08/13/2021 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs June 1, 2021

IN RE MATTHEW K. ET AL.

Appeal from the Circuit Court for Hamilton County No. 19A183 W. Jeffrey Hollingsworth, Judge ___________________________________

No. E2020-00773-COA-R3-PT1 ___________________________________

This consolidated appeal involves termination of parental rights in a case focusing on Zayne R., the minor child of Brittney R. (“Mother”) and Joseph D., and Matthew K., the minor child of Mother and Joshua K. In June 2019, Mother’s parents, Larry R. (“Grandfather”) and Bertha R. (“Grandmother”) (collectively, “Grandparents”), filed two petitions in the Hamilton County Circuit Court (“trial court”), seeking termination of Mother’s parental rights, respectively, to Zayne R. and Matthew K. (collectively, “the Children”). The Children had previously been removed from Mother’s custody and placed in the custody of Grandparents pursuant to an order entered by the Hamilton County Juvenile Court (“juvenile court”). Following a consolidated bench trial, the trial court granted Grandparents’ termination petitions based upon its finding by clear and convincing evidence that Mother had abandoned the Children by failing to visit and by failing to financially support them during the statutorily determinative period. The trial court further found that it was in the Children’s best interest to terminate Mother’s parental rights. Mother has appealed. Discerning no reversible error, we affirm the trial court’s final orders terminating Mother’s parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which W. NEAL MCBRAYER and KENNY W. ARMSTRONG, JJ., joined.

Stephanie Rogers, Chattanooga, Tennessee, for the appellant, Brittney R.

Berry Foster, Chattanooga, Tennessee, for the appellees, Larry R. and Bertha R.

1 Upon review of the appellate records as transmitted from the trial court and a determination that the two cases were tried together and involved the same appellant and appellees, this Court entered a sua sponte order on October 30, 2020, consolidating the appellant’s appeal in case number E2020-00774-COA-R3-PT with this appeal.

OPINION

I. Factual and Procedural Background

Zayne R. (“Zayne”) was born in June 2007. On October 25, 2016, the juvenile court placed Zayne in the legal custody of Grandparents. At the time of trial, Zayne had remained in Grandparents’ custody and care continuously since that date. Both Mother and Grandmother testified during the termination trial concerning the circumstances that precipitated the juvenile court’s award of custody of Zayne to Grandparents. According to Mother, she had agreed for Grandparents to have custody of Zayne during a 2016 hearing because she was “not at a point financially or mentally” to take care of him.^[2] Mother also stated that although she had informed the juvenile court that it was “in the best interest of [Zayne] for [Grandparents] to take care of him,” she had intended this arrangement to be a temporary one.

Grandmother explained during the termination trial that she and Grandfather had initially pursued custody of Zayne when Mother’s relationship with her then-boyfriend was not “going right and she appeared to be getting on drugs . . . .” Grandmother also testified that on June 5, 2016, Grandfather had received a phone call from Mother “ranting and raving” and asking them to come get Zayne. According to Grandmother, Mother had also sent her text messages indicating that she and Zayne were “living on the streets.” Grandmother explained that they had “felt like Zayne was in a situation where it was becoming unsafe for him . . . .”

Mother related during the termination trial that the juvenile court had conditioned the return of Zayne to Mother’s custody on her ability to obtain and maintain employment, a vehicle, and a stable residence for a period of six months. Grandmother testified that the juvenile court had determined that it would consider returning custody to Mother if she provided the court with proof of six months of steady employment and a stable residence, proof of ownership of a vehicle, a note from a psychiatrist stating that she could raise a child again, and a note from Zayne. Mother testified that the juvenile court had granted Grandparents a measure of discretion concerning Mother’s visitation with Zayne.

Matthew K. (“Matthew”) was born in July 2018. On October 16, 2018, the juvenile court placed Matthew in the legal custody of Grandparents. At the time of trial, he had remained in their custody and care continuously since that date. Grandmother testified concerning the circumstances leading to Grandparents’ custody of Matthew. Mother and Mother’s then-boyfriend had taken one of Grandfather’s vehicles, and Grandparents did not hear from Mother for “a couple of months” until she called them from Alabama.

2 Although the record does not provide a clear description of the juvenile court proceedings, it appears that the Children were placed in Grandparents’ custody after the juvenile court granted Grandparents’ petitions to adjudicate the Children dependent and neglected.

