04/03/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 14, 2017 Session
IN RE AUTHUR R.
Appeal from the Juvenile Court for Hamilton County
No. 269010 Robert D. Philyaw, Judge
No. E2017-00782-COA-R3-PT
This is a termination of parental rights case focusing on the minor child, Authur R. (“the
Child”), of Lola R. (“Mother”) and Authur D. (“Father”). The Child was placed in
protective custody on June 13, 2013, after Mother was discovered to be under the
influence of illegal drugs while the Child was in her custody. The Hamilton County
Juvenile Court (“trial court”) adjudicated the Child dependent and neglected on
November 26, 2013. On November 25, 2015, the Tennessee Department of Children’s
Services (“DCS”) filed a petition to terminate the parental rights of both Mother and
Father. An amended petition to terminate was subsequently filed on May 6, 2016. DCS
alleged as a basis for termination against both parents the statutory grounds of (1)
abandonment by willful failure to visit, (2) abandonment by willful failure to support, (3)
abandonment by an incarcerated parent, and (4) substantial noncompliance with the
reasonable requirements of the permanency plans. Concerning Mother only, DCS also
alleged the additional statutory grounds of (1) abandonment by failure to provide a
suitable home and (2) persistence of the conditions leading to removal of the Child.
Following a bench trial, the trial court granted the petition upon its determination by clear
and convincing evidence that DCS had proven as to both parents the statutory grounds of
abandonment by an incarcerated parent and substantial noncompliance with the
reasonable requirements of the permanency plan. With regard to Mother only, the trial
court determined that DCS had also proven by clear and convincing evidence the ground
of persistence of the conditions leading to the Child’s removal. The trial court further
determined by clear and convincing evidence that termination of Mother’s and Father’s
parental rights was in the Child’s best interest. Mother and Father have appealed.
Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.
Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Lola R.
Rachel M. Wright, Hixson, Tennessee, for the appellant, Authur D.
Herbert H. Slatery, III, Attorney General and Reporter, and Michael C. Polovich,
Assistant Attorney General, for the appellee, State of Tennessee Department of
Children’s Services.
Berry Foster, Chattanooga, Tennessee, Guardian Ad Litem.
OPINION
I. Factual and Procedural Background
The Child was born in 2007 to Mother and Father, both of whom were seventeen
years of age at the time of the Child’s birth.1 Both parents subsequently dropped out of
high school enrollment. Although the parents resided together at the time of the Child’s
birth, they separated after approximately one year. Thereafter, the Child resided
primarily with Mother while Father enjoyed significant visitation.
DCS filed a petition for temporary legal custody in the trial court on June 17,
2013, alleging that the Child was dependent and neglected while in Mother’s custody. In
this petition, DCS averred, inter alia, that on July 13, 2013, the Child, who was five years
of age at that time, was discovered with Mother in the home of Mother’s sister, with such
home being described as “deplorable and filthy.” Mother was drug screened and found to
be under the influence of several illicit substances. Mother had previously been the
subject of a DCS referral when she was discovered in a “filthy” motel room with the
Child’s younger sibling and had no diapers, clothing, or food for the child. The Child
and his sibling were placed in the temporary custody of DCS.2 The trial court
subsequently entered an adjudicatory hearing order on November 26, 2013, determining
the Child to be dependent and neglected. This order was based in part on the parents’
1
Although Father’s name was not listed on the Child’s birth certificate, his paternity was later established
by DNA testing.
2
The Child’s sibling was later placed in the custody of his paternal grandmother, and he is not a subject
of this action.
2
stipulation concerning the facts alleged in the petition. The Child was placed in foster
care, where he remained through the date of the termination trial.
On November 25, 2015, DCS filed a petition to terminate the parental rights of
both Mother and Father in the trial court. An amended petition to terminate was
subsequently filed on May 6, 2016. DCS alleged as a basis for termination against both
parents the statutory grounds of (1) abandonment by willful failure to visit, (2)
abandonment by willful failure to support, (3) abandonment by an incarcerated parent,
and (4) substantial noncompliance with the reasonable requirements of the permanency
plans. Against Mother only, DCS also alleged the statutory grounds of (1) abandonment
by failure to provide a suitable home and (2) persistence of the conditions leading to
removal of the Child.
