In Re: Roderick R.

04/11/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 2, 2018

IN RE RODERICK R. ET AL.

Appeal from the Circuit Court for Sevier County
No. 16-TM-2-II Telford E. Forgety, Jr., Chancellor
___________________________________

No. E2017-01504-COA-R3-PT
___________________________________

This is a termination of parental rights case. Upon the petition of the Tennessee
Department of Children’s Services, the trial court terminated the parental rights of both
the mother and father of two children. Clear and convincing evidence supports each
ground relied upon by the trial court and the trial court’s conclusion that termination of
both parents’ parental rights is in the children’s best interest. Accordingly, we affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT
and THOMAS R. FRIERSON, II, JJ., joined.

Gregory E Bennett, Seymour, Tennessee, for the appellant Rodrick R.

Samantha A McCammon, Sevierville, Tennessee, for the appellant, Elisabeth R.

Herbert H. Slattery, III, Attorney General and Reporter; Brian A. Pierce Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

Robert L. Huddleston, Maryville, Tennessee, Guardian Ad Litem for J.R. and R. R.,
appellees.
OPINION

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In this appeal, we address the termination of the parental rights of Elisabeth R.
(“Mother”) and Roderick R. (“Father”) to their two minor children, J.R. (born January
2010) and R.R. (born July 2008) (together, the “Children).
 Father and Mother met in 2005 when they were both serving on active duty in the
military. In 2010, Mother and Father were married and living in California where Mother
was stationed at Camp Pendleton.1 On April 6, 2010, Father was arrested after bringing
J.R. to the hospital with severe injuries.2 Father pled guilty to three counts of inflicting
serious corporal injury upon J.R., and he was sentenced to serve a total of six years in the
California Department of Corrections where he remained until his release on July 17,
2015. Sometime after the April 6, 2010 incident, Mother filed for divorce. As a result of
the injuries inflicted during the incident that led to Father’s convictions,3 J.R. is
permanently mentally handicapped, mostly wheel-chair bound, and extremely limited in
his ability to speak.

In December 2012, Mother was discharged from the military and moved to
Tennessee with the Children. The Tennessee Department of Children’s Services
(“DCS”) first became involved with the Children in August 2014. Shortly after midnight
on August 6, 2014, Sergeant Rebecca Cowan of the Sevierville Police Department was
dispatched to Mother’s apartment building in response to a noise complaint. Sergeant
Cowan testified that when she arrived, Mother was outside in the parking lot, and she was
talking to a ball, which she addressed as her “happy ball.” Mother appeared disoriented
and was not wearing shoes. When Sergeant Cowan approached Mother, she began yelling
at the officer and attempted to run away. Based upon Mother’s behavior, Sergeant
Cowan testified that she decided to arrest Mother for disorderly conduct.4 Once Mother
was in the patrol car and had been informed that she would be going to jail, Mother told
the officer that she could not leave because the Children were in her apartment alone.
According to Sergeant Cowan, Mother refused to provide information identifying a
possible relative or friend to temporarily take care of the Children. Mother continued to
behave erratically, and Sergeant Cowan decided to call EMS rather than taking Mother
directly to jail. EMS directed the officer to bring Mother to the hospital for further
evaluation, and DCS took the Children into custody.

1
It is not clear from the record whether Mother and Father wed before or after the birth of their
first child. Father appears on R.R.’s birth certificate as well as J.R.’s birth certificate, and paternity is not
an issue in this appeal.
2
Father acknowledges that J.R. was diagnosed with shaken baby syndrome, but Father testified at
trial that he caused J.R.’s injuries accidently by dropping J.R. down the stairs.
3
Mother testified that J.R. sustained a double brain hemorrhage, three fractured ribs, a fractured
clavicle, spiral fractures on his ribs, facial bruising, and a fractured mandible.
4
Sergeant Cowan testified that Mother violently resisted arrest. Mother’s repeated attempts to
kick the officer were recorded on the patrol car’s video recorder and made an exhibit in these
proceedings.

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 On August 7, 2014, DCS filed a “Petition for Temporary Legal Custody and Ex
Parte Order,” seeking temporary custody and requesting that the trial court adjudicate the
Children to be dependent and neglected. The petition averred that Mother remained
under observation due to mental health concerns, but DCS had not yet been able to get in
touch with Mother. On August 8, 2014, the trial court entered an emergency protective
custody order, appointed a guardian ad litem for the Children, and set a preliminary
hearing date for August 20, 2014. Mother did not appear at the preliminary hearing,5 but
she was represented by counsel. The trial court found probable cause that the Children
were dependent and neglected and determined that the Children would remain in DCS’s
custody pending the adjudicatory hearing scheduled to take place on October 29, 2014.

On October 29, 2014, an adjudicatory hearing was held.6 Mother appeared at the
hearing and stipulated that she had “ongoing mental health concerns associated with
PTSD from military service.” The trial court adjudicated the Children to be dependent
and neglected and ratified the permanency plan submitted by DCS with the permanency
goals of “return to parent” or “exit custody to relative.”

Mother participated in the development of the initial permanency plan. Among
other things, the permanency plan directed Mother to “identify and address all mental
health needs [by taking the following steps]: . . . (1) [Mother] will schedule a mental
health assessment with a parenting component at the VA; (2) [Mother] will sign a release
5
We have explained the differences between a preliminary hearing, an adjudicatory hearing, and
a dispositional hearing in juvenile court proceedings as follows:

The statutes and rules governing procedure in the trial courts provide for three types of
hearings in cases where a child is alleged to be dependent, neglected, or abused: (1)
preliminary hearings; (2) adjudicatory hearings; and (3) dispositional hearings. The
function of the adjudicatory hearing is to determine whether the allegations of
dependency, neglect, or abuse are true. The Tennessee Rules of Evidence apply, and the
trial court’s finding that a child is dependent, neglected, or abused must be based on clear
and convincing evidence. The purpose of the dispositional hearing, which follows the
adjudicatory hearing, is to determine the proper placement for a child who has been
found to be dependent, neglected, or abused.

As its name implies, a preliminary hearing occurs prior to both the adjudicatory hearing
and the dispositional hearing. Its function is to allow the trial court to decide whether the
child should be removed from the parent’s custody pending the adjudicatory hearing.
The trial court is allowed to consider reliable hearsay in making its decision, and it can
order the child removed from the parent’s custody based on a finding of “probable cause”
that the child is a dependent, neglected, or abused child.

