        13‐3795‐cv
        AEP‐PRI Inc. v. Galtronics Corporation Ltd.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS  BY  SUMMARY  ORDER  DO  NOT  HAVE  PRECEDENTIAL  EFFECT.    CITATION  TO  A  SUMMARY  ORDER  FILED  ON  OR  AFTER
JANUARY  1,  2007,  IS  PERMITTED  AND  IS  GOVERNED  BY  FEDERAL  RULE  OF  APPELLATE  PROCEDURE  32.1  AND  THIS  COURT’S
LOCAL  RULE  32.1.1.  WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE  FEDERAL  APPENDIX  OR  AN  ELECTRONIC  DATABASE  (WITH  THE  NOTATION  “SUMMARY  ORDER”).    A  PARTY  CITING  A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

              At a stated term of the United States Court of Appeals for the Second
        Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
        Square, in the City of New York, on the 25th day of August, two thousand
        fourteen.

        PRESENT:  JOHN M. WALKER, JR.,
                     RICHARD C. WESLEY,
                     DEBRA ANN LIVINGSTON,
                                  Circuit Judges.
        ____________________________________________

        AEP‐PRI INC.,

                                  Plaintiff‐Appellant,

                     ‐v.‐                                  No. 13‐3795‐cv

        GALTRONICS CORPORATION LTD.,
        GALTRONICS ELECTRONICS (WUXI)
        CO. LTD.,

                                  Defendants‐Appellees.
        ____________________________________________

                                                             1
FOR APPELLANT:             Francis A. Miniter, Kensington, CT.

FOR APPELLEES:         David P. Zaslowsky (Laura R. Zimmerman, on the brief),
                       Baker & McKensie LLP, New York, NY.
____________________________________________

      Appeal from the United States District Court for the Southern District of
New York (Paul A. Engelmayer, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

       AEP‐PRI Inc. (“AEP”) appeals from two orders of the United States

District Court for the Southern District of New York (Paul A. Engelmayer, Judge)

one dismissing AEP’s complaint and another denying AEP’s motion to amend

the judgment.

       Under 28 U.S.C. § 1359, “[a] district court shall not have jurisdiction of a

civil action in which any party, by assignment or otherwise, has been improperly

or collusively made or joined to invoke the jurisdiction of such court.”  “We give

careful scrutiny to assignments which might operate to manufacture diversity

jurisdiction.”  Airlines Reporting Corp. v. S & N Travel, Inc., 58 F.3d 857, 862 (2d

Cir. 1995).

       “[A]ssignments between parent companies and their subsidiaries” – as

occurred here – “must be treated as presumptively ineffective.”  Id.  To overcome

                                           2
this presumption, the plaintiff‐assignee must “articulate a legitimate business

purpose for the assignment.”  Id. at 863.  The district court properly determined

that AEP failed to do so in this instance.

      The district court was also within its discretion to deny AEP’s motion to

amend the judgment pursuant to Federal Rule of Civil Procedure 59(e).  Given

the facts of this case, the district court was in its discretion to reject AEP’s offered

explanation for why it had failed to previously provide the “new” facts included

in its motion to amend.

      We have considered AEP’s remaining arguments and find them to be

without merit.  For the reasons stated above, the judgment of the district court is

AFFIRMED.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk

                                              3


--------------------------------------------------------------------------------

                            TENTH COURT OF APPEALS

Chief Justice
    Tom Gray

Justice
     Rex D. Davis
     Al Scoggins

                          McLennan County Courthouse
                         501 Washington Avenue, Rm 415
                            Waco, Texas 76701-1373
            Phone: (254) 757-5200              Fax: (254) 757-2822

                    Clerk
     Sharri Roessler

                                 July 27, 2016

In accordance with the enclosed Memorandum Opinion, below is the judgment in the numbered cause set out herein to be entered in the Minutes of this Court as of the 27[th] day of July, 2016.

10-16-00034-CV	KIDRON VESTAL v. EFSTRATIOS PISTIKOPOULOS - ON APPEAL FROM THE 361[ST] DISTRICT COURT OF BRAZOS COUNTY - TRIAL COURT NO. 15-002915-CV-361  -  REVERSED AND REMANDED - Memorandum Opinion by Justice Scoggins:

"This cause came on to be heard on the transcript of the record of the Court below, and the same being considered, because it is the opinion of this Court that there was error in the judgment, it is ordered, adjudged and decreed by the Court that the judgment be reversed and the cause remanded in accordance with the opinion of this Court and that this decision be certified below for observance."


