06/28/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 1, 2017
IN RE RYLAN G., ET AL.
Appeal from the Juvenile Court for Claiborne County
No. 2015-JV-1659 Robert M. Estep, Judge
___________________________________
No. E2016-02523-COA-R3-PT
___________________________________
This is a termination of parental rights case. The trial court terminated
Appellant/Mother’s parental rights on the grounds of: (1) abandonment by failure to
provide a suitable home; (2) substantial non-compliance with the permanency plan; and
(3) severe child abuse. Because Appellee, Tennessee Department of Children’s Services,
did not meet its burden to show that it exercised reasonable efforts to assist Mother in
obtaining suitable housing, we reverse the trial court’s finding as to the ground of
abandonment by failure to establish a suitable home. The other grounds for termination
of Mother’s parental rights are met by clear and convincing evidence, and there is also
clear and convincing evidence that termination of Mother’s parental rights is in the best
interests of the children. Affirmed in part, reversed in part, and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part; Reversed in Part; and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and W. NEAL MCBRAYER, JJ., joined.
Jordan Chandler Long, Knoxville, Tennessee, for the appellant, Ariel G.
Herbert H. Slatery III, Attorney General and Reporter, and W. Derek Green, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Background
This case involves three minor children, Rylan G.1 (born March 2011), Myka G.
(born August 2012), and Adisyn G. (born September 2013) (collectively, the “Children”).
The Children’s mother is Ariel G. (“Mother,” or “Appellant”), and their father is Edward
G. (“Father”). In February of 2014, the Tennessee Department of Children’s Services
(“DCS,” or “Appellee”) became involved with the family. On or about February 24,
2014, Adisyn was taken to the emergency room of East Tennessee Children’s Hospital.
She exhibited seizure-like behavior and had bruises on her scalp, forehead, and eyes.
Mother and Father reported that Adisyn had accidentally hit her head on a toy; however,
medical personnel examined the injuries and determined that the injuries could not have
occurred in the manner reported by the parents. Dr. Marymer Perales, a forensic
pediatrician, opined that the injuries were caused by trauma.
On February 27, 2014, DCS filed a petition for a restraining order against Mother
and Father in the Juvenile Court of Claiborne County (“trial court”). On February 28,
2014, the trial court entered a restraining order against Father, ordering no contact
between Father and the Children and removing Father from the home. The trial court’s
order also required that Mother allow no contact between Father and the Children. The
trial court also appointed a guardian ad litem for the Children. In August or September
of 2014, the Children, Mother, and Billy D. (Mother’s paramour) moved into the home of
the maternal grandmother. On March 23, 2015, a DCS case manager contacted Mother
because Billy disclosed to police that he spanked Myka and bruised her. DCS cautioned
Mother to monitor Billy’s discipline of the Children.
On November 18, 2015, Mother left the Children with Billy while she was at
work. When Mother returned home, she found Myka’s face bruised and swollen.
Mother testified that Billy told her that Myka hit her head while at a doctor’s appointment
earlier in the day. Mother took a photograph of Myka’s injuries. The next morning, on
November 19, 2015, Mother noticed that the bruising had worsened, and she took Myka
to the emergency room at Claiborne County Hospital. Myka had significant bruising on
her scalp, forehead, eyes, and left underarm; her face was puffy, and her left eye was
swollen shut. The same morning, Myka was transferred to East Tennessee Children’s
Hospital for further treatment. She was diagnosed with a subgaleal hematoma and
required several months of recovery to reduce the swelling on her face and scalp. Billy
admitted to law enforcement that he punched Myka, and he pled guilty to aggravated
child abuse and neglect.
1
In termination of parental rights cases, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.
-2-
On November 20, 2015, DCS filed a dependency and neglect petition on the
ground of severe child abuse; DCS also requested an emergency protective custody order.
On November 23, 2015, the trial court entered a protective custody order, finding the
Children dependent and neglected due to an immediate threat to the Children’s health or
safety. The Children were placed in foster care.
On December 9, 2015, Mother, Father, and DCS entered into a permanency plan,
which required Mother and Father to complete: (1) alcohol and drug assessments; (2)
mental health assessments; (3) clinical parenting assessments; and (4) domestic violence
classes. The plan also required Mother and Father to address environmental concerns to
create a suitable home.
