In Re: Sahara W.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 5, 2013

IN RE: SAHARA W.

Appeal from the Juvenile Court for Knox County
No. 90266 Tim Irwin, Judge

No. E2013-00510-COA-R3-PT-FILED-SEPTEMBER 24, 2013

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in the
Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate the parental
rights of Jasmine W. (“Mother”) to the minor child Sahara W. (“the Child”). A new
permanency plan was approved following the filing of the petition. After a trial, the Juvenile
Court entered an order finding and holding, inter alia, that clear and convincing evidence had
been proven that grounds existed to terminate Mother’s parental rights under Tenn. Code
Ann. § 36-1-113 (g)(2) and (g)(3), and that termination of Mother’s parental rights was in
the Child’s best interest. Mother appeals the termination of her parental rights, arguing that
she was not properly notified of being at risk of losing her parental rights because the new
permanency plan was approved after the filing of the petition. We hold that Mother
sufficiently was put on notice that her parental rights were subject to being terminated at trial.
We affirm the judgment of the Juvenile Court in its entirety.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY
and T HOMAS R. F RIERSON, II, JJ., joined.

Robin Gunn, Knoxville, Tennessee, for the appellant, Jasmine W.

Robert E. Cooper, Jr., Attorney General and Reporter; and, Alexander S. Rieger, Assistant
Attorney General, for the appellee, State of Tennessee Department of Children’s Services.
 OPINION

Background

The Child was born in August 2009. At that time, Mother, a minor herself, was
living with her grandparents in their home. In June 2011, the Child’s guardian ad litem filed
an emergency petition for temporary legal custody and restraining order in the Juvenile
Court, alleging that Mother’s anger management issues placed the Child at risk. By agreed
order, the Juvenile Court declared the Child dependant and neglected. In July 2011, DCS
created a permanency plan for Mother. The plan required Mother to do numerous things,
including: obtain suitable housing, obtain a legal income, participate in counseling, and
complete a parenting class. In April 2012, DCS created a second permanency plan for
Mother. With respect to this second plan, the Juvenile Court entered an order stating:

The proposed permanency plan (aka permanency goal) for this child is Return
to Parent or Exit Custody with Relative and those concurrent goals are not
appropriate or in the child’s best interest given the mother’s lack of progress
and the absence of any currently identified and active relative resource. The
Court directs that the goals be changed to concurrent planning for Return to
Parent or Adoption and that the Department of Children’s Services take
immediate steps to achieve permanency for this child.

In August 2012, DCS filed a petition seeking to terminate Mother’s parental
rights to the Child, alleging abandonment, substantial noncompliance with permanency plan,
and persistent conditions. In August 2012, yet a third permanency plan was created for
Mother. This third plan was substantially similar to the first two plans. The third plan stated:
“[The Child] has been in the Department’s custody since June of 2011 and is in need of
permanency.” The plan went on to state “[The Child] will exit custody with a family that can
meet her needs and provide permanency for the child.” One component in the plan was:
“DCS will hold a CFTM to identify best family for child and make final [selection] of pre-
adoptive family.” This matter was tried over the course of two days in February 2013.

Leigh Anne Goldstine (“Goldstine”), a clinical manager with Foothills Care,
testified. Goldstine was stipulated as an expert. Goldstine testified that the Child is bonding
well with her current foster family and refers to the adults as “mommy” and “daddy.”
According to Goldstine, the Child would suffer emotional trauma were she to move again.
Goldstine also testified to Mother’s behavior around the Child. Goldstine based her opinions
on a number of visits between Mother and the Child. Mother often was anxious around the
Child, and did not react well to suggestions from Goldstine. Goldstine stated that Mother
“was often very upset and angry with me, yelling, asking me not to be in the room, asking

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me not to give her instruction . . . .” Goldstine testified that Mother is unable to appropriately
parent the Child.

Deb Tracy (“Tracy”), a family intervention specialist with Foothills Care,
testified. Tracy conducted therapeutic visitation with Mother and the Child. Tracy stated
that she did not observe much nurturance from Mother to the Child. Tracy further testified
that Mother became agitated when Tracy offered suggestions on things to do with the Child.
Tracy testified that she witnessed Mother’s anger issues.

