In re Savannah F.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 2, 2016

IN RE: SAVANNAH F., ET AL.

Appeal from the Juvenile Court for Knox County
No. 150351 Timothy E. Irwin, Judge
___________________________________

No. E2015-02529-COA-R3-PT
No. E2016-00064-COA-R3-PT
FILED-AUGUST 31, 2016
___________________________________

The trial court terminated the parental rights of Mother and Father to their three children on
the grounds of persistence of conditions and severe abuse. Because there was no judicial
finding of dependency, neglect, or abuse removing the children from the custody of Mother
and Father more than six months prior to the termination hearing, as required by Tennessee
Code Annotated Section 36-1-113(g)(3), we reverse the trial court’s determination that the
ground of persistence of conditions was shown by clear and convincing evidence. Because
we affirm the trial court’s determination of severe abuse and its determination that
termination is in the children’s best interests, however, we affirm the termination of Mother’s
and Father’s parental rights to their three children.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in
Part and Affirmed in Part

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO and RICHARD H. DINKINS, JJ., joined.

Sheri L. Ridgeway, Knoxville, Tennessee, for the appellant, Julia F.

Christine L. Dummer, Knoxville, Tennessee, for the appellant, Cody F.

Herbert H. Slatery, III, Attorney General and Reporter; and Alexander S. Rieger, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s Services.

OPINION
 Background

On June 19, 2105, the Tennessee Department of Children’s Services (“DCS”) filed a
petition in Knox County Juvenile Court (“the trial court”) to terminate the parental rights of
Julia F. (“Mother”) and Cody F. (“Father”) to their three minor children: Savannah F., born
in May 2011; Josiah F., born in April 2012, and Trinity F., born in August 2014.1 The
petition alleged that the children were removed from Mother’s and Father’s custody by order
of the juvenile court on October 5, 2014, after Josiah presented to the emergency room with
serious skull fractures. After an investigation by law enforcement and a child abuse expert,
DCS concluded that the child’s injuries were not consistent with Mother’s and Father’s
explanations and therefore were the result of non-accidental trauma. The petition alleged that
both parents’ parental rights should be terminated on grounds of severe abuse and persistent
conditions and that termination was in the children’s best interests.

The trial court created separate cases for Mother and Father and filed DCS’s petition
under separate docket numbers. The trial court appointed attorneys to both parents and a
guardian ad litem for the children. Eventually, a consolidated trial took place on the petitions
against both Mother and Father on December 8, 9, and 10, 2015.2 At trial, Dr. Marymer
Perales, a child abuse pediatrician, testified about the injuries that Josiah sustained.
According to Dr. Perales, she was called to consult on October 5, 2014, when Josiah arrived
at the hospital with severe head injuries. In order to facilitate her investigation, Dr. Perales
examined Josiah, spoke with Mother, and examined all test results that had been performed
on Josiah.

Dr. Perales testified that Mother informed her that Josiah was generally healthy with
no “real medical issues.” According to Mother, she placed Josiah and Savannah in a room for
a nap. Josiah was sleeping on a mattress on the floor. Mother, Father, and the others in the
home eventually heard a loud crash and Mother went to investigate. Mother claimed that a
chest of drawers had fallen on top of Josiah and that he was “bleeding and shaking.” Mother
then had her sibling call an ambulance. While they waited for the ambulance, Josiah
continued bleeding and began vomiting. Dr. Perales did not interview Father.

1
In cases involving termination of parental rights, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.
2
Although not reflected in the technical record, it appears from the trial transcript that the children’s
maternal grandmother filed a petition to intervene and to be awarded custody of the children. The trial court
considered the petition in the middle of trial, but, after hearing evidence that maternal grandmother’s home had
not been approved as a placement under the Interstate Compact on the Placement of Children in her home state
of Indiana, the trial court dismissed the petition without prejudice. The dismissal of maternal grandmother’s
petition is not at issue in this appeal.

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 A physical examination of the child revealed severe bruising around his eye and face
and dried blood around his nose and ears. After a CT scan was performed on the child, Dr.
Perales diagnosed him with multiple fractures on both sides of his skull. Fortunately, the tests
did not show any internal bleeding or obvious brain injuries. A CT scan of his abdomen and
chest also showed a “pulmonary contusion to this right upper lobe.”

Because the child’s injuries did not appear consistent with Mother’s explanation, Dr.
Perales asked that Mother and Father perform a recorded reenactment of the incident for her
to review. Dr. Perales noted several inconsistencies in the reenactment, including that Mother
could not remember where she found Josiah, that the child’s blood appeared to be under the
mattress upon which he was purportedly lying,3 and that the chest of drawers did not appear
to have been placed in a manner where it could have caused the child’s injuries. During the
reenactment, Father was required to help Mother move the chest of drawers in and out of
place. Father also stated during the reenactment that he had come into the room to see the
child’s injuries and had held the child at some point prior to the ambulance’s arrival. Based
upon the totality of the evidence, Dr. Perales opined that the child’s injuries did not result
from the falling of the chest of drawers onto his chest but instead were the result of non-
accidental trauma.

Cheryl Nix, an investigator with DCS, testified that DCS received a referral on
October 5, 2014, to investigate the child’s injuries. According to Ms. Nix, she was initially
informed that the child was unlikely to survive his injuries. Ms. Nix testified that Mother
informed her that the child’s injuries were the result of a chest of drawers falling onto the
child while he was put down to nap. According to Mother’s account to Ms. Nix at the
hospital, only Mother saw the child in the room immediately after his injuries, only Mother
removed the chest of drawers from the child, and only Mother held the child after his injuries
while awaiting the arrival of the ambulance. According to Ms. Nix, Mother had no trouble
recalling the sequence of events. Ms. Nix further testified that Father initially refused to
speak with her or law enforcement at the hospital. Father later informed Ms. Nix and law
enforcement that he did not help Mother remove the chest of drawers from the child because
Mother “had it cleaned up before he got in there.”

Ms. Nix was also present during the reenactment recording for Dr. Perales. According
to Ms. Nix, there were inconsistencies between Mother’s and Father’s statements in the
hospital and at the later reenactment. For example, while Mother initially informed Ms. Nix
that she alone removed the chest of drawers from the child and picked him up while awaiting
the ambulance, at the reenactment, Mother and Father claimed that both parents removed the
chest of drawers from the child and held the child. Ms. Nix also questioned the amount of

3
Dr. Perales testified that the blood under the mattress was not the result of blood soaking through the
mattress.
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blood and other bodily fluids that were found on Mother’s and Father’s clothes in
comparison to the child’s profuse bleeding and vomiting.