On April 14, 2016, DCS filed a petition to terminate Mother and Father’s parental
2
nights. DCS averred the following grounds in its petition as to Mother: (1) abandonment
by failure to provide a suitable home; (2) substantial non-compliance with the
permanency plan; and (3) severe child abuse. The trial court heard the petition to
terminate Mother’s parental rights on October 13 and 14, 2016. By order of November
30, 2016, the trial court terminated Mother’s parental rights on the grounds of: (1)
abandonment by failure to provide a suitable home; (2) substantial noncompliance with
the permanency plan; and (3) severe child abuse. Mother appeals.
II. Issues
Mother raises four issues for review, which we restate as follows:
1. Whether DCS made reasonable efforts to assist Mother in establishing a
suitable home?
2. Whether the trial court erred in terminating Mother’s parental rights due to
substantial noncompliance with the permanency plan?
3. Whether the trial court erred in terminating Mother’s parental rights due to
severe child abuse?
4. Whether the trial court erred in finding that the termination of Mother’s
parental rights is in the best interests of the Children?
III. Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a
2
Father’s parental rights were terminated by order of November 30, 2016. He is not a party to
this appeal.
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fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). 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 W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). 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. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest 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.
On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then make our “own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010). We review the trial court’s
conclusions of law de novo with no presumption of correctness. In re J.C.D., 254
S.W.3d 432, 439 (Tenn. Ct. App. 2007).
IV. Grounds for Termination
As noted above, the trial court relied on the following statutory grounds in
terminating Appellant’s parental rights: (1) abandonment by failure to provide a suitable
home; (2) substantial noncompliance with a permanency plan; and (3) severe child abuse.
Although only one ground must be proven by clear and convincing evidence in order to
terminate a parent’s rights, the Tennessee Supreme Court has instructed this Court to
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review every ground relied upon by the trial court to terminate parental rights in order to
prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251 n.14
(Tenn. 2010). Accordingly, we will review all of the foregoing grounds.
A. Abandonment by Failure to Establish a Suitable Home
The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of abandonment by failure to provide a suitable
home, pursuant to Tennessee Code Annotated Section 36-1-113(g)(1), as defined at
Tennessee Code Annotated Sections 36-1-102(1)(A)(i). In pertinent part, Tennessee Code
Annotated Section 36-1-113(g) provides:
(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[.]
Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part, as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
***
(ii) The child has been removed from the home of the parent
or parents or the 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
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made reasonable efforts to assist the parent or parents or the
guardian or guardians to establish a suitable home for the
child, but that the parent or parents or the 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[.]
In its order terminating Mother’s parental rights, the trial court found:
In the summer of 2016, [M]other resided with a new paramour and that
home had additional concerns including broken windows and exposed
wiring. The efforts made by [DCS] under those circumstances were
reasonable. Ultimately the issue of the safety of the home revolves around
[Mother’s] choices of men. Her choices have not only been bad, they have
been dangerously bad. Her inability to choose wisely and protect her
children has led to this difficult conclusion that she has abandoned her
children based on the failure to provide a suitable home. [DCS] made
reasonable efforts to assist [Mother] to the best extent that it could. By
clear and convincing evidence, the requirements of Tenn. Code § 36-1-
113(g)(1) and 36-1-102(1)(A)(ii) have been met for abandonment for
failure to provide a suitable home.
Mother argues that DCS failed to make reasonable efforts to assist her in
establishing a suitable home for the Children. As noted by the trial court, Tennessee
Code Annotated Section 36-1-102(1)(A)(ii) requires DCS to make “reasonable efforts”
related to housing during the relevant time period.3 Because the Children were removed
on November 19, 2015, the relevant four-month time period referenced in the statute is
November 20, 2015 to March 20, 2016. From our review of the record, Mother has
3
Although the Tennessee Supreme Court has overruled caselaw requiring “DCS to prove by clear
and convincing evidence that it made reasonable efforts to reunify as a precondition to termination of
parental rights,” In re Kaliyah S., 455 S.W.3d 533, 555 n.34 (Tenn. 2015), pursuant to the requirements
in Tennessee Code Annotated Section 36-1-102(1)(A)(ii), when termination is sought on the ground of
abandonment for failure to establish a suitable home, DCS must make reasonable efforts “to assist the
parent… to establish a suitable home for the child….” See In re Yariel S., et al., No. E2016-00937-
COA-R3-PT, 2017 WL 65469 (Tenn. Ct. App. Jan. 6, 2017), at *6 (concluding that the record lacked any
evidence as to DCS’ efforts related to housing and reversing the abandonment ground for termination).
