10/25/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 8, 2017 Session
IN RE ERIC G.1
Appeal from the Juvenile Court for Sevier County
No. 16-001096 Dwight E. Stokes, Judge
___________________________________
No. E2017-00188-COA-R3-PT
___________________________________
In this termination of parental rights case, a mother appeals the termination of her rights
to her son on the grounds of abandonment by failure to establish a suitable home,
persistence of conditions, and mental incompetence and upon the finding that termination
was in the child’s best interest. Upon our review, we discern no error and affirm the
judgment of the juvenile court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and THOMAS R. FRIERSON, II, JJ., joined.
Gregory E. Bennett, Seymour, Tennessee, for the appellant, Judith A. G.
Herbert H. Slatery, III, Attorney General and Reporter; Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Eric G. was born in June 2001 to Judith G. (“Mother”) and Richard G. (“Father”).
On January 23, 2014, the Department of Children’s Services (“DCS”) initiated a
proceeding in the Sevier County Juvenile Court to have Eric declared dependent and
neglected because he had not been enrolled in school since 2009, he was “severely
autistic and non-verbal,” and it would be in his best interest “to remain in the home of his
1
This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
mother subject to protective supervision by this Court and in compliance with the
counseling, treatment, and other conditions and limitations . . . .” The petition requested
that the court, inter alia, find Eric to be dependent and neglected and order Mother to:
immediately enroll Eric in school; allow DCS access to her home and comply with in-
home services; and complete a mental health evaluation and follow any
recommendations. That same day Mother was ordered to allow DCS representatives
access to inspect her home and to “immediately enroll [Eric] in school.”
On February 4, 2014, the guardian ad litem filed an emergency motion to place
Eric in state custody, alleging that Mother’s mental health issues and stated unwillingness
to comply with DCS requests “place[d] the child at great risk” and that Eric was
“educationally neglected” and “medically neglected in the mother’s care.” The court
held a hearing on February 5 on the petition that DCS had filed on January 23 and held
that DCS established probable cause that Eric’s removal from the home was required; the
court entered an emergency custody order, placing Eric in the temporary legal and
physical custody of DCS and granting Mother and Father visitation. Thereafter, DCS
placed the child at Norris Academy.2 Further hearings were held on March 5 and May 1,
after which the court adjudicated Eric to be dependent and neglected due to Mother’s
failure to comply with school attendance laws and to provide Eric with recommended
speech, occupational and physical therapy.
On October 2, 2015, pursuant to an emergency motion filed by the guardian ad
litem reporting that Mother’s visitation privileges had been permanently revoked at the
Academy, the court suspended Mother’s visitation at Norris Academy. The court
permitted DCS to “facilitate the Mother’s visitation with the child under strictly
supervised conditions within the Sevier County Department of Children’s Services
offices.” The order also permitted the guardian ad litem to temporarily suspend further
contact between Mother and Eric if inappropriate behavior was observed by or reported
to him. On October 15 the guardian ad litem filed a notice of suspension of Mother’s
visitation based on a DCS psychologist’s opinion that it was in Eric’s best interest to
suspend visitation for his “developmental, emotional, and psychological safety.” The
court entered a detailed order on November 30, 2015, suspending Mother’s visitation.
In the course of the dependent and neglect proceeding, three permanency plans
were developed and ratified by the court. The first was developed by the DCS team in
February 2014 with the goal of “return to parent.” This plan required Mother, among
other things, to: complete a mental health assessment and follow the recommendations;
2
A description of Norris Academy is not provided in the record, although employees of the institution
testified at trial and the final order noted that Eric received “medical and therapeutic assistance,
educational assistance at Norris Academy.” According to its website, Norris Academy is “a residential
treatment facility for children and youth ages 5 to 21 diagnosed with Autism Spectrum Disorder” located
in Norris, Tennessee. Norris Academy, SEQUEL YOUTH AND FAMILY SERVICES,
http://www.sequelyouthservices.com/html/autism-norris.html (last visited October 10, 2017).
2
complete a parenting assessment; and participate in family therapy to learn appropriate
skills needed to meet Eric’s special needs and demonstrate them on a consistent basis.
Mother and her attorney were present in the meeting at which the plan was developed
and, on the page entitled “Agreements,” Mother acknowledged that the plan had been
discussed with her. She checked the box indicating that she did not agree with the plan
and included the handwritten notation that “I disagree with all the false accusations on the
plan against me as parent and me as an individual and a human being. They have also
reported that I made statements that I didn’t make on these pages.” The plan was ratified
in May 2014. The second plan was developed in July 2015 with the added goal of
adoption. Mother and her counsel were present during the meeting in which the plan was
developed, and on the “Agreements” page Mother acknowledged that the plan had been
discussed with her. She checked the box indicating she did not agree with the plan; in the
box where she was to explain her “no” answer, she wrote “MANY LIES ON THIS.” The
plan was ratified in October 2015 and required Mother to, among other things, sign a
release of information so DCS could obtain a copy of her mental health assessment and
resulting recommendations, to apply for Social Security, and to “work with Sevier
County Housing Authority to retain her public housing.” The third plan was developed
in June 2016 with the sole goal of adoption and ratified in August; it retained the
responsibilities in the prior plans. Mother is listed in the plan as participating in the team
meeting by phone and “not available to sign”; her attorney was present, as was the
guardian ad litem.