In re Audrey S., 182 S.W.3d 838, 874–75 (Tenn. Ct. App. 2005) (internal citations omitted).
6
Father remained incarcerated in October 2014, but the record indicates that DCS mailed him a
copy of the permanency plan. Father also received a summons to the dispositional hearing set for January
15, 2015.
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with the VA for DCS to obtain a copy of the assessment and any recommendations; (3)
[Mother] will follow all recommendations from the assessment.” The permanency plan
also directed Mother to maintain safe and suitable housing, provide proof of legal
income, and attend all of the Children’s doctor’s appointments.

On January 15, 2015, a dispositional hearing was held. The trial court judge
entered a no-contact order against Father. The trial court also found that Mother was
making progress, but it determined that visitation would remain supervised. A letter from
a clinical psychologist employed by the VA was filed with the trial court on January 15,
2015. The letter indicated that Mother was participating in counseling for her PTSD and
taking her medications as prescribed.

On March 6, 2015, Mother participated in the development of a second
permanency plan. On March 25, 2015, a permanency plan hearing was held, and the trial
court entered an order titled “Permanency Hearing Order and Adjudication (adverse to
Father),” which ratified the second permanency plan. The order also stated:

[p]rogress toward resolving the reasons the [children are] in foster care has
been made but the following barriers still exist: Mother has to eliminate
safety concerns from the home, namely 1) secure firearms, 2) obtain
suitable beds; and 3) declutter the household.

The court also noted that DCS was assisting Mother to achieve the permanency plan
goals by making home visits to Mother’s home and supervising those visits.

A third permanency plan was created on August 7, 2015, shortly before the trial
court approved a trial home placement. The permanency plan directed Mother to continue
taking her medications as prescribed and attending her weekly support group for PTSD.
Because Mother appeared to be making progress towards the permanency goals, on
September 9, 2015, the Children were returned to Mother’s physical custody for a ninety-
day trial home placement. DCS retained legal custody.

On November 23, 2015, DCS filed a “Motion and Notice Disrupting Trial Home
Placement.” The motion averred that events occurring on November 20, 2015 had
compelled DCS to disrupt the trial home placement and return the Children to foster care.
Specifically, DCS reported that Mother had displayed bizarre behavior in public which
had led to her detention by military police, arrest, and involuntary commitment to a VA
hospital. The motion explained that, “prior to [Mother’s] arrest, [she] was observed at a
mall in Knoxville acting erratically. [Mother] was seen speaking to a cat (as though it was
a person); attempting to drag the cat by a leash—clearly choking the cat.” The motion
also reported that Mother had refused to allow DCS personnel to enter Mother’s
apartment to retrieve necessary medication and medical supplies for J.R. during her
hospitalization.
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 On January 13, 2016, a hearing was held and the trial court entered a “Permanency
Hearing Order and Preliminary Hearing on Disruption of Trial Home Placement.” Once
again, the trial court ordered Mother to execute a release form so that DCS could access
her VA medical and mental health records. The trial court also added the permanency
goal of “adoption” and removed the permanency goal of “return to parent” from the
permanency plan. Mother objected to the permanency goal changes and continued to
refuse to sign the necessary medical releases.

After a hearing on March 2, 2016, the trial court entered an “Adjudicatory Order
on Disruption of Trial Home Placement.” Mother stipulated that the trial home
placement disruption was for just cause, and the Children were returned to foster care.
Once more, the trial court ordered Mother to sign the necessary medical release forms so
that DCS could obtain her health records from the VA. Eventually, Mother executed the
release forms, but DCS was unable to obtain the VA records until November 2016.7

On March 3, 2016, DCS filed a petition to terminate Mother and Father’s parental
rights on multiple grounds. DCS retained a licensed clinical psychologist, Dr. Shannon
Wilson, and sought to have Mother evaluated prior to trial. On July 14, 2016, the trial
court entered an order titled, “Motion and Order to Allow Access to Records and Comply
with Psychological Evaluation.” Mother was ordered to cooperate with Dr. Wilson in the
evaluation and to sign all necessary releases so that Dr. Wilson could access her records.
Mother was evaluated by Dr. Wilson over three days in September and October of 2016;
however, Dr. Wilson testified that she was never provided Mother’s VA records.

Hearings were held on February 9, 2017 and May 24, 2017. Three DCS employees
testified at the hearings: Seth Gilliam, Lynn Eggers-Bentley, and Jan Gardner. Mother,
Father,8 Sergeant Cowan, and Ronald C., Mother’s character witness, also testified. DCS
also submitted the depositional testimony of Dr. Wilson. The trial court did not credit
Mother’s testimony; however, the court placed “great weight” on the opinion of Dr.
Wilson.

Dr. Wilson testified that Mother’s testing revealed she “appears to be rather
emotionally unstable and may behave in negative, unpredictable, and aggressive ways.”
Dr. Wilson found that Mother exhibited hostility and mistrust towards authority figures,
and she was unwilling to admit to the existence of her problems. Dr. Wilson’s analysis
indicated that Mother exhibited several symptoms associated with post-traumatic stress
disorder (PTSD), paranoid personality disorder, borderline personality disorder, and
7
At trial in May 2017, Mother admitted that, despite the court’s orders, she had revoked her
release of the records in March or April of 2017 so that DCS could not obtain additional records before
trial.
8
Father was not present at either of the hearing dates, but he testified over the phone from
California at both.
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narcissistic personality. Ultimately, Dr. Wilson opined that she was confident Mother’s
mental impairments rendered her unable to serve as the Children’s caregiver.

On June 28, 2017, the trial court entered an order terminating Mother’s parental
rights on the grounds of mental incompetence, abandonment by failure to establish a
suitable home, and persistence of the conditions that led to the Children’s removal. The
trial court terminated Father’s parental rights on the grounds of severe abuse and
incarceration for child abuse with a sentence of two years or more. The trial court also
concluded that there was clear and convincing evidence that termination of both parents’
rights would be in the Children’s best interest. Mother and Father timely appealed.

ISSUES PRESENTED

Mother presents four issues for our review, which we have restated as follows:

1. Whether the trial court erred in terminating Mother’s parental
rights based upon the statutory ground of mental incompetence.

2. Whether the trial court erred in terminating Mother’s parental
rights based upon the statutory ground of persistence of conditions.

3. Whether the trial court erred in terminating Mother’s parental
rights based upon the statutory ground of abandonment by failure to
establish a suitable home.