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maintained a transient lifestyle since the Children were removed from her custody. After
Billy’s incarceration for child abuse, Mother established a relationship with a new
paramour, Mario M., and moved into Mario’s house. Mother ended this relationship in
July of 2016 and moved into a friend’s apartment, for approximately one month, where
she slept on a couch. At the time of trial, Mother stated that she had moved to a second
friend’s apartment and had stayed with this friend for a few weeks. Mother stated that
she does not have a bedroom, and she sleeps on a couch. Accordingly, there is clear and
convincing evidence that Mother has not established a suitable home for the Children.
Our inquiry, however, does not end here. Because the statute requires DCS to make
reasonable efforts to assist the parent in establishing a suitable home, we now turn to
address that question.
Turning to the record, on June 1, 2016, DCS filed an affidavit of reasonable
efforts. Although the document is titled “affidavit of reasonable efforts,” the substance of
the affidavit is insufficient; it contains no information about DCS’ efforts to assist Mother
in obtaining suitable housing. Instead, the affidavit merely restates the requirements of
Mother’s permanency plan, as follows:
The parent’s permanency plan requires the following steps so that
the family can be reunified: The Permanency Plan requires the parents to
complete an alcohol and drug assessment, mental health assessment,
clinical parenting assessment, attend classes on domestic violence, child
abuse and battering, and address environmental concerns.
***
The Department of Children’s Services recommends that Rylan,
Myka and Adisyn G[.] remain in the custody of the state of Tennessee
Department of Children Services at this time, as neither parent is able to
appropriately care for the children’s needs and no relative or kinship
placement has been identified.
The department asks that the permanency plan be ratified on this
day. The foregoing are the reasonable efforts this case manager has made to
affect permanency for the child(ren) and reunite the family since the last
court date.
The record indicates that, on July 13, 2016, Rachel Day, a DCS case manager,
visited Mother at Mario’s residence. As Ms. Day and Mother walked through the
residence, Ms. Day pointed out exposed wiring, exposed insulation, and broken windows,
which Mother reported she would fix. From the record, Ms. Day only provided
recommendations about the condition of the property, i.e., that Mother should repair the
wiring, insulation, and windows. The record is devoid of any evidence that Ms. Day
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provided Mother with services to establish a suitable home, e.g., a referral to assist
Mother in obtaining other suitable housing or in remedying the dangerous conditions in
her current residence. Ms. Day also reported safety concerns about Mario, who had a
dismissed statutory rape charge and prior involvement with DCS for assaulting his step-
son.
The most substantial evidence related to services offered to Mother by DCS is
from Mother’s testimony, in which she states that she had attempted to obtain housing
using CEASE, a social services provider. However, the record does not clearly indicate
whether these services were offered through DCS, or whether Mother accessed the
services independently. DCS proffered a report of a meeting that occurred on July 5,
2016, and the report stated that DCS provided Mother with contact information for
CEASE. Nevertheless, this notation references CEASE’s domestic violence counseling
program, not its housing program. Finally, DCS was not aware, until the date of trial,
that Mother had moved out of Mario’s residence on July 23, 2016. When Mother was
asked if she had informed DCS of her new address, Mother responded:
A. I have not had much contact with DCS. They have not tried to contact
me, and with work, I’ve been very busy. But, they should have—I mean,
every time they’ve tried to get a hold of me, if they’ve asked me, I’ve told
them where I’m staying.
Q. Didn’t you have a court date here in the Juvenile Court in the last
couple of weeks?
A. Yes.
Q. Did you tell the DCS case manager what your new address was?
A. I’m not sure, but my attorney knew.
Q. You did not tell DCS what your new address was?
***
A. I did alert them that I had moved out.
Regarding Mother’s effort to find her own residence, Mother testified, in relevant part, as
follows:
Q. Let’s talk about when you were at CEASE. What, if any assistance
were they giving you to find housing?