Grandmother further explained that Mother told her that the vehicle had broken down and that her boyfriend had left. Although the timeline is unclear from her testimony, Grandmother stated that Mother went into premature labor due to dehydration at some point following this trip to Alabama. When Grandmother visited Mother in the hospital, Mother admitted to recent drug use. After Matthew was born, and upon Grandparents’ emergency petition, the juvenile court granted temporary custody of him to Grandparents.

At trial, Mother acknowledged that the juvenile court had ordered her to take a drug test before a custody adjudication with regard to Matthew. According to Mother, she did not submit to a drug test because she could not afford one. By the time of the “second court date,” Mother was homeless and without a source of income. As a result, Mother did not attend the October 16, 2018 hearing, and Matthew remained in the custody of Grandparents. According to Grandmother, the juvenile court did not place any conditions on Mother’s ability to regain custody of Matthew because she was not present during the hearing. Mother acknowledged during trial that she was not in a position to regain custody of Matthew at the time of the juvenile court hearing.

On June 4, 2019, Grandparents concomitantly filed in the trial court separate petitions seeking termination of Mother’s parental rights concerning Zayne and Matthew (collectively, “the Petitions”). In the Petitions, Grandparents alleged the following statutory grounds for the termination of Mother’s parental rights as to both Children: (1) abandonment by failure to visit the Children for a period of four consecutive months immediately preceding the filing of the Petitions; (2) abandonment by failure to make reasonable payments toward the support of the Children for a period of four consecutive months immediately preceding the filing of the Petitions; and (3) persistence of the conditions that led to the removal of the Children from Mother’s custody.^[3] The trial court in its final orders referred to the four-month statutory period as February 4, 2019 through June 3, 2019 (“Determinative Period”), and we determine that this is the correct statutory period. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085 at *6 (Tenn. Ct. App. Feb. 20, 2014) (concluding that the applicable four-month statutory period preceding filing of the termination petition ends on the day preceding filing).

Proceeding initially without benefit of counsel, Mother filed responses to the Petitions on June 28, 2019, raising the affirmative defense of lack of willfulness relative to the ground of abandonment based on her failure to visit. According to Mother’s response, Grandparents had prevented her from visiting the Children by addressing her requests to

3 Grandparents also alleged in the Petitions statutory grounds warranting termination of Joseph D.’s parental rights to Zayne and Joshua K.’s parental rights to Matthew. On January 31, 2020, the trial court terminated both fathers’ parental rights following a hearing conducted on December 4, 2020, at which neither father appeared. The trial court found that the fathers had each failed to respond in any way or contest any issue and that each had abandoned his child by failure to visit and support during the four months preceding the filing of the Petitions. Because the fathers are not parties to this appeal, our focus will remain on the facts relevant to the statutory grounds for termination of Mother’s parental rights.

visit with responses such as: “We have to be somewhere tonight”; “Zayne has a ball game”; or “Not today Brittney, I have [a] doctor[’s] [appointment].” Mother asserted that she currently had a job, stable housing, and a vehicle and that she was prepared to regain custody of the Children. Despite these changes in circumstance, Mother acknowledged during trial that she had never filed a petition for visitation or to regain custody of the Children, stating that she did not know she could file such petitions.

On August 28, 2019, Mother filed a motion requesting that the trial court appoint an attorney to represent her. By order entered September 26, 2019, the trial court appointed counsel to represent Mother upon determining that she was indigent. The trial court also appointed attorney Lucy C. Wright as a guardian ad litem (“GAL”) to represent the interests of the Children.

The trial court conducted a bench trial on January 24, 2020, during which Mother and Grandparents testified. Mother presented testimony and exhibits demonstrating a considerable level of improvement in her life circumstances and stability. Mother testified that she had been living with her fiancé, T.B., in Rossville, Georgia, for the previous nine or ten months. Mother added that she and T.B. were leasing a home. In support, she presented a lease indicating that she and T.B. were co-lessees. Mother also testified that she had placed child locks on doors throughout the house and had obtained a crib in preparation for regaining custody of Matthew. In addition, Mother stated that she had a bed for Zayne, along with toys and books for the Children. Mother presented a video depicting the condition of her home, which corroborated her testimony in this regard. Mother added that she owned a vehicle jointly with T.B. as well and presented a certificate of title to the vehicle identifying T.B. and Mother as co-owners. Mother further pointed out that she had maintained employment as a “secretary/bookkeeper” at T.B.’s automotive business where she earned $250.00 per week while working thirty-eight to forty-two hours per week by the time of trial.