Ms. Nix, along with DCS Family Service Worker Lori Young, also testified regarding
DCS’s long and storied history with Mother and Father. DCS records admitted into evidence
showed that police were called twice to the parties’ home in Oregon for domestic violence
issues. In January 2013, Father was charged with harassment, endangering the welfare of a
minor, and possession of marijuana. The record is unclear as to the resolution of those
charges. As a result of these incidents of domestic violence, Mother moved with her children
to Tennessee in January 2013.

On January 29, 2013, Mother requested an order of protection against Father in Knox
County. In her petition for the order of protection, Mother made the following allegations
against Father:

In October 2012, I just got home from the bank and I was
there for maybe 10 minutes when I confronted [Father] about
using meth. I said, “You have been gone for a long time. Where
have you been[?]” I told him to leave my house and not come
back [until] he was clean. [Father] went into my bedroom where
my daughter was and she had gotten into our movies[.] [Father]
grabbed my daughter and smacked her in the face and threw her
into her room. I grabbed the phone to call the cops and he
grabbed me and threw me on the floor and took my truck and
phone with him.
In June 2012, I had been up pretty much all night with
our two kids because they were sick. I asked [Father] to watch
the kids while I took a nap[.] [Father] said he would. I went to
lay down a little while[.] Later I woke up to a big crash and my
babies crying. I went out to our living room where [Father] had
smashed our TV and dishes and was then yelling at our kids[.]
[Father] started calling me lazy and said I never did anything
and that he hated me[.] So again I told him to leave[.] He did
not[.]
In January 2011, I was pregnant and very sick again[.]
[Father] was using meth[.] I woke up and was about to get ready
for work when he came to the door and grabbed my purse to get
my wallet. I didn’t have much money and [Father] got mad and
called me a piece of crap because I didn't have much. [Father]
then grabbed me and told me he was going to kill me. When he
went into the bedroom I ran to the nearest store to call my
mom[.] I went to get a restraining order a few weeks later[.] I
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 went back to my apartment and found the window busted and
my apartment trashed[.]

Mother indicated that this was only the most recent incident of domestic violence. Mother
also filed petitions for orders of protection on behalf of Savannah and Josiah. Therein she
indicated that Father “smacked” the children and constantly threatened and belittled them.
Mother also indicated that Father would “constantly throw [Josiah] around.” The Knox
County Circuit Court entered an order on January 30, 2013, indicating that the allegations in
the order of protection petition “rise to dependency and neglect.” The Circuit Court therefore
directed Mother to file a petition regarding the children in juvenile court.

In February 2013, Mother had contact with DCS in Knox County. At that time,
Mother reported to DCS that she left Father because of domestic violence, violence against
the children, and Father’s illegal drug use. Mother stated that Father kicked Savannah and
“busted in the bathroom” to throw Mother’s phone in the bathtub when the family resided
together in Oregon. Mother also reported that Father was very mean to Josiah, apparently
because he did not like Josiah’s name and did not believe that Josiah was his biological child.
No services were recommended by DCS at that time.

In late March 2013, DCS again became involved with the family when Savannah was
admitted to the hospital and diagnosed with pneumonia and bronchitis. This time, Mother
reported to DCS that she had fled Father because he “slammed her head into the side of [a]
tub causing hearing loss,” and “kicked Savannah across the room when they lived in
Oregon.” One day after Mother made these statements to DCS, however, Mother indicated to
DCS that she wanted to reconcile with Father and wanted him to move to Tennessee. Mother
at that time claimed that her abuse allegations were fabricated. Father moved to Tennessee in
early April 2013 and he and Mother reconciled. In May 2013, Knox County DCS
inexplicably noted that the case was to be closed due to non-compliance. On September
30, 2013, however, DCS received another referral against both Mother and Father for
environmental neglect. DCS determined that no services were needed at that time.

DCS for the Eastern Tennessee Region, however, again had contact with Mother and
Father on April 24, 2014, when DCS received a referral regarding physical and psychological
abuse of Josiah by Father. According to DCS internal documents, DCS was informed that
Father “aggressively” pulled Josiah by his hair from the lobby of a building. Although law
enforcement was called, Father was not arrested “due to the child not having any marks.”
DCS’s records indicate that services were recommended but refused.

On or around June 9, 2014, DCS received another referral against Father regarding
lack of supervision. According to DCS records, Josiah was found wandering in the middle of
the street with no supervision. Father indicated that the child slipped out while he was in the

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bathroom. When he returned and noticed that Josiah was missing, Father called Mother and
the police, who eventually returned the child to Father.

Shortly thereafter, on June 13, 2014, DCS received another report of harm, this time
indicating that Father was pulling Josiah around in public by his hair. The person who made
the report to DCS stated that Father is aggressive with Josiah and Josiah appears to be afraid
of Father. The referent also indicated his or her fear that Mother was not intervening on
behalf of the children.

At this time, DCS recommended that Mother and Father participate in services with
DCS, including home visits and mental health assessments. Father, however, was initially
unwilling to participate in services outside the home. In-home services were not available,
however, as DCS’s in-home provider refused to work with Father because they were fearful
of him based upon their prior interactions with him. DCS records showed that the services
were refused due to “anger, outbursts, and inappropriate discipline” by Father. When Mother
informed DCS that Father was unwilling to participate in services outside the home, DCS
filed a petition in Campbell County Juvenile Court asking that Mother and Father be required
to participate in services. On July 1, 2014, DCS again made contact with Mother, who
indicated her desire to leave Father due to domestic violence fears. DCS offered to help
Mother and the children move into a shelter. Mother did not leave the home with the
children. It does appear from the record, however, that parents did participate in some
services, including allowing home visits during the summer of 2014. Mother eventually gave
birth to Trinity in August 2014.

According to DCS, the Campbell County Juvenile Court proceeding was eventually
non-suited on October 1, 2014, when DCS informed that court that Mother and Father had
moved to Knox County. Less than five days later, however, the child would suffer severe
injuries in Knox County. At that point, DCS again became involved with the family, filing a
petition in the trial court to have the children declared dependent and neglected and the
victims of severe abuse. Although the trial court entered an order finding probable cause to
remove all of the children and place them in DCS custody, no adjudicatory hearing ever took
place on DCS’s petition.