-8-
A. They had a Safe at Home program, which to be included in the
program; you had to be a victim of domestic violence, which is probably
why Gloria Lee said what she said. But, I was approved for a one-bedroom
home. But obtaining a one-bedroom home or apartment in this area has
proved difficult.
Q. How hard did you look?
A. Pretty hard. I think I called every apartment complex in this area….
The trial court’s order notes that “[DCS] made reasonable efforts to assist [Mother
to the best extent that it could,” but the order does not explain the substance or timing of
DCS’ efforts. As held by this Court, DCS’ “efforts need not be ‘Herculean,’” but
“[r]easonable efforts [must] entail more than simply providing parents with a list of
service providers and sending them on their way. The Department’s employees must use
their superior insight and training to assist parents with the problems [DCS] has identified
in the permanency plan, whether the parents ask for assistance or not.” State, Dept. of
Children’s Servs. v. Estes, 284 S.W.3d 790, 801 (Tenn. Ct. App. Dec. 30, 2008); see also
In re Jamel H., No. E2014-02539-COA-R3-PT, 2015 WL 4197220, at *6-7 (Tenn. Ct.
App. July 13, 2015) (reversing the ground of abandonment by failure to provide a
suitable home where “the record is devoid of any evidence that DCS made any efforts
related to housing during the relevant time period”); In re Josephine E.M.C., No. E2013-
02040-COA-R3-PT, 2014 WL 1515485, at *19-20 (Tenn. Ct. App. Apr. 17, 2014)
(stating that there was not clear and convincing evidence that DCS made reasonable
efforts to assist mother in establishing a suitable home where DCS offered to evaluate
mother’s future housing for safety but appeared to provide no other services); In re
Isabel V.O., No. M2012-00150-COA-R3-PT, 2012 WL 5471423, at *8-9 (finding
insufficient efforts to assist parents in obtaining suitable housing where DCS provided
lists of housing services and resources to parents) (Tenn. Ct. App. Nov. 8, 2012); In re
C.H.E.H., No. E2007-01863-COA-R3-PT, 2008 WL 465275, at *11 (Tenn. Ct. App.
Feb. 21, 2008) (finding that DCS put forth no evidence of its efforts to help mother obtain
housing at any time and reversing the ground of abandonment by failure to provide a
suitable home, where mother was released from incarceration and obtained family
housing services by her own efforts); In re K.E.R., No. M2006-00255-COA-R3-PT,
2006 WL 2252746, at *7 (Tenn. Ct. App. Aug. 3, 2006) (reversing the ground of
abandonment by failure to provide a suitable home, where mother’s child was removed
while she was incarcerated, and it was “unclear whether the Department made any efforts
to help [m]other procure housing during this particular period” of incarceration). In this
case, DCS failed to meet its burden to show that it made reasonable efforts to assist
Mother in obtaining suitable housing for the Children. Accordingly, the record does not
contain clear and convincing evidence to establish the ground of abandonment by failure
to provide a suitable home, and we reverse this ground. We now turn to address the
remaining grounds.
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B. Substantial Non-compliance with the Permanency Plan
Tennessee Code Annotated Section 36-1-113(g)(2) provides that a parent’s rights
may be terminated when “[t]here has been substantial noncompliance by the parent ...
with the statement of responsibilities in a permanency plan.” However, as discussed by
this Court in In re M.J.B., 140 S.W.3d 643 (Tenn. Ct. App. 2004):
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and
tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
113(g)(2), the Department must demonstrate first that the requirements of
the permanency plan are reasonable and related to remedying the conditions
that caused the child to be removed from the parent’s custody in the first
place, In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609,
621 (Tenn. Ct. App. 2003), and second that the parent’s noncompliance is
substantial in light of the degree of noncompliance and the importance of
the particular requirement that has not been met. In re Valentine, 79
S.W.3d at 548-49; In re Z.J.S., [No. M2002-02235-COA-R3-JV,] 2003
WL 21266854, at *12 [Tenn. Ct. App. June 3, 2003]. Trivial, minor, or
technical deviations from a permanency plan’s requirements will not be
deemed to amount to substantial noncompliance. In re Valentine, 79
S.W.3d at 548.
