04/30/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 21, 2018 Session
IN RE ZAYNE P.1
Appeal from the Chancery Court for Carroll County
No. 2015-AA-190 Carma Dennis McGee, Chancellor
___________________________________
No. W2017-01590-COA-R3-PT
___________________________________
This appeal arises from a Petition to Terminate Parental Rights filed by the foster parents.
The Department of Children’s Services removed the child from the mother and father’s
custody and placed the child in the custody of the foster parents because, shortly after the
child was born, the child tested positive for drugs. On the petition of DCS, the juvenile
court adjudicated the child dependent and neglected based on the finding that the parents
committed severe child abuse. Thereafter, DCS filed a Petition to Terminate Parental
Rights based, in part, on the records provided by the case worker. Subsequently, DCS
determined that the case worker had falsely reported that the parents were noncompliant
with the permanency plan. Following an inquiry that revealed the parents were in
substantial compliance with the permanency plan and that all drug tests were negative,
DCS dismissed its petition with court approval. Thereafter, the foster parents commenced
a new and independent action to terminate mother and father’s parental rights; the
petition also named DCS as a respondent. The foster parents subsequently filed a motion
to compel joinder of DCS as a co-petitioner on the ground that Tenn. Code Ann. § 36-1-
113(h)(1)(D) mandated that DCS file a petition to terminate parental rights if a juvenile
court has made a finding that the parents committed severe child abuse. DCS opposed the
motion on the ground that it had the discretion not to pursue termination of parental rights
if a compelling reason existed. The trial court denied the motion, and the case proceeded
to trial on the foster parents’ petition. Following trial, the court found that the foster
parents proved severe child abuse by clear and convincing evidence; however, the court
determined that termination of the parents’ rights was not in the child’s best interests and
dismissed the petition. This appeal followed. Having determined that the foster parents
failed to prove by clear and convincing evidence that termination of the parents’ rights
was in the child’s best interests, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
1
This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
Laura A. Keeton, Huntingdon, Tennessee, for the appellants, Charles A. and Misha A.
Chad A. Cox, Paris, Tennessee, for the appellee, Vicky B.
Robert W. Hawley, Paris, Tennessee, for the appellee, Steven P.
Jasmine McMackins, Paris, Tennessee, Guardian Ad Litem.
Herbert H. Slatery, III, Attorney General and Reporter; W. Derek Green, Assistant
Attorney General, for the Tennessee Department of Children’s Services.
OPINION
Zayne P. was born seven weeks premature in May 2014, to Vicki B. (“Mother”)
and Steven P. (“Father”) (collectively, “Parents”). Zayne tested positive for opiates and
methamphetamines at birth, and on May 30, the Tennessee Department of Children’s
Services (“DCS”) gained temporary custody with physical custody given to foster
parents, Charles A. (“Foster Father”) and Misha A. (“Foster Mother”) who are the
petitioners in this proceeding. A permanency plan was developed and signed by Parents
on June 19, 2014, and subsequently ratified by the court; it was revised and signed by
Parents on October 16 and ratified by the court on November 19. In an order entered on
December 10, 2014, the Henry County Juvenile Court found that Parents had committed
severe child abuse by exposing Zayne prenatally to drugs. Zayne was also adjudicated
dependent and neglected and has remained with the foster parents.
It was noted in the October permanency plan that Mother and Father each had a
long history of substance abuse. Therefore, the plan required Parents to submit to random
drug screens, attend alcohol and drug counseling at Carey Counseling, and to continue
counseling and Suboxone treatment2 at Behavioral Health Group (BHG). The desired
outcome was that Parents would maintain their sobriety long-term. Parents were to
comply with BHG’s protocol, which included decreasing their Suboxone use until they
were substance free.
It was also noted in the permanency plan that Mother and Father’s home was an
environmental concern with regard to animals, fleas, and lack of cleanliness. The plan
required parents to provide a clean environment with working utilities and to submit to a
parenting assessment and counseling services to assist Parents with parenting skills. As of
October 2014, Parents received in-home services from Youth Villages to address the
2
Suboxone is a drug used to treat opioid addiction.
