In Re: Kayleigh N.R.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 8, 2012

IN RE: KAYLEIGH N.R.

Appeal from the Juvenile Court for Davidson County
No. 136559 Betty K. Adams Green, Judge

No. M2011-02759-COA-R3-PT - Filed June 25, 2012

Mother appeals the termination of her parental rights. The trial court found four statutory
grounds for termination of Mother’s parental rights, persistence of conditions, mental
incompetence, substantial noncompliance with the provisions of the permanency plan, and
abandonment by failure to maintain a suitable home. The trial court also found that
termination of her rights was in the best interest of the child. Mother appeals. 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.

C. Michael Cardwell, Nashville, Tennessee, for the appellant, Tonya L. R.

Robert E. Cooper, Jr., Attorney General and Reporter, and Martha A. Campbell, Deputy
Attorney General, for the Tennessee Department of Children’s Services.

Susie Piper McGowan, Nunnelly, Tennessee, Guardian Ad Litem.

OPINION

Tonya L. R.1 (“Mother”) has a long and troubling history with the Department of
Children’s Services. The child at issue in this action, Kayleigh N.R., is Mother’s seventh
child yet none of Mother’s six children are in her care. Mother voluntarily surrendered her
parental rights to two children, her parental rights were terminated to two other children, and

1
This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
her other two children reside with other family members. At the time of the termination
hearing on Kayleigh, Mother was pregnant with her eighth child.

Kayleigh went into the custody of the Department of Children’s Services (“the
Department”) directly from the hospital on March 24, 2010, three days after birth. She was
adjudicated dependent and neglected on August 11, 2010, due to Mother’s failure to comply
with her mental health treatment. Following entry into Department custody, a Child and
Family Team Meeting was held. At the meeting, a permanency plan was developed.

The requirements under the plan were for Mother to maintain stable housing, ensure
that there were no environmental concerns, ensure that Kayleigh would not be placed at risk
of harm by other residents of her home, obtain an updated psychological assessment, obtain
an updated parenting assessment with a mental health component, continue therapy and
medication management and provide documentation of this to the Department, and attend
Kayleigh’s doctor’s appointments and follow all recommendations.2 While Mother did not
sign the permanency plan, she did sign the criteria for termination of parental rights, which
outlines the statutory grounds for which a parent’s parental rights may be terminated.

The permanency plan was approved by the juvenile court on May 21, 2010; however,
on the same date, the court excused the Department of its obligation to make reasonable
efforts towards reunification. A second permanency plan was subsequently approved by the
court. The only change to the permanency plan was the goal, under the new plan the goal was
adoption, not reunification.

On January 21, 2011, the Department filed a Petition to terminate Mother’s parental
rights on the grounds of abandonment by failure to establish a suitable home, substantial
noncompliance with the permanency plan, persistent conditions, and mental incompetence.3

The case was tried on one day, October 19, 2011. The principle witnesses were the
Department caseworker, Latoya Nance, Kayleigh’s foster mother, and Mother. Ms. Nance
detailed Mother’s extensive history with the Department and her ongoing struggles with her
mental health. She stated that at the time Kayleigh went in the Department’s custody Mother
was residing in a home with several other people including her then significant other and her
brother who had sexually abused her when she was a child. Ms. Nance testified that when
she visited this residence she quickly concluded that it was unsuitable for a child. Several

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An additional requirement was that Mother pay child support if ordered by the court. No support order was
ever entered.

3
The petition also sought to terminate the parental rights of Kayleigh’s father. The trial court terminated Father’s
parental rights and he did not appeal. Thus, we shall not address him in this appeal.

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dogs were in the home, there was dog feces in the home, and the front yard was littered with
broken bottles and cigarette butts. She also stated that the house was condemned by the city
in June of 2010, but Mother continued to reside there for five more months. After leaving
that residence, Mother resided in the home of another friend, but avoided Ms. Nance’s
attempts to visit the residence. Ms. Nance testified that she lost contact with Mother from
October 2010 to January 2011. At the time of the termination hearing, Mother was residing
in a one-bedroom apartment with her boyfriend, who had a history with the Department. Ms.
Nance stated that the apartment was untidy, she saw roaches there, and the apartment was not
appropriate housing for a child.

Evidence was also introduced concerning Mother’s long standing and significant
mental health problems. In one of her mental health assessments, Mother was diagnosed with
bipolar disorder, depression, post traumatic stress disorder, and a personality disorder. In
August of 2010, Mother underwent another assessment and she was also diagnosed with
major depressive disorder.

Mother testified that she regularly attended therapy and medication management
sessions, however, the medical records reported that she had only seen a therapist three times
and a psychiatrist five times since June of 2009, a period of more than two years. The mental
health records also revealed that Mother was not consistent with taking her medication and
there were periods of several months where she was not taking any of her medication.
Mother had also failed to provide documentation of her treatment to the Department as
required by the permanency plan.

The foster mother of Kayleigh testified at the trial that Kayleigh was doing extremely
well in her family’s care and that they have another child, with whom Kayleigh has bonded.
The foster mother stated that Mother sporadically provided items for Kayleigh but provided
no significant support and did not attend any of the child’s doctor’s appointments. The foster
mother also testified that she and her husband wanted to adopt Kayleigh.