4. Whether the trial court erred in determining that termination of
Mother’s parental rights is in the best interest of the Children.

Father presents three issues for our review, which we have restated as follows:

1. Whether the trial court erred in terminating Father’s parental
rights based upon the statutory ground of severe child abuse.

2. Whether the trial court erred in terminating Father’s parental
rights based upon the statutory ground of imprisonment with a sentence of
two years or more for abusive conduct against a child.

3. Whether the trial court erred in determining that clear and
convincing evidence supports DCS’s position that termination of Father’s
parental rights is in the best interest of the Children.

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 STANDARD OF REVIEW IN TERMINATION PROCEEDINGS

Both the Tennessee and United States Constitutions protect a parent’s fundamental
liberty interest in the care, custody, and control of his or her children. Stanley v. Illinois,
405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996);
In re Navada N., 498 S.W.3d 579, 590 (Tenn. Ct. App. May 23, 2016) (citations
omitted). However, a parent’s rights are not absolute, and the State, as parens patriae,
has the authority to interfere when a compelling interest exists to prevent serious harm to
a child. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)).

By setting forth specific grounds upon which termination proceedings may be
initiated, our termination statutes identify the circumstances which indicate that the
State’s compelling interest in the welfare of a child may justify termination of a parent’s
constitutionally protected rights. In re Navada N., 498 S.W.3d at 590. Thus, when DCS
seeks to terminate a biological parent’s rights to his or her child, it must prove two things.
In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. Nov. 7, 2005). First, DCS must
prove the existence of at least one of the statutory grounds for termination. Tenn. Code
Ann. § 36-1-113(c)(1); In re Audrey S., 182 S.W.3d at 860. Second, DCS must prove that
termination of the biological parent’s rights is in the child’s best interest. Tenn. Code
Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860.

“No civil action carries with it graver consequences than a petition to sever family
ties irretrievably and forever.” In re Audrey S., 182 S.W.3d at 860 (citation omitted). In
light of these profound repercussions, Tennessee courts impose a heightened standard of
proof—clear and convincing evidence—in the biological parent’s favor. See Tenn. Code
Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016). Both the
grounds for termination and the best-interest conclusion must be established by clear and
convincing evidence. See In re Carrington H., 483 S.W.3d at 523 (“The best interest
analysis is separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.”); In re Navada N., 498 S.W.3d at 590.
“These requirements ensure that each parent receives the constitutionally required
‘individualized determination that a parent is either unfit or will cause substantial harm to
his or her child before the fundamental right to the care and custody of the child can be
taken away.’” In re Carrington H., 483 S.W.3d at 523 (quoting In re Swanson, 2 S.W.3d
180, 188 (Tenn. 1999)). Clear and convincing evidence “establishes that the truth of the
facts asserted is highly probable . . . and eliminates any serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” Id. (quoting In re M.J.B.,
140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)). “Such evidence ‘produces in a fact-finder’s
mind a firm belief or conviction regarding the truth of the facts sought to be
established.’” Id.

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 The heightened burden of proof in termination of parental rights cases also
requires this Court to adapt the customary standard of review that we typically apply in
an appeal from a bench trial. See Tenn. R. App. P. 13(d); In re Audrey S., 182 S.W.3d at
861. First, we must review the trial court’s factual findings de novo on the record,
presuming the trial court’s factual findings to be correct. See Tenn. R. App. P. 13(d); In
re Audrey S., 182 S.W.3d at 861. “Second, we must determine whether the facts either as
found by the trial court or as supported by the preponderance of the evidence, clearly and
convincingly establish the elements required to terminate a biological parent’s parental
rights.” See In re Audrey S., 182 S.W.3d at 861 (citations omitted).

Because a trial court judge is able to observe the witnesses, their manner, and their
demeanor when testifying, the trial judge is far better situated than we are to make
credibility determinations. In re Navada N., 498 S.W.3d at 591 (citations omitted).
Accordingly, when the resolution of an issue in a case depends upon the truthfulness of
witnesses, great weight, faith, and credit is afforded to a trial judge’s determinations. Id.

DISCUSSION

I. TERMINATION OF MOTHER’S PARENTAL RIGHTS

The trial court terminated Mother’s parental rights based upon the grounds of
parental mental incompetence, persistence of the conditions that necessitated the
Children’s removal, and abandonment by failure to provide a suitable home. The trial
court also concluded that termination of Mother’s rights is in the Children’s best interest.
Mother has appealed the trial court’s findings as to each ground as well as the trial court’s
best-interest determination.

Although only one ground must be proven by clear and convincing evidence in
order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this
Court to conduct our own review of the record to determine whether clear and convincing
evidence supports each ground relied upon by the trial court. See In re Carrington, 483
S.W.3d at 523; In re M.L.P., 228 S.W.3d 139, 144 (Tenn. Ct. App. 2007) (“As long as
one statutory ground for termination is established by the facts in [the] case and
termination is in the best interest of the [child], the trial court’s decision will be
sufficiently supported.”) We will review all three of the foregoing grounds relied upon by
the trial court to determine if at least one statutory ground is established, and if so,
whether clear and convincing evidence supports termination of Mother’s parental rights.

A. Grounds for Termination

1. Mental Incompetence

The ground of parental mental incompetence is found at Tennessee Code
Annotated section 36-1-113(g)(8), which provides:
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 (B) 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;

(C) In the circumstances described under subdivisions (8)(A) and (B), no
willfulness in the failure of the parent or guardian to establish the parent’s or guardian’s
ability to care for the child need be shown to establish that the parental or guardianship
rights should be terminated[.]

As the statute makes clear, DCS bore the burden to establish both that Mother is
presently unable to care for the Children and that it is unlikely that Mother will be able to
assume the care of and responsibility for the Children in the near future because of her
mental impairment. See Tenn. Code Ann. § 36-1-113(g)(8). In relying on this ground for
termination, the trial court pointed out that Mother has been hospitalized and arrested due
to her mental illnesses and aberrant behavior on several occasions. The court stated that
“there’s no question of [Mother’s] mental illness . . . the record is replete with evidence
of her significant diagnoses: post-traumatic stress syndrome, bipolar [disorder] . . .
depression.” In support of its conclusion, the trial court made the following additional
findings:

After that trial home placement was disrupted due to [M]other’s bizarre and
inappropriate behavior, [M]other was confined again to a facility for
treatment related to her mental illness. Since the disruption of the trial
home placement, however; [M]other has continued to make decisions,
which call her parenting into question: she has been in relationships with
abusive men, at least one, and she has conceived another child with a
registered sex offender. That child was born in February 2017. Mother says
she discovered he was a registered sex offender in March, 2016 and moved
out from his home a couple of months after that. But [DCS] filed its
Petition to Terminate Parental Rights on March 3, 2016. In other words,
[M]other continued residing with [the registered sex offender] even after
she was aware that DCS was calling her competency into question.