Angela Fuss, the children’s mental health counselor, testified regarding her treatment
of the children after they were removed from Mother’s and Father’s custody. Dr. Fuss holds a
Ph.D. in Counselor Education and is a Licensed Professional Counselor-Mental Health
Service Provider. Dr. Fuss began treating the children in March of 2015. The children began
receiving therapy shortly after an incident in their foster home where Josiah fell and bloodied
his nose and Savannah became hysterical at the sight of the blood. Dr. Fuss diagnosed
Savannah with anxiety, post-traumatic stress disorder (“PTSD”), and neglect. Josiah was also
diagnosed with PTSD, as well as physical abuse and neglect. Dr. Fuss indicated that Josiah’s
PTSD stems from his severe abuse, while Savannah’s PTSD stems from witnessing the abuse
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in the home. According to Dr. Fuss, in her first visit with Savannah, the child, without
prompting, stated that “Daddy hurt [Josiah’s] face.” When asked to clarify, Savannah
indicated that Father hit Josiah’s “face on the wall.” Dr. Fuss testified that Savannah would
often repeat that Father “hurt [Josiah’s] face on the wall” and disclosed that Father called her
names. Josiah was not present during Savannah’s initial disclosure. According to Dr. Fuss,
Josiah never explicitly stated that Father caused his injuries. Dr. Fuss testified, however, that
both Savannah and Josiah would state that Father was “mean” during their counseling
sessions and that Josiah would often agree with Savannah when she spoke about Father
hurting Josiah.

At first, both Savannah and Josiah exhibited aggressive and defiant behavior during
therapy. Josiah also experienced nightmares and separation anxiety. According to Dr. Fuss,
Savannah has made significant improvements with her speech delay and interpersonal skills,
but Josiah has not. Dr. Fuss indicated that Josiah’s lack of improvement could be due to his
skull injuries or pediatric bi-polar disorder but that she had not fully investigated those
possibilities. Initially, both Mother and Father were permitted supervised visitation with
Savannah, while only Mother was allowed to visit with Josiah. In March 2015, however, Dr.
Fuss testified that she recommended that all visitation with Father be terminated because the
visits led to jealousy on the part of Josiah. At trial, counsel for DCS indicated that an order
temporarily suspending Father’s visitation had previously been entered.

The children’s current foster mother (“Foster Mother”) also testified. Foster Mother
obtained possession of Savannah and Trinity immediately following their removal. Josiah
joined his sisters in the home approximately one month later. According to Foster Mother,
she initiated counseling for the children after Savannah became hysterical after seeing Josiah
bleeding due to an accidental fall. Foster Mother testified that after seeing the blood,
Savannah believed that Josiah was dead. Once Josiah received medical attention to stop the
bleeding, Savannah informed Foster Mother that “Daddy hit [Josiah’s] head on the wall . . .
and floor.” In making this disclosure, Savannah “hit the wall” and “touched the floor.” Foster
Mother had to convince Savannah that Father was not present and that Josiah was not
severely injured. Foster Mother testified that Savannah sometimes repeats her statement that
Josiah was injured by Father, especially when she sees blood. At the time of the first incident,
Foster Mother was not aware of the abuse allegations against Mother and Father;
accordingly, she requested that DCS allow the children to attend counseling.

Foster Mother mirrored Dr. Fuss’s testimony that while Savannah had made
significant improvements since entering therapy, Josiah has not. Foster Mother testified that
Josiah initially had nightmares where he would wake up screaming and would have recurring
nosebleeds. Foster Mother explained that Josiah needs considerable attention and that he still
has significant anger issues. Foster Mother testified that, on the whole, all three children are
doing well in foster care, though the youngest child suffers from asthma. Foster Mother

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admitted, however, that hers is not a pre-adoptive home and that the children would soon be
moving to a home that had been approved for adoption.

Josiah’s former foster mother (“Former Foster Mother”) also testified. Former Foster
Mother stated that she had possession of Josiah for approximately the first month after he
was released from the hospital following his injuries. Former Foster Mother echoed Foster
Mother’s testimony regarding Josiah’s recurring nightmares and issues with anger and
aggression. Likewise, Former Foster Mother testified that after seeing pictures of his injuries,
Josiah informed her that “Mommy hit my eye and head. Daddy hit my head.”

Mother testified on her own behalf. Mother admitted that Father had physically abused
her in the past, mirroring the allegations she made throughout her history with DCS. Mother
also admitted that Father had been physically abusive to Savannah in the past. According to
Mother, Father was “heavy into drugs” at that time. Mother admitted that she left Father,
moved to Tennessee, and sought a restraining order against Father. The order was “dropped,”
however, because Mother reconciled with Father. According to Mother, she only sought the
order to prevent Father from removing the children from daycare; the children, however,
were never placed in daycare. Mother admitted at trial that she had previously left Father
while pregnant with Savannah but reconciled with him after Father promised he would
change. Mother testified that in April 2014, she asked DCS to come to the hospital where
Savannah was being treated in an effort to remove the order of protection because she wanted
Father to come to Tennessee. At that time, Father’s counselor assured Mother that Father had
made significant progress in his drug use and anger issues.

Mother denied that Father was abusive toward the children after moving to Tennessee.
For example, she stated that the incident wherein an individual witnessed Father pulling
Josiah’s hair or arm mischaracterized the situation; instead, Father was simply attempting to
pull Josiah out of the street. Mother testified that many of the allegations of abuse in the DCS
record had simply been made up by DCS, including her desire to leave Father in July 2014.

Mother admitted that Father immediately did not stop abusing alcohol after their
reconciliation or even after the children were removed. In fact, Mother admitted that in
January 2015, a neighbor made a noise complaint because Father was “extremely drunk . . .
[a]nd falling all over the place.” Mother stated, however, that Father only drank alcohol “that
one time.” Mother admitted that she had asked Father to leave her home again in January
2015 but that they had again reconciled.

Mother did not specifically discuss the October 5, 2014 incident during her trial
testimony. Father, however, did provide his own explanation for Josiah’s injuries. Father
denied that Josiah’s injuries were in any way the result of non-accidental trauma perpetrated
by Father. According to Father, he was in the living room with Mother and other family
members when Mother put Josiah and Savannah down for a nap. Approximately thirty
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minutes to an hour later, they heard a loud crash. Mother initially went to check on the
children where they were napping. According to Father, a few minutes later, Mother asked
Father to join her in the bedroom. At the hearing, Father claimed that Mother had already
picked the chest of drawers off Josiah by the time he came into the room. While Mother
asked another individual to call an ambulance, Father testified that he took care of Josiah
and, after obtaining some toilet paper, cleaned much of the blood off of him. Father later
testified, however, that he never held Josiah. According to Father, Josiah then began to
vomit, so Mother carried him outside to wait for the ambulance. Father testified that the
blood that was found under the child’s mattress came from the child’s vomit that “went under
the mattress.”