Id. at 656-57. “Nonetheless, the permanency plans are not simply a series of hoops for
the biological parent to jump through in order to have custody of the children returned.”
In re C.S., Jr., et al., No. M2005-02499-COA-R3-PT, 2006 WL 2644371, at *10 (Tenn.
Ct. App. Sept. 14, 2006). Rather,
the requirements of the permanency plan are intended to address the
problems that led to removal; they are meant to place the parent in a
position to provide the children with a safe, stable home and consistent
appropriate care. This requires the parent to put in real effort to complete
the requirements of the plan in a meaningful way in order to place herself in
a position to take responsibility for the children.
Id.
On December 9, 2015, Mother agreed to the permanency plan; on January 27,
2016, the trial court ratified the plan, finding that the goals of the plan were reasonably
related to remedying the conditions that necessitated foster care and were in the
Children’s best interests. The plan required Mother to: (1) pay child support; (2)
establish a permanent and safe home; (3) complete an alcohol and drug assessment; (4)
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complete a mental health assessment; (5) attend domestic violence classes; and (6)
complete a clinical parenting assessment and parenting/bonding classes. As found by the
trial court,
[Mother] has basically complied with most of the action steps, with the
exception that she was required to have a permanent and safe home for the
children. The Court record is clear, however, that she has continued to
make dangerous choices of men to be around her children and has thus
failed to provide a permanent and safe home. [Therefore,] [s]he has not
substantially complied….
The record indicates that Mother complied with the permanency plan’s requirements to
participate in alcohol and drug assessment, mental health assessment, and domestic
violence classes. However, Mother’s testimony reveals that she does not currently have a
permanent or safe home for the Children:
A. It is an apartment…. It is two bedrooms. Right now, I do sleep on the
couch. I don’t have the best paying job, but I am working to get a better
job, so that I can have my own place.
***
Q. Have any of the places that you have lived since November been big
enough for your girls too, or are you waiting to see what happens?
A. Mario’s was big enough for the children too. There was a room for
them set up, but for reasons it wasn’t deemed suitable.
Although the record reveals that Mother decided to leave Mario’s residence on the
recommendation of the Foster Care Review Board, the evidence suggests that Mother
does not grasp the safety issues caused by her association with Mario. Rachel Day, DCS
case manager, testified that Mother stated to her, “yes, that [Mother] was aware that
[Mario] had punched his step-son in the face. And she said that—she said: I’ve punched
him too. You just have to know him. And just kind of laughed it off.” Mother agreed that
she had punched her paramour’s step-son because the step-son was “difficult,” but she
“didn’t hit him hard.”4 Additionally, Mother has not completed the required parenting
assessments and classes. On August 31, 2016, shortly before the hearing on the petition
to terminate her parental rights, Mother filed a motion to rescind the no-contact order
with the Children; this is the first step required for Mother to begin the parenting
4
The record does not indicate whether this incident occurred when the step-son was a minor.
Mother testified that the step-son was a “child” but stated that, by the date of trial, the step-son had turned
eighteen years old.
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assessment and classes; however, a considerable amount of time would be required to
complete this requirement.
Mother argues that the trial court erred because she substantially completed the
requirements of the plan, and she “was close to… completing the permanency plan.”
Indeed, the parties agree that Mother has met several requirements listed in the plan, i.e.,
completing the alcohol and drug assessment, the mental health assessment, and domestic
violence classes. However, as discussed by the Tennessee Supreme Court,
[s]ubstantial noncompliance is not defined in the termination statute. The
statute is clear, however, that noncompliance is not enough to justify
termination of parental rights; the noncompliance must be substantial.
Black’s Law Dictionary defines “substantial” as “[o]f real worth and
importance.” Black’s Law Dictionary 1428 (6th ed. 1990). In the context
of the requirements of a permanency plan, the real worth and importance of
noncompliance should be measured by both the degree of noncompliance
and the weight assigned to that requirement.