On August 1, 2016, DCS filed a petition to terminate Mother’s parental rights on
the grounds of mental incompetence, abandonment by failure to provide a suitable home,
and persistence of conditions; the petition also alleged that termination was in Eric’s best
interest.3
Trial was held on December 2, 2016; Mother was not present. The day before,
Mother had filed a motion to continue the trial, asserting that her physical and emotional
health “is not such that she should be required to undergo the rigors of a termination
hearing at the present time.” Prior to commencing the trial, Mother’s counsel argued that
a continuance was necessary because “it has been reported by my client to me that my
client suffers from the following: . . . pressure thyroid issues, . . . previous heart attacks,
elevated pulse, serious and chronic upper and lower gastrointestinal problems, . . . [and]
that the most recent fires in Sevier County have caused . . . her breathing issues to be
affected.” After hearing from counsel for DCS and the guardian ad litem, the court
denied the motion and proceeded to hear testimony.
3
Father, whom the record shows resided in Ohio, was a party to the dependent and neglect proceeding;
the petition for termination advised that he surrendered his parental rights to Eric on July 13, 2016, and as
a result was not a party to that proceeding.
3
Cassandra Phillips, a case manager, and Katherine Rudder and Jan Gardner,
family services workers, testified on behalf of DCS. Leigh Anne Goldstine, a licensed
professional counselor who provided supervision during weekly therapeutic visitation
between Mother and Eric at Norris Academy, and Cathie Haviland, a therapist at Norris
Academy who provided individual therapy for Eric and family therapy for Eric and
Mother, were also called to testify by DCS; Dr. Shannon Wilson, a psychologist who
evaluated Mother in May 2015, testified by deposition. Mother presented no proof.
On January 10, 2017, the court entered an order terminating Mother’s parental
rights on the grounds of abandonment by failure to establish a suitable home, persistence
of conditions, and mental incompetence; the court also held that it was in Eric’s best
interest for Mother’s rights to be terminated. Mother appeals, asserting that the grounds
for termination and the holding that termination of her rights is in Eric’s best interest are
not supported by clear and convincing evidence. She also asserts that the court denied
her due process of law by failing to grant her motion for a continuance of the trial.
II. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes
on termination of parental rights provide the only authority for a court to terminate a
parent’s rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental
rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann.
§ 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights,
only one ground need be proved, so long as it is proved by clear and convincing
evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proven by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence, that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
4
App. P. 13(d). Id. 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. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).
III. ANALYSIS
A. Motion to Continue
Mother argues that the trial court denied her right to due process of law in not
granting a continuance of the trial. She concedes that the motion, which was filed the day
before trial, did not comply with the local rules of court, because she did not attach a
written statement of a physician when seeking a continuance based upon illness.4 In
presenting the motion, her counsel stated that he had requested a medical excuse from the
doctor whose name Mother had provided as her primary care physician but that no excuse
had been provided.
Mother’s counsel argued that the motion should be granted “to allow [Mother] to
be treated” for various illnesses, including “pressure thyroid issues, previous heart
attacks, an elevated pulse, serious and chronic upper and lower gastrointestinal problems”
and “breathing issues” due to “the recent wild fires that occurred in Sevier county.”
Counsel for DCS opposed the motion, arguing that “this is an ongoing trend where the
mother tries to delay Court hearings, . . . requests to reschedule Court hearings, requests
to reschedule meetings to the point that even when the Department’s worker goes to pick
her up at her house, she’s not ready and delays, delays, delays”; counsel advised the court
that “[w]e actually have a voice mail from [Mother] yesterday which relates some of the
same information that her attorney did . . . [and] gives the impression that she has not
planned on coming to this f[or] months.” In like manner the guardian ad litem stated
“[t]his is an ongoing issue. Clearly, [Mother] is going to be under stress and anxiety
during this. She has been throughout every, every court appearance. . . . However she
4
The rule, 4th District Circuit Court, Civil 4.02, states:
When the application for the continuance is based upon the illness of a party, or a
material witness, there must be filed therewith a written statement of a physician
specifying the type of illness, whether same is temporary or permanent, and whether or
not such person is able to appear in court. (The court may allow the late filing of the
application and affidavit.)
5
hasn’t been able to provide any medical necessity to why she would need to be
specifically excused today.” The court denied the motion, ruling:
[I]n regard to her condition, it seems like she’s had ongoing issues we’ve
known about for a few years in dealing with this case. It does not appear to
be anything that’s particularly new or anything that there is a doctor saying
that she cannot go forward with the hearing or the trial. There’s not any
medical documentation at all. Does not appear to be anything that can be
expected to change or that could not be raised at any time. In other words,
prior heart attacks or prior heart issues with nothing imminent. Nothing
specific in the gastrointestinal. Again, nothing appearing imminent or
there’s no doctor excuse. And all other medical conditions, the same
situation. So, I don’t see anything that’s really going to change with that.