2
foregoing issues.
Because Zayne was born premature and tested positive for several drugs, the
permanency plan addressed Zayne’s medical needs. It required that the Tennessee Early
Intervention System (“TEIS”) evaluate Zayne for developmental delay. It also mandated
that Parents and the foster parents cooperate with Zayne’s medical providers and follow
through with TEIS and all other medical appointments.
The goal of the June permanency plan was “return to parent/exit custody with
kin.” In October, the goal of the permanency plan was amended so that Zayne would
“retain permanency through adoption.” Accordingly, DCS filed a Petition to Terminate
Parental Rights on January 12, 2015. Thereafter, the permanency plan was updated in
January 2015 and then, again, in April 2015 with the same desired outcomes and goals.
In the interim, a DCS supervisor, Bret Brooks, conducted an internal review of
Zayne’s DCS file and determined that a DCS case worker had falsely reported that
Parents were noncompliant with the permanency plan.3 Conversely and significantly, Ms.
Brooks determined that Mother and Father had made substantial progress toward meeting
their goals on the permanency plan; specifically, that all drug tests had been negative, and
Parents were now providing a safe environment. Based on these findings, Ms. Brooks
concluded that DCS did not have a basis upon which to pursue the petition to terminate
Parents’ rights.
Shortly thereafter, on June 4, 2015, DCS dismissed its Petition to Terminate
Parental Rights, and on June 30, 2015, DCS added “Return to Parent” as an alternative
goal in the permanency plan. In July 2015, the juvenile court permitted Parents to have
significant visitation with Zayne, starting at six hours per week and progressing to
unsupervised overnight visits. Shortly following, in September, the court found that
Parents were compliant with the permanency plan and that their visits with Zayne were
successful. As a consequence, the court approved unsupervised overnight visitation every
weekend beginning in October 2015. The weekend visits have continued ever since.
Following the September 2015 hearing, the foster parents (collectively,
“Petitioners”), filed a Petition to Terminate Parental Rights and for Adoption on the
grounds of willful failure to provide support, Tenn. Code Ann. § 36-1-102; substantial
noncompliance with the permanency plan, Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-
403(a)(2); severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); and persistence of
conditions, Tenn. Code Ann. § 36-1-113(g)(3). One week later, they filed an amended
Petition, adding DCS as a respondent.
3
Based on Ms. Brooks’ findings, the DCS caseworker, Cendy Curtis, was removed from the
case.
3
The Petition also asked for a temporary restraining order suspending Zayne’s
visits with Parents. On September 29, the trial court granted the restraining order pending
a hearing on October 8, and after the hearing, the trial court dissolved the temporary
restraining order, finding no evidence that Parents’ visitation with Zayne would cause
him irreparable harm.
Petitioners subsequently filed a Motion to Compel Joinder of DCS to require DCS
to assist Petitioners in the prosecution of the petition to terminate Parents’ rights. The
principal basis for the motion was that Tenn. Code Ann. § 36-1-113(h)(1) mandated that
DCS file a petition to terminate parental rights if a juvenile court has made a finding that
the parents committed severe child abuse. Because the Henry County Juvenile Court
found severe child abuse in Zayne’s case, Petitioners argued that the court should compel
DCS to join Petitioners’ Petition to Terminate Parental Rights.
DCS opposed the motion on the ground that it had the discretion not to pursue
termination of parental rights if a compelling reason existed and insisted that Parents’
substantial compliance with the permanency plan was a compelling ground. The trial
court denied the motion, and the case proceeded to trial on the foster parents’ petition.