The trial court conducted a bench trial over the course of four days on June 13,
2016; July 14, 2016; September 26, 2016; and October 10, 2016. Several witnesses
testified during trial, including the parents; Emetria Arnold, the DCS family service
worker; Brian Stoddard, the Child’s former therapist; Vivian Squires, the resource
coordinator for Omni Visions; and William Hobbs, the DCS mental health practitioner
for the region where the Child was located. Both parents admitted during their testimony
to incurring criminal charges and repeated incarcerations since the Child’s birth. Ms.
Arnold testified that following the Child’s removal into DCS custody, Mother had been
incarcerated during the time periods spanning July 15 to July 16, 2013; July 22 to July
29, 2014; April 10 to April 16, 2015; July 8 to August 14, 2015; and April 4 to June 2,
2016. Father had likewise been incarcerated from April 19 to April 22, 2013; September
17 to October 3, 2013; October 18 to November 27, 2013; January 17 to February 4,
2014; March 12 to March 27, 2014; June 18 to June 27, 2014; January 28 to February 13,
2015; and February 9 through the first day of trial (June 13) in 2016. Ms. Arnold further
testified regarding an ongoing issue with drug dependency concerning both parents.
Mother had entered treatment for her substance abuse shortly before the termination trial
began; Father had never undergone treatment for his substance abuse.
Ms. Arnold explained that despite her efforts to assist the parents, neither Mother
nor Father had substantially complied with the reasonable responsibilities of their
permanency plans. The parents affirmed at trial that they were familiar with the
responsibilities of their plans. Despite their knowledge of the responsibilities, however,
Ms. Arnold reported that the parents had, prior to the filing of the termination petition,
failed to maintain safe and stable housing, maintain stable employment, rectify their
substance abuse issues, avoid further criminal behavior, or visit or support the Child. The
Child, who had been diagnosed with Obsessive-Compulsive Disorder, Post-Traumatic
Stress Disorder, Attention Deficit Hyperactivity Disorder, and attachment disorder, had
been placed on multiple medications to alleviate his behavioral issues. Due to such
3
behavioral issues, the Child had recently been placed into a fifth foster home by the
conclusion of the termination trial. While Ms. Arnold opined that the Child needed
stability and permanency, she articulated that the parents were incapable of providing for
his needs. Ms. Arnold and Ms. Squires both related that the parents had demonstrated an
ongoing lack of communication with DCS regarding their whereabouts, which, in
addition to the parents’ ongoing legal issues, had hindered DCS’s efforts to assist the
parents.
Upon conclusion of the trial on the merits, the trial court determined that DCS had
proven the ground of abandonment by an incarcerated parent with regard to both parents
by clear and convincing evidence. See Tenn. Code Ann. §§ 36-1-102(1)(A)(iv), 36-1-
113(g)(1). The court found that both parents were incarcerated during all or part of the
four months prior to the filing of DCS’s amended petition to terminate. The court further
found that both parents engaged in conduct prior to their respective periods of
incarceration through which they exhibited wanton disregard for the welfare of the Child
by failing to remain drug free and by continuing to commit criminal acts. The court also
determined that since the Child’s birth, Mother had incurred criminal convictions for
criminal impersonation, disorderly conduct, vandalism, false reports, and possession of
drug paraphernalia. In April 2016, Mother was incarcerated for a violation of probation.
The trial court found that Father had also been in and out of jail during the time the Child
was in DCS custody, having been sentenced to six years for theft. The court noted that
both parents had failed drug screens prior to their respective incarcerations.
The trial court also determined that DCS had proven by clear and convincing
evidence the ground of substantial noncompliance with permanency plans with regard to
both parents. See Tenn. Code Ann. §§ 36-1-113(g)(2), 37-2-403(a)(2). The court
determined that although the responsibilities set forth in the plans were aimed at
remedying the conditions necessitating foster care, and despite efforts by DCS to assist
the parents, both parents failed to comply with those reasonable responsibilities. The
court noted that prior to the termination petition’s filing, Mother had failed to complete
alcohol and drug treatment, pass random drug screens, avoid incarceration, maintain
contact with DCS, maintain stable housing or employment, receive proper mental health
treatment, or regularly visit the Child. The court also noted that DCS made reasonable
efforts to assist Mother by attempting to maintain contact with her, arranging for her
alcohol and drug treatment, arranging for her mental health assessment and treatment,
providing a bus pass and other means of transportation, sending applications to the
housing authority, applying for food stamps on Mother’s behalf, and providing in-home
services on two different occasions. Notwithstanding these efforts, Mother failed to
appear for her scheduled appointments and failed to complete the responsibilities
required by her permanency plans prior to the filing of the termination petition.3
3
Mother did complete certain plan responsibilities after the filing of the termination petition.