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 Having carefully reviewed the record, we have determined that clear and
convincing evidence supports termination of Mother’s parental rights based upon her
parental mental incompetence. As mentioned above, the trial court did not credit
Mother’s testimony, and placed “great weight” on the opinion of Dr. Wilson.9 Because
Mother was a live witness, we give significant deference to the trial court’s determination
that Mother lacks credibility. See In re Navada N., 488 S.W.3d at 591. We also find Dr.
Wilson’s expert testimony persuasive. Dr. Wilson opined that Mother’s “extremely
variable and unpredictable” functioning rendered her unable to provide the predictability
and stability that the Children need from their caregiver. In particular, Dr. Wilson
expressed concern about Mother’s prospects of parenting J.R. because he is non-verbal
and would not be able to seek help if “things got really bad at home” or if Mother was not
taking care of his basic daily needs.

Mother’s own testimony reflected that her mental condition has rendered her
unsuitable to serve as a caregiver to the Children. For example, Mother acknowledges
that she has mental health problems, but “disagrees” with her diagnosis of bipolar
disorder and believes her psychiatrist “overmedicated” her for two-and-a-half years
during these proceedings. At trial, Mother testified that she has always taken her
medication as prescribed and has never failed to follow through with her treatment
recommendations; however, her VA records indicate that Mother told medical personnel
on multiple occasions that she had not been taking her medication as prescribed.
Moreover, a DCS case worker testified that Mother told her she was not taking her
medications. Mother’s failure to adhere to her treatment as directed by her doctors and
her attempts to conceal her failure to the court indicate that she is not presently able and
likely would never be able to care for the Children in a responsible manner.

Mother’s history of bad judgment and precarious living situations also
demonstrate her irresponsibility as a parent. Mother testified that Father physically
abused her “thirty to forty times” beginning during her first pregnancy with R.R. She
testified that she obtained an order of protection for herself in 2008, but failed to include
the Children on the order of protection or take steps to protect the Children from Father,
who eventually caused J.R.’s severe disabilities. Her testimony indicated that she is still
unable to appreciate or acknowledge her role in allowing Father to injure J.R.

As reflected by the trial court’s findings, Mother continued to exhibit poor
judgment with respect to her living arrangements throughout these proceedings. Mother
testified that her live-in boyfriend, Joshua F., became abusive approximately four months
into their relationship which began in September 2014. However, Mother continued to
reside with her alleged abuser until May 2015. Mother also testified that she continued to
reside with another boyfriend, Matthew C., for several months after he informed her in

9
Mother did not offer countervailing expert testimony.
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February of 2016 of his status as a registered sex offender.10 Mother gave birth to
Matthew C.’s child in February 2017, and she admits that she attempted to hide her
pregnancy from DCS personnel. At trial, when Mother was questioned concerning the
depth of her knowledge of Matthew C.’s status as a sex offender, Mother abruptly got out
of the witness stand and ran out of the court room.

In addition to establishing that Mother is presently unable to care for the Children,
the record also reveals clear and convincing evidence that it is unlikely that Mother will
be able to care for the Children in the future. When questioned by DCS’s attorney about
the prognosis of Mother’s mental impairments, Dr. Wilson opined:

A: [S]he is extremely resistant to admitting any psychological problems or
functional shortcomings (often to the point that she is blatantly dishonest
about their existence), and is very suspicious of those who might be helpful
to her during the process of overcoming these issues. As a result, it is
unlikely that she will be able to make significant and lasting changes in her
functioning that would be necessary in order for her to be an appropriate
and reliable caregiver for her children.

Q: Doctor, can you state, as an expert in your field, within a reasonable
degree of scientific certainty, that [Mother] is significantly impaired and
incompetent to such a degree that she is not able to parent these children?

A: Based on what I’ve been able to review during the course of this
evaluation, yes.

When Dr. Wilson was questioned by the Children’s guardian ad litem, the following
exchange occurred:

Q: Did [Mother] exhibit remorse about anything that’s happened with
anything—in any of her discussions with you?

A: No. She—her responses—in order for someone to feel remorseful, they
need to first understand that they have a degree of responsibility in what
happened, and I really don’t think she’s there. She had a lot of reasons for
what happened, none of which involved her making a mistake.

Furthermore, Mother’s behavior surrounding her November 2015 hospitalization
serves as compelling evidence of her continued parental mental incompetence. Her VA
records indicate that on November 20, 2015, Mother arrived at the VA hospital with her
cat, a loaded gun, a knife, and mace, and informed medical personnel that she had not

10
Matthew C. was convicted of sexual battery.
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been taking her medications or sleeping during the past week (while the Children were in
her physical custody). Mr. Gilliam, the Children’s family case manager at the time,
testified that Mother did not inform him she was being detained at the hospital, and
employees of the Children’s school were compelled to contact him when no one arrived
to pick them up. After Mr. Gilliam called several VA hospitals and eventually located
Mother, Mr. Gilliam testified that Mother acted like her hospitalization was “not a big
deal” and asked him when she could pick up the Children from him. Mother also
reported to hospital personnel that she had been experiencing “sporadic” homicidal
ideation and using alcohol during the trial home placement. Despite the gravity of these
reports, at trial Mother refused to admit she had failed to take her medications as
prescribed and blamed the disruption of the trial home placement on the Children’s
school for calling DCS instead of Mother’s friend.