Shortly following Petitioners’ motion to compel joinder of DCS, Father filed a
Tenn. R. Civ. P. 11 motion against Petitioners and their attorney, alleging that Petitioners
“misled” the court to obtain a temporary restraining order and that the allegations set
forth in the Petition were not supported by the evidence. Father argued that the filing of
the Petition was “intended to harass, cause unnecessary delay, and/or needlessly increase
the cost of litigation” and asked the court to award attorney’s fees as a sanction. The trial
court reserved judgment on Father’s motion pending trial.
The petition to terminate Mother’s and Father’s parental rights was tried over five
4
days, during which the court heard testimony from Dr. Fred Steinberg, a psychologist
who evaluated Parents on behalf of Petitioners; Debbie Jelks, Zayne’s physical therapist;
Heather France, Parents’ drug counselor at BHG; Jamie Estrada, DCS case manager;
Velvet Arnold, friend of Petitioners; Bret Brooks, DCS supervisor; Abbey Buffington,
Parents’ counselor at Carey Counseling Center; Jessalyn Medlock, Parents’ family
intervention specialist at Youth Villages; Mother, Father, Foster Mother, and Foster
Father.
At the conclusion of Petitioners’ case in chief, Father moved for involuntary
dismissal under Tenn. R. Civ. P. 41.02 based on Petitioners’ failure to prove grounds for
termination and best interest by clear and convincing evidence. The court granted
Fathers’ motion as to willful failure to provide support, Tenn. Code Ann. § 36-1-113(g);
substantial non-compliance with permanency plan, Tenn. Code Ann. § 36-1-113(g)(2);
4
January 31, February 8, March 8, April 13, and May 4 of 2017.
4
and abandonment, Tenn. Code Ann. § 36-1-102(1)(A)(iv).5 The trial court denied the
motion as to severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); persistence of
conditions, Tenn. Code Ann. § 36-1-113(g)(3); and best interest, Tenn. Code Ann. § 36-
1-113(i), and the trial moved forward on the remaining issues.
At the conclusion of the trial, the court determined that Petitioners had not proven
persistence of conditions:
The child was removed due to the parents’ use of illegal drugs and the child
testing positive for drugs at birth. There is no proof that the parents
continue to abuse illegal drugs. They are both currently on Suboxone, for
which they have prescriptions and receive regular monitoring. There is not
proof that there are any other factors or conditions which prevent the
child’s safe return to [Parents]. All case workers called as witnesses
testified that [Parents’] home was safe and appropriate and that there were
no barriers or safety concerns in returning the child to [Parents’] care.
The court determined that while Petitioners proved that Parents had committed
severe child abuse by clear and convincing evidence, Petitioners did not prove that it
would be in Zayne’s best interest to terminate Parents’ parental rights. Examining the
best interest factors in Tenn. Code Ann. § 36-1-113(i), the court found that Parents
maintained regular visitation with Zayne, that Parents provided financial support to him,
that Parents established a meaningful relationship with Zayne, that both parents had been
compliant with drug treatment, and that they provided a safe and appropriate
environment. The court also denied Father’s Tenn. R. Civ. P. 11 motion.
Accordingly, the trial court dismissed the Petition, and Petitioners appealed.
ISSUES
Petitioners present three issues for our review:
I. Did the trial court err in denying the Petitioners’ motion to compel DCS to join
in the Petition to Terminate Parental Rights pursuant to Tenn. Code Ann. § 36-
1-113(h)(1)?
II. Did the trial court err in finding that Petitioners did not prove the statutory
ground of Tenn. Code Ann. § 36-1-113(g)(3), persistence of conditions, by
clear and convincing evidence?
III. Did the trial court err in finding that Petitioners did not show by clear and
convincing evidence that termination was in the child’s best interest?
5
The trial court acknowledged that abandonment was not specifically listed as a ground in the
Petition, but found that Petitioner made references to it.
5
Additionally, Father asks us to consider whether the trial court erred in denying his
motion for Tenn. R. Civ. P. 11 sanctions.
STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children
under both the United States and Tennessee Constitutions. Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002) (citing Stanley v. Illinois, 405 U.S. 645, 651-52 (1972)).