Mother reportedly sought mental health and drug treatment at Helen Ross McNabb in 2017. According to Mother, she was diagnosed with bipolar disorder and prescribed Abilify, which she was no longer taking. Mother further related that she traveled to Helen Ross McNabb every other week for two and one-half months, making a total of five visits. Mother added that the last time she had received treatment from Helen Ross McNabb was in October 2017. Mother explained that a Helen Ross McNabb staff member diagnosed her with bipolar disorder and reached “the conclusion that it was just because of all the stuff I had been through, the trauma I had been through that year, so we did a short-term plan and I went through the short-term plan and made it through that and I’ve been fine ever since.” Mother indicated that she had not used drugs in more than two years and that no drug use occurred in her household.

In terms of visitation, Mother testified that she had visited the Children between ten and thirteen times during the Determinative Period. Mother emphasized: “I have visited as much as my parents have allowed me to. They’re usually too busy for me to see them or they’ve already got plans for the day, so it’s been hard for me to see my children due to their schedule.” Mother estimated that she had visited the Children forty times since they were first placed in Grandparents’ custody and had written Zayne three or four letters during that time. Mother further stated that she had been to two of Zayne’s Taekwondo sessions but had not been able to attend any of his baseball games because Grandparents had not notified her of when games were scheduled.

Mother presented several photographs evidencing her visits with the Children. The first photograph, depicting Mother and Matthew, was dated March 6, 2019. Mother related that the photograph was taken when she met Grandmother at Grandparents’ rental house to retrieve some of the personal items that Mother had previously left. The second photograph was of the Children and was dated March 25, 2019. Mother stated that this photograph was made after she had asked Grandmother to bring the Children to her workplace, where they spent three or four hours. Another photograph depicted Mother holding Matthew at Zayne’s birthday party on June 1, 2019. These were the only photographs proffered by Mother that had been taken during the Determinative Period. Mother presented additional photographs and one video establishing that she had visited with at least one of the Children approximately eight times from December 2018 to December 2019.

Mother also offered copies of several text conversations to evince her efforts to visit the Children. The first communication was sent from Mother to Grandmother on March 16, 2019, explaining the meaning of the Children’s names and inquiring whether Zayne had received the Valentine’s Day letter she had sent. A text conversation from April 7, 2019, consisted of Mother communicating at 12:06 p.m.: “Hey call me when you leave church we are at the flea market wanted to see if maybe wanted to come.” Later, Mother texted again, this time at 4:51 p.m.: “Tell [Z]ayne to call me when you guys get a chance.” Grandfather later responded at 5:11 p.m., stating, “I tell him to call you after church” and “We been busy all day.”

Mother also proffered a text conversation dated May 19, 2019, reflecting that Grandmother had invited Mother to Zayne’s twelfth birthday party. Another copy of a text conversation reflects that Grandmother had messaged Mother on June 7, 2019, asking if Mother could send any photographs that she might have taken during Zayne’s birthday party. Mother responded by sending three photographs. A text conversation from June 24, 2019, evidenced that Mother had inquired of Grandmother whether she and Grandfather would be having a birthday party for Matthew. Grandmother responded with a date and time. The final text message, dated July 24, 2019, demonstrates that Mother contacted Grandfather, stating: “Hey I’ve been trying to call to come see the boys. I’ve got Matthew and [Z]ayne some stuff. Want to see them.” Only three of these text conversations occurred during the Determinative Period. One reflected an attempt on Mother’s part to see the Children.

As for financial support, Mother testified: “Every time [she] called or spoke to [Grandparents] they told [her] that they had everything taken care of.” Mother related that she had provided baby food, formula, and cereal to Grandparents for Matthew on one occasion in February 2019 and that she had given Zayne a shirt, pants, and underwear and Matthew onesies at some point during the Determinative Period. Mother also articulated that she had provided Zayne between ten and fifty dollars every time she saw him and that she had presented the Children birthday and Christmas gifts every year.

According to Mother, she would give Zayne cash because Grandparents would not accept money from her. Mother claimed that she did not know she had to pay monthly support until Grandparents filed the Petitions. However, when she did learn that she was obligated to pay monthly support, she gave her attorney $100.00 to deliver to Grandparents in October 2019. Mother further testified, however, that because Grandparents would not accept the $100.00, she ended further attempts to offer payments. Regarding her ability to provide support, Mother explained that she had been making $250.00 per week since November 2018 and that she was neither incarcerated nor disabled during the Determinative Period.

