IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 11, 2012
IN THE MATTER OF: JUSTIN K. C. ET AL.
Appeal from the Juvenile Court for Davidson County
No. PT142606 Betty Adams Green, Judge
No. M2012-00679-COA-R3-PT - Filed July 31, 2012
The parental rights of the parents of three children were terminated on two statutory grounds,
persistence of conditions pursuant to Tennessee Code Annotated § 36-1-113(g)(3), and
substantial noncompliance with the permanency plan pursuant to Tennessee Code Annotated
§ 36-1-113(g)(2), and the finding that termination of their parental rights was in the
children’s best interests. Both parents appeal contending the trial court erred in finding any
ground existed for termination and that termination of their parental rights was in the
children’s best interests. Finding no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.
David R. Grimmett, Nashville, Tennessee, for the appellant, Michelle P.
Dennis L. Nordhoff, Franklin, Tennessee, for the appellant, Orlando P.
Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua Davis Baker, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
Kelli Barr Summers, Brentwood, Tennessee, Guardian ad Litem.
OPINION
The Department of Children’s Services (DCS) filed a petition on May 13, 2011, in the
Davidson County Juvenile Court to terminate the respective parental rights of Michelle P.,
Orlando P., and Joseph F. to three minor children. Michelle P. is the mother of all three
children. Orlando P. is Michelle’s husband and the father of the two younger children. Joseph
F. is the biological father of the oldest child. The children are Justin C., Amelia P., and
Yavonne P. Justin C. was born to Michelle C. (now Michelle P.) on June 11, 2002. No father
is listed on Justin’s birth certificate but Joseph F. was subsequently determined to be the
biological father of Justin. Michelle C. later married Orlando P. and the couple had two
children: Amelia (born July 31, 2005) and Yavonne (born May 3, 2009).
The trial on the petition to terminate the three parents’ respective rights was held on
October 13 and December 7, 2011. On March 20, 2012, the Juvenile Court Judge entered an
order terminating Joseph F.’s and Michelle P.’s parental rights to Justin, and terminating
Orlando P.’s and Michelle P.’s parental rights to Amelia and Yavonne, vesting complete
guardianship of Justin, Amelia, and Yavonne in DCS.
Michelle and Orlando P. appealed; Joseph F. did not appeal. The relevant history
leading up to the termination of the parental rights of Michelle and Orlando P. is stated
below.
On July 31, 2009, DCS responded to a referral alleging physical abuse of the three
children by Orlando P., at which time Amelia was observed to have open abrasions with deep
purple bruising on her back. On August 4, 2009, DCS filed a petition in the Davidson County
Juvenile Court for emergency removal of Justin, Amelia, and Yavonne from the custody of
Michelle P. (“Mother”) and Orlando P. (“Father”)1 based upon the children having been
abused by Father and Mother’s failure to protect them. The petition alleged that Orlando had
beaten Amelia with his fists when the child took her hair down after it had been arranged by
Mother. The children were removed from the parents’ home that day but prior to removing
the children from mother’s custody, the DCS caseworker asked Mother if she would leave
Father and move into a domestic violence shelter with her three children. Mother refused
because she felt that moving into a shelter would not improve their situation.
Orlando admitted hitting Amelia, and Mother admitted witnessing the assault but she
stated she failed to intervene because she feared Father. Amelia had open abrasions and deep
purple bruises on her back as a result of Father’s assault. Amelia affirmed Father’s abuse
during an interview; she also stated that Father had hit Justin and Yavonne as well. Justin and
Yavonne were in the home when Father abused Amelia. Justin also affirmed that Father had
beaten Amelia and that Father had also hit him and Mother on occasion.
Father and Mother were arrested on May 15, 2010 on charges related to the abuse of
Amelia. Father subsequently pled guilty to one count of Child Abuse and one count of Child
Neglect, both class A misdemeanors, and was placed on probation for eleven months and
1
We refer to Orlando P. as Father for simplicity although he is not the biological father of Justin C.
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twenty-nine days. Mother pled guilty to Child Neglect and was placed on probation for nine
months.2
On August 4, 2009, the Juvenile Court entered an emergency protective order placing
the children in DCS custody; the court also set the case for a preliminary hearing, appointed
a guardian ad litem for the children, and appointed counsel for both parents. On August 6,
2009, both parents waived the preliminary hearing agreeing that probable cause existed to
remove Justin, Amelia, and Yavonne from their care.