729 F.2d 1442
O'Neil (Jeremiah)v.Regan (Donald)
NO. 82-6324
United States Court of Appeals,second Circuit.
APR 29, 1983

1
Appeal From:  S.D.N.Y.

2
AFFIRMED.


132 A.2d 163 (1957)
Richard KINSLEY and Shirley Kinsley
v.
Lawrence WILLIS.
No. 962.
Supreme Court of Vermont. Orleans.
May 7, 1957.
*164 Raymond L. Miles, Newport, for plaintiffs.
Lee E. Emerson, Barton, for defendant.
Before JEFFORDS, C.J., and CLEARY, ADAMS, HULBURD and HOLDEN, JJ.
HOLDEN, Justice.
This action was instituted in general assumpsit by the plaintiffs, husband and wife. *165 The trial by jury resulted in a verdict and judgment for the plaintiffs in the amount of $718.
A conspectus of the evidence, lending the greatest support to the result obtained in the trial court, indicates that the defendant, Willis, in 1955 acquired the right to cut, remove and sell the timber standing on the Libby Lot, so-called, in the Town of Montgomery. The defendant thereafter arranged with the plaintiffs to sell them certain logs from this lot. By this arrangement the defendant was to cut and deliver the logs at the roadside, there to be loaded on the plaintiffs' trucks at the agreed price of $40 per thousand feet of spruce, $46 a thousand of pine, and hemlock at $30 a thousand feet. The logs sold were for ultimate delivery by the plaintiffs to Channell & Son, lumber dealers in Canada. The computation of the quantity of logs thus sold was to be made by the Vermont rule according to the mill scale taken at Channell & Son's plant in Canada. The scale to be made by Channell & Son was to control the amount of the defendant's compensation, but pending the result of the computation at the mill, the plaintiffs advanced payments on the logs delivered to them in reliance on tallies prepared by the defendant at the time of cutting. It does not appear that the plaintiffs made any independent computation to satisfy themselves as to the quantity of logs they received from the defendant at the roadside skidways. However, on the defendant's scale taken at the time of chopping, the plaintiffs advanced $2,070.72 by way of six checks during the period November 5 to November 26, 1955. Thereafter, Channell & Son scaled the logs delivered to them by the plaintiffs referable to the same period, and on the basis of their mill scale paid the plaintiffs only $1312, excluding trucking charges. The plaintiffs claimed the difference in these amounts of $758.72 constituted overpayments by them, in that they paid on the defendant's choppers scales for more logs than they received from the defendant, as shown by Channell's mill scale. They supported this claim by introducing into evidence without objection the six checks paid to the defendant (Plaintiffs' Exhibits 1-6) and the six memoranda (Plaintiffs' Exhibits 7-7E), which purported to show Channell & Son's computation of the logs received at their mill.
The defendant resisted the plaintiffs' recovery on their claim of overpayment by evidence offered to establish that the logging operation on the Libby Lot involved but a single contract of purchase and sale between Channell & Son, buyer, and the defendant, the seller. The evidence established without contradiction that prior to the purchases paid by the plaintiffs' checks, the plaintiff, Richard Kinsley, had been a buyer for Channell & Son. It also was undisputed that of the first 9,000 feet of logs cut on the Libby Lot and delivered to the skidway by the defendant, Channell & Son scaled 5,080 feet at the roadside and paid the defendant for the amount of logs scaled. This initial purchase by Channell & Son was followed by the six payments by way of the plaintiffs' checks, Plaintiffs' Exhibits 1-6. Payment for the logs picked up by the plaintiffs at the roadside terminated when the plaintiffs experienced financial difficulties about November 26. Thereafter the defendant was paid by Channell & Son for the remainder of the logs cut on the Libby Lot. The plaintiff, Richard Kinsley, continued to load logs brought to the roadside by the defendant and delivered these logs to Channell & Son. Payments received by the defendant subsequent to November 26 were made entirely by Channell & Son. It was the defendant's contention that although he received payments from both Channell & Son and the plaintiffs, Kinsley was acting as agent for Channell & Son throughout the operation. He further contended that he cut some 75,000 feet of soft wood from the job for which he was paid substantially in full by either the plaintiffs or Channell, but that he was not overpaid from the operation considered in its entirety.
The defendant appeals from the verdict and judgment for the plaintiffs, entered by the trial court.
*166 The first exception relied upon by the defendant relates to the ruling of the trial court in the direct examination of the plaintiff, Richard Kinsley. Counsel called the attention of the witness to the six checks given by Mrs. Kinsley to the defendant and to the six memoranda of Channell's mill scale contained in the exhibits 7-7E. The witness was then requested to state whether he had overpaid the defendant. The objection of the defendant that followed pointed out that this question was for the jury. In support of the offered evidence, plaintiffs' counsel stated to the court that all he was asking in the case was the difference between the amounts represented by the checks and the amounts indicated in the tallies, plaintiffs' exhibits 7-7E. The court then received the answer of the witness that he had overpaid the defendant about $749.
The brief presented by the defendant abandons the only ground stated by his exception, taken at the trial. On this appeal he seeks to establish error on the contention that the evidence admitted was hearsay and a self-serving declaration. On review, errors in the reception of evidence can be predicated only on the fault specified at the time the exception was taken. Parker v. Hoefer, 118 Vt. 1, 14, 100 A.2d 434, 38 A.L.R.2d 1216; State v. Teitle, 117 Vt. 190, 200, 90 A.2d 562. In any event, the conclusion of the answer was without harm for the same result appeared from the exhibits referred to in the question. These papers were received in evidence without limitation or objection. See McCarthy's Adm'r v. Village of Northfield, 89 Vt. 99, 104, 94 A. 298; Gregoire v. Willett, 110 Vt. 459, 461, 8 A.2d 660. This exception is overruled.
Exceptions taken by the defendant on his motion for a directed verdict at the close of the plaintiffs' case were waived by thereafter continuing with the trial. Hobbs & Son v. Grand Trunk Railway Co., 93 Vt. 392, 397, 108 A. 199; Johnson v. Hardware Mutual Casualty Co., 108 Vt. 269, 274, 187 A. 788.
This motion was renewed at the conclusion of all the evidence on the same grounds. His renewed motion is presented for review. Consideration of action of the trial court, overruling this motion of the defendant, requires us to test the proof from its source of greatest strength in support of the plaintiffs' claim, free from the effect of modifying evidence and the weight of the testimony. Shanks v. Lavallee, 118 Vt. 433, 434, 111 A.2d 808; Campbell v. Howard National Bank, 118 Vt. 182, 183, 103 A. 2d 96, and cases there cited.
The evidence, so considered, fixes the plaintiffs as the separate purchasers of those logs for which they made payments directly to the defendant, and related to the checks dated in the period November 6 to November 26, resulting in the receipt by the defendant of $2070.72. Although it is sometimes difficult to determine whether several transactions constitute one or several contracts, Bullard v. Thorpe, 66 Vt. 599, 605, 30 A. 36, 25 L.R.A. 605, these particular deliveries of logs during the period related to the plaintiffs' checks were capable of being the subject of separate contracts, if that was the intention of the parties concerned. Hambleton v. U. Aja Granite Co., 95 Vt. 295, 297, 115 A. 102. Whether the plaintiffs were, in truth, the purchasers, independent of Channell & Son, for the deliveries during that three weeks, was a critical preliminary question for the jury to decide. Their decision that the plaintiffs were separate contracting buyers would isolate them from the Channell purchases and free Kinsley from his prior agency. The rights and liabilities of the parties would stand separate and apart from the Channell transactions in fixing the obligations and the duties of the respective parties. Hambleton v. U. Aja Granite Co., supra, 95 Vt. at page 297, 115 A. at page 103.
*167 The plaintiffs' claim, asserted by the evidence and reaffirmed by their brief submitted on this appeal, is founded on overpayments resulting from independent purchase, advanced to the defendant, and induced by the error of fact contained in the chopper's scale submitted to them by the defendant. It lays the foundation for recovery in general assumpsit. A purchaser who pays his seller for property, under a contract or offer that provides for a price per unit, is entitled to restitution for an overpayment caused by a mistake in the computation of the amount of property actually transferred. Restatement, Restitution, § 21 page 94; Williston on Contracts, Revised Edition, § 1574 at page 4400; Turner Falls Lumber Co. v. Burns, 71 Vt. 354, 358, 45 A. 896.
The recovery sought is not defeated by an absence of a demand, from the plaintiffs, as claimed by the defendant's motion. The mistake relied on by the plaintiffs was produced by the misrepresentation of the scale of the logs made by the defendant. The error in computation, on the plaintiffs' theory of the case, is assigned to the defendant payee. If the mistake, honest or otherwise, was caused by the defendant, no demand was necessary. Holt v. Ruleau, 92 Vt. 74, 76, 102 A. 934; Turner Falls Lumber Co. v. Burns, supra; Varnum v. Town of Highgate, 65 Vt. 416, 420, 26 A. 628.
The defendant supported his motion for a directed verdict on the ground that the plaintiffs' case failed to establish that the defendant had neither legal nor equitable right to the overpayments claimed. He invoked the specific holding in Beauregard v. Orleans Trust Co., 108 Vt. 42, 182 A. 182, to support this position. That case involved an important factor that does not appear in the facts of this case. There a proper issue for the jury was framed on the question of the authority by Beauregard, the payor, to the bank as payee, to apply his overpayment to a debt of Beauregard's father. The bank claimed full authority for the application existed. The plaintiff denied such authority. It was held to be a proper question of fact for the jury. In the facts before us, if the plaintiffs made overpayments by way of a separate purchase of the logs, no issue is made in the evidence that the defendant could retain such overpayments by authority from the plaintiffs to apply the proceeds to the purchases of Channell & Son.
Once the plaintiffs produced evidence in support of a finding that the defendant had received their money in payment for more logs than the defendant delivered to them, the question of whether the defendant had legal or equitable right to retain the payments became a matter of defense. The plaintiffs' case, in an action in quasi-contract, is not burdened with excluding all possible equities and rights in the defendant. In State v. Village of St. Johnsbury, 59 Vt. 332, 337, 10 A. 531, 533, the Court stated: "When the fact is found that the defendant has the plaintiff's money, if he can show neither legal nor equitable ground for keeping it, the law creates the privity and the promise". This statement is included in a quotation in Beauregard v. Orleans Trust Co., supra, as correctly stating the principle involved.
The final reason assigned to support the defendant's motion for a directed verdict is laid on the basis that the evidence shows that Kinsley was acting as agent at the time the checks were given, and his agency precludes recovery. Again, the burden of establishing agency was on the defendant. The burden of proof of the fact of agency rests on the party who asserts its existence. Camp v. Barber, 87 Vt. 235, 240, 88 A. 812; Scott v. Bradford National Bank, 107 Vt. 226, 232, 179 A. 149. Whether the defendant successfully sustained the burden which he thus assumed, against the evidence of the plaintiffs in support of their theory of a separate and independent purchase, presented a proper issue for the jury.
*168 The evidence in this cause supports the conflicting claims of both sides of the litigation. It afforded justification for reasonable and differing conclusions by the jury, under proper instructions. This pattern of the proof justified the commitment of the cause to the jury for decision. Shields v. Vermont Mutual Fire Insurance Co., 102 Vt. 224, 237, 147 A. 352.
At the outset of the instructions to the jury, the court stated the substance of the plaintiffs' claim to the effect that they were seeking to recover overpayments that resulted from the differential in the scale made at the logging job by the defendant and the mill scale made by Channell which controlled the compensation for the logs delivered. A little later in the course of its instructions, the court charged the jury that the case submitted for their decision was an action for breach of contract and pointed out that the plaintiffs' right to a recovery was predicated upon the failure of the defendant to perform his undertaking with the plaintiffs under an express contract. The defendant excepted to this aspect of the instructions and asserted, in his exception, that breach of a specific contract was not an issue in the case.
While the plaintiffs' claim of a separate contract lies at the foundation of their standing as independent purchasers of the defendant's logs and thereby tends to eliminate the previous agency between Kinsley and Channell & Son, this action, as it appears from the evidence, is not for the breach of an express promise made by specific contract. It is based on the fictitious promise of quasi contract, implied without reference to the intentions of either of the parties. It relies on a claimed mistake of the defendant, in which the plaintiffs did not participate. The plaintiffs' recovery cannot stand on the obligation created by the parties by way of an express contract but on the obligation created by law from the application of principles of equity and good conscience. Beauregard v. Orleans Trust Co., and State v. Village of St. Johnsbury, supra; Morse v. Kenney, 87 Vt. 445, 449, 89 A. 865. The trial court was in error in permitting the jury to award damages to the plaintiffs on a theory of law not justified by the evidence. Newman v. Kendall, 103 Vt. 421, 424, 154 A. 662. The error is not cured by the preceding statements of the court which spoke of the complaint in terms of a quasi contractual obligation, for two inconsistent instructions open the way for the jury to follow either course indicated. Farmers' Exchange v. Brown, 106 Vt. 65, 69, 169 A. 906; Tyrrell v. Prudential Insurance Co., 109 Vt. 6, 20, 192 A. 184, 115 A.L.R. 392.
The court also charged: "Now if there was an agency relationship, a privity between Channell and Kinsley, then I charge you that the law would not allow Kinsley to go against Willis and force him to go against Channell. If there was no agency and they were independent of one another, and there was a bona fide agreement between Kinsley and Willis that he bought a certain number of logs and Willis had allowed those logs to go to Channell without the agency, then Kinsley can recover against Willis and Willis can get his own recovery from Channell." To this instruction the defendant was allowed an exception on the ground "the Court by such a broad charge, allows the jury to draw the broad inference that if there is no agency, Kinsley is entitled to recover."
The statement of the court to which the exception is directed was in effect a binding instruction that called for a plaintiffs' verdict if the jury should find no agency obtained between Kinsley and Channell. Liability on the defendant would not attach to Kinsley's freedom from Channell's agency alone. As previously pointed out, to justify the plaintiffs' recovery, it was essential that the jury reach the further determination that the defendant had been overpaid by reason of his own mistaken computation. By fixing liability on the absence of agency alone, the court excluded from the jury's consideration, *169 factors vital and necessary to obligate the defendant. The charge conveyed the cause to the jury on an incomplete and incorrect statement of the issues material to a rightful decision. The defendant's exceptions to the instructions are sustained. Morse v. Ward, 102 Vt. 433, 436, 150 A. 132; Stoddard Bros. v. Howard, 101 Vt. 1, 5, 139 A. 776; Rowell v. Town of Vershire, 62 Vt. 405, 410, 19 A. 990, 8 L.R.A. 708.
The merits of the remaining exceptions taken by the defendant to the charge and to the action of the court in refusing his motion to set aside the verdict are determined by what has preceded in the review of questions presented by earlier exceptions.
Judgment reversed and cause remanded.