Mother’s continued refusal to acknowledge her poor judgment and the severity of
her mental problems demonstrates that it is unlikely she will be able to remedy these
problems in a way that would allow her to serve as a caregiver to the Children at this time
or in the foreseeable future. Accordingly, we hold that clear and convincing evidence
supports termination of Mother’s parental rights on the ground of parental mental
incompetence.11

2. Persistence of Conditions

Termination based upon the ground of persistence of conditions requires the trial
court to find, by clear and convincing evidence, that:

(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;

11
Relying on In re Keishael N.E., No. M2012-01108-COA-R3PT, 2013 WL 440061, at *6 (Tenn.
Ct. App. Feb. 4, 2013), Mother argues that the trial court erred in terminating Mother’s rights on this
ground because DCS failed to make “reasonable efforts” to assist her in obtaining mental health
treatment. As discussed in greater detail below, we disagree with Mother’s characterization of DCS’s
efforts to assist her in this case. Moreover, the Supreme Court has expressly ruled that “reasonable
efforts” are not an element that must be proved to terminate a parent’s rights on every ground; although,
the efforts of DCS may factor into the best interest analysis. In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn.
2015) (“[W]e hold that, in a termination proceeding, the extent of DCS’s efforts to reunify the family is
weighed in the court’s best interest analysis, but proof of reasonable efforts is not a precondition to
termination of the parental rights of the respondent parent.”)

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 (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[.]

Tenn. Code Ann. § 36-1-113(g)(3).

“A parent’s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the
parent’s care.” In re Navada N., 498 S.W.3d at 605 (quoting In re A.R., No. W2008-
00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008)). When
“efforts to provide help to improve the parenting ability, 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.” Id. (quoting In re T.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at
*6 (Tenn. Ct. App. July 13, 2000)). The purpose behind this ground in termination
proceedings “is to prevent the child’s lingering in the uncertain status of foster child if the
parent cannot within a reasonable time demonstrate an ability to provide a safe and caring
environment for the child.” Id. (quoting In re A.R., 2008 WL 4613576, at *20).

In concluding that DCS established the ground of persistence of conditions by
clear and convincing evidence, the trial court relied on the evidence of Mother’s
instability and pattern of erratic behavior. Specifically, the trial court made the following
findings:

The conditions that led to the removal still persist: on or about November
19, 2015 Mother was experiencing a psychotic episode where she was
detained by military police. She was found to be dragging a cat around a
mall and speaking with the cat. Mother’s mental incompetence, i.e. her
inability to safely parent these children is the condition that persists in this
matter. AND/OR [sic] Other conditions in the home exists that, in all
reasonable probability, would lead to further neglect or abuse of the
children: As has already been discussed, mother’s housing has been
precarious. She has moved to several different residences throughout the
children’s stay in foster care. Mother has resided with a man who was
abusive and another boyfriend is on the sex offender registry. There is no
way that these children could reside with her under those circumstances. At
the February 9, 2017 hearing, [DCS] presented its concerns about mother’s
housing and unsafe conditions associated with a fire escape. Mother took
almost three months to remedy that from that February 9, 2017 hearing
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 date, and did not make [DCS] aware of her changed circumstances until
almost immediately preceding the May 24, 2017 hearing. Continuation of
the parent/child relationship greatly diminishes the children’s chances of
being placed into a safe, stable, and permanent home.

After carefully reviewing the record, we have concluded that clear and convincing
evidence supports termination of Mother’s parental rights based upon the ground of
persistence of conditions. Six months has clearly passed since the Children’s initial
removal from Mother’s home.12 The condition, i.e. Mother’s mental instability, that
necessitated the Children’s removal from Mother’s custody and prevents their safe return
clearly persists. As discussed in detail above, Dr. Wilson’s opinion serves as compelling
evidence that Mother is presently unable to responsibly parent the Children and will
likely never be able to do so because of her mental illness and prognosis. Although
Mother testified that she has pursued mental health treatment through the VA since 2012,
she has not demonstrated that her parenting skills have improved or will likely improve in
the near future, even with additional support.

Mother’s lack of progress in improving her parenting abilities is exacerbated by
her steadfast refusal to recognize her own shortcomings and tendency to place blame on
others. Likewise, Mother continues to insist on downplaying the severity of her mental
illness and the effects on the Children. For example, on the evening of August 6, 2014,
when Mother was detained and hospitalized, Sergeant Cowan testified that she repeatedly
asked Mother to provide information concerning the Children’s location, identity, and a
possible relative to come and get the Children. Even though the Children were alone and
Mother had been informed that she was being arrested, Mother refused to provide any
information concerning the Children’s whereabouts, and the officer was only able to
identify and locate the Children with the assistance of a neighbor. In November 2015,
when Mother was hospitalized following the disruption of the trial home placement, she
refused to give her landlord permission to allow Mr. Gilliam to access her apartment to
retrieve J.R.’s gait trainer, medication, and leg braces. Mr. Gilliam testified that Mother
refused to do so because she said “she didn’t feel like the children would be out of her
care long enough for it to really matter.”

This record supports that Mother is unable to provide the stable, loving home
environment the Children deserve. The continuation of Mother’s involvement in their
lives greatly diminishes their chances of integration into a safe and permanent home.
Because there is no evidence that Mother has corrected the conditions that led to the
Children’s removal or that she has the ability to do so in the near future, we have
12
The Children were removed on August 6, 2014 because Mother had to be hospitalized due to
mental health concerns of the police. The Children were adjudicated to be dependent and neglected on
October 28, 2014. The petition to terminate Mother’s parental rights was filed in March of 2016, nearly
nineteen months after the Children’s initial removal from Mother’s legal custody.

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determined that termination of her parental rights is supported by clear and convincing
evidence of persistent conditions.

3. Abandonment by Failure to Establish a Suitable Home

A parent’s rights may be terminated if he or she has “abandoned” his or her child. Tenn.
Code Ann. § 36-1-113(g)(1). The General Assembly has provided “five alternative
definitions for abandonment as a ground for the termination of parental rights.” In re
Isabella G., No. M2016-02105-COA-R3-PT, 2017 WL 4407816, at *5 (Tenn. Ct. App.
Aug. 22, 2017) (quoting In re Audrey S., 182 S.W.3d at 863; Tenn. Code Ann. § 36-1-
102(1)(A)). The second statutory definition of abandonment provides that a parent may
abandon his or her child by failing to provide a suitable home. See Tenn. Code Ann. § 36-
1-102(1)(A)(ii).

Under this ground, it is important to recognize that “a ‘suitable home’ means more
than just adequate physical space.” In re Saliace P., No. W2015-01191-COA-R3-PT,
2016 WL 304543, at *6 (Tenn. Ct. App. Jan. 26, 2016) (citations omitted). For example,
a suitable home requires that the home be free from drugs and domestic violence. In re
Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL 7243674, at *9 (Tenn. Ct. App.
Sept. 20, 2016) (citing In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL
2587397, at *9 (Tenn. Ct. App. June 10, 2014)). In this context, “suitable home” means a
safe and stable environment in which a child can live in the presence of a caregiver who
can supply the care and attention a child needs. In re Saliace P., 2016 WL 304543, at *6
(citing In re Malaki E., No. M2014-01182-COA-R3-PT, 2015 WL 1384652, at *9 (Tenn.
Ct. App. Mar. 23, 2015)).