DCS developed initial permanency plans for Mother and Father as it pertained to
Justin, Amelia, and Yavonne on August 17, 2009. The plans each had a goal of reunification
and required Mother and Father to participate in supervised visitation and communicate with
DCS to schedule the visits, arrive on time, bring healthy snacks, and plan appropriate
activities; undergo a parenting assessment and follow all recommendations; continue
individual and couples counseling; and provide documentation demonstrating compliance
with the counseling requirements. The plans also required Father to continue anger
management counseling. The plans and copies of the criteria and procedures for termination
of parental rights were signed by Mother and Father on August 17, 2009. The initial plans
were ratified by the Juvenile Court on September 14, 2009.
On October 15, 2010, the parties appeared before the Juvenile Court at which time
Mother and Father entered into an Agreed Order of Adjudication and Disposition as it
pertained to the Petition for Dependency and Neglect, agreeing that Justin, Amelia, and
Yavonne were dependent and neglected based upon Father’s physical abuse of the children
and Mother’s failure to protect them. The Juvenile Court entered an order finding the
children dependent and neglected on February 10, 2011.
DCS developed revised permanency plans for the children on July 19, 2010. The
revised plans was similar but more extensive than the initial plan. The revised plan required
Mother and Father to (1) participate in supervised visitation and communicate with DCS to
schedule the visits, arrive on time, bring healthy snacks, and plan appropriate activities; (2)
protect the children from mental and physical harm; (3) complete all assessments and follow
all recommendations of assessors; (4) maintain financial assistance including employment,
AFDC, food stamps, etc.; (5) maintain stable housing and nutritious meals; (6) complete
individual and couples counseling; and (7) provide documentation of all services from
providers. In addition, the revised permanency plans also required Father to complete anger
management counseling. Mother and Father each signed copies of the revised plans on July
19, 2010, and the revised plans were ratified by the Juvenile Court on July 26, 2010.
2
The guilty pleas were entered into on August 25, 2010.
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DCS filed this action to terminate the parental rights of Mother to all three children
and the parental rights of Father to Amelia and Yavonne on May 13, 2011. The petition also
requested that the court terminate the parental rights of Justin’s biological father, Joseph F.
The case went to trial on October 13, 2011. Vickie Green, a DCS Family Services
Worker, testified regarding the Department’s efforts to assist both parents and the few
successes and many failures that followed. Her testimony is generally summarized as follows.
Ms. Green arranged the parenting assessments, domestic violence counseling, and
parenting mentor services, all of which was paid for by DCS. She advised Mother about
domestic violence shelters and encouraged her to go to one. She also regularly provided bus
passes to the parents for transportation to and from work and she provided parenting classes
to both parents through Progressive Families, which was under contract with DCS.
Ms. Green explained that Father completed anger management counseling on
February 27, 2010, that he had undergone a parenting assessment with a mental health
component, and received additional counseling. Mother underwent a parenting assessment
with a mental health component and Mother also received individual counseling. She
testified that both parents participated in couples counseling. Mother and Father were
required to visit the children separately because of an order of protection issued against
Father at Mother’s request.3 Both parents visited the children regularly and she characterized
the visits as positive. She also explained that visitations were supervised at first. Later on
DCS permitted unsupervised visits; however, the visits were terminated when DCS learned
that Justin and Amelia were not being fed during the visits.
Mother told Ms. Green that she and Father had a history of domestic violence and that
he had abused her for seven years. Ms. Green stated that she had previously given Mother
the option of taking the children and moving into a domestic violence shelter; however,
Mother refused to enter a shelter, stayed in the home with Father, and Mother consented to
the children going into DCS custody. Mother and Father each called her on several occasions
to report incidents of domestic violence. In the summer of 2010, Mother called her claiming
that Father was hitting her. On August 1, 2010, both Mother and Father called Ms. Green to
report an incident where Father accused Mother of infidelity and grabbed Mother’s wrist
while trying to retrieve her cellular phone to view a text message. In December of 2010,
Mother allegedly beat Father and threatened to kill herself.