Father also explained that his refusal to speak with investigators at the hospital
following Josiah’s injuries was due to his lack of trust in others based upon his inability to
understand. Father testified that he suffers from seizures and attention deficit hyperactivity
disorder that prevent him from reading well or understanding others. Father testified that his
issues also negatively affect his memory.

Father testified that Mother fabricated most of her claims of the domestic violence that
allegedly occurred in Oregon. Father later admitted, however, that he did hit Mother’s head
on the side of the bathtub in Oregon. Father generally denied that he had ever abused the
children, in either Oregon or Tennessee. Father admitted that he had previously been cited for
marijuana possession, methamphetamine possession, and shoplifting in Oregon. More
recently, Father admitted that he had been arrested in January 2015 relative to the noise
complaint and his consumption of alcohol but testified that he had no recollection as to why
he was arrested. Father admitted that he had previously abused alcohol and drugs and that he
promised Mother he would refrain from that behavior when he moved to Tennessee.

Father testified that since the children were removed, he has followed DCS’s
recommendations to obtain an alcohol and drug assessment, attend alcohol and narcotics
anonymous classes, attend anger management treatment, and pass drug screens. Father
testified that he has completed or is in the process of completing all of these requirements.
Father submitted a letter from his current mental health counselor, which indicated that
Father had been regularly attending therapy since May 2015 and had been making progress
on the management of his emotions. Father’s therapist stated in the letter, however, that
Father maintained that he had not caused Josiah’s injuries. Father admitted, however, that he
only recently began attending the anger management courses and must complete
approximately a year more of treatment.

Lori Young with DCS, testified about Mother’s and Father’s efforts to comply with
the permanency plan put in place for the children. Generally, Mother and Father had made an
effort to comply, but many of their efforts had begun after the termination petition was filed.
Indeed, according to Ms. Young, the only anger management class that Father had attended
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had occurred the week prior to the termination trial. Mother had yet to attend any anger
management classes, though she did attempt to do so in November 2015, but was unable to
do so because of a financial oversight by the provider. Ms. Young admitted, however, that
Father had participated in therapy sessions that would also address his anger management
issues. Ms. Young testified that Mother also participated in individual mental health
counseling. Ms. Young further testified that Father did not provide documentation of his
attendance at alcoholics or narcotics anonymous meetings until July 2015. A purported sign-
in sheet from Father’s alcoholics or narcotics anonymous meetings showed one meeting in
2013 and then increased participation from November 13, 2015, until the December 8, 2015
trial date. Generally, Ms. Young testified that parents were often unwilling to work with
certain service providers or switched providers after a few sessions for various issues. Ms.
Young also testified that Father completed all required alcohol and drug assessments. Despite
all of these efforts, Ms. Young testified that the greatest issue with Mother’s and Father’s
efforts has been their unwillingness to admit that their home has been a den of domestic
violence, physical aggression, and abuse of the children. According to Ms. Young, this issue
cannot be addressed until Mother and Father acknowledge its existence.

Mother’s younger brother (“Younger Brother”), who was present in the home on
October 5, 2014, testified last. Younger Brother’s testimony generally echoed Father’s
testimony as to how Josiah was injured, with some inconsistencies. First, Younger Brother
testified that the children had only been napping for fifteen minutes when the family heard
the crash. According to Younger Brother, he, rather than Mother, was the first to enter the
room and see the chest of drawers on Josiah. Younger Brother also testified that he never
witnessed Father leave the room to obtain toilet paper, that Father did not clean Josiah, and
that Father indeed picked Josiah up at one point while the child was bleeding and carried him
to the porch to await the ambulance.

The trial court issued an oral ruling on December 10, 2015. Eventually on January 24,
2016, the trial court entered a written order in both Mother’s and Father’s cases containing
detailed and thorough findings of fact and conclusions of law. Therein, the trial court ruled
that there was clear and convincing evidence that: (1) the children were dependent and
neglected; (2) Josiah was the victim of severe abuse by both Mother and Father as defined in
Tennessee Code Annotated Section 37-1-102(b)(21); (3) the ground of severe abuse had been
proven by clear and convincing evidence as to all three children under Tennessee Code
Annotated Section 36-1-113(g)(4); (4) the ground of persistent conditions had been proven
as to both Mother and Father under Tennessee Code Annotated Section 36-1-113(g)(3); (5)
clear and convincing evidence supported a finding that termination was in the children’s best
interests.

Mother and Father separately appealed the trial court’s order. On February 5, 2016,
this Court entered an order, sua sponte, consolidating Mother’s and Father’s appeals pursuant
to Rule 16(b) of the Rules of Appellate Procedure for purposes of briefing and oral argument.
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Although we consider each parent individually, because DCS filed only a single petition and
the trial court issued only a single order in this case, we likewise consolidate Mother’s and
Father’s appeals for purposes of our Opinion.

Issues Presented

As we perceive it, there are three issues in this appeal with regard to both parents:

1. Whether the trial court erred in finding clear and convincing evidence to support the
persistent conditions ground for termination of parental rights.
2. Whether the trial court erred in finding clear and convincing evidence to support the
severe abuse ground for termination of parental rights.4
3. Whether the trial court erred in finding clear and convincing evidence that termination
of both parents’ parental rights is in the children’s best interests.

Discussion

As recently explained by the Tennessee Supreme Court:

A parent’s right to the care and custody of her child is among
the oldest of the judicially recognized fundamental liberty
interests protected by the Due Process Clauses of the federal and
state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000);
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk,
855 S.W.2d 573, 578–79 (Tenn. 1993). But parental rights,
although fundamental and constitutionally protected, are not
absolute. In re Angela E., 303 S.W.3d at 250. “‘[T]he [S]tate as
parens patriae has a special duty to protect minors . . . .’
Tennessee law, thus, upholds the [S]tate’s authority as parens
patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In
re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see

4
Mother does not raise an issue on appeal that the trial court erred in finding severe abuse. The
Tennessee Supreme Court, however, has directed this Court to consider every ground for termination found by
the trial court, even if not specifically appealed by the parent. See In re Carrington H., 483 S.W.3d 507, 525–
26 (Tenn. 2016), petition for writ of cert. docketed (April 27, 2016) (“[W]e hold that in an appeal from an
order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground
for termination and as to whether termination is in the child's best interests, regardless of whether the parent
challenges these findings on appeal.”). Accordingly, we will consider the evidence with regard to severe abuse
as to both parents.
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 also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re
Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).