Victoria Bentley (“Bentley”), a family intervention worker with Foothills Care,
testified about her involvement in the case. Bentley testified to Mother’s anger issues:

Like one of the things, she would probe [the Child] to argue with her.
Like she would yell at her, and she would just encourage the child to argue
with her. And then there was times when she was very confrontational with
her grandmother. You know, we discussed how [the Child] is absorbing her
environment. That behavior would be something that [the Child] would pick
up on.

Bentley also stated that Mother was resistant to suggestions about creating objectives for the
Child, and that Mother “didn’t agree with parenting.” Bentley’s services in the case ended
in September 2011.

DCS case manager Marquita Andrew (“Andrew”) testified. Andrew assisted
in the creation of the first permanency plan, and had frequent contact with Mother. Andrew
testified that although Mother has obtained housing, she has continued to have problems in
other areas. Andrew stated that Mother has not demonstrated any learned skills and has not
completed parenting education. Mother had no legal source of income, according to Andrew.
Mother also continued to have anger issues. Andrew acknowledged that Mother was
working on her GED. Andrew described Mother’s behavior:

Some days [Mother] is argumentative, crying, yelling, screaming,
pitching a fit, instigating the child, instigating - - trying to instigate me as a
worker, trying to instigate people around her. Some days she comes in mad;
some days she doesn’t. There’s a lot of anxiety issues. If she comes into the
visitation anxious, that tone continues with that visit to the point that - - you
know, she’s even had arguments with people out in the lobby . . . .

The following exchange occurred on the subject of whether Mother had progressed:

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 Q: Now, I’m sure we’ve all heard this more than - - I’m going to ask you to
say it one more time. With all of the efforts the Department has made,
multiple service providers in place and even multiple professionals within
individual service providers, any improvement, any glimmer of hope in the
mom’s ability to parent safely and effectively [the Child]?

A: Let me answer it this way: [Mother] asked me to let the Court know that
she loves her child. But as far as her ability to parent anyone, it also stems
from the ability to take care of herself. And we are now to the point not where
she can’t take care of herself, but she won’t, much less anyone else.

One “Miss Linda1 ” testified. Miss Linda was the Child’s foster mother. The
Child had lived with Miss Linda since January 2012. Miss Linda’s family consisted of her
husband, an 18 year old son, a 15 year old son, a 10 year old daughter, and a one year old
son. Miss Linda stated that she was prepared to adopt the Child. Miss Linda testified that
the Child had no medical problems and was developmentally on target. Miss Linda stated
that the Child got along well with her other children.

Gary S., the Child’s great-grandfather and former foster father, testified. Gary
S. testified that he was willing to adopt the Child. Gary S. and his wife previously had served
as foster parents to the Child. However, conflicts with Mother scuttled that arrangement.
Gary S. testified that “[i]t was just too much,” although he believed things would go better
this time around were he to obtain custody of the Child.

Mother, 19, testified that she was 15 when she gave birth to the Child. Mother
was still a minor when the Child was removed from her home. For income, Mother stated
that her grandmother helps her. Also, Mother is enrolled in a program called CSEP which
helps the participant locate a job and receive training. Mother acknowledged making some
mistakes, but testified that she was improving. Mother had enrolled in Pellissippi State
Community College. Mother stated that she now had an apartment, and had made
preparations for the Child to live there.

In its February 2013 order, the Juvenile Court terminated Mother’s parental
rights to the Child on the grounds of substantial noncompliance with permanency plan and

1
The foster mother’s name was withheld, and she testified simply as “Miss Linda.”

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persistent conditions.2 The Juvenile Court also found that it was in the Child’s best interest
for Mother’s parental rights to be terminated. We reproduce the detailed order in part:

