurred prior to the children being removed
       and the incidents since then but she has minimized or failed to address
       those issues in counseling or even at today’s hearing.

       The circuit court went on to comment that the domestic violence issues with
Parents are still ongoing, and that Parents have not been forthcoming about their
continued drug use. Specifically, the circuit court noted it was “concerned with [Father’s]
adoration of marijuana and his continuing pattern of irrational angry outbursts,” and went
on to say

       The children have been in the custody of [DCS] for approximately 24
       months and during that time the parents have made little to no efforts to
       change the conditions in their lives or homes to enable to allow the children
       to return to their home despite reasonable efforts from [DCS] to assist them
       to do so. The children are in a safe and stable home with their foster parents
       and a change in caregivers would be detrimental to them.



                                           - 14 -
       We agree with the circuit court’s finding that DCS made reasonable efforts to
assist Mother and Father in establishing a suitable home for the children and that Mother
and Father failed to provide a suitable home for the children. See Tenn. Code Ann. § 36-
1-113(g)(1). Therefore, we have determined that DCS established this ground for
termination by clear and convincing evidence.

                   B. Substantial Non-Compliance with Permanency Plans

       We next consider whether DCS presented clear and convincing evidence to
support the ground of substantial non-compliance with the permanency plans. This
ground is met when “[t]here has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan[.]” Tenn. Code Ann.
36-1-113(g)(2). To establish substantial noncompliance, the court must initially find “that
the requirements of the permanency plan are reasonable and related to remedying the
conditions that caused the child to be removed from the parent’s custody in the first
place,” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004); In re Valentine, 79
S.W.3d 539, 547 (Tenn. 2002), and second, that the parent’s noncompliance is
substantial. In re S.H., No. M2007–01718–COA–R3–PT, 2008 WL 1901118, at *7
(Tenn. Ct. App. Apr. 30, 2008) (no Tenn. R. App. P. 11 application filed). Mere technical
noncompliance does not justify the termination of parental rights. In re Valentine, 79
S.W.3d at 548. The noncompliance must be weighed in light of the degree of
noncompliance and the importance of the requirement not met. Id. at 548-549.

        The initial permanency plan required that Parents (1) complete a mental health
intake and follow recommendations; (2) sign releases with providers; (3) complete
counseling to specifically address domestic violence issues and follow recommendations;
(4) refrain from domestic violence; (5) have a safe and stable residence; (6) refrain from
illegal drug use and seek medical care not requiring illegal drug use; (7) have valid
prescriptions for any medications they are taking and complete pill counts; (8) complete
alcohol and drug assessments and complete recommended treatment and services; (9)
submit to random drug screening and pass all screens with negative results; (10) provide
DCS with names and contact information for any relatives who may be willing to care for
the children; and (11) complete parenting assessments and any recommended counseling
or parenting education. The plan was revised to add that (12) Father not put the children
in the car after visits; (13) Parents refrain from discussing the case with the children; (14)
complete a psychological evaluation with a parenting component and follow
recommendations; (15) complete the specific treatment recommendations of their
psychological evaluations; and (15) participate in services with Youth Villages to address
positive parenting skills. These goals were reasonably related to helping Mother and
Father address their drug abuse and domestic violence issues in order to provide a safe
and stable home environment for their children. Mother signed all of the plans and
participated in their development. Father signed and participated in the first two plans but
declined to participate in the April and June 2016 revisions.

                                            - 15 -
        Despite nearly two years of services and support from DCS, Parents made
virtually no progress toward addressing their issues with domestic violence, mental
health, and drug abuse, demonstrating such a lack of concern for the welfare of their
children that these conditions are unlikely to be remedied at an early date. See In re T.S.,
No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)
(“Where, as here, efforts to provide help to improve the parenting abilities, offered over a
long period of time, have proved ineffective, the conclusion that there is little likelihood
of such improvement as would allow the safe return of the child to the parent in the near
future is justified.”)

       Parents failed to comply with the plans’ mental health requirements. Neither
Parent attended counseling more than sporadically until October 2016 - the month prior
to DCS’s November 2016 termination petition - and even then, their attendance was
infrequent or intermittent. When they did meet with treatment providers, Parents were
evasive and consistently failed to disclose the extent of their drug use and histories for
domestic violence. Neither Parent completed the treatment recommended by their
psychological evaluations.

       Parents also failed to comply with those requirements addressing their issues with
drug abuse. Other than one negative drug screen in the summer of 2016, Mother
consistently tested positive for marijuana and methamphetamine. She refused four
screens — including three of her last four — and failed her most recently completed
screen in February 2017 for methamphetamine, amphetamine, and marijuana. Father
refused at least five screens and otherwise consistently tested positive for marijuana and
benzodiazepines, for which he never provided a prescription. On June 30, 2017 — less
than a month before trial — he failed for methamphetamine and THC.

