In re Dakota H.

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

IN RE DAKOTA H. ET AL.

Appeal from the Juvenile Court for Anderson County
Nos. J-28985, J-28988, J-29004 Darryl Edmondson, Judge

No. E2016-00036-COA-R3-PT-FILED-OCTOBER 12, 2016

This is a termination of parental rights case focusing on the three minor children of
Bobby H. (“Father”). On March 11, 2015, the Tennessee Department of Children’s
Services (“DCS”) filed a petition to terminate the parental rights of Father. DCS alleged
as a basis for termination the statutory grounds of (1) abandonment by failure to provide
a suitable home, (2) substantial noncompliance with the permanency plans, (3)
persistence of the conditions leading to removal of the children, and (4) mental
incompetence preventing adequate care of the children. Following a bench trial, the trial
court granted the petition upon its determination by clear and convincing evidence that
DCS had proven the statutory grounds of abandonment by failure to provide a suitable
home and persistence of the conditions leading to removal of the children. The court
further determined by clear and convincing evidence that termination of Father’s parental
rights was in the children’s best interest. Father has appealed. Discerning no reversible
error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

J. Wade Jenkins, Knoxville, Tennessee, for the appellant, Bobby H.

Herbert H. Slatery, III, Attorney General and Reporter, and Rachel E. Buckley, Assistant
Attorney General, for the appellee, State of Tennessee Department of Children’s
Services.
 OPINION

I. Factual and Procedural Background

Father appeals the termination of his parental rights to his three minor children:
Dakota H., Hunter H., and Brianna H. (“the Children”). Melissa S., a resident of Oregon,
is the biological mother of Dakota H. Her parental rights had not been terminated at the
time of the trial court proceedings, and she is not a party to this appeal. Heidi M. is the
biological mother of Hunter H. and Brianna H. Heidi M. surrendered her parental rights
on October 22, 2014. She is also not a party to this appeal.

The trial court entered an order dated August 13, 2010, removing the Children
from the custody of Father and Heidi M. due to environmental neglect and sexually
reactive behavior by Dakota H., who was eight years old at the time of removal. 1 DCS
alleged in the removal petition that despite DCS’s provision of services to the family
prior to removal, the environmental neglect had not been remedied because Father had
refused to cooperate with services. DCS also alleged that Dakota H. sexually abused a
younger sibling and that he had disclosed his observation of sexual acts committed by
Father and Heidi M. The trial court subsequently entered a preliminary hearing order on
August 17, 2010, finding that DCS had established probable cause to show that the
Children were dependent and neglected based upon the allegations contained in the
petition and Father’s waiver of the preliminary hearing. The Children were placed in
foster care, and an initial permanency plan was developed with Father and Heidi M. on
September 8, 2010.

On November 24, 2010, the trial court entered an order allowing Father and Heidi
M. to exercise unsupervised visitation with the Children because Father and Heidi M. had
obtained appropriate housing and had completed several requirements of the permanency
plan.2 However, on December 9, 2010, the court entered an order reflecting that new
allegations had been made by the Children. A subsequent permanency plan was created
on December 10, 2010.

The trial court entered an adjudicatory hearing order on October 27, 2011,
determining the Children to be dependent and neglected due to Father’s, Heidi M.’s, and
Melissa S.’s stipulation of environmental neglect. Father and Heidi M. were allowed to
resume weekend visitation with the Children with a safety plan in effect. On December

1
This order does not mention Dakota H.’s biological mother, Melissa S., apparently because the Children
were removed from the custody of Father and Heidi M.
2
The record is unclear regarding why Heidi M. was granted visitation with Dakota H., except that it
appears Father and Heidi M. were living together at the time and were being treated by DCS as a couple.
2
5, 2011, the court allowed the Children to return to Father and Heidi M. pursuant to a trial
home visit. This trial home visit included a safety plan whereby Dakota H. would not be
left unsupervised with his siblings and would sleep in a room alone with an activated
alarm on the door.