This right is superior to the claims of other persons and the government, but it is not
absolute; the state may terminate a person’s parental rights under certain circumstances.
In re Heaven L.F., 311 S.W.3d 435, 438 (Tenn. Ct. App. 2010); Santosky v. Kramer, 455
U.S. 745, 747-48 (1982).
Under Tennessee law, “[t]o terminate parental rights, a trial court must determine
by clear and convincing evidence not only the existence of at least one of the statutory
grounds for termination but also that termination is in the child’s best interest.” In re
F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). We review findings of fact made
by the trial court de novo upon the record “accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence is otherwise.” In re
F.R.R., 193 S.W.3d at 530 (quoting Tenn. R. App. P. 13(d)).
However, because of the heightened burden of proof in termination proceedings,
this 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
Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re Bernard T., 319 S.W.3d 586,
596-97 (Tenn. 2010). The trial court’s ruling regarding whether the evidence sufficiently
supported termination is a conclusion of law, which we review de novo with no
presumption of correctness. See In re Carrington H., 483 S.W.3d at 524.
ANALYSIS
I. JOINDER OF DCS AS A PETITIONER
Petitioners argue that the trial court erred by not compelling DCS to join in their
Petition to Terminate Parental Rights pursuant to Tenn. Code Ann. § 36-1-113(h)(1).
DCS concedes that the statute requires it to file a Petition to Terminate Parental Rights
when a juvenile court makes a finding of severe child abuse as it did in this case;
however, subsection (h)(2)(B) of Tenn. Code Ann. § 36-1-113 gives it the discretion not
to file or maintain an action if it determines that a compelling reason exists.
6
Tenn. Code Ann. § 36-1-113 provides in pertinent part:
(h)(1)The department shall file a petition to terminate the parental rights of
the child’s parents (or, if such a petition has been filed by another party,
seek to be joined as a party to the petition), and, concurrently, to identify,
recruit, process, and approve a qualified family for adoption, under the
following circumstances:
. . .
(D) If a juvenile court has made a finding of severe child abuse as defined
at § 37-1-102.
(2) At the option of the department, the department may determine that a
petition to terminate the parental rights of the child’s parents shall not be
filed (or, if such a petition has been filed by another party, shall not be
required to seek to be joined as a party to the petition), if one of the
following exists:
. . .
(B) The department has documented in the permanency plan, which shall
be available for court review, a compelling reason for determining that
filing such a petition would not be in the best interests of the child[.]
(Emphasis added).
In its opposition to the motion to compel joinder, DCS filed its permanency plans
with the trial court to establish that it had a compelling reason not to pursue the petition
to terminate Parents’ rights. After reviewing the permanency plans and hearing from the
parties, the trial court determined that DCS had a compelling reason not to pursue the
petition and denied the motion to compel. We agree.
The permanency plans submitted to the trial court adequately document Parents’
compliance. For example, the permanency plan dated January 22, 2015 states:
[Mother] went to Carey Counseling for intake, she attended counseling
there for A & D issues, she went to meetings and is still in the same
Suboxone Treatment Clinic since July of 2014. [Mother] has provided DCS
and the clinic with negative urine drug screens…except for being positive
for Suboxone, (Bup.). [Mother] had a negative hair follicle in January 2015.
[Mother] participates in visits, has offered to provide items for Zayne.
[Parents] have started their own business selling produce…and they feel
they are doing well with it.
7
The January plan gives a similar status update for Father, stating that his drug screens are
negative, he is attending counseling, he “has made forward progress with perm[anency]
plan tasks,” and regularly attends visitation with Zayne.
All subsequent plans state that Parents are compliant with counseling services,
continue to have negative drug screens (aside from Suboxone) and regularly attend
scheduled visitation. The last status update submitted to the court, dated December 7,
2015, states, “The parents have been compliant with services and we will be asking for
unsupervised visitation[.] [T]hen, if there are no issues we will begin a [trial home visit]
hopefully starting the end of Oct[ober].”