3
The order of protection was issued against Father on April 19, 2011.
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As for her efforts to assist both parents with separate housing, Ms. Green testified that
Mother and Father had stable housing when they resided together before the children came
into DCS custody, but when the couple separated in 2010, they lost their housing. As a result,
she applied for separate housing for Mother and Father through MDHA. She also provided
Father a list of places where he could seek employment and a list of places where he could
seek residence. At the time of trial, neither parent had stable housing suitable for the children.
Mother was living with a friend; Father was living in a motel room where he worked, the
Deluxe Inn. Ms. Green stated that she had previously explained to Father that stable housing
was an important requirement of the permanency plan and that he would need to seek
alternate housing, somewhere other than a motel, to complete the housing requirement, but
he refused to seek alternate housing because he said he lived at the hotel for free while he
worked there. Ms. Green also testified that Mother had failed to complete the housing
documentation and documentation of domestic violence counseling requirements of the
permanency plan and that Father had failed to complete the housing requirement and
documentation of employment requirements. Ms. Green explained that the lack of suitable
housing and continuing incidents of domestic violence were the main barriers to
reunification. Ms. Green also stated that even if DCS believed it appropriate to reunify
Mother with the children, which it did not, she did not have a stable residence to share with
them.
Latara Ballard of Progressive Families testified that she provided therapeutic visitation
services and parenting classes for the parents. Ms. Ballard observed the parents’ interaction
with the children on several occasions and gave a positive description of those brief
interactions. The parents told Ms. Ballard about a domestic violence incident that occurred
between the two of them. Mother told Ms. Ballard that Father had pushed or hit her and he
had been arrested. Father told Ms. Ballard that he had hit Mother because of her infidelity.
Ms. Ballard stated that domestic violence was the biggest concern she had about the parents
and that she provided recommendations of domestic violence counselors to the parents. Ms.
Ballard also counseled the parents on housing. She stated that the parents had a home when
she first started working with them but later lost it and that neither parent had found suitable
housing thereafter. As for the housing requirement for both parents, Ms. Ballard stated: “It
seemed like we had went backwards.”
DCS referred Mother and Father to Cheryl McAdams, a therapist at Continuity of
Care, for individual and domestic violence counseling. Ms. McAdams stated that the couple
attended regularly and she provided counseling services to them on a weekly and biweekly
basis from 2009 through part of 2010. Both parents admitted their history of domestic
violence to Ms. McAdams. Soon after Ms. McAdams completed her counseling of the
parents, Father told Ms. McAdams that he had been arrested for domestic violence. When
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asked whether additional counseling would benefit the parents, Ms. McAdams said “I think
the parents have the tools they need; it’s whether they choose to use them or not.”
Mother testified that she was “staying” with a friend named Michael L. at the time of
trial and had been staying with him in his one-bedroom apartment for approximately four
months. Mother was not on the lease but paid Michael $40.00 per month in rent. Mother had
stayed with David O., another friend, during the four months before she moved in with
Michael L. Prior to living with David O., Mother had temporarily resided with Father at the
King Hotel on Dickerson Road in Nashville. The last time the parents had a permanent home
was when the couple lived on Jefferson Street in March 2010, which was their residence
when the children were removed by DCS in August of 2009. Mother stated that she knew
DCS had not returned the children to her custody because of her continuing difficulties with
domestic violence and housing. She admitted seeing Father hitting the children. She further
admitted that she and Father had gotten into multiple fights in front of the children, which
frightened the children. Despite the altercations, Mother stated that she had been too scared
to leave Father.
Father testified to additional information about the couple’s history of domestic
violence. In 2005, Father was arrested when he bit Mother on the face after she grabbed him
around the neck. Father admitted striking Mother in April 2011, after he had completed
domestic violence counseling with Ms. McAdams. Father also admitted hitting Amelia but
essentially claimed that the severity of the beating stemmed from his exhaustion and
frustration over Mother’s infidelity. Prior to trial, Father had been referred to a sixteen-week
“Batterers Intervention” course by the criminal court.
At the time of the trial, the children were living in a pre-adoptive home, they were
doing well, and their foster mother was willing to adopt all three children.