Our termination statutes identify “those situations in which the state’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting forth
grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434 S.W.3d
565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)). A
person seeking to terminate parental rights must prove both the existence of one of the
statutory grounds for termination and that termination is in the child’s best interest. Tenn.
Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).

Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination
and the best interest inquiry must be established by clear and convincing evidence. Tenn.
Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing
evidence “establishes that the truth of the facts asserted is highly probable . . . and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
“produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts
sought to be established.” Id. at 653.

In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review as set forth in Tennessee Rule
of Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or as
supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002).

When the resolution of an issue in a case depends upon the truthfulness of witnesses,
the trial judge, who has had the opportunity to observe the witnesses and their manner and
demeanor while testifying, is in a far better position than this Court to decide those issues.
See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any
witness’s testimony lies in the first instance with the trier of fact, and the credibility accorded

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will be given great weight by the appellate court. Walton v. Young, 950 S.W.2d 956, 959
(Tenn. 1997).

I.

We begin with the ground of persistent conditions. Pursuant to Tennessee Code
Annotated Section 36-1-11(g)(3), a ground for termination exists when:

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 or parents or the guardian or guardians,
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 or parents or the guardian or
guardians 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;
....

In this appeal, both Mother and Father argue that the trial court erred in applying the
persistence of conditions ground for termination where no court entered an order following
an adjudicatory hearing finding the children dependent, neglected, or abused more than six
months prior to the termination hearing. Mother and Father contend that such an order is
required by this Court’s holding in In re Audrey, 182 S.W.3d 838 (Tenn. Ct. App. 2005). We
agree.

In Audrey, we held that the ground of persistent conditions, Tennessee Code
Annotated Section 36-1-113(g)(3), can only apply where the record contains a “prior court
order removing the child from the parent’s home that was based on a judicial finding of
dependency, neglect, or abuse[.]”Audrey, 182 S.W.3d at 874. The Audrey Court explained
that an order from a preliminary hearing removing the children from the home was
insufficient to qualify under the statute because it did not contain a finding, based on clear
and convincing evidence, that the child was dependent, neglected, or abused. As such, the
persistence of conditions ground for termination contained in Tennessee Code Annotated
Section 36-1-113(g)(3) was inapplicable.
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 The same is true in this case. Here, DCS concedes in its appellate brief that at the time
of the termination hearing, the juvenile court had not yet entered an order containing a
judicial finding of dependency, neglect, or abuse based upon clear and convincing evidence.
Indeed, a November 18, 2014 judicial review order is contained in the record indicating that a
final hearing would take place in March 2015. The record on appeal, however, does not
indicate that the hearing took place and no order resulting from such a hearing is included in
the record.5 In its final order, the trial court found that the children had been removed from
the home for a period of more than six months but did not cite any order containing a finding
of dependency, neglect, or abuse as the basis for its application of the persistent conditions
ground for termination. Because the record on appeal does not contain any order containing a
judicial finding of dependency, neglect, or abuse entered more than six months prior to the
termination of parental rights hearing, the trial court erred in applying the persistence of
conditions ground for termination to this case.6 The trial court’s finding that clear and
convincing evidence supports the ground of persistent conditions is, therefore, reversed as to
both Mother and Father.

II.

We next consider whether the trial court erred in finding clear and convincing
evidence of severe abuse. Pursuant to Tennessee Code Annotated Section 36-1-113(g)(4), a
ground for termination exists when:

The parent or guardian has been found to have committed severe
child abuse as defined in § 37-1-102, under any prior order of a
court or is found by the court hearing the petition to terminate
5
Father asserts in his brief that the hearing did not take place because of discovery delays.
6
Although it is somewhat unclear from its brief, it appears that DCS argues that the order terminating
Mother’s and Father’s parental rights, which was entered on January 22, 2016, was a sufficient order under
Audrey because it contained a judicial finding, based upon clear and convincing evidence, that the children
were dependent, neglected, and abused. This argument ignores the plain language of Tennessee Code
Annotated Section 36-1-113(g)(3), which requires that such an order removing the children be entered for at
least six months before the trial court may rely upon the persistent conditions ground for termination. Because
the dependency and neglect finding and the finding regarding persistent conditions were made in the same
order, the children had clearly not been removed from the home for a period of more than six months by an
order containing a judicial finding of dependency, neglect, or abuse at the time the trial court utilized the
persistent conditions ground for termination. DCS also argues we should revisit this Court’s holding in In re
S.S.-G., No. M2015-00055-COA-R3-PT, 2015 WL 7259499 (Tenn. Ct. App. Nov. 16, 2015), that the order
containing the judicial finding of dependency, neglect, or abuse be final at the time it serves as the underlying
basis for the application of Tennessee Code Annotated Section 36-1-113(g)(3), as DCS argues such a result is
not contemplated by the termination statutes. Because there is no order, final or otherwise, in this case in which
a judicial finding of dependency, neglect, or abuse was made more than six months prior to the termination
hearing, we need not consider this issue.
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 parental rights or the petition for adoption to have committed
severe child abuse against the child who is the subject of the
petition or against any sibling or half-sibling of such child, or
any other child residing temporarily or permanently in the home
of such parent or guardian; . . . .

In turn, severe child abuse is defined as, inter alia:

(A)(i) The knowing exposure of a child to or the knowing
failure to protect a child from abuse or neglect that is likely to
cause serious bodily injury or death and the knowing use of
force on a child that is likely to cause serious bodily injury or
death;
(ii) “Serious bodily injury” shall have the same meaning
given in § 39-15-402(d).
(B) Specific brutality, abuse or neglect towards a child that in
the opinion of qualified experts has caused or will reasonably be
expected to produce severe psychosis, severe neurotic disorder,
severe depression, severe developmental delay or intellectual
disability, or severe impairment of the child’s ability to function
adequately in the child’s environment, and the knowing failure
to protect a child from such conduct; . . . .

Tenn. Code Ann. § 37-1-102(b)(21). Serious bodily injury, as defined by Tennessee Code
Annotated Section 39-15-402(d),

includes, but is not limited to, second- or third-degree burns, a
fracture of any bone, a concussion, subdural or subarachnoid
bleeding, retinal hemorrhage, cerebral edema, brain contusion,
injuries to the skin that involve severe bruising or the likelihood
of permanent or protracted disfigurement, including those
sustained by whipping children with objects.