9. Respondent frankly admitted that she has not complied with the
responsibilities established on the various permanency plans. She testified that
she was wrong for not doing what she was supposed to do and that she should
have complied sooner. She stated that after an altercation with her mother at
the end of last year she recognized that she had made mistakes and that she
now realizes she needs to make changes. She has received services through
Peninsula, Cherokee, Foothills Care, Child & Family Services, Helen Ross
McNabb, and Complete Counseling North to address mental health, anger
management, and parenting/bonding issues. In each instance she participated
briefly and then quit.
10. Respondent testified that she plans to start alcohol and drug
treatment on the Wednesday following this hearing. She has completed two
parenting classes. She is back on psychotropic medication, taking Fluoxetine
(generic Prozac) to address depression, mood swings, and bipolar disorder and
believes it is making a difference. She claims she has been compliant with
medication for three months although when she was drug-screened by the
child’s case manager on January 23, 2013, she said she was taking anything
other than a steroid she had gotten from the hospital. She was positive for
marijuana on that date and said she knew she would be and she wasn’t worried
about it because marijuana isn’t a drug. She acknowledged that remark during
her testimony and said that just showed she needs substance abuse treatment.
She was supposed to begin anger management classes on the Monday before
this hearing but didn’t get there because her grandmother was not available to
take her; she now plans to begin next Monday. She went to Peninsula for an
intake on December 7, 2012, where she reported she was there because “DCS
is requiring her to complete ‘anger management classes at the Lighthouse and
get a certificate if I want to get my daughter back.” On that date she presented
as easily irritable, admitting that she gets angry “at little stuff and big stuff,
sometimes gets into fights, sometimes breaks things, poor sleep, emotionally
detached from others, don’t care what I say, I tell my little girl to shut up and
I don’t mean to say that . . .” Eventually her anger shifted into tearfulness.
She returned on December 13, 2012, more than twenty minutes late, and was
hostile during the entire session. She was mad that she had to get up early to

2
While failure to support was a ground in the petition to terminate parental rights, the Juvenile Court
notes “[f]urther evaluation of this issue is not necessary as counsel for the Department of Children’s Services
withdrew abandonment by failure to pay support as a ground for termination.”

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come to the appointment, indicated she would seek services elsewhere, and
refused referrals to any other agency.
11. Respondent has a subsidized apartment with her child’s name on
the lease. She lives there rent-free in exchange for community service hours.
She has a bedroom for [the Child] and has decorated it with a white bedroom
suite and Tinkerbell furnishings. She reported that she gets credit for being
“enrolled” in school, despite having walked out of class in October after one
week. She relies on financial support from her maternal grandmother. She
was given a pamphlet for CSEPP at her child support hearing in mid-January
and is scheduled to attend orientation at 12:30 pm next Wednesday (the same
time she is supposed to start substance abuse treatment). She has been making
progress toward obtaining a GED, something she has been working on since
she was a minor before this Court. She testified that she never took it seriously
before; that she got in trouble and stopped going a bunch of times. Last
October the teacher made her angry and she walked out after just a week. She
later passed three of five sections on her own. She started back in classes this
week and will be meeting with a counselor (whose name she did not know)
next week.
12. Upon these facts, the Court finds that Respondent has failed to
comply in a substantial manner with those reasonable responsibilities set out
in the permanency plans related to remedying the conditions which necessitate
foster care placement. She made some attempts but very little progress. She
now has a place to [live] and at least showed up for a hearing in the Child
Support Division of this Court. She started but never really finished anything
else and she had not demonstrated any learned parenting skills or techniques.
13. The Court further finds that the child has been removed by order
of this Court for a period of six (6) months; the conditions which led to her
removal still persist; other conditions persist which in all probability would
cause the child to be subjected to further abuse and neglect and which,
therefore, prevent the child’s return to the care of Respondent; there is little
likelihood that these conditions will be remedied at an early date so that this
child can be returned to Respondent in the near future; the continuation of the
legal parent and child relationship greatly diminishes the child’s chances of
early integration into a stable and permanent home. There really is not a whole
lot of difference in Respondent’s circumstances other than acquisition of an
independent apartment.

***

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 1. Respondent has not made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the child’s best interest to be
in her home despite reasonable efforts by available social services agencies for
such duration of time that lasting adjustment does not reasonably appear
possible. She has been offered services through multiple agencies, including
three specialists from Foothills Care, each of whom testified that she had made
no progress in implementing what they were trying to teach. She has
maintained regular visitation or other contact with the child but that visitation
has been illustrative of her inability to parent. A change of caretakers and
physical environment is likely to have a detrimental effect on the child’s
emotional and psychological condition as evidenced by the recent bonding
assessment. She is using marijuana, but not other drugs, and admits that she
needs substance abuse treatment to address this use. Respondent’s mental
and/or emotional status would be detrimental to the child or prevent
Respondent from effectively providing safe and stable care and supervision for
the child. The key words here are safe and stable. She is fighting a day to day
battle to care for herself. And she has not paid child support consistent with
the child support guidelines promulgated by the Department of Human
Services . . . .

