Facts: Mother and Father are the divorced parents of two children, only one of which is still a minor. Their agreed parenting plan gave Mother extended parenting time every other weekend.

Father remarried shortly after the divorce.

Mother’s visitation never went as planned. She visited only occasionally and with little advance notice.

Four years after the divorce, Father and Stepmother petitioned to terminate Mother’s parental rights and have Stepmother adopt the child. The grounds for termination included abandonment and failing to manifest an ability and willingness to assume custody of the child.

The younger child testified that she wanted to see her mother every other weekend but only overnight “sometimes.” The trial court found that Mother “has a lifestyle that includes the children at her convenience,” and this is psychologically damaging to the younger child.

The trial court found grounds and that termination was in the younger child’s best interest. Mother’s parental rights were terminated.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

A parent’s rights may be terminated in Tennessee if the parent:

1. 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
2. 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.

Both prongs must be proven by clear and convincing evidence.

The Tennessee Supreme Court recently clarified the meaning of the first prong in In re Neveah B. This case focuses on the second prong.

Although “a risk of substantial harm” is not amenable to precise definition, using the modifier “substantial” shows two things.

First, it connotes a real hazard or danger that is not minor, trivial, or insignificant.

Second, it shows that the harm must be more than a theoretical possibility. While the harm need not be inevitable, it must prompt a reasonable person to believe that the harm will probably occur. Examples include forcing a child to begin visitation with a near-stranger, placing a child with a parent who engaged in repeated criminal conduct that required imprisonment, or placing a child with parents with a significant, recent history of substance abuse, mental illness, or domestic violence.

The Court found the proof of a “risk of substantial harm” lacking:

The deplorable living conditions described by [the older child] referred to the home of the grandfather of Mother’s fiancé. Mother lived there while she was caring for her fiancé’s mother and grandfather. Without dispute, the home was dirty, smelled bad, and was bug infested. The conditions were attributed to the serious medical conditions of [the] fiancé’s mother and grandfather, which necessitated around-the-clock care. Mother and her fiancé planned to take up residence in a mobile home on the land that her fiancé had purchased. Both Mother and her fiancé testified to the new living arrangement and pictures of the new home were introduced.

Mother did admit to the use of methamphetamine and marijuana in 2013 and 2014. Mother’s fiancé was convicted for manufacturing, possession with intent to sell, and promotion for methamphetamine and was in custody from the end of 2014 until March 2017. He had completed a drug treatment program and was being drug tested “at least twice a month.” He testified that Mother’s prior drug use was not like his and that she was the one who “stayed on [him] for using it.” In written discovery, Mother had also admitted to a single use of marijuana in the spring of the year. Although Mother and her fiancé both offered to submit to drug screens, that offer was not accepted.

Rather than home life or the risk of future drug use, the trial court focused more on Mother’s sporadic visitation as posing a substantial risk of being psychologically damaging to [the younger child]. But, other than Father testifying to the children’s disappointment with Mother over missing visits and their school sporting events, Stepmother and Father presented no evidence of psychological damage or the risk of psychological harm to [the younger child]. Even though it does not preclude the possibility that there could be some harm, the record reflected, and the trial court found, that [the younger child] wanted to continue her visitation with Mother.

Although the concerns raised by Stepmother and Father might be an appropriate basis to condition or limit Mother’s visitation, they failed to prove that there was more than a theoretical possibility of substantial psychological harm from continuing the parent-child relationship between Mother and [the younger child]. Because establishing a risk of substantial harm to the physical or psychological welfare of the child is a necessary element of the ground, we conclude that Stepmother and Father failed to prove the statutory ground of failure to manifest an ability and willingness to assume custody or financial responsibility.

The Court reversed the trial court’s judgment terminating Mother’s parental rights.

In re Brianna B. (Tennessee Court of Appeals, Middle Section, January 29, 2021).

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