At the conclusion of the trial on December 7, 2011, the Juvenile Court Judge took the
case under advisement. On March 20, 2012, the Court entered its final order terminating both
parents’ parental rights on the grounds of persistence of conditions, Tennessee Code
Annotated § 36-1-113(g)(3), and substantial noncompliance with the permanency plan,
Tennessee Code Annotated § 36-1-113(g)(2). The persistent conditions cited by the court
were the parents’ ongoing issues with domestic violence and lack of suitable housing.
Acknowledging that the parents had completed some requirements of the permanency plan,
the court found it was the parents’ failure to apply what they learned while working the plan,
particularly the failure to address their domestic violence issues, that constituted substantial
noncompliance. The court also found that termination of the parental rights of Mother and
Father was in the best interests of the children, again referencing the repeated incidents of
domestic violence.
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The parents present substantially the same issues on appeal. Whether grounds exist
to terminate their parental rights, whether DCS exerted reasonable efforts, and whether
termination of their parental rights is in the children’s best interests.
S TANDARD OF R EVIEW
Parents have a fundamental right to the care, custody and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.
1993). This right is superior to the claims of other persons and the government, yet it is not
absolute. In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006).
Parental rights may be terminated only where a statutorily defined ground exists.
Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In
re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). The petitioner has the burden of
proving that there exists a statutory ground for termination, such as abandonment or failing
to remedy persistent conditions that led to the removal of the child. See Tenn. Code Ann. §
36-1-113(c)(1); Jones, 92 S.W.3d at 838. Only one ground need be proved, so long as that
ground is proved by clear and convincing evidence. See In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003). In addition to proving one of the grounds for termination, the petitioner must
prove that termination of parental rights is in the child’s best interest. Tenn. Code Ann. §
36-1-113(c)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn. 2006); In re A.W., 114 S.W.3d
541, 544 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000)
(holding a court may terminate a parent’s parental rights if it finds by clear and convincing
evidence that one of the statutory grounds for termination of parental rights has been
established and that the termination of such rights is in the best interests of the child).
Therefore, a court may terminate a person’s parental rights if (1) the existence of at least one
statutory ground is proved by clear and convincing evidence and (2) it is clearly and
convincingly established that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 810
(Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Whether a statutory ground has been proved by the requisite standard of evidence is
a question of law to be reviewed de novo with no presumption of correctness. In re B.T., No.
M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn. Ct. App. Jan. 31, 2008) (no
Tenn. R. App. P. 11 application filed) (citing In re Adoption of A.M.H., 215 S.W.3d at 810).
The issue of substantial noncompliance with the requirements of a permanency plan is a
question of law; therefore, it is reviewed de novo with no presumption of correctness. In re
Valentine, 79 S.W.3d at 548.
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A NALYSIS
I.
S UBSTANTIAL N ON-C OMPLIANCE WITH P ERMANENCY P LAN
The first ground found by the Juvenile Court is failure to substantially comply with
the obligations of the permanency plan as set forth in Tennessee Code Annotated § 36-1-
113(g)(2). In order to terminate upon this ground, the trial court must determine that the
requirements were reasonable and related to remedying the conditions which necessitated the
child’s placement in foster care. In re Valentine, 79 S.W.3d at 547. The trial court must also
determine that the parent’s noncompliance with the requirements of the permanency plan was
substantial. In re M.J.B., 140 S.W. 3d 643, 656 (Tenn. Ct. App. 2004).
A key component of our analysis of this issue requires that we also determine whether
DCS provided services reasonably necessary to assist Mother and Father in fulfilling their
respective obligations under the permanency plans. In re C.M.M., No.
M2003–01122–COA–R3–PT, 2004 WL 438326, at *7-8 (Tenn. Ct. App. Mar. 9, 2004). In
that regard, DCS’s employees had an affirmative duty to utilize their education and training
to assist the parent in a reasonable way to address the conditions that led to the children’s
removal and to complete the tasks stated in the plan.4 In re Giorgianna H., 205 S.W.3d. at
518-19; In re J.L.E., No. M2004-02133-COA-R3-PT, 2005 WL 1541862, at *14 (Tenn. Ct.