Tennessee Code Annotated Section 37-1-102(b)(21)(A)(i) specifically requires that
the exposure or failure to protect a child from severe abuse be “knowing.” As we explained:

In child abuse cases, the parent or caregiver may deny that the
injury was purposefully inflicted, and where the injuries are
inflicted on pre-verbal infants and children, there is often no
witness to the injury other than the parent or caregiver. The
“knowing” element can and often must be gleaned from
circumstantial evidence, including but not limited to, medical
- 15 -
 expert testimony on the likelihood that the injury occurred in the
manner described by the parent or caregiver. Moreover,
“knowing” conduct by a parent or caregiver is not limited to
conduct intended to cause injury[.]

In re Kason K.C., No. M2013-01607-COA-R3-JV, 2014 WL 1878767, at *5 (Tenn. Ct. App.
May 7, 2014). While the term “knowing” as used in Section 37-1-102(b)(23) is not defined
by statute, our courts have previously considered its definition in the context of a dependency
and neglect proceeding. See id. at *5; In re Caleb J.B.W., No. E2009-01996-COA-R3-PT,
2010 WL 2787848, at *5 (Tenn. Ct. App. July 14, 2010); In re H.L.F., 297 S.W.3d 223, 236
(Tenn. Ct. App. 2009); In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at
*7 (Tenn. Ct. App. 2004). We will therefore consider a person’s conduct to be “knowing,”
and a person to act or fail to act “knowingly,” when a parent “has actual knowledge of the
relevant facts and circumstances or when he or she is either in deliberate ignorance of or in
reckless disregard of the information that has been presented to him or her.” Caleb, 2010 WL
2787848, at *5 (citing R.C.P., 2004WL 1567122, at *7).

Here, there can be no dispute that the child’s multiple skull fractures constituted a
serious bodily injury pursuant to Tennessee Code Annotated Sections 37-1-102(A)(i) and 39-
15-402(d). Furthermore, the children’s counselor testified that Josiah suffered from PTSD as
a result of the physical abuse he suffered in the home. The evidence shows that Josiah
continues to suffer from nightmares, defiance, and aggression as a result of his trauma. This
Court has previously held that testimony that the children suffered from “an adjustment
disorder, mixed with anxiety and depression, and post-traumatic stress disorder” as a result
of their abuse and neglect was sufficient to meet the statutory definition of severe abuse
contained in Tennessee Code Annotated Section 37-1-102(b)(21)(B). In re Caleb F.N.P.,
No. M2013-00209-COA-R3-PT, 2013 WL 5783141, at *14 (Tenn. Ct. App. Oct. 25, 2013).

Father argues, however, that the evidence in the record regarding the cause of the
child’s injuries is insufficient to meet the clear and convincing standard. Specifically, Father
asserts that Dr. Perales’s testimony was insufficient because she never interviewed Father or
any other individuals at the home and the trial court even mentioned that Dr. Perales’s
testimony was “a little inconclusive” in its oral ruling. Respectfully, we disagree. First, we
note that the trial court’s written order terminating Mother’s and Father’s parental rights does
not contain an indication that Dr. Perales’s testimony was inconclusive. While the trial court
did make this statement in its oral ruling, trial courts speak through their written orders,
rather than the trial transcript. Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct.
App. 2011) (citing Steppach v. Thomas, 346 S.W.3d 488, 522 (Tenn. Ct. App. 2011)). This
is especially true in termination of parental rights cases, where trial courts are directed by
statute to make written findings to support their decisions. See Tenn. Code Ann. § 36-1-
113(k) (“The court shall enter an order that makes specific findings of fact and conclusions

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of law within thirty (30) days of the conclusion of the hearing.”). As such, we will only
consider the trial court’s written ruling in this case.

Moreover, despite Father’s focus on Dr. Perales’s testimony in his appellate brief, it is
clear from the trial court’s order that it did not consider Dr. Perales’s testimony in isolation.
Instead, the trial court specifically relied upon the statements made by Josiah and Savannah
to their counselor and Foster Mother regarding the cause of Josiah’s injuries in finding that
Mother and Father exposed Josiah to severe abuse or failed to protect him from severe abuse.
To recap, Dr. Perales testified that the child’s injuries would not have resulted from the
scenario set forth by Mother and Father. Instead, Dr. Perales testified that the child’s injuries
likely resulted from non-accidental trauma. According to Dr. Fuss and Foster Mother, both
children expressly blamed Father for the trauma, and sometimes implicated Mother in the
injuries as well. Neither Mother nor Father objected to the admission of the children’s
statements at trial. Furthermore, the trial court specifically found the children’s statements
and their recitation by Foster Mother credible compared to the explanation offered by Mother
and Father for the child’s injuries. As previously discussed, this Court gives great weight to
the credibility determinations made by the trial court and will not overturn those
determinations absent clear and convincing evidence to the contrary. See Wells v. Tennessee
Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

Neither parent points to any evidence that would call into question the children’s own
statements that Josiah’s injuries were caused by Father and, perhaps, Mother. Indeed, as the
trial court pointed out in its order, the children’s statements were corroborated by the history
of abuse Mother suffered at Father’s hands and the multiple reports of abuse of the children
made to DCS after their move to Tennessee. Furthermore, the trial court specifically found
that Savannah’s explanation for Josiah’s injuries, that Father slammed the child’s head
against a wall or the floor, was a better explanation for the child’s injuries than the
explanation offered by Mother and Father.

In other cases where severe injury has occurred to children unwilling or unable to
pinpoint a perpetrator, we have concluded that the severe abuse was shown by clear and
convincing evidence where an expert testified that the child’s injuries “could not have
occurred in the manner explained by [the parents].” In re Dakota C.R., No. W2010-01946-
COA-R3-JV, 2012 WL 1418048, at *10 (Tenn. Ct. App. Apr. 24, 2012). The same is true in
this case. Here, Mother’s and Father’s explanation for the abuse was not consistent
throughout the proceedings, nor is it plausible. For example, we note that Mother initially
told DCS investigators that she alone removed the chest of drawers from the child’s chest
and carried the child outside while awaiting an ambulance. During the video recording,
however, Father was required to assist Mother in moving the chest of drawers and both
indicated that Father helped Mother with the child after his injuries were discovered. Dr.
Perales testified that this scenario was unlikely, as Father would have had significantly more
blood on his clothing had he held the child following injuries. Later, Father testified that he
- 17 -
did not assist Mother in removing the chest of drawers from Josiah. In addition, the
explanations provided by Father and Younger Brother at trial contained numerous
inconsistencies, including whether Father held Josiah, who went into the room first, and how
long the children had been alone before allegedly the family heard the crash that alerted them
to Josiah’s injuries. Furthermore, the parents’ claim that the chest of drawers was only
covering the child’s chest does not adequately explain why the child suffered only minor
injuries to his chest but severe injuries to his head. Given Dr. Perales’s testimony, the history
of abuse in this family, and the children’s unsolicited statements, the evidence does not
preponderate against the trial court’s finding that non-accidental trauma at the hands of
Father caused the child’s injuries.