4
Similarly, the trial court found that Father had failed to comply with the
reasonable responsibilities set forth in his permanency plans despite efforts to assist by
DCS. Based on the evidence, the court determined that Father failed to complete drug
and alcohol treatment, pass random drug screens, avoid incarceration, maintain contact
with DCS, maintain stable housing and employment, or regularly visit with the Child.
The court also found that DCS made reasonable efforts to assist Father by attempting to
maintain contact with him, arranging for his alcohol and drug assessment, and arranging
for his mental health assessment.
In addition, the trial court concluded that DCS had proven the ground of
persistence of the conditions leading to the Child’s removal by clear and convincing
evidence relative to Mother. See Tenn. Code Ann. § 36-1-113(g)(3). In support, the
court noted that the Child had been removed from Mother’s custody and home for a
period of more than six months and that the conditions leading to removal still persisted.
The court found little likelihood that the conditions would be remedied at an early date so
that the Child could be returned to Mother’s custody. The court reiterated that prior to
the termination petition, Mother failed to complete alcohol and drug treatment; pass
random drug screens; prevent incarceration; maintain contact with DCS; or maintain
stable housing, stable employment, or regular visitation with the Child. The court noted
that Mother had made no progress toward the goals of her permanency plans until 2016.
The trial court also determined by clear and convincing evidence that termination
of Mother’s and Father’s parental rights was in the Child’s best interest. Finding that the
Child had lingered in foster care since June 2013, the court observed that the Child was
eight years old, adoptable, and in need of permanence. The court also found that the
parents had failed to make a lasting adjustment of their circumstances so as to make it
safe for the Child to be placed in their care. As the court explained: “[The Child] has
had enough of the unknown. This unknown hope that his parents are going to somehow
do what they need to do needs to be out of the picture, so that he can focus on himself
and the services can be clearer for him.” The court further determined that the parents
had not maintained regular visitation with the Child, such that there was no meaningful
parent-child relationship, only “fondness” and “some emotional connection.” According
to the court, the parents’ respective homes were not suitable for the Child due to their
criminal activity and drug use, and the parents were unable to care for the Child in a safe
and stable manner.
Based on these findings and conclusions, the trial court terminated the parental
rights of both parents. Mother and Father each timely appealed.
5
II. Issues Presented
Mother presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred in determining by clear and convincing
evidence that Mother engaged in conduct prior to her incarceration
exhibiting a wanton disregard for the welfare of the Child.
2. Whether the trial court erred by determining that clear and convincing
evidence supported the ground of substantial noncompliance with the
reasonable requirements of the permanency plans regarding Mother.
3. Whether the trial court erred by determining that clear and convincing
evidence supported the ground of persistence of the conditions leading to
removal of the Child regarding Mother.
4. Whether the trial court erred in determining by clear and convincing
evidence that termination of Mother’s parental rights was in the Child’s
best interest.
5. Whether the trial court erred by failing to address the likelihood of the
Child’s adoption in the best interest analysis.
6. Whether the trial court erred by failing to address the loss of sibling
relationships in the best interest analysis.
Father presents the following additional issues, which we have also restated slightly:
7. Whether the trial court erred in determining by clear and convincing
evidence that Father engaged in conduct prior to his incarceration
exhibiting a wanton disregard for the welfare of the Child.
8. Whether the trial court erred by determining that clear and convincing
evidence supported the ground of substantial noncompliance with
permanency plans regarding Father.
9. Whether the trial court erred in determining by clear and convincing
evidence that termination of Father’s parental rights was in the Child’s best
interest.
6
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599 (1982)). As our Supreme Court has recently explained:
The parental rights at stake are “far more precious than any property
right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has
the legal effect of reducing the parent to the role of a complete stranger and
of [“]severing forever all legal rights and obligations of the parent or
guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
rights is “final and irrevocable”). In light of the interests and consequences
at stake, parents are constitutionally entitled to “fundamentally fair
procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
7
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).