On March 26, 2012, the trial home visit was disrupted due to new allegations of
sexual behavior by Dakota H. DCS alleged that Father and Heidi M. had failed to
properly supervise Dakota H. with the other minor children. DCS developed a
subsequent permanency plan on April 2, 2012. On August 16, 2012, DCS filed a motion
requesting that visitation with Father and Heidi M. be halted, due to allegations made by
the service worker regarding “sexual grooming” behavior exhibited by the Children
during visitation.3 The trial court established a no-contact order, which was in effect until
January 2013, at which time Father and Heidi M. completed non-offender classes.

On September 16, 2013, DCS filed a motion seeking proof of compliance from
both Father and Heidi M. DCS alleged that Father had not allowed DCS to have access
to his home for approximately one year. Therefore, DCS was unable to verify whether
the home was suitable for the Children. DCS created subsequent permanency plans in
December 2013, June 2014, and December 2014. Following Heidi M.’s surrender of her
parental rights in October 2014, DCS filed a petition to terminate Father’s parental rights
on March 11, 2015.

The trial court conducted the termination hearing on November 24, 2015. The
only witnesses to testify were Jennifer Vowell, the foster care worker for DCS, and
Father. Following the bench trial, the court entered an order terminating Father’s
parental rights. The court determined that DCS had proven by clear and convincing
evidence the statutory grounds of (1) abandonment by failure to provide a suitable home
and (2) persistence of the conditions leading to removal of the Children.4 The court
further determined by clear and convincing evidence that termination of Father’s parental
rights was in the Children’s best interest.5 Father timely appealed.

3
The DCS foster care worker described this behavior as a “lead-in for sexually reactive play.”
4
At trial, DCS voluntarily nonsuited its claims regarding substantial noncompliance with the permanency
plans and mental incompetence to care for the Children.
5
Because Melissa S.’s parental rights had not yet been terminated, the trial court entered a partial order of
guardianship with regard to Dakota H. The trial court also certified the order as final pursuant to
Tennessee Rule of Civil Procedure 54.02.
3
 II. Issues Presented

Father presents one issue for our review, which we have restated as follows:

1. Whether the trial court erred by finding clear and convincing
evidence that termination of Father’s parental rights was in the
Children’s best interest.

In addition, DCS raises the following issues, which we have restated slightly:

2. Whether the trial court erred by finding clear and convincing
evidence that Father abandoned the Children by failing to provide a
suitable home.

3. Whether the trial court erred by finding clear and convincing
evidence that the conditions leading to removal of the Children from
Father’s home persisted.

III. Standard of Review

In a termination of parental rights case, this Court has a duty 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). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599 (1982)). As our Supreme Court has recently explained:

4
 The parental rights at stake are “far more precious than any property
right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has
the legal effect of reducing the parent to the role of a complete stranger and
of [“]severing forever all legal rights and obligations of the parent or
guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
rights is “final and irrevocable”). In light of the interests and consequences
at stake, parents are constitutionally entitled to “fundamentally fair
procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).

Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).

***

In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).

5
 IV. Grounds for Termination of Parental Rights

Tennessee Code Annotated § 36-1-113 (Supp. 2016) lists the statutory grounds for
termination of parental rights, providing in relevant part as follows:

(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.

***

(c) Termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and

(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.

The trial court determined that the evidence clearly and convincingly supported a
finding of two statutory grounds to terminate Father’s parental rights: (1) abandonment
by failure to provide a suitable home pursuant to Tennessee Code Annotated § 36-1-
113(g)(1) and (2) persistence of conditions leading to the Children’s removal pursuant to
Tennessee Code Annotated § 36-1-113(g)(3). Father has not raised either statutory
ground as an issue on appeal; instead, he has only raised the issue of whether the trial
court properly found that termination of his parental rights was in the Children’s best
interest. DCS has argued in favor of affirming the statutory grounds in its responsive
brief, although Father has not filed a reply brief with any response to these arguments.
Due to the fundamental constitutional interest involved, we will address the statutory
grounds as well as the best interest analysis. See In re Carrington H., 483 S.W.3d at 525;
see also In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010).