       The circuit court found that the requirements of the permanency plans were
reasonable and related to the issues necessitating foster care. Parents signed the Criteria
& Procedures for Termination of Parental Rights, which explained that failure to comply
with the permanency plans was grounds for termination, but they accomplished virtually
none of the plans’ requirements. Accordingly, we find clear and convincing evidence in
the record which supports the circuit court’s conclusion that Parents failed to
substantially comply with the requirements of the permanency plans.

                                C. Persistence of Conditions

       We next consider whether the circuit court erred in finding clear and convincing
evidence to support the ground of persistence of conditions. This ground for termination
occurs when

       [t]he child has been removed from the home of the parent or guardian by

                                           - 16 -
       order of a court for a period of six (6) months and:
       (A) The conditions that led to the child’s removal or other conditions that in
       all reasonable probability would cause the child to be subjected to further
       abuse or neglect and that, therefore, prevent the child’s safe return to the
       care of the parent or parents or the guardian or guardians, still persist;
       (B) There is little likelihood that these conditions will be remedied at an
       early date so that the child can be safely returned to the parent or parents or
       the guardian or guardians in the near future; and
       (C) The continuation of the parent or guardian and child relationship
       greatly diminishes the child’s chances of early integration into a safe, stable
       and permanent home . . . .

Tenn. Code Ann. §36-1-113(g)(3).

       Here, the children were removed from the home in July 2015 and adjudicated
dependent and neglected on September 16, 2015; therefore this ground is clearly
applicable. The circuit court noted in its findings of fact that,

       [t]he children have been in the custody of [DCS] for approximately 24
       months and during that time the parents have made little to no efforts to
       change the conditions in their lives or homes to enable to allow the children
       to return to their home despite reasonable efforts from [DCS] to assist them
       to do so. The children are in a safe and stable home with their foster parents
       and a change in caregivers would be detrimental to them.

       Further, the circuit court determined that the children have been removed from
Parents for more than six months, the conditions which led to their removal would likely
subject the children to further abuse or neglect, and that there was little likelihood that the
conditions would be remedied in the near future in order to safely return the children to
Parents’ custody. Tenn. Code Ann. §36-1-113(g)(3).

        As previously discussed, the reasons for removing the children from Parents’
custody were drug abuse and domestic violence. Father’s counselor Alvin Bonds testified
that Parents’ relationship was unhealthy and that it was a positive that they were no
longer together. Another counselor, Mr. Beyer, testified that Parents’ relationship did not
seem healthy because of the pattern of conflict between the two. As late as March 2017,
Mother reported to her counselor, Ms. Goodrich, that Father was harassing and stalking
her. That same month, Father reported to Ms. Richardson that he was still seeing Mother
daily, and even testified at trial that he “would marry [Mother] in a heartbeat” in order to
reunite his family. It is clear from the record that both Parents downplay the recurring
domestic violence issues, and there is little likelihood this condition would be remedied
in the near future. See Tenn. Code Ann. §36-1-113(g)(3).


                                            - 17 -
       Regarding their drug use, the circuit court was concerned about what it
characterized as Father’s “adoration of marijuana.” Father told Mr. Bonds that he was not
willing to stop using cannabis or marijuana, despite the counselor advising Father that the
drug could impact Father’s ability to focus and detrimentally affect his ability to parent.
In the past two years, Father has not had a single negative drug screen, refusing several of
the tests. Mother admitted that in the past two years, she took nine drug screens and
passed only one of them. All of the other drug screens were positive for marijuana or
THC, opiates, or methamphetamine.

       It is clear from the evidence presented that Parents were given numerous
opportunities and resources through DCS to receive counseling and pass random drug
screens with negative results. Despite this, throughout a two-year period both Parents
consistently tested positive for illegal drugs, and hence the conditions that led to the
children’s removal still persist. See Tenn. Code Ann. §36-1-113(g)(3). Thus we agree that
the evidence supports the circuit court’s ruling on this ground for termination.