App. Jun. 30, 2005). Although DCS bears the responsibility to make reasonable efforts
toward reunification, the road to reunification is a “two-way street.” State Dep’t of Children’s
Servs. v. S.M.D., 200 S.W.3d 184, 198 (Tenn. Ct. App. 2006)). A parent desiring to be
reunited with his or her children has a corresponding duty to “make reasonable and
appropriate efforts to rehabilitate themselves and to remedy the conditions that required the
Department to remove” their children from custody. In re A.R., No.
W2008-00558-COA-R3-PT, 2008 WL 4613576, at *16 (Tenn. Ct. App. Dec. 13, 2007)
(quoting In re Giorgianna H., 205 S.W.3d at 519). Accordingly, although DCS bears a
4
Reasonable efforts are statutorily defined as the “exercise of reasonable care and diligence by the
department to provide services related to meeting the needs of the child and the family.” Tenn. Code Ann.
§ 37-1-166(g)(1). The factors the courts are to use to determine reasonableness include: (1) the reasons for
separating the parents from their children, (2) the parents’ physical and mental abilities, (3) the resources
available to the parents, (4) the parents’ efforts to remedy the conditions that required the removal of the
children, (5) the resources available to the Department, (6) the duration and extent of the parents’ efforts to
address the problems that caused the children’s removal, and (7) the closeness of the fit between the
conditions that led to the initial removal of the children, the requirements of the permanency plan, and the
Department’s efforts. In re Tiffany B., 228 S.W.3d 148, 158-59 (Tenn. Ct. App. 2007) (citing In re
Giorgianna H., 205 S.W.3d at 519) (footnote omitted).
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responsibility to facilitate reunification, it does not bear the entire responsibility. Id. (citing
State Dep’t. of Children’s Servs v. S.M.D., 200 S.W.3d at 198).
As our discussion of the facts and procedural history reveal, the children were
removed due to domestic violence in the home. As a consequence, DCS provided services
and counseling to both parents to remedy this condition; yet, Father and Mother continued
their long-standing pattern of domestic violence despite having participated in counseling
and anger management classes provided and paid for by DCS.
Father failed to change his behavior after attending classes and he either refused to
or could not benefit from the services provided. Both parents called Ms. Green reporting the
other had initiated an assault. In the summer of 2010, Mother called to report that Father was
hitting her; later that summer, Father grabbed Mother’s wrists while trying to retrieve her cell
phone to view a text from a man.
For her part, Mother continued to provoke Father (allegedly based upon her infidelity).
Moreover, after Mother and Father had separated and after receiving the appropriate
counseling, Mother physically attacked a male companion with whom she lived with a fork;
this occurred after taking anger management classes. Additionally, in December of 2010,
Mother allegedly beat Father and threatened to kill herself.
DCS also made several efforts to assist both parents to obtain separate housing due
to the fact they could not live together without more domestic violence, and yet neither parent
had suitable housing when the case went to trial.
Although DCS’s efforts were not herculean, and need not be, they were reasonable
to assist Mother and Father in fulfilling their respective obligations under the permanency
plans. Despite the reasonable efforts of DCS, neither Mother or Father benefitted from the
anger management classes and neither parent obtained suitable housing, both of which were
reasonable and very important goals of the permanency plan. Accordingly, we have
concluded that the record contains substantial and material evidence which clearly and
convincingly proves the ground of substantial non-compliance by each parent with the
permanency plan.
II.
P ERSISTENCE OF C ONDITIONS
Tennessee Code Annotated § 36-1-113(g)(3) specifies the essential elements for the
“persistent conditions” ground for termination of parental rights. It provides that grounds for
termination exist when:
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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) . . . , 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) . . . in the near future; and
(C) The continuation of the parent . . . and child relationship
greatly diminishes the child’s chances of early integration into
a safe, stable and permanent home; . . .
Id.
Justin, Amelia, and Yavonne were removed from the home of Mother and Father and
placed in DCS custody on August 4, 2009. The childrens’ removal from the parents’ custody
was based upon a referral that the children had been abused by Father.
On October 15, 2010, the parents appeared before the Juvenile Court, at which time
Mother and Father agreed that Justin, Amelia, and Yavonne were dependent and neglected
based upon Father’s physical abuse of the children and Mother’s failure to protect them. The
Juvenile Court entered an order finding the children dependent and neglected on February
10, 2011.