A. Abandonment by Failure to Provide a Suitable Home

The trial court found that Father had abandoned the Children upon the statutory
ground of failure to provide a suitable home. Regarding this ground, Tennessee Code
Annotated § 36-1-113(g)(1) provides in relevant part:
6
 (g) Initiation of termination of parental or guardianship rights may be
based upon any of the grounds listed in this subsection (g). The
following grounds are cumulative and non-exclusive, so that listing
conditions, acts or omissions in one ground does not prevent them
from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred; . . .

Regarding the definition of abandonment applicable to this ground, Tennessee Code
Annotated § 36-1-102(1)(A)(ii) (Supp. 2016) provides:

(ii) The child has been removed from the home of [a] parent or parents
or a guardian or guardians as the result of a petition filed in the juvenile
court in which the child was found to be a dependent and neglected child,
as defined in § 37-1-102, and the child was placed in the custody of the
department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition is filed
finds, that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the circumstances
of the child’s situation prevented reasonable efforts from being made prior
to the child’s removal; and for a period of four (4) months following the
removal, the department or agency has made reasonable efforts to assist [a]
parent or parents or a guardian or guardians to establish a suitable home for
the child, but that [a] parent or parents or a guardian or guardians have
made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that they will be able to provide a suitable home for the child at an
early date. The efforts of the department or agency to assist a parent or
guardian in establishing a suitable home for the child may be found to be
reasonable if such efforts exceed the efforts of the parent or guardian
toward the same goal, when the parent or guardian is aware that the child is
in the custody of the department; . . .

(Emphasis added).

In its final judgment, the trial court made the following specific findings regarding
this statutory ground:

7
 The Juvenile Court adjudicated the children dependent and neglected
and placed them in DCS custody, pursuant to a petition filed in Juvenile
Court, after they were removed from [Father’s] home on August 13, 2010.

The Juvenile Court’s protective custody order approving the removal
found that the Department made reasonable efforts to prevent removal.

In the over five years since the removal, the Department has made
reasonable efforts to assist [Father] to establish a suitable home for the
children by: referring intensive in-home services on multiple occasions,
non-offender parenting classes on three occasions, a bonding assessment,
two psychological evaluations; providing transportation; providing
resources for HUD [U.S. Department of Housing and Urban Development]
and local housing authorities; assisting with rent and utility payments; and
providing therapeutic visitation, facilitating supervised visitation, placing
the children on trial home visit; conducting multiple child and family team
meetings; creating multiple permanency plans; assisting the father to
develop a safety plan; assisting with ETHRA [East Tennessee Human
Resource Agency]; contracting for family therapy; providing counseling
resources to the father; contracting for counseling for the children; and
providing foster, medical, dental, and psychological care for the children.

[Father] has made little reasonable efforts to provide a suitable
home. Instead, he delayed applying for housing vouchers for suitable
housing, he has not demonstrated learned parenting skills during visitations,
he did not follow the safety plan in place while the children were on a trial
home placement and the trial home visit disrupted, he does not appear to be
able to supervise all the children at the same time during visitations, and he
allowed inappropriate behaviors to continue between the children during
the trial home placement, he does not have suitable housing or
transportation for the children, and he testified that he could have all of the
children in a one bedroom apartment even though the psychological
professionals told him he could not.

The father has made little or no effort to obtain housing for the
children except for a one bedroom apartment, which is not suitable for
himself and three normal children, and especially not suitable for these
sexually reactive children.

[Father’s] failure to improve his home and personal condition
demonstrates a lack of concern for the children to such a degree that it
8
 appears unlikely that he will be able to provide a suitable home for the
children at an early date.

(Paragraph numbering omitted.) The trial court therefore determined that DCS had
proven by clear and convincing evidence that Father had abandoned the Children by
failing to provide a suitable home. Upon our thorough review of the evidence, we agree.

These Children were removed from Father’s home and placed into DCS’s custody
on August 13, 2010, more than five years prior to the termination hearing. According to
Ms. Vowell, the DCS foster care worker assigned to this family, DCS had been working
with the family for a few months before the Children were removed, providing in-home
services to help remedy the environmental neglect found at the home. According to Ms.
Vowell, at the time the Children were removed, Father’s home was dirty and had rooms
that were unusable because they were packed full of belongings. She also noted that
Dakota H. had exhibited sexually reactive behaviors with his siblings.