The trial court made the following findings in support of its termination of
Mother’s parental rights as to this ground:

The Trial Court adjudicated the children dependent and neglected and
placed them in DCS custody, pursuant to a petition filed in the Trial Court,
after they were removed from Respondent’s home on August 6, 2014.
[DCS] could not make reasonable efforts to prevent removal due to the
children’s circumstances. In the nineteen (19) months since the removal,
[DCS] has made reasonable efforts to assist the Respondent to establish a
suitable home for the children by doing the following: the case manager
and/or [DCS’s] contract agency facilitated visitation for the mother; the
case managers invited [Mother] to numerous child and family team
meetings; Lynn Eggers-Bentley the prior case manager conducted home
visits of [Mother’s] home in advance of the trial home placement; [DCS’s]
contract agency and this case manager included [Mother] in doctor’s
appointments and various therapies for the boys (physical therapy,
occupational therapy, and speech therapy); [DCS] has included [Mother] in
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 IEP meetings for R.R.[.] In an attempt to make the children whole, [DCS]
has provided for the children’s extensive medical and therapeutic needs.

Clear and convincing evidence supports the trial court’s conclusion that Mother failed to
provide a suitable home for the Children. As discussed above, Mother’s living
arrangements have been precarious throughout these proceedings. Mother testified that
after her hospitalization in August 2014, she moved in with her boyfriend Joshua F.
Mother resided with Joshua F. until approximately May 2015, but the couple broke up
because Joshua F. allegedly became abusive. Although Mother’s testimony was
somewhat unclear, the record indicates that she moved in and out of friends’ homes over
the course of the next couple of years, but allegedly had her own apartment during some
periods. Mother testified that from February 2016 to April 2016 she resided with another
boyfriend Matthew C. but moved out after discovering that Matthew C. is a registered sex
offender. However, the testimony also indicated that Mother and Matthew C. conceived
a child at some point after he informed her of his sex offender status. Mr. Gilliam
testified that Mother may have purposefully rendered herself homeless at one point after
the Children were removed from her custody. Specifically, Mr. Gilliam testified that
Mother told him she was living out of her car voluntarily, in an attempt to make herself
eligible for certain VA benefits available to homeless veterans; however, Mother denied
making these statements. In addition to Mother’s unacceptable choices in living
arrangements, her mental illness has rendered her unable to provide a stable, safe home
for the Children. Despite any efforts made by Mother, it is clear from the record that she
has not created a suitable home environment for the Children.

However, our analysis with respect to this ground requires more than a
determination that Mother failed to provide a suitable home. Although not all grounds for
termination require a showing of “reasonable efforts” by DCS, the ground of
abandonment by failure to provide a suitable home expressly does require DCS to
demonstrate that “for a period of four (4) months following the removal, the department
or agency has made reasonable efforts to assist the parent[.]” Tenn. Code Ann. § 36-1-
102(1)(A)(ii) (emphasis added);13 In re Kaliyah S., 455 S.W.3d 533, 555 n.32 (Tenn.

13
Our review of the case law has revealed that previous appellate decisions have had differing
interpretations of the meaning of the “four month/reasonable efforts” requirement of this ground. See
Tenn. Code Ann. § 36-1-102(1)(A)(ii) (requiring DCS to establish “for a period of four (4) months
following the removal, the department or agency has made reasonable efforts to assist the parent or
parents”). In some cases, this Court has held that DCS must establish that it made reasonable efforts in
the four month period immediately following the child’s removal from his or her parent’s custody. See
In re Aaralyn O., No. W2017-01411-COA-R3-PT, 2018 WL 468246, at *6 (Tenn. Ct. App. Jan. 18,
2018) ([T]his Court is limited to considering DCS’s reasonable efforts for a period of four months
immediately following the children’s removal from the home.”); In re Isabella G., No. M2016-02105-
COA-R3-PT, 2017 WL 4407816, at *5 (Tenn. Ct. App. Aug. 22, 2017). However, this Court has also
held that DCS may meet this requirement if it establishes that reasonable efforts were made during any
four month period following a child’s removal. In re Jakob O., No. M2016-00391-COA-R3-PT, 2016
WL 7243674, at *13 (Tenn. Ct. App. Sep. 20, 2016) (“According to the ordinary meaning of the statute, .
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2015) (“[P]roof of reasonable efforts is required to prove the ground of abandonment by
failure to provide a suitable home.”); In re Aaralyn O., No. W2017-01411-COA-R3-PT,
2018 WL 468246, at *6 (Tenn. Ct. App. Jan. 18, 2018). “Reasonable efforts” are
statutorily defined as the “exercise of reasonable care and diligence by the department to
provide services related to meeting the needs of the child and the family . . . [t]o make it
possible for a child to safely return to the child’s home.” Tenn. Code Ann. § 37-1-166(g).
Specifically, the statute requires DCS to prove three elements with respect to a four-
month period: “(1) the parent has failed to make reasonable efforts to provide a suitable
home, (2) DCS has ‘made reasonable efforts to assist the parent ... to establish a suitable
home,’ and (3) the parent has ‘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.’” In re Quintin S., No. E2016-02150-COA-R3-PT, 2017 WL
2984193, at *13 (Tenn. Ct. App. May 1, 2017) (quoting Tenn. Code Ann. § 36–1–
102(1)(A)(ii)). However, DCS does not have to exhibit that it made “herculean” efforts.
Id. (quoting In re Isobel V.O., No. M2012-00150-COA-R3-PT, 2012 WL 5471423, at *8
(Tenn. Ct. App. Nov. 8, 2012)).

On appeal, Mother avers that she has obtained suitable housing for the boys.
Moreover, Mother argues that DCS did not make reasonable efforts, and “DCS should
have taken affirmative steps to assist [Mother] with her mental health needs as this was
the crux of the initial removal and disruption, and a continuing concern as noted
throughout the record.” According to Mother, DCS should not have relied on Mother to
provide information regarding her mental health treatment and should have “set up
mental health treatment prior to filing the petition to terminate parental rights.”