In re Valentine, 79 S.W.3d at 548. The goal of a permanency plan is “to provide the
children with a safe, stable home and consistent appropriate care….” In re C.S., Jr., et
al., 2006 WL 2644371, at *10. In the instant case, the Children were removed due to
abuse in the household. The crucial portions of the permanency plan directly seek to
resolve the lack of safety in the household, specifically by requiring Mother to: (1)
acquire safe housing, and (2) complete a parenting assessment and classes. These are
also the requirements of the permanency plan that Mother has failed to complete.
Because Mother has failed to complete the most critical requirements of the permanency
plan, we conclude that there is clear and convincing evidence to support termination of
Mother’s parental rights on this ground.
C. Severe Child Abuse
In Tennessee, a court may terminate parental rights when
[t]he 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 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.
Tenn. Code Ann. § 36-1-113(g)(4). “Severe child abuse” is defined, in relevant part, as:
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(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).
Tenn. Code Ann. § 37-1-102(b)(21)(A)(i). Tennessee Code Annotated Section 39-15-
402(d) provides, in relevant part, that “serious bodily injury ... to the child includes, but is
not limited to... injuries to the skin that involve severe bruising....” This Court has
discussed the “knowing” criterion set out in Tennessee Code Annotated Section 37-1-
102(b)(21)(A)(i) as follows:
The words “knowing” and “knowingly” do not have fixed or uniform
meanings. Their meanings in particular cases vary depending on the context
in which they are used or the character of the conduct at issue. Still v.
Comm’r of the Dep’t of Employment & Training, 657 N.E.2d 1288, 1293
n.7 (Mass. App. Ct.1995), aff’d, 672 N.E.2d 105 (Mass. 1996); State v.
Contreras, 253 A.2d 612, 620 (R.I. 1969). Because the parties have not
supplied us with definitions of these terms, statutory or otherwise, we will
employ the basic rules of statutory construction to ascertain their meaning.
Accordingly, we will give these words their natural and ordinary meaning,
Frazier v. East Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn.
2001), and we will construe them in the context of the entire statute and the
statute’s general purpose. State v. Flemming, 19 S.W.3d 195, 197 (Tenn.
2000). We will also construe the words in a manner consistent with the
rules of grammar and common usage.
The word “knowing,” when used as an adjective, connotes a state of
awareness. In re D.P., 96 S.W.3d 333, 336 (Tex. Ct. App. 2001). Thus, it
requires some inquiry into the actor’s state of mind. A person’s conduct is
“knowing,” and a person acts or fails to act “knowingly,” when he or she
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. Persons act “knowingly”
when they have specific reason to know the relevant facts and
circumstances but deliberately ignore them.
For the purpose of determining whether a parent’s conduct runs afoul of
Tenn. Code Ann. § 37-1-102(b)(21), parents who are present when a child
is abused but who fail to intervene to protect the child have knowingly
exposed the child to or have failed to protect the child from abuse.
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However, the “knowing” requirement in Tenn. Code Ann. § 37-1-
102(b)(21) is not limited to parents who are present when severe abuse
actually occurs. 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. West Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris
S., 475 S.E.2d at 878-879.
In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at *7 (Tenn. Ct. App.
July 13, 2004).
In its order terminating Mother’s parental rights, the trial court found, in relevant
part:
The [trial court] finds by clear and convincing evidence that
[Mother] made dangerously bad choices of allowing an individual such as
Billy D[.] to be around her children and to cause such severe injury to
Myka G[.]
The warning signs were there and warnings were stated to her by
case workers.
The final choices of how to raise and protect her children were made
by [Mother] and those choices were very bad.
Therefore, the Court finds by clear and convincing evidence that
[Mother] knowingly failed to protect Myka G[.] from “abuse and neglect
that is likely to cause serious bodily injury or death” and therefore her
rights should be terminated.
Turning to the record, Mother testified that she typically left the Children with
Billy as a babysitter while she was at work. Mother admitted that she was aware that
Billy’s own children had been removed from his custody, and he was allowed only
supervised visitation with them. On February 17, 2015, DCS case manager Jessica
Collins reported to Mother that Billy had spanked Myka, resulting in a handprint-shaped
bruise. Ms. Collins warned Mother to exercise caution regarding Billy’s discipline of the
Children. Mother acknowledged that Billy had asked her for a break from babysitting the
Children. However, Mother stated that she was unconcerned with Billy’s role as a
caregiver; the reason that Mother provided was that Billy spent little one-on-one time
with the Children: “nine times out of ten, [Billy] was not alone with the [C]hildren. My
mother and my step-father were there.” However, Mother also reported to DCS that Billy
was the Children’s “regular babysitter.”