344 P.2d 1100 (1959)
Charlotte Taylor MOORE, nee Chapman, The Heirs, Executors, Administrators, Devisees, Trustees and Assigns, Immediate and Remote, known or unknown of E.W. Chapman and Edward Estes Chapman, both deceased; State of Oklahoma ex rel. Oklahoma Tax Commission; Don Goodison and Nell Goodison, Plaintiffs in Error,
v.
Lucille Probst CHAPMAN, Defendant in Error.
No. 38409.
Supreme Court of Oklahoma.
October 13, 1959.
T. Austin Gavin, Tulsa, for plaintiffs in error.
Dyer, Powers & Gotcher, Tulsa, for defendant in error.
WELCH, Justice.
This is an action to quiet title in the plaintiff to the West 6.75 feet of Lot 17, Block 2, Federal Heights Addition to the City of Tulsa, along with other tracts.
Defendants have appealed from a judgment of the Court of Common Pleas of Tulsa County in favor of plaintiff.
The only question presented here for our determination is whether the trial court committed error in adjudging that plaintiff acquired title to the above described property by prescription.
It is revealed by the record that the defendants were the title owners of the above described property at the time of the trial, and had been for many years prior thereto. However, there were buildings on the adjoining lot which encroached upon said property, and said buildings had been so constructed more than fifteen (15) years *1101 prior to the filing of this action. The plaintiff's testimony reveals she did not know that the buildings were on the property of defendants until about 1946, which would be less than fifteen (15) years prior to filing said action.
The defendants contend that since neither the plaintiff nor her predecessor in title knew that their buildings encroached upon the property of the defendants, and that the defendants knew such fact existed, but did not object, this constituted consent to the use of said property, and therefore statute of limitations were not applicable. In support of this contention defendants cite Cook v. Craft, 207 Okl. 125, 248 P.2d 236; Wilcox v. Wickizer, Okl., 266 P.2d 638; Morris v. Futischa, 194 Okl. 224, 148 P.2d 986; Cox v. Kelley, Okl., 295 P.2d 1061; Liles v. Smith, 206 Okl. 458, 244 P.2d 582; Kimble v. Allen, Okl., 298 P.2d 1042; Walthers v. Tanner, 204 Okl. 598, 233 P.2d 303, and Friend v. Holcombe, 196 Okl. 111, 162 P.2d 1008.
The court held in Walthers v. Tanner, supra [204 Okl. 598, 233 P.2d 304]:
"When a person builds a fence on what he thinks is the boundary line between his and his neighbor's land and cultivates the land enclosed by the fence and occupies the land actually, openly, notoriously, exclusively and hostilely for fifteen years, the fence will be adjudged to be the boundary between the properties."
As we analyze them the above cases cited by defendants which discuss or deal with the question here involved more nearly support the judgment of the trial court than oppose it.
In the case of Johnson v. Whelan, 186 Okl. 511, 98 P.2d 1103, 1104, we held:
"Where the owner of a town lot, in ignorance of the true boundary between his lot and the adjoining lot of another party, and under the mistaken belief that it is his property, encroaches on a portion of the adjoining lot and erects a part of the structure thereon, and occupies such portion of said lot and maintains such structure thereon, openly, peaceably, and exclusively for more than 15 years, he acquires title to such portion of adjoining lot by prescription, sufficient against all."
Also see Kelly v. Choate, 192 Okl. 397, 136 P.2d 885; Liles v. Smith, supra, and Buckner v. Russell, Okl., 331 P.2d 401.
In an action of equitable cognizance the judgment of the trial court will not be disturbed unless it is against the clear weight of evidence. Liles v. Smith, supra.
We are therefore of the opinion, and so hold, that the judgment of the trial court should be, and the same is affirmed.


                                                                                10/25/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs September 4, 2018

                                  IN RE FRANCIS R. ET AL

                Appeal from the Juvenile Court for Montgomery County
                No. 17-JV-479, 17-JV-480, 17-JV-481 Tim Barnes, Judge
                        ___________________________________

                               No. M2018-00613-COA-R3-PT
                           ___________________________________

This is a parental termination case. The juvenile court declined to terminate father’s
parental rights, but it found that clear and convincing evidence existed to terminate
mother’s on the grounds of abandonment by failure to provide a suitable home,
persistence of conditions, substantial noncompliance with the permanency plan, and
abandonment by willful failure to support. The juvenile court further found that
termination was in the best interests of the children. We reverse as to the former two
grounds, but affirm as to the latter two and further find that termination of mother’s
parental rights is in the best interests of the children.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT
and THOMAS R. FRIERSON, II, JJ., joined.

Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Tonya R.

Herbert H. Slatery, III, Attorney General and Reporter; and Jordan K. Crews, Assistant
Attorney General, for appellee, Tennessee Department of Children’s Services.

                                       OPINION
                         I. BACKGROUND AND PROCEDURAL HISTORY

       The children at issue in this case, F.R.J., B.J.J., and D.W.J. (collectively, “the
Children”), were born to Tonya R. (“Mother”) and Darrell J. (“Father”).1 Mother and
Father were never married but were living together throughout the majority of this case.

        1
          In cases involving minor children, it is this Court's policy to redact names sufficient to protect
the children's identities.
       On August 21, 2014, the Tennessee Department of Children’s Services (“DCS”)
received a referral with allegations of drug exposure and lack of supervision at the home
of Mother and Father. Child Protective Services Investigator Tamika Robinson
responded to the referral and, with the intervention of law enforcement, entered and
inspected the home where she observed “roaches, trash, and rotten food throughout the
home.” Mother voluntarily submitted to a drug screen and tested positive for opiates
including Oxycodone. Mother could not provide prescriptions for the medications,
admitting that she had a history of drug use. When Father returned to the home, he, too,
submitted to a drug screen and tested positive for THC2. DCS attempted to find a safety-
placement for the Children, but because none could be identified by the family, and due
to the environmental neglect and drug exposure in the home, the Children were brought
into DCS custody.

       The next day, on August 22, 2014, DCS filed a petition in the Montgomery
County Juvenile Court to adjudicate the Children dependent and neglected and for
temporary legal custody. That same day, the juvenile court issued a protective custody
order awarding temporary custody of the children to DCS. On October 13, 2014, the
Children were placed with their paternal aunt and uncle in Elizabethtown, Kentucky.
Subsequently, on July 2, 2015, the juvenile court issued an adjudicatory order, finding by
clear and convincing evidence that the Children were dependent and neglected pursuant
to Tennessee Code Annotated sections 37-1-102(b)(12)(F)-(G)3 and that it was in the best
interest of the Children to remain in the temporary custody of DCS.

       At a July 16, 2015 permanency hearing, recognizing that Mother and Father had
substantially completed all tasks requested by DCS and as required by certain
permanency plans developed up to that date, the juvenile court granted the parents a
ninety-day trial home placement beginning on or about July 25, 2015. The trial
placement would expire at the end of the ninety days, thereby releasing the Children from
DCS custody and restoring custody to Mother and Father. The trial home placement
expired on October 30, 2015, and custody was restored to Mother and Father by order of
the juvenile court on November 17, 2015.

       On January 8, 2016, Child Protective Services Investigator Melanie Campbell,
along with an officer with the Clarksville Police Department, made a visit to Mother and
Father’s home, but there was no answer. Ms. Campbell observed the outside of the home
to be covered in trash. On January 27, 2016—only two months after Mother and Father
regained custody of the Children—DCS received another referral alleging drug exposure
at the home of Mother and Father. Later that month, Mother and Father met with Ms.

       2
           THC is the psychoactive ingredient in marijuana.
       3
          This statute has since been amended. The most recent version of this statute—and the sections
cited by the juvenile court—can be found in Tennessee Code Annotated § 37-1-102(b)(13)(F)-(G).
                                                 -2-
Campbell at the DCS office. During the meeting, Mother admitted that on January 25,
2016, she had “chewed two Percocet.” Mother also admitted that, since regaining
custody of the Children, she had already relapsed twice and had quit attending therapy.
Both Mother and Father submitted to a drug screen; Mother tested negative for all
substances, but Father tested positive for THC.

       The next month, on February 1, 2016, DCS developed a non-custodial
permanency plan, requiring Mother and Father to, among other things: make themselves
available for random drug screens; test negative for all substances unless prescribed;
provide any prescription medication for pill counts; complete alcohol and drug
counseling; submit a relapse prevention plan to DCS no later than March 1, 2016;
maintain a clean home, ensuring it was free of insects; and address the Children’s
medical needs by scheduling appointments when necessary and attending the
appointments. The plan also required Father to obtain a valid driver’s license, and it
required Mother to continue therapeutic services and to follow the program’s
recommendations.

       On March 16, 2016, Ms. Campbell made an unannounced home visit and observed
the home to be extremely messy and cluttered. Mother reported that she had been out of
town in Tullahoma, Tennessee for about a month and that she had left the Children in
Father’s care. When Ms. Campbell asked about the home’s conditions and discussed
with Mother the possibility of seeking homemaker services, Mother stated that she knew
how to clean and did not need such services. At a preliminary hearing on March 17,
2016, the juvenile court found probable cause to believe that the Children were dependent
and neglected, granting DCS permission to implement an immediate protection
agreement and ordering that the Children be placed in state custody if no placement could
be found. DCS attempted to locate a safety-placement for the Children, but none could
be identified by the family, who reported that all of their relatives lived outside of
Tennessee.4 Because no placement was available, coupled with the environmental
neglect and drug exposure in the family home, the Children were brought into DCS
custody on March 21, 2016. Then, on March 22, 2016, DCS filed a petition to adjudicate
the Children dependent and neglected, citing to Mother’s recurrent drug use and recent
relapse,5 the untidiness of the family home, Mother and Father’s unhealthy relationship,
and the prior custodial episode discussed above.6

       4
          The paternal aunt and uncle in Elizabethtown, Kentucky, who had previously fostered the
Children during the first custodial episode, indicated that they could not take the Children.
       5
          DCS also alleged that Mother had missed her medication appointments and attended only one
day of relapse prevention.
       6
          An adjudicatory hearing was held on May 31, 2016, and, according to DCS, the juvenile court
granted the petition and adjudicated the children dependent and neglected on August 12, 2016. This
adjudication order, however, is not currently part of the appellate record. DCS states that, pursuant to
                                                 -3-
       Multiple permanency plans were developed—one on April 7, 2016, and then
another on October 28, 2016, both of which contained the same responsibilities.
Subsequently, on March 22, 2017, DCS filed a petition in the Montgomery County
Juvenile Court to terminate the parental rights of both Mother and Father, alleging four
grounds for termination: abandonment by failure to support; abandonment by failure to
provide a suitable home; substantial noncompliance with the permanency plans; and
persistence of conditions. The juvenile court conducted a trial on the petition on
September 26 and October 31, 2017, which revealed that Mother had not complied with
her responsibilities under the permanency plans while Father had done so. According to
Ms. Christian, the DCS caseworker for the family during the second custodial episode,
Father completed his drug screens, maintained stable employment, paid child support,
obtained a valid driver’s license, participated in child and family team meetings,
maintained appropriate and consistent visitation with the Children, and was compliant
with DCS with whatever it asked him to do regarding the issue of improving the
conditions of the home. In fact, Ms. Christian testified that the only barrier to Father’s
reunification with the Children was Mother’s presence in the home.

       At the close of the first day of trial, the juvenile court made initial oral findings but
delayed a final ruling until a later date. As to the grounds against Mother, it found clear
and convincing evidence of abandonment by willful failure to support and by failure to
provide a suitable home, substantial noncompliance with the permanency plans, and
persistence of conditions. It also found that Father had complied with his responsibilities
under the permanency plans and that Mother was the only barrier to the Children’s
reunification with Father. Accordingly, it ruled that Mother vacate the home and that she
and Father have no contact with one another. When the trial resumed, Father confirmed
that Mother no longer lived in the home and that he had no direct or indirect contact with
her. As such, the juvenile court declined to terminate Father’s parental rights.