***
In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
IV. Grounds for Termination of Parental Rights
Tennessee Code Annotated § 36-1-113 (2017) lists the statutory grounds for
termination of parental rights, providing in relevant part as follows:
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
8
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
The trial court determined that the evidence clearly and convincingly supported
three statutory grounds to terminate Mother’s parental rights: (1) abandonment by an
incarcerated parent pursuant to Tennessee Code Annotated §§ 36-1-102(1)(A)(iv) and 36-
1-113(g)(1), (2) substantial noncompliance with the reasonable requirements of the
permanency plan pursuant to Tennessee Code Annotated § 36-1-113(g)(2), and (3)
persistence of the conditions leading to the Child’s removal pursuant to Tennessee Code
Annotated § 36-1-113(g)(3). The court further determined that the evidence clearly and
convincingly supported the termination of Father’s parental rights based on the statutory
grounds of abandonment by an incarcerated parent and substantial noncompliance with
the reasonable requirements of the permanency plan. We will address each of these
statutory grounds in turn.
A. Abandonment by an Incarcerated Parent
Regarding this ground, Tennessee Code Annotated § 36-1-113(g)(1) provides in
relevant part:
(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; . . .
There is no dispute that both Mother and Father were incarcerated for a portion of the
four-month period preceding the amended termination petition’s filing; accordingly, the
definition of abandonment contained within Tennessee Code Annotated § 36-1-
102(1)(A)(iv) (Supp. 2015) applies.4 This subdivision provides in pertinent part:
4
We note that the ground of abandonment by an incarcerated parent was not alleged as to Mother or
Father until the filing of the amended petition.
9
(iv) A parent or guardian is incarcerated at the time of the institution of
an action or proceeding to declare a child to be an abandoned child,
or the parent or guardian has been incarcerated during all or part of
the four (4) months immediately preceding the institution of such
action or proceeding, and either has willfully failed to visit or has
willfully failed to support or has willfully failed to make reasonable
payments toward the support of the child for four (4) consecutive
months immediately preceding such parent’s or guardian’s
incarceration, or the parent or guardian has engaged in conduct prior
to incarceration that exhibits a wanton disregard for the welfare of
the child.
Pursuant to this definition, the determinative period applicable to the grounds of willful
failure to support and willful failure to visit begins four months immediately preceding
incarceration. See id. We note, however, that a parent’s actions demonstrating wanton
disregard for the welfare of a child are not restricted to only the four-month period prior
to incarceration. See In re Audrey S., 182 S.W.3d 838, 871 (Tenn. Ct. App. 2005).
With regard to Mother, the trial court found that she engaged in conduct prior to
her incarceration that exhibited wanton disregard for the welfare of the Child by failing to
remain drug free and by continuing to commit criminal acts. The court also determined
that following the Child’s birth, Mother had incurred criminal convictions for criminal
impersonation, disorderly conduct, vandalism, false reports, and possession of drug
paraphernalia. According to the court, in April 2016, Mother was again incarcerated for
a violation of probation.
Similarly, the trial court found that Father had engaged in conduct prior to his
incarceration that exhibited a wanton disregard for the welfare of the Child. As the court
noted, Father, having been sentenced to six years for theft, was in and out of jail during
the entire period the Child had been in DCS custody. The court further noted that both
parents had failed drug screens prior to their respective incarcerations.
Based upon our thorough review of the record, we determine that the evidence
presented supports the trial court’s findings. Mother and Father admitted to their
numerous criminal charges and periods of incarceration while testifying during the
termination trial. Furthermore, Ms. Arnold testified that Mother failed (or refused) drug
screens on July 11, 2013; December 12, 2013; January 15, 2014; February 21, 2014;
March 7, 2014; June 2, 2014; and October 15, 2014. Moreover, Mother admitted that she
consistently used illicit drugs until early 2016 when she entered a rehabilitation program.
According to Ms. Arnold, Father failed drug screens administered on July 11, 2013, and
April 7, 2014. Ms. Arnold further related that Father participated in an alcohol and drug
10
assessment at Bradford Health Services on February 28, 2014, and denied using illicit
drugs despite testing positive for cocaine. No proof was presented that Father had ever
completed drug or alcohol treatment.
In addition to the criminal charges delineated by the trial court in its order, Father
testified that he had been charged with the use of stolen plates and that he was
incarcerated on the first day of the termination trial due to a contempt charge. During a
later trial date, Father admitted that he was released from incarceration for approximately
one month in July 2016 but was arrested again on September 15, 2016. When questioned
concerning his recent arrest, Father refused to answer, invoking his Fifth Amendment
right to remain silent. Ms. Arnold testified that she learned of Father’s arrest from a
television news report. Similarly, Mother admitted during the September 26, 2016
hearing that she gave birth to another baby on September 15, 2016, and was arrested
three days later due to “missing paperwork.”