Ms. Vowell testified that Father did not cooperate with the in-home services, such
that the home conditions were not improving. Ms. Vowell also related that Father did not
monitor Dakota H. appropriately with regard to his interactions with his siblings. Thus,
despite DCS’s provision of services, the Children had to be removed from Father’s home
and placed in foster care. DCS continued to provide services to Father, including non-
offender parenting classes, a mental health assessment, in-home services, therapy,
supervised visitation, and other assistance geared toward reunification of Father and the
Children. DCS also paid rent for Father in November 2010.

Father completed non-offender parenting classes for the first time in March 2011.
Ms. Vowell stated that these classes were designed to instruct parents concerning issues
that sexually reactive children face and also to provide parents the skills and knowledge
to encourage healthy sexual development in those children. While the Children were in
foster care, DCS supervised visits between Father and the Children until the trial court
allowed unsupervised visits beginning in October 2011. Father and Heidi M. had
obtained new housing and completed sufficient requirements of the permanency plans
such that a trial home visit began in December 2011.

Unfortunately, the trial home visit was disrupted in March 2012 when a younger
sibling disclosed that Dakota H. had sexually abused him. When questioned, Dakota H.
stated that Father was not setting his door alarm at night as the safety plan required.
Consequently, DCS returned the Children to foster care and provided intensive in-home
services and a second series of non-offender classes to Father. Father failed the non-
offender parenting test, however, and had to retake the classes in 2015. DCS also

9
provided Father with resources to apply for low-income housing and transportation to his
meeting with the housing authority.

Meanwhile, therapeutic visits between Father and the Children continued, but the
service worker noticed inappropriate behaviors occurring during these visits. For
example, the service worker reported that the Children would sit in Father’s lap
inappropriately (over the groin area), and a female child was observed rubbing her foot
up and down Father’s leg. The Children were also observed playing a “sexual grooming
game” on more than one occasion, and Father failed to stop this behavior. The service
worker also noted that Father seemed unable to control the Children, stating that during
one visit a child was throwing a tantrum and almost ran into traffic. Father self-reported
that he had disciplined a child by restraining the child in a chair, and Father also
acknowledged that he felt he could not discipline the Children during the therapeutic
visits.

Father explained that after he and Heidi M. parted ways in 2012, he lived with
Heidi M.’s father for a period of more than one year. Father admitted that Heidi M.’s
father would not allow DCS workers to enter the home. Father related that he moved in
with friends in February 2014, where he occupied only one bedroom of the home. Father
then moved to his own one-bedroom apartment in September 2015, approximately two
months before the termination hearing.

Ms. Vowell testified that Father had known from the time of the Children’s
removal that he needed to obtain and maintain safe, stable, and suitable housing.
According to Ms. Vowell, parents were taught during the non-offender parenting classes
that a child subjected to sexual abuse at a young age should not share a bedroom with
another child. Father admitted that he knew Dakota H. had exhibited inappropriate
sexual behaviors before DCS became involved. Despite this knowledge, Father
continued to maintain at trial that the Children could be returned to him in his one-
bedroom apartment, where he would provide separate sleeping cots for the Children.
While Father admitted that his young daughter had reported sexual behavior perpetrated
by Dakota H. in 2010, Father stated that he was not sure the behavior actually happened.
He also accused the service worker of lying concerning the disclosure of abuse made by
the Children after the trial home visit was disrupted. As the trial court observed in its
ruling from the bench, Father appeared to be “just failing to accept that these are—this is
at least one child that has very, very, very serious problems.”

In summary, Father has had more than five years to (1) come to terms with and
understand the issues facing Dakota H. and the other Children, (2) avail himself of the
services offered by DCS in order to obtain and maintain suitable housing, and (3)
demonstrate that he possesses the skills and ability to effectively parent all three Children
10
and prevent them from harming themselves or others. Despite significant efforts on the
part of DCS, Father has simply failed to demonstrate that he can provide a suitable home
for the Children, and he has not made reasonable efforts to provide a suitable home.
Furthermore, the passage of five years with little improvement in Father’s situation
demonstrates a lack of concern for the Children to such a degree that it appears unlikely
that he will be able to provide a suitable home at an early date. We conclude that a
preponderance of the evidence supports the trial court’s factual findings as to Father’s
abandonment of the Children by failing to provide a suitable home and that clear and
convincing evidence established this statutory ground. We therefore affirm the trial
court’s determination regarding this ground for termination of parental rights.