Petitioners argue that Parents did not comply with the permanency plans by
continuing to use Suboxone. While the permanency plans list sobriety as the desired
outcome, each plan requires that Parents follow the drug clinic’s treatment protocol to
achieve the desired outcome. The permanency plans explain that Parents’ Suboxone use
is a component of their addiction treatment, and Parents’ use is monitored by a physician
at a drug treatment clinic.
Based on the foregoing, we affirm the decision to deny Petitioners’ motion to
compel joinder of DCS as a co-petitioner.
II. GROUNDS FOR TERMINATION
In order to terminate the parental rights of a biological parent, a petitioner must
first prove, by clear and convincing evidence, at least one of the listed grounds for
termination. In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015); Tenn. Code Ann. § 36-
1-113(g).
A. Persistence of Conditions
One of the grounds Petitioners alleged was persistence of conditions, Tenn. Code
Ann. § 36-1-113(g)(3). In this case, the trial court concluded that Petitioners did not
prove persistence of conditions by clear and convincing evidence. We agree.
Tenn. Code Ann. § 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,
8
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[.]
While Zayne has been in Petitioners’ physical custody for approximately three
years, the evidence presented at trial shows that Parents fully complied with the
permanency plan, and significantly, with drug treatment. The evidence further shows that
Parents provided a safe environment for Zayne.
Jamie Estrada, Zayne’s DCS case worker testified that she visited Parents’ home
unannounced at least once per month from May to October 2016. She testified that the
home was safe, clean, and appropriate for Zayne. She stated that Mother and Zayne
“appeared to be very bonded,” and that Zayne called Mother “Mom” or “Mommy.” She
testified that Parents were compliant with counseling services and continued to have
negative drug screens, aside from Suboxone.
Jessalyn Medlock, Parents’ Family Intervention Specialist from Youth Villages,
testified that she provided in-home counseling that focused on parenting skills. She
testified that she visited Parents’ home weekly beginning in October of 2015 and that the
home was appropriate and safe for Zayne, that Zayne had proper bedding and toys, and
that Zayne appeared to have a bond with Mother and Father. Ms. Medlock testified that
Parents followed through with her recommendations on how to parent Zayne and that
both seemed motivated to provide an appropriate environment for him.
Heather France, a counselor at BHG, testified that Parents complied with drug
treatment and had no positive drug screens since beginning drug treatment in June 2014.
As for Parents’ Suboxone use, Ms. France testified that “[i]f Suboxone is taken as
prescribed, it doesn’t have a physical impact—no adverse side effects in terms of
behavior or being able to function normally.” Ms. France had no concerns with Parents’
continued use of Suboxone stating that each program is individualized and there is no set
time frame for weening off the drug. Ms. France emphasized that a physician at BHG
closely monitored Parents’ Suboxone use.
Considering the foregoing testimony at trial, we have determined that Petitioners
failed to prove persistence of conditions by clear and convincing evidence. Accordingly,
we affirm the trial court’s decision.
9
B. Severe Child Abuse
The only ground for termination that was proven was the ground of severe child
6
abuse. Parents do not challenge the trial court’s finding that Petitioners proved the
ground of severe child abuse pursuant to the clear and convincing standard. Nevertheless,
“in an appeal from an order terminating parental rights, the Court of Appeals must review
the trial court’s findings as to each ground for termination and as to whether termination
is in the child’s best interests, regardless of whether the parent challenges these findings
on appeal.” In re Carrington H., 483 S.W.3d at 525-26.
Tenn. Code Ann. § 36-1-113(g)(4) provides, in pertinent part, that the court has
grounds to terminate a parent’s parental rights if “[t]he parent or guardian has been found
to have committed severe child abuse as defined in § 37-1-102, under any prior order of a
court.” Here, the Henry County Juvenile Court found that Mother and Father had
committed severe child abuse in an order entered on December 10, 2014, which is a final
and non-appealable judgment. Therefore, Petitioners proved severe child abuse by clear
and convincing evidence.
