In Re Greg S.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 25, 2015 Session

IN RE: GREG S.

Appeal from the Juvenile Court for Knox County
No. 36251 Timothy E. Irwin, Judge

No. E2015-00333-COA-R3-PT-FILED-OCTOBER 19, 2015

This appeal concerns the termination of a father’s parental rights. The 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 Greg S.
(“Father”) to his minor child Greg S., Jr. (“the Child”).1 The Juvenile Court terminated
Father’s parental rights to the Child on the ground of substantial noncompliance with the
permanency plan. Father appeals to this Court arguing only that it is not in the Child’s
best interest for Father’s parental rights to be terminated. We affirm the judgment of the
Juvenile Court.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Katheryn K. Murray, Knoxville, Tennessee, for the appellant, Greg S.

Herbert H. Slatery, III, Attorney General and Reporter, and, Rebekah A. Baker, Senior
Counsel, for the appellee, the Tennessee Department of Children’s Services.

1
There is some discrepancy in the record as to whether Father’s first name is spelled “Gregg” or “Greg.”
Greg appears to be the most common spelling in the record.
 OPINION

Background

The Child was born in October 2013 to parents Bridgetta M. (“Mother”)
and Father. DCS filed a petition to have the Child declared dependent and neglected
because Mother had tested positive for cocaine while pregnant with the Child. The Child
subsequently was declared dependent and neglected, and found to be a victim of severe
abuse. The Child was placed with a maternal relative. A permanency plan was fashioned
for Father. The initial permanency plan contained a number of requirements for Father,
including: obtain an alcohol and drug assessment; accept treatment recommendations and
comply with outpatient treatment recommendations; provide a safe home for the Child;
and, refrain from associating with known drug users. Father completed an alcohol and
drug assessment in July 2014. The results indicated that Father had mild symptoms of
post-traumatic stress disorder. Father asserted that his drug of choice was cocaine, and he
had used the drug about four times per month. His final use was four days before the
assessment. Father also reported drinking a quart of liquor three times per week. Father
tested positive for cocaine and benzodiazepines on the date of the assessment. The
assessor recommended an intensive outpatient program. Father, however, never
completed the intensive outpatient program. Father had worked at the University of
Tennessee for over thirty years.

DCS filed a petition to terminate Father’s parental rights in December
2014. The case was tried in February 2015. At trial, Father acknowledged that he had
not consistently visited the Child. Father stated that he was working sixty to eighty hours
per week. Father had continued to live with Mother, who by then had been found to have
committed severe child abuse, and married her in November 2014. The testimony was
that the Child was developing well in the foster home.

In March 2015, the Juvenile Court entered an order terminating Father’s
parental rights to the Child. We quote from the order concerning the ground found for
termination of Father’s parental rights, that of substantial noncompliance with the
permanency plan:

[The Child] was born out of wedlock to Respondent and [Mother] on
October 8, 2013, in Knox County, Tennessee. The temporary custody of
this child was awarded to the State of Tennessee, Department of Children’s
Services, on April 1, 2014, by order of the Juvenile Court of Knox County,
Tennessee; he has been in foster care continuously since that date. An
order finding the child dependent and neglected was issued by this Court