On November 21, 2011, the trial court entered its order terminating Mother’s parental
rights. The trial court specifically found that Mother was not a credible witness especially
regarding her compliance with her medical treatment. The trial court also found that the
evidence demonstrated that Mother was not honest with her mental health providers, which
caused great concern for the reliability of her treatment. The trial court found that Mother had
failed to maintain a suitable home and that Mother “continued to act in ways that would pose
a substantial threat of harm if Kayleigh were returned to her.” The trial court found that
Mother’s parental rights should be terminated on the grounds of persistence of conditions,
mental incompetence, substantial noncompliance with the provisions of the permanency plan,

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and abandonment by failure to maintain a suitable home, as well as the finding that
termination of her rights was in the best interest of the child. Mother filed a timely appeal.

ANALYSIS

Mother contends the evidence was insufficient to establish any ground for termination
based upon the clear and convincing burden of proof. She also contends the Department did
not clearly and convincingly prove that termination of her parental rights was in the best
interest of Kayleigh.

I.

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. 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). Additionally, the petitioner must prove that termination 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. 541, 544 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d 467, 475-76
(Tenn. Ct. App. 2000). 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 793, 810 (Tenn. 2007)).

II.

The trial court found four statutory grounds upon which Mother’s parental rights may
be terminated. As the guardian ad litem noted in her brief, the facts supporting the findings
of four grounds upon which Mother’s parental rights may be terminated are so intertwined
it is difficult to separate them, but we shall try.

The first ground is persistent conditions pursuant to Tennessee Code Annotated § 36-
1-113(g)(3)(A), which permits a parent’s parental rights to be terminated upon a showing that
the child has been removed from the parent for a period of six months; the conditions which
led to the child’s removal or other conditions which in all reasonable probability would cause
the child to be subjected to further abuse or neglect and would prevent the child’s safe return
to the care of the parent still persist; there is little likelihood that these conditions will be
remedied at an early date so that the child can safely be returned in the near future; and the

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continuation of the parent and child relationship greatly diminishes the child’s chance of
early integration into a safe, stable, and permanent home.

The second ground found by the trial court upon which Mother’s parental rights may
be terminated is the ground of mental incompetence set forth at Tennessee Code Annotated
§ 36-1-113(g)(8). A parent’s parental rights may be terminated under this ground if the trial
court determines by clear and convincing evidence that “the parent . . . is incompetent to
adequately provide for the further care and supervision of the child because the parent’s . .
. mental condition is presently so impaired and is so likely to remain so that it is unlikely that
the parent . . . will be able to assume or resume the care of and responsibility for the child in
the near future.” Tenn. Code Ann. § 36-1-113(g)(8)(B)(i).

The third ground found by the trial court is abandonment by failure to provide a
suitable home as set forth in Tennessee Code Annotated § 36-1-102(1)(A). Under the statute,
if the child has been removed from the home as a result of a petition in which the child was
found to be dependent and neglected, the Department made reasonable efforts or the
circumstances of the child’s situation prevented reasonable efforts from being made prior to
the child removal, and the parent has made no reasonable efforts to provide a suitable home
and has demonstrated a lack of concern for the child to such a degree that it appears unlikely
that they will be able to provide a suitable home for the child at an early date, then the
parent’s parental rights may be terminated. Tenn. Code Ann. § 36-1-102(1)(A). The relevant
period of time in this action for this ground was March 21, 2010 until July 21, 2010.

The fourth ground 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 539, 547 (Tenn. 2002). 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).

Having reviewed the entire record, we have concluded that the evidence presented to
the trial court clearly and convincingly proves each of the four grounds found by the trial
court upon which Mother’s parental rights may be terminated. The evidence clearly
demonstrates that from the time the child was placed into the Department’s custody until the
time of the termination hearing, Mother failed to make any significant changes that would
make her capable of caring for the child, and she failed to maintain a suitable home for the
child. The evidence is replete with instances of Mother’s poor decision-making, especially
in regards to the persons with whom she chose to reside, a concern that in part necessitated
the child’s placement into the Department’s custody. Further, Mother failed to comply with

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the requirements of her permanency plan most notably the requirements related to the
treatment for her mental health problems. Although Mother managed to complete a mental
health assessment and a parenting assessment, she failed to comply with the
recommendations of her treatment plan by continuously attending counseling and
maintaining her medication.

It is also significant that the trial court found Mother was not credible. As the court
observed, she told conflicting stories to the court and to the mental health professionals
whom she sporadically saw, a fact demonstrated by her medical records. The trial court was
concerned that Mother’s lack of honesty would prevent her from obtaining the help that she
clearly needs, a concern that this court shares. Mother’s long history of substantial mental
health problems was a main reason that the child was placed into the care of the Department,
and Mother’s failure to make any substantial efforts to address her mental health problems
supports the trial court’s findings. We, therefore, affirm the trial court as to all four statutory
grounds for termination.

III.

Once the court determines there is at least one ground for termination, the court must
conduct a best interest analysis using the statutory factors set forth at Tennessee Code
Annotated § 36-1-113(i)(1)-(9). The statutory factors 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). Mother failed to make a significant adjustment in her circumstances,
conduct, or conditions as to make it in Kayleigh’s best interest to return home in the
foreseeable future. While Mother had some visitation with Kayleigh, no significant
relationship exists between Mother and Kayleigh. In contrast, Kayleigh is doing well in her
foster home and her foster family wishes to adopt her and provide the stability Mother was
unable to provide. The best interest analysis is to be determined from the perspective of the
child rather than the parent, and it is clear that from Kayleigh’s perspective it is in her best
interest for Mother’s parental rights to be terminated. See State of Tenn., Dep’t of Children’s
Serv. 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)).

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 I N C ONCLUSION

The judgment of the trial court is affirmed and this matter is remanded with costs of
appeal assessed against the Department of Children’s Services due to Mother’s indigency.

___________________________________
FRANK G. CLEMENT, JR., JUDGE

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