C. Grounds Not Proven
The trial court found the evidence insufficient to prove any of the other grounds
alleged. More significantly, the trial court did not terminate Parents’ rights because it
found that termination of Parents’ rights was not in the child’s best interests.
This is not an appeal from an order terminating parental rights. Therefore, the
mandate from In re Carrington H. to review all grounds on which termination of parental
rights is based does not apply. As a result, we need not consider the grounds that were not
proven and shall focus our attention on the best interest analysis.
III. BEST INTERESTS OF THE CHILD
If one of the statutory grounds for termination is proven by clear and convincing
evidence, as it was here, a parent’s rights may be terminated if termination is in the best
interests of the child. In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
The legislature has identified nine statutory factors for the court to consider in
conducting a best-interests analysis, see Tenn. Code Ann. § 36-1-113(i); however, this
list is not exhaustive, and the court need not find the existence of every factor before it
may conclude that terminating an individual’s parental rights is in the best interests of a
child. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Instead, “[t]he relevancy
and weight to be given each factor depends on the unique facts of each case.” In re
6
The trial court found the evidence insufficient to prove any of the other grounds alleged.
10
Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005). Further, in considering a petition
to terminate parental rights, the court is called to make a determination of the child’s best
interests from the perspective of the child rather than the parent. In re Heaven L.F., 311
S.W.3d at 441.
The first statutory factor to be considered is “whether the parent or guardian has
made such an adjustment in 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.” Tenn. Code Ann. §
36-1-113(i)(1). The trial court noted that “all witnesses who have been inside the
[Parents’] home attest to its safe condition.” As previously stated, Ms. Estrada, Zayne’s
DCS caseworker, and Ms. Medlock, Parents’ family intervention specialist, both testified
that they visited Parents’ home numerous times and found it to be safe and appropriate
for Zayne. Therefore, we agree with the trial court that this statutory factor weighs
against termination.
The second statutory factor to be considered is “whether the parent or guardian has
failed to affect a lasting adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not reasonably appear
possible.” Tenn. Code Ann. § 36-1-113(i)(2). The trial court found that while Parents’
continued use of Suboxone was a concern, Parents complied with drug treatment,
counseling services, parenting classes, and narcotics anonymous, and Parents no longer
used illegal substances. The court also found that Parents had a home and both had
gainful employment.
Heather France, Parents’ drug counselor at BHG; Jamie Estrada, DCS case
manager; Bret Brooks, DCS supervisor; Abbey Buffington, Parents’ counselor at Carey
Counseling Center; and Jessalyn Medlock, Parents’ family intervention specialist at
Youth Villages all testified that Parents complied with services. Ms. France testified that
Parents have had negative drug screens since June 2014 and that Parents’ Suboxone use
is a component of their drug treatment. Ms. Medlock and Ms. Estrada testified that
Parents have a safe home, and Parents testified that they are employed. Therefore, this
factor weighs against termination.
The third factor to consider is “whether the parent or guardian has maintained
regular visitation or other contact with the child.” Tenn. Code Ann. § 36-1-113(i)(3). The
trial court found that for well over a year, Parents had overnight visitation with Zayne
every weekend. Prior to that, Parents had weekly visitation. The testimony supports this
finding, and it is undisputed. This factor also weighs against termination.
The fourth factor to consider is “whether a meaningful relationship has otherwise
been established between the parent or guardian and the child.” Tenn. Code Ann. § 36-1-
113(i)(4). The trial court found that Parents had established a meaningful relationship
with Zayne, and the evidence does not preponderate against this finding. Dr. Fred
11
Steinberg, Petitioners’ expert witness, testified that there appeared to be a bond between
Mother and Zayne. Ms. Medlock testified that Zayne called Mother and Father “Mom”
and “Dad” and that Zayne was excited to see Father when he returned home from work.