In holding that DCS had proved this ground by clear and convincing evidence, the
trial court described DCS’s efforts as “heroic.” Our review of the record likewise
supports termination of Mother’s parental rights on this ground. Following the removal of
the Children, DCS attempted to assist Mother for well over a year before filing the
petition to terminate her parental rights. Ms. Eggers-Bentley, the DCS case worker
assigned to Mother’s case from December of 2015 to May 2015, testified that among
other efforts, she took the following actions to assist Mother: applied for funding and

. . the proof necessary to support termination under this ground need not be limited to any particular four-
month period after removal. As long as the proof relates to ‘a period of four (4) months following the
removal.’”); State, Dep’t of Children’s Servs. v. V.E.F., No. M2008-01514-COA-R3-PT, 2009 WL
605146, at *4 (Tenn. Ct. App. Mar. 9, 2009).
We have determined that a plain reading of the statute indicates that DCS may establish this
ground by offering proof of reasonable efforts during any four-month period following a child’s
removal for two reasons. First, the statute lacks the word “immediately,” or any other word indicating
such a restriction was intended by the legislature. Second, the statute states that DCS must establish that it
assisted the parent for “a period” of four months—not “the period” of four months following a child’s
removal.

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provided Mother with access to a parenting assessment; paid for a “very expensive”
custom bed for J.R.; visited Mother’s residence monthly; made recommendations as to
how Mother could make her home suitable for the Children;14 and invited Mother to all
family team meetings, foster care meetings, and permanency plan meetings.

Mother now avers that DCS’s efforts were not “reasonable” because DCS failed to
assist her in obtaining additional mental health treatment. However, Mother’s own refusal
to cooperate by providing DCS with a release form so that DCS personnel could obtain
her medical records from the VA significantly hindered DCS’s employees’ attempts to
offer additional assistance to Mother. Ms. Eggers-Bentley testified that she attempted to
set up mental health services for Mother, but Mother was ineligible for funding because
she reported that she was already participating in extensive mental health treatment
through the VA. Ms. Eggers-Bentley testified that she asked Mother to sign a release
form on several occasions, but Mother’s repeated refusals made it “very very difficult”
for her to verify that Mother was indeed seeking mental health treatment through the VA.
Accordingly, she testified that she did “the best that [she] could” to assist Mother with the
information Mother was willing to provide. Mr. Gilliam, another DCS case worker,
testified that, “[n]ot having those records caused us to feel around in the dark for what
would be appropriate for her based on the limited information that she would give us and
that we had.” Even after the court ordered Mother (on three separate occasions) to
execute a release form, Mother failed to cooperate for months.

Despite Mother’s representations to DCS concerning her treatment, the record
indicates that Mother approached her treatment with a cavalier attitude that exhibited a
disregard for the Children. As discussed above, Mother told VA employees that she
failed to take her medications as prescribed, resulting in at least one involuntary hospital
commitment. “It is well established that the affirmative duty to make reasonable efforts is
not solely on the Department.” See V.E.F., No. M2008-01514-COA-R3-PT, 2009 WL
605146, at *4 (Tenn. Ct. App. Mar. 9, 2009). “The duty to make reasonable efforts is ‘a
two-way street.’” Id. (quoting State Dep’t of Children’s Servs. v. S.M.D., 200 S.W.3d
184, 198 (Tenn. Ct. App. 2006)). Mother’s own failure to comply with her mental health
treatment regimen demonstrated her lack of concern for the Children and resulted in her
inability to provide a suitable home environment. DCS’s efforts were reasonable under
the circumstances of this case. Clear and convincing evidence in the record supports
termination on this ground.

B. Best Interest Analysis

When at least one of the statutory grounds for termination of a parent’s rights to
his or her child has been established, the petitioner must then prove, by clear and

14
When Ms. Eggers-Bentley visited Mother’s house the first time, she observed several swords and
between seven and nine assault rifles and hand guns. All of the guns were loaded and unlocked.
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convincing evidence, that termination of the parent’s rights is in the child’s best interest.
In re Navada N., 498 S.W.3d at 606 (citing White v. Moody, 171 S.W.3d 187, 192 (Tenn.
Ct. App. 1994)). Not all parental misconduct is irredeemable. See In re Miracle M., No.
W2017-00068-COA-R3-PT, 2017 WL 3836020, at * 8 (Tenn. Ct. App. Aug. 30, 2017).
Accordingly, the statutes governing the termination of parental rights recognize that
termination may not always serve the child’s best interest. Id. However, when the
interests of the parent and the child conflict, the courts must always resolve the conflict in
favor of the rights and best interest of the child. Id. Tennessee law provides that a court
may consider the following factors when determining whether termination of parental
rights is in the child’s best interest:

(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 and 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 assault
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 or controlled substances as may render the
parent or guardian consistently unable to care for the child in a safe and
stable manner;

(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
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 (9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.

Tenn. Code Ann. § 36-1-113(i). The factors enumerated above are not exhaustive, and
“[t]he statute does not require every factor to appear before a court can find that
termination is in a child’s best interest.” Dep’t of Children’s Servs. v. T.S.W., No. M2001-
01735-COA-R3-PT, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002). In some
cases, the consideration of a single factor, or facts outside the statutory factors, may
dictate the outcome of the court’s analysis. See In re Miracle, 2017 WL 3836020, at * 8.

The trial court made extensive findings concerning the relevant factors and
concluded that termination of Mother’s parental rights is in the Children’s best interest.
We agree. At trial, nearly three years had passed since the Children were originally
placed in foster care. Mother has failed to make changes in her own conduct that would
make it safe for the Children to return home and has continued to display a pattern of
poor judgment and a disregard for the Children. For example, during the course of these
proceedings Mother took the following actions: failed to take her medications as
prescribed; repeatedly attempted to mislead DCS and the trial court; lived with one
boyfriend whom allegedly became abusive; lived with another boyfriend who was a
registered sex offender; conceived a child with the registered sex offender; and took a cat
on a leash and a loaded gun to a hospital. The record supports the conclusion that
Mother’s psychological state would clearly be detrimental to the Children and would
prevent her from effectively providing safe and stable care and supervision of the
Children. Therefore, we affirm the trial court’s decision that termination of Mother’s
parental rights is in the best interest of both of the Children.

II. TERMINATION OF FATHER’S PARENTAL RIGHTS

The trial court found that clear and convincing evidence supported termination of
Father’s parental rights on the grounds of severe child abuse and incarceration for child
abuse with a sentence of two years or more. The trial court also found that termination of
Father’s parental rights was in the Children’s best interest. Based on our review of the
record, we affirm the trial court’s termination of Father’s parental rights.