        At the recommendation of DCS, the Children were placed in Father’s home for a
trial home visit on December 15, 2017. Afterwards, according to a March 1, 2018 DCS
court report, the Children were attending Byrns Darden Elementary School and “doing
very well.” The report also stated that the children were receiving services through
Health Connect, that Tennessee Voices was in the home to assist Father in behavioral
issues and family routines, that Father continued to test negative on all drug screens, and
that, after a successful ninety-day home trial visit, the Children should be released to
Father’s sole custody.

Tennessee Rule of Appellate Procedure 24(e), it filed a motion to supplement the record
contemporaneously with the filing of its appellate brief. DCS claimed that a supplemental record
including the adjudication order would be forthcoming, but, after our review of the record, we have
discovered no such motion to supplement the record has ever been filed.
                                               -4-
        On March 27, 2018, the juvenile court terminated Mother’s parental rights on the
grounds of abandonment by willful failure to support, failure to provide a suitable home,
substantial noncompliance with the permanency plans, and for persistence of conditions,
and further finding that such termination was in the Children’s best interest. Regarding
Father, the juvenile court found that it was not in the Children’s best interests for Father’s
rights to be terminated. Mother timely appealed.

                                  II. ISSUES PRESENTED

       There are two dispositive issues on appeal, which we restate as follows:

           1. Whether there is clear and convincing evidence to support at least one of
              the four grounds for termination of Mother’s parental rights.
           2. If so, whether there is clear and convincing evidence to support the
              juvenile court’s determination that termination of Mother’s parental rights
              is in the Children’s best interests.

                                III. STANDARD OF REVIEW

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

        Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts require a higher standard of proof
in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds
for termination and that termination of parental rights is in the child’s best interest must
be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In
re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth
of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140

                                            -5-
S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence “produces in a fact-finder’s mind
a firm belief or conviction regarding the truth of the facts sought to be established.” Id.

       In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the juvenile court’s findings of fact, our review is de
novo with a presumption of correctness unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the
juvenile court, clearly and convincingly establish the elements necessary to terminate
parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

               IV. GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

        As noted earlier, the juvenile court relied on four statutory grounds in terminating
Mother’s parental rights: (1) abandonment by willful failure to support; (2) abandonment
by willful failure to establish a suitable home; (3) substantial noncompliance with the
requirements of the permanency plan; and (4) persistence of the conditions that led to the
children’s removal from the home. Although only one ground must be proven by clear
and convincing evidence in order to terminate a parent’s rights, the Tennessee Supreme
Court has instructed the appellate courts to review every ground relied upon by the
juvenile court to terminate parental rights in order to prevent “unnecessary remands of
cases.” In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Moreover, the
Tennessee Supreme Court has also instructed the appellate courts to “review a trial
court's findings regarding all grounds for termination and whether termination is in a
child's best interests, even if a parent fails to challenge these findings on appeal.” In re
Carrington H., 483 S.W.3d 507, 511 (Tenn. 2016). Accordingly, we will review each of
the foregoing grounds on which the juvenile court relied in terminating Mother’s parental
rights.

                    A. Abandonment by Willful Failure to Support

       Termination of a parent’s rights may be initiated based on “[a]bandonment by the
parent or guardian, as defined in § 36-1-102 . . . .” Tenn. Code Ann. § 36-1-113(g)(1).
Tennessee Code Annotated section 36-1-102 outlines several definitions of
“abandonment.” As is relevant to this ground, the statute provides that “abandonment”
means:

       For a period of four (4) consecutive months immediately preceding the
       filing of a proceeding, pleading, petition, or any amended petition to
       terminate the parental rights of the parent[s] . . . of the child who is the
       subject of the petition for termination of parental rights or adoption, that the
       parent[s] . . . have failed to support or have failed to make reasonable
       payments toward the support of the child[.]
                                             -6-
Tenn. Code Ann. § 36-1-102(1)(A)(i).7 Here, DCS filed the termination petition on
March 22, 2017. Accordingly, we look to the four-month period immediately preceding
this date.

       Parents who are eighteen years of age or older are presumed to be aware of their
duty to support their children. See Tenn. Code Ann. § 36-1-102(1)(H). Moreover, “the
obligation to pay support exists even in the absence of a court order to do so.” In re
Michaela V., No. E2013-00500-COA-R3-PT, 2013 WL 6096367, at *8 (Tenn. Ct. App.
Nov. 19, 2013). For purposes of this ground, Tennessee Code Annotated section 36-1-
102(1)(D) defines “willfully failed to support” or “willfully failed to make reasonable
payments toward such child’s support” as “the willful failure, for a period of four (4)
consecutive months, to provide monetary support or the failure to provide more than
token payments toward the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D).8
The statute defines “token support” as support that, “under the circumstances of the
individual case, is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-
102(1)(B).9 Additionally, concerning the statutory requirements that a parent’s failure to
support must be willful, this Court discussed that criterion as follows:

        The concept of “willfulness” is at the core of the statutory definition of
        abandonment. A parent cannot be found to have abandoned a child . . .
        unless the parent has . . . “willfully” . . . failed to support the child for a
        period of four consecutive months. . . . In the statutes governing the
        termination of parental rights, “willfulness” does not require the same
        standard of culpability as is required by the penal code. Nor does it require
        malevolence or ill will. Willful conduct consists of acts or failures to act
        that are intentional or voluntary rather than accidental or inadvertent.
        Conduct is “willful” if it is the product of free will rather than coercion.
        Thus, a person acts “willfully” if he or she is a free agent, knows what he or
        she is doing, and intends to do what he or she is doing.
        ....
        The willfulness of particular conduct depends upon the actor’s intent.
        Intent is seldom capable of direct proof, and triers-of-fact lack the ability to

        7
          This statute has been amended since the March 27, 2018 order; however, this particular
provision remained unchanged.
        8
           This statute has been amended since the March 27, 2018 order to include the following language
at the end of the subsection: “That the parent had only the means or ability to make small payments is not
a defense to failure to support if no payments were made during the relevant four-month period.” Tenn.
Code Ann. § 36-1-102(1)(D) (2018). This language, however, does not affect the application of the
statute as quoted by the juvenile court.
        9
          This statute has been amended since the March 27, 2018 order; however, this particular
provision remained unchanged.
                                                  -7-
       peer into a person’s mind to assess intentions or motivations. Accordingly,
       triers-of-fact must infer intent from the circumstantial evidence, including a
       person’s actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted). “Whether a parent failed to visit or support a child is a question of
fact. Whether a parent’s failure to visit or support constitutes willful abandonment,
however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn.
Ct. App. 2013). Furthermore, as this Court recently explained:

       It is axiomatic that “in order to establish the ground of abandonment by
       willful failure to support by clear and convincing evidence, the party
       seeking termination must generally ‘submit . . . evidence regarding [the
       parent’s] employment, income, [or] other non-monetary assets’ as well as
       the parent’s ‘expenses during the four-month period.’” In re Michael B.,
       No. M2015-02497-COA-R3-PT, 2016 WL 7486361, at *11 (Tenn. Ct.
       App. Oct. 6, 2016) (quoting In re Destiny H., No. W2015-00649-COA-R3-
       PT, 2016 WL 722143, at *9 (Tenn. Ct. App. Feb. 24, 2016)). Such
       evidence need not be an accounting of every dollar earned and spent, and it
       need not even be tied to dollars and cents, but it must be clear and
       convincing evidence that the parent had the capacity to pay support, did not
       do so, and had no justification for not doing so.

In re Preston L., No. M2016-02338-COA-R3-PT, 2017 WL 4315356, at *5 (Tenn. Ct.
App. Sept. 27, 2017).

        In its order terminating her parental rights, the juvenile court found, in relevant
part, that

       in the four months prior to the filing of this petition . . . [Mother] made no
       payments at all. The proof showed that [Mother] was ordered to pay $50
       per month per child. She paid nothing. [Father] did pay support for his
       children. In fact, the proof was that [Father] paid more than he was ordered
       to pay. The Court would find that there is no excuse given by [Mother] as
       to why she did not pay any support. There was no testimony by [Mother]
       or DCS that [Mother] was incarcerated or hospitalizations or any medical
       reason that would prevent her from paying child support. In fact, the
       testimony by [Mother] was that she smoke[s] cigarettes and that she finds
       money to continue to support her drug habit. The court would therefore
       find, she is able-bodied and capable of gainful employment and to pay child
       support for her children and her failure to do so is willful.