Grandmother’s trial testimony contradicted much of Mother’s testimony. According to Grandmother, Mother visited the Children only four times during the Determinative Period. With respect to Matthew, Grandmother indicated that Mother had visited him approximately fifteen times rather than forty since Grandparents had obtained custody. Grandmother also stated that the first time Mother visited Matthew was when she appeared at Grandparents’ home needing a place to sleep. According to Grandmother, the next occasion Mother saw Matthew was when Grandmother transported Mother to court. Grandmother related that she and Grandfather would not permit Mother to take Matthew unsupervised to an event called “the Enchanted Garden” due to her lack of previous visitation and Matthew’s separation anxiety. Grandmother noted that this was the only time when Mother had requested to visit with Matthew outside Grandparents’ home without their supervision. With respect to Zayne, Grandmother testified that Mother visited with him when (1) she brought the Children to see Mother at work on March 6, 2019; (2) Mother took Zayne to the flea market on April 21, 2019; and (3) Mother attended Zayne’s birthday party on June 1, 2019.

Regarding support, Grandmother stated that Mother never offered to provide any type of support for the Children during the Determinative Period. Grandmother acknowledged, however, that Mother gave Zayne a birthday gift plus $15.00 or $20.00 on June 1, 2019. Similarly, Mother had provided the Children gifts in the past for birthdays and Christmas. However, Grandmother denied that she and Grandfather had rejected support from Mother, insisting: “We would not turn any help down from anybody.” Grandmother also denied ever informing Mother that they did not need financial help, emphasizing that they had been fortunate to have received clothing for Matthew from others. Grandmother did express that in January 2019, Mother offered to assist, bringing four cans of formula and ten jars of baby food for Matthew and a pair of underwear for Zayne.

During trial, Grandfather acknowledged that Mother had “changed her life,” stopped using drugs, and was “doing great.” In his opinion, however, Mother could not raise the Children. Mother’s counsel questioned Grandfather regarding whether he had contacted his sister, M.R. (“Aunt”), after he observed that Aunt was at the court hearing on December 4, 2019. Although Grandfather confirmed that Aunt was present and that he had called her to inquire as to why, he denied ever instructing Aunt not to return to court.

Upon the conclusion of Grandparents’ proof, Mother sought to call three rebuttal witnesses: Aunt, T.B., and T.B.’s mother. Opposing counsel objected on the basis that Mother’s witness list was received the night before trial. In turn, Mother’s counsel asserted that the rebuttal witnesses were determined to be necessary only following Grandparents’ testimony. Counsel also emphasized that all of the rebuttal witnesses were known and had been present during the previous hearing on December 4, 2019. Counsel for Grandparents countered, “I have no earthly idea who either of them were and . . . I haven’t had the time to either ask them what they’re going to talk about . . . .” With reference to Rule 8.02(c) of the Eleventh Judicial District Local Rules of Civil Practice, the trial court ruled:

[A]t least ten business days before trial[,] the parties shall file and serve by facsimile or by hand[:] a witness list[,] including names, addresses[,] and, if known, telephone numbers of all witnesses, including rebuttal witnesses. And the last time we were here you convinced me that you hadn’t had time to get prepared and that was the reason, over objection and somewhat reluctantly on my part, to continue this matter because you convinced me that you hadn’t had time to prepare, so we come in some two months later and we’re getting the witness list the night before the hearing. I’m not going to allow you to call these witnesses. I just think under these circumstances I’d be just totally ignoring the local rules and even if Aunt Helen or whoever she is came in and said, [Grandfather] said what you said [Aunt] said, it’s really not going to make much difference in this case.

Prior to the trial court’s adjudication on the merits, the GAL reported that the Children were “doing great” and recommended that Mother’s parental rights to the Children be terminated. According to the GAL, Zayne “barely mentioned” Mother during their one-on-one interview, and he seemed to be thriving while in the custody of Grandparents. In the GAL’s estimation, this was a “last-ditch effort by mom” to regain custody of the Children. Furthermore, the GAL elucidated:

Once [Mother] knew that the writing was on the wall, she kind of came forth and tried to fight, but even then it causes me some concern that there wasn’t this big effort to fight. Even after she knew support was being alleged, that she didn’t pay it. She still didn’t pay it. She could have dumped stuff on the porch or put it in the bank and her saying that she’s tried as hard as she can, it’s not good enough for the kids and it’s too late.