This Court has consistently held that “probation violations, repeated incarceration,
criminal behavior, substance abuse, and the failure to provide adequate support for a
child can, alone or in combination, constitute conduct that exhibits a wanton disregard for
the welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68; see also In re K.F.R.T.,
No. E2015-01459-COA-R3-PT, 2016 WL 908926, at *4 (Tenn. Ct. App. Mar. 10, 2016).
“Simply stated, a parent’s ‘poor judgment and bad acts that affect the children constitute
a wanton disregard for the welfare of the children.’” In re T.L.G., No. E2014-01752-
COA-R3-PT, 2015 WL 3380896, at *3 (Tenn. Ct. App. May 26, 2015) (quoting State,
Dep’t of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009)). In this
action, DCS presented ample evidence of the parents’ repeated incidents of criminal
behavior and probation violations, resulting in repeated incarcerations. Considerable
evidence also demonstrated the parents’ substance abuse, which resulted in the cessation
of Mother’s visits with the Child in 2014. Father had likewise failed to visit the Child for
more than a year due to his repeated incarceration. We determine that the trial court
properly found clear and convincing evidence of the parents’ abandonment of the Child
by engaging in conduct prior to incarceration that exhibited a wanton disregard for the
welfare of the Child. We therefore affirm the trial court’s reliance upon this statutory
ground for termination of the parents’ rights to the Child.
B. Substantial Noncompliance with Permanency Plans
The trial court also found clear and convincing evidence that Mother and Father
failed to substantially comply with the reasonable responsibilities set out in the
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides as an
additional ground for termination of parental rights:
11
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant
to the provisions of title 37, chapter 2, part 4; . . . .
Upon our thorough review of the record, we determine that the trial court properly
found clear and convincing evidence demonstrating that Mother had failed to
substantially comply with the reasonable responsibilities set out in the permanency plans.
As the trial court determined, the proof showed that prior to the filing of the termination
petition, Mother had failed to complete alcohol and drug treatment, pass random drug
screens, avoid incarceration, maintain contact with DCS, maintain stable housing or
employment, receive proper mental health treatment, or regularly visit the Child. The
court also noted that DCS made reasonable efforts to assist Mother by attempting to
maintain contact with her, arranging for her alcohol and drug treatment, arranging for her
mental health assessment and treatment, providing a bus pass and other means of
transportation, sending applications to the housing authority, applying for food stamps on
Mother’s behalf, and providing in-home services on two different occasions. Despite
these efforts, Mother failed to appear for her scheduled appointments and failed to
complete the responsibilities required by her plans prior to the filing of the termination
petition. Although DCS offered Mother drug rehabilitation treatment on various
occasions, Mother did not avail herself of those opportunities until 2016.
Similarly, the trial court found that Father had failed to comply with the
reasonable responsibilities of his permanency plans despite efforts to assist by DCS.
Having carefully reviewed the record, we agree. There was no proof that Father had ever
completed drug and alcohol treatment. In addition, Father failed to pass random drug
screens, avoid incarceration, maintain contact with DCS, maintain stable housing and
employment, or regularly visit with the Child. The court found that DCS made
reasonable efforts to assist Father by attempting to maintain contact with him, arranging
for his alcohol and drug assessment, and arranging for his mental health assessment.
Although Father did comply with the mental health assessment, he refused any related
therapy or case management. DCS’s efforts were substantially limited by Father’s
repeated periods of incarceration and his lack of communication with Ms. Arnold.
According to Ms. Arnold, Father would not cooperate with her attempts to
schedule appointments and acted as though he was in denial regarding the serious nature
of the situation. Although Father visited with the Child near the beginning of the custody
period, Father missed more visits than he attended. He eventually ceased contact with
DCS such that visits could not be arranged. Based upon the evidence presented, we
conclude that the trial court properly terminated the parental rights of Mother and Father
based upon clear and convincing evidence of this statutory ground as well.
12
C. Persistence of Conditions Leading to Removal
The trial court determined that the ground of persistence of the conditions leading
to the Child’s removal from Mother’s home had been proven by clear and convincing
evidence. Regarding this statutory ground, Tennessee Code Annotated § 36-1-113(g)(3)
provides:
(3) The child has been removed from the home of the parent or guardian
by order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely
returned to the parent or parents or the guardian or guardians
in the near future; and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable and permanent home . . . .