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following a hearing on April 1, 2014. The termination petition was filed
against Respondent on December 2, 2014.
II
1. This child was removed from his parents’ custody at birth due to
their substance abuse. His mother had failed multiple drug screens for
cocaine and marijuana during her pregnancy. Respondent admitted that he,
too, had been using cocaine and would fail a drug screen. Custody of the
child was transferred temporarily to a maternal relative and then to the
Department of Children’s Services after the relative completed the
requirements for kinship foster care.
2. The initial permanency plan was developed at a Child & Family
Team Meeting on April 27, 2014, with Respondent’s presence and
participation. Among other things, the plan required that he (a) complete
an alcohol and drug assessment, comply with all resulting
recommendations including treatment and aftercare, and pass random drug
screens to demonstrate sobriety; (b) cooperate with therapeutic visitation,
complete parenting education either through that provider or in an
independent course, and demonstrate learned skills during visitation; (c)
obtain and maintain safe, suitable housing for himself and his child free
from environmental hazards, domestic violence, drug abuse, or other risks
to the child. Respondent understood that the child’s mother had unresolved
substance abuse, mental health, and criminal issues and that choosing to
continue to live with her under those circumstances would be a barrier to
gaining custody of this child. The plan also required him to visit regularly
and to pay child support.
3. Respondent finally completed an alcohol and drug assessment on
July 17, 2014, after failing to cooperate with scheduling the month before.
He was positive for cocaine and benzodiazepines and admitted drinking
alcohol at least three days a week. The evaluator recommended intensive
outpatient substance abuse treatment. Respondent has asserted on several
different occasions since then that he was about to begin substance abuse
treatment but has never actually done so. He admitted during this hearing
that he used to have a big problem with cocaine but claimed that he had
stopped on his own. He testified that he could not get treatment because he
did not have insurance (despite full-time employment at the University of
Tennessee for more than a decade) and that he worked too many hours in
the summer to take advantage of grant-based programs.
4. Respondent was offered visitation on a weekly basis but has not
taken advantage of that opportunity at all. He saw the child a few times in
April and May and was advised on May 19, 2014, that visits would occur
every Wednesday afternoon at the Department’s office. He came to one
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visit in June and then showed up on July 2, 2014, for the first therapeutic
visit. He was informed that those visits would continue on the same
schedule. The child’s mother was arrested on June 6, 2014, and remained
in jail continuously until November 24, 2014. She then entered a 28-day
residential substance abuse treatment program. Her first visit with this
child after her incarceration occurred on January 16, 2015. Respondent
showed up with her. He had visited his son only one other time during the
mother’s incarceration. He either cancelled or simply failed to appear. He
again blamed his summer work schedule.
5. Respondent continues to reside in the home from which the child
was removed, a residence in suitable physical condition for the child. He
works. He has now married the child’s mother, with whom he had been
living for 6 years. She might be sober now.
7. This Court has previously found that the child’s mother, [Mother],
committed severe abuse against this child, due to her knowing exposure of
the child to illicit drugs in utero. Respondent and the child’s mother were
living together during this pregnancy; Respondent was using cocaine and
other illicit drugs along with her. This Court has also found that [Mother]
committed severe (physical) abuse against her older child, Kaedince [M.],
based on the extent of the injuries and the location of the injuries inflicted
on the child by her mother. On March 13, 2014, [Mother] entered a guilty
plea to the charge of child abuse and was granted judicial diversion for a
probation term of 364 days. She subsequently failed a drug screen for
cocaine and her diversion was revoked. On May 2, 2014, she was sentenced
to “11/29” and released to probation on condition that she enter and
complete IOP treatment at Peninsula. She again failed to comply and her
probation was revoked. She returned to jail on June 6, 2014, and remained
in jail until November 24, 2014, when she was released upon condition that
she complete a 28-day residential substance abuse treatment program.
8. While [Mother] was in jail, Respondent repeatedly acknowledged
his understanding that no child would be returned to a home in which she
was living unless she had completed her permanency plan responsibilities
and established to the satisfaction of this Court that she no longer presented
a risk of any kind to the child. Upon [Mother]’s release from jail,
Respondent married her and they resumed living together in his home once
she returned from treatment. Based upon her brief period of sobriety, this
Court was unable to find in her case that the conditions that led to removal
still persist. The Court has a similar problem in this case to the extent that
those conditions were largely based on the mother’s substance abuse and
the mother’s conduct while using.

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 9. The Court does, however, find that Respondent has failed to
comply in a substantial manner with those reasonable responsibilities set
out in the permanency plan related to remedying the conditions which
necessitate foster care placement. He had very little to do but he just didn’t
do it. The Court cannot get around the fact that he failed to visit almost the
entire time his wife was in jail. One visit in June, one visit in July, one visit
in August - when visits were scheduled every week - and then nothing until
the middle of January. Of course this child does not know him.

We next quote from the Juvenile Court’s order as it pertains to the Child’s
best interest:

1. The statutory factors this Court must consider in determining best
interest are not a score card. Each factor does not get assigned a number of
equal weight to be tallied. Has Respondent or another person residing with
him shown brutality, physical, sexual, emotional or psychological abuse, or
neglect toward this child or another child in the family or household? Yes,
Respondent’s wife committed brutality and physical abuse toward her
children in two different ways. Emotional and psychological abuse go
along with that. And neglect. She may now be doing everything she’s
been recommended to do but she has just begun. We don’t know yet
whether her efforts will result in a “lasting” adjustment. And so long as
Respondent chooses to live with her, his adjustment of circumstances is
dependent upon hers. Has Respondent maintained regular visitation or
otherwise established a meaningful relationship with the child? No, his son
doesn’t know him at all, even preferring the company of the Department’s
case manager. That is understandable, given that his kinship foster mother
is the only parent the child has ever known and that he has seen the case
manager on a regular basis. The child’s mother was incarcerated and could
not visit; Respondent had no similar excuse. Removing this child from the
only home he has ever known would be devastating to him. He has been
there since birth; he recognizes that home and that family as his own.
2. The parental rights of the child’s mother are being terminated on
this same date by companion order.
3. The Department of Children’s Services has made reasonable
efforts toward achieving permanency for this child.
4. The child is entitled to a safe, secure and loving home. He is now
thriving along with his half-sister in the care of their mother’s aunt where
they will remain part of the extended family even through adoption. They
are safe and happy and the[y] have the chance to achieve permanency.
They deserve to know where they will lay their heads at night.
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 5. 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 Tennessee, Department of Children’s Services, with the right to
place him for adoption and to consent to such adoption in loco parentis.
6. Respondent is not hereafter entitled to notice of proceedings for
the adoption of this child nor has he any right to object to such adoption or
otherwise to participate in such proceedings.