Upon the close of trial, the trial court orally dismissed Grandparents’ claim that the conditions leading to the Children’s removal persisted, noting: “Everybody agrees she’s remedied conditions. That’s not an issue.” In addition, the trial court afforded Mother credit for the “tremendous progress” she had made. However, despite such progress, the trial court found that she had abandoned the Children through her failure to visit and pay support during the Determinative Period. Although the trial court noted that Mother had claimed by affirmative defense that Grandparents had prevented her from visiting the Children, the court determined Grandmother’s testimony as more credible than Mother’s and thereby discounted Mother’s asserted defense.

In two final orders, one pertaining to each of the Children, the trial court found that Mother had visited the Children only four times over the course of the Determinative Period and that she had initiated only one of those visits. Significantly, the trial court concluded that these visits constituted token visitation. The trial court accordingly determined that Grandparents had presented clear and convincing evidence to support a finding that Mother had abandoned the Children by failure to visit during the Determinative Period.

The trial court further found that Mother had not raised an affirmative defense with respect to Grandparents’ claim of abandonment by failure to pay support. Citing Tennessee Code Annotated § 36-1-102(1)(H), the trial court explained that every parent who is eighteen years or older is presumed to have knowledge of a legal obligation to support her children. Consequently, the trial court concluded that Mother’s claim that she did not know she needed to provide support to the Children proved unavailing. Ergo, the trial court concluded that the ground of abandonment by failure to provide financial support for the Children during the Determinative Period had been proven by clear and convincing evidence. Furthermore, the trial court noted in each order that “the other grounds that may have been raised in the petition to terminate have either been waived or conceded that there was no basis for them.”

Following an analysis of each best interest factor, the trial court determined by clear and convincing evidence that termination of Mother’s parental rights was in the Children’s best interest. The trial court subsequently entered orders terminating Mother’s parental rights respectively to Zayne and Matthew on May 4, 2020. Mother timely appealed.

II. Issues Presented

Mother has raised the following issues on appeal, which we have restated slightly as follows: (Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our Supreme Court has explained:

The parental rights at stake are “far more precious than any property right.” Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of parental rights has the legal effect of reducing the parent to the role of a complete stranger and of [“]severing forever all legal rights and obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating parental rights is “final and irrevocable”). In light of the interests and consequences at stake, parents are constitutionally entitled to “fundamentally fair procedures” in termination proceedings. Santosky, 455 U.S. at 754; see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27 (1981) (discussing the due process right of parents to fundamentally fair procedures).

Among the constitutionally mandated “fundamentally fair procedures” is a heightened standard of proof—clear and convincing evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of unnecessary or erroneous governmental interference with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and- convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not. In re Audrey S., 182

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S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

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In light of the heightened burden of proof in termination proceedings, however, the reviewing 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 Bernard T., 319 S.W.3d at 596- 97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental] rights must prove all the elements of their case by clear and convincing evidence,” including statutory grounds and the best interest of the child. See In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). In addition, as our Supreme Court has explained, this Court is required “to review thoroughly the trial court’s findings as to each ground for termination and as to whether termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d at 525.

IV. Exclusion of Evidence

Mother contends that the trial court erred in precluding her three rebuttal witnesses from testifying during trial, predicated on her failure to comply with Eleventh Judicial District (Hamilton County) Local Rule of Civil Practice 8.02(c) requiring parties to file and serve a witness list at least ten business days before trial. Mother specifically argues that (1) the trial court could not have undertaken “the thorough fact-finding” process required for parental termination hearings based solely on the parties’ testimonies, particularly considering that all rebuttal witnesses would have had information relevant to the grounds of abandonment and best interest of the Children; (2) the trial court could have imposed a sanction less harsh than barring the testimony of the three witnesses; (3) Grandparents were not unfairly disadvantaged by the late notice and had “implicit and explicit notice of the witnesses” because the witnesses were present in the gallery during the December 4, 2019 hearing and Grandparents knew each witness; and (4) Mother was not afforded a fundamentally fair procedure due to the trial court’s ruling preventing these witnesses from testifying at trial.

Grandparents initially argue that Mother waived this issue by failing to cite relevant authority in the argument section of her appellate brief in accordance with Tennessee Rule of Appellate Procedure 27(a)(7). With respect to Mother’s substantive claim, Grandparents posit that the burden was upon Mother to comply with the local rules and that the trial court acted within its proper authority to enforce them.