                                           -8-
       . . . [Mother] was aware of her obligation to support her child, knew that it
       was a ground to terminate her parental rights, and still willfully failed to
       support her children. The Court finds by clear and convincing evidence
       that [Mother] failed to pay for the children during the statutory period, and
       therefore, grants the termination of [Mother’s] parental rights based on this
       ground.

The record supports the juvenile court’s findings. As to Mother’s failure to pay any child
support, Ms. Christian provided the following testimony:

       Q: And so the four months leading up to the filing of this petition, between
       . . . November 22, 2016, and March 22, 2017, there were no child support
       payments whatsoever made by [Mother]?
       A: No, ma’am.
       Q: To your knowledge, is there any reason why [Mother] cannot work?
       A: No. There was a period where she did seek employment, and it didn’t
       last for a couple of reasons, from my understanding.
       ....
       Q: Has [Mother] ever been incarcerated or hospitalized during that four-
       month period, to your knowledge, between November 22, 2016, and March
       22, 2017?
       A: No.
       ....
       Q: . . . I believe you testified that you believe that [Mother] is capable of
       gaining employment. You don’t know of any disability that she has?
       A: Not to my knowledge.
       Q: She’s not receiving any kind of disability payments?
       A: Not to my knowledge, no, ma’am.

Further, when Mother was asked whether she had sought any work since the Children
were brought into state custody, Mother replied that she had, but that her “main focus is a
job within itself, which has been [drug] recovery.” When Mother was asked about
Father’s continuous payment of child support, the following exchange took place:

       Q: And as far as child support goes, [Father] was paying child support,
       correct?
       A: Yes, sir.
       Q: And you-all are living together as a couple; is that right?
       A: Yes, sir.
       Q: Did you feel like the two of you were paying that together?
       A: I can’t speak for him on behalf of something I didn’t choose to do. I
       can say that I should have, and, you know, there’s no excuse for that[.]

                                           -9-
Accordingly, based on the above testimonies, including Mother’s admission that she
willfully chose not to pay child support—again, for which she noted there was “no
excuse”—there is no evidence to suggest that Mother had any justification or infirmity,
other than her drug addiction, to preclude her from obtaining gainful employment and
paying child support. Rather, the evidence suggests that Mother failed to pay $50 a
month for each of the Children yet somehow found money to support her drug addiction,
despite her refusal to seek gainful employment. This Court has found that willful
unemployment can equate to a willful failure to support. See In re Austin D., No. E2012-
00579-COA-R3-PT, 2013 WL 357605, at *11-12 (Tenn. Ct. App. Jan. 30, 2013)
(mother’s personal choice not to work contributed to the conclusion that she willfully
failed to pay child support). From the totality of the circumstances, we conclude that
there is clear and convincing evidence to support the juvenile court’s termination of
Mother’s parental rights on the ground of abandonment by willful failure to support.

          B. Abandonment by Willful Failure to Provide a Suitable Home

        Additionally, the juvenile court found that Mother abandoned the Children by her
failure to provide a suitable home. “An essential element of this ground for termination
is proof that ‘[t]he child has been removed from the home of the parent[s] . . . as the
result of a petition filed in the juvenile court in which the child was found to be a
dependent and neglected child, as defined in § 37-1-102, and the child was placed in the
custody of the department . . . .’” In re Aiden R., No. E2015-01799-COA-R3-PT, 2016
WL 3564313, at *7 (Tenn. Ct. App. June 23, 2016) (quoting Tenn. Code Ann. § 37-1-
102(1)(A)(ii)). “[T]he mere suggestion or possibility of an order adjudicating the child
dependent and neglected is not good enough.” In re R.L.M., No. E2013-02723-COA-R3-
PT, 2015 WL 389635, at *3 (Tenn. Ct. App. Jan. 29, 2015).

        Here, DCS concedes on appeal that “[t]he order adjudicating the children
dependent and neglected was entered on August 12, 2016 but is not currently part of the
appellate record.” Although the record does contain the March 22, 2016 preliminary
hearing order finding probable cause that the Children were dependent and neglected and
removing the Children from the home, it contains no order expressly adjudicating the
Children dependent and neglected. See In re Audrey S., 182 S.W.3d at 875 (“The
temporary custody order contains an implicit judicial finding of probable cause that
Audrey S. was dependent, neglected, or abused. It does not contain a finding, either
explicit or implicit, that Audrey S. was in fact dependent, neglected, or abused.”). DCS
states that, pursuant to Tennessee Rule of Appellate Procedure 24(e), it filed a motion to
supplement the record with the adjudicatory order contemporaneously with the filing of
its brief. However, a thorough search of the appellate record has not revealed either the
motion or the order allowing supplementation of the record. Accordingly, the record
currently before this court does not support the juvenile court’s termination of Mother’s
parental rights on the ground of abandonment by willful failure to provide a suitable
home and we, therefore, reverse on this ground.
                                           - 10 -
               C. Substantial Noncompliance with Permanency Plan

       The juvenile court also based its termination of Mother’s parental rights on
substantial noncompliance with the permanency plans established for her by DCS.
Tennessee Code Annotated section 36-1-113(g)(2) provides that grounds for termination
may exist when “[t]here has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan . . . .” As this Court has
previously explained:

      Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
      requires more proof than that a parent has not complied with every jot and
      tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
      113(g)(2), the Department must demonstrate first 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, and second that the parent’s noncompliance is substantial in light of
      the degree of noncompliance and the importance of the particular
      requirement that has not been met. Trivial, minor, or technical deviations
      from a permanency plan’s requirements will not be deemed to amount to
      substantial noncompliance.

In re M.J.B., 140 S.W.3d at 656–57 (internal citations omitted). Additionally, because
determining whether substantial noncompliance exists is a question of law, we review the
issue de novo with no presumption of correctness. In re Valentine, 79 S.W.3d at 548.

       As noted above, on April 7, 2016, DCS, Mother, and Father participated in the
development of the initial permanency plan. Under the plan, Mother’s responsibilities
were as follows: make monthly child support payments of $50.00 for each child; give at
least 24 hours’ notice to cancel or reschedule a visit from DCS; participate in homemaker
services; ensure that the house was kept clean and free of clutter; have the family home
sprayed for roach infestation; have a legal means—either through employment or other
government agencies—to support the Children; make herself available for random drug
screens; provide any medication prescribed for pill counts and test negative for all
substances except those prescribed; complete alcohol and drug treatment to determine
any addictions; avoid using illegal substances around the Children; and participate and
complete an impatient treatment program, which she was to continue until all treatment
goals were met, following all of the recommendations made by the program. The
permanency plan was revised on October 28, 2016. Mother’s requirements under this
subsequent plan remained unchanged, and Ms. Christian spoke with both Mother and
Father to ensure that they understood the criteria contained therein.

      It is undisputed that the primary reasons for the Children’s removal from Mother’s
custody were environmental neglect and Mother’s drug use. In ratifying the foregoing
                                           - 11 -
permanency plans, the juvenile court held that the requirements under the permanency
plans were clearly reasonable and related to remedying the conditions that warranted the
Children’s removal. Concerning Mother’s lack of compliance with the most pressing
requirement of the permanency plan—to be drug free—the juvenile court found that

        [Mother] has not maintained her sobriety nor has she complied with
        treatment recommendations. She has relapsed multiple times during this
        custodial episode, and after her relapse, has continued to test positive for
        non-prescribed drugs. She admitted to daily use of methamphetamine
        during her most recent assessment. She has been recommended to
        complete inpatient treatment for substance abuse and demonstrated a need
        for a higher level of care, but has not complied with the treatment
        recommendations. She was unsuccessfully discharged from an outpatient
        treatment program. She was ordered to have regular visitations with the
        children, but has missed scheduled visitations. Her excuse, by her own
        admission through her testimony, for missing those visitations was that she
        was on drugs[.]