B. Persistence of Conditions Leading to the Children’s Removal

The trial court also found clear and convincing evidence of the statutory ground of
persistence of conditions leading to removal of the Children from Father’s home.
Regarding this statutory ground, Tennessee Code Annotated § 36-1-113(g)(3) provides:

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

(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent 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 its final judgment, the trial court made the following specific findings regarding
this statutory ground:

It has been over five years since the Juvenile Court’s protective
custody order removed the children from the father’s home.

11
 DCS removed the children from their home because of
environmental neglect and inadequate housing, parental noncompliance
with services and noncompliance with the safety plan created due to sexual
contact between the siblings.

The conditions that led to the removal still persist[.] The father has
not obtained and maintained safe and stable housing suitable for the
children, and he has allowed inappropriate contact between the siblings
during trial home placements and visitations.

There is little chance that those conditions will be remedied soon so
that the children can be returned safely to the home because, for over five
years, DCS made the above listed reasonable efforts to help the father
remedy them, to no avail.

Continuation of the parent/children relationship greatly diminishes
the children’s chances of being placed into a safe, stable and permanent
home.

Having carefully reviewed the record, we agree with the trial court’s findings.
Again, Father has had more than five years to address the conditions that led to the
Children’s removal and other conditions that would, in all reasonable probability, cause
the Children to be subjected to further abuse or neglect, despite more than reasonable
efforts by DCS. In addition, as the trial court noted, Father seems to lack the willingness
or ability to accept the severity of the situation, such that there is little likelihood that he
will remedy these conditions in the near future. Although Father admitted that he
suspected Dakota H. had been sexually abused and had resultant issues even before DCS
became involved with the family, Father then discounted the reports of abuse by Dakota
H.’s siblings. Clearly, continuation of the parent-child relationship diminishes the
Children’s chances of being placed in a safe, stable, and permanent home. We conclude
that a preponderance of the evidence supports the trial court’s factual findings as to
persistence of the conditions leading to removal of the Children from Father’s home and
that clear and convincing evidence established this statutory ground as well. We
therefore affirm the trial court’s determination regarding this ground for termination of
parental rights.

V. Best Interest of Children

When at least one ground for termination of parental rights has been established,
as here, the petitioner must then prove by clear and convincing evidence that termination
of the parent’s rights is in the child’s best interest. See White v. Moody, 171 S.W.3d 187,
12
192 (Tenn. Ct. App. 1994). When a parent has been found to be unfit by the
establishment of a ground for termination, the interests of parent and child diverge, and
the focus shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877.
Further, the best interest of a child must be determined from the child’s perspective and
not the parent’s. White, 171 S.W.3d at 194.

Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:

(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;

(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;

(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;

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

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

(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
13
(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.

Regarding the best interest analysis in this matter, the trial court found:

It is in the children’s best interests for termination to be granted,
because the father has not made changes in his conduct or circumstances
that would make it safe for the children to go home.

It is in the children’s best interests for termination to be granted,
because the father has not made lasting changes in his lifestyle or conduct
after reasonable efforts by the state to help, so that lasting change does not
appear possible.

It is in the children’s best interests for termination to be granted,
because changing caregivers at this stage of their lives will have a
detrimental effect on them.

It is in the children’s best interests for termination to be granted,
because the father’s mental or emotional state would be detrimental to the
children and would prevent him from effectively parenting the children.

It is in the children’s best interest for termination to be granted
because [] Brianna and Hunter have lived with their foster parents for
virtually their entire lives, and call them mommy and daddy.

It is in the children’s best interest for termination to be granted
because Brianna and Hunter share a bond and love with their foster parents.

It is in the children’s best interest for termination to be granted
because they were dependent and neglected in the care of the father.

It is in the children’s best interest for termination to be granted
because Brianna’s and Hunter’s foster parents wish to adopt them, and have
safe and adequate housing, income and transportation to care for the
children.