This has been a long-standing date. Everybody has been able to plan on it
and prepare for it. And there’s been a lack of participation by her on some
matters here recently, except through her counsel, who has been -- who has
done a diligent job in representing her. So, based on those reasons, the
Motion for Continuance will be denied.
“The granting or denial of a motion for a continuance lies in the sound discretion
of the court.” Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997) (citing
Moorehead v. State, 409 S.W.2d 357, 358 (Tenn. 1966)). The court’s ruling on such a
motion will not be disturbed on appeal “unless the record clearly shows abuse of
discretion and prejudice to the party seeking a continuance.” Blake, 952 S.W.2d at 415
(citing State v. Strouth, 620 S.W.2d 467, 472 (Tenn. 1981), cert. denied, 455 U.S. 983,
(1982)). In Tidwell v. Burkes, this Court set forth the standard to be applied in ruling on a
motion to continue:
When considering a motion for continuance, the following factors are
relevant to the trial court’s decision: “‘(1) the length of time the proceeding
has been pending, (2) the reason for the continuance, (3) the diligence of
the party seeking the continuance, and (4) the prejudice to the requesting
party if the continuance is not granted.’”
No. M2015-01270-COA-R3-CV, 2016 WL 3771553, at *5 (Tenn. Ct. App. July 8, 2016)
(internal citations omitted).
Applying these factors, we observe that the trial date had been set for nearly three
months, that Mother failed to document the illnesses identified in her motion or by her
counsel and any effect those illnesses may have had on her ability to appear in court, and
that she failed to obtain a medical excuse from her doctor which was in compliance with
local rule 4.02. She does not assert that any prejudice resulted from the denial of the
motion and, from our review of the record, we discern none. Reviewing the trial court’s
6
application of the Tidwell standard, we conclude that the court did not abuse its discretion
in denying the motion.
B. Grounds for Termination
1. Persistence of Conditions
Parental rights may be terminated on the basis of “persistence of conditions” as
defined by Tennessee Code Annotated section 36-1-113(g)(3) 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[.]
The petition to terminate Mother’s rights alleged that Mother failed to follow an
order entered in the dependent and neglect proceeding to enroll Eric in school and that in
the 29 months Eric was removed from Mother’s home, “Mother has never accepted
responsibility for her failure to comply with compulsory attendance laws” and that
“Mother has an explicit inability to provide for this child’s basic needs [. . .and] is not
able to care for him safely.” In the order terminating Mother’s rights, the trial court held:
In regards to the allegation of persistent conditions, the Court finds that the
State has proven this by clear and convincing proof due to all of the
mother’s conduct, which indicates total and substantial likelihood that she
would not be able to remedy these conditions; that she was given many
months of opportunities to indicate some kind of remorse or change or
willingness to undergo change and that she never did do anything of that
nature except to mouth a few times that she would get the child back in
school, which from the history of it, does not amount to anything because
she has not done it and had refused to do so. All of this in regards to
persistent conditions is established by what the Court has already
summarized in regards to the Department employees’ testimony, therapists’
testimony, medical testimony through deposition, and the history of the
7
case in general, which all demonstrates the mother’s lack of remorse and
unwillingness to change.
By clear and convincing evidence, the requirements of Tenn. Code § 36-1-
113(g)(3) have been met[.]
Mother contends that the holding is not supported by clear and convincing evidence.
Testimony relating to this ground was provided by Ms. Phillips, Ms. Gardner, Ms.
Rudder, Ms. Goldstine, Ms. Haviland and Dr. Wilson.
Ms. Phillips testified that she was assigned to this case in November of 2013 when
DCS received a referral that Eric’s education was being neglected and that he lacked
supervision. She made contact with Mother, who “admit[ted] that Eric was not in
school” [and. . .] that she had been trying to home school him; Ms. Phillips made a
second visit at the end of January of 2014, at which time she determined that Mother had
not enrolled Eric in school; she was told by Mother that Eric was “autistic and relied on
her for everything” and that she was not enrolling Eric in public school because “[s]he
was fearful that somebody would try to hurt him.” During the second visit she observed
that Eric was unable to use the restroom by himself but could walk, make sounds, and
feed himself, and that he walked around naked from the waist down after removing his
diaper.
Ms. Gardner, the family service worker who was assigned to the case in February
2014 when Eric was brought into DCS custody, testified that the number one concern
when DCS first became involved was getting Mother to enroll Eric in school. Ms.