A. Grounds for Termination

1. Severe Abuse

Tennessee Code Annotated section 36-1-113(g)(4) provides that a parent’s rights
to his or her child may be terminated if:

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 (4) The parent or guardian has been found to have committed severe child
abuse as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against the child who is
the subject of the petition or against any sibling or half-sibling of such
child, or any other child residing temporarily or permanently in the home of
such parent or guardian[.]

Tennessee Code Annotated section 37-1-102(b)(21)(A) defines “severe
child abuse” as:

(A)(i) The knowing exposure of a child to or the knowing failure to protect
a child from abuse or neglect that is likely to cause serious bodily injury or
death and the knowing use of force on a child that is likely to cause serious
bodily injury or death;

(ii) “Serious bodily injury” shall have the same meaning given in § 39-15-
402(d).

(B) Specific brutality, abuse or neglect towards a child that in the opinion
of qualified experts has caused or will reasonably be expected to produce
severe psychosis, severe neurotic disorder, severe depression, severe
developmental delay or intellectual disability, or severe impairment of the
child’s ability to function adequately in the child’s environment, and the
knowing failure to protect a child from such conduct;

“‘Serious bodily injury to a child’ includes, but is not limited to, second- or third-
degree burns, a fracture of any bone, a concussion, subdural or subarachnoid bleeding,
retinal hemorrhage, cerebral edema, brain contusion, injuries to the skin that involve
severe bruising or the likelihood of permanent or protracted disfigurement, including
those sustained by whipping children with objects.” See Tenn. Code Ann. § 39-15-
402(d).

Father argues that the trial court erred in concluding that DCS established, by clear
and convincing evidence, that Father committed severe child abuse resulting in J.R.’s
diagnosis of shaken baby syndrome and permanent physical and mental handicaps. At
trial, Father testified that J.R. incurred his injuries when Father accidently dropped J.R.
down the stairs. However, Father acknowledges that he pled guilty to three counts of
corporal injury upon a child in California.

We agree with the trial court that clear and convincing evidence supports
termination of Father’s parental rights based upon severe child abuse. The felony
convictions in the record clearly indicate that Father pled guilty to three counts of
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willfully causing corporal injuries to J.R., resulting in great bodily injury. Regardless of
Father’s attempts to explain the circumstances surrounding J.R.’s injuries, the fact
remains that Father pled guilty to the atrocious crime that caused J.R. to suffer severe
brain injuries, multiple broken bones, facial bruising, an inability to walk or sit up, and
cognitive impairment resulting in J.R.’s inability to speak more than a few words at age
seven. Accordingly, this Court finds that clear and convincing evidence supports
termination of Father’s parental rights based upon the ground of severe child abuse.

2. Imprisonment for Two or More Years for Severe Abuse

Tennessee Code Annotated section 36-1-113(g)(5) provides that a parent’s rights
may be terminated when:

The parent or guardian has been sentenced to more than two (2)
years’ imprisonment for conduct against the child who is the subject of the
petition, or for conduct against any sibling or half-sibling of the child or
any other child residing temporarily or permanently in the home of such
parent or guardian, that has been found under any prior order of a court or
that is found by the court hearing the petition to be severe child abuse, as
defined in § 37-1-102. Unless otherwise stated, for purposes of this
subdivision (g)(5), “sentenced” shall not be construed to mean that the
parent or guardian must have actually served more than two (2) years in
confinement, but shall only be construed to mean that the court had
imposed a sentence of two (2) or more years upon the parent or guardian[.]

See Tenn. Code Ann. § 36-1-113(g)(5).

In his brief, Father avers that he “was not sentenced to more than two (2) years
imprisonment for conduct against any child.” Although the argument is somewhat
challenging to follow, Father appears to argue that the sentence he received for child
abuse does not meet the “two-year sentence” requirement of this ground because his
sentence enhancement resulted in the addition of four years to his original two-year
sentence, for a total six-year sentence. Furthermore, Father argues that the “enhancement
is not identified by descriptive nature and the victim of that action or event is identified as
[Mother].” Because Mother was listed as the victim, according to Father, the “trial court
erred in finding that [he] had been sentenced to a period of more than two (2) years
imprisonment for conduct against any child.” (emphasis added).

We find Father’s argument unpersuasive for two reasons. First, the statute states
that “‘sentenced’ . . . shall be construed to mean that the court had imposed a sentence of
two (2) or more years upon the parent.” Tenn. Code Ann. § 36-1-113(g)(5). It clearly
contemplates that a sentence for child abuse of exactly two years would be sufficient to
trigger this ground. Father concedes in his brief that his conviction “clearly shows that
- 22 -
Father was sentenced to exactly two (2) years imprisonment.” Second, we also find
Father’s argument that the conviction does not serve as clear and convincing evidence
that his victim was indeed a child, namely J.R., unpersuasive. The record contains a
certified copy of Father’s conviction which indicates that Father pled guilty to corporal
injury upon a child and was sentenced to two years imprisonment. On the same
conviction, Father pled guilty to the enhancement found at California Penal Code section
12022.7(d), which states, “[a]ny person who personally inflicts great bodily injury on a
child under the age of five years in the commission of a felony or attempted felony shall
be punished by an additional and consecutive term of imprisonment in the state prison for
four, five, or six years.” (emphasis added). Father was sentenced to a total of six years for
his crimes against J.R. We find that clear and convincing evidence supports termination
of Father’s parental rights on this ground.

B. Best Interest Analysis

The trial court made findings concerning many of the best-interest factors and
concluded that termination of Father’s parental rights is in the Children’s best interest.
The record reflects that Father has not seen the Children since he was arrested in April
2010 for severely abusing J.R. He has no relationship with the Children because he has
been incarcerated for the majority of their lives and has been forbidden by courts in
California and Tennessee from contacting them. Accordingly, we hold that there is clear
and convincing evidence in this record that termination is in the Children’s best interest,
and we affirm the termination of Father’s parental rights to J.R. and R.R.

CONCLUSION

The decision of the trial court is affirmed in all respects, and the case is remanded
to the trial court for whatever further proceedings that may be required consistent with
this decision. Costs of the appeal are assessed against the Appellants, Elizabeth R. and
Roderick R. Because the Appellants are proceeding in forma pauperis in this appeal,
execution may issue for costs, if necessary.

________________________________
ARNOLD B. GOLDIN, JUDGE

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