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On November 18, 2015, Mother returned to the household to find Myka’s face
“bruised and swollen,” and Mother took a photograph of her injuries to “show the doctor
what it looked like.” Mother asked Rylan and Myka what happened, and they told her
that Myka fell on a table at school. During the night, Mother kept Myka in bed with her
and woke her up several times to ask her how she felt. The next morning, Mother
testified that Myka’s bruising had worsened considerably and now appeared “scary,” and
she took Myka to the emergency room at Claiborne Hospital. Myka was transferred to
East Tennessee Children’s Hospital for further diagnosis and treatment. Billy confessed
that he had punched Myka in the head, and he was convicted of aggravated child abused
and neglect. When interviewed by DCS, Rylan provided details of the incident, and she
stated that “she watched Billy[] pick Myka up by her legs and throw her on the ground, as
well as kick her into a table.”
At the termination hearing, DCS proffered the deposition testimony of Dr. Mary
Palmer, a child abuse pediatrician and emergency room pediatric physician, who
examined Myka in the emergency room. Dr. Palmer stated that she diagnosed Myka with
“subgaleal bruising, typically… shearing, which is when you pull on something in two
directions. And so it’s been well-described that when the hair is grabbed and pulled, that
you can cause this kind of injury.” Dr. Palmer also expressed her concern that Mother
had waited until the morning after she discovered the injury to seek medical treatment:
Q. Okay. I believe that you had testified that [Mother] told you she waited
– or told the hospital that she waited prior to bringing the child into the
hospital to be examined. Would that have presented any danger to the
child, waiting versus bringing in immediately?
A. Yes, from several standpoints, that the injury that she had observed the
night before was pretty significant. She had taken pictures of it. It was
impressive enough.
***
And so when there is a head injury that’s significant, you never know
that’s going on inside the skull.
***
Q. [M]other actually showed you pictures, is that correct, of the injury
when she first saw it?
A. That’s correct.
Q. Through those pictures were you able to tell whether or not the bruising
at that point was already significant?
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A. Yes, it was.
Q. Should a reasonable person have been able to determine that night that
the child’s injuries were significant, or was it just because of your
expertise?
A. No. They’re quite evident; the injuries are impressive.
The record indicates that, in addition to waiting to seek medical treatment for Myka,
Mother was aware, prior to the incident, that Billy was not a safe caregiver for the
Children. In relevant part, Mother testified that, “due to a mistake on my part, and it was
in retrospect, leaving [Billy] with my children, probably wasn’t a good idea.” From
DCS’ interviews of the Children, this incident of abuse was not unique:
Q. During her second interview what did [Rylan] tell you that happened?
A. There was a forensic interview that was conducted on Rylan, and Myka,
and Adisyn. And at that time, Rylan disclosed multiple incidences of
physical abuse. However nothing about that night. She talked about many
times that she had been disciplined inappropriately by multiple people.
Q. Such as who?
A. By Billy[], by her mom, by—she says daddy, I don’t know who she is
referring to, because she called Billy[] “daddy,” as well as [Father]. She
made it sound as if it was just a natural thing, to get whoopings.
Q. What kind of discipline was she describing?
A. Just whippings, like spankings, and she would talk about Myka getting
her hair pulled. But there was no specific disclosures about that incident
that specific night.
Q. But during the first interview, that is when she talked about this specific
night in question?
A. Yes.
Q. Remind me of what she said?
A. Rylan said that Billy—daddy picks Myka up by her legs, throws her
around, slams her on her head, and then she said daddy kicked Myka in the
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head, and she hit the table.
Q. Was it clarified that she was talking about Billy that night?
A. Yes.
Q. She said that mommy was home or wasn’t home?
A. Wasn’t home.
Q. The other sisters weren’t able to really talk to you about it?
A. No. Adisyn is nonverbal just because of her age. Myka, she’s verbal,
but she’s not—it’s very hard to get direct sentences from her, per se.