Gardner testified that Mother “told [her] initially when we started this journey together
that she wasn’t going to cooperate, there was no reason for this child to be in foster care,
she was an excellent mother, she knew what she was doing, and she didn’t feel like any
service provided to her would help her be a better mother than she was.” Ms. Gardner
testified as to measures she took to assist Mother in performing her responsibilities under
the permanency plan including: working with the Sevier County Housing Authority to get
Mother’s rent reduced; offering to assist Mother in doing medication counts to verify that
she was taking prescribed medication and to perform random drug screens; helping
Mother in getting groceries; transporting her to and from court; and assisting Mother in
finding employment. Ms. Gardner testified that Mother began working with the therapist
at Norris Academy as recommended by the parenting assessment, but that the therapy
“didn’t work well” because Mother “didn’t respond to specific guidelines, modeling,” but
“always reported that this was her child and she knew what was best and she didn’t need
help doing that.” Ms. Gardner testified she was able to get therapeutic services for nearly
a year but that funding was stopped due to Mother’s lack of progress. Ms. Gardner
testified that she had no concerns about Mother physically hurting Eric but did have
concerns “about her lack of boundaries with Eric and her treating him as an infant as
8
opposed to an adolescent,” specifically that Mother had not recognized that Eric was
reaching puberty.
Ms. Rudder, who took over as family service worker in August 2015, testified that
she communicates with Mother every week and makes visits to her home once a month;
that she arranged for Mother to attend parenting classes and provided transportation; that
Mother “said the classes don’t teach her anything new and it already confirms everything
she already knows about being a parent”; and that Mother told her that she “provided
[Eric] with all the education he needed and that . . . she could provide it better and protect
him better than anyone else could.” When asked if Mother had ever expressed remorse
for Eric being removed from the house, Ms. Rudder testified that “[Mother] just states
that there was no wrongdoing, she is a perfect mother, she loves Eric, and he should not
have been taken from her home.”
Ms. Goldstine testified that she supervised weekly therapeutic visitation between
Mother and Eric from September 2014 through February 2015 at Norris Academy;5 that
during visitation “Mom was mostly argumentative with me, didn’t do well with
instruction that was given to her”; that Mother did not seem open to learning during the
six-month period she supervised their visits; that Mother is “pretty argumentative” and
“pretty strong-willed”; and that she “didn’t like people interfering with her interpretation
of what or how Eric should be raised or how she should do things with Eric,” which
“were the things that spurred her anger issues.” Ms. Goldstine testified that she stopped
providing supervision to the visits in February 2015 because she had “set a limit with
[Mother] and she pushed me. She put her hands on me”; she testified that immediately
after the incident, she and her supervisor determined that it would be best if the
supervisor took over supervising the visits.
Ms. Haviland provided individual therapy services to Eric beginning February
2014 and weekly family therapy sessions to Mother and Eric from late 2014 through the
summer of 2015; at the inception of her work, she had four goals for the family therapy
sessions: to bring no food; to learn first-then language6; to take Eric to the restroom and
give verbal prompts only; and to be successful in an outing. She testified to a range of
observations and difficulties she encountered in the course of her work. She testified that
Mother was “never receptive to much input” or coaching during their family therapy
5
Ms. Goldstine testified that therapeutic visitation entails “the person assisting with the visitation
intervene[ing] as necessary to provide guidance or direction to the parent to enable them to better their
parenting skills.” In this case, the therapeutic visitation consisted of Ms. Goldstine supervising Mother
and Eric’s time together and, as necessary instructing or guiding Mother.
6
Ms. Haviland explained that “first-then language” is “applied behavioral analysis, teaching, training” in
which individuals on the autism spectrum are taught to do certain things they don’t like to do in order to
get certain “reinforcers” they do like. She used the chore of dusting with a reward of candy afterward as
an example.
9
sessions; that Mother never changed or seemed open to change or express an interest in
learning about Eric’s sensory diet or therapies; and that when she gave Mother direction
during the sessions, Mother “would just go off and sit in a chair. I would have to
constantly ask her to engage Eric and be a part of the session. And when she did, she
would like force him or do things for him.” She observed that Mother created a risk of
harm to Eric on one occasion when “[Mother] became very escalated when we’re
transitioning from the family [therapy] session to the visitation by the Omni person [Ms.
Goldstine],” at which point Ms. Haviland “kept asking [Mother] to calm down because
Eric was curled up in a ball just rocking” before Ms. Haviland “finally removed him”; the
other occasion was when she saw Mother “shove[ing] food down his throat.”7 Ms.
Haviland also testified that the family therapy sessions had been stopped a couple of
months prior to August 2015 because “none of the goals were met” and “zero was
accomplished”; about several inappropriate interactions she witnessed between Mother
and Eric and had to redirect; and that after the CEO of Norris Academy intervened in one
situation that seemed sexually inappropriate, Mother’s visitation at Norris Academy was
stopped completely.
Dr. Wilson, who conducted a psychological evaluation of Mother in May 2015,
testified that she prepared a report following the evaluation in which she observed:
[Mother’s] behavior has been described by others as being highly unusual,
as she is frequently irritable, defensive and verbally aggressive toward
others. This behavior was observed during this evaluation, as well, as she
was extremely negative in her descriptions of the agencies involved in this
case, seemed reluctant to participate in activities related to the evaluation,
and spoke repeatedly about how she and her son have been “victimized”
and “traumatized” by those with whom they have interacted.