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A. Waiver

As a threshold matter, we will first address Grandparents’ argument that Mother’s failure to comply with Rule 27(a)(7) serves as a waiver of Mother’s contention that the trial court erred by enforcing Local Rule 8.02(c) and thereby prohibiting Mother’s rebuttal witnesses from testifying. Rule 27(a) provides in pertinent part:

(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

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(7) An argument, which may be preceded by a summary of argument, setting forth:

(A) the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on[.]

Although Mother prefaces her postulate with language from In re Malik G. describing a parent’s entitlement to fundamentally fair procedures in termination proceedings, she fails to provide specific authority for any of her contentions regarding the trial court’s enforcement of Local Rule 8.02(c). See In re Malik G., No. E2019-01040-COA-R3-PT, 2019 WL 6245483, at[*10] (Tenn. Ct. App. Nov. 21, 2019). This Court has previously concluded that “[f]ailure to cite to relevant authority constitutes a waiver of the issue.” Lett v. Collis Foods, Inc., 60 S.W.3d 95, 105 (Tenn. Ct. App. 2001); see also City of La Vergne v. LeQuire, No. M2016-00028-COA-R3-CV, 2016 WL 6124117, at *2 (Tenn. Ct. App. Oct. 19, 2016) (“Tennessee courts have routinely held that the failure to cite relevant authority in compliance with that rule constitutes a waiver of the issue.”).

Nevertheless, this Court may exercise its discretion to “suspend or relax the procedural rules in a given case for good cause.” City of La Vergne, 2016 WL 6124117, at *2 (citing Tenn. R. App. P. 2). In addition, “[t]he Tennessee Rules of Appellate Procedure should be construed to afford all parties a hearing on the merits.” Paehler v. Union Planters Nat’l Bank, 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997) (deciding the appeal on the merits despite acknowledging that the appellant failed to comply with Rule 27); see also Tenn. R. App. P. 1 (“These rules shall be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits.”).

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Given the significant interests at stake in the instant case, we will address Mother’s initial issue despite her failure to cite relevant authority in support of her contentions. Furthermore, Grandparents have not claimed that they would be unfairly prejudiced by our consideration of this question, and Mother’s argument is not so substantially unclear as to impede our ability to address it. See City of La Vergne, 2016 WL 6124117, at *2 (finding good cause to decide the merits of the appeal when the deficiencies in the appellant’s brief did not impede this Court’s ability to do so, the appellant’s argument was clear, and the appellee did not claim that it would be unfairly prejudiced). We will therefore consider the merits of Mother’s first issue.

B. Fundamentally Fair Procedure

Although Mother’s position is not entirely clear, we discern two primary arguments with regard to the trial court’s enforcement of its local rule and exclusion of witness testimony. First, Mother ostensibly argues that the trial court’s enforcement of Local Rule 8.02(c) and its resultant decision to exclude the testimony of her witnesses impaired her ability to receive a fundamentally fair termination proceeding. Moreover, although Mother never references the phrase, “abuse of discretion,” she also appears to argue that the trial court abused its discretion by prohibiting her witnesses from testifying, particularly when these witnesses could have offered evidence relevant to the grounds for termination and the best interest of the Children.

The question of whether a trial court’s exclusion of rebuttal witnesses’ testimony renders a parental termination proceeding fundamentally unfair appears to be a matter of first impression for this Court.4 Mother provides no authority for her contention that the trial court’s enforcement of its local rule and exclusion of rebuttal witnesses’ testimony rendered the termination trial fundamentally unfair. We likewise have found no such authority. Upon careful review, we determine that the trial court’s decision to exclude the evidence did not render the termination trial fundamentally unfair.

A parent’s right to the care and custody of her children is “among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions.” In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005). However, the contours of due process have not always been clear. As the United States Supreme Court noted in Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., “‘due process’ has never been, and perhaps can never be, precisely defined,” and it is “not a technical conception with a fixed content unrelated to time, place, and circumstances.” 452

4 This Court addressed whether a trial court abused its discretion when it precluded a parent’s rebuttal witness from testifying at trial due to the parent’s failure to include the rebuttal witness on her filed witness list in Hill, 2008 WL 110101, at *4. However, Hill involved the modification of a child custody plan between two parents. Unlike the case at bar, it did not embrace the irrevocable deprivation of a parent’s right to the “companionship, care, custody, and management” of her children. See Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). - 13 -

U.S. 18, 24 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). Nevertheless, it is clear that the concept of due process “expresses the requirement of ‘fundamental fairness.’” Lassiter, 452 U.S. at 24.