                                  III.   BEST INTEREST

       After at least one ground for parental termination has been established by clear
and convincing evidence, the court must determine whether termination is in the child’s
best interest. Tenn. Code Ann. § 36-1-113(c)(1)–(2); White v. Moody, 171 S.W.3d 187,
192 (Tenn. Ct. App. 1994). In making that determination, “[t]he child’s best interests
must be viewed from the child’s, rather than the parent’s, perspective.” In re Audrey S.,
182 S.W.3d 838, 878 (Tenn. Ct. App. 2005). Our legislature has identified nine statutory
factors for the court to consider in conducting a best-interests analysis. They include:

          (1) Whether the parent or guardian has made such an adjustment of
              circumstance, conduct, or conditions as to make it safe and in the
              child’s best interest to be in the home of the parent or guardian;
          (2) Whether the parent or guardian has failed to effect a lasting
              adjustment after reasonable efforts by available social services
              agencies for such duration of time that lasting adjustment does not
              reasonably appear possible;
          (3) Whether the parent or guardian has maintained regular visitation or
              other contact with the child;
          (4) Whether a meaningful relationship has otherwise been established
              between the parent or guardian and the child;
          (5) The effect a change of caretakers and physical environment is likely
              to have on the child’s emotional, psychological and medical
              condition;
          (6) Whether the parent or guardian, or other person residing with the
              parent or guardian, has shown brutality, physical, sexual, emotional
              or psychological abuse, or neglect toward the child, or another child

                                           - 18 -
              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.

Tenn. Code Ann. § 36-1-113(i). A trial court does not have to find the existence of each
of these nine factors before it may conclude that termination is in the child’s best interest.
In re Navada N., 498 S.W.3d 579, 607 (Tenn. Ct. App. 2016). “Depending on the
circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis.” Id. However, as the Tennessee Supreme Court recently held,

       this does not mean that a court is relieved of the obligation of considering
       all the factors and all the proof. Even if the circumstances of a particular
       case ultimately result in the court ascribing more weight—even outcome
       determinative weight—to a particular statutory factor, the court must
       consider all of the statutory factors, as well as any other relevant proof any
       party offers.

In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017). Neither is the trial court required
to total up each of the factors and determine whether the sum of them weighs in favor or
against the parent. In re Audrey S., 182 S.W.3d at 878. “The relevancy and weight to be
given each factor depends on the unique facts of each case.” Id.

       Here, the circuit court found that Parents

       have failed to make such an adjustment of circumstance, conduct, or
       condition as to make it safe and in the child’s best interests to be in the
       home of the parent or guardians. [Factor 1] The parents have failed to effect
       a lasting adjustment after reasonable efforts by DCS and it does not appear
       possible that a lasting adjustment will occur. [Factor 2] They have failed to
       accept responsibility for the situation as it is now. The parents did not take
       visitation as seriously as they should have and the children’s behaviors

                                            - 19 -
       have improved since the visitation has been terminated. [Factor 3] The
       parents continue to test positive for illegal drugs that render them unable to
       care for the child in a safe and stable home. [Factor 7] A change in
       caregivers and physical environment is likely to be detrimental to the
       children as they are doing well in the home of their foster parents who wish
       to adopt them. [Factor 5]

As the circuit court’s order reads, five of the nine statutory best interest factors weigh in
favor of terminating Mother’s and Father’s parental rights. Two factors weigh against
terminating Parents’ rights, those being a meaningful relationship established with the
children (Factor 4) and child support consistently paid (Factor 9). Two other factors are
clearly applicable but were not addressed in the circuit court’s order: whether Parents
have shown brutality, physical, or psychological abuse toward another adult in the
household (Factor 6) and whether Parents’ mental and/or emotional status would be
detrimental to the children or prevent Parents from effectively providing safe and stable
care and supervision for the children (Factor 8). Tenn. Code Ann. § 36-1-113(i).

        Although Parents made some effort to complete goals of the permanency plan by
paying child support as ordered, attending counseling sessions sporadically, and visiting
regularly with the children, DCS’s main concerns with Parents were domestic violence
and drug abuse, neither of which Mother or Father ever adequately addressed. Parents
continued to test positive for illegal substances over a two year period leading up to trial.
One of Father’s counselors testified Father told him he had no desire to quit using
cannabis or marijuana, despite advice to the contrary. Both Parents made excuses for
their various positive drug screen results; Mother blamed peer pressure from working in a
bar, and Father maintained he had a single moment of weakness when visiting with an
old friend. The circuit court used the word “adoration” to describe Father’s relationship
with marijuana. Regarding domestic violence, counselors for both Mother and Father
testified Parents downplayed or denied the existence of domestic violence in the home.
However, other testimony from counselors, the foster mom, and DCS workers affirmed
the ongoing issues with Parents’ relationship.

        It is clear that in making this finding, the circuit court examined the nine statutory
best interest factors, and found that terminating Mother and Father’s parental rights was
in the children’s best interest. The record fully supports this finding. Therefore, we affirm
the circuit court’s decision that terminating Mother and Father’s parental rights was in the
best interest of the children.




                                            - 20 -
                                  IN CONCLUSION

       The judgment of the circuit court is affirmed, and this matter is remanded with
costs of appeal assessed equally against the appellants, Jamie W. and Michael B.


                                                 ________________________________
                                                 FRANK G. CLEMENT JR., P.J., M.S.




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