Father filed a timely appeal to this Court.

Discussion

Father raises one issue on appeal: whether the Juvenile Court erred in
finding by clear and convincing evidence that termination of Father’s parental rights was
in the Child’s best interest.

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)). “However, this right is not absolute and
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 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 WL
1660838, at *6 (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).

Although Father does not raise grounds for termination of his parental
rights as an issue on appeal, we nevertheless will address grounds. Tenn. Code Ann. §
36-1-113 (g)(2) (Supp. 2015) provides the relevant ground for termination of parental
rights as follows: “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.” Our Supreme Court has stated with respect to substantial
noncompliance:

Substantial noncompliance is a question of law which we review de
novo with no presumption of correctness. Substantial noncompliance is not
defined in the termination statute. The statute is clear, however, that
noncompliance is not enough to justify termination of parental rights; the
noncompliance must be substantial. Black’s Law Dictionary defines
“substantial” as “[o]f real worth and importance.” Black’s Law Dictionary
1428 (6th ed.1990). In the context of the requirements of a permanency
plan, the real worth and importance of noncompliance should be measured
by both the degree of noncompliance and the weight assigned to that
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 requirement. Terms which are not reasonable and related are irrelevant,
and substantial noncompliance with such terms is irrelevant.

In re Valentine, 79 S.W.3d at 548-49.

The Juvenile Court found one ground upon which to terminate Father’s
parental rights to the Child: that of substantial noncompliance with the permanency plan.
Father does not challenge this ground on appeal. Our careful review of the record leads
us to conclude that the evidence for Father’s substantial noncompliance with his
permanency plan responsibilities is indeed clear and convincing. We find and hold, as
did the Juvenile Court, that the evidence is clear and convincing to establish the ground
of substantial noncompliance with the permanency plan.

We now address whether the Juvenile Court erred in finding by clear and
convincing evidence that termination of Father’s parental rights was in the Child’s best
interest. The following statutory factors are to be considered by courts when determining
whether termination of parental rights is in the child’s best interest:

(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;

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 (6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;

(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.

Tenn. Code Ann. § 36-1-113 (i) (Supp. 2015).

Father argues that he has made considerable changes in his life such as to
render him a fit parent. Father submits as examples of his improvement that he quit using
drugs; his marrying Mother; his maintaining stable housing and employment; and, his
having established a relationship with the Child despite the paucity of contact. Father
also notes the gravity of terminating parental rights.

The Juvenile Court made detailed findings regarding best interest as quoted
above. The evidence in the record on appeal does not preponderate against the Juvenile
Court’s findings. As the Juvenile Court correctly noted, the weight to be drawn from best
interest factors differs from case to case, and the factors are not a score card. One of the
central issues in this case relating to the Child’s best interest is his exposure to drug use.
Even accepting Father’s testimony that he has quit using drugs, Father’s failure to
complete an intensive outpatient drug program raises serious concerns about whether
Father can stay off drugs.

An additional major concern, also related to drugs, both to the Juvenile
Court and this Court is Father’s living with and now marriage to Mother. By our opinion
in Mother’s separate appeal, which is to be released concurrently with this opinion, we
are affirming the termination of Mother’s parental rights to the Child. While this Court is
not in the business of dictating people’s relationship choices, Father’s decision to live
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with and marry Mother raises serious concerns about the Child’s best interest should
Father retain his parental rights. The Child deserves and must have an environment free
from drug and other abuse. Father has not shown, in sufficient depth or time, that he is in
a position to provide such an environment. On the contrary, Father’s continued living
with Mother and now marriage to Mother present renewed danger to the Child.
Meanwhile, the Child is thriving in foster care, and changing caregivers at this point
would be an unjustifiably risky move.

We find and hold, as did the Juvenile Court, that clear and convincing
evidence establishes the ground of substantial noncompliance with the permanency plan
in order to terminate Father’s parental rights to the Child, and the evidence is clear and
convincing that termination of Father’s parental rights is in the Child’s best interest. We
affirm the judgment of the Juvenile Court terminating Father’s parental rights to the
Child.

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, Greg S., and his surety, if any.

_________________________________
D. MICHAEL SWINEY, JUDGE

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