It is in the children’s best interest for termination to be granted
because the foster parents have provided care for Brianna and Hunter for
14
 five years, including facilitating extensive counseling and following safety
plans.

It is in the children’s best interest for termination to be granted
because Dakota is in a residential facility with specialized treatment for
severe sexually reactive behaviors, and the father cannot provide such care
to Dakota, and Dakota needs to stay in the State contracted facilities and
programs until he makes sufficient progress to step down.

(Paragraph numbering omitted.)

Following our thorough review of the evidence presented, we agree with the trial
court’s findings. At the time of trial and after more than five years of DCS’s assistance,
Father had not made sufficient adjustment to his circumstances or conduct so as to make
it safe and in the Children’s best interest to be in his home. Father had not obtained or
maintained a home suitable for the Children, and he seemed unable to accept the severity
of the issues confronting the Children. The Children had been in DCS custody for over
five years, which is such duration of time that lasting adjustment does not reasonably
appear possible. Father did visit regularly with the Children, but he admitted that his
bond with Hunter H. and especially Brianna H. was not as strong as it was with Dakota
H. because the younger children were only months or days old, respectively, when they
were removed from Father’s custody.

Ms. Vowell’s testimony established that a change of caretakers and physical
environment would likely have a detrimental effect on the emotional and psychological
condition of all three Children. Brianna H. and Hunter H. had been in the same foster
home since their removal from Father in 2010, which was virtually their entire lives. Ms.
Vowell testified that Brianna H. and Hunter H. were extremely bonded to their foster
parents, referring to them as “mommy” and “daddy.” According to Ms. Vowell, the
foster parents loved these children and wished to adopt them and provide permanency for
them. Furthermore, the foster parents were able and willing to provide for all of Brianna
H.’s and Hunter H.’s needs.

At the time of trial, Dakota H. was residing at a residential treatment center, where
he was receiving intensive treatment for his sexually reactive behaviors. As Ms. Vowell
explained, although Dakota H. was making progress, he still required considerable
supervision and therapy because he experienced incidents of sexually reactive behavior
every month or two on average. Ms. Vowell stated that while DCS intended to maintain
contact among the siblings, Dakota H. would need to remain at the residential treatment
center until his issues were resolved and would not be adopted by the foster parents who
wished to adopt Brianna H. and Hunter H. Ms. Vowell’s testimony demonstrated that
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Dakota H. was in the best placement for his needs and that Father would not be able to
meet those needs if Dakota H. were returned to Father’s care.

Testimony also established that even though there was no report of ongoing
criminal activity in Father’s home, Dakota H. was subjected to inappropriate sexual
behavior while in Father’s custody, which had the effect of causing Dakota’s sexually
reactive behaviors. Although Father blamed Melissa S. and/or her family, Dakota
reported having witnessed sexual acts of Father and Heidi M. at the time of removal
when he was only eight years of age. In addition, Father previously stipulated that the
Children were dependent and neglected when they were removed from his care.

According to Ms. Vowell, despite the provision of non-offender and other
parenting classes, as well as intensive in-home services, Father had not demonstrated the
ability to incorporate what he had learned into his parenting of the Children. As the trial
court noted, Father did not seem to appreciate the severity of Dakota H.’s behaviors or
the trauma that all of the Children had experienced. Furthermore, he did not seem to
possess the ability or inclination to properly address this concern. It would therefore
appear that Father’s mental and/or emotional status would be detrimental to the Children
and prevent Father from effectively providing safe and stable care and supervision for the
Children. Finally, there was no proof regarding the payment of child support.

Based on our review of the evidence in light of the statutory factors, we conclude
that the trial court did not err in finding clear and convincing evidence that termination of
Father’s parental rights was in the best interest of the Children. We affirm the trial
court’s determination regarding the Children’s best interest.

VI. Conclusion

For the reasons stated above, we affirm the judgment of the trial court terminating
the parental rights of Father in all respects. Costs on appeal are taxed to the appellant,
Bobby H. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and collection of costs assessed below.

_______________________________
THOMAS R. FRIERSON, II, JUDGE

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