Finally, we note that Father is correct that Dr. Perales did not interview him or any of
the other individuals present when the child was injured prior to coming to her conclusion
that the injuries resulted from non-accidental trauma. Dr. Perales’s failure to interview
Father, however, was not fatal to her conclusions. First, Dr. Perales testified without dispute
that she reviewed the video recording wherein both Mother and Father offered their
explanation for the child’s injuries. Furthermore, the record shows that Father was initially
unwilling to speak with investigators. Under the totality of the circumstances, we conclude
that the trial court did not err in finding clear and convincing evidence that Father committed
or knowingly exposed Josiah to abuse, which has caused both severe bodily injury and
“severe impairment of the child’s ability to function adequately in the child’s environment.”
See Tenn. Code Ann. § 37-1-102(b)(21)(A)(i), (B). The trial court therefore did not err in
finding the ground of severe abuse against Father with regard to all of the children. See Tenn.
Code Ann. § 36-1-113(g)(4) (stating that a ground for termination exists when the parent has
committed severe abuse against a child “or against any sibling or half-sibling of such child”);
see also In re Keara J., 376 S.W.3d 86, 107 (Tenn. Ct. App. 2012) (holding that a finding
that a parent committed severe abuse against one child also served as a ground for
termination for the victimized child’s siblings, even those that did not suffer from the abuse);
State, Dep’t of Human Servs. v. Hauck, 872 S.W.2d 916, 921 (Tenn. Ct. App. 1993)
(holding that trial court’s conclusion that parent committed severe abuse against the child’s
sibling was sufficient to support ground of severe abuse against uninjured child).

We concede that evidence that Mother actually caused Josiah’s injuries is less
convincing than the evidence tending to show that Father committed severe abuse against
Josiah. At times, Josiah implicated Mother in his statements regarding his injuries; at other
times, however, the children only blamed Father for the abuse. Regardless, this Court has
repeatedly held that “direct evidence that [a parent] actively engaged in or witnessed abuse of
his children is not necessary to find that he [or she] is guilty of severe child abuse and that the
children are dependent and neglected.” Dakota, 2012 WL 1418048, at *10 (citing In re
H.L.F., 297 S.W.3d 223, 236 (Tenn. Ct. App. 2009)). Instead, “a parent who has not directly
abused her own child may still be found to have committed severe child abuse if she
‘knowingly exposed the child to, or knowingly failed to protect the child from, conduct
- 18 -
constituting severe child abuse.’” H.L.F., 297 S.W.3d at 235–36 (quoting R.C.P., 2004 WL
1567122, at *6). Thus, “[a] parent who is present when a child is abused but who fails to
intervene to protect the child has knowingly exposed the child to, or has failed to protect the
child from, abuse.” H.L.F., 297 S.W.3d at 236. “A parent’s failure to protect a child will also
be considered ‘knowing’ if the parent had been presented with sufficient facts from which he
or she could have and should have recognized that severe child abuse had occurred or that it
was highly probable that severe child abuse would occur.” R.C.P., 2004 WL 1567122, at *7
(citing West Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 475 S.E.2d 865,
878–79 (W.Va. 1996)).

Here, the trial court specifically found that:

[Mother] was perfectly aware of the danger [Father] presented
to the health and well-being of her children. She had personally
witnessed [Father] verbally and physically abuse Savannah and
Josiah on several occasions before October 5, 2014. In fact,
[Mother] had kicked [Father] out of the home on at least two
occasions . . . . On each such occasion she had done so for her
safety and the safety of the children. However, she allowed
[Father] to return to the family home each time. The physical
attack of [Father] upon Josiah . . . most certainly did not come as
surprise to [Mother]. [Mother] had placed her interests above the
safety and well-being of her children. [Mother] was present in
the family home on the afternoon of October 5, 2014, possessing
personal knowledge of her husband’s history of violent acts
toward the children, and in particular, Josiah, and she failed to
protect Josiah from her husband on that fateful afternoon of
October 5, 2014.

The evidence in the record does not preponderate against the trial court’s finding that Mother
was aware of Father’s violent tendencies and failed to protect Josiah from his abuse. Indeed,
as the trial court mentioned, the evidence in the record shows that Mother fled Father due to
his physical violence, moving across the country to escape him. Eventually, however, Mother
allowed Father to move back into the home. What followed were multiple allegations of
abuse that culminated in Josiah’s nearly life-threatening skull fractures. Under these
circumstances, the trial court did not err in finding that Mother committed severe child abuse
under Tennessee Code Annotated Section 36-1-113(g)(4) by knowingly failing to protect
Josiah from serious bodily harm. The trial court therefore did not err in terminating Mother’s
parental rights to all of the children. See Tenn. Code Ann. § 36-1-113(g)(4)); Keara, 376
S.W.3d at 107; Hauck, 872 S.W.2d at 921.

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 III.

Finally, we consider whether the trial court erred in finding clear and convincing
evidence that termination of Mother’s and Father’s parental rights was in the children’s best
interests. When at least one ground for termination of parental rights has been established,
the petitioner must then prove by clear and convincing evidence that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.
App. 1994). When a parent has been found to be unfit (upon establishment of ground(s) for
termination of parental rights), the interests of parent and child diverge. In re Audrey S., 182
S.W.3d at 877. The focus shifts to the child’s best interest. Id. Because not all parental
conduct is irredeemable, Tennessee’s termination of parental rights statutes recognize the
possibility that terminating an unfit parent’s parental rights is not always in the child’s best
interest. Id. However, when the interests of the parent and the child conflict, courts are to
resolve the conflict in favor of the rights and best interest of the child. Tenn. Code Ann. §
36-1-101(d). Further, “[t]he child’s best interest must be viewed from the child’s, rather than
the parent’s, perspective.” Moody, 171 S.W.3d at 194.

The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are 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 affect 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
- 20 -
 activity in the home, or whether there is such use of alcohol or
controlled substances 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). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending
on the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:

Ascertaining a child’s best interests does not call for a rote
examination of each of Tenn. Code Ann. § 36-1-113(i)’s nine
factors and then a determination of whether the sum of the
factors tips in favor of or against the parent. The relevancy and
weight to be given each factor depends on the unique facts of
each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one
factor may very well dictate the outcome of the analysis.

Id. at 878 (citing Moody, 171 S.W.3d at 194).