In its final judgment, the trial court noted that the Child had been removed from
Mother’s custody for a period of more than six months and that the conditions leading to
removal still persisted. The court found little likelihood that the conditions would be
remedied at an early date so that the Child could be returned to Mother’s custody. The
court again noted that prior to the filing of the termination petition, Mother failed to
complete alcohol and drug treatment; pass random drug screens; prevent incarceration;
maintain contact with DCS; or maintain stable housing, stable employment, or regular
visitation with the Child. The court observed that Mother had made no progress on her
permanency plans until 2016.
Having thoroughly reviewed the record in this matter, we agree that the evidence
preponderates in favor of these findings. The Child had been in DCS custody for three
years by the time of the termination trial. Mother made virtually no effort to improve her
circumstances until 2016, despite the fact that her visitation with the Child had been
halted in 2014 until she underwent drug treatment. Before 2016, Mother continued to fail
drug screens and incur criminal charges, and she failed to procure stable housing or
13
employment. By the end of the termination trial in September 2016, Mother was once
again incarcerated.
Although Mother claimed that she planned to make a home with her youngest
child’s alleged father upon her release from jail, Mother presented no definitive proof
regarding her plans. Mother’s lack of progress following three years of efforts by DCS is
indicative of the improbability of Mother’s successfully parenting the Child at an early
date. Furthermore, the Child’s former therapist testified that the Child struggled in his
foster placements because he held out hope that his parents would regain custody. Thus,
continuation of the parent and child relationship greatly diminished the Child’s chances
of early integration into a safe, stable, and permanent home. We determine that the trial
court properly found clear and convincing evidence of persistence of the conditions
leading to the Child’s removal with regard to Mother.
Mother asserts that this ground was improperly applied because she was homeless
at the time of the Child’s removal, such that the Child was not removed from her “home”
as required by the above statutory section. Mother relies on this Court’s opinion in In re
Mickia J., No. E2016-00046-COA-R3-PT, 2016 WL 5210794 (Tenn. Ct. App. Sept. 19,
2016), in support of this argument. We determine Mother’s reliance on Mickia J. to be
misplaced. In Mickia J., the father, whose rights were terminated based on the ground of
persistence of conditions, was incarcerated at the time of the child’s birth, and he
remained incarcerated at the time the child began living with the petitioners at
approximately eleven days old. See id. at *1, *5. Therefore, as this Court explained, the
child “was not removed from Appellant’s custody or home . . . .” See id. at *1. The
Mickia J. Court relied upon this Court’s opinion in In re Maria B.S., No. E2012-01295-
COA-R3-PT, 2013 WL 1304616, at *11 (Tenn. Ct. App. Apr. 1, 2013), wherein the
incarcerated father advanced a similar argument. In Maria B.S., the children had been
removed from their incarcerated mother shortly after birth. See id. at *1.
In both Mickia J. and Maria B.S., this Court determined that the ground of
persistence of conditions was inapplicable without a showing that the children were
removed from the respondent parent’s custody or “home.” See In re Mickia J., 2016 WL
5210794, at *5; In re Maria B.S., 2013 WL 1304616, at *11. Because the respondent
parents in both cases had never had custody of the child(ren) at issue, this Court noted
that the child(ren) could not have been removed from the respondent parents’ homes as
required by the statute. See id. As the Court in Maria B.S. explained: “No one removed
the Children from Father—he never had the Children in the first place.” 2013 WL
1304616, at *11.
By contrast, in the case at bar, it is undisputed that the Child was in Mother’s
custody from the time of his birth until his removal, such that he was clearly removed
14
from her “home.” The fact that Mother was “homeless” and living in a motel does not
alter this analysis. See, e.g., In re Cheyenne E.H., No. M2012-01657-COA-R3-PT, 2013
WL 870658, at *7 (Tenn. Ct. App. Mar. 7, 2013) (affirming the trial court’s
determination that clear and convincing evidence supported the ground of persistence of
the conditions leading to removal of the children when one basis for removal was that the
mother was homeless); In re Ryan B., No. E2008-01257-COA-R3-PT, 2009 WL 211882,
at *1 (Tenn. Ct. App. Jan. 29, 2009) (affirming the trial court’s determination that clear
and convincing evidence supported the ground of persistence of the conditions leading to
removal of the children when one basis for removal was that the parents were homeless).
We therefore determine Mother’s argument in this regard to be unavailing. We
accordingly affirm the trial court’s finding by clear and convincing evidence that the
conditions leading to removal of the Child from Mother’s home persisted.