***

6. While relatives have a statutory preference for placement, the Court
of Appeals has held repeatedly that the trial courts may consider relative
preference as a factor in the best interest determination of the child, after the
initial period it is not a controlling factor. To the contrary, the best interest of
the child remains the paramount and utmost consideration. When the best
interests of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interests of the child. And
continuity of placement is the most important factor when determining what
is in the children’s best interest. [Gary S.] and [Diane S.] were considered for
placement when the child entered foster care. She was placed with them.
They asked that she be moved. She has now been in a foster home for more
than one year. That home has provided her with continuity, is clearly meeting
her needs, and has acquired a statutory preference for adoption.
7. The Department of Children’s Services has made reasonable efforts
toward achieving permanency for this child.
8. It is, therefore, in the best interest of [the Child] and the public that
all of Respondent’s parental rights to this child be terminated and the complete
custody, control, and full guardianship of the child be awarded to the State of

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 Tennessee, Department of Children’s Services, with the right to place her for
adoption and to consent to such adoption in loco parentis.

Mother timely appealed to this Court.

Discussion

Although not stated exactly as such, Mother raises one issue on appeal: whether
the Juvenile Court erred in terminating Mother’s parental rights to the Child when a new
permanency plan was entered after DCS filed its petition to terminate Mother’s parental
rights. Mother does not address the grounds found to exist for termination of her parental
rights to the Child or that termination was in the Child’s best interest. Nevertheless, we will
review these issues.

Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

This Court must review findings of fact made by the trial
court de novo upon the record “accompanied by a presumption
of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” Tenn. R. App. P. 13(d). To terminate
parental rights, a trial court must determine by clear and
convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in
the child's best interest. In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Upon
reviewing a termination of parental rights, this Court's duty,
then, is to determine whether the trial court's findings, made
under a clear and convincing standard, are supported by a
preponderance of the evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).

In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

It is well established that “parents have a fundamental right to
the care, custody, and control of their children.” In re Drinnon,
776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v.
Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)).

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 “However, 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.” Id. (citing
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982)).

Termination of parental or guardianship rights must be
based upon a finding by the court that: (1) the grounds for
termination of parental or guardianship rights have been
established by clear and convincing evidence; and (2)
termination of the parent’s or guardian’s rights is in the best
interests of the child. Tenn. Code Ann. § 36-1-113(c). Before
a parent’s rights can be terminated, it must be shown that the
parent is unfit or substantial harm to the child will result if
parental rights are not terminated. In re Swanson, 2 S.W.3d
180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Similarly, before the court may inquire
as to whether termination of parental rights is in the best
interests of the child, the court must first determine that the
grounds for termination have been established by clear and
convincing evidence. Tenn. Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.
LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear
and convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

As pertinent to this appeal, Tenn. Code Ann. § 36-1-113 (g) provides the
following as grounds for termination of parental rights:

(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:

***

(2) There has been substantial noncompliance by the parent or guardian with
the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4;

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 (3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:

(A) The conditions that led to the child's removal or other
conditions that in all reasonable probability would cause the child to be
subjected to further abuse or neglect and that, therefore, prevent the
child's safe return to the care of the parent(s) or guardian(s), still
persist;

(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned to the
parent(s) or guardian(s) in the near future; and

(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child's chances of early integration
into a safe, stable and permanent home;

Tenn. Code Ann. § 36-1-113 (g) (Supp. 2013).

We first address whether the Juvenile Court erred in terminating Mother’s
parental rights to the Child when a new permanency plan was entered after DCS filed its
petition to terminate Mother’s parental rights. Mother argues that she was not properly
notified of the jeopardy to her parental rights.