DCS filed the petition to terminate Mother and Father’s parental rights on May 13,
2011, more than six months after the children were removed from the parents’ home and
declared dependent and neglected. Thus, DCS complied with the time requirement for the
persistent conditions ground of termination. See id.; see also In re Audrey S., 182 S.W.3d at
874 (holding that the court order removing the child from the parent’s home must be based
on a judicial finding of dependency, neglect, or abuse). Because this threshold requirement
was met, we must now determine whether there is clear and convincing evidence supporting
the requirements in Tennessee Code Annotated § 36-1-113(g)(3)(A) through (C).
The record clearly and convincingly supports the finding that both parents have failed
to remedy the most serious condition existing at the time of removal and which necessitated
their emergency removal, domestic violence. Thus, the conditions that led to the children’s
removal, and which in all reasonable probability would cause the children to be subjected to
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further abuse, has prevented the children’s safe return to the care of Mother or Father and
still persists. Tenn. Code Ann. § 36-1-113(g)(3)(A). Further, there is little likelihood that the
parents’ long-standing and continuous history of domestic abuse will be remedied at an early
date so that the children may be safely returned to either parent in the near future. Tenn. Code
Ann. § 36-1-113(g)(3)(B). Thus, the continuation of the parent and child relationship greatly
diminishes the children’s chances of early integration into a safe, stable, and permanent
home. Tenn. Code Ann. § 36-1-113(g)(3)(C).
For these reasons, we affirm the trial court’s finding that DCS proved by clear and
convincing evidence the “persistent conditions” ground under Tennessee Code Annotated
§ 36-1-113(g)(3) as to each parent.
III.
B EST INTERESTS OF THE C HILDREN
We have affirmed the trial court’s findings on two grounds for termination of Mother
and Father’s respective parental rights. If at least one statutory ground for termination is
proven by clear and convincing evidence, a parent’s rights may be terminated if it is also
determined that termination of the parent’s rights is in the best interests of the child. See In
re D.L.B., 118 S.W.3d at 367. Therefore, we shall determine whether termination of Mother’s
parental rights is in the best interests of the children.
The Tennessee General Assembly has provided a list of factors for the court to
consider when conducting a best interest of the child analysis. See Tenn. Code Ann. § 36-1-
113(i)(1)-(9). The nine statutory factors, which are well known and need not be repeated
here, are not exclusive or exhaustive, and other factors may be considered by the court. See
In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Moreover, not every statutory
factor need apply; a finding of but a few significant factors may be sufficient to justify a
finding that termination of the parent-child relationship is in the child’s best interest. See id.
The child’s best interest is to be determined from the perspective of the child rather than the
parent. See State Dep’t of Children’s Servs. v. L.H., No. M2007-00170-COA-R3-PT, 2007
WL 2471500, at *7 (Tenn. Ct. App. Dec. 3, 2007) (citing White v. Moody, 171 S.W.3d 187,
194 (Tenn. Ct. App. 2004)).
In this case, the evidence clearly and convincingly established that each parent failed
to make adjustments in circumstance to make their home safe for the children, see Tenn.
Code Ann. § 36-1-113(i)(1) & (7), in that they continued a pattern of domestic violence
which violated the permanency plan and neither of them has a home suitable for the children,
despite repeated efforts of DCS to help them find proper housing.
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The children have spent almost three years in a loving home with a foster parent who
wishes to adopt them. To allow the children to return to either Mother or Father, which could
not even be considered until Mother and Father renounce their long-standing pattern of
domestic violence and become responsible parents who can provide a safe home, which both
have repeatedly been unable to do, would subject the children to more uncertainty and
instability, and possibly remove them from a safe, happy, healthy, and loving home. Tenn.
Code Ann. § 36-1-113(i)(5).
Considering these relevant factors from the children’s perspective, we find clear and
convincing evidence that it is in the children’s best interest that Mother and Father’s
respective parental rights be terminated.
I N C ONCLUSION
The judgment of the trial court is affirmed in all respects and this matter is remanded
with costs of appeal assessed against the Department of Children’s Services due to the
parents’ indigency.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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In the Matter of: Justin K. C.
Combined Opinion