As to Mother’s other responsibilities in the plans, the juvenile court found that Mother
“has not obtained a source of income, nor has she paid support” and that “[s]he has not
consistently maintained the home environment or effectively co-parented with [Father].”
The record supports the juvenile court’s findings. Ms. Christian testified that, during the
four-month period following the date the three children were brought into DCS custody,
March 21, 2016 to July 16, 2016, DCS attempted to assist Mother and Father toward
reunification. For example, Ms. Christian testified that, during this period, she conducted
a walk-through of the family home, requested funding for Mother’s alcohol and drug
assessments should Mother need it, put in multiple referrals to exterminator and
homemaker services, and explained that a safe and stable home was necessary for the
Children’ return to the home. Ms. Christian also testified, however, that Mother did not
participate in homemaker services, failed to pay any child support, and did not have a job
or a legal means of income, despite the fact that there appeared to be no reason that she
could not work. More significantly—and as stated in the above section—since the first
custodial episode in 2014, Mother failed to maintain sobriety and continued to test
positive for illegal substances, including methamphetamine and benzodiazepines. Ms.
Christian testified that Mother also failed to provide all of her prescription medications
for pill counts and, after her most recent relapse, did not successfully complete the
alcohol and drug assessment recommendations. As to the supervised visitations with the
Children, Ms. Christian testified that Mother did not attend all such visits, which,
according to Mother, was because she “was in active use.”10. Based on our review of the

        10
          As to when she stopped visiting her Children, Mother testified: “[E]very visit that has ever been
given or every visit that we’ve ever had with the children was together until my [conscience] told me that
I cannot be around my children high.”
                                                  - 12 -
record in this case, we conclude that there is clear and convincing evidence to support the
juvenile court’s termination of Mother’s parental rights on the ground of substantial
noncompliance with the permanency plan.

                              D. Persistence of Conditions

       The juvenile court also relied on Tennessee Code Annotated section 36-1-
113(g)(3) as a ground for terminating Mother’s parental rights. The statutory ground of
persistence of conditions “applies as a ground for termination of parental rights only
where the prior court order removing the child from the parent’s home was based on a
judicial finding of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 874.
In In re Audrey S., recognizing that a court order changing or awarding custody of a
minor child does not necessarily imply a finding of dependency, neglect, or abuse, this
Court determined that an order changing custody was insufficient to support a finding of
persistent conditions because it did not contain an explicit or implicit finding that the
child was dependent, neglected, or abused. See id. at 875-76. Since the In re Audrey S.
decision, this Court has consistently held that a court order adjudicating the child or
children to be dependent, neglected, or abused is required to terminate a parent’s rights
on the statutory ground of persistence of conditions. See, e.g., State of Tenn., Dep’t of
Children’s Servs. v. Hood, 338 S.W.3d 917, 928 (Tenn. Ct. App. 2009) (“Because there
was never a judicial finding of dependency, neglect or abuse, based on clear and
convincing evidence, persistence of conditions under Tenn. Code Ann. § 36–1–
113(g) cannot be a ground for termination of parental rights.”); In re Aiden R., 2016 WL
3564313, at *9 (“An essential prerequisite to establishing persistence of conditions is
evidence of a ‘prior court order removing the child from the parent’s home . . . based on a
judicial finding of dependency, neglect or abuse.’”).

       As in In re Audrey S., the appellate record before us does not contain a court order
removing the Children from Mother’s custody based on a finding of dependency, neglect,
or abuse as required by Tennessee Code Annotated section 36-1-113(g)(3). We
conclude, therefore, that, in the absence of such a court order, there is not clear and
convincing evidence to support the juvenile court’s termination of Mother’s parental
rights on this ground and we, therefore, reverse this ground for termination.

                                  V. BEST INTERESTS

       Having found at least one statutory ground on which to sustain termination of
Mother’s parental rights, we must now consider whether the petitioner has proven by
clear and convincing evidence that termination of Mother’s parental rights is in the
Children’s best interests. See Tenn. Code Ann. § 36-1-113(c)(2). Once the court has
determined that the parent is unfit based on clear and convincing evidence that one or
more of the grounds for termination exists, the interests of the parent and child diverge,
and the interests of the child become the court’s paramount consideration. In re Audrey
                                          - 13 -
S., 182 S.W.3d at 877. If the interests of the parent and the child conflict, the court must
always resolve the conflict in favor of the rights and best interests of the child. Tenn.
Code Ann. § 36-1-101(d). Tennessee Code Annotated section 36-1-113(i) sets forth the
following list of factors to be considered when determining a child’s best interests in a
termination of parental rights case:

       (1) Whether the parent or guardian has made such an adjustment of
       circumstance, conduct, or conditions as to make it safe and in the child’s
       best interest to be in the home of the parent or guardian;
       (2) Whether the parent or guardian has failed to effect a lasting adjustment
       after reasonable efforts by available social services agencies for such
       duration of time that lasting adjustment does not reasonably appear
       possible;
       (3) Whether the parent or guardian has maintained regular visitation or
       other contact with the child;
       (4) Whether a meaningful relationship has otherwise been established
       between the parent or guardian and the child;
       (5) The effect a change of caretakers and physical environment is likely to
       have on the child’s emotional, psychological and medical condition;
       (6) Whether the parent or guardian, or other person residing with the parent
       or guardian, has shown brutality, physical, sexual, emotional or
       psychological abuse, or neglect toward the child, or another child or adult
       in the family or household;
       (7) Whether the physical environment of the parent’s or guardian’s home is
       healthy and safe, whether there is criminal activity in the home, or whether
       there is such use of alcohol, controlled substances or controlled substance
       analogues as may render the parent or guardian consistently unable to care
       for the child in a safe and stable manner;
       (8) Whether the parent’s or guardian’s mental and/or emotional status
       would be detrimental to the child or prevent the parent or guardian from
       effectively providing safe and stable care and supervision for the child; or
       (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).11

       Addressing each of the nine factors listed above, Mother argues that the record
does not contain clear and convincing evidence that terminating her parental rights would
be in the Children’s best interests. Although courts should consider the factors listed

       11
           This statute has been amended since the March 27, 2018 order; however, this particular
provision remained unchanged.
                                             - 14 -
in Section 36–1–113(i) to the extent that they are relevant to the particular facts and
circumstances of the case, the list is “not exhaustive, and the statute does not require a
trial court to find the existence of each enumerated factor before it may conclude that
terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending on the circumstances of the case, the
consideration of a single factor, or of facts outside the statutory factors, may dictate the
outcome of the court’s analysis. In re Audrey S., 182 S.W.3d at 878. Pertaining to the
juvenile court’s conclusion, Mother argues that she completed inpatient rehab in February
2017 and that there was no evidence of relapse since. This contention, however, fails to
address the proof offered by Ms. Christian that, from November 21, 2016 to March 21,
2017, Mother tested positive on multiple drug screens for methamphetamines and
benzodiazepines. Accordingly, we conclude that the juvenile court appropriately
considered the overall circumstances in making the best interests determination. As the
juvenile court noted, Mother put minimal effort into improving her circumstances
following the Children’s removal and has not demonstrated that she has become any
more capable of providing the Children with a safe and stable home. In light of the
foregoing, we are satisfied that the record contains clear and convincing evidence that
terminating Mother’s parental rights is in the Children’s best interests.

                                     VI. CONCLUSION

       For the foregoing reasons, although we reverse the juvenile court’s order with
respect to the grounds of abandonment by failure to provide a suitable home and
persistence of conditions, we conclude that clear and convincing evidence supports the
remaining grounds—abandonment by failure to provide child support and substantial
noncompliance with the permanency plans—for terminating Mother’s parental rights and
we further conclude that clear and convincing evidence supports the juvenile court’s
determination that termination of Mother’s parental rights to F.R.J., B.J.J., and D.W.J. is
in the Children’s best interests.