***
She has little psychological insight (although she firmly believes that she is
extremely insightful) and is likely to be resistant to exploring the possibility
of any deficits within herself. She feels unhappy about her family life and
is resentful of her current situation; however, her responses also suggest
that she currently has little motivation to change her behavior.
***
7
Ms. Haviland explained that “routinely, he either vomited or had diarrhea or had both” after Mother’s
visits, and that when she talked with Mother about this, Mother’s response was that “there was no
correlation in her mind” between the food she fed Eric and his diarrhea and vomiting.
10
[I]t is highly unlikely that Ms. [Mother] will be able or willing to see that
she failed to care for her son appropriately, or that she needs to alter her
way of parenting him. Because she feels that 1) she knows what is best for
Eric, 2) others have malevolent intentions and are trying to mistreat or
abuse her, and 3) those in authority are responsible for her current troubles,
it is exceedingly unlikely that she will see the value in following guidelines
set forth for the appropriate care and education of her son. As a result,
based on the results of this evaluation, it is my impression that it would not
be safe to return Eric to her care at this time.
When asked if there was a class Mother could take to significantly alter her outlook on
life so that she would be able to parent Eric appropriately, Dr. Wilson testified:
If [Mother] were willing to participate in long-term-focused treatment that
would address her personality disorder and the other issues that she has, it
is a possibility that she could get to a point where she would be able to
parent more effectively. Unfortunately, her personality disorder pretty
much precludes her from being willing to participate in that treatment.
The testimony of these witnesses clearly and convincingly supports a holding that
conditions that led to Eric’s removal persist and are not likely to be remedied at an early
date.
With respect to the ground of persistence of conditions, this Court has observed
that:
“Where ... efforts to provide help to improve the parenting abilities, offered
over a long period of time, have proved ineffective, the conclusion that
there is little likelihood of such improvement as would allow the safe return
of the child to the parent in the near future is justified.” The purpose
behind the “persistence of conditions” ground for terminating parental
rights is “to prevent the child’s lingering in the uncertain status of foster
child if a parent cannot within a reasonable time demonstrate an ability to
provide a safe and caring environment for the child.”
In re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012) (internal citations
removed) (quoting In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at
*20 (Tenn. Ct. App. Oct. 13, 2008)).
In our consideration of this ground, we are cognizant of the specific conditions
that led to Eric’s removal and the substantial responsibilities that were placed on Mother.
First and foremost is the fact that Eric is an autistic child with unique needs, which, as the
record shows, were not being met in Mother’s home. He was thirteen years old when he
11
came into DCS custody, and the testimony of the DCS employees, as well as those
affiliated with Norris Academy, was consistent with that of Dr. Wilson: Mother failed to
comprehend that her attempts to home school Eric and her manner of raising him was not
appropriate care for him. Dr. Wilson’s testimony was clear that Mother’s personality
disorder and other issues precluded her from addressing these factors. Succinctly put, the
conditions which led to Eric’s removal persisted from the time of his removal to the time
of trial and, in light of Mother’s condition, showed no prospect of improving. The
testimony cited by Mother in support of her argument relates to the lack of any physical
threat to Eric in her home and establishes that she was protective of him; this testimony,
however, does not relate to the conditions which led to his removal.8
The evidence of persistence of conditions is clear and convincing, and we affirm
the court’s holding as to this ground.
2. Abandonment by Failure to Provide a Suitable Home
Tennessee Code Annotated section 36-1-113(g)(1) provides that abandonment, as
defined at Tennessee Code Annotated section 36-1-102(1)(A), is a ground for termination
of parental rights; the latter statute defines “abandonment” as follows:
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 made reasonable efforts to assist the
parent or parents or the guardian or guardians to establish a suitable home
8
Moreover, the testimony relied upon by Mother does not preponderate against the court’s findings
relative to Mother’s unwillingness to enroll Eric in school, her failure to learn how to help Eric develop
appropriately, her failure to address her mental health needs, or her resistance to the assistance provided
by the therapists and case workers involved in the case.
12
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[.]
With respect to this ground, the court held:
The Court also finds by clear and convincing evidence that the Department
has proven the ground of abandonment for failure to provide a suitable
home, that the Department has made reasonable and extraordinary efforts in
this case through the case workers, through Norris Academy, through
therapeutic visitation, through substantial transportation services and
assistance, through obtaining a psychological evaluation, and everything
else that the Department provided, which was never appreciated by the
mother. The mother never indicated any kind of inclination to know and
understand what it would take to have a suitable home for Eric or how to
make changes that would help him thrive and help him grow and develop in
the way and manner that staff at Norris Academy allows him to do. And
so, for all of the reasons that the Court has summarized and the findings of
fact that the Court has made which support this, that the Court finds this
ground by clear and convincing proof.
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 does not challenge the reasonableness of DCS’s efforts, and the record
contains substantial proof that DCS staff made weekly visits, stayed in regular
communication with Mother, arranged assessments, provided assistance to Mother in the
form of transporting her to court, visitation, and places such as the grocery store, food
bank, or Wal-Mart, in addition to attempting to help her find employment and apply for
Social Security disability. The record clearly and convincingly supports the court’s
finding that the efforts of DCS in this case were “reasonable and extraordinary.”