Beyond the essential requirements of notice and an opportunity to be heard in a meaningful time and manner, see In re Carrington H., 483 S.W.3d at 534, fundamental fairness is also difficult to precisely define, see Lassiter, 452 U.S. at 24 (noting that “fundamental fairness” is a “requirement whose meaning can be as opaque as its importance is lofty”). However, the United States Supreme Court has delineated three elements to balance when determining exactly what due process requires of courts. Those three factors are as follows:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Although we have located no Tennessee appellate decision addressing this particular question, and as a result no Tennessee decision applying these elements to this specific issue, the Michigan Court of Appeals has done so in a decision, In re S.M., that we discern to be instructive and persuasive. See In re S.M., No. 220706, 2000 WL 33389746 (Mich. Ct. App. Dec. 26, 2000); see also Summers Hardware & Supply Co. v. Steele, 794 S.W.2d 358, 362 (Tenn. Ct. App. 1990) (“Cases from other jurisdictions . . . are always instructive, sometimes persuasive, but never controlling in our decisions.”). We therefore will address in turn each due process element as applied to the facts of this case.

1. Private Interest Affected

The private interest at stake in this action is one of great significance and constitutional import because a parent’s right to the care and custody of her children is a fundamental and “recognized liberty interest[].” In re Audrey S., 182 S.W.3d at 860. Moreover, the United States Supreme Court has explained that “a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” Lassiter, 452 U.S. at 27 (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). The termination of a person’s parental rights has been described by the United States Supreme Court as a “unique kind of deprivation,” Lassiter, 452 U.S. at 27, and recognized as “final and irrevocable,” Santosky v. Kramer, 455 U.S. 745, 759 (1982). By reason of the magnitude of the termination of parental rights, a “parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, - 14 -

therefore a commanding one.” Lassiter, 452 U.S. at 27. As such, the stakes involved for Mother are “profoundly high” and would weigh in favor of a finding that the preclusion of Mother’s rebuttal witnesses’ testimony rendered the termination proceeding fundamentally unfair. In re Audrey S., 182 S.W.3d at 861.

2. Risk of an Erroneous Deprivation of Private Interest

The second element to be considered is the risk that Mother would be erroneously deprived of her interest in the care and custody of the Children through the procedure used. In this case, the procedure relates to the trial court’s enforcement of its local rule and consequent exclusion of testimonial evidence. Whether the trial court risked erroneously depriving Mother of her parental rights fundamentally depends on whether the testimony of her witnesses could have affected the outcome of the trial.

We note that the question of a risk of erroneous deprivation of Mother’s parental rights is significantly impacted by Mother’s failure to make an offer of proof at trial in compliance with Tennessee Rule of Evidence 103(a). This failure ordinarily renders the issue waived. See Hill, 2008 WL 110101, at *5 (“Generally, the appellate courts will not consider issues relating to the exclusion of evidence when this tender of proof has not been made.”). Tennessee Rule of Evidence 103(a) provides:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

***

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.

Therefore, we generally cannot assign error to the trial court’s exclusion of evidence if the party failed to offer the trial court the substance of the evidence. Hill, 2008 WL 110101, at *5. A party may make an offer of proof by “presenting the actual testimony, stipulating the content of the excluded evidence, or presenting a summary, oral or written, of the excluded evidence.” Id. In Hill, this Court decided that it could not determine whether the trial court’s erroneous exclusion of a parent’s rebuttal witness testimony at a trial involving modification of custody had affected the outcome of the trial because the mother had not submitted an offer of proof. Id. at *6. The Hill Court concluded in pertinent part:

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An erroneous exclusion of evidence, however, does not require reversal unless we can determine the evidence would have affected the outcome of the trial had it been admitted. The appellate courts cannot make such a determination without knowing what the excluded evidence would have been.

Id. at *5 (internal citations omitted).