The trial court made detailed and thorough findings with regard to its finding that it
was in the best interests of the children for Mother’s and Father’s rights to be terminated.
First, the trial court found little evidence that Mother or Father had made an adjustment in
circumstances that would allow the children to safely return to the home. See Tenn. Code
Ann. § 36-1-113(i)(1), (2). The trial court cited Father’s substance abuse and arrest in
January 2015 and Mother’s resulting attempt to again remove Father from her life only for
her to eventually allow him to return to her home. As the trial court noted regarding Mother’s
decision to remain with Father despite her own allegations of abuse against him and multiple
reports by others regarding abuse of the children:

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 [Mother’s] actions and testimony tell this Court plainly that
contrary to what she has seen and experienced at the hands of
[Father] and all the evidence presented in this trial, she believes
[Father] presents little or no risk of harm to the children.
[Mother] could not be more wrong in her beliefs about [Father]
and the danger he presents to the children.

The trial court concluded that based upon Father’s history of violence and the family’s
repeated participation in DCS services over the years with little effect, “it does not appear
that a lasting adjustment by the parents using social services is reasonably possible.” The trial
court therefore concluded that these factors favored termination.

The trial court also concluded that given the testimony regarding the effect of the
abuse on the children by Dr. Fuss and the children’s own statements regarding the abuse,
returning the children to Mother’s and Father’s home would “place all three children at risk
of further abuse and neglect and devastate the children from a psychological standpoint.” See
Tenn. Code Ann. § 36-1-113(i)(5). The trial court noted, however, that because Foster
Mother was not approved to adopt the children, they were likely to have a change in
caretakers regardless of the result of the termination proceeding. However, given the
evidence regarding abuse, the trial court nevertheless concluded that this factor weighed in
favor of termination.

The trial court next found that the physical abuse of Josiah heavily weighed in favor of
termination of Mother’s and Father’s parental rights. See Tenn. Code Ann. § 36-1-113(i)(6).
As the trial court explained: “Not only did Savannah and Josiah suffer abuse from their
father, they suffered abuse from their father, in large part, because their mother repeatedly
exposed them to further abuse knowing that the father was subject to violent outbursts.” The
trial court further concluded that Mother’s and Father’s home was not a healthy and safe
environment for the children due to Mother’s and Father’s history of abuse. See Tenn. Code
Ann. § 36-1-113(i)(7).

The trial court also found that Mother’s mental and emotional state:

shows that she is unable to make necessary choices to preserve
or ensure the health and well-being of her children. [Mother] has
demonstrated time after time that she considers her personal
needs paramount. Each opportunity she has had to establish a
safe home for her children free of her abusive husband, has been
ultimately rejected. [Mother] has clearly shown that she is
incapable of providing safe and stable care and supervision for
the children.

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See Tenn. Code Ann. § 36-1-113(i)(8). With regard to Father, the trial court found that:

[Father] has had numerous opportunities or chances to seek
professional help to address his issues with substance abuse and
violent outbursts. According to [Mother], [Father] has made use
of such professional services to address these issues in the past;
however, the life threatening assault on Josiah on October 5,
2014, and the relapse of in January 2015, show that those
services have had little impact towards changing [Father] for the
better.
See id.

Not all factors, however, weighed in favor of termination in the trial court’s
estimation. The trial court conceded that Mother and Father exercised all visitation that was
allowed to Mother and Father during the pendency of the juvenile court proceedings. See
Tenn. Code Ann. § 36-1-113(i)(3). The trial court also found that Mother and Father had a
meaningful relationship with the children. See Tenn. Code Ann. § 36-1-113(i)(4). The trial
court, however, declined to place great weight on this factor, based upon the fact that
returning the children to the home would likely subject them to “a dangerous environment”
that Mother and Father failed to make “meaningful and significant efforts to change.” The
trial court also concluded that there was no evidence that Mother and Father failed to pay
child support for the children. See Tenn. Code Ann. § 36-1-113(i)(9). Despite these findings,
the trial court ultimately concluded that termination was in the children’s best interests.

The evidence in the record does not preponderate against the trial court’s findings
with regard to the best interest factors contained in Tennessee Code Annotated Section 36-1-
113(i). Here, while Mother and Father have made some effort to change their circumstances
in the months and weeks leading up to trial, their efforts are simply “too little, too late.” See
In re K.M.K., No. E2014-00471-COA-R3-PT, 2015 WL 866730, at *6 (Tenn. Ct. App. Feb.
27, 2015) (holding that father’s efforts after the termination petition was filed were “too
little, too late”); In re A.W., 114 S.W.3d 541, 546 (Tenn. Ct. App. 2003) (holding that
mother’s improvement only a few months prior to trial was “[t]oo little, too late”). Indeed,
the record shows that Mother and Father only attended anger management classes in the
weeks before the termination hearing. Even more importantly, neither Mother nor Father has
ever taken any responsibility for the injuries that Josiah sustained on October 5, 2014, or for
the issues that the children continue to experience as a result of being exposed to violence in
the home. As the trial court found, throughout the years, Mother made continuous complaints
about Father’s violent nature, only to reconcile and return him to her home each and every
time.

We recognize that not every factor in this case favors termination. To be sure, Mother
and Father exercised all visitation that was permitted, an important action on their part in
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endeavoring to maintain and repair the parent-child relationship. However, the record also
shows that as a result of the abuse that the children suffered and observed in the home,
Savannah and especially Josiah have significant mental and emotional wounds that are only
now beginning to be healed. We note that there is no evidence in the record that Mother’s
and Father’s youngest child was ever the victim of any abuse or abuse exposure. Still, given
Mother’s and Father’s failure to take responsibility for the abuse to which Savannah and
Josiah were exposed, the evidence does not preponderate against the trial court’s finding that
all of the children would be unsafe if returned to Mother’s and Father’s home. Further, even
considering the fact that the children will be required to change caretakers despite
terminating Mother’s and Father’s parental rights, we agree with the trial court that severing
the parent-child relationship between Mother, Father, and the children is in the children’s
best interest. This action provides the children with the best hope of being placed in a
permanent, stable, and safe environment without the risk of severe abuse in the future. Under
these circumstances, we affirm the trial court’s determination that termination of Mother’s
and Father’s parental rights to the children is in their best interest.

Conclusion

The judgment of the Knox County Juvenile Court is reversed in part and affirmed in
part. The trial court’s ruling terminating Mother’s and Father’s parental rights is affirmed.
Costs of this appeal are taxed to Appellants, Julia F. and Cody F., for all of which execution
may issue if necessary.

_________________________________
J. STEVEN STAFFORD, JUDGE

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