Mother argues in her brief that the evidence shows that her home was suitable at
all times, that “Eric has not progressed significantly during his confinement at Norris
Academy,” and that the progress he has made at Norris “would have occurred even if he
had remained in her home.” We respectfully disagree with Mother’s contentions. This
13
Court has observed that “a suitable home requires more than a physical space.” In re
A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002). We have also noted that:
A well-built, fully furnished home does not a “suitable home” make;
neither is a home which may lack some comforts or conveniences
unsuitable for that reason alone. The failure of Mother . . . to cooperate
with DCS and to comply with the requirements of the various counseling
services was directly related to the establishment and maintenance of a
suitable home.
In re M.F.O., No. M2008-01322-COA-R3-PT, 2009 WL 1456319, at *5 (Tenn. Ct. App.
May 21, 2009). The physical condition of Mother’s home is not the issue; rather, the lack
of suitability of the home stems from Mother’s inability to provide for Eric’s significant
educational, emotional, and medical needs.
Much of the testimony set forth in our discussion of the persistence of conditions
is also applicable to this ground, including that of Ms. Rudder, Ms. Goldstine, Ms.
Haviland, and Ms. Gardner, as well as that of Dr. Wilson.
In addition to that cited previously, Ms. Gardner testified that when Eric initially
came into DCS custody and had a medical screening, it became apparent that he “wasn’t
up to date on his immunizations” and “had never had dental care.” Ms. Goldstine
testified that that every visitation of Mother’s was strained and argumentative, that the
visits were unsuccessful, and that she spoke with DCS about the need to cease visitation
because it was “not productive.” She also testified that she wanted Mother “to take
responsibility for the child being in custody, not being so argumentative, being able to
accept information and act upon that.” Ms. Goldstine testified that “[Mother] really
thwarted [Eric’s] progress [at Norris Academy] and seemed to - - she was very
symbiotic with him and would do what she could to keep him on a lower developmental
level.”
Dr. Wilson testified that Mother reported to her that she had been diagnosed with
obsessive compulsive disorder and generalized anxiety disorder; Dr. Wilson’s
examination confirmed those diagnoses.9 Dr. Wilson also concluded that Mother
suffered from paranoid personality disorder, which is “a pattern of distrust and
suspiciousness such that other’s motives are interpreted as malevolent.” Of particular
pertinence to this issue is the following excerpt from Dr. Wilson’s report:
9
In Dr. Wilson’s Confidential Psychological Evaluation, which was attached as an exhibit to her
deposition and admitted into evidence at trial, she stated that Mother “stated . . . that she was recently
diagnosed with Obsessive-Compulsive Disorder and Generalized Anxiety Disorder. She also stated,
however that she ‘read the Merck Manual’ when she got home and has judged those two diagnoses to be
inaccurate.”
14
She has little psychological insight (although she firmly believes that she is
extremely insightful) and is likely to be resistant to exploring the possibility
of any deficits within herself. She feels unhappy about her family life and
is resentful of her current situation; however, her responses also suggest
that she currently has little motivation to change her behavior.
The testimony demonstrates Mother’s inability to recognize how she hindered
Eric’s abilities to learn and develop, as well as her failure to address her mental health
issues or to embrace the methods recommended by professional counselors for parenting
and assisting Eric. While Mother argues that she should not be held to the same standard
of services provided at Norris Academy, a standard that the record makes clear she was
never asked to achieve, the proof in the record shows that Mother resisted every effort to
help her improve the environment in which she was raising her son. Mother’s defiance,
which is clear from the testimony of the case workers and therapists who interacted with
her, prevented her from making necessary changes to her behavior. The evidence cited
by Mother relates primarily to the physical condition of her home; as noted earlier, the
proper focus of our inquiry is Mother’s ability to address Eric’s needs for developmental
support in her home. The evidence she cites does not preponderate against the court’s
findings and the record fully establishes, by clear and convincing evidence, that Mother
abandoned Eric by failing to provide a suitable home within the meaning of the statute.