In Tennessee, two exceptions exist relative to the requirement for parties to make an offer of proof. Id. One exception is provided by the rule itself, stating that error may be found if “the substance of the evidence and the specific evidentiary basis supporting admission . . . were apparent from the context.” Tenn. R. Evid. 103(a)(2). The remaining exception derives from this Court’s adoption of an exception expounded in First Nat’l Bank & Trust Co. v. Hollingsworth, 931 F.2d 1295, 1305 (8th Cir. 1991), and occurs when the “exclusion of evidence seriously affects the fairness of the trial.” Hill, 2008 WL 110101, at *5 (citing First Nat’l Bank & Trust Co. v. Hollingsworth, 931 F.2d 1295, 1305 (8th Cir. 1991)). Considering the question before us, we determine that neither exception applies to our analysis.

Regarding the first exception, although we find that a portion of Aunt’s testimony was apparent from the context, this is insufficient to cure Mother’s failure to make an offer of proof. Based on Mother’s counsel’s questioning of Grandfather, it appears that Mother was intending to call Aunt to testify that Grandfather had contacted her and asked her not to testify on Mother’s behalf. This is the only substance of expected testimony from any of the three witnesses that is apparent from the context at trial. Although Mother’s counsel informed the trial court that she needed to “have additional testimony to rebut claims that were made and statements that were made here on the record” and included in her appellate brief that these rebuttal witnesses had “relevant information related to the grounds for termination and a best interest analysis,” these broad statements do not constitute a sufficient offer of proof and do not illuminate the substance of what these witnesses’ testimony would have been at trial.

In the absence of an offer of proof, we have been provided no foundation upon which to analyze whether the exclusion of Mother’s witnesses’ testimony would have affected the outcome of the trial and thereby placed Mother’s parental rights at risk of being erroneously terminated. Although we could surmise that these witnesses would have offered relevant information to specifically rebut Grandmother’s claims regarding visitation and Grandmother’s denial that she and Grandfather prevented Mother from visiting the Children, Mother’s counsel did not proffer that evidence. Consequently, we will not presume that the testimony of Mother’s rebuttal witnesses would have affected the outcome of the trial or that the trial court’s decision to prohibit these witnesses from testifying created a risk of erroneous deprivation of Mother’s parental rights.

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As noted previously, we find the Michigan Court of Appeals’ decision in In re S.M., a parental termination case, persuasive concerning this query. 2000 WL 33389746. The trial court in In re S.M. excluded testimony from the father’s witnesses because he filed a witness list after the trial court’s deadline and failed to include sufficient information for the opposing party to investigate the witnesses. Id. at *1. The trial court rejected the father’s request for a one-week adjournment, citing the court’s “congested docket, the risk of violating the six-month rule of MCR 5.972,5 and the inconvenience to the children’s mother . . . who had traveled to the court from North Carolina.” Id. at *1. In determining whether the trial court’s enforcement of its scheduling order and exclusion of the evidence violated the due process requirements for a termination proceeding, the appellate court considered the due process elements enumerated in Lassiter and Mathews. Id. at *3.

The Michigan appellate court ultimately concluded that there was no risk of an erroneous deprivation of the father’s parental rights considering that the father’s witnesses were all character witnesses, they did not observe the incidents that the petitioner alleged, and they would have “offered little support to respondent’s defense . . . .” Id. In sum, the father could not show that the outcome of the trial would have been different had the trial court permitted him to present the witnesses. Id. Inasmuch as Mother failed to make an offer of proof before the trial court in the instant action, we determine that she similarly cannot demonstrate that the outcome of the trial would have been different or that the trial court risked erroneously terminating her parental rights.

This second element also includes the probable value of additional or substitute procedural safeguards. One such potential safeguard was a continuance, which would have avoided unfairness to Grandparents by affording them time to adequately prepare to cross- examine the rebuttal witnesses while allowing Mother to present her witnesses at a later date. Although Mother suggests in her appellate brief that the trial court could have continued the trial for another ten business days in order to render Mother’s witness list compliant with Local Rule 8.02(c), she did not request a continuance at trial. Mother also failed to ask for a recess during which to provide opposing counsel additional time to prepare. Mother failed entirely to propose a substitute procedural safeguard to the exclusion of her witness testimony. See Bank of Fayette Cty. v. Woody, No. W2010- 01798-COA-R3-CV, 2011 WL 2572052, at *3 (Tenn. Ct. App. June 30, 2011) (“[T]here is insufficient evidence in the record to show that the trial court abused its discretion in failing to grant a continuance . . . especially when no request for continuance was made.”). In any event, even had Mother proposed an alternative to the trial court’s exclusion of her witnesses’ testimony, without knowing the substance of this evidence, we cannot determine what, if any, value this additional procedural safeguard would have had on the trial.