                                                    _________________________________
                                                    ARNOLD B. GOLDIN, JUDGE

                                           - 15 -


410 So.2d 741 (1982)
STATE of Louisiana
v.
Lawrence DAY.
No. 81-KA-1022.
Supreme Court of Louisiana.
January 25, 1982.
Rehearing Denied March 19, 1982.
*742 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
Jack M. Dampf of D'Amico & Curet, Baton Rouge, for defendant-appellant.
JAMES C. GULOTTA, Justice ad hoc[*].
Defendant was convicted of violating LSA-R.S. 14:95.1, which makes it unlawful for certain convicted felons to possess a firearm or carry a concealed weapon.[1] Appealing, defendant cites three errors by the trial court: (1) the erroneous admission of defendant's alleged "discharge certificate from parole" document into evidence; (2) the erroneous admission of his alleged "rap sheet" into evidence; and, (3) the trial court's failure to grant his motion for directed verdict on the ground of a lack of evidence of his possession of a firearm as charged in the indictment. Although we find no error in the denial of the motion for a directed verdict, we conclude the trial judge erroneously admitted the defendant's parole discharge certificate. We therefore reverse the conviction.

PROOF OF POSSESSION
Turning first to the trial judge's denial of defendant's motion for directed verdict, we find no merit to defendant's contention that there was a lack of evidence as to his possession of a firearm.
On December 14, 1979, a detective of the Baton Rouge City Police Department executed a search warrant of defendant's residence in Baton Rouge. Defendant was not home at the time the warrant was executed, but his wife directed the detective to a paper bag above a cabinet in their living room that contained a Colt caliber 357 Python revolver. Defendant, who had been convicted on three counts of simple burglary in 1963-64, was then charged with being a convicted felon in possession of a firearm.
Although not disputing that he had purchased the weapon four years before it was found by the police in his residence, defendant contends that the evidence was insufficient to establish that he was in actual *743 possession of the weapon at the time it was seized.
LSA-R.S. 14:95.1 makes it unlawful for certain convicted felons "... to possess a firearm...." The statute does not make "actual" possession a necessary element of the offense or specifically require that the defendant have the firearm on his person to be in violation. In the absence of a statutory requirement of actual possession, we conclude that "constructive" possession of a firearm by a convicted felon satisfies the possessory element of LSA-R.S. 14:95.1.
On the question of sufficiency of evidence, in our case, the applicable standard is whether a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt, that the defendant was in possession of the firearm. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because the undisputed evidence shows that the defendant had purchased the revolver four years prior to its recovery and the weapon was found in defendant's residence, we conclude the requirement of a finding of possession, as contemplated by LSA-R.S. 14:95.1, was met in this case.
This assignment of error has no merit.

AUTHENTICATION OF "DISCHARGE CERTIFICATE FROM PAROLE"
The State introduced over defendant's objection, a copy of his certificate of discharge from parole. This document was introduced to show that the defendant had not been discharged from custody on the 1963-64 burglary convictions until January 8, 1971, within ten years of the commission of the possession offense. See LSA-R.S. 14:95.1(C)(1).[2]
In this assignment of error, defendant contends the trial court erred in allowing the introduction of the discharge certificate because the State failed to authenticate it properly. We agree.
In State v. Nicholas, 359 So.2d 965 (La. 1979), this court stated:
"[11] According to this court's reasoning in Tillman and Martin, in order to be properly authenticated, a copy of a document presented in court must either be certified to by the officer who is the legal custodian of the document, or it must appear by clear evidence that the person certifying the document has been entrusted with legal custody of the original by the original custodian. Likewise, the witness introducing the document in evidence must testify from personal knowledge as to the fact of its official custody, such as testimony as to from whom or from which office he received the document. Wigmore, Section 2158(b)(b)(1)." [footnote omitted]."
In State v. Tillman, 356 So.2d 1376 (La. 1978), a document was held inadmissible where it bore no certificate that it was a true copy of an original and where it was not established that the official who testified at trial in connection with the introduction of the document was the legal custodian of the original or had been delegated the duties of maintaining lawful custody and certifying copies as required by LSA-R.S. 15:457.[3]
In our case, Steve Cole, a probation and parole agent employed by the Department of Correction in the Division of Probation *744 and Parole, testified that he had custody, control and supervision over parole records of the State of Louisiana in his district. Cole produced what he asserted was defendant's original certificate of parole and testified that he had retrieved it from his office. He could only assume how the certificate came into his office, however, and stated that he believed at some time the document had been maintained in the state archives. He admitted that he was not the head of his department and he did not work in the state archives. A copy of the certificate of discharge admitted into evidence bears no certificate of authenticity. Furthermore, Cole did not testify that he had been delegated as the legal custodian of the document.
Applying the Nicholas and Tillman cases to the instant case, we hold defendant's parole discharge was not properly certified and should not have been admitted into evidence. Having so concluded, we reverse and set aside the conviction. Because the erroneous admission of the parole discharge certificate constituted a "trial error", defendant is granted a new trial. State v. Tillman, supra.[4]
Accordingly, this matter is remanded to the trial court for further proceedings consistent herewith.
REVERSED AND SET ASIDE.
NEW TRIAL GRANTED.

ON APPLICATION FOR REHEARING
PER CURIAM.
Rehearing denied.
The opinion is incorrect in stating that the certificate of discharge from parole was a copy instead of an original. Nevertheless, the result is correct because before an original document may be received to prove the truth of its content it must be authenticated. State v. Nicholas, 359 So.2d 965 (La.1978); State v. Tillman, 356 So.2d 1376 (La.1978); State v. Martin, 356 So.2d 1370 (La.1978); see J. Wigmore, Evidence, §§ 1637, 2129 (1974). An original document may be authenticated as genuine by the certification of the custodian because of the presumption that he will carry out his duty to receive, record, and certify only genuine official papers and reports. Wigmore, supra, at §§ 2158-59; C. McCormick, Evidence, § 224 (Cleary ed. 1972); State v. Nicholas, supra at 969. The authority to testify to the authenticity of an original may be delegated when practical necessity dictates, but it should clearly appear in evidence that the person authenticating an original by custody has been entrusted with legal custody of the original document by the official custodian. State v. Nicholas, supra, at 969; State v. Tillman, supra, at 1378. He must also clearly know and show that its place of origin was the proper one. Wigmore, supra, at § 2158.
In the case at hand, the state sought to authenticate the certificate of discharge from parole through the testimony of a probation and parole agent who testified that he was not in charge of such records and was unsure of where the document had been kept. He could only assume that the document had been maintained at some time in the state archives and admitted that he did not work in the state archives. Therefore, the original certificate of discharge from parole was not sufficiently authenticated and should not have been admitted into evidence.
MARCUS, WATSON and LEMMON, JJ., would grant.
NOTES
[*]  Judges James C. Gulotta and Jim Garrison of the Fourth Circuit Court of Appeal, and Judge Bernard J. Bagert of the Criminal District Court for the Parish of Orleans, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., and Fred A. Blanche.
[1]  LSA-R.S. 14:95.1 reads as follows:

"§ 95.1 Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars."
[2]  LSA-R.S. 14:95.1(C)(1) reads as follows:

"C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence."
[3]  LSA-R.S. 15:457 provides:

"§ 457. Force of certified documents as evidence; unauthorized certificates
A copy of a document, certified to by the officer who is the legal custodian of the same is equivalent to the original in authenticity; but the certificate of an officer to any matter not under the general powers vested in him is no evidence at all."
[4]  Since we have concluded the "discharge certificate from parole" document was not properly admitted into evidence, no necessity exists to consider defendant's assignment of error that the "rap sheet" was not properly authenticated or certified by the proper custodian.