V. Best Interest of the Child
When at least one ground for termination of parental rights has been established,
as here, the petitioner must then prove by clear and convincing evidence that termination
of the parent’s rights is in the child’s best interest. See White v. Moody, 171 S.W.3d 187,
192 (Tenn. Ct. App. 1994). When a parent has been found to be unfit by the
establishment of a ground for termination, the interests of parent and child diverge, and
the focus shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877.
Furthermore, the best interest of a child must be determined from the child’s perspective
and not the parent’s. White, 171 S.W.3d at 194.
Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
15
(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.
Regarding the best interest analysis in this matter, the trial court found:
The Court finds clear and convincing evidence, pursuant to T.C.A. §
36-1-113(i), that it is in the child’s best interest for termination to be
granted, in that the Respondents, [Mother] and [Father], have failed to
make a lasting adjustment of their circumstances to make it safe and in the
child’s best interest to be placed in their care. This child has lingered in
foster care since June 2013. He is eight (8) years old. He is adoptable and
he needs permanence. He has had enough of the unknown. This unknown
hope that his parents are going to somehow do what they need to do needs
to be out of the picture, so that he can focus on himself and the services can
be clearer for him.
The Court finds clear and convincing evidence, pursuant to T.C.A. §
36-1-113(i), that it is in the child’s best interest for termination to be
16
granted, in that the Respondents, [Mother] and [Father], have failed to
make a lasting adjustment of their circumstances after the state has made
reasonable efforts to help them for such duration of time that lasting
adjustment does not reasonably appear possible.
The Court finds clear and convincing evidence, pursuant to T.C.A. §
36-1-113(i), that it is in the child’s best interest for termination to be
granted, as there is no meaningful relationship between the Respondents,
[Mother] and [Father], and the child. While there is a fondness and there is
some emotional connection, there is no meaningful relationship.
The Court finds clear and convincing evidence, pursuant to T.C.A. §
36-1-113(i), that it is in the child’s best interest for termination to be
granted, in that the Respondents, [Mother] and [Father], have not
maintained contact or regular visitation with the child.
The Court finds clear and convincing evidence, pursuant to T.C.A. §
36-1-113(i), that it is in the child’s best interest for termination to be
granted, as the physical environment of the Respondents’ home is
unhealthy and unsafe due to their ongoing criminal activity and the use of
alcohol or controlled substances, which renders the Respondents
consistently unable to care for the child in a safe and stable manner.
(Paragraph numbering omitted.) Based on our thorough review of the record, we agree
with the trial court’s findings. We further agree that the best interest of the Child
mandate termination of the Mother’s and Father’s parental rights in this matter, based on
an analysis of the proof presented in light of the statutory factors.
Mother and Father both argue that the trial court failed to consider the likelihood
of the Child’s adoption in its best interest analysis. We note, however, that prior to the
foregoing findings relative to the best interest analysis, the trial court also specifically
found in its final order:
The child’s former Omni Community Health in-home therapist,
Brian Stoddard, a licensed professional counselor, testified that he first met
the subject child in 2013 when he worked as a team leader at Omni Visions.
Prior to joining Omni Community Health, Mr. Stoddard became the child’s
Omni Resource Coordinator because he had been so involved with the case
as a team leader. As a Resource Coordinator, Mr. Stoddard was providing
case management services, including making sure that the child gets to his
therapy and doctors’ appointments. He also facilitated the family’s
17
visitation. When he moved to Omni Community Health, Mr. Stoddard
began in-home therapy with the child every week to every other week for
about six (6) months up until he left Omni at the end of March 2016. For
about three (3) months, Mr. Stoddard also did intensive Comprehensive
Child and Family Treatment (CCFT) in the home up to three (3) times each
week.
Mr. Stoddard testified that the child had issues when his inability to
focus and concentrate led to him not understanding what was going on,
which caused him to act out, destroy his room, throw fits at school, and
throw items. Mr. Stoddard opined that the child acted out of impulse, not
necessarily aggression towards somebody in particular. When the child is
not in those moments, the child is very kind, fun to be around, and very
athletic. Mr. Stoddard described the child as an energetic, fun kid. Mr.
Stoddard testified that his therapy services overlapped with those provided
by Nancy Rose, who was working with the child to create a greater ability
to attach and express emotions.