Based on the record, we agree with the trial court’s assessment that Myka’s injuries were
not accidental and were the result of abuse committed by Billy. At the time the abuse
was perpetrated, Mother was aware of Billy’s history of inappropriate discipline of the
Children and Billy’s requests to have a break from babysitting the Children. Despite this,
Mother continued to leave the Children in Billy’s care. Accordingly, the evidence does
not preponderate against the trial court’s findings, and these findings clearly and
convincingly support the ground of severe child abuse as set out in Tennessee Code
Annotated Section 36-1-113(g)(4).
V. Best Interests of the Children
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 children’s best interests. 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 children diverge.
In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). The focus shifts to the
children’s best interests. Id. at 877. 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 children’s best interest.
Id. However, when the interests of the parent and the children conflict, courts are to
resolve the conflict in favor of the rights and best interest of the children. Tenn. Code
Ann. § 36-1-101(d). Further, “[t]he child[ren]’s best interest[s] must be viewed from the
child[ren]’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 interests of the children in a termination of parental rights case.
These factors include, but are not limited to, the following:
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(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;
***
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition….
***
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe....
(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....
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.
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
In its order terminating Mother’s parental rights, the trial court primarily relied on
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the factors enumerated above in reaching its determination that the termination of
Mother’s parental rights is in the Children’s best interests. Concerning factor one, i.e.,
whether the parent has made such an adjustment of circumstances, conduct, or conditions
to make it safe or in the children’s best interests to be placed in the home, the trial court
found that this factor weighed against Mother. The trial court stated that, “[Mother]
continues to make bad choices of the individuals that she will allow to be around her
children if she is reunited.” The record clearly and convincingly supports this finding.
Primarily, Mother’s most recent paramour was involved with DCS for assaulting his step-
son. Mother has since left his residence because she stated that DCS would never return
the Children as long as she remained there. However, Mother does not seem to grasp
DCS’ concerns, as she testified that she still deems the residence of her paramour to be
suitable for the Children.
The second factor, concerning the parent’s lasting adjustment after DCS’
reasonable efforts, weighs in favor of Mother. As stated above, this Court is unable to
conclude whether DCS exercised reasonable efforts in assisting Mother to obtain suitable
housing for the Children.
Turning to the fifth factor, regarding whether a change in the children’s caretakers
and environment would affect their emotional, psychological, and physical condition, the
trial court held that “the pre-adoptive home in which the children are currently living is a
good and proper home that can provide for the needs of the children.” From our review
of the record, the Children reside in a safe and stable foster home. Foster Mother testified
that the Children are thriving in her home, do not ask for Mother, and identify their foster
parents as “mommy” and “daddy.” Removing the Children from their current home
would likely have a negative effect on their emotional health. This is especially so in
view of factor seven, concerning the safety of the parent’s home. Mother’s current living
situation raises significant questions concerning the Children’s safety and health.
Specifically, Mother testified that she sleeps on a couch in a friend’s apartment, and there
is no space for the Children.
Turning to the eighth factor, concerning whether the parent’s mental and/or
emotional status would be detrimental to the children or prevent the parent from
effectively providing safe and stable care and supervision for the children, the trial court
found: “The evidence is clear and convincing that [Mother] continues to have the
inability to make the appropriate choices of individuals that can be around her children so
as to provide them with a safe and stable home.” The record before this Court clearly and
convincingly supports this finding. As discussed above, Mother failed to appreciate the
dangers and potential for violence in her former paramour’s household. At the time of
trial, Mother had left Mario’s residence, but still had been unable to find suitable or
appropriate housing. From the totality of the circumstances, we conclude that the
evidence does not preponderate against the trial court’s findings, and these findings
provide clear and convincing proof that termination of Mother’s parental rights is in the
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Children’s best interests.
VI. Conclusion
For the foregoing reasons, we reverse the trial court’s termination of Mother’s
parental rights on the ground of abandonment by failure to establish a suitable home. We
affirm the termination of Mother’s parental rights on the remaining grounds. We also
affirm the trial court’s finding that termination of Mother’s parental rights is in the
Children’s best interests. The case is remanded for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed against
the Appellant, Ariel G. Because Ariel G. is proceeding in forma pauperis in this appeal,
execution for costs may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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