Following the filing of the petition to terminate Mother’s parental rights in
August 2012, a third permanency plan was created and approved. One of the stated goals of
the plan was that “[the Child] will exit custody with a family that can meet her needs and
provide permanency for the child.” This feature of the third permanency plan clearly shows
that Mother’s parental rights were in peril. Indeed, the filing of the petition to terminate
parental rights also served as such indication. At the onset of trial in this case, Mother’s
attorney requested a continuance on the basis that Mother was in the process of completing
her GED. This occurred after the Juvenile Court expressly explained that the forthcoming
trial was to be about termination of Mother’s parental rights. No one contested this
characterization of the proceedings. These facts do not indicate that anyone was confused
or uncertain as to the purpose of the hearing. Indeed, at one point in her testimony, Mother
was asked “if you didn’t do what was on your plan, that you would be giving the Department
grounds for termination?,” to which she replied, “That’s why we’re here.”

Finally, DCS notes that Mother failed to raise this argument before the Juvenile
Court and that, therefore, the issue should be waived. We do not agree with this argument.

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Nevertheless, the fact that Mother failed to raise this issue previously is relevant as to
whether she had notice her parental rights were at risk. Since the Child was removed from
Mother’s care, this case has been a saga of efforts to get Mother to fulfill certain goals such
that she could effectively parent the Child. From the time of the second permanency plan,
the specter of termination of Mother’s parental rights clearly has existed and was known by
everyone involved in this case.

Mother invokes the case of In re C. A. H., No. M2008-00005-COA-R3-PT,
2008 WL 3068430 (Tenn. Ct. App. Aug. 1, 2008), no appl. perm. appeal filed. In In re C.
A. H., we, among other things, reversed the trial court on two grounds of termination of
parental rights because we found that the Department had failed to show that it made
reasonable efforts to make it possible for the children at issue to return home. Id. at *10. We
find this case to be inapposite, not least because reasonable efforts are not at issue in this
appeal. The totality of the record in this case reflects that Mother sufficiently was put on
notice that her parental rights were subject to being terminated at trial. We affirm the
Juvenile Court as to this issue.

We next address whether the Juvenile Court erred in erred in finding and
holding that the ground of substantial noncompliance with permanency plan existed to
terminate Mother's parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113
(g)(2). From our review of the record before us, we find that the Juvenile Court’s findings
made under the clear and convincing standard as relevant to the issue of substantial
noncompliance with permanency plan are supported by a preponderance of the evidence.
The Juvenile Court did not err in finding and holding that clear and convincing evidence
existed that grounds were proven to terminate Mother’s parental rights to the Child pursuant
to Tenn. Code Ann. § 36-1-113 (g)(2).

We next address whether the Juvenile Court erred in erred in finding and
holding that the ground of persistent conditions existed to terminate Mother's parental rights
to the Child pursuant to Tenn. Code Ann. § 36-1-113 (g)(3). From our review of the record
before us, we find that the Juvenile Court’s findings made under the clear and convincing
standard as relevant to the issue of persistent conditions are supported by a preponderance
of the evidence. The Juvenile Court did not err in finding and holding that clear and
convincing evidence existed that grounds were proven to terminate Mother’s parental rights
to the Child pursuant to Tenn. Code Ann. § 36-1-113 (g)(3).

We next address whether the Juvenile Court erred in finding and holding that
it was in the Child’s best interest for Mother’s parental rights to be terminated. The relevant
statutory provision is Tenn. Code Ann. § 36-1-113 (i), which provides:

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(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child pursuant to this part, the court shall consider, but
is not limited to, the following:

(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.

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Tenn. Code Ann. § 36-1-113 (i) (Supp. 2013).

The Juvenile Court conducted a best interests analysis as set forth above, and
we find no basis to overturn the findings of the Juvenile Court as relevant to this issue. The
evidence in the record on appeal does not preponderate against the Juvenile Court’s finding
made by clear and convincing evidence that it is in the Child's best interest for Mother's
parental rights to be terminated. We affirm the Juvenile Court’s finding that it is in the best
interest of the Child for Mother’s parental rights to be terminated.

We affirm the judgment of the Juvenile Court in its entirety.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to
the Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, Jasmine W., and her surety, if any.

_________________________________
D. MICHAEL SWINEY, JUDGE

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