Ms. Estrada testified that Zayne had a strong bond with Mother, and he seemed happy
and comfortable in Parents’ home. Therefore, this factor also weighs against termination.
The fifth factor to consider is “the effect a change of caretakers and physical
environment is likely to have on the child’s emotional, psychological and medical
condition.” Tenn. Code Ann. § 36-1-113(i)(5). The Court found that because Petitioners
have served as Zayne’s primary caretakers since birth, the change in caretakers would be
difficult for Zayne but that the obstacle was not insurmountable. Zayne spent weekends
with Mother and Father, and Ms. Estrada testified that Zayne appeared comfortable and
happy in Parents’ home. As to Zayne’s medical care, Debbie Jelks, Zayne’s physical
therapist, testified that Father regularly attended Zayne’s physical therapy appointments.
Ms. Estrada testified that Mother and Father consistently attended Zayne’s medical
appointments, and she had no concerns regarding his medical condition while in their
care. Petitioners argued that Father was unlikely to follow through with Zayne’s physical
therapy appointments because Father did not believe Zayne needed treatment. Ms.
Estrada testified that Father told her he did not think Zayne needed physical therapy;
however, she also testified that Zayne was meeting his goals in therapy, and she was
equally skeptical about the continuing need for it. Therefore, this factor weighs against
termination.
The sixth factor is “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.”
Tenn. Code Ann. § 36-1-113(i)(6). The Henry County Juvenile Court found that parents
had committed severe child abuse by exposing Zayne to drugs prenatally. None of the
parties dispute this finding, and it weighs in favor of termination.
The seventh factor is “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.” Tenn. Code Ann. § 36-1-113(i)(7). As previously stated,
witnesses testified that Parents’ home was safe. None of the parties presented any proof
of criminal activity in the home. Ms. France and Ms. Estrada testified that Parents had
negative drug screens, except for Suboxone, which was being monitored by a physician
at BHG. Ms. France testified that Suboxone use did not interfere with Parents’ ability to
function normally, and Ms. Medlock and Ms. Estrada testified that Parents’ Suboxone
use had no effect on Parents’ ability to care for Zayne. Therefore, this factor weighs
against termination.
12
The eighth factor the court considered was “whether the parent’s or guardian’s
mental and/or emotional status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and supervision for the child.”
Tenn. Code Ann. § 36-1-113(i)(8). Dr. Steinberg, a forensic psychologist, evaluated
Father and Mother on behalf of Petitioners. Dr. Steinberg diagnosed Father with an
opioid addiction and anti-social personality disorder. He determined that Father had a
high likelihood of relapse and that this would negatively affect Father’s ability to parent.
Dr. Steinberg testified that Mother also had an opioid addiction and showed
simplistic thinking. Dr. Steinberg testified that Mother minimized her substance abuse
problem and, like Father, had a high likelihood of relapse, which would affect her ability
to parent. However, Dr. Steinberg also testified that he did not review any of the reports
from Parents’ drug treatment providers, counselors, or DCS case workers. Consequently,
Dr. Steinberg conceded his findings were inconclusive.7
Nevertheless, even if Parents were likely to relapse, the trial court opined that “the
Court cannot base this decision on factors which may occur in the future. The Court must
analyze the case based upon existing facts.” We agree. Here, Parents’ drug treatment
providers, counselors, and representatives from DCS all testified that Parents presently
provided a safe and stable environment for Zayne. Therefore, factor eight weighs against
termination.
The ninth and final factor the court considered was “whether the parent or
guardian has paid child support consistent with the child support guidelines promulgated
by the department pursuant to Tenn. Code Ann. § 36-5-101.” Tenn. Code Ann. § 36-1-
113(i)(9). The court found that Mother and Father paid child support during the child’s
life, and Petitioners do not dispute this finding on appeal. This factor weighs against
termination.
Thus, considering all of the factors together, the trial court determined that
Petitioners did not show by clear and convincing evidence that termination was in
Zayne’s best interest.