3. Mental Incompetence
Tennessee Code Annotated section 36-1-113(g)(8)(B) provides:
The court may terminate the parental or guardianship rights of that person if
it determines on the basis of clear and convincing evidence that:
(i) The parent or guardian of the child is incompetent to adequately
provide for the further care and supervision of the child because the
parent’s or guardian’s mental condition is presently so impaired and is
so likely to remain so that it is unlikely that the parent or guardian will
be able to assume or resume the care of and responsibility for the child
in the near future; and
(ii) That termination of parental or guardian rights is in the best interest
of the child;
On the basis of Dr. Wilson’s opinion, the petition for termination alleged: that
Mother was mentally incompetent to provide adequate care for Eric because she “has
little psychological insight . . . and is likely to be resistant to exploring the possibility of
any deficits within herself” and “has a strong tendency to disregard any new information
that does not support what she already believes to be true”; that Mother experiences
symptoms consistent with diagnosis of Obsessive Compulsive Disorder, Generalized
Anxiety Disorder and Paranoid Personality Disorder,” the symptoms of which “render
15
her unable to care for her son appropriately”; and that it was Dr. Wilson’s “impression
that it would not be safe to return Eric to her care at this time.” In the order terminating
Mother’s rights, the court concluded:
In regard to the third ground, the Court finds that the proof has established
that ground by clear and convincing proof specifically referring to the
testimony of Dr. Wilson and the substantial conclusions that she made in
her testimony, which included the mother’s inability and unwillingness to
make any changes, to expect any changes, that the mother was not going to
have the capability or the desire or the impetus to make any changes or to
make life changes that would be beneficial for Eric or to recognize her need
to do so. Also, the history of the case totally supports and verifies the
findings of Dr. Wilson, and that is exactly what has transpired, this
unwillingness to understand, inability to follow through with clear
instructions or to indicate any kind of willingness whatsoever to follow
through with instructions or express any remorse.
By clear and convincing evidence, the requirements of Tenn. Code § 36-1-
113(g)(8) have been met[.]
Mother argues that this holding was error.
We have reviewed Dr. Wilson’s testimony and note again that she testified that
Mother self-reported diagnoses of obsessive compulsive disorder and generalized anxiety
disorder, which Dr. Wilson’s evaluation confirmed. Dr. Wilson also concluded that
Mother suffered from paranoid personality disorder; Mother presented no proof to
counter these diagnoses.10 Dr. Wilson testified that “the way that [Mother] was raising
her son was not appropriate” and that based on her psychological evaluation of Mother,
“it is [her] impression that it would not be safe to return Eric to her at this time.” Dr.
Wilson defined “safe” as “emotionally, physically, mentally in his best interests.” She
testified that “from an emotional and physical [point of view] and . . . based on what
[Mother] told me and what I know about Eric’s diagnosis, [Mother] is apparently content
to allow him to remain at a level where he is non-functional and entirely dependent on
her, and that’s not okay.”
10
As noted previously, Dr. Wilson testified that:
If [Mother] were willing to participate in long-term-focused treatment that would address
per personality disorder and the other issues that she has, it is a possibility that she could
get to a point where she would be able to parent more effectively. Unfortunately, her
personality disorder pretty much precludes her from being willing to participate in that
treatment.
16
Moreover, while Mother takes issue with the testimony and conclusions of Dr.
Wilson, she does not address the substantial testimony of the DCS case workers and
therapists which, as found by the trial court, verifies Dr. Wilson’s conclusions. In
addition to the testimony of Dr. Wilson, the testimony of Ms. Rudder, Ms. Goldstine, Ms.
Haviland, and Ms. Gardner, set forth previously in this opinion, makes clear that Mother
had not progressed in addressing her mental health issues during the pendency of this
case. As this Court noted in In re M.E.W. and the cases cited therein, “[a] parent’s
continued incapacity to provide fundamental care for a child, whether caused by mental
illness, mental impairment, or some other cause constitutes sufficient ground for
termination of parental rights.” No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *7
(Tenn. Ct. App. Apr. 21, 2004).
After a careful review of the record, we conclude that the evidence clearly and
convincingly supports the trial court’s determination that Mother suffered from mental
incompetence, as defined in Tennessee Code Annotated section 36-1-113(g)(8), as the
record demonstrates that Mother was “incompetent to adequately provide for the further
care and supervision” of Eric’s significant special needs because her “mental condition is
presently so impaired and is so likely to remain so that it is unlikely that [she] will be able
to assume or resume the care of and responsibility for [Eric] in the near future.” See
Tenn. Code Ann. § 36-1-113(g)(8). Because the evidence showed that Mother’s mental
condition was so impaired that she was unable to assume responsibility to provide the
care Eric needs, the trial court properly determined that this ground was established.
C. Best Interest
Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is in the best interest of the child for the
parent’s rights to be terminated, again using the clear and convincing evidence standard.
In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of factors at
Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the
child’s best interest.11 The list of factors in the statute “is not exhaustive, and the statute
11
The factors at Tenn. Code Ann. § 36-1-113(i) are:
In determining whether termination of parental or guardianship rights is in the best
interest of the child pursuant to this part, the court shall consider, but is not limited to, the
following:
(1) Whether the parent or guardian has made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the child’s best interest to be in the home
of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment after
reasonable efforts by available social services agencies for such duration of time that
lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other contact with
17
does not require every factor to appear before a court can find that termination is in a
child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
Tenn. Dep’t. of Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-
PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue,
we are also mindful of the following instruction in White v. Moody:
[A]scertaining a child’s best interests in a termination proceeding is a fact-
intensive inquiry requiring the courts to weigh the evidence regarding the
statutory factors, as well as any other relevant factors, to determine whether
irrevocably severing the relationship between the parent and the child is in
the child’s best interests. The child’s best interests must be viewed from
the child’s, rather than the parent’s, perspective.
171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).