Mr. Stoddard focused his treatment goals around the child’s
diagnosis of ADHD. He believed that if he tried to help the child learn how
to slow down in those moments of anger, the child would be able to more
appropriately process. Further, he and the child had a lot of conversations
on attachment and what it looks like to be a part of a family and care for
people. Mr. Stoddard testified that the child responded well to him, but he
always felt that the child’s medications were not where they needed to be.
There were days when the child did well and days when he was out of
control. Mr. Stoddard testified that the child struggles to trust those around
him, and, as result, that gets in the way of his feeling really emotionally
attached to those that are involved in his case. While Mr. Stoddard believes
the child has attachment issues, he does not believe that the child suffers
from Reactive Attachment Disorder (RAD) because a pre-qualifier for
RAD is no attachment whatsoever at a very young age. For better or worse,
the child had adults in his early infancy years.
***
Mr. Stoddard testified that he believes the child is adoptable, and
that age and maturity will help his behaviors.
***
18
FSW Arnold informed the Court that the child had disrupted his
placement over the summer. His foster parents, [S.] and [A.], reported that
they felt like they were in an abusive relationship, that he was abusing
them. There were multiple attempts to preserve the placement. FSW
Arnold testified that the foster parents were very patient and did everything
they could. She reported that the child was moved from their home on
August 13, 2016. He is now placed in the pre-adoptive home of [Mr. B.]
Since being placed in Mr. [B.’s] home, the child is doing well. He has had
up and down days where he does not want to go to bed. She reported that
the child’s behaviors always stem around [electronic] tablets, especially
when his tablet is taken away. FSW Arnold testified that the child is doing
well in school. His teacher reported that he is at the top of his class in
school. He has had only one (1) behavioral issue. The child continues to
have therapy with Tim Todd, who has reported that [the Child] is not an
engaging child in therapy. Mr. Todd is referring the child back to Nancy
Rose for play therapy. The child also continues to see Dr. Sims for
medication management, and his medication has been adjusted again due to
concerns that the Ritalin was causing aggressive behaviors.
(Paragraph numbering omitted.)
We note that the proof introduced in this matter supports the above findings. Both
Mr. Stoddard and Ms. Arnold testified that the Child was adoptable. Mr. Stoddard
explained that the Child struggled with trusting and bonding to others because of the
trauma he had endured in the past. Mr. Stoddard stated that he believed the Child would
benefit from permanency, as would any child, and that his negative behaviors would
improve with age and greater maturity.
Ms. Arnold testified that the Child was doing well in his latest placement with Mr.
B., which she described as a pre-adoptive home. Ms. Arnold explained that the Child’s
medications were adjusted a few months before the hearing date, which had improved his
behaviors for a period of time. When specifically questioned regarding the Child’s
adoptability, Ms. Arnold replied that she believed the Child could be adopted, explaining
that DCS employed a specialist who would work to fulfill his needs. According to Ms.
Arnold, Mr. B. had previously experienced success parenting children who were older
and “harder” than the Child, and she stressed that Mr. B.’s home was pre-adoptive. Ms.
Arnold further stated: “I really do think Authur’s adoptable, because I think his good
outweighs his bad moments.”
Moreover, William Hobbs, a mental health practitioner for DCS, testified that he
consulted on cases where there existed some type of behavioral problem, as with the
19
Child. Mr. Hobbs explained that approximately eighty children in the region had
advanced-level needs, many of whom were not in adoptive placements. According to
Mr. Hobbs, the Child had “a lot more options” because he was currently in a pre-adoptive
foster home as compared to a group-care home. In summary, all of the evidence
presented supports a determination that the Child is an adoptable child. We determine
the parents’ issue in this regard to be without merit.
Mother and Father likewise argue that the trial court failed to consider the loss of
sibling relationships in its best interest analysis. We note, however, that this issue was
also specifically addressed by the testimony at trial. For example, both Ms. Arnold and
Vivian Squires, the case worker for Omni Visions who facilitated visitation in this matter,
testified that the Child was able to visit with his half-sibling, Aiden, approximately twice
per month. Ms. Arnold testified that she would continue to foster a relationship between
the Child and Aiden even if the parents’ rights were terminated. We therefore determine
this issue also to be without merit. Having carefully considered the record, we determine
that clear and convincing evidence exists that termination of Mother’s and Father’s
parental rights is in the Child’s best interest.
VI. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court terminating the
parental rights of Mother and Father in all respects. Costs on appeal are taxed to the
appellants, Lola R. and Authur D. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the trial court’s judgment and collection of costs
assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
20