Petitioners and the guardian ad litem argue that Parents’ past history of relapse
and parents’ mental condition make it highly likely that Parents will relapse, which
weighs in favor of termination. Even so, the Tennessee Supreme Court held in a recent
termination case that the risk of relapse “is a possibility only” and does not amount to
7
The testimony was as follows:
Q. If that data [from the reports] existed and you didn’t have it, would that result in your
evaluation that you conducted as being inconclusive?
A. I guess you could say that, but on the other hand, I would expect you to forward that to me if
it did exist.
13
clear and convincing evidence that termination is in the best interest of the child. In re
Gabriella D., 531 S.W.3d 662, 686 (Tenn. 2017). The proof shows that Parents
maintained regular visitation with Zayne, that Parents provided financial support to him,
that Parents established a meaningful relationship with Zayne, that both parents had been
compliant with drug treatment, and that they provided a safe and appropriate
environment. Therefore, we affirm the trial court.
IV. TENN. R. CIV. P. 11 SANCTIONS
Father takes issue with the trial court’s denial of his motion for Tenn. R. Civ. P. 11
sanctions against Petitioners and their attorney.
An appellate court’s review of a trial court’s ruling on a Tenn. R. Civ. P. 11
motion is under an abuse of discretion standard. Hooker v. Sundquist, 107 S.W.3d 532
(Tenn. Ct. App. 2002). Pursuant to the standard of review articulated in Lee Medical, Inc.
v. Beecher, we are to review a discretionary decision to determine (1) whether the factual
basis for the decision is properly supported by evidence in the record, (2) whether the
trial court properly identified and applied the most appropriate legal principles applicable
to the decision, and (3) whether the trial court’s decision was within the range of
acceptable alternative dispositions. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010). When reviewing a trial court’s discretionary decision, we review the
underlying factual findings using the preponderance of the evidence standard contained
in Tenn. R. App. P. 13(d) and the trial court’s legal determinations de novo without any
presumption of correctness. Id. at 525.
Tenn. R. Civ. P. 11 governs the imposition of sanctions for pleadings and motions,
and provides in pertinent part:
By presenting to the court…a pleading, written motion, or other paper, an
attorney or unrepresented party is certifying that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances—
(1) It is not being presented for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of
litigation[.]
Tenn. R. Civ. P. 11.02.
Generally stated, Rule 11 authorizes the trial court to impose sanctions if Rule
11.02 is violated, the moving party gives the required notice to the offending party, and
the offending party fails to remedy any pending violation of Rule 11. Tenn. R. Civ. P.
11.03. The rule provides two means for initiating sanctions for violating Tenn. R. Civ. P.
14
11. Id. One of those means is upon motion of a party; the other is on the court’s initiative.
Id. When initiated by a party, the motion must “describe the specific conduct alleged to
violate [Rule] 11.02,” and the movant must serve it on the opposing party twenty-one
days before filing it with the court. Id. This “safe-harbor” provision gives the opposing
party the opportunity to remedy the pleading or motion before the court reviews it. Id.
Here, Father served his motion on Petitioners on October 7, 2015, and
subsequently filed it with the court on December 4, 2015. The basis of the motion is that
the petition and the request for a temporary restraining order were without grounds and
“intended to harass, cause unnecessary delay, and/or needlessly increase the cost of
litigation.” Specifically, Father contends Petitioners and their attorney “failed to
acknowledge, and/or failed to do their due diligence” to determine that Petitioners were
fully compliant with DCS services.
Having heard all the evidence in the case, the trial court denied Rule 11 sanctions,
and we find no abuse of discretion. Though DCS and other service providers asserted that
Parents complied with services, Petitioners argued that Parents’ continued use of
Suboxone did not comply with the permanency plan, and Parents’ past history of relapse
weighed in favor of termination. Finding no evidence of an improper purpose on
Petitioners’ part, we affirm the trial court.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellants, Charles A. and Misha A.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
15