In addressing the best interest determination, the trial court held:
The Court also finds that the State has established by clear and convincing
proof that is in the best interest of Eric for the mother’s rights to be
terminated. The Court has given a fairly substantial review of what has
taken place and the capability Eric has shown of developing, of doing
well—and all of that development and improvement has been shown post
removal from the mother—and about all of the things that he is developing
and has been able to develop. Wherever he ends up being placed and/or
being placed in a home, that those services could and should be available
basically in any location or within close surroundings. That, again, based
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
(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.
18
upon the fact that the mother—the best interest of Eric is to have the
termination because the mother has not shown any remorse, has not shown
a capability of understanding what needs to be done, has not indicated any
kind of true intent to pursue any education or to follow through with those
type of services or indicate any kind of change in her attitude or desire
from the time that was trying to seclude the child from any other
participation with peer groups or an educational type of environment, and
has shown herself totally incapable of providing an environment for him to
thrive such as has been provided over the last couple of years through
Norris Academy and other services that have been provided.
By clear and convincing evidence, and pursuant to Tenn. Code § 36-1-
113(i), the Court finds that it is in the best interest of the child to terminate
the rights [Mother].
The trial court did not identify specific statutory factors in holding that termination
of Mother’s rights was in Eric’s best interest. As noted in the ruling, the court made a
“fairly substantial review of what has taken place and the capability Eric has shown of
developing, of doing well—and all of that development has been shown post removal
from the mother—and about all of the things that he is developing and has been able to
develop.”
Mother asserts that the court made factual findings with respect to factors (1), (2),
(4), (5), and (8), and argues that the evidence does not support those findings. Discussing
factors (1) and (2) together, Mother focuses solely on Eric’s educational needs and argues
that she “knew absolutely what was best for Eric, she always took care of him, and she
did educate him.” The evidence, however, is contrary to Mother’s argument. As has
been thoroughly discussed previously in this opinion, the testimony and other evidence
fully supports the finding that there has been no adjustment in circumstance, and that one
is unlikely to be achieved, due to Mother’s failure to accept responsibility for Eric’s
educational and medical neglect, as well as to address her own mental health issues.
With respect to factor (4), Mother states that “the court found through the
testimony of Ms. Haviland that there did not seem to be any kind of connection[;
h]owever, this single statement is contradicted by virtually every other witness and by
testimony of Ms. Haviland herself.” Mother does not cite to testimony that supports this
assertion, and upon our review, we find none. To the contrary, Ms. Rudder testified that,
during the visitations she supervised, she observed that “[t]here was not much interaction
between [Mother and Eric], other than her putting the food out,” and Ms. Haviland
testified that, contrary to her observation that Father was able to establish a connection
with Eric in a short amount of time, with respect to Mother she “never witnessed what I
would refer to as a connection between them on [Eric’s] part.”
19
With respect to factor (5), Mother argues that the finding that “Mother has shown
herself totally incapable of providing an environment for Eric to thrive such as has been
provided over the last couple of years through Norris Academy” was unsupported, and
Mother contends that “Eric’s progress at Norris would have occurred even if he had
remained in her home.” Again, the evidence is contrary to Mother’s argument. Witness
after witness testified about Mother’s resistance to instruction and her insistence on
continuing to do the things she thought Eric needed (i.e., to be fed large volumes of food)
rather than working to learn the methods that had proven beneficial to him at Norris
Academy.
With respect to factor (8), Mother argues that she is not so mentally or emotionally
impaired as to be unable to care for Eric’s needs; she does not cite to any evidence in
support of this argument. To the contrary, the testimony relating to mother’s mental
condition was clear and convincing that her failure to address her condition and the
manner in which she interacted with Eric was detrimental to him and prevented his
development. While she is able to meet certain of his physical needs, she is unable to
grasp how her own mental incapacities have impeded his development.
In addition to the specific factors cited by Mother, testimony at trial related to
factor (6). Ms. Haviland, Ms. Goldstine, and Ms. Phillips testified about interactions
between Mother and Eric that they perceived as sexually inappropriate; Ms. Haviland
testified that as a result of the last of these inappropriate interactions she observed,
Mother’s visitation at Norris Academy was stopped.
In considering Eric’s best interest, we again recognize that he is a unique child
whose developmental needs were not being met by Mother, largely due to her inability to
grasp the limitations imposed on her by her mental condition and her resistance to DCS
involvement in Eric’s development. At oral argument, both counsel for DCS and the
guardian ad litem acknowledged the necessity of terminating Mother’s rights in order to
secure the best possible future for Eric.12 The record in this case clearly and convincingly
establishes that termination of Mother’s parental rights is in Eric’s best interest.
12
With respect to Eric’s potential for adoption, Ms. Rudder testified:
We have been searching for a foster home. . . . [I]t will be much easier to find an
adoptive home. However, he is not in full guardianship. So, we . . . cannot present his
case as an adoptive case because he’s not right now able to be adopted.
20
IV. CONCLUSION
For the foregoing reasons, the judgment of the court terminating the parental rights
of Mother is affirmed.
RICHARD H. DINKINS, JUDGE
21